Court Rulings

An individual who performs services for another for remuneration is presumed to be an employee of the person for which the services are performed, unless it is proven that the individual is an independent contractor under the common-law test. Whether a worker is an independent contractor or an employee is a mixed question of fact and law. To be entitled to an award attorney's fees under N.D.C.C. § 28-32-50, a non-agency party must meet a two-part test: 1) the non-administrative agency party must prevail, and 2) the agency must have acted without substantial justification.

The defendant, whose marriage to the plaintiff previously had been dis- solved, appealed to this court from the judgment of the trial court granting the plaintiff's motion to dismiss the defendant's pending motions, which included a motion for modification of his alimony, child support and visitation orders, two motions for contempt, a motion for an order to prevent the plaintiff from filing additional motions without leave of the court pursuant to Strobel v. Strobel (92 Conn. App. 662), a motion to remove the guardian ad litem, and a motion to compel compli- ance with his discovery request, all for lack of subject matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (§ 46b-155 et seq.). Prior to the filing of the motion to dismiss, the defendant relocated to Florida and the plaintiff and the parties' children relocated to Tennessee. The defendant returned to Connecticut after approximately one year in Florida. While the plaintiff's motion to dismiss was pending, the defendant filed an application for an emergency ex parte order of custody, and the trial court entered an emergency order awarding temporary custody to the defendant and also ordered a hearing on the custody issue. At the conclusion of the hearing, the trial court ordered that all existing orders regarding the custody of the parties' minor children be stayed until the plaintiff's motion to dismiss was resolved. Following a hearing on the motion to dismiss, for which the plaintiff submitted an affidavit in support of her arguments, as she was unable to attend in person, the trial court dismissed the defendant's motions for a Strobel order, to remove the guardian ad litem, and to compel, and one of his motions for contempt. The defendant appealed to this court and then filed a motion to reargue with the trial court. The trial court stayed consideration of the defendant's motion for modifica- tion of his alimony, child support and visitation orders, which remained pend

The trial court erred by entering summary judgment under Civ.R. 56 on appellant's claim of sex discrimination because the evidence did not eliminate any genuine issue of material fact regarding the comparability of three male co-workers who were allegedly treated more favorably by appellee, or regarding the validity of appellee's purportedly nondiscriminatory reasons for its comparatively less favorable treatment of appellant. Regarding appellant's claim of disability discrimination, however, the trial court did not err by entering judgment under Civ.R. 56. Appellant, who alleges that appellee terminated her employment because she was disabled, failed to present evidence sufficient to create a genuine issue of material fact with respect to her alleged inability to perform the essential functions of her position at the time of her termination. In addition, the trial court did not err by entering summary judgment on appellant's claim for retaliation, because appellant failed to present evidence sufficient to create any genuine issue of material fact with respect to the alleged causal connection between her engaging in protected activity and appellee's termination of her employment. Judgment affirmed in part and reversed in part.

The trial court erred in granting summary judgment in favor of appellee as to appellant's claim for workers compensation benefits. Appellant was within the zone of employment when she slipped and fell in the parking lot adjacent to appellee's leased office building. Judgment reversed cause remanded.

The petitioner, who had been convicted, in two cases, of the crime of felony murder on a plea of guilty in each case, sought a writ of habeas corpus, claiming, inter alia, that the respondent Commissioner of Correction and the Board of Pardons and Paroles improperly determined that he was not parole eligible. On the first count of felony murder, which was alleged to have been committed on June 30 or July 1, 1981, the petitioner was sentenced to an indefinite term of incarceration of not less than twenty-five years nor more than life pursuant to statute ((Rev. to 1981) § 53a-35). On the second count of felony murder, which was alleged to have been committed on August 16, 1981, the petitioner was sentenced to a definite term of incarceration of fifty-five years pursuant to statute ((Rev. to 1981) § 53a-35a). The trial court ordered the sentences to run concurrently. The petitioner had served the entire length of his definite sentence of fifty-five years, as reduced by credits he had earned while incarcerated, by May 28, 2014. He then sought a parole eligibility date for his indeterminate sentence but was told that he was not eligible for parole because his determinate sentence, which he had fully served, was not a parole eligible offense. At his habeas trial, however, S, the executive director of the board, testified that the petitioner was parole eligible. Thereafter, the habeas court dismissed the petition, concluding that it lacked jurisdiction because the petitioner failed to state a claim involving the deprivation of a recognized liberty interest and that the issue of obtaining a parole eligibility determination was moot in light of S's testimony that the board had found the petitioner to be eligible for parole but declined to grant him a hearing. The court thereafter granted the petitioner certification to appeal, and the petitioner appealed to this court. On appeal, the respondent conceded that the petitioner was eligible for parole. Held: 1. This court had jur

