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Contents

2012 Connecticut Appellate Review 1By Wesley W. Horton and Kenneth J. Bartschi

Tort Developments in 2012 28By James E. Wildes

2012 Connecticut Tax Law Developments 73By Felicia S. Hoeniger and Scott E. Sebastian

CONNECTICUT BAR

JOURNALVolume 87 No. 1

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* Of the Hartford Bar.1 262 Conn. 537, 816 A.2d 562 (2003).2 5 U.S. 137 (1803).

2013] 2012 CONNECTICUT APPELLATE REVIEW 1

2012 CONNECTICUT APPELLATE REVIEW

BY WESLEY W. HORTON AND KENNETH J. BARTSCHI*

I. SUPREME COURT

Ever since the legislature passed the plain languagestatute, General Statutes Section 1-2z, to overrule State v.Courchesne,1 the authors have loudly complained that thelegislative branch has no business telling the judicial branchhow to construe statutes. After all, the essence of the legis-lature’s job is to decide what the law will be, while theessence of the judiciary’s job is to decide what the law is.Chief Justice John Marshall said as much over two hundredyears ago in Marbury v. Madison,2 and we do not understandwhy lawyers and the judges seem so little concerned aboutthis direct attack on the fundamental role of the judiciary.

Briefly, what Section 1-2z says is that if the language ofa statute is plain on its face or after reviewing otherstatutes, then the judiciary is bound to give that meaning tothe statute unless it makes the statute absurd or unwork-able. So unless one of these two narrow exceptions applies(and how often is a court likely to hold that the plain mean-ing of a statute is absurd?), the plain meaning must bedeclared the actual meaning. That is so even if an exami-nation of secondary sources shows that there is a latentambiguity in the statute, and even if all the legislators whospoke on what they thought the statute meant when it wasbeing adopted, including the sponsor, thought it meant theopposite of its plain meaning.

Consider the war in Afghanistan. Suppose the statutegave a bonus to the estate of any member of the armedforces who was “killed in Afghanistan.” Suppose furtherthat a soldier, while chasing a terrorist in Afghanistan, waskilled just over the border in Pakistan. Suppose furtherthat all legislators who spoke when the bill was passedassumed that “killed in Afghanistan” meant “killed in the

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Afghanistan war.” Under Section 1-2z, applying the statuteonly to those killed within the legal boundaries ofAfghanistan would not be absurd or unworkable, so thecourts would be helpless to do its job of determining whatthe law is.

Supporters of Section1-2z will point out that the legisla-ture, when passing a statute, may add a section stating thatit is to be, say, liberally construed by the courts. But in thatsituation the legislators are focusing on a particular statuteand informing the courts what they are trying to accom-plish; that is quite different from Section 1-2z, which wasadopted independent of any particular statute and inde-pendent of any particular legislative session.

The Supreme Court has managed to dodge the questionof the constitutionality of Section 1-2z for the past nineyears. Most of the times when it might have come up, thelawyers didn’t even raise the issue.3

The authors’ law firm tried to get the Supreme Court toconsider the issue in Francis v. Fonfara.4 The case concernedwhether a judicial marshal was entitled to a fee of $900 forconforming the copies to be served even if the marshal wasprovided the copies. It seemed like an ideal case because thetrial court had declared the statute to have a plain meaningbarring the $900 payment, but the legislative history showedprecisely the opposite. The trial court then applied Section 1-2z and denied the fee. So our firm made a big fuss in theappellate brief and at oral argument about the unconstitu-tionality of the statute. Yet the Court managed to find thestatute ambiguous; thus we won the $900 for our client butthe constitutional issue was put off for another day.5

Francis was decided in January 2012. Seven monthslater, the Court dodged the issue again. In State v. Ramos,6the Court considered whether under General StatutesSection 54-1j(c) a criminal defendant could file a certain

2 CONNECTICUT BAR JOURNAL [Vol. 87

3 State v. Ramos, 306 Conn. 125, 49 A.3d 197 (2012), discussed below, is onlythe most recent example.

4 303 Conn. 292, 33 A.3d 185 (2012).5 Id. at 296 n.8.6 306 Conn. at 144 n.4.

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motion outside the three-year period stated in the statute.The Court held that the statute was plain and therefore theCourt could not examine the legislative history, whicharguably (not clearly, as in Francis) pointed in the oppositedirection. It does not appear that the defendant raised theconstitutional issue,7 but Justice Palmer in a concurringopinion pointed out the problem:

For the reasons that the majority articulates, application ofthe plain meaning rule codified in General Statutes Section1–2z compels this result. I write separately, however, tohighlight an anomaly that arises in the present case:because the plain language of § 54–1j contains no sugges-tion of a grant of jurisdiction that would allow a trial courtto entertain a motion filed beyond the three year period andto afford relief as a matter of discretion, § 1–2z precludesour consideration of legislative history clearly manifestingthe legislature's view that § 54–1j allows a trial court toconsider such a motion and to afford such relief. . . . Inother words, this appears to be an unusual case in whichthe application of § 1–2z precludes us from effectuating thelegislature's intent.8

Some day, in some way, the constitutionality of Section1-2z will be unduckable. Perhaps in 2013. The authorshope the lawyers lucky enough to have the issue available tothem will argue it vigorously to the courts.

While we are on the subject of the legislature telling thecourts how to do their job, we want to highlight Keller v.Beckenstein.9 Keller concerned a claim for vexatious litiga-tion that under normal judicial principles was not ripebecause the underlying judgment was on appeal. But in therelevant statute, the legislature in effect said the courtsshould hear the case even if it was not ripe. We have nocomplaint about the precise result because, as the courtheld, the judicial ripeness doctrine is not rigid anyway.10

Moreover, Article Fifth, Section 1 of the Constitution statesthat “the power and jurisdiction of the courts shall bedefined by law,” and “law” usually means statutory law.


7 See discussion of § 1-2z, 306 Conn. at 140-41 & n.13.8 Id. at 143-44 (footnotes omitted).9 305 Conn. 523, 46 A.3d 102 (2012).10 Id. at 537-38.

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Our problem with Keller is this unnecessarily broaddicta: “Simply put, when the legislature has determinedthat the Superior Court has jurisdiction over a particulartype of claim, we cannot rescind that grant of jurisdiction.”11

Suppose, for example, that the legislature gave the courtsthe power and jurisdiction to determine where the Hartford-New Britain busway should go. In the 1890s, the legislatureactually did give the courts the power to determine wherethe trolley tracks in Norwalk should go. In one of the great-est constitutional decisions in the Supreme Court’s history,the Court in Norwalk Street Railway Company’s Appeal12

held that such a determination was clearly an administra-tive, not a judicial, function and struck down the statute.

Or suppose that the legislature gave the courts powerand jurisdiction to answer the legislature’s questions abouta proposed bill’s constitutionality. In Reply of the Judges,13

the Supreme Court justices stated:There are in our minds so strong objections to the practiceof asking on the part of the Legislature and of giving on thepart of the Judges, opinions in advance as to the validity ofcontemplated legislation, that we feel it to be our duty,without intending any disrespect to your honorable body, todecline to give the opinion requested.14

We will assume that Keller is not intended to call intoquestion these two decisions. Perhaps, if the Court is con-fronted with a similar issue, it can focus on the little word“claim” in the quotation above from Keller and hold thatthere is a constitutional limit to what the legislature cancall a judicial claim. A good precedent to cite would beWalkinshaw v. O’Brien,15 in which the Court said that thelegislature cannot force the courts to do something thatwould undermine the essential characteristics of the consti-tutional courts. Or one could cite to Szarwak v. Warden,16

in which the Supreme Court declared a statute giving a


11 Id. at 538.12 69 Conn. 576, 593, 37 A. 1080, 1085 (1897).13 33 Conn. 586 (1867).14 Id.15 130 Conn. 122, 32 A.2d 547 (1943).16 167 Conn. 10, 355 A.2d 49 (1974).

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court below the Superior Court the power to adjudicatesome felonies unconstitutional. Meanwhile, Keller showsthe danger of dicta.

The Connecticut Constitution got a modest workout in2012. There is Keller. There is also In re Petition ofReapportionment Commission,17 in which the SupremeCourt for the first time exercised its plenary constitutionalauthority under Article Third, Section 6(d) to adopt a con-gressional districting plan for the next decade. It did so byappointing a special master and then adopting his plan.While this does not look like a judicial act, we cannot com-plain because the Constitution itself mandates that role forthe Supreme Court if all else fails. And all else did fail in2011. Then there is State v. Gault,18 holding that theVictim’s Rights Amendment to Article First, Section 8 doesnot make the victim a party to the criminal case and there-fore does not give the victim the right to appeal. And inState v. Santiago,19 a death penalty case, the Court held,essentially under Connecticut due process principles, thatthe sole aggravating factor can constitutionally be identicalto an element of the underlying capital crime.

The Connecticut Constitution would have gotten a morethorough workout in 2012 if lawyers had taken the time tomake the six-prong Geisler analysis20 required for a stateconstitutional claim. Instead, a number of appellants eitherbriefed the state and federal constitutional issues together,which the Supreme Court has said time and again will yielda review of only the federal constitutional issue, or failed toraise a separate state constitutional issue at trial.

So in State v. Jackson,21 the question was whether thedefendant had a reasonable expectation of privacy in clothesleft in a hotel room when he attempted suicide by jumpingfrom the window. The Court found no such expectationunder precedent interpreting the Fourth Amendment, and


17 303 Conn. 798, 36 A.3d 661 (2012).18 304 Conn. 330, 39 A.3d 1105 (2012).19 305 Conn. 101, 248-60, 49 A.3d 566 (2012).20 See State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992).21 304 Conn. 383, 40 A.3d 290 (2012).

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refused to consider whether Article First, Section 7 of theConnecticut Constitution provided additional rightsbecause the issue was not separately briefed.22

Likewise in Commissioner of Correction v. Coleman,23

the defendant claimed a right not to be force-fed in jail aris-ing under common law as well as the State and U.S.Constitutions. The court ruled against the defendant on themerits on his common law and federal constitutional issues,but refused to consider the state constitutional issuebecause it was not separately briefed.24

And in Perez-Dickson v. Bridgeport,25 the plaintiff claimeda violation of her constitutional right to free speech when shewas disciplined for a statement made pursuant to her officialduties. Since the U.S. Supreme Court had held in Garcetti v.Ceballos26 that there is no such First Amendment right, onewould think this was the ideal time to brief the free speechissue under Article First, Sections 3, 4 and 14 of theConnecticut Constitution. But no, the plaintiff never raisedthat issue at trial and the Court held it would prejudice thedefendant to raise it for the first time on appeal.27

Schumann v. Dianon Systems, Inc.28 also concerned theGarcetti case. The main issue was whether GeneralStatutes Section 31-51q applies the Garcetti rule to privateas well as public employers, and the Court, in a 5-2 decision,said yes. The plaintiff further claimed that the ConnecticutConstitution does not permit the restriction on the freespeech of employees that Garcetti sanctions. The issue waswell briefed but the Court ducked the issue on the plausible(but not overwhelmingly convincing) bases that, even if theCourt construed the Connecticut Constitution more broadly,the plaintiff would lose, and in any event public employers,who were not involved in the case, should be heard from ina case involving them.


22 Id. at 390 n.5.23 303 Conn. 800, 38 A.3d 84 (2012).24 Id. at 830 n.12.25 304 Conn. 483, 43 A.3d 69 (2012).26 547 U.S. 410 (2006).27 304 Conn. at 498-505 & nn. 21-27.28 304 Conn. 585, 43 A.3d 111 (2012).

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Finally, there is Bozrah v. Chmurynski,29 a very signifi-cant zoning decision holding that a zoning official violatesthe Fourth Amendment by making a targeted search of aproperty without probable cause to believe that a zoning vio-lation exists. The claimed valid public purpose in determin-ing whether there is a zoning violation is insufficient withoutprobable cause. The defendant raised an Article First,Section 7 issue but it is not clear whether he also made anindependent state constitutional analysis.30 If he did not,then our usual criticism pertains. But if he did, then wedirect our criticism to the Supreme Court. For a number ofreasons, when both the Connecticut and U,S, Constitutionsare properly briefed, the Supreme Court should address theclaim under the Connecticut Constitution first.

First, suppose the Court got the Fourth Amendmentanalysis wrong. Then the U.S. Supreme Court may reverseand the Connecticut Supreme Court will have to decide thestate constitutional issue anyway. If the state issue wasdecided first, however, and resolved in the defendant’sfavor, that would be the end of the matter. Second, andmore important, state constitutional law ought to be devel-oped whenever possible. The Connecticut Supreme Court isthe expert on that subject. When a case allows, the Justicesshould concentrate on what they are the final arbiters of,rather than guessing what a higher court thinks.

While we think a state constitutional issue ought to bedecided before turning to a federal constitutional issue, wedo agree with State v. Rose31 that a supervisory power issueis properly decided before turning to any constitutionalissue, state or federal.32 After all, the Supreme Court’ssupervisory power is not limited to constitutional issues, soit makes sense for the Supreme Court to decide what itbelieves is a proper policy for the judicial branch beforedeciding whether that policy is constitutionally required. InRose, the defendant was improperly required to wear prison


29 303 Conn. 676, 36 A.3d 210 (2012).30 Id. at 679 n.2.31 305 Conn. 594, 46 A.3d 146 (2012). 32 Id. at 606-07.

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garb at trial; the issue on appeal was whether harmlesserror analysis applied. A majority of the Court (6-1) said nobecause the ruling affected the integrity of the trial, and itwould be very difficult to determine what effect the wearingof prison garb had on the jury.

Rose is one of an unusually large number of interestingprocedural rulings in 2012. Many, like Rose, have to do withappellate procedure. In Harris v. Bradley Memorial Hospital& Health Care Center, Inc.,33 the Court held that an appelleegenerally will not be deemed to have forfeited an issue forfurther proceedings after a reversal, even if the appelleecould have raised the issue in the context of the other side’sappeal. In Hardy v. Superior Court,34 the Supreme Courtfinally gave a decent interment to the old rule drasticallylimiting the scope of a writ of error challenging a summarycontempt conviction.35 As a practical matter, a writ of errorwill now yield approximately the same review as an appeal.

Two cases involve the final judgment rule. First,Woodbury Knoll, LLC v. Shipman & Goodwin, LLP36 holdsthat a discovery order against a nonparty law firm could beimmediately reviewed on a writ of error without forcing thelawyer to be held in contempt. It would be against publicpolicy to force a lawyer—an officer of the court—to defy thecourt in order to challenge its order.37 And in Khan v.Hillyer,38 the Court continued to expand the appealability ofmarital dissolution orders by allowing an immediate appealfrom a contempt ruling for preventing a child from havingcourt-ordered visitation with the other parent.

Last year’s article39 started with Mr. Horton’s criticism ofboth the majority and the dissent in State v. Kitchens.40 His


33 306 Conn. 304, 50 A.3d 841 (2012).34 305 Conn. 824, 48 A.3d 50 (2012).35 Id. at 831-34.36 305 Conn. 750, 48 A.3d 16 (2012).37 Id. at 762-69. The Court also ruled that the lawyer had standing to assert

the attorney-client privilege. Id. at 775-76.38 306 Conn. 205, 49 A.3d 996 (2012).39 Wesley W. Horton & Kenneth J. Bartschi, 2011 Appellate Review, 86 CONN.

B.J. 1 (2012).40 299 Conn. 447, 10 A.3d 942 (2011).

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view was and is that Kitchens is too black and white aboutwhen the Supreme Court will review an issue not raised orimproperly raised in the trial court. If you fit into a rigid cat-egory, you get appellate review; if you don’t, you don’t. We(Mr. Bartschi agrees with Mr. Horton on this point) arepleased to see some sandpapering of the rigidity of Kitchensin State v. Paige.41 The issue was whether defense counselaffirmatively acquiesced in the trial court’s giving of a plain-ly erroneous charge to the jury when he asked if the trialcourt was going to give that charge, the court said yes, andthe defense counsel responded “Okay. Thank you.” TheSupreme Court granted review on the ground that theresponse was ambiguous. We find this ground a bit eye-rolling, but we fully agree with the Court’s decision to get tothe merits of the plain error the trial court committed.

The other significant appellate procedure ruling concernsthe articulation process. Fortunately, the Supreme Courtand the Appellate Court finally adopted an amendment toPractice Book Section 61-10, in late 2012, effective January1, 2013, that greatly limits the duty of parties to move forarticulation on pain of forfeiting appellate review. In reJason R.42 is exhibit A in why the old articulation rule wasmore likely to lead to injustice than justice. The 6-1 major-ity basically allowed the trial court, via the articulationprocess, to change its reasoning after the fact in order toescape appellate reversal. Justice Zarella in dissent evis-cerates the majority’s reasoning and shows why the oldarticulation process is now properly relegated to the dustbinof history.43

The Court also released a half dozen significant proce-dural decisions concerning the trial process. In ElectricalContractors, Inc. v. Department of Education,44 the plaintiff,a nonunion contractor, was given standing as a losing bid-der to claim that requiring it to hire only union workersundermined the integrity of the bidding process. The


41 304 Conn. 426, 40 A.3d 279 (2012).42 306 Conn. 438, 51 A.3d 334 (2012).43 Id. at 460-71 (Zarella, J., dissenting).44 303 Conn. 402, 35 A.3d 188 (2012).

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Supreme Court thus put the plaintiff’s claim on a par withthe traditional claims that permit standing for fraud, cor-ruption, or favoritism. In Bateson v. Weddle,45 anotherstanding case, the Court gave taxpayer standing in a quowarranto case. The Court distinguished other cases againstpublic officials on the ground that quo warranto tested onlywhether the public official was a public official. The publicinterest required that any taxpayer be able to make such afundamental claim.

The Supreme Court finally cleared up confusion in itscases about what constitutes legal insufficiency as opposed toa lack of subject matter jurisdiction. In In re Jose B.,46 theCourt greatly narrowed the meaning of jurisdiction and heldthat a failure to plead or prove an essential fact to claim reliefunder a statute concerns only legal insufficiency, not jurisdic-tion. That means the decision would have res judicata or col-lateral estoppel effect, and it also means the issue is properlyraised on a motion to strike, not a motion to dismiss.

An important criminal procedural issue concerns joinder.In State v. Payne,47 the Court rejected the blanket presump-tion favoring joinder of criminal cases, and put the burden onthe state to prove by a preponderance of the evidence thatseparate informations should be joined. In Duart v.Department of Correction,48 the Court made it somewhateasier to meet the Varley test49 for the granting of a new trialfor fraud. Before, a litigant had to prove a “substantial like-lihood” that the result of a new trial will be different; now thetest is only “reasonable probability.” The Court also appliedVarley to discovery abuse allegations. Finally, Nelson v.Dettmer50 holds that a motion to set aside a judgment underGeneral Statutes Section 52-212a is timely if filed withinfour months of the denial of a motion to reargue, even if thatis more than four months after the judgment was entered.


45 306 Conn. 1, 48 A.3d 652 (2012).46 303 Conn. 569, 34 A.3d 975 (2012).47 303 Conn. 538, 34 A.3d 370 (2012).48 303 Conn. 479, 34 A.3d 343 (2012).49 See Varley v. Varley, 180 Conn. 1, 428 A.2d 317 (1980).50 305 Conn. 654, 46 A.3d 916 (2012).

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The substantive area of the law with the largest numberof significant decisions in 2012 is torts. Complying with therequirements of General Statutes Section 52-190a(a) forbringing a medical malpractice case is not easy. In Wilcoxv. Schwartz,51 the written opinion of a similar health caseprovider accompanying the complaint, as required by thestatute, barely passed muster in a 4-3 decision where theprovider’s opinion did not identify the precise manner inwhich the standard of care was breached. In a more unusu-al case, Jarmie v. Troncale52 held that a medical malprac-tice case can be brought only by the patient. The plaintiffwas injured in a highway accident with a patient who hadjust left the doctor’s office. The claim was that the defen-dant should have warned his patient about the risk of driv-ing. The malpractice claim was barred by statute, and inaddition the ordinary common law negligence claim wasbarred because the defendant owned no duty to the plaintiff,the defendant’s duty being solely to his patient. On the lat-ter point, the case has an interesting discussion of how thedoctor’s duty to advise the patient might conflict with anyduty to the public.53

In O’Dell v. Kozee54 the majority, 5-2, held that “intoxi-cated” in the dram shop statute, Section 30-102, means vis-ibly or otherwise perceivably so. In Giacalone v. HousingAuthority,55 the Court held that a landlord could be heldliable under the common law for premises under its controlfor injuries caused by a tenant’s dog. And in DiPietro v.Farmington Sports Arena, LLC,56 the court held that theplaintiff failed to produce evidence that a carpet the defen-dants installed in an indoor soccer arena was unreasonablydangerous in the absence of visible flaws or industry or gov-ernmental standards.

The Court decided an important employment case in2012. In Patino v. Birken Manufacturing Co.57 the Court


51 303 Conn. 630, 37 A.3d 133 (2012).52 306 Conn. 578, 50 A.3d 802 (2012).53 Id. at 605-14.54 307 Conn. 231, 53 A.3d 178 (2012).55 306 Conn. 399, 51 A.3d 352 (2012).56 306 Conn. 107, 49 A.3d 951 (2012). Mr. Bartschi represented the defendants.57 304 Conn. 679, 41 A.3d 1013 (2012).

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held that an employment discrimination claim on the basisof sexual orientation under General Statutes Section 46a-81c(1) for a hostile workplace or hostile environment couldbe brought even though the statute does not explicitly bansuch things.

Finally, there is the Court’s discussion of the maxim nul-lum tempus occurrit regi—“time does not run against theKing.” In State v. Lombardo Brothers Mason Contractors,Inc.,58 the Court held, relying on that hoary medieval doc-trine, that the statute of limitations runs against the stateonly if the statute explicitly says so, which in Lombardo itdid not. Thus the state could sue various contractors con-cerning the building of the University of Connecticut Schoolof Law library long after the usual statute of limitations hadrun. Not only that, the contract with the developers signedby the state official authorized by statute to sign such con-tracts included what in effect was a waiver of the nullumtempus doctrine. But no statute authorized the official tobind the state to the generally applicable statute of limita-tions, so the waiver was void. Nullum tempus brings tomind another Latin phrase for those who wish to buy intodeals with the state: caveat emptor.

The big probate case of 2012 is Gross v. Rell,59 holdingthat neither the conservator nor the attorney for animpaired adult has immunity from suit by the impairedclient (except that the conservator does have immunity ifthe conservator first gets approval from the Probate Court).Since the Court had previously held that the attorney for achild in dissolution proceedings has immunity60 from suit bythe child, we are unconvinced by the Court’s distinctionbetween children and impaired adults. After all, thelawyer’s ethical duty to both is identical under Rule 1.14 ofthe Rules of Professional Conduct.

The most important criminal case of the year is State v.Guilbert,61 in which the Court finally confronted squarely


58 307 Conn. 412, 54 A.3d 1005 (2012).59 304 Conn. 234, 40 A.3d 240 (2012).60 Carrubba v. Moskowitz, 274 Conn. 533, 877 A.2d 773 (2005).61 306 Conn. 218, 49 A.3d 705 (2012).

