68 CBJ 1. 1993 Connecticut Appellate Review.

• Author: By WESLEY W. HORTON AND SUSAN M. CORNUER (fn*)

Connecticut Bar Journal

Volume 68.

68 CBJ 1.

1993 Connecticut Appellate Review

11993 Connecticut Appellate ReviewBy WESLEY W. HORTON AND SUSAN M. CORNUER (fn*)If 1992 was the year of the Berdon, (fn1) 1993 was the year of the Borden. While personalities (new and young justices Norcott, Katz and Palmer; who gets custody of Baby Girl B?) grabbed the headlines, and while quite a number of important state constitutional opinions were issued (mostly written by Chief Justice Peters), what the authors find most interesting about 1993 is how David Borden has so ably picked up the procedural reins left since David Shea retired from the Supreme Court in 1992.

The year began with In re Baby Girl B, (fn2) a highly publicized parental rights case. The press cared not a whit for the complicated legal issues. The issue on which the case turned was whether the state had waived the jurisdictional bar to reopening a judgment on a motion filed over four months later. After the trial court had (erroneously, as it turned out) denied the state's timely objection to the natural mother's untimely motion to open, the state amended its petition for termination of paternal rights by adding two new grounds for termination without at the same time expressly reserving its jurisdictional objection. The 3-2 majority led by Chief Justice Peters held that the jurisdictional objection was thereby waived. (fn3) justice Borden, in his irrefutable dissent, parsed each of the cases relied on by the majority and showed that there is no basis in the precedents for the majority's waiver theory. Rather, both the cases and the Practice Book show that a jurisdictional objection once made and ruled on does not have to continue being made to preserve it. (fn4) The majority's sweeping language is certainly not confined to custody disputes; it will slow down trial court proceedings and set traps for the unwary (as it did in this very case). Justice Borden's sure grasp of procedure should have carried the day.

2Borden battled Peters again in Curry v. Burns, (fn5) this time, fortunately, with success. In Curry, Borden for a 4-1 majority overruled Finley v. Aetna Casualty & Surety Co., (fn6)in which Peters had reversed Borden's Appellate Court opinion concerning the general verdict rule. (fn7)

Curry was a highway defect case. The issue was whether the adequacy of the plaintiff's notice and the defendant's breach of duty were two separate issues for the purpose of the general verdict rule. If so, the appeal would be lost (as in Finley), because the plaintiff was only claiming error as to the notice issue, and no interrogatories had been submitted to the jury to determine whether they held for the defendant on the notice issue, the breach issue or both.

The key to Borden's opinion is that Peters had quoted a critical prior authority by inserting ellipses in place of significant language that pointed toward a contrary result in Finley. (fn8) He also pointed out that Finley eliminated the degree of certainty that was necessary so that lawyers and trial Judges would know with some confidence when it applied (fn9) His practical approach to a difficult problem, plus his careful analysis of all the important general verdict precedents (starting in 1817), should commend itself to all who labor in the jury vineyards.

In dissent once again, Borden eviscerated a majority opinion by justice Santaniello in Cahn v. Cahn. (fn10) His dissent starts with the sentence, "I confess that it is difficult for me to follow the reasoning of the majority opinion." The authors of this article confess the same thing.

Cahn concerned a mid-trial notice of deposition of a medical witness in a dissolution of marriage case. Notice was given eleven days before the scheduled deposition; the opponent filed a motion for protective order two days before the deposition and then did not show up to cross examine the deponent. The court

3sustained an objection to admitting the deposition testimony. The objection was on the ground that the party filing the notice should have filed it earlier to allow the motion for protective order to be heard. The majority accepted this reasoning. But as Borden stated, eleven days is plenty of time for notice of a deposition; why is it the noticing party's burden to arrange for the trial court to hear an opponent's motion for protective order? (fn11)

"Eviscerate" is also not too strong a word for what Borden did in his dissent to Berdon's majority opinion in Cato v. Cato. (fn12) The issue was whether in a dissolution of marriage case out-of-state service of process can be made upon the defendant without a Superior Court order of notice. The majority wrote basically a result-oriented opinion (the defendant did have actual notice, after all). As Borden pointed out (with Callahan's support), this was a statutory construction case, and the majority's opinion mangled the wording of the statute (§ 46b-46(a)) and the prior cases construing that statute.

As in Baby Girl B and Cahn, the majority opinion in Cato will come back to haunt us in areas far removed from family law. Borden in Cato sounded an unheard warning. Fortunately the warning was heard in Curry.

Borden wrote for a unanimous court in Morelli v. Manpower, Inc., (fn13) holding that a denial of a motion to open a § 251 dismissal is appealable, thus overruling Governors Grove...