Volume 212 — Connecticut Appellate Reports

The plaintiff town sought to recover damages from the defendant contractor for breach of contract. The plaintiff owned a vacant brass mill factory that was contaminated with, inter alia, polychlorinated biphenyls (PCBs). The plaintiff, on the advice of consultants, applied to the United States Environmental Protection Agency (EPA) for permission to demol- ish and clean up the property and engage contractors to perform the work. The plaintiff issued a notice inviting prospective contractors to provide bids for the third phase of the project, which involved the demolition, abatement and remediation of the property. The notice indi- cated that the contractor would be allowed to keep the scrap value of any structural steel salvaged from the site. The plaintiff made all public information about the project available to prospective bidders, including a report from one of its consultants that referenced the presence of PCBs throughout the building. The plaintiff also provided a letter to all prospective bidders clarifying that the selected contractor would be responsible for the sampling and disposal of any PCB contaminated material. The defendant submitted the winning bid for the contract, in which it did not allocate any funds for the remediation or disposal of any contaminated structural steel on the site, as it believed that the steel was not contaminated and could be recycled without remediation. Once selected, the defendant executed a certification acknowledging that it had read and agreed to abide by all conditions set forth in the EPA's approval letter for the third phase of the project, which included attachments regarding the cleanup of PCB contaminated material and correspondence between the EPA and the plaintiff regarding the PCB contamination of various materials, including steel beams. The parties then entered into a contract for the phase three work, which expressly incorporated the EPA approval letter and established a 140 day deadline for the defendant to complete the job. Two months after the plaintiff had issued the defendant a notice to proceed, the defendant still had not obtained EPA approval of its contractor work plan, which was required before it could begin any substantial demolition work, and it had become engaged in a dispute with the plaintiff regarding the testing and disposal of the structural steel on the property. The defendant contended that the plaintiff mischaracterized the steel, leading it to believe that the steel was not contaminated and could be disposed of without remediation. The defendant claimed that it remained ready, able and willing to perform the work on the project, but it refused to do so if it was required to sample the steel to determine whether it was contaminated and told the plaintiff that it had accidentally executed the contract, as it had submitted its bid without information regarding the contamination of the steel or knowledge that the disposal of any contami- nated steel would be its responsibility. Thereafter, the plaintiff sent a letter to the defendant, notifying the defendant that it was in default because, inter alia, it would not be able to timely complete its work under the contract and had anticipatorily breached various provisions of the contract, and, consequently, its employment was terminated. The plaintiff rebid the project and hired C Co. to complete the work on the site, including the testing and disposal of the structural steel. C Co. was unable to finish its work, however, due in part to the increased expense and time required to finish the project as a result of the defendant's intervention, which led to additional testing requirements imposed by both the EPA and the trial court. The trial court found that the plaintiff had established its claim for breach of contract and had suffered dam- ages, limited to the liquidated damages provision of the contract, in an amount equal to 254 days, less the retainage held by the plaintiff. The defendant appealed, and the plaintiff cross-appealed, claiming that the trial court erred in its award of damages. Held: 1. The defendant's claim that the trial court misapplied state and federal environmental laws was belied by the trial court's findings, which were supported by the record: the defendant did not raise before the trial court, nor did the trial court address, the defendant's claims that the plaintiff lacked proper authorization from the EPA to work on the undis- closed waste at the site or that the plaintiff and the trial court disregarded certain statutory (§ 22a-467) requirements relating to the disposal of PCB contaminated material, and, accordingly, this court declined to address those claims; moreover, the defendant's claims that the plaintiff failed to adequately characterize the site and that the plaintiff was required under the contract to paint chip test the steel beams prior to the defendant performing any work at the site lacked merit, as the trial court found that the contract did not require paint chip testing, that the testimony of the plaintiff's expert witnesses that paint chip sampling under such circumstances was not customary was credible, that there was no express statement in the contract that the steel was not contami- nated, that the plaintiff performed its obligations under the contract, and that the contract overwhelmingly placed the obligation for the testing, handling and processing of the material on the site on the defendant and expressly made clear that the risk of the condition of the materials being different than anticipated was solely on the defendant, and such findings were supported by the clear and unambiguous provisions of the contract and the documents related thereto; furthermore, this action involved a breach of contract claim, and the defendant failed to provide a clear explanation as to how its claims concerning the EPA regulations circumvented the trial court's findings regarding the contract and failed to raise at trial its claims that the plaintiff's conduct constituted a viola- tion of the EPA regulations and that the trial court erred in failing to find such a violation; additionally, although the defendant may have made its bid and entered the contract on the basis of a mistaken basic assumption, neither the trial court nor this court was permitted to rewrite the contract or to relieve the defendant of its obligations thereunder, as the defendant was a sophisticated and experienced party with respect to the type of work covered by the contract, it had the opportunity to address any issues it had with the proposed terms and interpretation of the contract prior to its execution, and the circumstances of the contract formation were not unconscionable. 