Volume 200 — Connecticut Appellate Reports

The plaintiffs, M and H, sought to recover damages from the defendants for personal injuries they allegedly sustained in a motor vehicle accident in which their vehicle was struck by a vehicle driven by the named defendant. Following a trial, at which M and H testified, the jury returned a verdict in favor of the plaintiffs, awarding them economic damages but no noneconomic damages. Thereafter, the trial court granted the plaintiffs' joint motion for additurs, ordered additurs of $8000 to the award to M and $6500 to the award to H, and rendered judgment in favor of the plaintiffs. On the defendants' appeal to this court, held that the trial court abused its discretion in granting the plaintiffs' motion for additurs; that court failed to identify the part of the trial record that supported its conclusion that the jury's failure to award noneconomic damages was unreasonable under the facts of this case; moreover, even if the court had sufficiently identified facts in the record to support its order of additurs, this court, after having undertaken a fact intensive analysis, determined that the jury reasonably could have concluded that the plaintiffs failed to prove any noneconomic damages for pain and suffering caused by the subject accident, given the inconsistent and conflicting testimony and evidence, and the jury could have determined that the plaintiffs lacked credibility. Argued May 29—officially released September 8, 2020

The defendant, who had been convicted on pleas of guilty to robbery in the first degree and conspiracy to commit robbery in the first degree, appealed to this court from the trial court's denial of his motion to correct an illegal sentence. The defendant claimed that the agreement with the state under which he pleaded guilty required that his sentence run concurrently with a sentence he was then serving on an unrelated conviction. The plea agreement provided, inter alia, that, if the court imposed a period of incarceration of less than twenty years, it could impose a period of special parole, provided that the period of incarcera- tion and the period of special parole did not cumulatively exceed twenty years. Defense counsel requested that the sentence the court would impose run concurrently with the sentence the defendant was then serving. The court sentenced the defendant to concurrent terms of fourteen years of incarceration on the robbery charges followed by six years of special parole and ordered that the sentence run consecutively to the sentence the defendant was currently serving. On appeal, the defendant claimed that his rights to due process were violated because the court did not advise him that his sentence could run consecutively to the sentence he was then serving, and because his sentence violated the double jeopardy clause of the United States constitution. Held: 1. The defendant's unpreserved claim that the trial court accepted his guilty pleas without advising him that his sentence could run consecutively to the sentence he was then serving could not be reviewed; review under State v. Golding (213 Conn. 233) was unwarranted because the defendant could file another motion to correct an illegal sentence, and this court's decision to decline review would not result in any hardship or injustice to the defendant. 2. The defendant could not prevail on his claim that the combination of the sentence of incarceration followed by special parole violated the prohibition against double jeopardy; the defendant's sentence was expressly authorized by statute (§ 53a-28 (b) (9)), and the combined period of incarceration and special parole did not exceed the maximum statutory sentence for the crimes of which the defendant was convicted. Argued June 15—officially released September 15, 2020

The plaintiff, a business invitee of the defendant company, brought a prem- ises liability action against the defendant, seeking damages for personal injuries she sustained when two empty boxes fell off a shelf and struck her in the head and shoulder as she was walking in an aisle of the defendant's store. After a trial to the court, the trial court rendered judgment for the plaintiff. The court applied the mode of operation rule enunciated in Kelly v. Stop & Shop, Inc. (281 Conn. 768), and concluded that the boxes fell and struck the plaintiff as a result of the defendant's negligence. The court determined that the store manager, M, and another employee, R, had been stocking merchandise in an adjacent aisle when a box on the top shelf of that aisle toppled over and into the boxes on the top shelf of the aisle in which the plaintiff was walking, thereby causing the boxes to fall off the shelf and onto the plaintiff. On appeal, the defendant claimed that the trial court improperly applied the mode of operation rule. Held that the evidence did not support the imposition of liability under the mode of operation rule or the affirmative act rule, under which proof of notice is not necessary because the defendant itself created the unsafe condition, as there was no evidence as to what caused the boxes to fall on the plaintiff: the plaintiff, relying on the mode of operation rule, failed to make out a prima facie case of negligence, as the record did not demonstrate that the defendant had a specific method of operation that was different from the general operation of a similar business, the only evidence about the regularity of any hazard came from M, who was unaware of merchandise ever falling onto a customer, the potential for which did not give rise to a regularly occurring or inherently foreseeable hazard, and the record was devoid of evidence that the plaintiff's injuries occurred within a limited zone of risk where the risk of injury was continuous or foreseeably inherent as a result of the mode of operation at issue; moreover, the evidence was insufficient to establish that an affirmative act on the part of the defendant caused the boxes to fall on the plaintiff, as M's testimony that neither he nor R touched the top shelf of the aisle in which they were working was not contradicted by any other evidence, there was no evidence that their actions in that aisle disrupted the boxes on the top shelf, and the court, even if it disbelieved M's statements, was not allowed to infer the opposite proposition, much less to infer that M and R negligently knocked over those boxes into the boxes that struck the plaintiff, and a photograph of the shelving that the plaintiff took following the incident was insufficient to permit an inference that M and R engaged in an affirmative act that led to the boxes falling on her. Argued January 9—officially released September 15, 2020

