Successful Appellate Advocacy in Connecticut and Nationwide
The Appellate Unit of our Litigation Department is dedicated to providing high-level legal analysis and innovative arguments in both prosecuting and defending appeals. We understand that successful appellate advocacy requires keen, analytical minds, persuasive writing and effective oratory. Our attorneys focus all of these skills and their extensive appellate experience in developing individual appellate strategies that meet the particular demands of each unique case.
Hartford and Stamford Lawyers Representing Clients in the Court of Appeals and All Superior Courts
Whether a lawyer is appealing a criminal verdict or defending an appeal of a business dispute, appellate advocacy is a specialized skill. It requires an effective union of strategy, efficient research, persuasive writing and decisive oratory. Long known for its trial advocacy, Rome McGuigan has carefully grown its Appellate Unit to effectively complement its trial advocacy capabilities.
It is imperative to understand that hiring a lawyer to handle your initial case is not the same as seeking out an appellate lawyer to represent your interests before the court of appeals or other appellate courts in Connecticut as well as throughout the nation. Your lawyer should have significant proven experience to demonstrate that he or she can effectively represent clients in complex appeals.
Rome McGuigan lawyers have litigated appeals in the following areas:
- Contract Law
- Family Law
- Insurance Coverage
- First-Amendment Rights
- Indian Law
- Victims' Rights
- Criminal Law
SUPREME COURT UPDATES
The Connecticut Supreme Court today released its decision in J.E. Robert Company, Inc. v. Signature Properties, LLC. The appeal arose out of a foreclosure action. Signature Properties executed a promissory note in the amount of $8.8 million payable to JP Morgan Chase Bank. The note was a conditional nonrecourse instrument under which Signature's liability for breach was limited to the mortgaged property, unless it breached either of two specified sections of the agreement. The loan was secured by a mortgage and security interest on Signature's commercial property in New London. Signature's main tenant was General Dynamics Electric Boat. JP Morgan later assigned Signature's note to LaSalle Bank. The same day, a pooling and servicing agreement was executed that made J.E. Robert a special servicer for numerous mortgage loans, including the Signature loan. Subsequently, Signature stopped making payments on the loan and J.E. Robert brought a foreclosure action. LaSalle then assigned the note to Shaw's New London, LLC. The following day, J.E. Robert moved to substitute Shaw's as the plaintiff which was granted. Shaw's then added Signature's individual members as defendants since they were guarantors on the Signature loan. The trial court granted Shaw's motion for summary judgment on the foreclosure action. It also determined that there was a breach of one of two specified sections and, therefore, recovery was not limited to the value of the property. The individual member defendants moved to dismiss, claiming that the action was void ab initio because the original plaintiff (J.E. Robert) was a mere servicer of the loan rather than the holder of the note and mortgage and, therefore, lacked standing to bring the action. The trial court denied the motion. It then entered a prejudgment remedy to attach property of the individual guarantors in the amount of $7,308,400 and rendered a judgment of strict foreclosure.
The Supreme Court concluded that the trial court had jurisdiction because J.E. Robert had standing to bring the foreclosure action as a transferee of LaSalle's right to enforce the note and mortgage. Thus, the subsequent substitution of Shaw LLC as plaintiff was also valid. The Court first acknowledged that, at common law, only the holder of the note had standing to enforce collection against the debtor. However, under the Uniform Commercial Code, the right to enforce an instrument is not limited to the holder of the instrument. The right to enforce also applies to individuals who have acquired rights from the holder. There is no Connecticut case law on the issue of whether a loan servicer may qualify as a nonholder transferee under the UCC entitled to enforce the note it services. After looking to cases from other jurisdictions, the Court concludes that a loan servicer who is entitled to receive money and administer a loan under a pooling agreement does not need to be the owner of holder of the note in order to institute a foreclosure action against the debtor. It concluded that the pooling agreement evinced an intent by LaSalle to transfer its right to enforce the note to J.E. Robert, along with the authority to institute foreclosure proceedings. To reach this conclusion, the Court overruled its prior statement in RMS Residential Properties that suggested that proof that someone other than the party seeking to foreclose as the owner of the note required a dismissal a foreclosure action for lack of standing (though not mentioned in the opinion, this rule has been applied in a number of Appellate Court cases and is an issue that often appears on the Appellate Court's motions calendar). The trial court's decision was affirmed.
