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Attorney Roberson attends 2016 Federal Tax Institute of New England

On Friday, November 18, 2016 Attorney Dale C. Roberson attended the Connecticut Bar Association’s 2016 Federal Tax Institute of New England. This educational event included national speakers presenting on cutting edge tax and estate planning issues, affecting individuals and businesses.

Topics included:

Modern Uses of Partnerships in Estate Planning;
Choosing Wisely Among Charitable Income Plans;
Connecticut Income Tax and Estate Tax Domicile and Residency Audits;
Annual Taxable Gifts, and Business Succession Planning;
Fiduciary Income Tax.

Attorney Roberson has practiced law in Connecticut for more than 30 years, most of that serving individuals and businesses in Hartford and Tolland counties.  Attorney Roberson’s practice is focused on estate planning, elder law, bankruptcy, civil litigation, and a wide range of legal matters.

He can be reached at (860) 872-3000, or by email:  [email protected]

UPDATE TO THE TOLLAND JUDICIAL DISTRICT FAMILY SHORT CALENDAR PROCEDURES

UPDATE:  August 26, 2016:

The Family Short Calendar procedure at the Tolland Judicial District, 69 Brooklyn Street, Rockville, has changed effective October 3, 2016.  All matters that appear on this calendar are deemed ready.  Ready markings are no longer required. A marking is only necessary if the party who filed the motion wishes the matter to be marked off.  If the party who filed the motion does not appear, the court may deem oral argument waived and the motion may be denied by the court.  If the party who did not file the motion does not appear, the court may deem oral argument waived and may grant the relief requested in the motion.  The Family Short Calendar in the Tolland Judicial District, will be called at 9:30 a.m.

Connecticut Law Tribune Reports on 2015 Jury Verdicts and Settlements

As reported by the Connecticut Law Tribune, the highest plaintiff’s verdict in Connecticut in year 2015 was $6.3 million, reached in the case of Peter Kantorowski, co-administrator for the estate of Dwayne Kantorowski vs. St. Vincent’s Medical Center.  This was a medical malpractice case in which a jury found that the emergency room doctor, and the primary care doctor, for a patient who died of a heart attack, were each 50% at fault for the patient’s death.

The highest settlement in Connecticut for year 2015 is reported to be the case of Mary Esposito vs. Shawn Osinski, et al.  In this case a lawsuit was filed by the mother of a motorcyclist killed by an alleged drunk driver.

A plaintiff in Connecticut may seek both economic, and non-economic damages.

“Economic damages are defined as compensation determined by the trier of fact for pecuniary losses … [including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages] …”

“Noneconomic damages are defined as compensation determined by the trier of fact for all non-pecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering …” (Emphasis added.)   Citation:  Deas v. Diaz, 121 Conn.App. 826, 838, 988 A.2d 200 (2010).

The list of “Top Connecticut Verdicts & Settlements of 2015” is available here: https://www.evergreeneditions.com/publication/index.php?i=303407&m=28958&l=1&p=4&pre=#{“page”:8,”issue_id”:314875}

How to Hire a Contractor

We litigate disputes between homeowners and home improvement contractors.   For tips on how to hire a contractor, watch general contractor Tom Silva’s video here:
https://www.thisoldhouse.com/toh/video/0,,20672091,00.html

Do a simple background check on your proposed contractor.
License Lookup:  https://www.elicense.ct.gov/Lookup/LicenseLookup.aspx
Civil litigation case lookup:  https://civilinquiry.jud.ct.gov/PartySearch.aspx

In Connecticut always make sure your contractor’s written agreement complies with the Connecticut Home Improvement Act. For more details, see:
https://www.marder-law.com/2016/02/contractors-the-connecticut-home-improvement-act/

 

Husband’s digital voice activated audio recording of Wife, precluded from evidence.

Was the Audio Recording Obtained Illegally? Is it Admissible?