2. This court declined to review the defendant's claim that the trial court erred in finding that the contract was not impossible to perform: because the defendant failed to plead impossibility as a special defense, such issue was not properly before the trial court, which, accordingly, did not undertake the necessary analysis of such claim nor did it make any findings thereon, and, as a result, the trial court could not have erred in failing to find that the defendant's performance under the contract was impossible; moreover, it was incumbent on the defendant to seek an articulation of the trial court's decision as to its failure to make a finding on a claim that the defendant alleged was properly before the trial court, and, in the absence of such an articulation, the record was inadequate for this court to review the claim. 3. The defendant's challenge to the trial court's implicit determination that the plaintiff lawfully had terminated the contract was unavailing: the defendant's claim was premised on a faulty assumption, namely, that the plaintiff was in default under the contract, because the trial court expressly found that the plaintiff had performed its obligations under the contract and that there was ample evidence of the defendant's breach of its obligations under the contract, which findings were supported by the record. 4. The defendant's claim that the change orders granted to C Co. in connec- tion with additional paint chip testing requirements imposed by the EPA—which were not a part of the defendant's contract with the plain- tiff—constituted an admission by the plaintiff that its contract with the defendant could not have been performed without such testing was contrary to the record and unavailing: the defendant's argument failed to acknowledge the basis for the change orders sought by C Co., namely, that the trial court found that the plaintiff was not required to conduct paint chip sampling under the contract with the defendant because the EPA did not require such testing until after the plaintiff had terminated that contract, as the requirement was instituted as a result of the defen- dant's unilaterally contacting the EPA with respect to the paint chip sampling it had conducted on the site as part of this litigation; moreover, such finding was supported by the record and was not clearly erroneous. 5. Although the amount of the trial court's award of liquidated damages was proper, that court erroneously failed to determine whether the plaintiff proved that it had suffered any compensable actual or consequential nondelay damages: a. The trial court improperly determined that liquidated damages were the plaintiff's exclusive remedy under the contract: the language in the liquidated damages provision clearly applied to damages resulting from delay, there was no language in the contract expressly stating that such damages were the plaintiff's exclusive remedy for a breach unrelated to the defendant's delay in performance, and to interpret liquidated damages as the plaintiff's sole remedy would render the contract's damages and losses provision superfluous; accordingly, the trial court erroneously failed to determine whether the plaintiff proved that it had suffered any compensable actual or consequential nondelay damages and, if so, the amount of such damages, and, as a result, the case was remanded to the trial court for a new hearing in damages. b. The trial court did not err in limiting the award of liquidated damages to 254 days: the plaintiff's claim on appeal that liquidated damages instead should have run through the date of the trial court's decision failed, as the plaintiff did not make such a request at trial and the premise of such claim no longer existed because it was based on the trial court's determination that liquidated damages were the plaintiff's exclusive rem- edy under the contract, which this court concluded was made in error. Argued November 30, 2021—officially released April 26, 2022

The petitioner, who had been convicted, following a jury trial, of felony murder, sought a writ of habeas corpus, claiming that his trial counsel, J, had provided ineffective assistance and that his rights to due process and to a fair trial had been violated by the prosecutor's failure to disclose material evidence that was favorable to the defense. Following a hearing, the habeas court denied the petition. Thereafter, the habeas court 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, the petitioner having failed to demonstrate that his claims involved issues that were debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised were adequate to deserve encouragement to proceed further: this court declined to review the petitioner's claim that the habeas court deprived him of his statutory and constitutional rights in failing to admit into evidence or to consider the transcript of his underlying criminal trial, as the petitioner did not raise any claims relating to the habeas court's treatment of the criminal