(Note: The opinion was authored by Justice McDonald. It marks his first decision since joining the Supreme Court in February.)
The Connecticut Supreme Court today released its decision in Blonski v. Metropolitan District Commission in which it affirmed a $2.9 million verdict in favor of a bicyclist injured at the West Hartford reservoir. The plaintiff was injured when she rode her bicycle into a pipe gate. The MDC claimed that it was entitled to governmental immunity because maintenance of the gate was a discretionary function. The plaintiff claimed that the MDC's conduct was connected to a proprietary function, which is a statutory exception to the governmental immunity rule. In an opinion authored by the Chief Justice, the Court concluded that the MDC's operation of the water utility was for corporate profit and that the gate was related to that function because its purpose was to protect the water supply. The MDC also claimed that it was protected by the recreational land use act which grants immunity to private persons who make their land open to the public for recreational use. The Court rejected this argument, concluding that the statute only shields private persons from liability and does not apply to governmental entities.
The Connecticut Supreme Court today released its decision (5-1) in Doe v. St. Francis Hospital (the Dr. Reardon sexually abuse case). The appeal arises from a lawsuit brought by the plaintiff who was a victim of Dr. Reardon's sexual abuse when the victim participated in a human growth study as a child. The plaintiff sued the hospital on a theory of negligent supervision. The jury found in favor of the plaintiff and awarded $2.7 million.
The majority (Palmer, J.) rejected the hospital's claim on appeal that it needed to have had prior "notice of propensity" in order to be liable. The Court analyzed the issue in terms of whether the hospital "created the risk" and cited several cases discussing the superseding criminal act doctrine. It concluded that a party can be liable for the criminal acts of a third party when the criminal act is a foreseeable consequence of the risk of harm created by the defendant. Here, the plaintiff was exposed to the defendant only because of the hospital undertook care for the children and therefore the hospital created the risk. Ultimately, the foreseeability of the criminal act was a question of fact. Since the defendant only challenged the jury instructions and not the sufficiency of the evidence, the jury's finding could not be disturbed. The dissent (Zarella, J.) analyzes the case in terms of "duty" and argues that without prior notice of propensity, the hospital did not have a duty to defend the children from Reardon.
The majority also rejected the hospital's claim that its bylaws should have dictated the standard of care. The Court explained that since the plaintiff offered expert testimony on the issue, the bylaws could not be controlling. (note: this suggests that if the plaintiff had failed to produce an expert, the hospital's bylaws might have defined the standard of care). Finally, the majority agreed with the plaintiff that the hospital had a special duty to the children given their tender age and was not shielded from liability simply because it was ignorant of Reardon's conduct. Rather, the hospital had an affirmative obligation to exercise at least a modicum of supervision over Reardon's interactions with the children.
The Connecticut Supreme Court held today that trial courts must specify the earning capacity amount on which they rely in making financial support orders. The majority opinion was authored by the Chief Justice (Eveleigh dissented joined by Vertefuille). The case arose from a motion for modification. In 2006, the couple divorced and the husband was ordered to pay $16k a month in unallocated alimony and child support. The trial court did not assign a specific monetary value to his earning capacity, but stated that his earning capacity exceeded his then current income of $789,266. In 2008, the husband filed a motion for modification based on him taking a job that paid $100,000. The trial court denied the motion and the Appellate Court affirmed, holding that the support obligation was based on earning capacity, not on earned income, and that the husband's earning capacity remained unchanged. The Supreme Court reversed. It exercised its supervisory authority to require trial courts to specify a dollar amount for a party's earning capacity when making financials support orders. (Tanzman v. Meurer).