The plaintiff sought to recover damages from the defendant for statutory theft in connection with her actions in withdrawing certain funds from a retirement account belonging to the plaintiff. The defendant had pre- viously represented the plaintiff in her divorce proceedings, as a result of which the plaintiff received one half of her former husband's pension funds, which were subsequently placed in an individual retirement account. Through the defendant's representation of the plaintiff, she obtained confidential information about the plaintiff and used it to with- draw money from the account without the plaintiff's knowledge or permission over a period of three years. In the defendant's answer, she raised the statute of limitations as a special defense, although she did not specify the statute on which she relied. The plaintiff did not plead the continuing course of conduct doctrine in avoidance of the special defense of the statute of limitations in pleadings or at trial and, instead, raised it in posttrial briefs. The trial court ruled in favor of the plaintiff, finding that she did not authorize the defendant to remove moneys from the IRA and that the defendant took those funds with the intent of depriving the plaintiff of those moneys. The trial court also rejected the defendant's statute of limitations defense, concluding that the continuing course of conduct doctrine, despite being improperly pleaded, operated to toll the three year statute of limitations. On appeal, the defendant claimed, inter alia, that the trial court abused its discretion in considering the plaintiff's continuing course of conduct argument despite improper pleading. Held: 1. The court did not abuse its discretion in applying the continuing course of conduct doctrine, as it was within its discretion to reach the merits of the plaintiff's continuing course of conduct claim once it was put before the court, and it was within the court's discretion to determine that no party was prejudiced by the lapse in pleading; both parties failed to comply with the rules of practice, this court could not say that the trial court decided the matter so arbitrarily as to vitiate logic or decided the matter on the basis of improper or irrelevant factors, the defendant had ample opportunity to address the continuing course of conduct doctrine during posttrial briefing but she failed to specify how she was prejudiced by the plaintiff's posttrial invocation of that doctrine, and the trial court was in the best position to determine whether either party had been unfairly prejudiced by the defendant's failure to specify the statute on which her defense rested or by the plaintiff's failure to timely raise the continuing course of conduct doctrine in avoidance of that special defense. 2. The defendant could not prevail on her claim that the trial court improperly concluded that the continuing course of conduct doctrine tolled the statute of limitations, as this court concluded that this claim was briefed inadequately; the defendant's brief contained no citations and no legal authority, or citations to evidence in the record in support of her claim. 3. The trial court's findings that the plaintiff had no knowledge of the defendant's actions and had not consented to or authorized them were not clearly erroneous, as such findings were supported by the evidence and this court was not left with a definite and firm conviction that any mistake had been committed; it was not the function of this court to retry the case or to reassess the credibility of the witnesses. Argued March 4—officially released September 15, 2020

The defendant, whose marriage to the plaintiff previously had been dis- solved, appealed to this court from certain postjudgment rulings of the trial court, claiming, inter alia, that the court improperly calculated his child support arrearage in violation of statute (§ 46b-224) and granted the plaintiff's motion to modify his alimony obligation without first providing him notice that it would act on the motion. The parties had filed a litany of postjudgment motions between April, 2016 and Decem- ber, 2017, that were either repeatedly continued or not acted on by the trial court. Thereafter, the court in January, 2018, issued an order notify- ing the parties that it would address all pending motions on a certain date in February, 2018. Held: 1. The defendant received adequate notice in satisfaction of his right to due process that the trial court might dispose of the plaintiff's motion for modification of alimony at the February, 2018 hearing: the January, 2018 order unambiguously stated that all pending motions were to be addressed at the February, 2018 hearing, the court had notified the parties at a previous hearing that the issue of alimony was to be addressed with all the other pending motions, at no point did the court affirmatively state that it would not rule on the motion for modification, and nothing in the record suggested that the defendant was without notice or that his ability to present evidence or to cross-examine the plaintiff was hindered; moreover, at no point did the defendant state his surprise or express the need for more time to present evidence, the record having suggested that he argued his position before the court and attacked the substance of the plaintiff's financial affidavit she pre- sented in support of her motion. 2. The defendant could not prevail on his claim that the trial court improperly ordered him to reimburse the plaintiff for her expenses related to fixing the septic system at the marital residence, which was based on his assertion that the court abused its discretion by failing to consider the plaintiff's conduct relative to his efforts to make the repairs himself; the court acted well within its discretionary authority in ordering reim- bursement, as the defendant was obligated under the dissolution judg- ment and a prior court order to maintain the residence until it was sold, there was no dispute that the septic system required repairs due to recurring problems, the court plainly considered the arguments of both parties and the evidence proffered in rendering its decision, and the defendant's unpreserved claim that the court failed to apply the unclean hands doctrine was without merit, as the defendant did not raise that doctrine with the court, which considered his argument that the plaintiff allegedly prevented him from accessing the septic system and was enti- tled to broad discretion in deciding whether to apply the unclean hands doctrine. 3. The trial court improperly failed to apply § 46b-224 in calculating the defendant's child support arrearage, the court's prior transfer of custody from the plaintiff to the defendant having suspended his child support obligation under § 46b-224 until the child was returned to the plaintiff's custody; the court improperly refused to deduct from the arrearage the amount for the period of time that the child was in the defendant's custody, as it appeared that the court refused to credit that time because the defendant had not filed a motion for modification of child support, § 46b-224 plainly required that a court order changing custody shall operate to suspend a child support order, and because the court made no finding as to the precise period of time that the child was in the defendant's custody, that issue had to resolved on remand. Argued February 6—officially released September 15, 2020