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the extensive body of evidence that eyewitness identifica-tion of strangers is notoriously unreliable. The Court heldthe expert testimony on the factors that adversely affectsuch identifications should generally be allowed. Anotherimportant criminal case, also involving admissibility of evi-dence, is State v. Thompson,62 holding that the state mustprove only by a preponderance of the evidence that thedefendant procured the unavailability of a witness in orderfor the state to introduce the witness’s written statementinto evidence.

The one significant workers’ compensation decision isSapko v. State,63 holding that the doctrine of supersedingcause previously abolished for tort cases in Barry v. QualitySteel Products, Inc.64 survives in the context of the no-faultcompensation system.

Three significant family cases are Tomlinson v.Tomlinson,65 In re Joseph W.,66 and Berzins v. Berzins.67

Tomlinson holds that a supposedly unmodifiable unallocat-ed alimony and support order must in fact be modifiable tothe extent that it pertains to child support. Joseph W. con-cerns the interesting doctrine of “predictive neglect.” If thestate wants to have a child declared neglected under thatdoctrine, it must be proved separately as to each parent inorder to be binding on both. Berzins limits the court’sauthority to award counsel fees for egregious litigation mis-conduct to discovery misconduct in the absence of a findingof bad faith.

Finally, two high-visibility cases are as likely to recur astrolley tracks are in Norwalk: Pereira v. State Board ofEducation68 and Republican Party of Connecticut v.Merrill.69 In the former, the State Board of Education couldnot, in effect, take over the Bridgeport schools without first


62 305 Conn. 412, 45 A.3d 605 (2012).63 305 Conn. 360, 44 A.3d 827 (2012).64 263 Conn. 424, 820 A.2d 258 (2003).65 305 Conn. 529, 46 A.3d 112 (2012).66 305 Conn. 633, 46 A.3d 59 (2012).67 306 Conn. 651, 51 A.3d 941 (2012).68 304 Conn. 1, 37 A.3d 625 (2012).69 307 Conn. 470, 55 A.3d 251 (2012).

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trying to train the local school board to do the job. In thelatter, “party” in an election statute, General StatutesSection 9-249a, means “party,” so because Thomas Foley gotmore votes on the Republican line than Dannel Malloy goton the Democratic line in 2010 (Governor Malloy won onlybecause he also got the votes of a third party), theRepublican Party got top billing in the 2012 election.

Concerning the membership of the Supreme Court,Justice McLachlan turned 70 in June and Justice Harper inNovember. Governor Malloy in late December nominatedhis lawyer, Andrew McDonald, to replace JusticeMcLachlan, and in early January 2013 nominated AppellateCourt Judge Carmen Espinosa to replace Harper. Bothnominees were confirmed by the Legislature. JusticeNorcott will turn 70 in late 2013. All the other justices arein their mid-60s or younger.

A last point about the Supreme Court concerns its rever-sal rate. For several years, the overall reversal rate in theSupreme Court has hovered around 40%, with cases certi-fied from the Appellate Court having close to a 50% reversalrate and cases transferred from the Appellate Court dockethaving less than a 40% reversal rate. (There are only a fewdirect appeals every year, usually with a lower reversalrate.) In the past year, the opposite occurred: the reversalrate on certified cases was slightly under 40%, and thereversal rate on transferred cases was slightly over 40%.(We do not give precise percentages because what consti-tutes a reversal in a mixed result case is a matter of judg-ment.) We suspect the reason for this is that, at approxi-mately the time Justice Eveleigh joined the court in mid-2010 (perhaps a coincidence), the certification grant rateincreased dramatically from under 15% to over 20%. Therate petitions are granted apparently is inversely propor-tional to the Court’s reversal rate.

II. APPELLATE COURT

Picking up where we left off with the Supreme Court, theAppellate Court’s reversal rate is always lower because ithears most of the appeals that are filed as of right.


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Generally, the Appellate Court’s reversal rate is about 20%,but in 2012 it was a bit lower at 17%. Taking the cases sub-mitted only on briefs out of the equation (which almostalways result in affirmance or dismissal; there were tworeversals in 2012 out about 55 cases decided only on briefs),yields a slightly higher reversal rate, a little less than 19%.

Although much of the Appellate Court’s work consists ofroutine error correction (or more likely determining that noerror requiring correction occurred), the Appellate Courtgenerates a number of interesting decisions each year. Thefollowing highlights some of those decisions.

After earlier fulminating against Section 1-2z, it seemsappropriate to start here with a case in which Judge Bordenapplied the plain language of General Statutes Section 51-183c to hold that a judge reversed on appeal was disquali-fied from deciding subsequent motions for counsel fees.70

Then-Justice Borden wrote the decision in State v.Courchesne71 abandoning the plain-language rule, whichprompted the legislature to adopt Section 1-2z.72 JudgeBorden has also questioned the constitutionality of Section1-2z. Adding to the irony, the Supreme Court has grantedcertification on the meaning of the statute, suggesting thatthe language of Section 51-183c, at least in this context,may not be so plain after all. It is not clear whether the con-stitutionality of Section 1-2z is within the certified question.

In addition to the duty to disqualify themselves afterbeing reversed, judges generally must render a decisionwithin 120 days after the conclusion of a bench trial or ashort calendar matter to render a decision.73 Whether thetrial court has blown these deadlines or the parties havewaived them seem to present perennial questions. In Reyesv. Bridgeport,74 the trial court sought to restart the 120-day


70 Gagne v. Vaccaro, 133 Conn. App. 431, 35 A.3d 380, cert. granted, 304 Conn.907, 39 A.3d 1118 (2012).

71 262 Conn. 537, 816 A.2d 562 (2003).72 Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 414-15, 891 A.2d 959,

969 (2006) (Borden, J., concurring).73 See CONN. GEN. STAT. § 51-183b (concerning bench trials); Practice Book §

11-19 (governing short calendar deadline).74 134 Conn. App. 422, 39 A.3d 771 (2012).

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clock on a short calendar matter by summoning the partiesto court and allowing them further argument. The parties,however, offered no substantive argument, so the clock didnot restart. In Jacobson v. Zoning Board of Appeals,75 thecourt sought an unspecified extension and communicatedthrough the defendant who reported the plaintiff took noposition. The Appellate Court held that the plaintiff did notwaive the 120-day rule, but noted that if the court asked theparty directly, the party needs to take a position.

While the 120-day rule implicates personal jurisdiction(which is waivable), subject-matter jurisdiction is not waiv-able. In Ortiz v. The Metropolitan District,76 the Courtaffirmed the dismissal of a personal injury action against theMDC where the plaintiff fell through a sewer cover becausethe plaintiff failed to give the notice that is necessary to waivesovereign immunity under the defective highway statute.77

The Court noted the confusion in the decisional law betweensubject matter jurisdiction and the court’s authority to act indetermining the adequacy of notice under the statute.

Two cases concerned standing. Rana v. Terdjanian78

held that General Statutes Section 52-109 conferred subjectmatter jurisdiction to allow the substitution of a party toaddress the lack of standing by the original plaintiff. On theother hand, the Appellate Court held that trial court prop-erly dismissed Coldwell Banker Manning Realty, Inc. v.Cushman & Wakefield, Inc.79 for lack of standing, even afterthe matter had been the subject of a Supreme Court deci-sion, because the plaintiff was actually “Manning Realty,Inc.” The court held that General Statutes Section 52-123did not rescue the action because it was brought under aname made fictional by adding “Coldwell Banker” to it.

Immunity from suit also raises subject matter jurisdic-tion, and in Mercer v. Blanchette,80 the court held that state-


75 137 Conn. App. 142, 48 A.3d 125 (2012).76 139 Conn. App. 487, 56 A.3d 952 (2012).77 CONN. GEN. STAT. § 13-149.78 136 Conn. App. 99, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012).79 136 Conn. App. 683, 47 A.3d 394 (2012).80 133 Conn. App. 84, 33 A.3d 889 (2012).

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ments by members of a panel constituted to enforce a con-sent decree were absolutely privileged. Although the paneldid not have the power to make binding orders, it performeda judicial function by monitoring compliance since the courtwould become involved once the panel finds noncompliancewith the decree. Mr. Mercer was the plaintiff in anothercase concerning sovereign immunity.81 There, the courtheld that sovereign immunity did not shield the state fromthe plaintiff’s claim under the Americans with DisabilitiesAct, because a claim of unequal treatment constitutes anequal protection claim under the Fourteenth Amendment,therefore waiving sovereign immunity for statutory claims.Mr. Mercer’s claim nevertheless failed because he did notallege that the defendants denied access to programsbecause of the plaintiff’s disability.

A potpourri of cases involving other aspects of civil pro-cedure is worth noting. In D’Ascanio v. Toyota IndustriesCorp.,82 the trial court’s preclusion of all the testimony of anexpert witness because of a misleading video was dispropor-tionate to the violation where there was no finding that theplaintiffs or their counsel were complicit. The plaintiff inWorth v. Commissioner of Transportion83 could not takeadvantage of the accidental failure of suit statute84 to revivea nonsuit for an inexcusable failure to comply with discov-ery. In Argentinis v. Fortuna,85 the court reversed trebledamages, punitive damages, and other relief imposed on adefaulted defendant for removing the plaintiff’s landscapingwhere such relief was not authorized by law. In LaPlante v.Vasquez,86 offer of compromise interest in a Dram Shop casewas properly calculated on the $250,000 statutory cap, notthe $4.2 million the jury found as damages. In 98 LordsHighway, LLC v. One Hundred Lords Highway, LLC,87 the


81 Mercer v. Champion,139 Conn. App. 216, 55 A.3d 772 (2012).82 133 Conn. App. 420, 35 A.3d 388, cert. granted, 304 Conn. 907, 39 A.3d 1118

(2012).83 135 Conn. App. 506, 43 A.3d 199, cert. denied, 305 Conn. 919, 47 A.3d 389

(2012).84 CONN. GEN. STAT. § 62-592.85 134 Conn. App. 538, 39 A.3d 1207 (2012).86 136 Conn. App. 805, 47 A.3d 897 (2012).87 138 Conn. App. 776, 54 A.3d 232 (2012),

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trial court properly allowed the defendants to amend theiranswer and special defenses to assert a counterclaim toquiet title where the plaintiffs withdrew their complaintseeking to quiet title.

Of course, the court can avoid deciding matters whenthey are subject to arbitration. If there was any doubt as tothe court’s policy favoring arbitration, Hartford v. HartfordMunicpal Employees Association,88 should put it to rest.There, the reinstatement of a supervisor in the tax collec-tion department whose gross negligence resulted in the lossof funds was not a sufficient violation of public policy to jus-tify vacating the arbitration award.

Three administrative appeals caught the authors’ atten-tion in 2012. The Court in Commission on Human Rights &Opportunities v. Hartford89 held that the trial court had theauthority to remand the matter to the commission for a clar-ification of the decision and then to decide the appeal on themerits. The decision in Eureka V LLC v. Planning & ZoningCommission90 demonstrated the statutorily limited defer-ence to zoning commissions when deciding affordable hous-ing matters91 where the court held that the commissioncould reasonably restrict a housing development in a water-shed, but could not entirely ban construction.

Finally, in Citizens Against Overhead Power LineConstruction v. Connecticut Siting Council,92 the majorityheld that an administrative appeal taken after the principaldecision but before a decision on a motion for reconsidera-tion filed by another was premature. The majority notedthat General Statutes Section 4-183(c) lists various trigger-ing events for an appeal and requires filing the appeal with-in forty-five days of “whichever is applicable and is later.”Judge Bishop dissented, concluding that the decision the


88 134 Conn. App. 559, 39 A.3d 1146, cert. denied, 305 Conn. 904, 44 A.3d 180(2012).


90 139 Conn. App. 256, 57 A.3d 372 (2012).91 See CONN. GEN. STAT. § 8-30.92 139 Conn. App. 565, 57 A.3d 765 (2012), cert. granted, 308 Conn. 906, 61

A.3d 1098 (2013).

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plaintiff wished to appeal was the triggering event.93 Whilehis analogy to Practice Book Section 63-1, which allows anappeal during the original appeal period even if a motion toargue is pending, makes sense, he did not address the“whichever is applicable and is later” language that appliesto Section 4-183(c) and seems to compel the result themajority reached.

Two cases concerning appellate procedure warrant atten-tion. In Peterson v. Robles,94 an election case challengingirregularities in the nominating process was moot and didnot fall into the exception for cases capable of repetition yetevading review because courts move quickly on electionscases and the plaintiff waited until the last minute to file thechallenge. The court dismissed In re: Claims of RacialDisparity95 for lack of a final judgment where the petitioners,death-row inmates challenging the death penalty as raciallydiscriminatory, were denied a stay to develop their cases.The petitioners had been added to an existing case, and thetrial court allowed the petitioners to proceed separately,which meant that further proceedings would affect them.

Turning to substantive law and starting with torts, twocases involving animals caught our attention. The first,Vendrella v. Astriab Family Limited. Partnership,96 reversedsummary judgment for the defendant whose horse bit theplaintiffs’ child, holding that whether horses generally had apropensity to bite (as well as the horse in question specifical-ly) was a question of fact. The court followed the Restatement(Second) of Torts Section 518, which requires notice of a par-ticular animal’s propensity to bite if the species is normallydocile, such as cats, unless the species normally has thecapacity to be dangerous, like dogs.97 On the other hand,because the dog-bite statute imposes liability for a dog’s affir-


93 Id. at 577 (Bishop, J., dissenting).94 134 Conn. App. 316, 39 A.3d 763 (2012).95 135 Conn. App. 756, 42 A.3d 401, cert. denied, 305 Conn. 917, 46 A.3d 170

(2012).96 133 Conn. App. 630, 36 A.3d 707, cert. granted, 304 Conn. 919, 41 A.3d 306

(2012).97 The authors are not choosing sides in the cat-dog debate. Mr. Bartschi has

both.

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mative acts, that dogs were exposed to a rabid raccoon wasnot affirmative conduct for the plaintiff who was exposed tothe dogs in Atkinson v. Santore.98

Summary judgments in tort cases do not always fare wellon appeal. For example, in Ruiz v. Victory Properties,LLC,99 the trial court improperly granted summary judg-ment for a landlord who failed to clean up cinder blocks in acommon area used by children because it was foreseeablethat someone would get hurt. Judge Alvord dissented, hold-ing that it was not foreseeable that a ten-year-old childwould carry an eighteen pound cinder block up two storiesand drop it on the plaintiff’s head.100

On the other hand, the trial court in Iacurci v. Sax101

properly granted summary judgment in a professional mal-practice action on statute of limitations grounds against anaccountant because, even though the plaintiff alleged fraud-ulent concealment (which would toll the statute of limita-tions), the majority concluded that an accountant was not afiduciary, a factual predicate necessary for fraudulent con-cealment. Judge Lavine dissented, noting that the trialcourt found a fiduciary relationship and should have shiftedthe burden to the defendant to show the absence of fraud.102

Surmounting governmental or sovereign immunity isalways a challenge for plaintiffs. In Wisniewski v.Darien,103 the plaintiff successfully overcame governmentalimmunity by showing negligence in the performance of aministerial act where the tree warden testified that he hada non-discretionary duty to inspect a tree upon receiving acomplaint about it. On the other hand, in J.P. Alexandre,LLC v. Egbuna,104 a taxpayer who successfully challenged


98 135 Conn. App. 76, 41 A.3d 1095, cert. denied, 305 Conn. 909, 44 A.3d 184 (2012).99 135 Conn. App. 119, 43 A.3d 186, cert. granted, 305 Conn. 922, 47 A.3d 882

(2012).100 Id. at 133 (Alvord, J., dissenting).101 139 Conn. App. 386, 57 A.3d 736 (2012).102 Id. at 411 (Lavine, J., dissenting). Judge Lavine also complained that the

parties had not raised the question of a fiduciary relationship on appeal and criti-cized the majority for seeking supplemental briefs on the subject. Id. at 420.

103 135 Conn. App. 364, 42 A.3d 436 (2012).104 137 Conn. App. 340, 49 A.3d 222, cert. denied, 307 Conn. 913, 53 A.3d 1000

(2012).

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an audit did not have a cause of action under 42 U.S.C.Section 1983 or the Connecticut Taxpayer Bill of Rightsbecause of sovereign immunity.105

Finally, in Rathbun v. Health Net of the Northeast,Inc.,106 the court held that the defendant, a Medicaid con-tractor, could recover for payments made on behalf ofMedicaid recipients directly from the recipients when theyreceived payments from a tortfeasor. The court rejected theclaim that the defendants could only seek reimbursementfrom third parties.

Three workers compensation cases are worth noting.The plaintiff in Baron v. Genlyte Thomas Group, LLC107

failed to establish a relationship to Connecticut for purpos-es of obtaining workers’ compensation benefits where herdecedent worked for a New Jersey company as a travelingsalesman in New York and only maintained a home office inhis basement in Connecticut. In Yeager v. Alvarez,108 thecourt held that “reasonable and necessary expenditures,”which are deducted prior to paying a workers’ compensationlien are broader and different from taxable costs. The two-year statute of limitations for filing a workers’ compensa-tion claim applied in Wikander v. Asbury AutomotiveGroup/David McDavid Acura109 where the plaintiff’s dece-dent died on the date of injury. The court sensibly rejectedthe claim that the first day of the period did not count, andtherefore the decedent had died outside the filing period.

Turning to employment law, the court in Cruz v. VisualPerceptions, LLC110 held that because a three-year employ-ment contract was a contract for a term, the employer need-ed cause to fire the employee, even though the contract didnot discuss termination. Judge Lavine dissented, conclud-


105 CONN. GEN. STAT. § 12-39n.106 133 Conn. App. 202, 35 A.3d 320, cert. granted, 304 Conn. 905, 38 A.3d 1201

(2012).107 132 Conn. App. 794, 34 A.3d 423, cert. denied, 303 Conn. 939, 37 A.3d 155 (2012).108 134 Conn. App. 112, 38 A.3d 1224 (2012). The authors’ firm represented the

plaintiff.109 137 Conn. App. 665, 50 A.3d 901 (2012).110 136 Conn. App. 330, 46 A.3d 209, cert. granted, 306 Conn. 903, 52 A.3d 730

(2012).

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ing the contract was ambiguous and did not evince an intentto waive the at-will rule, but instead merely provided forcompensation during the period of employment. In Eagen v.Commission on Human Rights & Opportunities,111 the bur-den-shifting scheme established by McDonnell DouglasCorp. v. Green112 applies to claims for whistle-blower retali-ation, where the refusal to return the employee’s personalbelongings constituted the retaliation. And in Desrosiers v.Diageo North America, Inc.,113 the court held that theConnecticut Fair Employment Act114 did not provide a causeof action for a perceived physical disability, noting that thedefinitional section includes “regarded as” disabled for men-tal disabilities but does not include that language whendefining physical disabilities.

Four cases touching on property law caught our atten-tion. Vidiaki, LLC v. Just Breakfast & Things!!! LLC115

held that General Statutes Section 47a-11, which governsthe duties of tenants under leases for dwelling units, doesnot apply to commercial leases. Hannaford v. Mann116

invalidated a deed (and also a power of attorney) where thegrantee was a witness. In a foreclosure action,117 the courtreversed the foreclosure judgment and remanded for a find-ing of priorities because the parties failed to provide thedeeds to determine whether a claimed priority ran with theland or was a personal covenant. Judge Espinosa dissentedbecause the trial court did not rely on the deeds to make itsfinding and criticized the majority for raising an issue thedefendant did not assert on appeal.118 Finally, in Hartfordv. McKeever,119 the majority held that the plaintiff, as


111 135 Conn. App. 563, 42 A.3d 478 (2012).112 411 U.S. 792 (1973).113 137 Conn. App. 446, 49 A.3d 233, cert. granted, 307 Conn. 916, 54 A.3d 180

(2012).114 CONN. GEN. STAT. § 46a-60.115 133 Conn. App. 1, 33 A.3d 848 (2012).116 134 Conn. App. 265, 38 A.3d 1239, cert. denied, 304 Conn. 929, 42 A.3d 390

(2012).117 Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC, 136 Conn. App. 511,

48 A.3d 101 (2012).118 Id. at 517, 48 A.3d at 104 (Espinosa, J., dissenting).119 139 Conn. App. 277, 55 A.3d 787 (2012), cert. granted, 307 Conn. 956, 59

A.3d 1191 (2013).

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assignee on a mortgage, was not liable for overpayments toassignors where it had not expressly taken on the assignors’liabilities. Judge Gruendel dissented and would holdassignees liable where equitable grounds exist, as in thiscase where the plaintiff was involved with the loan transac-tion from the beginning.120

Several cases filled in some of the contours of family lawin 2012. Jungnelius v. Jungnelius121 held that the date thedissolution action is filed, not the date it is restored to thedocket, is the operative date for determining the twelve-month residency requirement necessary for jurisdiction. InParlato v. Parlato,122 the defendant’s refusal to return themarital estate he removed shortly before the plaintiff servedthe dissolution papers violated the automatic orders.123

Myles v. Myles124 held that General Statutes Section 46b-11,which authorizes the court to close the proceedings and sealthe file, applies to the parties as well as the court. Theplaintiff therefore could not share the transcript of the hear-ing. Judge Mihalakos dissented, concluding that the specif-ic order at issue was not that broad.125 In Peterson v. Sykes-Peterson,126 the court upheld a sunset provision in a prenup-tial agreement that rendered the agreement void after theparties’ seventh anniversary. In O’Brien v. O’Brien,127 themajority held that the child support guidelines apply tounallocated alimony and support orders. Judge Lavine dis-sented because, in his view, the guidelines apply to childsupport awards, not unallocated awards.128

The previous family cases concerned litigating the initialdissolution actions. Post-judgment motion practice also gota workout in 2012. In Olson v. Mohammadu,129 the defen-


120 Id. at 288 (Gruendel, J., dissenting).121 133 Conn. App. 250, 35 A.3d 359 (2012).122 134 Conn. App. 848, 41 A.3d 327 (2012).123 Practice Book § 25-5.124 136 Conn. App. 483, 46 A.3d 301 (2012). Mr. Bartschi represented the plaintiff.125 Id. at 306 (Mihalakos, J., dissenting).126 133 Conn. App. 660, 37 A.3d 173, cert. denied, 304 Conn. 928, 42 A.3d 390 (2012).127 138 Conn. App. 544, 53 A.3d 1039 (2012).128 Id. at 557 (Lavine, J., dissenting).129 134 Conn. App. 252, 39 A.3d 744, cert. granted, 304 Conn. 930, 42 A.3d 390

(2012).

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dant failed to establish a substantial change in circum-stances justifying a lower support obligation where he vol-untarily moved to Connecticut and took a lower paying jobto do so. In Jansen v. Jansen,130 the trial court properlydeclined to modify alimony where the defendant co-mingledassets with his new wife and gave money to family mem-bers. In Light v. Grimes,131 the trial court properly deter-mined that the original date of dissolution was the valua-tion date for the parties’ assets, not the date of the ruling ona motion for reconsideration. Finally, the trial court inStancuna v. Stancuna132 properly ordered prospectivelythat if the defendant wanted unsupervised visitation, heneeded to allow the guardian at litem and the plaintiff tohave access to his psychiatric records.