There is a paragraph in the opinion that may impact cases outside of family law. The wife had argued that the failure of the husband to seek an articulation or clarification of its order in 2006 barred him from raising the issue in 2008. The Supreme Court rejects this argument and states that there is no time restriction for filing a motion that seeks to clarify a judgment or order.
Of particular interest to our municipal practice: The Connecticut Supreme Court held today that a town can tax a partially completed construction project. The case arose from Columbia. Columbia increased the assessment on the plaintiff's property based on an unfinished construction project. The property owner appealed to the Superior Court and the trial court entered judgment in favor of the property owner reasoning that new construction could only be assessed after a certificate of occupancy had been issued upon the completion of the construction. The Supreme Court reversed, holding that the Town could increase the assessment based on the partial construction. The Court held that the town assessor has broad authority to conduct interim assessments. (Kasica v. Town of Columbia)
The Connecticut Supreme Court released its decision today in Fireman's Fund Ins. Co. v. TD Banknorth Ins. Agency, Inc. At issue was whether an insurance policy deductible is subject to Connecticut's "make whole doctrine." That doctrine provides that an insurer may enforce its subrogation rights only after the insured has been fully compensated for its loss. The Court concludes that: (1) the "make whole doctrine" is the common law default rule in Connecticut insurance contracts; and (2) it does not apply to insurance deductibles.
The case arises from a fire at a housing development in 2005. The construction company hired an insurance agent to procure policies from Peerless and Hartford Insurance. To protect against its own negligence, the insurance agent obtained coverage from Fireman's Fund, which had a $150,000 deductible per claim. After the fire, Peerless denied coverage. The construction company asserted a claim against the insurance agent, which settled for $354,000. The insurance agent agreed to contribute its $150,000 deductible. The insurance agent and Fireman's Fund subsequently recovered $208,000 from Peerless and Hartford. Fireman's Fund then commenced an action in federal court against the insurance agent seeking a declaration that it was entitled to the full $208,000. The insurance agent counterclaimed for a declaration that it was entitled to its $150,000 deductible. The District Court ruled in favor of Fireman's Fund. On appeal to the Second Circuit, the insurance agent argued that it was entitled to recoup the $150,000 deductible under the "make whole doctrine." Fireman's claimed that the make whole doctrine does not apply to deductibles. The Second Circuit certified the question to the Connecticut Supreme Court. The Court holds that, while the make whole doctrine is the common law default rule in Connecticut, it does not apply to deductibles. It reasons that a deductible is akin to a primary layer of self-insurance and to include it in the make whole doctrine would result in a windfall for the insured.
The Connecticut Supreme Court today released its decision (6-1) in State v. AFSCME Council 4, in which it affirmed a vacatur of an arbitration award. The Department of Correction had fired correctional officer Scott Gamache after Gamache engaged in an open pattern of sexual harassment. The union filed a grievance on Gamache's behalf and the grievance was submitted to arbitration. The arbitrator issued an award that reduced Gamache's dismissal to one year suspension without pay. The State moved to vacate the arbitration award on grounds that it violated public policy against workplace sexual harassment. The trial court granted the State's motion, noting that Gamache was aware of the department's zero tolerance policy and repeatedly violated that policy. The Supreme Court affirmed the trial court's decision. The Court concluded that Gamache's conduct was so egregious that anything short of termination would violate the state's public policy against workplace sexual harassment. Justice Eveleigh issued a sole dissent, opining that the strong public policy favoring arbitration should have required deference to the arbitrator's decision that a one year suspension was warranted.
Criminal Law: Postconviction Petitions for DNA Testing
The Connecticut Supreme Court today issued its decision in State v. Dupigney in which it affirmed the denial of the petitioner's request for DNA testing. Dupigney is serving a sentence for murder resulting from a shooting over a drug operation in New Haven. Dupigney was convicted of murder after a jury trial and, subsequent to his conviction, petitioned the court for testing of a knit hat found at the murder scene. The trial court denied the petition, concluding that the petitioner had not shown that there was a reasonable probability that he would not have been prosecuted or convicted if the hat had been tested. The Supreme Court affirmed. The Court concludes that the evidence at trial which included three eyewitnesses was so overwhelming, that even if the hat were tested and contained someone else's DNA it would not affect the reliability of the conviction.
