Appellate Court Notes - Week of April 21

by Pullman & Comley, LLC

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

Posted April 21, 2014

Foreman for a plumbing contractor sued the company claiming he was entitled to overtime for traveling to job sites all over the state as he had to do so in a company provided vehicle and on occasion had to carry company tools to the job sites, or stop and pick them up on the way, and wash down the truck at home.  The majority of the Court concluded that Department of Labor Regulation 31-60-10 does not allow for compensation for an employee’s regular commute to work even if a company vehicle is provided (so long as it’s not a large truck, like a cement mixer), but in any event, the regulation is not time tested and is trumped by the FSLA which does not require compensation to the employee so long as the company’s burden imposed upon the employee’s commute is minimal.  An employee’s time, preliminary and postliminary to work is not compensable.  The concurrence agreed that the State regulation was not time tested and further agreed with the result …..but disagreed that FLSA trumps the State regulation….. and could envision that regulation offering greater benefits to employees than FLSA.

  • AC35474 - Snyder v. Gladeview Health Care Center

Company emailed proposed w.c. settlement to employee and asked her to sign it.  She did and her lawyer scheduled a workers comp. hearing to confirm the agreement but she died before the hearing.  The company had never signed its agreement and showed up at the hearing and withdrew its offer and refused to allow a consent decree to enter.  In a twist on the Audubon Rule applicable to civil cases, this decision held the w.c. commissioner had a right to reject the settlement and refuse to enforce it.  No workers compensation order, even if agreed upon by the parties, is binding until approved by the commissioner.

  • AC35736 - Disciplinary Counsel v. Snaider

After admitting the theft of client funds, the defendant’s law license was suspended. He then had two more presentments but resigned his license and claimed the court no longer had jurisdiction over him to continue with disciplinary proceedings once it had accepted his resignation.  The trial court disagreed and said it had the right to decide if the lawyer could ever reapply for readmission.   The trial court eventually held he could not reapply for at least 12 years.  This decision agreed with the trial court and said an attorney’s resignation from the bar does not foreclose the imposition of discipline after an adjudication of the presentment.  This is within the inherent power of the courts to regulate attorneys (see the Nancy Burton decision they say) and contemplated by the Practice Book rules.   This decision also held that it is the crime, not the age of the attorney that must be the focus in determining the length of suspension.  Thus it did not matter that the attorney here was 75.  What mattered was that he embezzled almost $1mm from two clients.  Thus a suspension of not less than 12 years was more than justified….even if it becomes a disbarment for life as a practical matter when CT does not recognize such a punishment.

Employee alleged that company was trying to get rid of its older employees when she and others were put on a “work improvement schedule” that could result in termination after a specific date.  Not waiting for the outcome of a CHRO complaint or even to being fired, the employee sued, claiming age discrimination under FEPA.  The trial court properly relied upon existing federal precedent that such actions do not rise to the level of an adverse employment action and struck the complaint in its entirety.

An alleged oral modification of a mortgage loan in excess of $50,000 will not act as a defense to a foreclosure as an oral agreement would not comply with the Statue of Frauds.  The concurrence did not like the ongoing practice of pursuing “interlocutory summary judgment motions to determine liability alone” commonly be used in foreclosures nowadays when defenses have been asserted.

  • AC35559 - JPMorgan Chase Bank, N.A. v. Georgitseas

Appellate Court refused to consider claim that trial court should not have allowed the use of a 120 day old “drive-by” appraisal by the plaintiff in this foreclosure action as he did not raise the claim before the trial court below.

The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.  

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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