Three child protection cases merit discussion. The courtheld in In re Iliana M.133 that the Uniform Child CustodyJurisdiction and Enforcement Act134 provided jurisdiction toadjudicate a neglect petition for a child born inMassachusetts to Connecticut parents once the Departmentof Children and Families (“DCF”) brought the child into thestate. Because the trial court doubted that the parentsintended to live in Massachusetts, the parents lacked cleanhands to complain about DCF’s actions in bringing the childto Connecticut. In re Brian T.135 held that the failure to reha-bilitate pursuant to the probate statutes136 is analyzed underthe same standard as the DCF provisions.137 And in Frank v.Department of Children & Families,138 the court held that astatute requiring the plaintiff, a sixth grade teacher, to regis-ter as a child abuser was unconstitutionally vague as applied




132 135 Conn. App. 349, 41 A.3d 1156 (2012).133 134 Conn. App. 382, 38 A.3d 130 (2012).134 CONN. GEN. STAT. §§ 46b-115 through 46b-115jj.135 134 Conn. App. 1, 38 A.3d 114 (2012). The authors’ firm represented the

petitioner.136 CONN. GEN. STAT. § 45a-717(g)(2)(D).137 CONN. GEN. STAT. § 17a-112(j)(3)(B).138 134 Conn. App. 288, 37 A.3d 834, cert. granted, 305 Conn. 909, 45 A.3d 97

(2012).

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to him where the purported abuse consisted of giving his stu-dents nicknames and occasionally pinching their cheeks,which upset a particularly sensitive student.

We turn next to criminal law and to a judge who did notthink much of the prosecutor’s decision to pursue a trial onan infraction. The trial court in State v. Jimenez-Jaramill139 violated the separation of powers by overridingthe prosecutor’s decision to try an infraction by dismissingthe matter in the middle of cross examination of the defen-dant on the grounds that the $75 fine was not worth thestate’s time. Speaking of cross examination, the trial courtin State v. Benedict140 improperly limited the defendant’scross examination of the complainant on her pending felonycharges and whether she needed to give testimony favorableto the state in the defendant’s case.141

The majority in State v. Artis142 held that harmless erroranalysis was not available for an unduly suggestive out-of-court identification in light of State v. Gordon.143 JudgeLavine dissented, concluding that Gordon had been implic-itly overruled and was factually distinguishable in anyevent.144 In granting certification, the Supreme Court cer-tified the question whether it should explicitly overruleGordon.145

Applying the Kitchens doctrine a little too enthusiasti-cally in the authors’ view, the court in State v. Johnson146

refused to review a claim of instructional error even thoughthe defendant filed a request to charge on the subjectbecause she did not object to the court’s instructions and



140 136 Conn. App. 36, 43 A.3d 772, cert. granted, 307 Conn. 911, 53 A.3d 998 (2012).141 The court also held that the defendant’s MySpace login name—

“smoothcriminal 77”—(referring to a Michael Jackson song) was general characterevidence that was not admissible.

142 136 Conn. App. 568, 47 A.3d 419, cert. granted, 307 Conn. 909, 53 A.3d 999(2012).

143 185 Conn. 402, 441 A.2d 119 (1981).144 136 Conn. App. at 617, 47 A.3d at 450 (Lavine, J., concurring and dissenting).145 307 Conn. 909, 53 A.3d 999 (2012).146 137 Conn. App. 733, 49 A.3d 1046, cert. granted, 307 Conn. 927, 55 A.3d 568

(2012).

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had the opportunity to review the charge before it wasgiven. The Supreme Court granted certification and will,we hope, rein in the Appellate Court since normally the wayto preserve an issue of instructional error is either to file arequest to charge or to object to the erroneous instruction.

A case in which the court did reverse for instructionalerror was State v. Pond.147 There, a new trial on a charge ofconspiracy to commit robbery was necessary because thecourt did not charge that the defendant specifically intend-ed that his co-conspirator display what was represented tobe a deadly weapon. Judge Borden concurred, noting ananomaly in the Penal Code in that specific intent to displayis not necessary to prove the underlying crime or accessoryliability but is necessary to prove the inchoate crime of con-spiracy.148

Finally, in State v. Brown,149 the majority held that thetrial court illegally sentenced the defendant to sixteen yearsof special parole following an eleven-year prison term onmultiple charges in a plea deal because the plain languageof General Statutes Section 54-125e limits special parole toa maximum of ten years including for aggregate, consecu-tive sentences. Judge Bear dissented, concluding thatSection 54-125e was ambiguous and that the legislative his-tory did not support the majority’s construction.150

Two cases involving attorneys warrant attention. A frac-tured court in Meyers v. Livingston, Adler, Pulda,Meiklejohn & Kelly, P.C.151 held that the trial court proper-ly granted summary judgment on statute of limitationsgrounds in a legal malpractice action because the complaintsounded in tort not contract. Judge Lavine concurred, butsaid that whether the complaint sounded in tort or contractdid not matter as the plaintiff was aware of the purported



148 Id. at 239 (Borden, J., concurring).149 133 Conn. App. 140, 34 A.3d 1007, cert. granted, 304 Conn. 901, 37 A.3d 745

(2012).150 Id. at 160 (Bear, J., dissenting).151 134 Conn. App. 785, 41 A.3d 674, cert. granted, 305 Conn. 920, 47 A.3d 881

(2012).

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harm for more than six years before she filed.152 JudgeBishop dissented because the plaintiff’s claim that thedefendant failed to follow instructions regarding a settle-ment was a contract claim and the accrual of the action wasa question of fact.153

Lawyers like to get paid, but what constitutes a reason-able fee is occasionally a problem. In Parnoff v. Yuille,154

the court held that the fee-cap statute155 does not violate thefederal constitution’s impairment of contracts, but conclud-ed that the lawyer’s 40% contingency fee violated public pol-icy and he could not therefore collect any fee.156

We end the substantive discussion with a claim of judi-cial bias. In re Messiah S.157 held that the respondent pre-served a claim of judicial bias that arose during the trial byorally moving for recusal. On the merits, however, thecourt’s expression of exasperation with the respondent’scounsel was not evidence of bias. Judge Peters concurred,concluding that the judge’s comments did call into questionhis neutrality but that the error was harmless in light of thesound basis for the court’s decision.158

There were no personnel changes in the Court in 2012.Judge Espinosa was nominated to the Supreme Court inJanuary 2013 and confirmed in March 2013. JudgeChristine Keller was nominated and confirmed to takeJustice Espinosa’s place on the Appellate Court. Severaljudge trial referees continued to sit on panels, helping keepthe Court up to date with its docket. Those who sat mostfrequently in 2012 included Judges Bishop, Pellegrino,West, Schaller, Peters, Flynn, Borden, Dupont, andMihalakos.


152 Id. at 793 (Lavine, J., concurring).153 Id. at 794 (Bishop, J., dissenting).154 139 Conn. App. 147, 57 A.3d 349 (2012), cert. denied, 307 Conn. 956, 59 A.3d

1192 (2013).155 CONN. GEN. STAT. § 52-251c.156 The agreement was signed prior to the 2005 revision permitting waiver of

the statute.157 138 Conn. App. 606, 53 A.3d 224, cert. denied, 307 Conn. 935, 56 A.3d 712

(2012). The authors’ firm represented the respondent.158 Id. at 636 (Peters, J., concurring).

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TORT DEVELOPMENTS IN 2012

BY JAMES E. WILDES*

The Connecticut Supreme Court and Appellate Courtrendered numerous decisions in 2012. This article will con-centrate on substantive and procedural developments thatdirectly or indirectly relate to tort law. Professional liabili-ty, governmental immunity, negligence, product liability,statute of limitations and trial practice are significant areasof discussion.

I. AGENCY

In L and V Contractors, LLC v. Heritage WarrantyInsurance Risk Retention Group, Inc.,1 the defendantAAMCO Transmissions, Inc. (AAMCO) appealed from thejudgment of the trial court finding it vicariously liable to theplaintiff for the actions of Drive Train Unlimited, LLC(Drive Train). After the plaintiff’s vehicle had been sold byDrive Train, the plaintiff sued the named defendant, DriveTrain and AAMCO for statutory theft under GeneralStatutes Section 52-564, conversion, violation of theConnecticut Unfair Trade Practices Act, intentional misrep-resentation and negligent misrepresentation.2 The claimsagainst AAMCO asserted that Drive Train was the agent ofAAMCO.3 The Appellate Court began by stating that anagency relationship requires (1) a manifestation by the prin-cipal that the agent will act for him, (2) acceptance by theagent of the undertaking, and (3) an understanding betweenthe parties that the principal will be in control of the under-taking.4 The Court stated that the plaintiff failed to intro-duce evidence that AAMCO controlled any part of the busi-ness of Drive Train.5 The Court found that evidence thatDrive Train in exchange for the use of AAMCO’s name


* Of New Haven Bar.1 136 Conn. App. 662, 663, 47 A.3d 887 (2012).2 Id. at 665.3 Id.4 Id. at 667.5 Id. at 667-68.

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would pay a percentage of its sales to AAMCO was not evi-dence that AAMCO exercised any control of Drive Train.6The Court also disagreed with the plaintiff’s argument thatAAMCO failed to produce a representative to testify aboutany franchise relationship with Drive Train or to producethe franchise agreement, noting that the plaintiff had theburden of proof to prove the existence of an agency relation-ship.7 The Court next addressed the trial court’s findingthat Drive Train had apparent authority to act as AAMCO’sagent. The Court stated that apparent authority is derivednot from the acts of the agent but from the deliberate orinadvertent acts of the principal.8 The Court continued instating that there are two elements of apparent authority:(1) it must appear from the acts of the principal that theprincipal held the agent out as possessing sufficient author-ity to embrace the act in question, or knowingly permittedhim to act as having such authority and (2) the party seek-ing to bind the principal must have acted in good faithreliance on that appearance of authority.9 The Court furtherstated that Connecticut had not applied the doctrine ofapparent authority to allow a principal to be held liable to athird person who was harmed by the tortious conduct of aperson held out as the principal’s agent.10 Inasmuch as theplaintiff’s theories against AAMCO sounded in tort andwere predicated on the tortious conduct of Drive Train, theCourt held that the trial court erred in finding that DriveTrain had apparent authority to bind AAMCO.11

II. ANIMAL LIABILITY

Giacalone v. Housing Authority of the Town ofWallingford12 answered whether a landlord may be heldliable, under a common-law theory of premises liability, for

2013] TORT DEVELOPMENTS IN 2012 29

6 Id. at 668.7 Id. 8 Id. at 669.9 Id. 10 Id.11 Id. at 670.12 306 Conn. 399, 401, 51 A.3d 352 (2012).

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injuries sustained by a tenant after being bitten by a dogowned by a fellow tenant and kept on premises owned by thelandlord, when the landlord knew of the dog’s dangerouspropensities, but did not have direct care of, or control over,the dog. The Supreme Court concluded that a landlord’scommon-law duty to alleviate known dangers includes dan-gers posed by vicious dogs.13 The Court rejected the defen-dant’s argument that only the owner or keeper of a dog maybe held liable for injuries caused by a dog.14

In Atkinson v. Santore,15 the plaintiff brought the actionunder General Statutes Section 22-357,16 commonlyreferred to as the dog bite statute, claiming she was poten-tially exposed to the rabies virus due to her contact with thedefendant homeowner’s dogs after she found them in thevicinity of a rabid raccoon in the defendant’s yard. The trialcourt granted the defendant’s motion for summary judg-ment because the only conduct by which the dogs might beclaimed to have exposed the plaintiff to the rabies virus wasentirely passive.17 The Appellate Court affirmed, explainingthat strict liability under the dog bite statute is imposed ondog owners and keepers due to volitional and vicious or mis-chievous conduct and not where the damage is caused by adog’s merely passive or innocent or involuntary behavior.18

The Court emphasized that this limitation was rooted in thepurpose of the statute, which was to assign responsibility


13 Id. 14 Id. at 403.15 135 Conn. App. 76, 77-78, 41 A.3d 1095, cert. denied, 305 Conn. 909, 44

A.3d 184 (2012). The plaintiff claimed the cost of and the pain associated with theresulting administration to her of antirabies injections. Id. at 78.

16 General Statutes § 22-357 provides: “If any dog does any damage to eitherthe body or property of any person, the owner or keeper, or, if the owner or keeperis a minor, the parent or guardian of such minor, shall be liable for such damage,except when such damage has been occasioned to the body or property of a personwho, at the time such damage was sustained, was committing a trespass or othertort, or was teasing, tormenting or abusing such dog. If a minor, on whose behalfan action under this section is brought, was under seven years of age at the timethe damage was done, it shall be presumed that such minor was not committing atrespass or other tort, or teasing, tormenting or abusing such dog, and the burdenof proof thereof shall be upon the defendant in such action.”

17 Atkinson, 135 Conn. App. at 78. 18 Id. at 82-83.

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for the special dangers arising from the natural behavior ofdogs to those who expose others to the special dangers byowning or keeping dogs.19

Vendrella v. Astriab Family Limited Partnership,20 inreversing the trial court’s granting of the defendant’s sum-mary judgment on the basis that there was no genuine issueof material fact that the defendant’s horse had a tendency tobite people or other horses, held that a genuine issue of factexisted as to whether horses as a class possess a naturaltendency to bite, possibly causing injury to a person, even ifa particular horse had not previously displayed that propen-sity. The Appellate Court agreed with the plaintiff’s con-tention that a party may in certain circumstances establishthe requisite notice in a negligence case against the owneror keeper of a domestic animal by proof of the naturalpropensities of that species.21

III. COLLATERAL SOURCES

General Statutes Section 52-225a(b) was amended byP.A. 12-142, Section 2 (Reg. Sess.), effective October 1, 2012,and applicable to all actions pending on or filed on or aftersaid date. The amendment states that for purposes of thissubsection, evidence that a physician or other designatedhealth care provider accepted an amount less than the totalamount of any bill generated by such physician or otherprovider or evidence that an insurer paid less than the totalamount of any bill generated by such physician or providershall be admissible as evidence of the total amount of col-lateral sources which have been paid for the benefit of theclaimant as of the date the court enters judgment.


19 Id. at 81.20 133 Conn. App. 630, 631, 637, 659-60, 36 A.3d 707, cert. granted, 304 Conn.

919, 41 A.3d 306 (2012) (the Supreme Court certified the issue as: “Did theAppellate Court properly conclude that a horse belongs to a species so naturallyinclined to do mischief or be vicious to human beings that the minor plaintiff'sinjuries were reasonably foreseeable, regardless of whether the particular horsehas shown a prior vicious disposition known to the keeper?”). The minor plaintiffwas bitten by a horse while at the defendant’s farm and horse boarding servicebusiness. Id. at 632-33.

21 Id. at 642.

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IV. DAMAGES

A year cannot go by where the adequacy of verdicts doesnot result in an appeal and this past year was no exception.In Johnson v. Pike,22 the defendant argued that a verdictaward of $50,000 in noneconomic damages and $34,222 inlost wages, where the past medical bills were $1,762, wasexcessive as a matter of law. The Appellate Court set forththe standard for the trial court with respect to a motion forremittitur. The evidence is reviewed in the light most favor-able to sustaining the verdict.23 The issue is whether thejury’s award falls somewhere within the necessarily uncer-tain limits of just compensation or whether the size of theverdict so shocks the sense of justice to compel a conclusionthat the jury was influenced by partiality, prejudice, mis-take or corruption.24 Further, the decision whether toreduce the verdict because it is excessive as a matter of lawwithin the meaning of General Statutes Section 52-216a25

rests solely within the discretion of the trial court.26

Additionally, the standard of review of a trial court’s deci-sion to grant or deny a motion to set aside a verdict as exces-sive as a matter of law is that of an abuse of discretion.27

The Court disagreed with the defendant, observing that theaward of $50,000 in noneconomic damages did not shock thesense of justice since the plaintiff had a life expectancy ofeighteen years, he continued to have difficulty with hiswrist, he had trouble sleeping and his ability to engage inrecreational activities had been affected.28

In Hardie v. Mistriel,29 the defendant mistakenlyremoved trees from the plaintiff’s property. The trial courtfound in favor of the plaintiff on a trespass claim and found


22 136 Conn. App. 224, 225-26, 46 A.3d 191 (2012).23 Id. at 227.24 Id. 25 General Statutes § 52-216a provides, in part: “If the court at the conclusion

of the trial concludes that the verdict is excessive as a matter of law, it shall ordera remittitur and, upon failure of the party so ordered to remit the amount orderedby the court, it shall set aside the verdict and order a new trial….”

26 Johnson, 136 Conn. App. at 227.27 Id. at 228.28 Id. at 231-32. 29 133 Conn. App. 572, 574, 36 A.3d 261 (2012).

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that the diminution in value to the plaintiff’s property wasmeasured by the cost of cleanup and the addition of sevennew trees.30 The Appellate Court agreed with the defendantthat the plaintiff introduced evidence only of replacementcost as a measure of damages and such evidence was insuffi-cient to support the damage award.31 The Court summarizedthe law as follows. If the purpose of the action is to recoverthe value of the trees as chattels, the measure of damages isthe market value of the trees for timber or fuel.32 If theinjury is to the land from the destruction of the trees, themeasure of damages is the diminution in the market value ofthe land.33 The Court also noted that General StatutesSection 52-56034 allows the court to award the reasonablevalue of the trees if the defendant mistakenly believed thatthe trees were on his land.35 The Court reversed the judg-ment only as to the award of damages and remanded withdirection to render judgment awarding nominal damages.36

V. DEFECTIVE HIGHWAY

Himmelstein v. Town of Windsor37 considered whetherthe Appellate Court properly affirmed the trial court’s strik-ing the nuisance claim against the defendant town becauseGeneral Statutes Section 13a-14938 was the plaintiff’s exclu-


30 Id. 31 Id. at 574-75.32 Id. at 575.33 Id. at 575-76.34 General Statutes § 52-560 provides: “Any person who cuts, destroys or car-

ries away any trees, timber or shrubbery, standing or lying on the land of anotheror on public land, except on land subject to the provisions of section 52-560a, with-out license of the owner, and any person who aids therein, shall pay to the partyinjured five times the reasonable value of any tree intended for sale or use as aChristmas tree and three times the reasonable value of any other tree, timber orshrubbery; but, when the court is satisfied that the defendant was guilty throughmistake and believed that the tree, timber or shrubbery was growing on his land,or on the land of the person for whom he cut the tree, timber or shrubbery, it shallrender judgment for no more than its reasonable value.”

35 Hardie, 133 Conn. App. at 575.36 Id. at 577.37 304 Conn. 298, 305, 39 A.3d 1065 (2012).38 General Statutes § 13a-149 provides: “Any person injured in person or

property by means of a defective road or bridge may recover damages from theparty bound to keep it in repair. No action for any such injury sustained on or afterOctober 1, 1982, shall be brought except within two years from the date of such

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sive remedy against the town, when it also affirmed thesummary judgment entered for the town because the plain-tiff had failed to establish an essential element of a highwaydefect claim under Section 13a-149. The plaintiff allegedthat while he was riding a bicycle in the town of Windsor hestruck a Windsor police department radar trailer that hadbeen placed in the travel portion of the road.39 The SupremeCourt held that the trial court properly found that the plain-tiff’s count sounding in nuisance was precluded by theexclusivity provision of General Statutes Section 52-557n(a)(1)(C).40 The Court also found that the plaintiff’s inabili-ty to establish that the town was the party bound to keepthe road in repair, which resulted in the entry of summaryjudgment for the town and prevented the plaintiff fromrecovering under Section 13a-149, did not affect the propri-ety of the trial court’s determination that he could not goforward with his nuisance claim in the alternative.41

VI. DRAM SHOP

The principal issue in O’Dell v. Kozee42 was whetherConnecticut’s Dram Shop Act (act), General StatutesSection 30–102,43 requires a plaintiff to prove that a patronwas visibly or otherwise perceivably intoxicated when sold


injury. No action for any such injury shall be maintained against any town, city,corporation or borough, unless written notice of such injury and a general descrip-tion of the same, and of the cause thereof and of the time and place of its occur-rence, shall, within ninety days thereafter be given to a selectman or the clerk ofsuch town, or to the clerk of such city or borough, or to the secretary or treasurerof such corporation. If the injury has been caused by a structure legally placed onsuch road by a railroad company, it, and not the party bound to keep the road inrepair, shall be liable therefor. No notice given under the provisions of this sectionshall be held invalid or insufficient by reason of an inaccuracy in describing theinjury or in stating the time, place or cause of its occurrence, if it appears thatthere was no intention to mislead or that such town, city, corporation or boroughwas not in fact misled thereby.”

39 Himmelstein, 304 Conn. at 301-02.40 General Statutes § 52-557n (a)(1)(C) provides, in part: “No cause of action

shall be maintained for damages resulting from injury to any person or propertyby means of a defective road or bridge except pursuant to section 13a-149.”

41 Himmelstein, 304 Conn. at 312.42 307 Conn. 231, 234-35, 53 A.3d 178 (2012).43 General Statutes § 30-102 provides, in relevant part: “If any person, by

such person or such person's agent, sells any alcoholic liquor to an intoxicated per-son, and such purchaser, in consequence of such intoxication, thereafter injuresthe person or property of another, such seller shall pay just damages to the person

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alcoholic liquor in order to prevail on a claim against thepurveyor of alcoholic liquor for injuries sustained as a resultof the patron’s intoxication. The Supreme Court concludedthat Section 30-102 does require proof of visible or otherwiseperceivable intoxication.44 The plaintiff claimed that he wasentitled to rely on the trial court's ruling that he did nothave to prove visible intoxication and that he should beafforded an opportunity to produce evidence of visible intox-ication if the Supreme Court concluded that this ruling wasimproper.45 The Court agreed and remanded the case for anew trial.46 The Court stated that on remand, the plaintiffneed prove only that signs of the tortfeasor’s intoxicationcould have been observed, not that they would have beenobvious to anyone coming into contact with him.47 TheCourt drew the distinction between perceivable intoxicationand obvious intoxication: “Indeed, to require that the intox-ication be patently obvious would render the standardunder § 30–102 essentially the same as that required to pre-vail in a common-law action for wilful, wanton and recklessservice of alcohol that this court previously recognized andthat still remains viable.”48

VII. EMOTIONAL DISTRESS

Tomick v. United Parcel Service, Inc.49 affirmed, in part,and reversed, in part, a judgment for the plaintiff. The plain-tiff, a driver for the named defendant, brought a claim sound-ing, inter alia, in negligent infliction of emotional distress.50

The jury returned a verdict in favor of the plaintiff and the


injured, up to the amount of two hundred fifty thousand dollars, or to personsinjured in consequence of such intoxication up to an aggregate amount of two hun-dred fifty thousand dollars, to be recovered in an action under this section….”

44 O’Dell, 307 Conn. at 240. Justice Eveleigh, with Chief Justice Rogers, dis-sented, stating that Section 30-102 does not require a plaintiff to present evidenceof visible or otherwise perceivable signs of intoxication. Id. at 273-74.