The plaintiffs, M and M Co., appealed to the Superior Court from the decision of the defendant town planning and zoning commission denying their application for a special permit to construct a crematory on property owned by M that is located in an industrial park in the town. Prior to filing their application, the plaintiffs proposed a text amendment to the town's zoning regulations that would make the operation of a crematory a specially permitted use in the town's two industrial zones. Following the commission's approval of the text amendment, the plaintiffs submit- ted their special permit application and an application to construct and operate a crematory. Thereafter, the commission adopted a text amendment filed by the intervening defendant that repealed the prior text amendment, and, after holding four public hearings, it denied the plaintiffs' special permit application, determining that the plaintiffs failed to meet their burden of demonstrating that their application satisfied certain criteria for special permits set forth in the applicable town zoning regulation (§ 8.5.E). The Superior Court subsequently dismissed the plaintiffs' appeal, concluding that there was substantial evidence in the record to support the commission's denial of the plaintiffs' application, and the plaintiffs, on the granting of certification, appealed to this court. Held: 1. The plaintiffs could not prevail on their claim that the Superior Court improperly concluded that there was substantial evidence in the record to support the commission's denial of their application for a special permit, as there was substantial evidence in the record from which the commission reasonably could have determined that the plaintiffs failed to meet their burden of demonstrating that their application satisfied the general standards set forth in §§ 8.5.E.3 and 8.5.E.4 of the zoning regulations: on the basis of the testimony and the evidence in the record, the commission reasonably could have concluded that, by allowing the plaintiffs to operate a crematory at the location they proposed, the development of the industrial park and surrounding area and the welfare of the town would be adversely affected in that businesses and individu- als would be less inclined to either remain in or to purchase property in and around the industrial park and property values in the industrial park and surrounding area would be depressed; moreover, contrary to the plaintiffs' claim, the Superior Court properly relied on St. Joseph's High School, Inc. v. Planning & Zoning Commission (176 Conn. App. 570) in dismissing the plaintiffs' appeal. 2. The plaintiffs' claim that the commission improperly failed to consider their application for a special permit on the merits because of its predis- position to keep a crematory from being located in the industrial park and its conviction that it made a legislative misjudgment in adopting their proposed text amendment was unavailing: contrary to the plaintiffs' assertion that the commission's reasons for denying their application were insufficient, the commission authored a detailed resolution of denial in which it stated that it denied the plaintiffs' application, in part, because it failed to satisfy both § 8.5.E.3 and § 8.5.E.4 of the zoning regulations, and this court concluded that the commission's denial of the application on the basis of those provisions was supported by substantial evidence; moreover, the plaintiffs' reliance on Marmah, Inc. v. Green- wich (176 Conn. 116) in support of their predetermination claim was misplaced because, unlike in that case, in which deliberation over the plaintiff's site plan application was afforded one public hearing before being denied, the plaintiffs' application in the present case was afforded attention at four public hearings at which the commission entertained an immense amount of evidence and testimony; furthermore, to the extent that the plaintiffs challenged the commission's authority to repeal a text amendment to the zoning regulations despite contrary findings that it made when had it adopted the amendment, that argument was without merit in light of the commission's broad discretion when acting in a legislative capacity. Argued May 13—officially released September 22, 2020

The plaintiff, a minority member of the defendant B Co., a Connecticut limited liability company, sought to recover damages from B Co. and the defendant C for, inter alia, breach of contract, and sought the dissolu- tion of B Co. on the ground of oppressive conduct. The plaintiff and C formed B Co. for the purposes of purchasing and operating a cafe. C received a 60 percent interest in B Co. and the plaintiff received a 40 percent interest in B Co. A hurricane caused the cafe to be closed for a period of time, and, despite an oral agreement between C and the plaintiff that neither would take any guaranteed payments from B Co. for fifty-two weeks, the plaintiff continued to take cash from B Co. during this period. C subsequently reconstructed the cafe's financial history, which revealed that the plaintiff had misappropriated approxi- mately $190,000 of B Co.'s funds. C amended the operating agreement of B Co., and terminated the plaintiff as a manager of B Co., terminated the plaintiff's son as an employee, stopped payment on certain checks issued to the plaintiff and changed the locks on the cafe to prevent the plaintiff from accessing the building. The plaintiff commenced the present action asserting various claims, including breach of fiduciary duty and oppression by C, and seeking the dissolution of B Co. pursuant to statute (§ 34-267 (a) (5)), and B Co. filed a counterclaim alleging breach of fiduciary duty. After a bench trial, the court rendered judgment in favor of the defendants as to all counts of the plaintiff's complaint, and in favor of B Co. on the count of its counterclaim alleging breach of fiduciary duty. From the judgment rendered thereon, the plaintiff appealed to this court. Held: 1. The trial court properly concluded that B Co.'s counterclaim stated a claim on which relief could be granted: B Co. pleaded facts which sufficiently alleged a claim of breach of fiduciary duty, specifically, that the plaintiff owed a fiduciary duty to B Co., that the plaintiff breached that duty by acting in a manner that would personally benefit himself in the form of using B Co.'s funds for his own interests at the expense of the interests of B Co., and that B Co.'s damages were a result of the plaintiff's conduct; the plaintiff's emphasis on B Co.'s use of the term ''misappropriation'' was misplaced, as B Co.'s allegation that the plaintiff misappropriated funds was simply a recitation of facts describing con- duct in support of its claim for breach of fiduficary duty, rather than an attempt to state a cause of action for ''misappropriation.'' 2. The trial court improperly applied a six year statute of limitations to B Co.'s counterclaim: notwithstanding B Co.'s claim that it had set forth an action for an accounting, to which a six year statute of limitations would apply pursuant to statute (§ 52-576), B Co.'s counterclaim did not allege that it either made a demand of the plaintiff to furnish an accounting or that the plaintiff refused its demand, instead merely requesting in its prayer for relief an accounting of all B Co.'s funds that the plaintiff misappropriated; moreover, all of B Co.'s financial information was available to it by the time it filed its counterclaim, as evidenced by its calculation of the specific amount of money that the plaintiff had misappropriated; thus, although B. Co's counterclaim alleged that the plaintiff breached a fiduciary duty, it did not properly allege that the plaintiff's breach of that duty necessitated an accounting, and the plaintiff's breach of his fiduciary duty to B Co. did not prevent B Co. from ascertaining the amount of money that the plaintiff misappro- priated; B Co.'s counterclaim, rather, set forth a claim for breach of fiduciary duty, which is governed by a three year statute of limitations under the applicable statute (§ 52-577), and, because the question of whether the plaintiff's tortious conduct fell within that three year period implicated issues of fact, the trial court's judgment was reversed and the case was remanded for further proceedings. 3. The trial court improperly rejected the plaintiff's application to dissolve B Co. on the ground of oppression pursuant § 34-267 (a) (5) because that court applied an incorrect legal standard in evaluating the plaintiff's claim: this court concluded that a new trial was warranted on the plain- tiff's claim of oppression as to all of the complained of conduct, except for the plaintiff's termination of employment, as it was clear from the record that the court did not assess the plaintiff's claim of oppression by focusing on his reasonable expectations as a minority member of B Co. Argued December 5, 2019—officially released September 29, 2020

