Volume 192 — Connecticut Appellate Reports

The plaintiff appealed to the trial court from the decision by the defendant zoning board of appeals granting the application of the defendant P, filed on behalf of the defendant P Co., for approval of the location of a used car dealer on certain real property. The plaintiff claimed, inter alia, that the board failed to conduct the requisite suitability analysis, as required by the applicable statute (§ 14-55). The court agreed with the plaintiff's argument that § 14-55 applied and acknowledged that the board's certificate of approval looked and read like a variance, but concluded that the board gave due consideration to the suitability of the proposed use and that the board's decision was, thus, akin to an approval under § 14-55. The trial court subsequently rendered judgment denying the plaintiff's appeal from the board's decision, from which the plaintiff appealed to this court. On appeal, the plaintiff claimed, inter alia, that although published editions of the General Statutes have stated that § 14-55 has been repealed, in actuality, it has not been repealed, and that had the board properly followed § 14-55, it would have consid- ered the suitability factors set forth therein. Although Public Acts 2003, No. 03-184, § 10 (P.A. 03-184), repealed § 14-55, effective October 1, 2003, Public Acts 2003, No. 03-265, § 9 (P.A. 03-265), which also became effective October 1, 2003, repealed and replaced § 14-55. Held: 1. The plaintiff could not prevail on its claim that the trial court improperly concluded that the named applicant, P, had standing to apply to the board for location approval and, accordingly, was a proper party, which was based on its claim that P Co., in its business capacity, sought a used car dealer's license from the Department of Motor Vehicles, but the certificate of approval of the location application and subsequent hearing notification listed P as the applicant and, thus, the board's approval of P's application was improper because its decision was ren- dered in favor of a person rather than in the name of the proposed licensee; the record revealed that although P Co. was not the named applicant on the certificate of approval application, the totality of the circumstances sufficiently linked P to P Co., such that no one was misled or misunderstood the nature of the application, and, thus, the trial court did not err in concluding that P, as a representative of P Co., had standing to apply to the board for location approval. 2. Because § 14-55 has not been repealed, the board should have reviewed P's application under the standard set forth therein; given that there was no mention in P.A. 03-265, which repealed and replaced § 14-55, effective October 1, 2003, of P.A. 03-184, which ostensibly repealed § 14- 55, effective October 1, 2003, and it was impossible to simultaneously give effect to both of those public acts, they were in irreconcilable conflict, and, thus, pursuant to statute (§ 2-30b), the later public act, P.A. 03-265, was deemed to have repealed and replaced the older public act, P.A. 03-184. 3. The board mistakenly treated P's application as if it were an application for a variance and, thus, failed to comply with the requirements set forth in § 14-55 in granting that application; even though P's application was a matter to which § 14-55 applied and even though the board heard evidence and issued several conditions of approval that, to some extent, could pertain to suitability, the record revealed that on several occasions P's application was referred to and treated as an application for a vari- ance, the reasons that the board provided in its certificate of approval and the conditions provided therein were made with reference to an application for a variance, the board issued only one factual finding, in which it expressly applied variance standards provided in the local zoning regulations, and the board issued no findings as to the suitability factors enumerated under § 14-55. 4. The trial court erred in searching beyond the board's stated reason for approval to find a basis for the board's decision and improperly upheld the board's decision on alternative grounds; because the board had stated its reason for approval, the trial court was not permitted to search the record for evidence that could support alternative grounds on which the board could have granted P's application, and, thus, when the court reviewed the record to determine whether the evidence could support a conclusion that the suitability requirement of § 14-55 was satisfied, even though the board did not make any findings on that point, the court was incorrect in substituting its own judgment for that of the board. Argued February 13—officially released September 3, 2019

The petitioner, who had been convicted of multiple counts of risk of injury to a child, sought a writ of habeas corpus, claiming, inter alia, that his right to due process was violated when the respondent Commissioner of Correction wrongly classified him as a sex offender with treatment needs. The petitioner claimed that there was no basis for his classifica- tion as a sex offender because he was never convicted of a sexual assault and that he was not afforded sufficient procedural protections before being classified as a sex offender. The habeas court rendered judgment denying the habeas petition and, thereafter, denied the petition for certification to appeal, and the petitioner appealed to this court. Held that the habeas court did not abuse its discretion in denying the petition for certification to appeal, as the respondent was entitled to rely on the petitioner's conviction in classifying him as a sex offender; although the petitioner sufficiently alleged that he had a protected liberty interest, he was on notice that he could be classified as a sex offender because he was convicted of risk of injury to a child, which included the necessary element that he had had intimate contact with a child under the age of sixteen in a sexual and indecent manner, and the petitioner failed to present any evidence to prove that his right to due process had been violated. Argued May 28—officially released September 3, 2019