45 Id. at 268.46 Id. at 273.47 Id. at 272-73.48 Id. at 271.49 135 Conn. App. 589, 594, 43 A.3d 722, cert. denied, 305 Conn. 920, 47 A.3d

389 (2012).50 Id. Negligent infliction of emotional distress in the employment context is

actionable only where it is based upon unreasonable conduct of the defendant in

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trial court awarded attorney’s fees.51 The Appellate Courtagreed with the defendant’s argument that the trial courtimproperly awarded attorney’s fees on the common-law claimof negligent infliction of emotional distress.52 The Court stat-ed that Connecticut follows the American rule where attor-ney’s fees and ordinary expenses of litigation are not recover-able by the successful party absent a contractual or statutoryexception.53 The Court noting that there was no statutoryauthority for an award of attorney’s fees, concluded that thetrial court abused its discretion by awarding attorney’s fees.54

VIII. GOVERNMENTAL IMMUNITY

Wisniewski v. Darien55 concluded that there was evi-dence from which the jury reasonably could have found thatsome of the defendant tree warden’s duties, including a dutyto inspect upon receipt of a complaint concerning a poten-tially hazardous tree, were ministerial. Subsequent to sev-eral complaints to the defendant town about some treeswithin the town’s right-of-way, the plaintiffs were injuredwhen a tree within the town’s right-of-way toppled ontotheir vehicle.56 The defendants argued that all of the treewarden’s duties, including the duty to inspect, were discre-tionary as a matter of law.57 The Appellate Court statedthat whether official acts or omissions are ministerial or dis-cretionary is normally a question of fact for the trier offact.58 The Court noted that the tree warden testified thatupon receipt of a complaint regarding a potentially haz-


the termination process. Id. at 604. The claim requires that the actor’s conduct beunreasonable and create an unreasonable risk of foreseeable emotional harm. Id.Termination of employment, even where it is wrongful, is not, in and of itself, suf-ficient to sustain a claim for negligent infliction of emotional distress as it does nottransgress the bounds of socially tolerable behavior. Id.

51 Id. at 601-02.52 Id. at 621.53 Id. at 623.54 Id. at 626.55 135 Conn. App. 364, 374-75, 42 A.3d 436 (2012). For a more fulsome dis-

cussion of this case, see John Logan, Municipal Tort Liability and Immunity:Revisiting the “Ministerial” Verus “Discretionary” Distinction, 86(4) CONN. B. J. 313(2012).

56 Id. at 366-67.57 Id. at 370-71.58 Id. at 374.

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ardous tree, he had a nondiscretionary duty to perform aninspection.59 The Court stated that in light of the evidence,it was appropriate for the trial court to refuse to direct or setaside the verdicts on the basis that the defendants’ actionsas a whole were discretionary as a matter of law.60

In Silberstein v. 54 Hillcrest Park Associates, LLC,61 theplaintiff homeowners sued the defendants, a private tax dis-trict and tax association, for failing to maintain the roadsand drainage systems in the tax district in which the plain-tiffs’ property was located. The Appellate Court found thatsummary judgment was properly entered for the defendantssince they were immune from liability for their discre-tionary acts.62 The Court stated that the common-law doc-trine of governmental immunity has been largely codified atGeneral Statutes Section 52-557n.63 The Court explainedthat a municipality is generally liable for the ministerialacts of its agents, but it is shielded from liability for dam-ages to persons or property caused by the negligent acts oromissions which require the exercise of judgment or discre-tion.64 The Court disagreed with the plaintiffs that thedefendants’ maintenance of the roads, storm drains andsewers was a ministerial function.65 The Court stated thatthe defendant tax district was a quasi-municipal corpora-tion created pursuant to statute and that although itsbylaws stated a purpose of the defendant was to constructand maintain roads, drains and storm sewers, the bylawsdid not prescribe the manner of the maintenance.66 The


59 Id. at 375.60 Id. 61 135 Conn. App. 262, 264-65, 41 A.3d 1147 (2012).62 Id. at 270. 63 Id. at 267. General Statutes § 52-557n provides, in pertinent part: “(a)(1)

Except as otherwise provided by law, a political subdivision of the state shall beliable for damages to person or property caused by: (A) The negligent acts or omis-sions of such political subdivision or any employee, officer or agent thereof actingwithin the scope of his employment or official duties…(2) Except as otherwise pro-vided by law, a political subdivision of the state shall not be liable for damages toperson or property caused by…(B) negligent acts or omissions which require theexercise of judgment or discretion as an official function of the authority expresslyor impliedly granted by law….”

64 Silberstein, 135 Conn. App. at 267-68.65 Id. at 270. 66 Id. at 273.

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Court found that the defendants’ maintenance duties wereof a discretionary nature.67 The Court also found that theplaintiffs failed to allege sufficient facts to fall within thescope of the identifiable person, imminent harm exception togovernmental immunity for discretionary acts.68 The Courtstated that since the plaintiffs’ claim of flooding was neces-sarily unlimited in duration and was episodic in nature, theharm could occur at any time in the future and, according-ly, the harm could not be deemed imminent.69

Mills v. The Solution, LLC70 upheld the summary judg-ment in favor of the defendant municipality, as well as itsdirector of the city’s department of parks and recreation andthe acting chief of police. The plaintiff’s decedent was fatal-ly wounded while attending an annual carnival at SeasidePark in Bridgeport.71 The gravamen of the complaint wasthat the defendants were negligent in not providing ade-quate security and police protection.72 The Appellate Courtrejected the plaintiff’s contention that General StatutesSection 7-28473 obligated the defendants to provide policeprotection and thus was the source of a ministerial duty.74

The Court stated that municipal acts that would otherwise


67 Id. 68 Id. at 273-74. Where the defendant’s conduct is discretionary the plaintiff

can prevail only if the claim falls within one of the three exceptions to governmen-tal immunity: first, where the circumstances make it apparent to the public officerthat his or her failure to act would be likely to subject an identifiable person toimminent harm; second, where a statute specifically provides for a cause of actionagainst a municipality or a municipal officer for failure to enforce certain laws;and, third, where the alleged acts involve malice, wantonness or intent to injure.Id. at 274.

69 Id. at 274-75.70 138 Conn. App. 40, 41-42, 50 A.3d 381, cert. denied, 307 Conn. 928, 55 A.3d

570 (2012).71 Id. at 42-43.72 Id. at 43.73 General Statutes § 7-284 provides: “When police protection is necessary or

required at any boxing bout or wrestling match, place of public amusement, sportcontest or hockey, baseball or basketball game, or any other exhibition or contest,which is being held or is to be held in any municipality, the amount of such pro-tection necessary shall be determined and shall be furnished by (1) the chief orsuperintendent of the police department in any municipality having an organizedor paid police department or (2) the commanding officer of the state police troophaving jurisdiction over the municipality in any municipality having a residentstate trooper. Any such protection shall be paid for by the person or persons oper-ating, conducting or promoting such game, exhibition or contest.”

74 Mills, 138 Conn. App. at 44-46.

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be deemed discretionary will only be considered ministerialif a policy or rule limiting discretion in the completion ofsuch acts exists.75 The Court additionally stated that withrespect to the case before it there was no policy or rule lim-iting discretion in the completion of the act and the text ofSection 7-284 reserved to the chief of police discretion in thecompletion of the act.76 The Court also held that the actswere not performed for a pecuniary benefit since there wasno evidence that the city billed for police protection underSection 7-284 or that the city derived revenue in excess of itscosts.77

IX. INDEMNIFICATION

Whether one of two unrelated tortfeasors, whose sepa-rate and independent acts of negligence both allegedlycaused the death by electrocution of a motorcyclist by expos-ing him, without warning, to the risk of electrocution aris-ing from a downed electric power line on a public roadway,can seek indemnification from the other under the common-law theory of active-passive negligence was addressed inPellecchia v. Connecticut Light and Power Company.78 Thetrial court struck the third party plaintiff’s claim for indem-nification, finding that the claim was insufficient, as a mat-ter of law, as to the third element of common-law indemni-fication; namely, that the third party defendant power com-pany was in exclusive control of the situation that causedthe death of the decedent.79 The trial court held that the


75 Id. at 52.76 Id. 77 Id. at 47, 55-56. The Appellate Court referred to General Statutes § 52-

557n (a)(1)(B), which holds municipalities liable for damages caused by “negligencein the performance of function from which the political subdivision derives a spe-cial corporate or pecuniary benefit….” Id. at 55.

78 139 Conn. App. 767, 770, 57 A.3d 803 (2012). 79 Id. at 771-72. Common-law indemnity has four elements: (1) the third

party defendant whom the indemnification is sought was negligent; (2) the thirdparty defendant’s active negligence, rather than the third party plaintiff’s passivenegligence, was the direct, immediate cause of the accident and the resultingharm; (3) the third party defendant was in control of the situation to the exclusionof the third party plaintiff; and (4) the third party plaintiff did not know of thethird party defendant’s negligence, had no reason to anticipate it, and reasonablycould rely on the third party defendant not to be negligent. Id. at 771.

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issue of exclusive control had to be resolved by comparingthe allegations against the power company in the thirdparty complaint to those in the underlying complaintagainst the third party plaintiff, an emergency communica-tion service company.80 The Appellate Court, in reversingthe judgment in favor of the third party defendant, statedthat it was possible to have common-law indemnificationbetween unrelated parties whose separate and independentstreams of negligence, one active and the other passive, giverise to a foreseeable risk of harm.81 The Court held that thethird party plaintiff’s allegation that the third party defen-dant power company had control over the downed powerline to the exclusion of the third party plaintiff because onlythe power company was responsible for and capable of deen-ergizing the line sufficiently set forth the third element ofcommon-law indemnification.82 The Court additionally stat-ed that to recover, the third party plaintiff was requiredonly to plead and to prove that the third party defendantpower company was in control of the situation to the exclu-sion of the third party plaintiff, and not to all other conceiv-able tortfeasors.83

X. INSURANCE AGENT LIABILITY

In Byrd v. Ortiz,84 the plaintiff alleged that the defen-dant, an insurance agent, was negligent in failing to advisethe plaintiff properly or to inquire of her appropriateamount of uninsured/underinsured motorist coverage and,as a result of such negligence, she was without sufficientunderinsured motorist coverage to compensate her for herinjuries. The Appellate Court articulated the duty of careowed by an insurance agent to his or her client: An insur-ance agent has the duty to exercise reasonable skill, careand diligence to see that his or her client has proper insur-ance coverage.85 The Court found, as a matter of law, that


80 Id. at 772-73.81 Id. at 777.82 Id. at 776.83 Id. at 809, n. 2.84 136 Conn. App. 246, 248, 44 A.3d 208 (2012).85 Id. at 253.

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the defendant had a duty to explain uninsured/underin-sured motorist coverage to the plaintiff, to explain the con-sequences of not having a sufficient amount of coverage, torecommend the proper amount of coverage based on theplaintiff’s individual circumstances and to attempt to pro-cure that amount of coverage and offer it to the plaintiff.86

The Court concluded that the trial court erred in grantingthe defendant’s motion to strike.87

XI. NEGLIGENCE

The sole issue in Sic v. Nunan88 was whether a motorist,who is lawfully stopped in his own lane of travel whileawaiting an opportunity to make a left turn, owed a legalduty to oncoming traffic to maintain the wheels on his vehi-cle straight to make sure that he would not be pushed intooncoming traffic in the event that he was struck frombehind. The trial court granted the defendant’s motion forsummary judgment, finding that the defendant was underno duty to protect the plaintiff against the possibility thathis vehicle would be struck from the rear by having hiswheels positioned in a certain way.89 The Appellate Courtreversed, holding that it was a question of fact for the jurywhether the defendant breached a duty to use reasonablecare in the operation of his vehicle.90 The Supreme Courtreversed, concluding that the trial court properly renderedsummary judgment in the defendant’s favor and that theAppellate Court improperly reversed that judgment.91 TheCourt noted that the existence of a duty is a question of lawand that the threshold inquiry in this determination iswhether the harm alleged by the plaintiff was foreseeable to


86 Id. at 256.87 Id. at 258.88 307 Conn. 399, 401, 54 A.3d 553 (2012). The defendant appealed from the

judgment of the Appellate Court reversing the summary judgment in favor of thedefendant. Sic v. Nunan, 128 Conn. App. 692, 694, 18 A.3d 667, cert. granted, 301Conn. 936, 23 A.3d 729 (2011).

89 Sic, 307 Conn. at 403-04.90 Id. at 404.91 Id. at 412.

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the defendant.92 The Court began by stating that an opera-tor of a vehicle is entitled to assume that other operatorswill obey the law, including traffic regulations, and observereasonable care, until he knows or should know that theassumption is not warranted.93 Consistent with thisassumption, the Court stated that the defendant was notrequired to anticipate the potential that he would be struckin the rear or to guard against that possibility by position-ing his wheels in a particular direction.94 The Court statedthat even if it found that it was foreseeable that lawfullystopping at an intersection may result in injuries to oncom-ing motorists, that the imposition of a duty under the cir-cumstances would open up innumerable avenues of liabilityfor drivers, notwithstanding that the legislature, which hasthe primary responsibility for formulating public policy, hadnot deemed it necessary to impose this duty.95

Ruiz v. Victory Properties, LLC96 held that the defendantlandlord owed a duty to the minor plaintiff and, therefore,reversed the summary judgment entered in favor of thedefendant. The minor plaintiff was a tenant in the buildingand was struck in the head by a rock from the backyardthrown by a minor tenant from a third floor window.97 Thetrial court, in granting the defendant’s motion for summaryjudgment, found that that the harm to the plaintiff was notforeseeable.98 The Appellate Court stated that in order to


92 Id. at 407. The Supreme Court stated that the test for the existence of aduty involves (1) a determination of whether an ordinary person in the defendant’sposition, knowing what the defendant knew or should have known, would haveanticipated that harm of a general nature of that suffered was likely to result, and(2) a determination, on the basis of a public policy analysis, of whether the defen-dant’s responsibility for its negligent conduct should extend to the particular con-sequences or particular plaintiff in the case. Id. at 407-08.

93 Id. at 408.94 Id. at 408-09.95 Id. at 410-11.96 135 Conn. App. 119, 121, 43 A.3d 186, cert. granted, 305 Conn. 922, 47 A.3d

882 (2012). Judge Alvord dissented, stating that he could not agree with the major-ity that the plaintiff’s injuries were a reasonably foreseeable consequence of thelandlord’s conduct. Id. at 134.

97 Id. at 122-23.98 Id. at 126.

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establish a duty, the focus of the inquiry is not on the spe-cific manner in which the harm occurred, but rather onwhether the general nature of the harm which the plaintiffsuffered was foreseeable.99 The Court found it noteworthythat the defendant permitted the backyard of its apartmentbuilding to be littered with dangerous debris knowing thatthat very area was used as a play area for children whoresided in the building.100

Cannizzaro v. Marinyak101 also addressed whether thedefendant owed a duty to the plaintiff. The facts presentedto the trial court in ruling on the defendant’s motion forsummary judgment were as follows. Marinyak causedinjuries to the plaintiff when the vehicle he was operatingwhile he was under the influence of alcohol collided with theplaintiff.102 Marinyak worked for the defendant as a plas-terer and painter during the renovation of her home.103

Marinyak and other employees of the defendant regularlyconsumed alcohol while working at the defendant’s home forabout one and one-half years prior to the accident and onthe date of the accident Marinyak had consumed alcoholthere before leaving in his car.104 The plaintiff claimed thatthe defendant was negligent in failing to superviseMarinyak’s consumption of alcohol while working at herpremises.105 The Appellate Court concluded that the trialcourt properly found that the defendant did not owe theplaintiff a duty.106 The Court in deciding the appeal lookedto the Restatement (Second) of Torts Section 317, statingthat under this section an employer has no duty to controlthe conduct of an off-duty employee, except when the com-plained-of conduct occurs on the defendant’s premises, uti-lizes a chattel of the employer’s and the employer knows or


99 Id.100 Id. at 128.101 139 Conn. App. 722, 57 A.3d 830 (2012).102 Id. at 725.103 Id.104 Id.105 Id. at 724.106 Id. at 725.

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has reason to know that he can control the employee andrecognizes the necessity of so doing.107 In reaching its deci-sion, the Court noted that the conduct in question did notoccur on the defendant’s premises and that the majority ofother jurisdictions faced with an analogous factual scenariorefused to impose liability.108

In Perez v. Cumba,109 the issue was whether the trialcourt improperly instructed the jury that in order to find lia-bility in favor of the plaintiff it must find that the defendantpossessed notice of the specific condition that caused thedeath of her decedent. As a result of the decedent beingfatally stabbed during a fight that occurred outside of thedefendant’s home, the plaintiff sued the defendant in negli-gence based on social invitee liability arising from the inten-tional acts of a third party.110 The Appellate Court con-cluded that since the complaint did not sound in premisesliability, but rather was grounded on the intentional con-duct of third parties thereon, a jury charge requiring theplaintiff to prove actual or constructive notice that a personon the defendant’s property possessed a knife and was will-ing to use it to inflict injury on the decedent was unwar-ranted.111 The Court stated that in a negligence case basedon the intentional, criminal acts of third parties against asocial invitee on the defendant’s premises, the properinquiry is whether the harm which occurred was of the samegeneral nature as the foreseeable risk created by the defen-dant’s negligence.112 The Court found that since the instruc-tional error was harmful, as it likely affected the verdict, thejudgment was reversed and the case was remanded for anew trial.113


107 Id. at 729. The Appellate Court further remarked that the Restatement(Third) of Torts has not been adopted by the Connecticut Supreme Court. Id. at734.

108 Id. at 730-32.109 138 Conn. App. 351, 352-53, 51 A.3d 1156, cert. denied, 307 Conn. 935, 56

A.3d 712 (2012).110 Id. at 354-55, 369.111 Id. at 365-66.112 Id. at 372.113 Id. at 378-79.

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XII. OFFER OF COMPROMISE

LaPlante v. Vasquez114 rejected the plaintiff’s positionthat the trial court erred in awarding offer of compromiseinterest pursuant to General Statutes Section 52-192a115 onthe $250,000 judgment rendered against the defendants inan action brought under General Statutes Section 30-102,Connecticut’s Dram Shop Act. After a jury verdict for theplaintiff in the amount of $4.2 Million, the trial court award-ed damages in the amount of $250,000, the maximumamount recoverable under the Dram Shop Act, and award-ed offer of compromise interest on $250,000, since the plain-tiff had filed an offer of compromise for $250,000.116 Theplaintiff contended, on appeal, that the interest should havebeen calculated on $4.2 Million, the amount of the ver-dict.117 The Appellate Court, in affirming the judgment,found that the plain language of Section 52-192a(c) indi-cates the intent of the legislature that offer of compromiseinterest is to be awarded only on the amount actually recov-ered by a plaintiff.118


114 136 Conn. App. 805, 807, 810, 47 A.3d 897 (2012).115 General Statutes § 52-192a provides, in part: “(a) Except as provided in

subsection (b) of this section, after commencement of any civil action based uponcontract or seeking the recovery of money damages, whether or not other relief issought, the plaintiff may, not earlier than one hundred eighty days after service ofprocess is made upon the defendant in such action but not later than thirty daysbefore trial, file with the clerk of the court a written offer of compromise signed bythe plaintiff or the plaintiff's attorney, directed to the defendant or the defendant'sattorney, offering to settle the claim underlying the action for a sum certain… (c)After trial the court shall examine the record to determine whether the plaintiffmade an offer of compromise which the defendant failed to accept. If the courtascertains from the record that the plaintiff has recovered an amount equal to orgreater than the sum certain specified in the plaintiff's offer of compromise, thecourt shall add to the amount so recovered eight per cent annual interest on saidamount...The interest shall be computed from the date the complaint in the civilaction…was filed with the court if the offer of compromise was filed not later thaneighteen months from the filing of such complaint or application. If such offer wasfiled later than eighteen months from the date of filing of the complaint or appli-cation, the interest shall be computed from the date the offer of compromise wasfiled.”

116 LaPlante, 136 Conn. App. at 809-10.117 Id. at 811-12.118 Id. at 813.

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XIII. PREMISES LIABILITY

In DiPietro v. Farmington Sports Arena, LLC,119 theSupreme Court agreed with the defendants that the plain-tiff failed to produce evidence demonstrating a genuineissue of material fact as to the essential element of notice ina premises liability case. The plaintiff brought the action onbehalf of her minor daughter, alleging that she sustained anankle injury while playing soccer at the defendants’ indoorsoccer facility because the defendants had installed a play-ing surface inherently dangerous for indoor soccer.120 TheCourt reviewed the principles of premises liability: A busi-ness owner owes its invitees a duty to keep its premises ina reasonably safe condition.121 The plaintiff must allege andprove that the defendant either had actual notice of thepresence of a specific unsafe condition or constructive noticeof it.122 The notice, whether actual or constructive, must beof the very defect which occasioned the injury and not mere-ly of conditions naturally productive of that defect eventhough subsequently in fact producing it.123 The plaintiffdid not contend that the defendants had actual notice,rather, she claimed that there was evidence of constructivenotice because (1) the carpet had been installed for aboutfour months and (2) the plaintiff’s expert opined that thedefendants should have performed testing before installingthe surface.124 The Court stated that business owners arenot insurers of their customers’ safety and that in theabsence of visually discoverable hazards, previous indica-tions of danger, or industry and government standards, thedefendants’ duty did not extend to the type of scientific test-ing required to uncover the carpet’s alleged inherentdefects.125 The Court also rejected the plaintiff’s argumentthat her claim was exempt from the usual notice require-


119 306 Conn. 107, 115, 49 A.3d 951 (2012).120 Id. at 110-11.121 Id. at 116.122 Id. at 116-17.123 Id. at 117.124 Id. The plaintiff did not allege that the carpet was negligently installed or

that it had lumps, tears, holes or cuts or that it lay unevenly when the plaintiff wasinjured. Id. at 118.

125 Id. at 121.

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ments since the defendants affirmatively created the condi-tion by their choice of the playing surface.126 The affirmativeact rule permits the inference of actual notice where thedefendant or its employees created an obviously hazardouscondition, such as: leaving water in an aisle after wateringplants, leaving pricing stickers on a floor or when anemployer allowed the unstable stacking of boxes of alu-minum folding tables.127 The Court explained that the affir-mative act rule, rather than acting as an alternative tonotice, allows an inference of notice when circumstantialevidence shows that the defendant knew or should haveknown of the dangerous condition because it was a foresee-able hazard that the defendant created.128 The Court con-cluded that the summary judgments in favor of the defen-dants were appropriate.129

XIV. PRODUCT LIABILITY

White v. Mazda Motor of America, Inc.130 affirmed thesummary judgment rendered in favor of the defendantsbecause the plaintiff failed to provide the opinion of anexpert that established sufficient prima facie evidence of thecontested issues in the case; namely, that the vehicle was ina defective condition unreasonably dangerous to the con-sumer or user, that the defect or defects caused the injuryfor which compensation was sought, that the defect ordefects existed at the time of the sale and that the vehicleafter its manufacture was expected to and did reach the con-sumer without any substantial change in its condition. Theplaintiff brought the claim in product liability, alleging thathe was injured due to a fire in his Mazda automobile.131 The


126 Id. at 122-23.127 Id. at 123.128 Id. at 124.129 Id. at 125. 130 139 Conn. App. 39, 50-51, 54 A.3d 643, cert. granted, 307 Conn. 949, 60

A.3d 741 (2012). Judge West, in his dissent, opined that the plaintiff had raisedthe “malfunction theory” before the trial court and, therefore, he would reach themerits of the claim. Id. at 51. Under the malfunction theory, a product liability doc-trine that applies where direct evidence of a specific defect is unavailable, a jury ispermitted to infer that the product was defective through circumstantial evidencewith or without expert testimony. Id.