15 The plaintiff, an employee of the defendant city, sought to resolve a dispute 16 concerning a lien the city placed on certain settlement proceeds that 17 he had received as a result of a motor vehicle accident that occurred 18 in 2016. At all relevant times, the city was self-insured and paid for the 19 medical care that the plaintiff received in connection with the accident. 20 In July, 2017, the legislature passed an amendment (P.A. 17-165, § 1) to 21 a statute (§ 7-464) concerning group insurance benefits for municipal 22 employees that allowed a self-insured city that provides health benefits 23 for its employees to file a lien on the portion of any settlement proceeds 24 that represents payment for medical expenses incurred by a city 25 employee when such expenses result from the negligence or reckless- 26 ness of a third party. Later in July, 2017, the plaintiff filed an action 27 against the third-party tortfeasor who had caused the plaintiff to sustain 28 injuries in the accident. Thereafter, on October 1, 2017, P.A. 17-165, § 1, 29 became effective. In October, 2018, the city filed a notice of lien, claiming 30 a right to reimbursement for amounts that it had paid for the plaintiff's 31 medical expenses from any judgment or settlement the plaintiff might 32 receive arising from the accident. Approximately one week later, the 33 plaintiff settled his civil action against the third-party tortfeasor. The 34 plaintiff then brought the present action, claiming that P.A. 17-165, § 1, 35 did not authorize the lien filed by the city because the plaintiff's injuries 36 occurred and his action against the third-party tortfeasor was com- 37 menced before the effective date of P.A. 17-165, § 1. The trial court 38 granted the plaintiff's motion for summary judgment and rendered judg- 39 ment thereon, concluding, inter alia, that the legislature did not expressly 40 indicate that it intended for P.A. 17-165, § 1, to apply retroactively to 41 pending actions and, there

Pursuant to its statutory responsibility under R.C. 2506.04, the common pleas court considered the entire record and evaluated all evidence as to witness credibility, the probative character of the evidence, and the weight to be afforded the evidence, and gave due deference to civil service commission's resolution of evidentiary conflicts in determining that commission's decision to terminate school district employee's emloyment was supported by the preponderance of reliable, probative, and substantial evidence. Employing the very limited and deferential standard of review afforded a court of appeals pursuant to RC. 2506.04, we cannot find that the common pleas court abused its discretion in so finding.

The plaintiffs served a subpoena on the defendant L in Connecticut to depose her in connection with an action the plaintiffs were litigating in Florida against a company owned by L, after a Florida court ruled that it lacked jurisdiction to subpoena L, who resided primarily in Connecticut. L filed a motion to quash the Connecticut subpoena, which the trial court denied, and L appealed to the Appellate Court. The plaintiffs then filed a motion to dismiss the appeal, which L opposed, and the Appellate Court dismissed L's appeal as frivolous. After the Appellate Court's dismissal of L's appeal but before this court granted L's petition for certification to appeal, the plaintiffs served L with a subpoena in Florida while L was visiting that state and withdrew, without prejudice, the Connecticut subpoena. On appeal from the Appellate Court's dismissal of L's appeal, held that, because the plaintiffs' withdrawal of their Con- necticut subpoena rendered L's appeal to this court moot, that appeal was dismissed, and, because L was thereby prevented from challenging, before this court, the Appellate Court's dismissal of her appeal as frivo- lous, the Appellate Court's judgment was vacated; the plaintiffs, having unilaterally withdrawn the Connecticut subpoena, prevented L, through no fault of her own, from challenging the Appellate Court's adverse determination, and the plaintiffs, after having received favorable rulings from the Appellate Court and the trial court, should not have been able to moot L's appeal to this court to prevent the possibility of an unfavorable decision. Argued February 19—officially released July 2, 2021

The Industrial Commission did not abuse its discretion in determining that relator's employer did not violate a specific safety requirement set forth in Ohio Adm.Code 4123:1-3-03(J)(1). The magistrate erred in finding the record does not contain some evidence supporting the Industrial Commission's denial of relator's VSSR award application. Objections sustained writ denied.