Convicted of the crime of breach of the peace in the second degree, the defendant appealed to this court. The defendant was involved in an altercation with an instructor at a tractor trailer training school, where he was enrolled. The altercation began in the school's student breakroom and then continued outside to a parking lot area in front of a garage on the premises. The defendant claimed that the evidence was insuffi- cient to support a finding that the conduct giving rise to the conviction had occurred in a public place, a necessary element of the applicable statute (§ 53a-181 (a) (1)). Held: 1. The state could not prevail on its argument that the defendant's claim on appeal was unreviewable in that the defendant, through counsel, explicitly waived his right to have the state prove beyond a reasonable doubt that the altercation occurred in a public place under § 53a-181 (a) (1) by conceding during closing argument that the altercation occurred in a public place, as defense counsel's remarks, whether viewed either in isolation or alongside the state's closing arguments and the court's jury instructions, did not demonstrate that the defendant intentionally relinquished or abandoned his right to have the state prove the public place element beyond a reasonable doubt. 2. The evidence was not sufficient to support the defendant's conviction of breach of the peace in the second degree, as the cumulative force of the state's evidence, when viewed in the light most favorable to sus- taining the verdict, was insufficient to establish beyond a reasonable doubt that the area in which the altercation occurred was a public place; the plain and ordinary meaning of ''public'' confirmed that the legislature intended for § 53a-181 (a) (1) to apply only to conduct that occurs on property that is held out for use by all members of the public, not just select groups, and, based on the text of the statute, its relationship to other statutes, and the plain meaning of the word ''public,'' the meaning of the term ''public place'' in § 53a-181 (a) was plain and unambiguous, and the state produced no evidence showing that the area in which the altercation occurred was used or held out for use by the public, and the jury was left to speculate about the characteristics of the location. Argued June 17—officially released September 29, 2020

Convicted, after a jury trial, of sexual assault in the first degree, sexual assault in the fourth degree and risk of injury to a child, the defendant appealed to this court. He claimed that he was entitled to a new trial on the basis of alleged prosecutorial improprieties during the state's closing argument and the state's examination of its witnesses, which resulted in a denial of his due process right to a fair trial, and that the evidence was insufficient to support the mandatory minimum sentence imposed by the court pursuant to statute (§ 53a-70 (b) (2)). Held: 1. The defendant could not prevail on his claim that he was deprived of his right to a fair trial as a result of alleged prosecutorial improprieties: the prosecutor's references to the complainant as the ''victim'' did not constitute prosecutorial impropriety as the prosecutor's use of the word ''victim'' was relatively infrequent, the court repeatedly instructed the jurors that the arguments of counsel were not evidence, the prosecutor reminded the jury at the beginning of her rebuttal that closing arguments were ''arguments,'' and, when defense counsel objected to the prosecu- tor's use of the word ''victim'' during closing argument, the trial court sustained the objection and immediately instructed the jury to disregard it, whereby the prosecutor promptly apologized in front of the jury; moreover, the prosecutor's statements expressing her opinion on the credibility of the victim during closing argument were proper argument because they reflected reasonable inferences that the jury could have drawn from the evidence produced at trial, and, as it was the defendant's theory of defense that the evidence showed that that the victim made up the allegations against the defendant, the prosecutor was allowed to address that argument in her closing argument; furthermore, the prosecutor did not improperly elicit comments on the credibility of the victim from the state's witnesses, as the witnesses' inappropriate answers to otherwise proper questions did not constitute prosecu- torial impropriety. 2. The defendant's unpreserved claim that there was insufficient evidence for the jury to find beyond a reasonable doubt that the victim was under ten years of age at the time of the first sexual assault to support the mandatory minimum sentence imposed by the court pursuant to § 53a- 70 was unavailing, as the victim testified that she was nine years old at the time of the first sexual assault, and this testimony, in conjunction with her testimony concerning the dates of the other incidents, provided a sufficient evidentiary basis for the jury to answer the interrogatory in the affirmative; moreover, even though the jury was presented with conflicting evidence as to the victim's age at the time of the first sexual assault, the jury was free to believe the victim's testimony that she was nine years old at the time, and, therefore, this court concluded that the evidence was sufficient to support the jury's finding. Submitted on briefs April 6—officially released September 29, 2020