131 Id. at 40.

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trial court, in granting the motion for summary judgment,found that the plaintiff’s expert, a certified fire investigator,offered an opinion on the origin of the fire and how the firemay have started, but did not offer an opinion that the vehi-cle was defectively designed or manufactured.132 TheAppellate Court, in finding no error, stated that although anordinary consumer may, under certain circumstances, beable to form expectations as to the safety of a product, it hasconsistently been held that expert testimony is requiredwhen the question involved goes beyond the field of the ordi-nary knowledge and experience of judges and jurors.133

The plaintiff’s failure to produce an expert opinion inopposition to the defendants’ motion for summary judgmentproved fatal to his success on appeal in Koutsoukos v. ToyotaMotor Sales, U.S.A., Inc.134 The plaintiff’s decedent died ina single car accident while operating a car manufactured bythe named defendant and sold by the codefendant dealer-ship.135 The plaintiff sued the defendants in product liabili-ty, alleging that the defective condition of the vehicle’s dri-ver’s side front airbag contributed to the fatal injuries sus-tained in the accident.136 The Appellate Court stated thatbased on the evidence presented by the defendants’ expertsthat the accident involved high speeds, significant vehiclerotation, multiple impacts and substantial vehicle decelera-tion, whether and when the driver’s side front airbag shouldhave deployed was beyond the ken of the average con-


132 Id. at 49-50. To establish a product liability claim sounding in strict liabil-ity, the plaintiff must prove that: (1) the defendant was engaged in the business ofselling the product; (2) the product was in a defective condition unreasonably dan-gerous to the consumer or user; (3) the defect caused the injury complained of; (4)the defect existed at the time of the sale; and (5) the product was expected to anddid reach the consumer without substantial change in condition. Id. at 49. A prod-uct may be defective due to a flaw in the manufacturing process, a design defect orbecause of inadequate warnings or instructions. Id. at 49-50. In order for a prod-uct to be unreasonably dangerous, it must be dangerous to an extent beyond thatwhich would be contemplated by the ordinary consumer who purchases it, with theordinary knowledge common to the community as to its characteristics. Id.

133 Id. at 49.134 137 Conn. App. 655, 49 A.3d 302, cert. denied, 307 Conn. 933, 56 A.3d 714

(2012).135 Id. at 656-57.136 Id. at 657.

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sumer’s experience.137 The Court found under the circum-stances that the plaintiff was required to present expert tes-timony to defeat the defendants’ motion for summary judg-ment.138

XV. PROFESSIONAL LIABILITY

Downs v. Trias139 involved the defendant’s appeal froma judgment in favor of the plaintiff after a jury trial, withrespect to the allegations that the defendant’s negligenceresulted in the plaintiff developing ovarian cancer. Thedefendant maintained that since the plaintiff’s complaintinvolved the defendant’s failure to advise her that sheshould have her ovaries removed due to a family history ofcancer, the trial court improperly construed the complaintas sounding in medical negligence, rather than a failure toobtain informed consent.140 The defendant further argued


137 Id. at 662-63. The Appellate Court remarked that where complex productsare involved, an ordinary consumer may not be able to form expectations of safetyand where lay witnesses and common experience are insufficient to remove thecase from the realm of speculation, the plaintiff is required to present expert tes-timony to establish a prima facie case. Id. at 659-660.

138 Id. at 662.139 306 Conn. 81, 84-85, 49 A.3d 180 (2012).140 Id. at 85. The Supreme Court summarized the law as follows. In a lack of

informed consent case, the plaintiff must prove that there was a failure to disclosea known material risk of a proposed procedure and that such failure was a proxi-mate cause of the injury. Id. at 88. A claim of lack of informed consent is deter-mined by a lay standard of materiality, rather than an expert medical standard ofcare which guides the trier of fact. Id. Under this standard, material informationthat must be disclosed refers to that information which a reasonable patient wouldhave found material in making a decision whether to embark upon a contemplat-ed course of treatment. Id. This standard is to be contrasted with that in a medicalnegligence claim where the jury must decide that the defendant fell short of theprevailing professional standard of care. Id. Expert testimony establishing the pro-fessional standard of care is generally required in a medical negligence case,whereas such testimony regarding professional standards is not relevant as towhether a physician’s disclosure satisfied the lay “materiality” test. Id. The Courtcontinued in explaining that a physician who fails to inform a patient of certainfacts may, in appropriate circumstances, be liable in medical negligence for notknowing the fact and liable in lack of informed consent for failing to convey the factto the patient for his or her consideration in making medical treatment decisions.Id. at 89. The Court noted that although medical negligence and lack of informedconsent are clearly distinct causes of action with different elements that must beestablished, the same set of facts may give rise to both causes of action. Id. TheCourt further stated that it has held that lack of informed consent provides thesole theory of recovery only in a single circumstance; specifically, where the plain-tiff has failed to allege any deficiency of medical care or skill. Id. at 91.

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that the trial court improperly admitted certain expert tes-timony and improperly instructed the jury.141 The SupremeCourt construed the complaint as not only alleging that thedefendant failed to inform her of her risk of ovarian cancer,but also that he failed to properly treat her and to provideher with proper gynecological care.142 The Court found that,under the circumstances, the trial court properly admittedexpert testimony regarding the professional standard ofcare applicable to the defendant and properly instructed thejury on a theory of medical negligence.143

Jarmie v. Troncale144 held that a physician who fails toadvise an unaware patient of the potential driving risks asso-ciated with her underlying medical condition does not breacha duty to the victim of the patient’s unsafe driving because ofthe failure to advise. The Supreme Court held that insofar asthe complaint sounded in medical malpractice it was legallyinsufficient since it contained no allegation that the plaintiffand the named defendant had a physician-patient relation-ship.145 The Court additionally held that under the common-law physicians owe no duty to unidentifiable members of thepublic and that a duty analysis supports the conclusion thatthe defendant owed no duty to the plaintiff.146

The sufficiency of opinion letters submitted pursuant toGeneral Statutes Section 52-190a(a) once again made itsway to the Connecticut appellate courts. Wilcox v.Schwartz147 held that a written opinion satisfies the“detailed basis” requirement of Section 52-190a(a) if it setsforth the basis of the similar health care provider’s opinionthat there appears to be evidence of medical negligence by


141 Id. at 85.142 Id. at 92. 143 Id. 144 306 Conn. 578, 580, 50 A.3d 802 (2012). Justice Eveleigh, joined by Justice

Harper, dissented, stating that the complaint set forth a cause of action in negli-gence. Id. at 625-26.

145 Id. at 588-89.146 Id. at 589.147 303 Conn. 630, 643, 37 A.3d 133 (2012). Chief Justice Rogers, joined by

Justices Norcott and Zarella, dissented, concluding that “the author should elabo-rate on the particular standard of care involved in the medical treatment at issue,the manner in which he or she believes it likely was breached and the facts thatled to his or her conclusion.” Id. at 656.

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reference to what the defendant did or failed to do to breachthe applicable standard of care. The Supreme Court statedthat it was persuaded that the legislature did not intend tobar a potentially valid claim merely because a similar careprovider, although able to determine that there appears tobe evidence of a breach of the standard of care, is unable toidentify the specific negligent act or omission involved.148

The Court found that the opinion in issue set forth theauthor’s professional medical judgment that the applicablestandard of care required the defendant to protect the bil-iary structures during surgery and the failure to do so con-stituted a breach of the standard of care.149

The Appellate Court in Bell v. Hospital of Saint Raphael150

affirmed the dismissal of the plaintiff’s complaint because theopinion letter did not set forth sufficient information to estab-lish that its author was a similar health care provider quali-fied to render an opinion as to the standard of care owed bythe defendant. The only thing that could be gleaned from theletter was that its author was a registered nurse with a bach-elor of science degree in nursing.151 The letter neither repre-sented that its author had been trained and experienced inany specialty or had been certified by any American board asa specialist nor did it demonstrate that its author waslicensed by the appropriate regulatory agency of the state oranother state requiring the same or greater qualifications,that such provider had training and experience in the samediscipline or school of practice and that such training andexperience was as a result of the active involvement in thepractice or teaching of medicine within the five-year periodbefore the incident giving rise to the claim.152

Wilkins v. Connecticut Childbirth and Women’s Center153

disagreed with the plaintiff’s claims that the trial courtimproperly dismissed her complaint on the ground that she


148 Id. at 645.149 Id.150 133 Conn. App. 548, 560, 36 A.3d 297 (2012).151 Id. 152 Id.153 135 Conn. App. 679, 685-86, 42 A.3d 521, cert. granted, 305 Conn. 921, 47

A.3d 881 (2012).

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did not submit an opinion letter authored by a similarhealth care provider and that the opinion letter that shesubmitted, which was authored by an obstetrician, was suf-ficient to satisfy the requirements of Section 52-190a(a). Theplaintiff sued the defendants, certified midwives and a reg-istered nurse, in medical malpractice for failing to diagnoseand treat the plaintiff during delivery and during postpar-tum checkups.154 The Appellate Court explained that theplaintiff failed to submit an opinion letter authored by asimilar health care provider since the author of the letterwas neither trained and experienced in nurse midwifery ornursing nor certified in nurse midwifery or nursing.155

Guerri v. Fiengo156 held that absent evidence that thedefendant cardiologist had a duty to contact the decedent’streating physician when no critical value was present, thetrial court properly determined that the plaintiff failed toestablish a prima facie case requiring the submission to thejury of the allegation of negligence that an overreading car-diologist has a duty to discuss every electrocardiogram withthe treating physician.

XVI. STATUTES OF LIMITATIONS

The doctrine of nullum tempus occurrit regi (no time runsagainst the king), a common-law rule that exempts the statefrom the operation of statutes of limitations and statutes ofrepose and from the consequences of laches in a mannersimilar to the closely related doctrine of sovereign immuni-ty, was dispositive of the issues raised in State v. LombardoBrothers Mason Contractors, Inc.157 The plaintiff, the state


154 Id. at 683.155 Id. at 687-88.156 137 Conn. App. 437, 444-46, 49 A.3d 243, cert. denied, 307 Conn. 920, 54

A.3d 563 (2012). The Appellate Court stated that the trial court has a duty not tosubmit to the jury any issue upon which the evidence would not reasonably sup-port a finding. Id. at 443.

157 307 Conn. 412, 416-17, 54 A.3d. 1005 (2012). Statutes of limitations bar aright of action unless it is filed within a specified period of time after an injuryoccurs, whereas statutes of repose terminate any right of action after a specific timehas elapsed, regardless of whether there has been an injury yet. Id. at 416, n. 2.There are two elements of laches: first, there must have been an inexcusable delay,and, second, that delay must have prejudiced the defendant. Id. at 417, n. 3. Lachesis an equitable doctrine and is largely governed by the circumstances and does notapply where an action at law has been brought within the statutory period. Id.

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of Connecticut, brought suit against the named defendantand twenty-seven other defendants, to recover damages forthe allegedly defective design and construction of theUniversity of Connecticut School of Law’s library.158 Thedefendants filed motions to strike or motions for summaryjudgment raising the applicable statutes of limitations andrepose, and the trial court granted the motions.159 Onedefendant, Gilbane, Inc. (Gilbane), also argued that therepose provision of its contract with the state barred theclaim.160 The Supreme Court reversed the granting of themotions, holding that the claims were not time barred as therule of nullum tempus occurrit regi has been and continuesto be a part of the common-law of Connecticut.161 The Courtrejected the defendants’ position that the doctrine of nullumtempus occurrit regi should be abolished, stating thatwhether to abrogate the doctrine, as with the decision toabrogate the doctrine of sovereign immunity, is a decisionfor the legislative branch and not for the courts.162 Withrespect to Gilbane’s contention that the repose provision ofthe contract with the state barred the claim, the Courtfound that the commissioner who negotiated the contracthad no authority to waive the state’s immunity from therepose period of a statute.163

Meyers v. Livingston, Adler, Pulda, Meiklejohn and Kelly,P.C.164 parsed the allegations in the plaintiff’s complaintand determined that since the cause of action sounded intort and not breach of contract, the action was barred by thethree year statute of limitations contained in GeneralStatutes Section 52-577.165 The plaintiff brought a one


158 Id. at 417.159 Id. at 417-18.160 Id.161 Id. at 420.162 Id. at 436-38.163 Id. at. 457-66.164 134 Conn. App. 785, 791-93, 41 A.3d 674, cert. granted, 305 Conn. 920, 47

A.3d 881 (2012). Judge Bishop dissented on the basis that in his opinion the com-plaint set forth a contract claim that was governed by the six-year statute of limit -ations contained in General Statutes § 52-576 and because the date in which suchclaim accrued was contested the judgment should have been reversed and the mat-ter remanded for further proceedings. Id. at 794-95.

165 General Statutes § 52-577 provides: “No action founded upon a tort shall bebrought but within three years from the date of the act or omission complained of.”

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count complaint against the defendant, which had previous-ly represented her in a lawsuit.166 The plaintiff claimedthat the defendant breached its contract duties to her bysettling her claim in the prior matter, in furtherance of theinterests of another client of the defendant.167 The trialcourt granted the defendant’s motion for summary judg-ment, finding that the complaint sounded in both legal mal-practice and breach of contract and that the claim wasbarred by both the three year legal malpractice statute oflimitations and six year contract statute of limitations.168

The Appellate Court noted that although an action may bebrought against an attorney sounding in both negligenceand contract, the plaintiff may not convert the theory of lia-bility into one sounding in contract merely by talismanical-ly invoking contract language in the complaint.169 TheCourt stated that in a true contract claim a plaintiff assertsthat a defendant breached an agreement to obtain a specif-ic result, but that the plaintiff in the case before it did notallege that the defendant failed to obtain a specific result orperform a specific task.170 The Court concluded that thegravamen of the complaint was that the defendant breachedits professional duties since it fit squarely into the definitionof a malpractice claim; specifically, the failure to exercisethat degree of skill and learning commonly applied under allof the circumstances.171

Finkle v. Carroll172 assists in explaining the sometimesunclear reach of General Statutes Section 52-593,173

Connecticut’s “Saving” statute. The plaintiff’s original


166 Meyers, 134 Conn. App. at 786-87.167 Id.168 Id. at 788.169 Id. at 790.170 Id. at 791-92.171 Id. at 792-93. The Appellate Court stated that it did not need to address

the accrual date of the cause of action since under either possibility raised by theparties, the action was time barred. Id. at 793.


173 General Statutes § 52-593 provides, in pertinent part: “When a plaintiff inany civil action has failed to obtain judgment by reason of failure to name the rightperson as defendant therein, the plaintiff may bring a new action and the statuteof limitations shall not be a bar thereto if service of process in the new action ismade within one year after the termination of the original action….”

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wrongful death action alleged that the defendants, the townof Watertown and three police officers, were negligent incharging the plaintiff’s decedent’s former boyfriend andreleasing him from custody, resulting in the formerboyfriend murdering the decedent.174 The plaintiff with-drew the suit and filed a new suit against the town and theranking officer at the time of the release of the formerboyfriend.175 The Appellate Court explained that underSection 52-593 the “right person” is one who, as a matter offact, is a proper defendant for the theory alleged; but thatthe plaintiff’s failure to name all the defendants from whomshe could have recovered in her original action does not con-stitute a failure to name the right person.176 The Courtaffirmed the summary judgment in favor of the defendants,finding that since the police officers named in the initialaction were proper defendants for the legal theory alleged,Section 52-593 was inapplicable and could not save theplaintiff’s second action.177

The continuous course of conduct doctrine made its wayto the Appellate Court in Hass v. Haas178 where the Courtsustained the judgment in favor of the plaintiff based on the


174 Finkle, 134 Conn. App. at 280-81. 175 Id. at 281. The parties did not dispute that the action was governed by the

two year statute of limitations contained in General Statutes § 52-555 and that ifthe action was not saved by General Statutes § 52-593, then the action was timebarred. Id. at 280, n. 1.

176 Id. at 284.177 Id. at 287-88. Because the Appellate Court concluded that the original

defendants were the ‘right person” for the purposes of Section 52-593, the Courtdid not reach the effect of a voluntary withdrawal on the applicability of Section52-593. Id. at 285, n. 6.

178 137 Conn. App. 424, 426, 434-36, 48 A.3d 713 (2012). Whether a claim isbarred by the statute of limitations is a question of law subject to plenary review,but whether a party engaged in a continuing course of conduct that tolled the run-ning of the statute of limitations is a mixed question of law and fact and the trialcourt’s findings of fact are deferred to unless they are clearly erroneous. Id. at 432.General Statutes § 52-577 applies to actions sounding in fraud. Id. at 433. This sec-tion is a statute of repose as it sets a fixed limit after which the tortfeasor will notbe held liable and in some cases will bar an action before it accrues; except whenthe wrong sued upon consists of a continuing course of conduct, then the statutedoes not begin to run until that course of conduct is completed. Id. For the contin-uing course of conduct to apply, the defendant must have committed an initialwrong upon the plaintiff and there must be evidence of the breach of a duty thatremained in existence after the commission of the original wrong related thereto.Id. The continuing wrongful conduct may include acts of omission and affirmativeacts of misconduct. Id.

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trial court’s factual findings that the defendant, an account-ant, assumed a fiduciary responsibility to act for the benefitof the plaintiff, his elderly and unsophisticated mother, inmanaging her financial affairs. The plaintiff sued the defen-dant in, inter alia, fraud for failing to file her tax returns,falsely informing her that she was on extension for unfiledreturns, failing to provide an accounting, failing to informher of the seizure of her assets by the Internal RevenueService, and allowing the two year window for contestingthe takings to pass without informing her.179 Based on thedefendant’s failure to inform his mother of his conduct andhis active concealment of his misdeeds, the Court found thatthe case presented precisely the relationship and the mis-conduct contemplated by the policy underlying the continu-ing course of conduct doctrine.180

The continuing course of conduct doctrine was also cen-tral to Mollica v. Toohey;181 however, unlike Haas, theAppellate Court found that the plaintiffs’ action was notsaved by the doctrine. The plaintiffs, who resided at prem-ises owned by the defendant, alleged personal injuries as aresult of being exposed to mold due to negligent mainte-nance.182 The trial court granted the defendant’s motion forsummary judgment since the action was barred by the twoyear statute of limitations contained in General StatutesSection 52-584.183 The Court explained that the continuingcourse of conduct doctrine has no application after the plain-tiff discovers the harm and since the plaintiffs becameaware of their injuries from the mold in 2001 and did notbring the suit until 2005, the action was timed barred.184

The Court additionally explained that the doctrine only


179 Id. at 426-28.180 Id. at 435-36.181 134 Conn. App. 607, 614, 39 A.3d 1202 (2012).182 Id. at 608-09.183 Id. at 610. General Statutes § 52-584 provides, in part: “No action to recov-

er damages for injury to the person, or to real or personal property, caused by neg-ligence or by reckless or wanton misconduct…shall be brought but within twoyears from the date when the injury is first sustained or discovered….”

184 Mollica, 134 Conn. App. at 612-14. Although the plaintiff did not raise thecontinuing course of conduct doctrine by pleading it in avoidance as required, theAppellate Court nonetheless considered the doctrine since the defendant did notraise it to the trial court. Id. at 612, n. 3.

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applies to the repose portion of the statute and not to thediscovery portion so once the plaintiff has discovered theactionable harm the policy behind the doctrine is no longerserved.185

XVII. TRIAL PRACTICE

Discovery matters do not often reach the Supreme Court,but when they do, the case is worth reading. The principalissue in Woodbury Knoll, LLC v. Shipman and Goodwin,LLP186 was whether a nonparty attorney may bring a writof error from a trial court’s order requiring the attorney tocomply with a clear and definite discovery request. Theplaintiffs in the underlying legal malpractice suit claimedthat the defendants were negligent in failing to discover thefraudulent conduct of a party to a real estate transactionsubjecting the plaintiffs to foreclosure actions and legal pro-ceedings.187 The defendants served a notice of depositionand subpoena duces tecum on the plaintiffs’ attorneys’ cus-todian of records directing the custodian to produce any andall documentation relating to the plaintiffs’ attorneys’ rep-resentation of the plaintiffs.188 The trial court overruled theplaintiffs’ attorneys’ objection and denied their motion toquash.189 The Court first decided that the discovery orderconstitutes an appealable final judgment since the order ter-minated a separate and distinct proceeding against a non-party.190 The Court further opined that if the appeal was notallowed, then the only means for a nonparty to seek reviewwould be to disobey the court’s order and be held in con-tempt and violate, or at least disregard, the Rules of


185 Id. at 614.186 305 Conn. 750, 752, 48 A.3d 16 (2012).187 Id. at 752-53.188 Id. 189 Id. at 754.190 Id. at 757. The Supreme Court cited to State v. Curcio, 191 Conn. 27, 31,

463 A.2d 566 (1983) which held that an interlocutory order that is otherwise notappealable can be appealed when the order or action terminates a separate or dis-tinct proceeding or when the order or action so concludes the rights of the partiesthat further proceedings cannot affect them. Justices Eveleigh, Harper andVertefeuille dissented, concluding that the trial court’s discovery ruling was not anappealable judgment. Woodbury Knoll, LLC, 305 Conn. at 786-87.

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Professional Conduct requiring attorneys to prevent the dis-closure of all privileged and confidential materials related tothe representation of their clients.191 The Court nextaddressed the applicable standard of review: The decision ofa trial court in entering a discovery order will be reversedonly if such order constitutes an abuse of that discretion.192

The Court rejected the defendants’ suggestion that theplaintiffs’ attorneys had an affirmative obligation to submita privilege log, setting forth the particular material soughtand the reason why they are privileged, in order to protectthe confidentiality of those materials.193 The Court observedthat no rule of practice or Connecticut appellate decisionrequires a privilege log; however, the Court also noted thatthe customary practice, one that it has implicitly approved,is that the trial court may order the party asserting theprivilege to provide a privilege log, which the opposing partyand the trial court can then review.194 The Court held thatthe plaintiffs did not waive the attorney-client privilege bybringing the legal malpractice action and, accordingly,granted the writ of error and remanded the case with direc-tion to vacate the order compelling production.195

In Lake Road Trust Ltd. v. ABB Powertech (PTY) Ltd.,196

the plaintiffs, the owners and operators of an electricalpower generating plant, brought a product liability actionagainst the defendants, for supplying defective transformeroil which resulted in shut downs of the plant. Two of thedefendants filed motions to dismiss, arguing lack of person-al jurisdiction.197 The trial court granted the motions to dis-


191 Id. at 765-66.192 Id. at 775.193 Id. at 779.194 Id. at 779-80.195 Id. at 780-86.196 136 Conn. App. 671, 672-74, 51 A.3d 1109 (2012).197 Id. at 674. The Appellate Court summarized the standards employed in

ruling on a motion to dismiss. The trial court must undertake a two part inquiryto determine the propriety of exercising jurisdiction when a defendant challengespersonal jurisdiction in a motion to dismiss. Id. at 677, n. 2. The trial court must(1) decide whether the applicable long-arm statute authorizes jurisdiction over thedefendant and (2) if the statutory requirements are met, then it must decidewhether the exercise of jurisdiction over the defendant would violate constitution-al principles of due process. Id. The Appellate Court additionally set forth the stan-

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miss and the plaintiffs appealed, arguing that the trial courterred in not allowing them additional time to conduct juris-dictional discovery.198 The Appellate Court affirmed, hold-ing that, “[w]hen, as in the case before, a plaintiff has had ameaningful opportunity to conduct discovery, but has failedeffectively to take advantage of that opportunity, and therehas been no determination by the court that a factual dis-pute exists, we cannot conclude that, by adjudicating themotions to dismiss on the basis of the record before it, thecourt has abused its considerable discretion over discoverymatters….”199

The distinction between a covenant not to sue and arelease was discussed in Robbins v. Physicians For Women’sHealth, LLC.200 The Appellate Court held that executing acovenant not to sue a predecessor corporation does not pre-vent the imposition of liability upon a successor corporationas a matter of law.201 The Court explained that a covenantnot to sue is not a present abandonment or relinquishmentof a right, but is merely an agreement not to sue on an exist-ing claim or an election not to proceed against a particularparty.202 The Court stated that the covenant not to sue inthe case prevented the plaintiff from seeking further recov-ery from the predecessor corporation in a direct action; how-ever, in contrast to a release, the covenant did not dischargethe predecessor corporation’s liability for the underlying


dard of review for a trial court’s decision on a motion to dismiss. The motion to dis-miss admits all facts which are well pleaded, invokes the existing record and mustbe decided on that alone. Id. at 677. However, when a motion to dismiss raises afactual question which cannot be determined on the face of the record, the burdenof proof is on the plaintiff to present evidence which will establish jurisdiction. Id.at 677-78. A determination whether a defendant has sufficient minimum contactswith Connecticut is a question of fact and due process requires a trial like hearingbe held in which an opportunity is provided to present evidence and to cross-exam-ine adverse witnesses. Id. at 678. Affidavits are insufficient to determine the factsunless they disclose that no genuine issue as to a material fact exists. Id.