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 terminate alimony, to determine overpayments and to set a repayment schedule. The trial court found that the plaintiff was living with R, her boyfriend, within the meaning of the applicable statute (§ 46b-86 [b]), and, therefore, that the defendant's alimony obligation terminated under the terms of the parties' separation agreement, which had been incorporated into the dissolution judgment and provided that the defendant's alimony obligation would terminate on the date the court determined that the plaintiff commenced ''living with another person.'' Held: 1. The trial court did not err in finding that the plaintiff was ''living with another person'' for purposes of § 46b-86 (b): although the plaintiff claimed that she and R maintained separate residences and were together less than all of the time, ample evidence supported the court's finding that the plaintiff was living with R, including evidence that the couple resided under the same roof for approximately half the week, took many meals together, regularly communicated by cell phone, and frequently traveled together, and that R provided for the plaintiff's health insurance coverage under his own policy as a result of the couple holding themselves out as being in a domestic partnership, and allowed the plaintiff to keep a rent-free art studio in his home, and even though the plaintiff and R maintained separate homes and did not sleep in the same residence every night, the plaintiff's living arrangements changed such that she no longer needed the same financial support as at the time of the original alimony order; moreover, the court properly relied on the fact that R provided the plaintiff with health insurance coverage in concluding that the plaintiff was living with him, as the plaintiff and R held themselves out as a couple who were in a nonmarital union as domestic partners when R added the plaintiff to his health insurance policy, and the court properly considered the attendant financial benefits the plaintiff received as a result of the free health insurance coverage when determining whether her financial needs changed as a result of her living with R such that the defendant's alimony obligation should be terminated. 2. The trial court did not err in finding that the only remedy available under the terms of the separation agreement, upon a finding that the plaintiff was ''living with another person,'' was to terminate the defendant's alimony obligation: the provision of the separation agreement stating that the plaintiff shall be deemed to have been living with another person in the event a court makes a finding that the alimony should terminate or be reduced ''pursuant to'' § 46b-86 (b) did not reflect an intent to broadly incorporate all aspects of § 46b-86 (b), as the only remedy explicitly provided in the agreement upon a finding that the plaintiff commenced living with another person was to terminate alimony, the language in the agreement that alimony ''shall'' terminate when the plaintiff commenced living with another person was mandatory in nature, and the separation agreement treated cohabitation as an event akin to death or remarriage, both of which are events that ordinarily terminate a periodic alimony obligation; moreover, a finding that alimony could be modified upon a finding of cohabitation, as opposed to termi- nated, would be inconsistent with the structure of the separation agree- ment as a whole, which contained provisions governing discrete circum- stances in which one or both parties could seek to modify the alimony obligation. Argued April 23—officially released September 3, 2019

The petitioner, who had been convicted of the crime of burglary in the first degree, filed a petition for a new trial on the basis of newly discovered evidence regarding the alleged ulterior motives of a witness for the respondent state of Connecticut for testifying at the petitioner's criminal trial. Following his conviction, the petitioner filed a motion for a new trial on the basis of newly discovered evidence in his criminal case pursuant to the applicable rule of practice (§ 42-53). The criminal court denied the motion, concluding that the petitioner's evidence was insuffi- cient to support his motion because, although the evidence was newly discovered, it was immaterial, cumulative and unlikely to produce a different result at trial. Thereafter, the petitioner brought the present action by filing in the trial court the subject petition for a new trial pursuant to statute (§ 52-270). The trial court granted the state's motion for summary judgment and rendered judgment in favor of the state, concluding that the petitioner's claim of newly discovered evidence had been fully and fairly litigated in the criminal proceeding, and, therefore, his petition was barred by res judicata. Subsequently, the petitioner, on the granting of certification, appealed to this court. Held that the trial court improperly rendered summary judgment in favor of the state on the basis of the preclusive effect of the proceeding in the criminal court, as the criminal court lacked the authority under the applicable rule of practice (§ 42-55) to rule on the petitioner's claim of newly discovered evidence; because § 42-55 requires that a petition for a new trial based on newly discovered evidence be brought only in civil court, the criminal court lacked the authority to rule on such a claim or to award the petitioner the relief he requested of a new trial, and, therefore, because the criminal court could not have rendered a valid, final decision on the petitioner's motion for a new trial, res judicata did not preclude the petitioner's petition for a new trial in the civil action. Argued May 28—officially released September 3, 2019

The plaintiff appealed to this court from the judgment of the trial court granting the motion for summary judgment filed by the defendants. The plaintiff claimed that the trial court improperly concluded that his claims were barred by the applicable statute of limitations. Held that the trial court properly granted the defendants' motion for summary judgment and rendered judgment for the defendants; the claims that the plaintiff raised on appeal were essentially the same claims that he raised in the trial court and, because those issues were properly resolved in the trial court's thoughtful and comprehensive memorandum of decision, this court adopted that court's well reasoned memorandum of decision as a statement of the facts and the applicable law on those issues. Argued May 28—officially released September 3, 2019