trial transcript in his petition for certification to appeal; moreover, based on the underlying facts as found by the habeas court, this court con- cluded that the habeas court properly found that the petitioner failed to establish that J rendered ineffective assistance, as that court correctly determined that the petitioner failed to establish prejudice on the basis of J's failure to explore the condition of the victim's body when cross- examining the state's main witness, B, as the petitioner failed to present B as a witness at the habeas trial, or on the basis of J's failure to consult and call as a witness a forensic expert as, although the petitioner asserted that an expert could have provided important information to his counsel, he failed to state how such information would have impacted the case, or on the basis of J's failure to follow up on bloodstains found in the victim's car, the petitioner having failed to link the victim's car and the bloodstains in it to the murder, and this court declined to review the petitioner's claim that J failed to follow up on the handling of the victim's car by the police, as the claim was not distinctly raised before or addressed by the habeas court; furthermore, this court concluded that the habeas court properly determined that there was no violation of Brady v. Maryland (373 U.S. 83), because, although the prosecutor failed to disclose to the petitioner that DNA evidence obtained from bloodstains in the victim's car generated a match to a convicted offender, the petitioner failed to establish a connection between the murder and those bloodstains and thus failed to show that evidence of that match was material to his defense. Argued January 26—officially released April 26, 2022

The defendant state of Connecticut appealed from the judgment of the trial court denying its motion to dismiss the plaintiff's action on the ground of sovereign immunity. Pursuant to the applicable statute (§ 4-147), the plaintiff filed a notice of claim with the Office of the Claims Commis- sioner, seeking permission to sue the defendants, the state and S, a physician employed by the University of Connecticut Health Center, for damages for emotional distress and loss of consortium resulting from the death of his domestic partner, which he claimed was caused by the medical malpractice of S and the hospital that provided her care, which was a part of the University of Connecticut Health Center. The commis- sioner authorized the plaintiff to sue for damages of up to $500,000 for alleged medical malpractice. The plaintiff commenced an action against the defendants for bystander emotional distress. The defendants filed a motion to dismiss, which the trial court granted, concluding, inter alia, that the plaintiff's claim was barred by sovereign immunity. This court affirmed the trial court's decision, concluding that the plaintiff's derivative claim was not viable because it was not accompanied by a wrongful death action brought by the decedent's estate. The plaintiff commenced the present action against the defendants, alleging wrongful death in his capacity as administrator of the decedent's estate and bystander emotional distress in his individual capacity. The defendants filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the commissioner had not granted the plaintiff permission to bring a claim on behalf of the decedent's estate and that the wrongful death action was barred by the applicable statute of limitations (§ 52-555). The plaintiff withdrew its claims against S and, thereafter, the trial court denied the motion to dismiss, determining that the plaintiff's notice was sufficient and that the commissioner's waiver of sovereign immunity validly encompassed the claims. On the defendant state's appeal to this court, held: 1. The trial court improperly denied the defendants' motion to dismiss: the plaintiff's notice of claim that was filed with the commissioner indicated only that he sought to bring a claim against the defendants in his capacity as an individual and did not properly apprise the commissioner of the plaintiff's intention to sue the state in an administrative capacity; more- over, contrary to the plaintiff's assertion, his notice of claim was not analogous to that provided to the commissioner in Arroyo v. University of Connecticut Health Center (175 Conn. App. 493), which set forth the same claim that was argued at trial merely in a slightly different fashion, because, in the present case, the plaintiff's wrongful death action brought as administrator of the decedent's estate and his derivative bystander emotional distress action brought in his individual capacity were two wholly separate claims; accordingly, the commissioner's waiver of sover- eign immunity could not be said to encompass the wrongful death claim at issue in the appeal, and the trial court did not have subject matter jurisdiction over the plaintiff's claims. 2. The accidental failure of suit statute (§ 52-592) did not save the plaintiff's action from his lack of compliance with the statute of limitations for wrongful death actions: the trial court's reliance on Isaac v. Mount Sinai Hospital (210 Conn. 721) in determining that § 52-592 applied to the present action was misplaced, as, in Isaac, our Supreme Court liberally construed § 52-592 to find that the statute saved the plaintiff's second wrongful death action because the cause of action, claimed factual background and defendants were identical to those of her first action and, in the present case, the plaintiff did not bring the same claim in two consecutive actions; moreover, at the time of his first action, the plaintiff did not meet the statutory requirement to bring a claim on behalf of the decedent's estate because he did not become the administrator of the estate until after the first action was dismissed and at no point during the pendency of the first action did he hold himself out to be the administrator of the estate; accordingly, the plaintiff's wrongful death action did not overlap with his individual claim in his first action in a manner that would implicate § 52-592, and the judgment of the trial court was reversed and the case was remanded with direction to render a judgment of dismissal. Argued December 7, 2021—officially released April 26, 2022