Convicted, after a jury trial, of various crimes, including murder, in connec- tion with the shooting death of the victim, the defendant appealed. One individual, R, witnessed the shooting and called 911, but later, R was unable to identify the defendant in a photographic array prepared by the police. Several weeks after the shooting, the defendant and V were discussing the shooting in the defendant's vehicle, and the defendant admitted to having killed the victim. Without the defendant's knowledge, V had recorded the conversation on his cell phone and brought the recording to the police and, as the police requested, V then e-mailed the recording to the police. The state introduced a copy of V's recording into evidence at trial, over the defendant's objection. Held: 1. The trial court acted within its discretion when it limited two of defense counsel's closing arguments by providing the jury with curative instructions: a. Defense counsel improperly asked the jury to engage in speculation and improperly commented on facts not in evidence when counsel asked the jury to consider why the state did not ask R to make an in-court identification of the defendant, there having been no evidence in the record on which the jury could have based such a conclusion and counsel was well aware of the reason why the state did not make such a request; moreover, because it was well within the court's discretion to give its own curative instruction to the jury, the defendant's claim that the court was required to use the jury instruction language set forth in State v. Dickson (322 Conn. 410) was unavailing, as that argument was based on an incorrect reading of Dickson, and the jury instruction language therein was inapplicable. b. Defense counsel's investigative omission argument regarding the lack of a voice exemplar taken from the defendant to question whether it was the defendant's voice on the recording made by V improperly commented on facts not in evidence, the record having contained no evidence that defense counsel ever questioned any of the state's wit- nesses regarding a voice exemplar, ever sought a voice exemplar, or presented any testimony, expert or otherwise, on the subject of voice exemplars or police investigative techniques. 2. The defendant's claim that the trial court erred in admitting into evidence a copy of the recording of the defendant's confession was unavailing: the court did not abuse its discretion because a copy of the recording, rather than the original, was admissible pursuant to the applicable provi- sions of the Connecticut Code of Evidence (§§ 10-1, 10-2, and 10-3) and there was ample evidence in the record from which the court could have concluded that admission of the copy of the recording would not be unfair to the defendant; accordingly, because the provisions of the Code of Evidence ensured a fair and just outcome, this court declined to exercise its supervisory powers to heighten the requirements for the admission of copies of digital evidence. Argued May 15—officially released September 29, 2020

The plaintiff sought to foreclose a mortgage on certain real property owned by the defendant P, who filed an answer with special defenses and counterclaims. Thereafter, the plaintiff filed a motion to strike all of the defendant's special defenses and counterclaims. Several of the special defenses challenged the plaintiff's standing to commence the foreclosure action. Following an evidentiary hearing, the trial court determined that the plaintiff had standing and granted the plaintiff's motion to strike the special defenses that implicated the plaintiff's standing and denied the motion to strike as to the remaining special defenses and all of the counterclaims. The trial court thereafter rendered judgment in favor of the plaintiff, from which the defendant appealed to this court. Held: 1. The trial court properly determined that the plaintiff had standing to bring the foreclosure action; the court found credible evidence demonstrated that the note had been endorsed in blank prior to the commencement of the foreclosure action and had been in the plaintiff's possession until the time of trial; moreover, the defendant failed to rebut the presumption that the plaintiff, as holder of the note, was the rightful owner of the debt, as the court clearly credited testimony regarding when the note was endorsed and rejected assertions made by the defendant that the plaintiff was not in possession of the note during a certain time period. 2. Contrary to the defendant's claim, the trial court properly concluded that a decision of a New York court did not have preclusive effect under the doctrines of res judicata and collateral estoppel; the parties in the present case were not in privity with the parties in the New York case and the cases involved factually distinct claims and different loans. 3. The defendant's claim that the trial court erred in failing to consider whether the trust for which the plaintiff is trustee ever received the note and mortgage was unavailing; the court did in fact address this argument in its memorandum of decision on the foreclosure complaint and clearly rejected it, and the defendant failed to present evidence sufficient to rebut the presumption that the plaintiff was owner of the debt and entitled to enforce the terms of the note and mortgage and it was unclear whether the defendant could even challenge the nature of the transfer. 4. The trial court did not abuse its discretion in making certain evidentiary rulings denying certain of the defendant's motions and requests; it was not improper for the court to deny the defendant's motion for leave to add special defenses as that request was made more than three years after the commencement of the foreclosure action and only after the court had granted in part the plaintiff's motion to strike the defendant's special defenses; moreover, the court was within its discretion to deny the defendant's requests for deposition commissions in light of the fact that the defendant failed to show that certain of the proposed individuals had any knowledge of the note or that the denial hamstrung his ability to rebut the plaintiff's presumption of ownership of the note; further- more, the court properly determined that cease and desist orders of a New York state agency directed at the original lender that the defendant sought to introduce into evidence were irrelevant to the issue of standing, and the defendant did not pursue their admissibility. Argued January 21—officially released October 6, 2020

Convicted, after a jury trial, of two counts of risk of injury to a child in violation of statute (§ 53-21 (a) (1) & (2)), stemming from his alleged sexual abuse of his minor child, the defendant appealed to this court. Held that the trial court abused its discretion by admitting into evidence portions of the video recording of a forensic interview with the defen- dant's child conducted by C, a licensed clinical social worker, because the child's statements failed to satisfy the requirements of the medical diagnosis and treatment exception to the rule against hearsay as set forth in the Code of Evidence (§ 8-3 (5)): the state failed to adequately demonstrate that the statements were reasonably pertinent to obtaining medical treatment as the state could not demonstrate that the child understood C's interview to be for medical treatment, the child had received medical care prior to the forensic interview and the record did not establish that the forensic interview was used to inform the subsequent medical examination of the child, and the basic purpose of the interview was for an investigative purpose; moreover, the court's error was not harmless and substantially affected the jury's verdict, as there was a lack of corroboration in the form of witnesses to the alleged sexual abuse or physical evidence, the child's trial testimony was at times contradictory but also inconsistent with statements made during the forensic interview, and the fact that the jury deadlocked on a count of sexual assault in the first degree supported the conclusion that the admission of portions of the forensic interview played a significant role in the jury's verdict of guilty of two counts of risk of injury to a child. Argued May 11—officially released October 6, 2020