Criminal Law: Right to Cross-Examine Victim; Impeachment
The Connecticut Supreme Court today released its decision in State v. Annulli, which presented a question of whether a defendant in a sexual assault case was deprived of a constitutional right to cross-examine the victim about prior untruthful statements to the police. At trial, defense counsel attempted to question the victim about an unrelated incident in which she allegedly lied to the police about being threatened by a classmate and altered e-mail evidence. The trial court precluded the inquiry because it was not clear that the victim had in fact lied as alleged and therefore excluded it on relevance grounds. The trial court reasoned that the line of questioning presented a collateral issue and created a risk of jury confusion. The Supreme Court affirmed. The opinion explains that extrinsic evidence is not admissible for impeachment on collateral matters and that the trial court was correct to avoid a trial within a trial. Having concluded that the trial court's decision did not violate the rules of evidence, the Court declined to consider the defendant's constitutional claim.
Criminal Law: Miranda Rights; DUI
The Connecticut Supreme Court today released its decision in State v. Brown, which presented a question of whether a defendant's post-Miranda silence was admissible against him at trial. The defendant here was convicted of a DUI violation. At trial, the prosecutor introduced into evidence the A-44 form from the arresting officer. An A-44 form is a preprinted form that the police use to report an arrest related to operating a motor vehicle under the influence. The officer noted on the form that the defendant refused to answer the questions of how much he had drunk, where he had drunk, when he last had eaten and what he had eaten. The trial court rejected the defendant's objection that the A-44 report violated his right to confrontation under Crawford v. Washington. The officer testified at trial that he had advised the defendant of his Miranda rights. On cross-examination, the arresting officer was asked whether the defendant was cooperative. The officer responded in the affirmative. On redirect, he testified that the defendant refused to answer questions about how much had drunk. On appeal, the defendant argued that the trial court violated his due process rights by admitting evidence of his refusal to answer certain questions posed by the arresting officer after he was advised of his Miranda rights. The Supreme Court affirmed the conviction. It concluded that by asking on cross-examination whether the defendant was cooperative, the defendant opened the door to introducing evidence of his post-Miranda silence. Because the Court concluded that the defendant's claim failed on evidentiary grounds, it declined to reach the defendant's constitutional claims.
Child Custody: Family Relations
The Connecticut Supreme Court today decided a public interest appeal in Barros v. Barros. At issue was whether a parent must be permitted to have his counsel present at a child custody evaluation. The Supreme Court concluded that a parent does not have a constitutional right to counsel at the evaluation. After the parties were divorced, a disagreement arose concerning the custody and visitation of their minor child. The trial court referred the matter to the Family Relations Office of the Court Support Services Division of the Judicial Branch. The defendant's attorney sought permission from the family relations office to attend the parties' initial interview, but permission was denied in accordance with that office's practice and policy of excluding counsel from custody evaluations. The matter was brought before the trial court, which explained that the family relations evaluation process is voluntary and that the only way for a party to participate in that process is to do so without an attorney. The defendant filed an application with the Chief Justice for certification to bring a public interest appeal pursuant to General Statutes § 52-265a, which was granted. The Court conducts a Mathews v. Eldridge analysis to determine whether the trial court's denial of the defendant's motion to complete the family relations evaluation with counsel present violated procedural due process. The first prong of the test requires that some private interest is affected by state action and the Court agrees that the defendant has a private interest in custody of his child. The second prong required evaluation of the risk of erroneous deprivation of that interest. The Court concludes that the risk is minimal because the parties have an opportunity to meet with counsel prior to the child custody evaluation, the reliance on the evaluation is discretionary with the court and only one source to be considered, and the family relations officer is neural. The third prong is the balancing test of risk of deprivation of a private interest with the government's interest in existing procedures. The Court concludes that the government's interests in excluding counsel furthers unobstructed information seeking which is in the child's best interest and that outweighs any risk of an erroneous deprivation.
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