For purposes of R.C. 4123.512(H), a VSSR award is "compensation" as that term is used in this statute. Following a determination that a VSSR award has been erroneously paid by an employer, R.C. 4123.512(H) authorizes the reimbursement of that award from the surplus fund.

A personal guaranty allowing the guarantee to proceed directly against the guarantor without first proceeding against the principal is absolute and unconditional. Under an absolute guaranty, the guarantor is liable to the guarantee immediately upon the default of the principal. A decision on an award of attorney's fees rests in the sound discretion of the district court. The Supreme Court and the district courts possess concurrent jurisdiction to award attorney's fees on appeal however a preference exists that the initial determination be made by the district court.

CIVIL - Open Meetings Act R.C. 121.22 trial court's injunction issued on remand from this court was insufficient to address both ways the Board violated the OMA the determination of whether the violations were technical, substantial, egregious, or made in bad faith was properly left to the discretion of the trial court and the trial court did not err in determining they were not technical, and not substantial, egregious, or made in bad faith a trial court does not err in issuing a single injunction when the violations were tehnical in nature and do not involve an intent to conceal the overall purpose of the meeting or create distinct formal actions when multiple technical violations are of the same nature, the remedy is one injunction and one civil forfeiture the trial court did not abuse its discretion in reducing attorney's fees when the errors were technical, not substantial, egregious, or made in bad faith and the Board's belief was reasonable based on the ordinary application of statutory and case law as it existed at the time of the violation, and the Board reasonably believed that the conduct would serve the public policy of the OMA affirmed in part, reversed in part, and remanded.

The plaintiff sought to recover damages for gender discrimination and retal- iatory discharge in violation of statute (§ 46a-51 et seq.) as a result of the termination of her employment by the defendant. The plaintiff claimed that the defendant paid her less than it paid two male employees, whose job responsibilities she recognized were different from her own. After the defendant began to experience financial difficulties, the plain- tiff was laid off, and her duties were absorbed by other employees, including one of the two male employees she claimed had been paid more than her. The trial court granted the defendant's motion for summary judgment and rendered judgment for the defendant, from which the plaintiff appealed to this court. Held that the judgment of the trial court was affirmed, and because the court thoroughly analyzed the legal issues in concluding that the defendant was entitled to judgment as a matter of law, this court adopted the trial court's comprehensive and well reasoned decision as a proper statement and analysis of the applicable law on the issues presented. Argued February 8—officially released April 6, 2021

In a reverse race discrimination case argued under a modified McDonnel Douglas framework, the trial court did not err in granting summary judgment in favor of Ohio Reformatory for Women ("ORW") where the plaintiff, a former employee of ORW, could not point to evidence that showed ORW treated her disparately from similarly situated minority employees. Judgment affirmed.

The plaintiff mortgage company sought declaratory relief related to the defendant's failure to comply with its corporate bylaws, which required the defendant to satisfy state and federal licensing requirements related to the plaintiff's mortgage loan business. The defendant was a founding shareholder and former employee, officer, and director of the plaintiff. The trial court, relying on a stipulation entered into by the parties, ordered the defendant to satisfy the licensing requirements by a certain date, or, in accordance with the plaintiff's bylaws, his stock in the plaintiff would be surrendered. After finding that the defendant had failed to comply with its order, the court rendered judgment ordering the defendant's shares to be surrendered to the plaintiff, from which the defendant appealed to this court. On appeal, the defendant claimed, inter alia, that the court erred in its interpretation of the parties' stipula- tion. The plaintiff subsequently filed a motion to dismiss the appeal on the ground that this court lacked subject matter jurisdiction over the appeal because the defendant's claims were moot. The plaintiff argued that during the pendency of the present appeal, it had taken the defen- dant's stock in satisfaction of a judgment rendered in certain prior litigation between the parties, and, therefore, the defendant was unable to demonstrate that he was entitled to any practical relief. Held that this court lacked subject matter jurisdiction, and, therefore, the appeal was dismissed: there did not appear to be any dispute between the parties that this court was unable to afford the defendant any direct, practical relief from the reversal of the judgment from which he appealed as the subject of the judgment in the present action was the defendant's stock in the plaintiff, which, during the pendency of the appeal, the plaintiff has taken in satisfaction of the judgment rendered in a prior action; despite the defendant's claim that this court may affor