Litigants, including parties to a divorce, often ask if they can record a party or witness, in a dispute.  The recording will not be admissible in a Connecticut court, if it is obtained illegally.  Connecticut General Statute §52-184a provides:  “No evidence obtained illegally by the use of any electronic device is admissible in any court of this state.” Unauthorized access to a “computer system” is also a crime in Connecticut, and therefore could be precluded.  See CGS 53a-251.  The prohibition on use of illegally obtained recordings in court (i.e. trials or hearings), has been extended to their use at depositions.

In Simonson vs. Simonson, FA15-6025703, the Court precluded the use of an audio recording. The husband recorded his wife’s telephone conversation by placing a recording device behind the driver’s side seat of a truck, that the husband owned.  When the Wife spoke to a non-party on the telephone, her voice (but not the voice of the non-party) was secretly recorded.  The husband’s attorney attempted to play the recording during a deposition, but he was precluded from doing so, and the recording was further precluded from being used at trial.

A different result may have been obtained, if the recording was not a telephone conversation, and if at least one party to the conversation consented to the recording.  Connecticut judges frequently admit into evidence, recordings made by a spouse of the other spouse, when the recording spouse was present and a party, to the recorded conversation.

“Eavesdropping” in Connecticut is a Class D felony, punishable by a prison term of one to five years, and a fine of up to $5,000.  However civil / family court judges may exclude illegally obtained evidence, even if a person is not arrested or convicted of a crime.

A person commits the crime of eavesdropping “when he unlawfully engages in wiretapping or mechanical overhearing of a conversation”.

General Statutes §52-187(a) provides:

“Wiretapping” means the intentional overhearing or recording of a telephonic or telegraphic communication or a communication made by cellular radio telephone by a person other than a sender or receiver thereof, without the consent of either the sender or receiver, by means of any instrument, device or equipment. The normal operation of a telephone or telegraph corporation and the normal use of the services and facilities furnished by such corporation pursuant to its tariffs shall not be deemed “wiretapping”. (2) “Mechanical overhearing of a conversation” means the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment. (3) “Unlawfully” means not specifically authorized by law. For purposes of this section, “cellular radio telephone” means a wireless telephone authorized by the Federal Communications Commission to operate in the frequency bandwidth reserved for cellular radio telephones.

General Statutes §52-570(d)(a) provides:

No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording, or (2) is preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device which automatically produces a distinct signal that is repeated at intervals of approximately fifteen seconds during the communication while such instrument, device or equipment is in use.

Committing a “computer crime” can also result in preclusion of evidence.  See C.G.S. §53a-251(b) (“unauthorized access to a computer system”):

(1) A person is guilty of the computer crime of unauthorized access to a computer system when, knowing that he is not authorized to do so, he accesses or causes to be accessed any computer system without authorization.

(2) It shall be an affirmative defense to a prosecution for unauthorized access to a computer system that: (A) The person reasonably believed that the owner of the computer system, or a person empowered to license access thereto, had authorized him to access; (B) the person reasonably believed that the owner of the computer system, or a person empowered to license access thereto, would have authorized him to access without payment of any consideration; or (C) the person reasonably could not have known that his access was unauthorized.

The Memorandum of Decision in the Simonson case is available here:

https://docs.google.com/a/joeldefelice.com/viewer?a=v&pid=sites&srcid=am9lbGRlZmVsaWNlLmNvbXx3d3d8Z3g6M2FmMDZhNTU1MDZjNTA1OQ

Increase in income, standing alone, does not justify modifying alimony

Parties to a divorce judgment agreed on an alimony award of $15,000. per month plus 25 percent of any bonus income.  Approximately 10 years later, the former wife / recipient of alimony, sought to increase alimony based on two grounds: i) the former husband’s income increased, and ii) her own medical costs increased.

The trial judge increased the alimony award from $15,000 to $40,000 per month, plus 25 percent of any bonus income received.  (The trial court’s decision was not based on increased medical costs, but it was based on an increase in the paying spouse’s income.)  The trial court did not address the issue of whether “exceptional circumstances” justified the increase.