The petitioner, who previously had been convicted of sexual assault in the second degree, sought a writ of habeas corpus, claiming that his trial counsel rendered ineffective assistance when he requested a jury instruc- tion, which the trial court accepted and modified before instructing the jury, that contained a mandatory presumption that, if the jury believed that the petitioner's prior sexual misconduct had occurred, it was required to find that that conduct supported a theory that the petitioner had a propensity to commit similar criminal sexual misconduct. The habeas court rendered judgment denying the habeas petition. Thereafter, the petitioner filed a petition for certification to appeal using a Judicial Branch form on which he marked a box that stated that his grounds for appeal were written in a separate Judicial Branch form that pertained to the application for the appointment of appellate counsel and the waiver of fees, costs and expenses for the appeal to this court. The petitioner failed to attach that application form to his petition for certifi- cation to appeal. After the habeas court denied the petition for certifica- tion to appeal because it did not state any grounds for appeal, the petitioner filed an application for appointment of counsel form on which he identified the proposed grounds for appeal. The habeas court there- after granted the application for a waiver of fees, costs and expenses and appointed appellate counsel, 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: the habeas court was not apprised of the issue or issues that the petitioner sought to raise on appeal, as the petition for certification to appeal form did not state any grounds on which he proposed to appeal, the petitioner did not attach the application form to his petition for certification to appeal form, and, although the petitioner claimed that the habeas court should have reasonably con- cluded that he intended to appeal from the denial of his ineffective assistance of counsel claim, the habeas court was left to speculate as to what issue or issues he might have sought to raise on appeal, and his concession that certain other potential claims fell outside the scope of the habeas court's denial of certification to appeal did not negate his failure before the habeas court; furthermore, the petitioner's ineffective assistance of counsel claim was unavailing, as the trial court provided the jury with limiting instructions concerning the evidence of his prior sexual misconduct that were sufficient to counteract any ambiguity in his counsel's requested instruction, the petitioner was not prejudiced by the court's jury instruction, as the factual similarities between the prior sexual misconduct and that with which he was charged made the evidence of the prior misconduct so probative of his propensity to commit similar misconduct that there was no reasonable probability that the result of the trial would have been different, irrespective of any ambiguity in the court's instruction regarding the petitioner's prior sexual misconduct, and there was strong evidence to support the jury's finding that the victim did not consent to sexual intercourse with the peti- tioner. Argued July 1—officially released October 6, 2020

The plaintiff administrator of the estate of the decedent sought to recover damages from the defendant S for negligence in connection with the drug overdose and subsequent death of the decedent at her residence. He alleged that, on the day that the decedent overdosed, B, who lived with S at her residence, invited the decedent to consume drugs at the residence where the decedent became unresponsive and unconscious, that the decedent thereafter died and that the decedent's injuries and death were caused by S's negligence in that she knew or should have known that drugs were being used on the premises and she failed, inter alia, to take any action to remove the drugs from the premises. S filed a motion for summary judgment and an affidavit in support thereof in which she averred that she did not invite the decedent to her residence and B did not ask her permission to have him there, that she was not present at her residence when the decedent was there and that she did not learn that he had been there until the day after he had overdosed. Thereafter, the trial court granted, over S's objection, two motions filed by the plaintiff for an extension of time to respond to S's motion for summary judgment. Nearly two weeks after the second deadline date and four days before the rescheduled date for oral argument on S's motion for summary judgment, the plaintiff filed a third motion for an extension of time, which the court did not act on. Thereafter, following a hearing, the trial court granted S's motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Held: 1. The plaintiff's claim that the trial court abused its discretion in effectively denying his third motion for an extension of time to respond to S's motion for summary judgment because additional time for discovery was needed to obtain B's medical records and to perform depositions of other witnesses was unavailing; the plaintiff already had been granted two prior motions for an extension of time and there were no affidavits before the trial court articulating with specificity what additional discov- ery might justify a further continuance of the hearing and, potentially, the trial, the third motion for an extension of time was filed just four days before the rescheduled hearing and there was an absence of information verified by affidavit detailing precisely what facts were within the exclu- sive knowledge of the person to be deposed. 2. The plaintiff could not prevail on his claim that the trial court improperly granted S's motion for summary judgment, which was based on his assertion that that court erred in determining that there was no disputed issue of material fact that S did not owe a duty of care to the decedent: no genuine issue of material fact existed as to whether S was at her residence when the decedent was there, as the only evidence before the court on that issue was S's affidavit in which she averred that she was not present when he was there; moreover, contrary to the plaintiff's contention that S had a duty to aid and to protect the decedent because she knew or should have known that B possessed drugs and alcohol in her residence and that they would cause the decedent harm, on the basis of the evidence presented, this court could not conclude that an ordinary person in S's position would anticipate that the decedent would ingest drugs in her residence and suffer serious physical injuries that would result in his death, and the plaintiff did not allege any recognized special relationship of custody or control between the decedent and S that would warrant the imposition of a duty; furthermore, the plaintiff's assertion that S owed the decedent a duty of care under the theory of premises liability was without merit, as he failed to provide any case law to support his contention that B's possession of drugs and alcohol constituted a defect on S's premises. Argued February 18—officially released October 6, 2020

The plaintiff appealed to this court from the judgment of the trial court granting the parties joint legal custody of their minor child and giving the defendant unsupervised visitation. The plaintiff claimed that the trial court erred in awarding the defendant unsupervised visitation and in not finding that he had substance abuse issues. After the commencement of her appeal, the plaintiff filed a postjudgment motion to modify the custody and visitation order. The court modified the visitation order, changing the defendant's visitation to supervised visits and finding that the defendant had substance abuse issues. Held that the plaintiff's appeal was dismissed as moot because the aspects of the custody order that she challenged on appeal were superseded by the subsequent order issued in response to the plaintiff's motion to modify; moreover, although an order superseding the order of joint legal custody was not issued, the plaintiff failed to adequately brief this issue on appeal and, therefore, any claim of error pertaining to the order of joint custody was not properly before this court. Argued May 22—officially released October 6, 2020