Claimants must prove by a preponderance of evidence that they have sustained a compensable injury and are entitled to workers' compensation benefits. A claimant must prove that the condition for which benefits are sought is "causally related" to a work injury. To establish a "causal connection," a claimant must demonstrate the claimant's employment was a substantial contributing factor to the injury and need not show employment was the sole cause of the injury. A compensable injury must be established by medical evidence supported by objective medical findings, which may include a physician's medical opinion based on an examination, a patient's medical history, and the physician's education and experience.

DIRECTED VERDICT – FRAUD – INFORMED CONSENT – NEGLIGENCE – SUMMARY JUDGMENT – VICARIOUS LIABILITY: The trial court properly granted a directed verdict in favor of a physician on a negligence claim against the physician where the physician had no physician-patient relationship with plaintiff with respect to the surgery that plaintiff claimed was negligently performed and owed plaintiff no duty of care. The trial court properly granted a directed verdict in favor of a physician on a claim of lack of informed consent against the physician where the physician had no physician-patient relationship with plaintiff with respect to the surgery that plaintiff claimed was negligently performed and owed plaintiff no duty of care to obtain plaintiff's consent to the surgery. The trial court properly granted a directed verdict in favor of a surgery center and its owner on a claim for fraud related to plaintiff's medical billing where plaintiff put forth no evidence that the surgery center or its owner made a false misrepresentation to plaintiff or that plaintiff relied upon the misrepresentation or that plaintiff suffered resulting injury. The trial court properly granted summary judgment in favor of a surgery center and its owner on plaintiff's vicarious-liability claim plaintiff's settlement agreement releasing the surgery center's physician employee from liability thereby exonerated the surgery center and its owner from any liability for the employee's actions.

The trial court properly determined that appellant waived its notice of termination of tenancy by accepting rent from appellee after the date appellee's tenancy was to terminate.

Trial court grant of summary judgment is affirmed, in part, and reversed, in part. Summary judgment, de novo review, trade secrets, breach of contract, intentional torts

Trial court properly granted summary judgment to plaintiff's former employer where plaintiff failed to establish a prima facie case of age discrimination, retaliation, and violation of the Family Medical Leave Act.

Arbitration motion to stay parties to the arbitration agreement unconscionability waiver. Appellant's claims regarding the validity of the arbitration agreement lack merit and the trial court properly granted appellee nursing home's motion to stay the proceedings and to enforce the arbitration agreement.

The trial court did not abuse its discretion in regulating the discovery process, or in excluding expert testimony that failed to take into account independent variables that could influence association between age and RIF termination rates. The assignments of error are overruled, and the trial court's judgment as based on the jury's verdict is affirmed.

The petitioner, a Polish national, sought a writ of habeas corpus, claiming that his criminal trial counsel, K, had provided ineffective assistance by failing to advise him adequately as to the immigration consequences of his plea of guilty to a certain offense that subjected him to deportation. After the petitioner entered the guilty plea, federal authorities detained him and initiated deportation proceedings against him. The petitioner claimed that, if he had been properly advised by K as to the immigration consequences of entering a guilty plea, he would not have accepted the plea offer. The habeas court rendered judgment denying the habeas petition and granted the petition for certification to appeal, and the petitioner appealed to this court. Held that the habeas court properly concluded that the petitioner was not prejudiced by the advice of his attorney, K, regarding the immigration consequences of pleading guilty: although the petitioner highlighted the actions that he took subsequent to accepting the plea offer, including the motions that he had filed contesting his conviction following his guilty plea and the amount of money he spent in avoiding deportation, the petitioner's post hoc asser- tions on appeal that he would not have pleaded guilty but for K's advice were insufficient to establish prejudice in light of the absence of substan- tial, contemporaneous evidence to support such assertions, the credibil- ity determinations made by the habeas court regarding the concerns of the petitioner that were contemporaneous to his acceptance of the offer support the conclusion that the court credited K's testimony that the length of incarceration, not deportation, was the petitioner's main con- cern, and that the petitioner accepted the plea that would ensure that he would spend less than one year in jail, and the court did not credit the petitioner's testimony that he would not have taken the plea deal had he known that he would be deported. Argued March 12—off