The decision was appealed. The Connecticut Supreme Court concluded that an increase in the supporting spouse’s income, standing alone, ordinarily will not justify the granting of a motion to modify an alimony award.

The case is Dan vs. Dan, 315 Conn. 1 (2014), and it is available here:
https://www.jud.ct.gov/external/supapp/Cases/AROCR/CR315/315CR103.pdf

 

 

This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

The U.S. Supreme Court weighs in on Stun-Gun Carry Ban

In Massachusetts, a law prohibits the possession of stun guns.  The Supreme Judicial Court of Massachusetts upheld that law, when a woman convicted of violating the law challenged it on constitutional grounds.  On March 21, 2016, the United States Supreme Court issued a two page decision, which vacates the judgment of the Massachusetts Court.  However, it is a separate concurring opinion of Justice Samuel Alito (with whom Justice Clarence Thomas joins), which provides us with these details:

After a “bad altercation” with an abusive boyfriend put
her in the hospital, Jaime Caetano found herself homeless
and “in fear for [her] life.” Tr. 31, 38 (July 10, 2013). She
obtained multiple restraining orders against her abuser,
but they proved futile. So when a friend offered her a stun
gun “for self-defense against [her] former boy friend,” 470
Mass. 774, 776, 26 N. E. 3d 688, 690 (2015), Caetano
accepted the weapon.

It is a good thing she did. One night after leaving work,
Caetano found her ex-boyfriend “waiting for [her] outside.”
Tr. 35. He “started screaming” that she was “not gonna
[expletive deleted] work at this place” any more because
she “should be home with the kids” they had together.
Ibid. Caetano’s abuser towered over her by nearly a foot
and outweighed her by close to 100 pounds. But she didn’t
need physical strength to protect herself. She stood her
ground, displayed the stun gun, and announced: “I’m not
gonna take this anymore. . . . I don’t wanna have to [use
the stun gun on] you, but if you don’t leave me alone, I’m
gonna have to.” Id., at 35–36. The gambit worked. The
ex-boyfriend “got scared and he left [her] alone.” Id.,
at 36.

The events leading to Caetano’s prosecution occurred
sometime after the confrontation between her and her ex boyfriend.
[Police officers] arrested her for violating Mass. Gen. Laws, ch. 140, §131J,
“which bans entirely the possession of an electrical weapon,” 470
Mass., at 775, 26 N. E. 3d, at 689.1 When Caetano moved
to dismiss the charge on Second Amendment grounds, the
trial court denied the motion.

The United States Supreme Court rejected three explanations provided by the Massachusetts court, which were used to uphold the law, because those explanations contradict United States Supreme Court precedent, as follows:

1)  The Massachusetts Court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.”  The US Supreme Court stated this is inconsistent with the decision of District of Columbia v. Heller, 554 US 570 (2008), which provided a clear statement that the Second Amendment “extends … to … arms… that were not in existence at the time of the founding.”

2)  The Massachusetts Court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.”  The US Supreme Court disagreed with the reasoning, and found the reasoning was inconsistent with the Heller opinion.

3)  The Massachusetts Court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.”  The US Supreme Court disagreed again, because “Heller rejected the proposition ‘that only those weapons useful in warfare are protected.”  (citation omitted.)

For these three reasons, the US Supreme Court issued its order vacating the judgment of the Supreme Judicial Court of Massachusetts, and remanded the case “for further proceedings not inconsistent with [the US Supreme Court’s] opinion.”

In the concurring opinion Justice Alito wrote:

“A State’s most basic responsibility is to keep its people safe.  The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself.  To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life.”

Justice Alito was dismayed by the manner in which the US Supreme Court issued its decision.  He wrote:

“This Court’s grudging per curiam now sends the case back to that same [Massachusetts Supreme Judicial] court.  And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense.”  “If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.”