The plaintiff hospital sought to recover damages in connection with unpaid medical services that it provided to the defendant. The hospital billed Medicare for payment, which initially paid the entire balance. Subse- quently, Medicare rescinded coverage for a portion of the services after discovering that the defendant had workers' compensation coverage for a portion of those medical expenses. The hospital informed the defen- dant of this development and asked the defendant to contact Medicare to resolve the coverage dispute. The defendant refused to contact Medi- care and did not submit payment for the remaining balance to the hospital. Thereafter, the matter was referred to an attorney fact finder, who issued his report, finding that the defendant owed a balance to the plaintiff and that the defendant failed to prove her special defense of non compos mentis. The trial court overruled the defendant's objection to the fact finder's report and rendered judgment for the plaintiff. On appeal, the defendant claimed, inter alia, that the fact finder's conclu- sions were not based on evidence presented at trial. Held: 1. The defendant's claim that the fact finder's conclusions were not based on evidence presented at trial was unavailing, as there was adequate support in the record for the findings of fact reached by the fact finder; the record contained sufficient evidence for the fact finder to conclude that the plaintiff provided medical services to the defendant, that the defendant owed a balance for the services rendered, and that the defen- dant had not paid the balance and, therefore, the fact finder's findings were based on evidence presented at trial and were consistent with the applicable rule of practice (§ 19-8). 2. The defendant's claim that the fact finder improperly failed to consider her contention that the plaintiff had a duty to contact Medicare to resolve the coverage issue was unavailing, as the defendant's pleadings did not provide a legal framework from which the fact finder could properly assess whether it was the plaintiff's duty to resolve the coordination of benefits issues; the failure to perform a contractual or legal duty must be alleged as a special defense, and as there was no such special defense properly before the fact finder, the fact finder had no obligation to consider evidence not relevant to the legal issues before it. 3. The trial court properly denied the defendant's objections to the fact finder's report, as there were sufficient subordinate facts contained in the record for the fact finder's recommendations, and there was no legal framework for the fact finder or the trial court to determine whether the plaintiff failed to perform a contractual or legal duty; the fact finder was not required to determine whether the plaintiff had a duty to dispute Medicare's claim that its liability was secondary, and the trial court appropriately declined to do so as well. 4. This court declined to review the defendant's claim that a certain hospital debt collection statute (§ 19a-673d) compelled judgment in favor of the defendant, as the record revealed that § 19a-673d did not appear in the operative pleadings; although the defendant originally pleaded a different statute (§ 19a-673) concerning collections by hospitals from uninsured patients as a special defense, that special defense was ulti- mately stricken, the defense was not repleaded, and it was not distinctly raised before the fact finder. Argued May 15—officially released October 13, 2020

The plaintiff mother, as the administratrix of her daughter's estate, sought to recover damages in connection with her daughter's drowning death in an aboveground pool from the defendants, the town of Plainfield and two town employees, for their failure to inspect the pool to ensure that mandated safety measures had been installed. The plaintiff was a tenant of the property where the accident occurred. The pool did not have a self-closing or self latching gate, or a pool alarm, which were required as part of the state building code. The defendants filed a notice of intent to seek apportionment pursuant to statute (§ 52-102b), as to the property owners for their alleged negligence in failing to ensure that the pool met all required safety requirements. The defendants also filed an appor- tionment complaint, as to the former tenants of the property, alleging that they were negligent in failing to notify the defendants that the pool had been constructed and that an inspection was needed. The plaintiff thereafter filed an objection to the defendants' notice of intent to seek apportionment as to the property owners, and an objection to the defen- dants' apportionment complaint against the former tenants, on the ground that the plaintiff's cause of action in the revised complaint was not grounded in negligence but, rather, an intentional or reckless tort pursuant to the municipal liability statute (§ 52-557n (b) (8)), and, there- fore, the apportionment statute was inapplicable. The trial court sus- tained the plaintiff's objections. On appeal, the defendants claimed that the trial court erred in sustaining the plaintiff's objections on the basis that the plaintiff's revised complaint implicated both exceptions to municipal immunity contained in § 52-557n (b) (8) and that the first exception employed a negligence standard, not a recklessness standard, thus allowing the defendants to seek apportionment. Held that the trial court erred in sustaining the plaintiff's objections to the defendants' efforts to seek apportionment: the plaintiff alleged in her complaint that at all relevant times the town's employees acted within the scope of their employment with the town, those employees and thus, the town, knew that a pool had been built at the property and had actual notice that the construction of the pool was completed in violation of the applicable laws and/or that the pool constituted a hazard to health or safety, thereby alleging that the town employees, with actual knowledge of a violation of a law and/or the existence of a hazardous condition, failed to conduct an inspection, in accordance with the first exception of § 52-557n (b) (8), which contains a negligence standard, and unlike the second exception of § 52-557n (b) (8), recklessness is not an element of the actual notice exception; as a result of the plaintiff's allegations of a claim of negligence on the part of the municipal actors, the defen- dants can seek apportionment as to the negligence of the former tenants and property owners pursuant to the apportionment statute (§ 52- 572h (o)). Argued June 17—officially released October 13, 2020

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 motions for contempt. He claimed that the court improperly determined that he wilfully had failed to comply with his financial obligations to the defendant despite a lack of any finding by the court regarding his assertion that he lacked the ability to pay and found that his investment in a certain franchise, C Co., breached the parties' separation agreement despite also finding that he was current on his financial obligations to the defendant at the time that the invest- ment was made. Held: 1. The trial court's findings that the plaintiff engaged in wilful violations of his financial obligations were clearly erroneous and it was an abuse of discretion for the court not to have considered the issue of the plaintiff's ability to pay or to have rejected that defense before finding that his failure to meet his financial obligations was wilful: the plaintiff unques- tionably raised as a defense that he no longer could fully satisfy his financial obligations as set forth in the dissolution judgment because he had suffered a considerable drop in income due to health problems, and, in support, provided evidence regarding his finances; moreover, the court expressly credited some of the plaintiff's evidence in its written decision and made no indication that it did not credit any of the financial information provided by the plaintiff and the defendant provided no contrary financial records to the court, and the court's finding of wil- fulness stood in direct contradiction to the facts found related to the plaintiff's ability to pay; accordingly, the plaintiff met his burden of both raising the inability to pay defense and presenting evidence supporting it that was at least in part credited by the court. 2. The trial court's interpretation of the parties' separation agreement was clearly erroneous, and its finding that the plaintiff breached the agree- ment by investing in C Co. could not stand; the only evidence before the court was that the plaintiff's investment in C Co. occurred in July, 2015, which unquestionably was before the earliest date on which the plaintiff's obligation to make a lump sum installment payment arose pursuant to the agreement, December, 2015, and, because the agreement limited the plaintiff's right to make such investments only in the event that he was not current on his lump sum payment obligations, and no such obligation existed at the time he invested in C Co., the court's finding was a misinterpretation of the express terms of the agreement. Argued February 20—officially released October 13, 2020