Convicted, after a jury trial, of various crimes in connection with an alterca- tion with his brother, A, the defendant appealed to this court. The defendant called A on the phone, and, during that call, A was given reason to believe that the defendant had been consuming alcohol. The defendant expressed his intent to go to A's home, where A lived with his minor daughter. A warned the defendant that he could not come to the home if he was intoxicated because A's daughter was with him. Later that day, while A and his girlfriend, T, were inside of the home, the defendant arrived. The defendant, who did not have a key to the home, banged on the locked front door, and then broke a window on the locked back door and entered the home. A and T fled the home through the front door. The defendant, brandishing a wooden baseball bat, emerged from the home and began to strike A's automobile, which was parked in the driveway, with the bat. The defendant also used the bat to damage property inside of the home. Held: 1. The defendant could not prevail on his claim that the state presented insufficient evidence that he committed burglary in the first degree: the state's theory of the case, that the defendant entered or remained unlawfully in the victim's home, was legally viable as the defendant's entry into the home was unlawful because A, who was occupying the home, testified that the defendant was not a resident of the home at the time of the incident, that A and his daughter resided there, and that A had communicated to the defendant that he was not permitted to enter the home and, although the defendant claimed that he was granted a license to enter the home by J, his mother and the undisputed owner of the home, this claim rested entirely on the credibility of J's testimony, which was challenged at trial, and this court presumed that the jury, the sole arbiter of the credibility of the witnesses, disbelieved J's testi- mony to the extent that she testified that she gave the defendant permis- sion to enter the home; moreover, J's familial relationship to the defen- dant reasonably could have given the jury reason to consider with skepticism her testimony as, contrary to J's testimony that the defendant had a key to the residence, the state presented evidence that the defen- dant broke down a door in order to enter the home and that the defendant wrote letters to J in which he urged her not to cooperate with the prosecution; furthermore, the evidence was sufficient to prove beyond a reasonable doubt that the defendant was armed with a dangerous instrument as there was direct evidence, through T's testimony, regard- ing the defendant's use of a baseball bat in A's driveway immediately after he had illegally entered and remained in A's home, which made it more likely that the defendant possessed the baseball bat while he was inside of the home and that he used the bat to cause damage to property inside of the home, which was undamaged prior to his unlawful entry. 2. The defendant's unpreserved claim that the trial court's instruction to the jury concerning the charge of burglary in the first degree constituted plain error was unavailing: notwithstanding the defendant's claim that the court improperly omitted a necessary portion of the instruction because, although it instructed the jury that it needed to find that the defendant acted with the specific intent to commit either a felony or a misdemeanor in the home, it failed to identify by name one or more specific felony or misdemeanor offenses, the alleged error did not involve the court's failure to include language from a mandatory charging statute; moreover, this court was not persuaded that allowing the alleged error in the instruction to stand uncorrected would work a manifest injustice, as the defendant's argument was undermined by the fact pat- tern that was reflected in the evidence and expressly relied on by the prosecutor during oral argument, which pointed to the defendant's intent to commit three different crimes, all of which would rise to the level of intent required by the burglary statute; furthermore, although the better practice would have been for the trial court to have instructed the jury with respect to the intent to commit one or more named felony or misdemeanor offenses, the claimed error was unlikely to have guided the jury to an incorrect verdict in light of the evidence and arguments advanced in the present case. Argued October 21, 2021—officially released May 3, 2022

The plaintiffs brought an action for, inter alia, nuisance, against several of their neighbors, alleging that the neighbors encouraged and allowed their dogs to urinate and defecate near the windows of the plaintiffs' condominium properties and that several neighbors, including the defen- dants F and P, made false or exaggerated statements to the police in an investigation of the plaintiff R's interactions with some of his neighbors related to the dog issues that led to his arrest. The trial court granted the special motions filed by F and P, pursuant to Connecticut's anti- SLAPP statute (§ 52-196a), to dismiss the counts of the complaint asserted against them. On appeal, the plaintiffs claimed that the court erred in dismissing the counts of the complaint against F and P alleging nuisance. Held that, as F and P failed to satisfy their initial burden under § 52-196a as to the claims alleging nuisance, the trial court incorrectly granted the special motions to dismiss as to those claims: the alleged conduct of F and P, including walking a dog and allowing it to urinate and defecate in a certain location and encouraging such behavior with the dog, did not fit within the ambit of protected constitutional conduct as defined by § 52-196a, which concerns the exercise of free speech, the right to petition and the right of association; moreover, the alleged conduct relating to the nuisance claims was not done in connection with a matter of public concern, as the dispute did not relate to the government, zoning, regulatory matters, a public official or figure, or an audiovisual work, the location of the conduct did not relate to health or safety, and the well-being of the community was not affected by the conduct. Argued January 20—officially released May 3, 2022