The Supreme Court’s per curiam opinion in Caetano v. Massachusetts, and the concurring opinion of Justice Alito and Justice Thomas, is available here:

https://www.supremecourt.gov/orders/courtorders/032116zor_h3ci.pdf

 

Last Will & Testament must be properly witnessed

In Connecticut a Last Will & Testament is not filed in any public record, until it is presented to a probate court after a person passes away.  For it to be admitted to probate as a valid will, a Last Will & Testament must be executed with certain formalities.  The proper signatures of attesting witnesses are essential to the due execution of a will.  Buck v. Robinson, 128 Conn. 376 (1941).

The proponent of the will (the person who presents the will to the Probate Court) must prove that the will’s execution was in compliance with the statute in effect at the time it was executed.

To be valid, the Will must comply strictly with the requirements of Connecticut General Statutes § 45a-251, which provides:

A will or codicil shall not be valid to pass any property unless it is in writing, subscribed by the testator and attested by two witnesses, each of them subscribing in the testator’s presence; but any will executed according to the laws of the state or country where it was executed may be admitted to probate in this state and shall be effectual to pass any property of the testator situated in this state.  [Current through the 2015 Regular and Special Sessions  § 45a-251. (Formerly Sec. 45-161). Making and execution of wills. Wills executed outside the state.]

In a recent Connecticut Appellate Court case, the court noted that Connecticut law does not recognize a “substantial compliance exception” to the strict statutory requirements.   The place for the signature of the witnesses, on the proposed will at issue in the case, was left blank.  The witnesses, if there were any, did not sign the actual will.  Affidavits by purported witnesses (the affidavits were presented separately from the will) having been presented in an effort to show “substantial compliance” were deemed insufficient under Connecticut law.  The proposed Last Will was not admitted to probate.

See:  Davis v. Davis-Henriques, Connecticut Appellate Court, No. AC 37495 (Feb. 23, 2016).

Breach of Contract Claims:  Must the Agreement be in writing?

Some agreements, but not all agreements, must be in writing, to be enforceable.  Your state’s “statute of frauds” laws might apply to the type of agreement at issue.

For example, in Connecticut agreements / contracts conveying real estate, must be in writing, per the statue of frauds.

“Any contract whose purpose is to transfer to one of the parties an interest in land for a price paid or to be paid to the other party is within the Statute [and should be in writing].”  (Citation omitted.)  Zipp v. JFC Endeavors, Inc., CV10-5014884, March 18, 2011 (Hon. Cynthia Swienton).  (Note that Connecticut has other statutory requirements, governing the number of witnesses and acknowledgments, on real estate deeds.)

Although seemingly simple, this is potentially a very confusing area of the law, and factual and legal arguments pertaining to the statute of frauds, might be made in litigation that are pivotal to the success or failure of claims.

Connecticut’s Statute of Frauds, General Statutes Section 52-550 is set forth below.

 

Connecticut Statutes

Title 52. CIVIL ACTIONS

Chapter 923. STATUTE OF FRAUDS

Current through the 2015 Second Special Session

  • 52-550. Statute of frauds; written agreement or memorandum
(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged:

(1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property;

 

(2) against any person upon any special promise to answer for the debt, default or miscarriage of another;

 

(3) upon any agreement made upon consideration of marriage;

 

(4) upon any agreement for the sale of real property or any interest in or concerning real property;

 

(5) upon any agreement that is not to be performed within one year from the making thereof; or

 

(6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.

 

(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term.

 

 

 

 

 

Contractors & the Connecticut Home Improvement Act

A Contractor who works on a residential home, but who violates the Connecticut Home Improvement Act (HIA), may lose rights to recover (collect payment) against the Homeowner, who does not pay the Contractor.

“Home improvement”, as the term is defined by the HIA “includes, but is not limited to, the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation or sandblasting of, or addition to any land or building, or that portion thereof which is used or designed to be used as a private residence…” §20-419(4).

The HIA provides for exceptions to the “home improvement” definition; certain trades may be exempt, and the HIA will not generally apply to new home construction.