198 Id. 199 Id. at 682. 200 133 Conn. App. 577, 38 A.3d 142, cert. granted, 304 Conn. 926, 41 A.3d

1052 (2012).201 Id. at 593-94. Judge Bear opined in his dissent that recovery by the plain-

tiff should have been barred and that to allow the plaintiff to recover from thedefendants was an unjustified windfall. Id. at 596-97.

202 Id. at 589.

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causes of action.203 Based on the above analysis, the Courtfound that the trial court improperly rendered summaryjudgment for the defendants.204

The general verdict rule barred the Appellate Court fromreviewing the plaintiff’s claims of error on appeal in Gregoryv. Gregg.205 The plaintiff’s argument that the trial courtshould not have charged on the doctrine of sudden emer-gency was not reviewed as no interrogatories were submittedto the jury so the Appellate Court could not determine thebasis of the verdict; namely, whether the jury found that thedefendant was not negligent or that the defendant was neg-ligent but the plaintiff’s negligence was greater than his.206

In Gagne v. Vaccaro,207 the Appellate Court agreed withthe defendant that the trial judge improperly refused torecuse himself in violation of General Statutes Section 51-183c208 where the judge had originally rendered judgmenton a motion for appellate attorney’s fees, after the AppellateCourt reversed that judgment and remanded the case. TheCourt noted that a review of whether a court properlydenied a motion for recusal is usually based on an abuse ofdiscretion standard; however, the application of Section 51-183c presented a question of statutory interpretation and,therefore, the scope of review was plenary.209 The Courtstated that a different judge should have presided over thecase when the case was remanded for further proceed-


203 Id. at 595.204 Id.205 135 Conn. App. 463, 41 A.3d 1202 (2012). The general verdict rule is stat-

ed as follows: When a jury returns a general verdict without special interrogato-ries, the appellate court will presume that the jury found every issue in favor of theprevailing party and refuse further review. Id. at 465-66. In a case in which thegeneral verdict rule applies, if any ground for the verdict is proper, the verdictmust stand and only if every ground is improper does the verdict fail. Id. at 466.

206 Id. at 465. 207 133 Conn. App. 431, 436, 35 A.3d 380, cert. granted, 304 Conn. 907, 39 A.3d

1118 (2012).208 General Statutes § 51-183c provides: “No judge of any court who tried a

case without a jury in which a new trial is granted, or in which the judgment isreversed by the Supreme Court, may again try the case. No judge of any court whopresided over any jury trial, either in a civil or criminal case, in which a new trialis granted, may again preside at the trial of the case.”

209 Gagne, 133 Conn. App. at 436.

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ings.210 In Reyes v. City of Bridgeport,211 the trial court wasreversed for failing to grant the plaintiff’s motion for reas-signment after the court did not issue a decision on thedefendants’ motion for summary judgment within 120 daysof the date of oral argument. The Appellate Court foundthat where the party seeking to invoke the provisions ofPractice Book Section 11-19212 files a timely motion for reas-signment, the trial court, absent waiver, is required to grantthe motion.213

D’Ascanio v. Toyota Industries Corporation214 held thatthe trial court in a product liability suit abused its discre-tion by: improperly striking testimony from the plaintiff’sliability expert; improperly precluding the expert from tes-tifying further; and improperly denying the plaintiffs anopportunity to present their claim. The Appellate Courtreversed the directed verdict in the defendants’ favor sinceit was based on the plaintiffs’ failure to present expert tes-timony as to the defective nature of the forklift that wasbeing operated at the time of the accident.215 The Courtstated that the trial court could have stricken the videotapeshown to the jury with a curative instruction and explana-


210 Id. at 439.211 134 Conn. App. 422, 424, 39 A.3d 771 (2012).212 Practice Book § 11-19 provides: “(a) Any judge of the superior court and any

judge trial referee to whom a short calendar matter has been submitted for deci-sion, with or without oral argument, shall issue a decision on such matter not laterthan 120 days from the date of such submission, unless such time limit is waivedby the parties. In the event that the judge or referee conducts a hearing on thematter and/or the parties file briefs concerning it, the date of submission for pur-poses of this section shall be the date the matter is heard or the date the last briefordered by the court is filed, whichever occurs later. If a decision is not renderedwithin this period the matter may be claimed in accordance with subsection (b) forassignment to another judge or referee. (b) A party seeking to invoke the provisionsof this section shall not later than fourteen days after the expiration of the 120 dayperiod file with the clerk a motion for reassignment of the undecided short calen-dar matter which shall set forth the date of submission of the short calendar mat-ter, the name of the judge or referee to whom it was submitted, that a timely deci-sion on the matter has not been rendered, and whether or not oral argument isrequested or testimony is required. The failure of a party to file a timely motion forreassignment shall be deemed a waiver by that party of the 120 day time.”

213 Reyes, 134 Conn. App. at 430-32.214 133 Conn. App. 420, 430, 35 A.3d 388, cert. granted, 304 Conn. 907, 39 A.3d

1118 (2012). The Appellate Court stated that the decision as to whether to imposethe sanction of excluding an expert’s testimony is given great weight and is not tobe disturbed unless the court abused its discretion. Id. at 428.

215 Id. at 430-31.

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tion that the video did not show the same forklift or elec-tronic control display that was in issue in the case.216 TheCourt also stressed that to the extent the defendants doubt-ed the expert’s credibility, a vigorous cross-examinationwould have been in order.217 The Court explained that Statev. Porter218 requires the trial court, as a gatekeeper, to scru-tinize expert testimony of dubious questionable scientificreliability, and it rejected the defendants’ contention thatthe trial court’s function in this regard was extended toquestions involving the expert’s credibility.219

Wood v. Club, LLC220 addressed the test for the admis-sion of expert testimony. The defendant appealed from ajudgment in favor of the plaintiff, arguing that the trialcourt abused its discretion in admitting testimony of theplaintiff’s bar security expert since he lacked the necessaryqualifications.221 The Appellate Court stated that it was notrelevant that the expert had no formal education, certifica-tion or license in the field of bar security.222 According tothe Appellate Court, the trial court properly found that theexpert possessed knowledge of the field of bar security thatwas not common to the average juror and that it was help-ful to the jury in evaluating the security protocol of thedefendant.223 The Court stressed that the expert hadworked in the field of bar security for three and one-half orfour years and he was aware of the standards and expecta-tions of some bars and establishments through his conver-sations with fellow members of the profession.224

In Pin v. Kramer,225 the Supreme Court affirmed theAppellate Court, which had reversed a judgment for the


216 Id. at 429-30.217 Id. at 430-31. 218 241 Conn. 57, 698 A.2d 739 (1997).219 D’Ascanio, 133 Conn. App. at 428, n. 9.220 134 Conn. App. 768, 41 A.3d 684, cert. granted, 305 Conn. 911, 45 A.3d 99

(2012).221 Id. at 772.222 Id. at 775.223 Id. at 774-75.224 Id. at 775.225 304 Conn. 674, 675-76, 41 A.3d 657 (2012). The Appellate Court decision is

found at Pin v. Kramer, 119 Conn. App. 33, 986 A.2d 1101, cert. granted, 295 Conn.911, 989 A.2d 1074 (2010).

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defendants in a medical malpractice action. The defendant’smedical expert testified on direct examination concerningincreased health costs caused by defensive medicine prac-tices and increased malpractice insurance premiums arisingfrom the proliferation of medical malpractice claims.226 TheAppellate Court determined that the trial court erred inrefusing to provide a curative instruction in light of theinflammatory and prejudicial testimony that introduced ahighly controversial and improper issue into the case.227 TheSupreme Court agreed with the Appellate Court that theplaintiffs were deprived of their right to a fair trial due to thelikelihood of prejudice due to the comments of the witnessand the trial court’s refusal to give a curative instruction.228

In Litvack v. Artuso,229 the principal issue was whetherthe trial court properly held that the plaintiff, suing in herindividual capacity, lacked standing to pursue a malpracticeaction against attorneys who had represented her fatherbefore his death. After stating that the identities of the par-ties are determined by their description in the summons,the Appellate Court noted that because the summons iden-tified the plaintiff only as “Rita Litvack” and not as theexecutrix of an estate she lacked standing to sue in a repre-sentative capacity.230 The Court affirmed the dismissal ofthe complaint, noting that the plaintiff cited no authority forher position that since she identified herself in her plead-ings as her father’s daughter and executrix of his estate,that she automatically had asserted her standing as herdeceased father’s legal representative.231 The plaintiff addi-tionally argued that the trial court improperly denied hermotion to amend her complaint made pursuant to General


226 Id. at 676.227 Id. at 678.228 Id. at 678-79.229 137 Conn. App. 397, 399, 49 A.3d 762 (2012). The Appellate Court stated

that standing is the legal right to set judicial machinery in motion and that onecannot rightfully invoke the jurisdiction of the court unless he or she has in anindividual or representative capacity some real interest in the cause of action, or alegal or equitable right, title or interest in the subject of the controversy. Id.

230 Id. at 403.231 Id. at 403-04.

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Statutes Section 52-123.232 The Court explained thatSection 52-123 allows amendments where the misdescrip-tion in the original writ, summons or complaint is merely amisnomer, but does not allow amendments where the mis-description is deemed a substitution or an entire change ofa party.233 The Court, in rejecting the plaintiff’s argument,stated that the cause of action did not fall within thepurview of Section 52-123 as the allegations in the com-plaint conflated the legal capacity of the plaintiff asexecutrix and her individual capacity.234

The plaintiff in Coldwell Banker Manning Realty, Inc. v.Cushman and Wakefield of Connecticut, Inc.235 fared no bet-ter as the Appellate Court upheld the dismissal of its causeof action for lack of standing. The Court agreed with thetrial court that the name “Coldwell Banker Manning Realty,Inc.” was a trade name and that the plaintiff was a fictitiousentity. The Court explained that although a corporation isa legal entity with legal capacity to sue, a fictitious orassumed business name, a trade name, is not a legal enti-ty;236 rather, it is a description of the person or corporationdoing business under that name.237 The Court furtherexplained that inasmuch as a trade name of a legal entitydoes not have a separate legal existence, a plaintiff bringing


232 Id. at 406. General Statutes § 52-123 provides: “No writ, pleading, judg-ment or any kind of proceeding in court or course of justice shall be abated, sus-pended, set aside or reversed for any kind of circumstantial errors, mistakes ordefects, if the person and the cause may be rightly understood and intended by thecourt.”

233 Litvack, 137 Conn. App. at 407.234 Id.235 136 Conn. App. 683, 684, 47 A.3d 394 (2012). The Appellate Court

explained standing at some length. Where a party is found to lack standing, thecourt is without subject matter jurisdiction to hear the case. Id. at 685. A deter-mination concerning subject matter jurisdiction is a question of law. Id. Lack ofsubject matter jurisdiction may be raised at any time and the court may act on itsown motion to address the issue. Id. at 686. Standing is established by showingthat the party claiming it is authorized by statute to bring an action, in otherwords statutorily aggrieved; or classically aggrieved where the party must show aspecific, personal and legal interest in the matter, as opposed to a general interest,and that this specific and personal interest has been specially and injuriouslyaffected by the challenged action. Id. at 686-87.

236 Id. at 690. The actual name of the corporation was “Manning Realty, Inc.”Id. at 688.

237 Id. at 687-88.

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an action solely in a trade name cannot confer jurisdictionon the court.238 The Court additionally concluded that theuse of a trade name was not merely a circumstantial error;rather, it was a substantive one and was not amenable tocure pursuant to General Statutes Section 52-123.239

Giano v. Salvatore240 is a reminder that a mistaken beliefis not a sufficient ground to open a judgment and that thedenial of a motion to open a default judgment should not befound an abuse of discretion where the default was theresult of negligence. The defendant’s counsel admitted onthe witness stand during the hearing on the motion to openthe judgment that he had actual notice that a default forfailing to plead had entered against the defendant, that amotion for judgment had been filed, that the motion wasscheduled to be heard on the short calendar, yet he failed tofile a responsive pleading and allowed judgment to enter.241

The Appellate Court found that the defendant’s mistakenbelief that the plaintiff would be withdrawing the case wasno excuse for her failure to plead after she received actualnotice of the default and of the impending judgment.242 TheCourt remarked that the trial court properly found that thedefendant was not prevented from presenting her defensebased on mistake, accident or other reasonable cause.243

Mott v. Wal-Mart Stores East, LP244 instructs counselthat the failure to file an opposing affidavit or other sup-porting documentation with its opposition to summary judg-ment is not a ground to grant the motion where the movingparty fails to meet its evidentiary burden of removing gen-


238 Id. at 688. 239 Id. at 690-694.240 136 Conn. App. 834, 843-44, 46 A.3d 996, cert. denied, 307 Conn. 926, 55

A.3d 567 (2012).241 Id. at 843-44.242 Id. at 844.243 Id. at 843.244 139 Conn. App. 618, 627, 632, 57 A.3d 391 (2012).245 135 Conn. App. 361, 41 A.3d 1162 (2012). General Statutes § 52-260(f) pro-

vides: “When any practitioner of the healing arts, as defined in section 20-1, den-tist, registered nurse, advanced practice registered nurse or licensed practicalnurse, as defined in section 20-87a, psychologist or real estate appraiser givesexpert testimony in any action or proceeding, including by means of a deposition,the court shall determine a reasonable fee to be paid to such practitioner of the

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uine issues of material fact. Boczer v. Sella245 affirmed ajudgment for the defendant awarding expert witness fees astaxable costs. The trial court held a hearing on the reason-ableness of the expert witness fees, during which the courtadmitted into evidence deposition testimony from threeexpert witnesses.246 The Appellate Court stated that thereasonableness of fees is a question of fact and a determina-tion of the trial court will be upset only where the finding offact is clearly erroneous.247 The Court in determining thatthe trial court finding was not clearly erroneous, noted thateach witness testified as to his expertise, his experience andthe basis on which he computed his fee.248 ArrowoodIndemnity Company v. King249 held that an insurer bearsthe burden of proving, by a preponderance of evidence, thatit has been prejudiced by the insured’s failure to complywith a notice provision and in doing so overruled AetnaCasualty & Surety Co. v. Murphy.250

Several statutory and Practice Book amendments arenoteworthy. General Statutes Section 52-174 was amendedby P.A. 12-142, Section 3 (Reg. Sess.), effective October 1,2012, and applicable to all actions pending on or filed on orafter said date. Section 52-174 allows any party offering inevidence a signed report and bill for treatment of any treat-ing physician or other designated health care provider tohave the report and bill admitted as a business entry.251 Theamendment provides that in any action in which subsection(b) applies, the total amount of any bill generated by anyphysician or designated health care provider shall be admis-sible in evidence on the issue of the cost of reasonable andnecessary medical care and the calculation of the total of the


healing arts, dentist, registered nurse, advanced practice registered nurse,licensed practical nurse, psychologist or real estate appraiser and taxed as part ofthe costs in lieu of all other witness fees payable to such practitioner of the heal-ing arts, dentist, registered nurse, advanced practice registered nurse, licensedpractical nurse, psychologist or real estate appraiser.”

246 Id. at 363.247 Id. at 364.248 Id.249 304 Conn. 179, 201, 39 A.3d 712 (2012).250 206 Conn. 409, 538 A.2d 219 (1988).251 CONN. GEN. STAT. § 52-174(b).

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bill shall not be reduced because such physician or provideraccepted less than the total amount of the bill or because aninsurer paid less than the total amount of the bill. Theamendment also provides that any party or the court maycall the treating physician or provider as a witness for pur-poses that include, but are not limited to, providing testimo-ny on the reasonableness of a bill for treatment generated bysuch physician or provider. Practice Book Section 13-4 wasamended, effective January 1, 2013. The amendment statesthat parties when disclosing experts shall not file writtenexpert reports, disclosed medical records or disclosed med-ical reports with the court. General Statutes Section 51-241was amended by P.A. 12-133, Section 16 (Reg. Sess.), effec-tive October 1, 2012. This section makes a couple of changesregarding alternate jurors. The court pursuant to theamendment may keep an alternate juror in service under thedirection of the court after the case is given to the regularpanel for deliberation. The amendment also provides that ifa juror becomes a member of the regular panel after deliber-ations have begun, the jury shall be instructed by the courtthat deliberations by the jury shall begin anew. GeneralStatutes Section 52-259 was amended by P.A. 12-89, Section2 (Reg. Sess.), effective July 1, 2012. This section increasedcertain fees, including $350 for filing a civil action inSuperior Court, except the fee is $225 where the claim is forless than $2,500.The section also created a fee of $200 at thetime any counterclaim, cross complaint, apportionment com-plaint or third party complaint is filed.

A few ethics opinions are also worth mentioning. TheConnecticut Bar Association’s Ethics Committee releasedInformal Opinion 2011-8 which addressed the ethical impli-cations of certain types of confidentiality clauses in settle-ment agreements involving medical malpractice claims. Theprovisions prohibited the releasors from initiating contactwith any state or federal administrative agency regardingthe matter and further prohibited the releasors from dis-paraging the defendants. The Committee opined that thefirst confidentiality provisions did not violate ConnecticutRules of Professional Conduct 3.4(6) since it did not limit


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voluntary disclosures of factual claims to other parties tothe proceeding. The Committee declined to offer an opinionon whether the use of the confidentiality provisions pre-sented prejudiced the administration of justice within themeaning of Connecticut Rules of Professional Conduct 8.4(4)since it was ill-suited to declare public policy or to balancethe interest in the regulation of medical providers againstthe interest in promoting settlements of litigation.

The Ethics Committee also released Informal Opinion2012-1, which addressed the duty to protect hospital liensunder General Statutes Section 49-73.252 The Committeeopined that since the lien under Section 49-73 attachesbefore disbursement by the liability carrier, which must sat-isfy the lien, and not after delivery to the plaintiff or tocounsel, the client may not direct the liability carrier towithhold payments in satisfaction of the lien upon settle-ment of the client’s case and no ethical violation followsfrom counsel’s inability to effectuate the client’s instructionsnot to pay the hospital. The Committee further remindedcounsel that when he or she has actual knowledge of a validand enforceable lien under the law, counsel has an obliga-tion to safeguard the settlement proceeds until the partieshave reached an agreement on the amount of the lien.

The Connecticut Committee on Judicial Ethics issuedInformal Opinion 2012-25. The Opinion addressed whether:a judicial official may accept an award from Mothers AgainstDrunk Driving (MADD), speak at MADD’s annual communi-ty dinner, and if it is permissible to attend the dinner as an


252 General Statutes § 49-73 provides, in part: “(a) Any hospital which isexempt from taxation… which furnished medical or other service or materials toany patient injured by reason of any accident not covered by the Workers'Compensation Act has a lien on the proceeds of any accident and liability insur-ance policy issued by any company authorized to do business in this state, whichproceeds may be due such patient, either directly or indirectly, to the extent of theactual cost of such service and materials, provided such hospital…after the com-mencement of rendering of such service or providing of such materials and beforepayment by the insurance company, serves written notice upon the insurance com-pany by registered or certified mail …(b) Whenever the liability of the company orcompanies, either directly or indirectly, to the patient has been fixed, the insur-ance company shall pay directly to the hospital…the amount due it, provided theamount shall be agreed upon by all of the parties interested... (c) If the interestedparties do not agree concerning the amount due the hospital…either party maybring an action of interpleader in the judicial district….”

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award recipient and make a contribution to MADD in theamount of the dinner cost. The Committee concluded that,since MADD is a victim support and advocacy group, accept-ance of the award would violate Rules 1.2 and 1.3 of the Codeof Judicial Conduct, which provide that a judge should avoidimpropriety and the appearance of impropriety and shall notuse or attempt to use the prestige of judicial office to advancethe personal or economic interests of the judge or others orallow others to do so, respectively.

XVIII. UNINSURED/UNDERINSURED MOTORIST

Garcia v. City of Bridgeport253 concluded that a self-insured municipality is not deemed to provide unlimitedunderinsured motorist coverage, even in the absence of apreaccident writing requesting lesser coverage limits in con-formity with General Statutes Section 38a-336(a)(2).254 TheSupreme Court concluded that a self-insurer is not requiredto make a request for lesser coverage because such treat-ment would be inconsistent with differences between self-insurance and commercial insurance.255 The Court furtherconcluded that a self-insurer is both the insurer and theinsured, so a construction of Section 38a-336(a)(2) thatrequires an equivalent notice by a self-insurer and a corre-sponding request by a self-insured is untenable and unnec-essary to protect the insured.256

The Appellate Court in Stott v. Peerless InsuranceCompany257 concluded that the defendant was entitled to


253 306 Conn. 340, 51 A.3d 1089 (2012).254 General Statutes § 38a-336(a)(2) provides, in part: “Notwithstanding any

provision of this section to the contrary, each automobile liability policy…shall pro-vide uninsured and underinsured motorist coverage with limits for bodily injury anddeath equal to those purchased to protect against loss resulting from the liabilityimposed by law unless any named insured requests a lesser amount …Such writtenrequest shall apply to all subsequent renewals of coverage…unless changed in writ-ing by any named insured. No such written request for a lesser amount shall be effec-tive unless any named insured has signed an informed consent form….”

255 Garcia, 306 Conn. at 348.256 Id. In reaching its conclusion, the Supreme Court remarked that while it

was leaving intact its holding in Piersa v. Phoenix Ins. Co., 273 Conn. 519, 871 A.2d992 (2005), that to take advantage of permissible offsets, a self-insurer must main-tain a written document, either in its files or with the commissioner of insurance,it was expressly limiting Piersa to that conclusion. Garcia, 306 Conn. at 370.

257 137 Conn. App. 373, 375, 47 A.3d 965 (2012).