The plaintiffs, retired city firefighters, filed a motion for contempt alleging that the defendant city had violated a judgment of the trial court incorpo- rating a settlement agreement in which the defendant had agreed to provide a health benefits package administered by A Co., and that the package would not change without the plaintiffs' written consent or a legislative mandate. The defendant thereafter replaced the plan adminis- tered by A Co. with a health insurance plan administered by C Co. and a prescription drug plan administered by V Co. The plaintiffs claimed that, by making this change, the defendant had diminished the health insurance benefits to which they were entitled pursuant to a collective bargaining agreement. Following a hearing on the contempt motion, the trial court concluded that the agreement was clear and unambiguous and that the defendant violated the judgment by changing the plaintiffs' health insurance plan administrators without their written consent. The court, however, denied the motion for contempt because all of the claims submitted by the plaintiffs under the C Co. plan were paid in a manner identical to the A Co. plan and, therefore, the court concluded that the defendant had not wilfully violated the judgment. On the plaintiffs' appeal and the defendant's cross appeal to this court, held that the trial court properly denied the plaintiff's motion for contempt: this court concluded that the trial court incorrectly determined that the defendant violated the agreement by changing the third-party administrators because the reference to the A Co. plan in the agreement was used to establish the health-care benefits to which the plaintiffs were entitled, the agreement did not state that a specific third party must administer those benefits in perpetuity, the defendant's agreement that it would not change or diminish the benefits that comprised the entire health- care package did not extend to the question of which entity would operate as a third-party administrator, and nothing in the agreement suggested that the parties intended to permanently establish a third- party administrator, accordingly, because the substance of the health- care package was not changed or diminished, the defendant could not be said to have violated the agreement and, therefore, there was no basis for a finding of contempt. Argued September 16, 2021—officially released May 10, 2022

The plaintiff state of Connecticut sought a judgment declaring that certain legislation (2017 Special Acts, No. 17-4), which authorized the defendants to proceed before the Claims Commissioner on their claim, previously filed in 2007 and that had been dismissed as untimely and barred on sovereign immunity grounds, constituted an unconstitutional public emolument in violation of article first, § 1, of the Connecticut constitu- tion. In 2007, the defendants, a mother and her two sons, filed a notice of claim with the Claims Commissioner, seeking to recover damages from the state for the alleged violation of their federal and state constitu- tional rights to a free public education for the two sons in a safe school setting. The Claims Commissioner dismissed the claim for lack of subject matter jurisdiction on the ground that the claim addressed matters occurring more than one year prior to the date of the filing and, therefore, was filed outside of the statutorily (§ 4-148 (a)) prescribed one year time limit. The defendants sought review from the legislature pursuant to statute (§ 4-158 (a)), which approved a joint resolution that vacated the decision of the Claims Commissioner and authorized the defendants to institute and prosecute an action against the state, and the defendants subsequently commenced an action thereto. Thereafter, the trial court granted the state's motion to dismiss, reasoning that the joint resolution constituted an unconstitutional public emolument in violation of article first, § 1, of the Connecticut constitution. On appeal, this court affirmed the judgment of the trial court, holding that the defendants' claim was time barred by the one year statute of limitations set forth in § 4-148 (a), and that the joint resolution had failed to identify any compelling equitable circumstances or public purpose served by permitting the defendants to bring an untimely claim against the state. In 2013, the defendants filed a second claim with the Claims Commissioner, alleging that they were harmed by the General Assembly's failure to articulate a public purpose in the joint resolution and sought to revive their 2007 schools claim and damages and other relief from the state for its subse- quent negligence in failing to articulate a public purpose in the joint resolution (legislative negligence claim). The Claims Commissioner granted the state's motion to dismiss. The defendants again sought review from the legislature, which approved the special act that author- ized the defendants to present their claims to the Claims Commissioner for injuries alleged to have accrued in 2006, reviving the defendants' 2007 