Contract language, for home improvement contracts, are governed by Section 20-429(a) of the HIA.  This statute, set forth below, identifies components required to be included in a Home Improvement Contract, in order for that contract to be valid or enforceable against the Homeowner.

“[C[ompliance with the act is mandatory in order for a contractor to recover on a home improvement contract . . . Nevertheless . . . that does not mean, however, that the noncomplying contractor is not entitled to payment when the homeowner, for whose benefit the act’s prophylactic provisions were enacted, does not seek the protection of the act, and agrees that the contractor has done the work and should be paid. The act is for the benefit of the consumer, and compliance with its terms may be waived by the consumer, either explicitly or by nonassertion.” (Citations omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 410 (2001).

Disputes between Homeowners and Home Improvement Contractors are always fact-specific.  Review these facts with an attorney who is familiar with the Connecticut Home Improvement Act.

If you are a Home Improvement Contractor, discuss with your attorney if your existing contract complies with the HIA.

 

 

Connecticut Statutes

Title 20. PROFESSIONAL AND OCCUPATIONAL LICENSING, CERTIFICATION, TITLE PROTECTION AND REGISTRATION, EXAMINING BOARDS

Chapter 400. HOME IMPROVEMENT CONTRACTORS

  • 20-429. Required contract provisions. Negative option provisions prohibited. Contract considered home solicitation sale. Contractor-financed contract. Recovery of payment for work performed
a) No home improvement contract shall be valid or enforceable against an owner unless it:

(1) Is in writing,

 

(2) is signed by the owner and the contractor,

 

(3) contains the entire agreement between the owner and the contractor,

 

(4) contains the date of the transaction,

 

(5) contains the name and address of the contractor and the contractor’s registration number,

 

(6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740,

 

(7) contains a starting date and completion date,

 

(8) is entered into by a registered salesman or registered contractor, and

 

(9) includes a provision disclosing each corporation, limited liability company, partnership, sole proprietorship or other legal entity, which is or has been a home improvement contractor pursuant to the provisions of this chapter or a new home construction contractor pursuant to the provisions of chapter 399a, in which the owner or owners of the home improvement contractor are or have been a shareholder, member, partner, or owner during the previous five years. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor, except that the commissioner may, by regulation, dispense with the necessity for complying with the requirement that each change in a home improvement contract shall be in writing and signed by the owner and contractor.

 

(b) No home improvement contract shall be valid if it includes any provision obligating the owner to instruct the home improvement contractor, by a date determined by such contractor, that periodic home improvements are not to be performed unless it also includes a provision requiring the contractor to remind the owner of that obligation by means of a card or letter mailed to the owner and postmarked not earlier than twenty days, and not later than ten days, prior to such date.

 

(c) The contractor shall provide and deliver to the owner, without charge, a completed copy of the home improvement contract at the time such contract is executed.

 

(d) The commissioner may, by regulation, require the inclusion of additional contractual provisions.

 

(e) Each home improvement contract entered into shall be considered a home solicitation sale pursuant to chapter 740 and shall be subject to the requirements of said chapter regardless of the location of the transaction or of the signing of the contract. Each home improvement contract in which the owner agrees to repay the contractor an amount loaned or advanced to the owner by the contractor for the purposes of paying for the goods and services provided in such contract, or which contains a finance charge, (1) shall set forth the information required to be disclosed pursuant to the Truth-in-Lending Act, sections 36a-675 to 36a-685, inclusive, (2) shall allow the owner to pay off in advance the full amount due and obtain a partial refund of any unearned finance charge, and (3) may contain a finance charge set at a rate of not more than the rate allowed for loans pursuant to section 37-4. As used in this subsection, “finance charge” means the amount in excess of the cash price for goods and services under the home improvement contract to be paid by the owner for the privilege of paying the contract price in installments over a period of time.

 

(f) Nothing in this section shall preclude a contractor who has complied with subdivisions (1), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery.

Cite as Conn. Gen. Stat. § 20-429