Board of Tax Appeals decision reversing determination of Franklin County Board of Revision is reversed, and case is remanded to Board of Tax Appeals for entry of judgment dismissing appeal. R.C. 5715.19(D) does not authorize a board of revision to accept a continuing-complaint challenge to valuation when that same challenge has been previously dismissed by a court for lack of jurisdiction. Res judicata and the law-of-the case doctrine operate to preclude Board of Tax Appeals from reconsidering any issue that was or could have been decided once the case has been appealed and a final judgment has been issued.

The plaintiff, whose marriage to the defendant previously had been dis- solved, appealed to this court from the judgment of the trial court granting the defendant's motion to modify or to terminate alimony. Pursuant to article 3.2 (a) of the parties' separation agreement, which had been incorporated into the dissolution judgment, the defendant was required to pay the plaintiff unallocated alimony until, among other things, the cohabitation of the plaintiff pursuant to statute (§ 46b-86 (b)), or May 31, 2013, whichever event occurred first. The trial court concluded that the plaintiff was cohabitating with another person as defined by § 46b-86 (b) and determined that article 3.2 (a) of the separa- tion agreement was clear and unambiguous and that cohabitation required the immediate termination of alimony. The plaintiff appealed to this court, which reversed the trial court's judgment and ordered a remand, concluding that article 3.2 (a) was ambiguous and that findings of fact were necessary as to the parties' intent regarding whether that article incorporated the remedial aspects of § 46b-86 (b). Thereafter, on remand, the trial court, following an evidentiary hearing, determined that the parties had intended that the plaintiff's cohabitation would result in the immediate termination of her alimony under article 3.2 (a) of the separation agreement, and, accordingly, it granted the defendant's motion to modify or to terminate alimony and terminated his obligation to pay alimony. Held: 1. The plaintiff could not prevail on her claim that the trial court erred by concluding that it was bound by the finding of cohabitation made by a prior judge in the case; the plaintiff did not challenge that finding in her prior appeal, and, after this court issued its remand order in that appeal, which was limited to the consideration of whether the parties had intended to incorporate the remedial aspects of § 46b-86 (b) into article 3.2 (a) of the separation agreement, the plaintiff

The defendant employer and its workers' compensation insurer appealed to this court from the decision of the Compensation Review Board, which reversed in part the decision of the Workers' Compensation Com- missioner granting in part the plaintiff employee's motion to preclude the defendants from contesting the compensability of his injuries pursuant to statute (§ 31-294c (b)). The defendants did not file a form 43 to contest liability for the plaintiff's injuries within the twenty-eight day time period mandated by § 31-294c (b) but, rather, filed that form seventy-five days after they received the plaintiff's form 30C notice of claim. The defen- dants' form 43 stated that no medical records supporting the plaintiff's claim and no request for medical or indemnity benefits had been pre- sented to them. The commissioner determined that, because the defen- dants had not timely filed a form 43, they were precluded from contesting the compensability of the plaintiff's claim but that, under the limited exception to the preclusion provision of § 31-294c (b) articulated in Dubrosky v. Boehringer Ingelheim Corp. (145 Conn. App. 261), the defendants could contest the extent of the plaintiff's injuries due to their inability to pay indemnity benefits or medical payments within the twenty-eight day time period mandated by § 31-294c (b). The board reversed the commissioner's decision in part, concluding that the com- missioner improperly applied the Dubrosky exception to the preclusion provision of § 31-294c (b) and directed that the defendants were to be precluded from presenting a defense to the plaintiff's claim for benefits. On appeal, the defendants claimed that it had been impossible to comply with the mandate of § 31-294c (b) that they commence payment to the plaintiff on or before the twenty-eighth day after receiving written notice of his claim because he failed to furnish them with medical bills or a separate request for payment within that twenty-eight day period. Held

In an original action challenging the industrial commission's additional award for violation of specific safety requirement ("VSSR") pursuant to Admin. Code 4123:1-5-05(D)(1), the employer's request for a writ of mandamus is not warranted where the commission did not abuse its discretion in determining that the injured claimant was the "operator" of the machine at issue and the VSSR proximately caused the claimant's injury. Writ of mandamus denied.

