Connecticut Bar Journal
80 CBJ 99.
2005 SURVEY OF DEVELOPMENTS IN CIVIL LITIGATION
CONNECTICUT BAR JOURNAL
VOLUME 80, NO. 12005 SURVEY OF DEVELOPMENTS IN CIVIL LITIGATIONBY JACK G. STEIGELFEST*This survey collects and reports on cases of interest issued during the year 2005 discussing important issues of civil procedure and those substantive areas of civil litigation that are not dealt with in the annual review of tort cases.
A significant number of decisions of the Connecticut Supreme Court in the year 2005 limited and defined the jurisdiction of the courts. Several decisions turned on the standing of the plaintiff to bring an action. Additional cases addressed the continuing jurisdiction of the courts and others further defined the scope of the court's authority in attorney ethics matters.
Two cases address the existence of jurisdiction in cases involving plaintiffs who lack the legal capacity to bring an action. In Carrubba v. Moskowitz,(fn1) the Supreme Court held that a father has no standing to bring an action as the best friend of a child whose interests were adverse. The Court therefore held that no jurisdiction existed. By contrast, in Lesnewski v. Redvers,(fn2) the Supreme Court found the existence of jurisdiction over an action brought by an incompetent person without the aid of a guardian or best friend where necessary to vindicate the person's rights and the person's attorney can fulfill the role of next friend or guardian. The Court interpreted the lack of a plaintiff with legal competence to sue as an amendable irregularity in this limited circumstance. These cases suggest that a determination of jurisdiction over actions by or on behalf of those without legal capacity to sue requires a substantive inquiry into the circum-
* Of the Hartford Bar.
stances of the particular case.
Other cases demonstrate a vigorous application of the requirement of standing to pursue litigation. In CT State Medical Society v. Oxford Health Plans (CT), Inc.,(fn3) the Supreme Court held that the plaintiff organization's interest in the defendant's alleged failure to make timely and complete payments to the plaintiff's members was indirect and derivative, and therefore could not meet the requirements of classical aggrievement. In Lewis v. Planning & Zonning Comm'n,(fn4) the Supreme Court reiterated the rule that General Statutes Section 22a-16 does not create statutory aggrievement to bring an action based on the validity or necessity of a permit for conduct affecting the environment. By comparison, in Ventres v. Goodspeed Airport, LLC,(fn5) the Supreme Court found standing where the claim focused on the substance of what the alleged polluter did, rather than the failure to obtain a permit. Absent proof of a direct effect on his taxes, a former taxpayer was held to lack standing to challenge the constitutionality of the funding formula for regional school districts to allocate costs among member towns in Seymour v. Region One Board of Education.(fn6) In Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc.,(fn7) the Supreme Court analyzed the existence of a private right of action under the Liquor Control Act as a question of standing and statutory aggrievement by way of motion to dismiss, rather than as a question of legal sufficiency. The Court eventually held there was no private cause of action, but that a violation of the Act could be used to support a cause of action under CUTPA.
Although a criminal case, State v. Perez(fn8) addresses the extent to which a court can criticize a lawyer representing a party in the matter before it. The Supreme Court held that a statement by a court that an attorney for one of the parties had violated the Rules of Professional Conduct was a disciplinary sanction tantamount to a reprimand, and could not be made
4 275 Conn. 383, 880 A.2d 865 (2005).
without first providing the attorney with the minimal requirements of due process, including notice and an opportunity to be heard. Mere criticism that does not amount to a finding is permissible. Also relevant to attorney ethics, in Statewide Grievance Committee v. Burton,(fn9) the Supreme Court has granted certification to review the Appellate Court's holding that proceedings to discipline a lawyer who was already disbarred were not moot where the outcome could be relevant to a future application for reinstatement.
Three cases addressed the continuing jurisdiction of the courts despite the statute and rule preventing reopening of judgments after four months.(fn10) In Rosado v. Bridgeport Roman Catholic Diocesan Corp.,(fn11) the Supreme Court held that the superior court retains continuing jurisdiction over protective orders sealing documents. The Court ordered the trial court's substantive decision requiring production of many of the protected documents be vacated, however, because it was issued during the automatic stay period under Practice Book Section 61-11(a), where the trial court's order opening a new file effectively restored the withdrawn cases to the docket, a final judgment from which an appeal had been filed. The Court also held that the newspapers were properly granted permissive intervention to challenge the protective orders. In Rocque v. Light Services,Inc.,(fn12)the Supreme Court upheld the continuing jurisdiction of the superior court to clarify a judgment and enforce it by imposing penalties. The Court in Weinstein v. Weinstein,(fn13) in ruling on the scope of disclosure obligations in a dissolution action, made the passing observation that the four month period did not bar its consideration of the plaintiff's claim that the judgment had been obtained by fraud.
In Lapointe v. Board of Education,(fn14) the Supreme Court held that the political question doctrine, under which respect for coordinate branches of government render certain internal
10 CONN. GEN. STAT. §52-212a; PRACTICE BOOK § 17-4.
11 276 Conn. 168, 884A.2d 981 (2005).
13 275 Conn. 671, 678 n.5, 882A.2d 53(2005).
actions of those branches nonjusticiable, is inapplicable to a local board of education. The Court directed the issuance of writs of quo warranto and mandamus to restore the board chairperson to his position after finding that he had been wrongfully removed.
In Kozlowski v. Comm 'r of Transportation (fn15) McIntosh v. Sullivan,(fn16) and Filippi v. Sullivan,(fn17) the Supreme Court observed that the question of whether a claim against the State fell under the defective highway statute or is barred by sovereign immunity implicates the Court's subject matter jurisdiction.(fn18) In Peters v. Department of Social Services,(fn19) the Supreme Court found a lack of jurisdiction to review the refusal of the Department to compromise a lien on an injured plaintiff's recovery. Finally, in Larobina v. McDonald,(fn20) the Supreme Court used the ripeness and prior pending action doctrines to uphold summary judgment defeating claims that the defendants were wrongfully litigating an earlier filed action. The Court observed that the trial court in the earlier action has authority to enter appropriate sanction in response to any dilatory, bad faith and harassing litigation conduct.(fn21)
Pleadings and Pre-trial Procedure
Despite the general rules that a motion to dismiss should be used to address jurisdiction, a motion to strike to address legal sufficiency, and a motion for summary judgment to determine if there is a genuine issues of material fact in dispute for trial,(fn22) the Supreme Court permitted deviation from this procedural scheme where there is no prejudice to the
18 Accord, 184 Windsor Ave, LLC v. State, 274 Conn. 302, 874 A.2d 498 (2005)(no subject matter jurisdiction where State immune from claim for breach of lease); First Union Nat'l Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 869 A.2d 1193 (2005)(no subject matter jurisdiction where State immune from foreclosure).