The plaintiff sought to recover damages from the defendants, H and city of New Haven, for injuries she sustained when she was struck by a police cruiser driven by H while she was a pedestrian crossing a city street. Following a bench trial, the trial court found in favor of the plaintiff and awarded her economic and noneconomic damages. In calculating the noneconomic damages, the trial court found that the emotional trauma suffered by pedestrians struck by vehicles is ''generally greater'' than that suffered by the occupants of a motor vehicle involved in an accident. On the defendants' appeal to this court, held that the trial court's factual finding that pedestrians struck by motor vehicles suffer greater emotional trauma than occupants of a motor vehicle involved in an accident was clearly erroneous; there was no evidence in the record to support the court's finding and it was not a matter of common knowledge but, rather, a determination subject to verification by medical science and, in light of the weight given by the court to this finding in reaching its award of noneconomic damages and the lack of subjective complaints from the plaintiff regarding any emotional trauma she suf- fered, the judgment with respect to the award of noneconomic damages was reversed and the matter was remanded for a new hearing in damages. Argued June 29—officially released October 13, 2020

The plaintiff, A Co., sought to foreclose municipal tax liens on certain real property owned by the defendant estate. After A Co. had commenced this action, R Co. was substituted as the plaintiff and filed an amended complaint. Thereafter, the estate was defaulted for failure to plead, and the trial court granted R Co.'s motion for judgment and rendered judgment in part in favor of R Co. as against the estate as to certain counts of the amended complaint. On the estate's appeal to this court, held that the estate's appeal was dismissed as moot, there having been no practical relief that that this court could grant, as the judgment as against the estate was a nullity because the estate was not a legal entity that could be sued, and, therefore, the trial court did not have jurisdiction to render a judgment against it; moreover, vacation of the judgment as against the estate was appropriate under the circumstances of this case because the estate did not cause the appeal to be moot and it would prevent the judgment from spawning legal consequences and clear the path for future relitigation of the issues. Argued December 4, 2019—officially released October 20, 2020

The plaintiff sought to recover damages from the defendant bank for viola- tions of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) that she alleged occurred in its handling of the modification process with respect to her mortgage. The plaintiff had obtained a mortgage loan from W Co. that was secured by certain real property. The plaintiff and W Co. thereafter engaged in discussions regarding a mortgage modification and eventually reached an agreement. A few days prior to the consummation of the modification agreement, W Co.'s assets, including the plaintiff's existing loan, were acquired by the defendant after W Co. was deemed a failed financial institution and was taken over by the Federal Deposit Insurance Corporation. The plaintiff continued to submit applications for various loan modifications or programs but failed to obtain new loan terms until several years later, when the plaintiff and the defendant executed a new loan agreement. The plaintiff commenced the present action alleging that the defendant engaged in deceptive and unfair trade practices with respect to the loan modification process and the defendant filed a counterclaim, seeking to foreclose on the mortgage. After a jury trial, the jury found in favor of the defendant on the plaintiff's CUTPA claim. After a bench trial on the counterclaim, the court found in favor of the defendant and rendered a judgment of strict foreclosure. From the judgment, the plaintiff appealed to this court. Held: 1. This court declined to review the plaintiff's claim of error as to the trial court's judgment of strict foreclosure, the plaintiff having failed to adequately brief that claim; the plaintiff's briefs contained no citation to any evidentiary rulings made within the bench trial on the defendant's foreclosure counterclaim that the plaintiff claims were in error and, therefore, any claim that the judgment of strict foreclosure was made in error was deemed abandoned. 2. The plaintiff's claim that the trial court improperly granted the defendant's motion in limine to preclude evidence of W Co.'s conduct pertaining to the 2008 modification agreement was dismissed as moot, the plaintiff having failed to challenge both of the court's independent bases for its evidentiary ruling; the court granted the motion in limine because W Co.'s conduct was not pleaded in the plaintiff's complaint and because the defendant could not be held liable for W Co.'s purported conduct without the plaintiff first having exhausted her administrative remedies pursuant to the Financial Institutions Reform, Recovery and Enforce- ment Act of 1989 (FIRREA) but, on appeal, the plaintiff challenged only the court's interpretation and application of FIRREA and, therefore, this court could grant no practical relief to the plaintiff. 3. The trial court did not abuse its discretion in granting the defendant's motion in limine to preclude evidence of a consent order between the defendant and the federal government on the basis that it was not relevant to the pleadings: the consent order made no reference to the plaintiff or her mortgage loan and the plaintiff did not allege in her pleadings the activity of the defendant that the government had identified as being improper; moreover, because the plaintiff failed to adequately brief how the preclusion of two other documents was harmful, this court declined to consider the plaintiff's claim of error as to the court's evidentiary ruling regarding these two documents. 4. The trial court did not abuse its discretion in denying the plaintiff's request to amend her complaint; the request to amend was filed the morning that the jury trial was to begin and the court noted its concern that allowing the amendment would cause an undue delay of the trial due it its substantial changes to the pleadings. Argued February 10—officially released October 20, 2020