Civil stalking protection order R.C. 2903.214 menacing by stalking R.C. 2903.211 preponderance competent, credible evidence ex parte protection order R.C. 2903.214(E)(2)(a) five years issuance. Affirmed trial court's issuance of a civil stalking protection order pursuant to R.C. 2903.214 where competent, credible evidence was presented to support trial court's determination that respondent committed menacing by stalking against petitioner and each family member to be protected. The trial court complied with R.C. 2903.214(E)(2)(a) by issuing the protective order for a period of four years from the date of issuance.

MEDICAL MALPRACTICE – PRIVILEGE – PEER REVIEW: A hospital failed to meet its burden to show that nurses' employee files were confidential under the peer-review privilege where it failed to show that it had a peer-review committee for nurses, where nothing in the record showed that a peer-review committee ever investigated the case in question, and where the disputed documents were available from an original source, the hospital's human resources department.

The defendant appeals from the judgment of strict foreclosure rendered by the trial court in favor of the second substitute plaintiff, W Co. The defendant initially executed the mortgage in favor of M Co.; J Co. then assigned the mortgage to itself, commenced this action, and thereafter filed a motion to substitute C Co. as the plaintiff. C Co. filed a motion for summary judgment as to liability, and the defendant opposed the motion, claiming that the note, which was endorsed in blank by M Co., was endorsed falsely by R, a former employee of the relevant department of M Co., who did not actually sign the note but, rather, someone else signed R's name or used a signature stamp bearing R's signature on the endorsement. The trial court granted C Co.'s motion for summary judgment as to liability and subsequently rendered a judgment of strict foreclosure. Held: 1. The defendant could not prevail on her claim that the trial court improperly granted summary judgment as to liability, which was based on her claim that there were genuine issues of material fact concerning whether J Co. was the holder of the note at the time it commenced this action due to an invalid endorsement of the note by M Co.: the defendant's claim that, because the purported signature was not R's signature it was not an endorsement at all, was inconsistent with the broad definition of signature under the applicable statute (§ 42a-3-401 (b)), and the defen- dant did not dispute that the endorsement stamp was placed on the note by someone affiliated with M Co., the name of a former employee fell within the definition of § 42a-3-401 (b), and the fact that M Co. chose to use a stamp bearing the signature of a former employee was of no import to the analysis under § 42a-3-401 (b), which pertains to a bank's rights and obligations related to the note, rather than to one of the bank's former employees; accordingly, the stamped signature met the signature requirements for negotiable instruments and, because th

The plaintiff sought to recover damages from the defendant for, inter alia, civil theft and unjust enrichment in connection with a $150,000 payment she made on the defendant's line of credit account. The defendant was in the business of collecting rare cars and worked with R, a broker, to find classic cars, purchase them, and, at times, resell them. The plaintiff's former husband, T, was also a broker of classic cars. At one point, the defendant was having cash flow problems and owed $150,000 on his line of credit. R asked T to loan the defendant the money and promised that it would be repaid within seven days. T, who was interested in cultivating a business relationship with the defendant, asked the plaintiff for the funds and the plaintiff, with the understanding that the money would be repaid in seven days, wired the funds directly to the defendant's line of credit account on September 1, 2015. The defendant did not learn until one week after the money had been received that it was from the plaintiff. T contacted the defendant in early January, 2016, seeking repayment of the $150,000, and the defendant refused to repay the money. The defendant filed a motion to dismiss the plaintiff's action for lack of personal jurisdiction, which was denied by the trial court. After a trial to the court, the court rendered judgment in favor of the plaintiff and awarded damages, including treble damages for the civil theft claim pursuant to statute (§ 52-564), and prejudgment interest, from which the defendant appealed to this court. On appeal, the defen- dant claimed that the trial court erred in denying his motion to dismiss, in finding that he committed civil theft and awarding treble damages, in awarding prejudgment interest on the trebled punitive portion of the damages and in setting the start date for the prejudgment interest on the unjust enrichment award. Held: 1. This court declined to review the defendant's jurisdictional challenge on the merits as the defendant waive