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summary judgment on the basis of the anti-stacking provi-sion of General Statutes Section 38a-336(d).258 The plaintiffat the time of the accident was insured under her own poli-cy, which included uninsured/underinsured motorist cover-age, and she was an insured under her parents’ policy.259

The plaintiff owned the vehicle she was operating at thetime of the accident.260 The plaintiff’s vehicle was not a cov-ered vehicle under her parents’ policy.261 Based on thefacts, the Court found that pursuant to Section 38a-336(d),the only underinsured motorist coverage available to herwas the coverage covering the vehicle occupied at the timeof the accident, which was her own policy.262

XIX. WORKERS’ COMPENSATION

The principal issue in Rettig v. Town of Woodbridge263

was whether an employee of a municipal district is anemployee of the towns comprising the district for purposes


258 General Statutes § 38a-336(d) provides: “Regardless of the number of poli-cies issued, vehicles or premiums shown on a policy, premiums paid, persons cov-ered, vehicles involved in an accident, or claims made, in no event shall the limitof liability for uninsured and underinsured motorist coverage applicable to two ormore motor vehicles covered under the same or separate policies be added togeth-er to determine the limit of liability for such coverage available to an injured per-son or persons for any one accident. If a person insured for uninsured and under-insured motorist coverage is an occupant of a nonowned vehicle covered by a poli-cy also providing uninsured and underinsured motorist coverage, the coverage ofthe occupied vehicle shall be primary and any coverage for which such person is anamed insured shall be secondary. All other applicable policies shall be excess. Thetotal amount of uninsured and underinsured motorist coverage recoverable is lim-ited to the highest amount recoverable under the primary policy, the secondarypolicy or any one of the excess policies. The amount paid under the excess policiesshall be apportioned in accordance with the proportion that the limits of eachexcess policy bear to the total limits of the excess policies. If any person insured foruninsured and underinsured motorist coverage is an occupant of an owned vehicle,the uninsured and underinsured motorist coverage afforded by the policy coveringthe vehicle occupied at the time of the accident shall be the only uninsured andunderinsured motorist coverage available.”

259 Stotts, 137 Conn. App. at 379.260 Id.261 Id. at 380.262 Id. at 379-80. The Appellate Court distinguished Lane v. Metropolitan

Property & Casualty Ins. Co., 125 Conn. App. 424, 7 A.3d 950 (2010), where itdetermined that the anti-stacking provision did not bar an insured with two sepa-rate primary policies containing uninsured motorist coverage on the same vehiclefrom collecting the policy limits of both primary policies combined if the damagesto the insured equal or exceed such coverage.

263 304 Conn. 462, 464-65, 41 A.3d 267 (2012).

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of General Statutes Section 31-284(a),264 the exclusivity pro-vision of the Worker’s Compensation Act (act). The plaintiffwas injured when she slipped and fell in the course of heremployment as the animal control officer for the district ani-mal control.265 The Supreme Court agreed with the trialcourt that the defendants were the plaintiff’s employer forthe purposes of the act and, therefore, the plaintiff’s claimwas barred by the exclusivity provisions of the act.266 Theoutcome of Desmond v. Yale-New Haven Hospital, Inc.267

also revolved around the exclusivity of the Workers’Compensation Act. The plaintiff, an employee of the defen-dant, alleged in her complaint, workers’ compensationfraud, statutory negligence and breach of contract.268 TheAppellate Court construed the claims to allege only that thedefendants delayed in bad faith the workers’ compensationclaims of the plaintiff and, accordingly, concluded that theclaims fell within the exclusive jurisdiction of the Workers’Compensation Commission.269 In addition, while the Courtacknowledged that there could be an instance in which aninsurer’s conduct related to the processing of a claim, sepa-rate from nonpayment, might be so egregious that the insur-er is no longer acting as an agent of the employer and a


264 General Statutes § 31-284(a) provides: “An employer who complies withthe requirements of subsection (b) of this section shall not be liable for any actionfor damages on account of personal injury sustained by an employee arising out ofand in the course of his employment or on account of death resulting from person-al injury so sustained, but an employer shall secure compensation for his employ-ees as provided under this chapter, except that compensation shall not be paidwhen the personal injury has been caused by the wilful and serious misconduct ofthe injured employee or by his intoxication. All rights and claims between anemployer who complies with the requirements of subsection (b) of this section andemployees, or any representatives or dependents of such employees, arising out ofpersonal injury or death sustained in the course of employment are abolished otherthan rights and claims given by this chapter, provided nothing in this section shallprohibit any employee from securing, by agreement with his employer, additionalcompensation from his employer for the injury or from enforcing any agreement foradditional compensation.”

265 Id. at 465-66.266 Id. at 483.267 138 Conn. App. 93, 50 A.3d 910, cert. denied, 307 Conn. 942, 58 A.3d 258

(2012).268 Id. at 94-95.269 Id. at 100-02. The Appellate Court in construing the plaintiff’s complaint

as it did noted that the interpretation of pleadings is a question of law for the courtand that labels placed on allegations by the parties are not controlling. Id. at 101.

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claim arising therefrom would not fall within the scope ofthe Worker’s Compensation Act, the plaintiff’s allegations ofbad faith in processing her claim were the type routinelymade and did not fall outside the scope of the Act.270

Yeager v. Alvarez271 offers guidance as to how proceeds ofa negligence action are to be distributed between theemployer, which intervened for the purpose of recoveringworkers’ compensation payments, and the employee’s attor-ney. The Appellate Court, in resolving the issue, first lookedto General Statutes Section 31-293(a)272 and noted that pur-suant to this Section an employer is entitled to reimburse-ment for payments made after the deduction of reasonableand necessary expenditures, including attorneys’ feesincurred by the employee in effecting the recovery.273 Thetrial court found that since the plaintiff did not list in herbill of costs payable by the defendants the additionalexpenses she sought to have deducted from the damagesapportioned, she was not allowed such expenses at a hear-ing for apportionment.274 At the apportionment hearing,the plaintiff indicated that expenditures, such as productionand copying of medical records, obtaining final reports fromthe plaintiff’s treating doctors and conferences with medicalproviders, were not taxable costs.275 The Court held thatSection 31-293(a) by its terms was not limited to the enu-merated costs recoverable in a bill of costs and, accordingly,reversed the judgment and remanded for further proceed-ings consistent with the opinion.276


270 Id. at 102-03.271 134 Conn. App. 112, 38 A.3d 1224 (2012).272 General Statutes § 31-293(a) provides, in part: “If the employer and the

employee join as parties plaintiff in the action and any damages are recovered, thedamages shall be so apportioned that the claim of the employer, as defined in thissection, shall take precedence over that of the injured employee in the proceeds ofthe recovery, after the deduction of reasonable and necessary expenditures, includ-ing attorneys' fees, incurred by the employee in effecting the recovery.”

273 Yeager, 134 Conn. App. at 119.274 Id. 275 Id. at 117, n. 3.276 Id. at 121, 124.

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2012 CONNECTICUT TAX LAW DEVELOPMENTS

BY FELICIA S. HOENIGER AND SCOTT E. SEBASTIAN*

In what has become a recurring theme for the past fiveyears, the economic narrative for Connecticut has beenmarked by sluggish tax collections, which have resulted in asubstantial budget deficit. A year after the Governor signedinto law the biggest tax increase in state history, neither theGovernor nor the General Assembly enacted any tax-relat-ed legislation of note. On the administrative side, theDepartment of Revenue Services (“DRS” or “Department”)issued substantive guidance on the treatment of nonresi-dent contractors, as well as Rulings related to Sales and UseTax matters. On the judicial front, there were not a signif-icant number of tax-related cases that went to trial. Themost significant matter involved an appeal to theConnecticut Supreme Court, dealing with whether an out-of-state entity has the requisite nexus based on its in-stateactivities to require it to collect and remit Sales Tax.

I. LEGISLATIVE DEVELOPMENTS

Compared with last year’s legislative enactments, whichwere numerous in number, impacted virtually all types oftaxpayers throughout the state, and resulted in the largesttax increase in state history, the General Assembly was notnearly as active in 2012. The legislature made relativelyminor changes or clarifications to a handful of provisionspassed in previous sessions. The most relevant legislationenacted in 2012 dealt with an assessor’s ability to assesspartially completed new construction, the change in whichtax credits qualify for the Tier I classification, and the crim-inalization of those entities using or selling devices intend-ed to falsify tax records.

A. Income Taxes1. Corporation Business TaxIn 2011, the General Assembly enacted a program to

incentivize small manufacturers to promote workforce

2013] 2012 CONNECTICUT TAX LAW DEVELOPMENTS 73

* Of the Hartford Bar.

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training, development, and expansion, as well as the pur-chase of machinery, equipment and facilities.1 As discussedin last year’s article,2 a small manufacturer could establishan account and defer paying tax on sums deposited until thefunds were withdrawn for certain, enumerated uses. Asmall manufacturer benefits by paying tax at the time inwhich such amounts are withdrawn and by being assessedat a reduced 3.5% tax rate. Legislation enacted in 2012 pro-vided additional guidance in determining the tax conse-quences for those small manufacturers which establishedmanufacturing reinvestment accounts. This legislation cod-ified which amounts were to be included in a small manu-facturer’s Connecticut gross income to include: (i) half theamount withdrawn from the manufacturing reinvestmentaccount; (ii) all of the amounts withdrawn and used for anineligible purpose; and (iii) all the amounts not withdrawnfrom the account after the expiration of the five-year defer-ral period.3 Related legislation clarifies a deduction fromgross income amounts contributed to a manufacturing rein-vestment account, provided that the contribution is notdeductible for U.S. federal income tax purposes.4

As detailed in last year’s update,5 the General Assemblyconsolidated several existing tax credits to credit a new JobExpansion Tax Credit. Legislation enacted during the June12 Special Session broadened the definition of “qualifyingemployee” to include those individuals (i) receiving employ-ment services from the Department of Mental Health andAddiction Services or (ii) participating in employmentopportunities and day services operated or funded by theDepartment of Developmental Services.6

In an effort to conform to an administrative reorganiza-tion, all references within the General Statutes to “Bureauof Rehabilitative Services” were changed to the “Depart -ment of Rehabilitation Services.”7 This change impacts the


1 P.A. 11-140 (Reg. Sess.).2 See John R. Shaughnessy & Scott E. Sebastian, 2011 Connecticut Tax Law

Developments, 86(2) CONN. B.J. 107, 110-11 (2012). 3 P.A. 12-1, § 195 (June 12 Spec. Sess.).4 Id., § 194.5 See Shaughnessy & Sebastian, supra note 2, at 108-09.6 P.A. 12-1, § 198 (June 12 Spec. Sess.).7 Id., § 60.

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Vocational Rehabilitation Job Creation Tax Credit (codifiedin General Statutes Section 12-217oo) and the JobExpansion Tax Credit (codified in General Statutes Section12-217pp).

2. Individual Income TaxAs discussed above, the General Assembly enacted legis-

lation related to those entities eligible to open manufactur-ing reinvestment accounts. For individual income tax pur-poses, the legislation amended the definition of Connecticutgross income to include: (i) half the amount withdrawnfrom the manufacturing reinvestment account; (ii) all of theamounts withdrawn and used for an ineligible purpose; and(iii) all the amounts not withdrawn from the account afterthe expiration of the five-year deferral period.8

B. Sales and Use Tax

The Legislature passed a measure which would have con-formed and broadened two similar provisions relating to thestorage and maintenance service of vessels withinConnecticut. Prior to the 2012 legislative session,Connecticut taxed as a sale the amount paid to store ormoor any noncommercial vessel, except during the periodstarting November 1 through April 30 of the next succeed-ing year.9 There also existed an exemption from the use taxfor the use of any vessel delivered within the state for stor-age or maintenance or repair, provided such use occur fromOctober 1 through April 30.10 The fact that each provisioncarries with it a unique effective date has resulted in manyvessel owners being taxed for services performed inConnecticut outside the safe harbor.

The legislation passed by both chambers of the GeneralAssembly excluded from the definition of “sale” amountspaid for storing or mooring any noncommercial vessel fromOctober 1 through May 31 of the following year.11 Such achange would have extended the exclusion’s safe harbor by


8 Id., § 196.9 CONN. GEN. STAT. § 12-407(a)(2)(M).10 CONN. GEN. STAT. § 12-413a.11 P.A. 12-175, § 1 (Reg. Sess.).

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two months. The same legislation would have exemptedfrom use tax the storage, maintenance, and repair costs of avessel brought into Connecticut from October 1 throughMay 31 of the next year, resulting in an increase to the safeharbor by one month. Perhaps more importantly, however,the 2012 legislative changes would have conformed both ofthe related, but differing provisions. Governor Malloy, how-ever, vetoed both of these provisions. Therefore, the origi-nal safe harbor periods for each provision still apply—November 1 through April 30 for the storage exclusion;12

and October 1 through April 30 for the use tax exemption forstorage, repair, and maintenance.13

Certain business services (e.g., personnel; commercial orindustrial marketing, development, testing, and research;and business analysis and management services) renderedbetween participants of a joint venture are exempt fromsales tax.14 In the case of a joint venture in the aircraftindustry, a company providing the service had to own twen-ty-five percent of the joint venture. The exemption wasavailable to aircraft industry joint ventures that existedbefore January 1, 1986 for a period of thirty years. As aresult of a 2012 legislative change, the twenty-five percentownership threshold could be satisfied by not only the serv-ice provider itself but also any related members.15 The pro-vision also extended the period of exemption from thirtyyears to forty years.

The General Assembly marginally expanded those activ-ities not subject to tax as a business management and con-sulting service. Prior to the legislative change, any trainingservices provided by an institution of higher educationlicensed or accredited by the Board of Regents for HigherEducation were excluded from taxation.16 The exclusion isnow available for training services provided by an institu-tion accredited by the State Board of Education.17


12 CONN. GEN. STAT. § 12-407(a)(2)(M).13 CONN. GEN. STAT. § 12-413a.14 CONN. GEN. STAT. § 12-412(58).15 P.A. 12-1, § 124 (June 12 Spec. Sess.).16 CONN. GEN. STAT. § 12-407(a)(37)(J).17 P.A. 12-156, § 56 (Reg. Sess.).

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C. Practice, Procedure, and Tax Administration

DRS Commissioner Kevin Sullivan has been a staunchopponent of technology intended to falsify business and taxrecords. The Finance, Revenue, and Bonding Committeeintroduced a bill that makes it a felony to sell, purchase,install, transfer, or possess what is referred to as a zapper.18

A zapper (along with other software such as an automatedsales suppression device or phantom-ware) is a softwareprogram that falsifies records of electronic cash registersand other point-of-sale systems. Taxpayers who use or sellzappers are subject to substantial penalties, including a fineof up to $100,000, one to five years in prison, or both.Furthermore, anyone caught using a zapper is liable for alltaxes, penalties, and interest due and must forfeit all prof-its associated with the sale or use of the zapper or relatedtechnology.

Legislation enacted in 2012 created a new category ofmisdemeanors—Class D—for certain crimes carrying amaximum term of imprisonment of thirty days.19 The newclassification impacted certain tax-related crimes. Withrespect to an investigation by the state’s attorney in whicha municipal employee falsifies records, misappropriatesfunds, or draws any order on the treasurer with the intentto defraud the municipality, the custodian of any books ofaccount or record who hinders or refuses to deliver thoserecords shall be guilty of a class D misdemeanor.20 Also,under the property tax law, an assessor is required to add toa property declaration any taxable property which he or shehas reason to believe is owned by the taxpayer but was omit-ted from the declaration. As part of any audit investigatingsuch omission, a person failing to give testimony or producepertinent information as part of the audit may be foundguilty of a class D misdemeanor.21


18 P.A. 12-135 (Reg. Sess.).19 P.A. 12-80, § 1 (Reg. Sess.).20 Id., § 119. The previous punishment was a fine of not more than $200,

imprisonment of not more than sixty days, or both.21 Id., § 57. The previous punishment was a fine of not more than $100,

imprison ment of not more than thirty days, or both.

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D. Property Tax

The General Assembly granted municipal assessors theability to tax partially completed new construction. Theprior version of the statute was ambiguous as to a munici-pality’s power to tax partially completed new construction.This newly enacted legislation comes in response to the deci-sion of the Tax Session of the Connecticut Superior Court inKasica v. Town of Columbia,22 where the court ruled that theassessor had no authority under the statute to assess par-tially improved property without a certificate of occupancybeing issued. As a result of the Kasica case, the legislaturechanged the assessment provision to tax partially completednew construction based on the assessed value of such con-struction as of October 1 of each assessment year.23

Under the prior law, municipal assessors could phase inan increase in a real estate assessment after a revalua-tion.24 As a result of a legislative change in 2012, assessorsmay now phase in a real estate assessment decrease forassessment years commencing October 1, 2012. The legis-lation provides three methods in which the assessor maydetermine the phase-in of the decrease.

The state offers a partial tax refund of rent or utility billspaid by a renter who meets certain eligibility criteria—theforemost being that the renter must be sixty-five years of ageor older or be at least sixty-five and have a permanent totaldisability.25 Legislation enacted in 2012 expanded the win-dow in which such application must be made from April 1 toOctober 1.26 Under the prior law, the assessor was permittedto accept an application from May 15 through September 15.


22 Nos. CV-09-5014848-S & CV-10-5005117S, 2011 Conn. Super. LEXIS 2523(Conn. Super. Ct. Oct. 6, 2011). The matter has been transferred to theConnecticut Supreme Court for argument.

23 P.A. 12-157, § 1 (Reg. Sess.).24 CONN. GEN. STAT. § 12-62c.25 CONN. GEN. STAT. § 12-170d. In addition to being sixty-five years of age or

older, the renter (or spouse) must have resided in Connecticut for at least one year;the renter must have qualifying income of not over $20,000 (for taxpayers filingjointly) or $16,200 (if unmarried), adjusted for inflation; and the renter must nothave received financial aid or a subsidy for the payment of rent, electricity, gas,water, and fuel.

26 P.A. 12-69, § 1 (Reg. Sess.).

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Municipal assessors are now subject to additionalrequirements for issuing a jeopardy assessment withrespect to a property tax liability. First, the assessor mustexercise due diligence prior to his or her determination thatthe collection of property taxes will be jeopardized bydelay.27 Next, the assessor is required to give notice of suchjeopardy collection to both the chief elected official in themunicipality in which such property is located and the tax-payer subject to the jeopardy collection.28

Legislation enacted in 2012 allows advanced practiceregistered nurses (“APRN”) to certify or document medicalinformation in certain situations in which physicians werepreviously required to do so. As a result of the legislativechange, an APRN is now permitted to certify that an indi-vidual is totally disabled and cannot appear before an asses-sor to provide evidence that such individual is eligible forthe exemption available to service members, veterans, theblind, the totally disabled, and certain family members ofsuch individuals.29 Similar provisions allow an APRN tocertify that an individual is ill or incapacitated for purposesof applying for an extension for: the property tax freeze pro-gram for the elderly,30 the municipal option property taxfreeze program available to seniors,31 the renters’ tax reliefprogram for the elderly or disabled,32 and the circuit break-er property tax program.33

The General Statutes require the state to make paymentin lieu of tax (“PILOT”) payments to municipalities in whichcertain property is situated. A statutory provision current-ly requires a PILOT payment for any municipality with landthat was designated in a 1983 settlement and was takeninto trust by the federal government on or after June 8,1999 for either the Mashantucket Pequot Tribal Nation orthe Mohegan Tribe of Indians of Connecticut.34 Legislation


27 P.A. 12-26, § 1 (Reg. Sess.).28 Id., § 2.29 P.A. 12-197, § 26 (Reg. Sess.).30 Id., § 27.31 Id., § 29.32 Id., § 28. 33 Id., § 30.34 CONN. GEN. STAT. § 12-19a(a)(1)(C).

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enacted in 2012 expanded the list of PILOT obligations toinclude those lands designated in the 1983 settlement andtaken into trust by the federal government for theMashantucket Pequot Tribal Nation or the Mohegan Tribeof Indians of Connecticut prior to June 8, 1999.35 The newlyenacted PILOT applies only to real property, is equal toforty-five percent of the property taxes that would havebeen paid, and is subject to a five-year phase-in.36

Under existing law, local municipalities may apply forfinancial assistance to the Secretary of the Office of Policyand Management (“OPM”) to establish its Computer-Assisted Mass Appraisal (“CAMA”) system.37 The CAMAsystem facilitates the municipality’s assessment and tax col-lection efforts. Legislation enacted in 2012 prohibits theOPM Secretary from accepting or approving any applica-tions for financial assistance after June 30, 2012.38

E. Insurance Premiums Tax

As discussed in last year’s survey,39 the GeneralAssembly enacted several changes to the credit cap imposedon insurance premiums taxpayers in 2011. The Legislaturemade an additional change in 2012. Under the prior law,the Film Production, Infrastructure Projects in theEntertainment Industry, and Digital Animation TaxCredits were all classified as Type I Credits, which werecapped at fifty-five percent. For tax years ending December31, 2012, the legislation removed the Film Production andInfrastructure Projects credits from the Type I category,leaving the Digital Animation Credit as the lone credit eli-gible for the fifty-five percent cap.40 As a result, the FilmProduction and Infrastructure Projects are now Type IIICredits, which are subject to the lower thirty percent cap.


35 P.A. 12-1, § 98 (June 12 Spec. Sess.).36 In the fiscal year commencing July 1, 2012, 10% of the 45% grant will be

paid; in the fiscal year commencing July 1, 2013, 35% of the 45% grant will be paid;in the fiscal year commencing July 1, 2014, 60% of the 45% grant will be paid; inthe fiscal year commencing July 1, 2015, 85% of the 45% grant will be paid; and inthe fiscal year commencing July 1, 2016, 100% of the 45% grant will be paid.

37 CONN. GEN. STAT. § 12-62f.38 P.A. 12-1, § 106 (June 12 Spec. Sess.).39 See Shaughnessy & Sebastian, supra note 2, at 119.40 P.A. 12-1, § 42 (Dec. Spec. Sess.).

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F. Miscellaneous Taxes

Legislation enacted in 2012 caps at $3.00 per gallon theamount of gross earnings from the first sale withinConnecticut subject to the Petroleum Products GrossEarnings Tax.41 Therefore, if gas is sold at $3.50 per gallon,only the first $3.00 is subject to tax, with the remaining$0.50 exempt. Also, the legislation prohibits a distributorfrom including on the bill for the first sale of petroleumwithin the state an amount exceeding the actual gross earn-ings tax liability.42 Such a violation is now subject to theConnecticut Unfair Trade Practices Act.

Concerning the Hospitals Tax, the Commissioner ofSocial Services is required to determine the rate of tax, thebase year on which such tax is assessed, and which hospi-tals are exempt from the tax due to financial hardship.Legislature enacted in 2012 froze the tax rate, base year,and exempt hospitals to the base year on which the tax isassessed to those levels in effect on January 1, 2012.43 Thefreeze is effective beginning July 1, 2012 and is to continuefor a period of fifteen months.

II. LITIGATION AND ADMINISTRATIVE DEVELOPMENTS

The tax litigation docket was largely dominated by prop-erty tax cases—almost all of which dealt with overvaluedassessments. However, the most high profile case was theConnecticut Supreme Court’s decision in Scholastic BookClubs, which may have a major impact upon out-of-statevendors doing business within the state. Also of note was arare Appellate Court decision focusing upon subject matterjurisdiction.

A. Corporate and Income Taxes

There were no Corporation Business Tax or IndividualIncome Tax decisions in 2011.


41 P.A. 12-4, § 1 (Reg. Sess.).42 Id., § 2.43 P.A. 12-1, § 4 (June 12 Spec. Sess.).

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B. Sales and Use Taxes

In a significant tax decision, the Connecticut SupremeCourt heard an appeal of the Tax Session’s decision inScholastic Book Clubs, Inc. v. Commissioner of RevenueServices.44 The case involved a Missouri-based mail orderbusiness specializing in book sales to elementary and pre-school students, including those in Connecticut. The tax-payer neither owned nor leased any real estate inConnecticut. In addition, the taxpayer did not have anyemployees, independent contractors, salesmen, agents, orother personnel within the state. The taxpayer conductedits business in Connecticut by mailing catalogues during theschool year to classrooms and having teachers distribute thecatalogues, collect order forms and payment, and distributepurchased materials, among other administrative activities.The DRS imposed upon the taxpayer a Sales and Use Taxbecause it deemed the taxpayer to have used an “in-staterepresentative” under General Statutes Section 12-407(a)(15)(A) to facilitate its sales. During the trial at theSuperior Court, the taxpayer argued that the teachers werenot “representatives” under the statute because the teach-ers were “not in-state ‘order takers’ seeking to produce ‘rev-enue’ for themselves or [the plaintiff]…”45 In agreeing withthe taxpayer’s position, Judge Cohn described the teachersas customers who purchased the materials in loco parentisby standing in the place of the parents for the purpose ofhelping the students select and order books. The trial courtfurther found that there existed no “definite link” or “mini-mum connection” between the state and the taxpayer.46

On appeal, the Supreme Court, in an opinion by JusticeZarella, reversed the Tax Session and directed judgment infavor of the DRS. The DRS argued that a proper interpre-tation of the term “representative” in General StatutesSection 12-407(a)(15)(A) is dependent upon the nature of the


44 304 Conn. 204, 38 A.3d 1183 (2012). 45 Id. at 212.46 Id.

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teachers’ activities, not motives.47 Based on activities, theteachers were representatives of the taxpayer because theiractivities were directly related to the taxpayer’s businesspurpose of selling the taxpayer’s products. Noting that theterm “representative” was not defined in the statutory pro-vision, the Supreme Court presumed that the legislatureintended the word to have its ordinary meaning—a “personwho is not an employee or an agent and who does not nec-essarily act through delegated authority for remuneration…, but who otherwise stands in the place of, or acts onbehalf of, the out-of-state retailer ‘for the purpose of selling,delivering or taking orders’ for the retailer’s products.’”48

The Supreme Court concluded that they were, in fact, rep-resentatives of the taxpayer, because those participatingteachers served as the sole means by which the taxpayermarketed its products, made sales, and delivered its prod-ucts within the state. Furthermore, the Court rejected thetaxpayer’s other arguments: (1) that a legal or agency rela-tionship was required in order to be considered a represen-tative; (2) that the teachers were mere customers who actedwithout compensation; and (3) that the teachers were act-ing in loco parentis. Finally, the Supreme Court consideredthe Commerce Clause claim that there was insufficientnexus between the taxpayer and Connecticut. On thatpoint, the court concluded that a substantial nexus didindeed exist between the taxpayer and state because theteachers acted as representatives. As a result, under thebright line tests established in United States SupremeCourt jurisprudence, the teachers’ activities provided therequisite nexus to justify the imposition of a tax on the tax-payer’s Connecticut-based transactions.49


47 CONN. GEN. STAT. § 12-407(a)(15)(A) provides in relevant part that“Engaged in business in the state’ means and includes but shall not be limited tothe following acts or methods of transacting business . . . (iv) . . . having any rep-resentative, agent, salesman, canvasser or solicitor operating in this state for thepurpose of selling, delivering or taking orders.”

48 Scholastic Book Clubs, 304 Conn. at 217. 49 Id. at 234.

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The Supreme Court’s decision in Scholastic, as well asthe United States Supreme Court’s decision to deny certio-rari,50 was a significant victory for the DRS. The rulingeffectively broadens the concept of substantial nexus forsales tax purposes. As a result, the DRS now has sufficientauthority to require those out-of-state entities with no phys-ical presence in Connecticut to collect and remit sales tax forsales made into Connecticut, as long as the entity utilizes aConnecticut “representative.”

In J.P. Alexandre, LLC, et al. v. Egbuna,51 the taxpayerappealed a decision by the trial court, which ruled in favorof the defendant governmental officials. On appeal, the tax-payer argued that the trial court improperly concluded that(1) it lacked subject matter jurisdiction; and (2) theConnecticut Taxpayer’s Bill of Rights, codified at GeneralStatutes Section 12-39n, afforded the taxpayer no relief. Aspart of its actions below, the taxpayer raised numerousclaims under 42 U.S.C. Section 1983 against the DRS audi-tor and the tax unit manager for the DRS audit division.The defendants filed a motion for summary judgment,claiming that the court lacked subject matter jurisdiction onall counts. The trial court granted the motion for summaryjudgment.

With respect to the taxpayer’s first argument—that thecourt improperly concluded that it lacked subject matterjurisdiction over the federal constitutional claims—the tax-payer claimed that the court improperly invoked theexhaustion doctrine in precluding its federal constitutionalclaims. The Appellate Court noted that the trial court fol-lowed Connecticut Supreme Court precedent in finding thata “party has no right to bring a federal statutory actionunder Section 1983 in connection with a state’s collection oftaxes ‘if the party has an adequate legal remedy for theclaimed violation under state law.’”52 Since there was anadequate legal remedy available to the taxpayer under


50 See Scholastic Book Clubs v. Connecticut Comm’r of Revenue Servs., 133 S.Ct. 425 (2012).

51 137 Conn. App. 340, 49 A.3d 222 (2012).52 Id. at 348.

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General Statutes Section 12-422, the court affirmed that theSection 1983 action was beyond the subject matter of thecourt.53 The Court reasoned that the applicable statutoryprovision did not create an exhaustion requirement butinstead provided an adequate remedy under state law.

As to the taxpayer’s claim that the court improperly con-cluded that the Connecticut Taxpayer’s Bill of Rights didnot create a common law tort cause of action, the AppellateCourt concurred with the lower court that the Taxpayer’sBill of Rights provides no explicit or implied right of action.Instead, the Court held that the rights granted in theTaxpayer’s Bill of Rights are to be enforced by other parts ofthe general statutes or the rules or regulations of the DRS.Finally, the Court concluded that General Statutes Section12-422 provided an adequate remedy for the taxpayer’sclaims against the DRS, thus making moot the need for animplied remedy. In the end, while still ruling against thetaxpayer, the court reversed the trial court’s summary judg-ment ruling and instead dismissed the action for lack of sub-ject matter jurisdiction.

On the administrative front, the DRS released threepieces of administrative guidance dealing with the sales tax.In Special Notice 2012(2), the DRS explains in further detailthe significant changes in the treatment of nonresident con-tractors.54 For a summary of the legislative changes, pleaserefer to last year’s article.55 In the second piece of adminis-trative guidance, the DRS issued Ruling 2012-1, which dealtwith the instances in which a nonprofit hospital operating ahotel was required to collect the Room Occupancy Tax.56

The DRS ruled that the hospital was not required to collecttax where it rented primarily for the convenience of a “pri-ority guest”—i.e., patients and their families, visiting med-ical personnel, and recruitment candidates. In the eyes ofthe DRS, the rental to these “priority guests” fell within the


53 Id. at 352 (citing Zizka v. Water Pollution Control Auth., 195 Conn. 682,490 A.2d 509 (1985)).

54 SN 2012(2) (Mar. 22, 2012). In 2011, the General Assembly enacted thesechanges to be effective October 1, 2011.

55 See Shaughnessy & Sebastian, supra note 2, at 117-18.56 Ruling 2012-1 (Jan. 19, 2012).

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hospital’s exclusive purpose. On the other hand, the DRSconcluded that rentals to the general public, or non-priorityguests, are subject to the Room Occupancy Tax. Finally, theDRS issued a ruling for a taxpayer who works with doctorsand hospitals to compile and disseminate medical recordsupon the request of patients, insurance companies, attor-neys, other healthcare providers, and governmental agen-cies.57 The DRS ruled that the taxability of such transac-tions is contingent upon the medium of delivery. Forinstance, where the medical records are provided in hardcopy, it is considered a sale of tangible personal property.Medical records provided via fax and e-mail, however, arenot taxable. The DRS ruled that the distribution of medicalrecords by means of an online database is subject to the onepercent tax for computer and data processing services.

C. Practice and Procedure

In Cunningham v. Commissioner of Revenue Services,58

the Tax Session decided whether the ten-day notice periodfor a jeopardy assessment ran from the mailing date of theBilling Notice or the date that the taxpayer received theBilling Notice. The taxpayer was assessed additionalincome tax, penalty, and interest for the 2008 tax year. TheDRS served the Billing Notice by first class mail onFebruary 18, 2011, leaving him until February 28, 2011 toseek an administrative appeal. The taxpayer contendedthat he received the Billing Notice on February 26, 2011—giving him only two days to appeal. The taxpayer filed aprotest on March 7, 2011, which was within a ten-day peri-od from the date of receipt but seventeen days following theDRS mailing the Billing Notice. Judge Aronson granted theDRS motion to dismiss, because the court lacked jurisdic-tion to hear the matter due to the taxpayer’s failure toexhaust his administrative remedies. The court highlightedthat the Connecticut statute makes service of a notice com-plete once the notice has been deposited in the U.S. Post


57 Ruling 2012-2 (Feb. 17, 2012).58 No. CV 11-6010912 S, 2012 Conn. Super. LEXIS 1390 (Conn. Super. Ct.

May 30, 2012).

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Office or mailbox.59 The court distinguished this case fromthat of Taylor v. Commissioner of Revenue Services,60 inwhich the court held that the notice period ran from thedate of receipt due to the Commissioner using certified mail,instead of first class mail, to effect service. The court ulti-mately ruled in favor of the DRS, because the relevantstatute, General Statutes Section 12-2f, was unambiguousand did not infringe upon the taxpayer’s due process rights.

D. Property Tax

There were numerous Property Tax cases in 2012. Theoverwhelming majority of cases deal with property valua-tions, with a large number of such cases involving the City ofNorwalk. In Caviness v. Norwalk,61 the issue was the valua-tion of a roughly half-acre lot containing a five bedroom, four-and-one-half bathroom residence purchased in foreclosure inDecember 2010 for $950,000. The city assessed the propertywith a fair market value of $1,835,200. After determiningthat the taxpayer had standing, the court turned to the fairmarket value of the subject property. While the court foundthe city’s appraisal more “formal and businesslike,” it madetwo adjustments based on a reduction of the amount of abovegrade gross living area and design, quality of construction,and condition of the interior deductions. Therefore, the courtreduced the value of the property by $219,150 for a net valu-ation of $1,555,850, sustaining in part the city’s valuation.

In Sono Equities, LLC v. Norwalk,62 the taxpayer chal-lenged the valuations of a multi-tenant office building and anearby (but not adjacent) surface parking lot.63 The differ-


59 See CONN. GEN. STAT. § 12-2f.60 48 Conn. Supp. 410, 849 A.2d 26 (2004).61 No. CV 11-6012214 S, 2012 Conn. Super. LEXIS 1390 (Conn. Super. Ct.

Nov. 28, 2012).62 No. CV 09-4016818 S, 2012 Conn. Super. LEXIS 2417 (Conn. Super. Ct.

Sept. 28, 2012).63 Zoning regulations in effect during construction in 1970 required that ten-

ant parking be available with respect to the office building. Therefore, the devel-oper purchased the lot to be in compliance with the zoning law. Only 3% of the ten-ant vehicles park in the subject lot, while the majority of tenants park in a munic-ipal lot located across the street from the office building. The owners of the lotentered into a lease agreement with the United States Postal Service to park itsvehicles at the subject lot.

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ence in appraisals was almost $5,000,000—the city’sappraiser valued the properties at $18,156,400 ($17,246,700for the office building and $909,700 for the parking lot),while the taxpayer’s appraiser estimated the combinedvalue at $13,400,000 ($12,650,000 for the office building and$850,000 for the parking lot). In determining valuation, thecourt discounted the use of the sales comparison approachbecause of the lack of comparable sales similar to the sub-ject property. The court, instead, found the incomeapproach more appropriate since both the office buildingand parking lot were income-producing properties. Thecourt took into consideration the average rental rate, addi-tional rental income from storage space and rooftop anten-nae, vacancy/collection rate, operating expenses, net operat-ing income, and capitalization rate in arriving at a fair mar-ket value for the building of $14,345,457. After sustainingthe city’s valuation for the parking lot, the court arrived ata total fair market value of $15,255,157.

In Zesiger v. Norwalk,64 the taxpayer, who owned anisland and a related waterfront parcel, appealed the city’svaluation of both parcels. The taxpayers were year-long res-idents of a house on Tavern Island, a 3.5 acre island in LongIsland Sound. Also located on Tavern Island were otherbuildings, including a caretaker’s cottage, a boathouse, anda Tea House. The island was connected to city water andelectricity. The taxpayers accessed Tavern Island via a boatdocked at the waterfront parcel. That parcel was 0.48 acres,with ninety feet of frontage on Long Island Sound. Thewaterfront property contained a one-story three bay garageand included a one-room heated apartment with a kitchenand bathroom. The taxpayers did not use the apartment asa residence but as a necessary part of traveling to and fromTavern Island. The taxpayer’s appraiser valued TavernIsland at $5,030,000 and the waterfront property at$560,000. The city’s appraiser, on the other hand, deter-mined that the fair market value of Tavern Island was$10,000,000, and the related property at $2,900,000. The


64 No. CV 09-4016846 S, 2012 Conn. Super. LEXIS 2148 (Conn. Super. Ct.Aug. 22, 2012).

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appraisers also disagreed about the highest and best use ofthe waterfront property—the city deemed its highest andbest use as residential, while the taxpayer claimed it was anaccessory use for Tavern Island.

The court took issue with the taxpayer’s appraiser withrespect to the comparables used and the fact that theappraiser subdivided the 3.5-acre island into a two-acre res-idential lot and a 1.5-acre “excess land” lot. Judge Aronsonultimately sided with the taxpayer’s appraisal but adjustedthe valuation to eliminate the valuation attributed to“excess land.” As for the waterfront property, the courtdeemed both the waterfront property and Tavern Island to“go hand in hand.” Based on past and current use of theproperty as a garage for cars and boats, the court held thatthe classification of the waterfront property as residentialwas improper. In looking at comparable sales, the court val-ued the waterfront property at the lower end of comparablesales, which were almost exclusively residential in nature,and included in the valuation an amount for improvements.In conclusion, the court found the fair market value ofTavern Island to be $7,985,000 ($6,125,000 for land and$1,860,000 for improvements) and the fair market value ofthe waterfront property to be $1,410,000 ($1,150,000 for theland and $260,000 for improvements).

In Fairfield Merrittview LP and Fairfield MerrittviewSPE, LLC v. Norwalk,65 the taxpayer challenged theNorwalk city assessor’s valuation of an eight-story officecomplex. With both appraisers opting for the incomeapproach (as opposed to the sales approach), the plaintiff’sassessor valued the subject property at $30,500,000, whilethe city’s appraiser arriving at a value of $49,400,000.Given the significant discrepancy between competing valu-ations, the court evaluated the appraisers’ opinions of mar-ket rent and contract rent before ultimately ruling in favorof the taxpayer’s valuation.

In Eyre, LLC v. Woodbury,66 the taxpayer appealed thevaluation of two separate, vacant parcels of land. The tax-


65 No. CV 09-4016844 S, 2012 WL 3854852 (Conn. Super. Ct. Aug. 6, 2012).66 No. CV 09-4027964 S, 2012 Conn. Super. LEXIS 1296 (Conn. Super. Ct.

May 16, 2012).

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payer intended to develop the parcels with five free-stand-ing commercial units. The taxpayer appealed the town’sassessed value of $2,850,442, which the Board ofAssessment Appeals reduced to $2,387,828. At trial, thetaxpayer’s appraiser valued the property at $710,000, whilethe town’s appraiser arrived at a value of $2,440,000—a dif-ference of $1,730,000. While acknowledging the comparablesales of similar properties, the court found the most influ-ential factor was the sale of the subject property itself,which occurred less than one year before the revaluationdate. The court noted that the zoning commission hadapproved the development, issued an aquifier permit andspecial exception, and permitted the expansion of the devel-opment in the future. Judge Aronson also found the tax-payer’s appraiser and his valuation not credible. Therefore,the court held that the taxpayer did not meet its burden ofproving that the assessor overvalued the property.

In Home Depot USA, Inc. v. Danbury,67 the Tax Sessionconsidered a taxpayer’s appeal challenging the city asses-sor’s valuation for an 8.99 acre parcel housing a HomeDepot store. The taxpayer’s appraiser estimated the fairmarket value to be $14,000,000, while the city’s appraiserdetermined the value to be $21,000,000. Because the sub-ject property was owner-occupied and not rented, the courttook exception to both appraisers utilizing the income capi-talization approach. In particular, Judge Aronson found theanalysis to fall short because both appraisers were requiredto speculate on various factors. The facts suggested thatHome Depot was in favor of purchasing and occupying itsproperties, as opposed to leasing them. As a result, thecourt found the only reliable valuation method was the salesapproach. Since the city’s appraiser was the only one toanalyze the valuation under the sales comparison approach,the court relied heavily upon that analysis. In the end, thecourt arrived at a fair market value of $20,139,660—anamount significantly closer to the city’s valuation.


67 No. CV 08-4021519 S, 2012 Conn. Super. LEXIS 1297 (Conn. Super. Ct.May 16, 2012).

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In Kronenberger v. Haddam,68 the taxpayer challengedthe assessor’s (1) removal of a forestry exemption from thesubject property; (2) increase in assessment on the subjectproperty; and (3) imposition of a penalty under the realestate transfer tax for the premature transfer of forest land.The taxpayer purchased the subject property, consisting of47.7 acres of forest land, in April 2008. The town assessorgranted the taxpayer a forestry exemption pursuant to acertification by a certified forester. In 2009, the taxpayerpurchased a used prefabricated structure—the taxpayerreferred to it as a tool shed, while the assessor referred to itas a cabin.69 In March 2010, the assessor investigated theinstallation of the shed and determined that the shed, alongwith two acres of land surrounding it, should be reclassifiedas a building lot not eligible for the forest exemption. As aresult, the assessor increased the taxpayer’s assessed valueof the entire property and imposed a transfer tax penalty forthe premature disposal of forest land. The court determinedthat the structure was not a residence, and, as a result, theassessor did not have the authority to terminate the forestryclassification of the two acres. Therefore, the court enteredjudgment in favor of the taxpayer.

In Cornelius v. Rosario,70 the plaintiff appealed from thetrial court’s granting of summary judgment in favor of thedefendants, the city of Hartford and its former tax collector.The plaintiff had previously filed suit to quiet title and nul-lify a tax sale, claiming that the property, which he had pur-chased, was illegally seized and sold without notice of the taxsale. The plaintiff, a real estate investor, purchased theproperty from an investment company but failed to recordthe deed. Furthermore, the plaintiff also failed to pay taxeson the property. After filing tax liens against the property,the defendants executed a tax levy and sold the property ata tax sale. The defendants attempted to provide notice of the


68 No. CV 11-6011314 S, 2012 Conn. Super. LEXIS 2678 (Conn. Super. Ct.Oct. 26, 2012).

69 According to the facts, the structure had no running water, electricity, orseptic system.

70 138 Conn. App. 1, 51 A.3d 1144 (2012).

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tax sale to the preceding owner, the preceding owner’s coun-sel, and a lienholder. The defendants did not provide noticeto the plaintiff, who was the actual owner of the property.Furthermore, the defendants never provided notice of the taxsale to the preceding owner, because the certified mail wasreturned as undeliverable and not able to be forwarded.

After the Superior Court rejected each of the plaintiff’sarguments, he raised those same claims on appeal. Theplaintiff claimed that (1) he had standing to challenge theadequacy of the notice; (2) the defendants failed to satisfythe notice requirement of General Statutes Section 12-157;(3) the defendants did not satisfy due process in its attemptsto notify the plaintiff’s predecessor in interest of the taxsale; (4) the defendants were obligated to provide the plain-tiff notice, given his interest in the property; and (5) thecourt erred in not allowing the plaintiff to testify at the sum-mary judgment hearing. The Appellate Court held that theplaintiff did have standing to challenge the adequacy ofnotice but ruled against him on his other claims and upheldthe lower court ruling. In ruling for the plaintiff on this oneissue, the court relied upon a related statute, GeneralStatutes Section 12-159, which provided that a person maycontest the validity of a tax sale by showing that notice wasnot properly provided to the plaintiff’s predecessor in title.Therefore, the plaintiff was “within the zone of interestsmeant to be protected” by the statute and had statutorystanding to contest the adequacy of notice. The court, how-ever, ruled against the plaintiff on the remaining counts,ultimately holding that defendants acted reasonably (i.e.,sent notice to titleholder’s address, to its agent of service, itsattorneys, performed additional searches, posted notice atcity hall and the newspaper), that the plaintiff erred in hisfailure to file the deed, and that the plaintiff’s unfamiliaritywith court procedure led to his inability to file documentaryevidence that would have aided his case.

In Stratford v. Ross & Roberts, Inc.,71 the plaintiff townsought to foreclose a tax lien and moved to strike the defen-


71 No. CV 11-6016716 S, 2012 Conn. Super. LEXIS 2045 (Conn. Super. Ct.Aug. 9, 2012).

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dant’s special defense because “a wrongful assessment claimis not a valid special defense in an action by a municipalityto collect taxes.”72 The taxpayer countered that the use of aspecial defense was valid and proper, citing to Practice BookSection 10-70.73 In support of its argument to strike thespecial defense, Stratford relied on a 1985 Supreme Courtcase74 that a wrongful assessment claim is not a valid spe-cial defense in an action by a municipality to collect taxes.The court found the holding in Hartford inapposite due todifferent claims and procedural postures between the twomatters. The court highlighted that the taxpayer inHartford first failed to exhaust its statutory remedies andthat the Hartford case involved a collection action, not aforeclosure action. Finding the language of the PracticeBook cited by the taxpayer convincing, the court held thatthe taxpayer’s use of the special defense was proper anddenied the municipality’s motion to strike.

E. Miscellaneous Taxes

There were no relevant decisions dealing with any mis-cellaneous taxes in 2012.


72 Citing the Connecticut Supreme Court case of Petterson v. Weinstock, 106Conn. 436, 441, 138 A. 433 (1927), the court noted that the traditional specialdefenses available in a foreclosure action are “payment, discharge, release, satis-faction, and invalidity of a lien.”

73 Practice Book § 10-70(b) relates to foreclosures of municipal liens and pro-vides in relevant part: “Any claimed informality, irregularity or invalidity in theassessment or attempted collection of the tax, or in the lien filed, shall be a matterof affirmative defense to be alleged and proved by the defendant.”

74 Hartford v. Faith Center, Inc. 196 Conn. 487, 493 A.2d 883 (1985).

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Contents

2012 Connecticut Appellate Review 1By Wesley W. Horton and Kenneth J. Bartschi

Tort Developments in 2012 28By James E. Wildes

2012 Connecticut Tax Law Developments 73By Felicia S. Hoeniger and Scott E. Sebastian

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