schools claim. The state then instituted the declaratory judgment action. The defendants filed a counterclaim, alleging that the state's action violated their due process rights. The state moved to dismiss the defendants' counterclaim on the ground that it was barred by sovereign immunity. The state filed a motion for summary judgment, claiming that the special act constituted an unconstitutional public emolument, and that the defendants were collaterally estopped from arguing that their claims were timely or that there was a legitimate public purpose for permitting their untimely claims to proceed. The trial court granted the state's motions for summary judgment and to dismiss the defendants' counterclaim. On the defendants' appeal to this court, held: 1. The trial court properly granted the state's motion for summary judgment: a. The trial court properly determined that the special act constituted a public emolument in violation of article first, § 1, of the Connecticut constitution as the defendants' schools claim was untimely filed outside of the prescribed one year time limit under § 4-148 (a), the claim could proceed only pursuant to valid special legislation that expressly identified a legitimate public purpose, and the special act did not serve a public purpose because it remedied a procedural default for which the defen- dants bore responsibility and authorized only the defendants to com- mence an action against the state for their alleged injuries, providing the defendants with an exclusive and private benefit, not generally avail- able to the public; moreover, because the legislative negligence claim was brought within one year of the alleged injury accruing and, therefore, was timely filed, the proper statutory mechanisms to authorize the claim to proceed before the Claims Commissioner were §§ 4-158 (b) and the statute (§ 4-159 (b)) authorizing the legislature to vacate and remand a decision of the Claims Commissioner but those statutes were not refer- enced in the special act; furthermore, the special act exclusively referred to dates and injuries relevant to the schools claim and failed to reference the legislature's failure to articulate a public purpose in the joint resolu- tion or correctly remand the schools claim to proceed before the Claims Commissioner, and, therefore, the plain text of the special act failed to indicate that the legislature intended to authorize the legislative negli- gence claim to proceed before the Claims Commissioner. b. The defendants could not prevail on their claim that, in reviewing and remanding their schools claim pursuant to §§ 4-158, 4-159, and the applicable statute (§ 4-160) regarding waiver of immunity from liability, the General Assembly automatically and necessarily waived sovereign immunity as to their legislative negligence claim: to overcome the pre- sumption of sovereign immunity, the defendants were required to show that the legislature, either expressly or by force of a necessary implica- tion, statutorily waived the state's sovereign immunity, and, although the defendants sought legislative authorization to recover for the legislature's alleged negligence, the General Assembly's only action in response thereto was to enact the special act, which authorized the defendants to proceed before the Claims Commissioner on the schools claim; more- over, there was no indication that the legislature intended for the defen- dants to recover against the legislature for its own alleged negligence as the special act was silent as to the defendants' legislative negligence claim and there was no separate directive that remanded the legislative negligence claim to the Claims Commissioner or waived immunity to that claim. 2. The trial court properly dismissed the defendants' counterclaim on the ground that it was barred by sovereign immunity: the defendants' inter- pretation that, pursuant to § 4-160 (c), the General Assembly waived sovereign immunity for the defendants' counterclaim when the legisla- ture remanded the schools claim to proceed before the Claims Commis- sioner was incorrect, as the waiver of § 4-160 (c) applied only to actions for money damages that the General Assembly had authorized against the state or claims that the General Assembly had remanded to the Claims Commissioner for further proceedings pursuant to § 4-159 and does not apply to separate declaratory judgment actions brought by the state challenging the constitutionality of special legislation; moreover, without a statutory waiver of sovereign immunity, the defendants could recover for money damages on their counterclaim only if they presented their counterclaim before the Claims Commissioner, and, because the defendants did not do so, their counterclaim could not proceed. Argued January 11—officially released May 10, 2022

The plaintiff patient sought to recover damages from the defendant medical provider for injuries allegedly sustained as a result of, inter alia, the defendant's breach of its duty of patient confidentiality. Without the plaintiff's knowledge or authorization, in response to a subpoena duces tecum issued in connection with a paternity action filed in the Probate Court against the plaintiff by M, an individual with whom the plaintiff previously had a relationship, the defendant sent the plaintiff's medical records to the Probate Court. The records were placed in the Probate Court's public file for the paternity action and were accessed by M, who used the information contained therein to harass and threaten the plaintiff. Although the plaintiff had previously filed for bankruptcy and the bankruptcy court had granted the application of the appointed trustee of her estate to employ special counsel to pursue a claim against the defendant, the plaintiff commenced the action in her individual capacity. In response, the defendant admitted that it had breached its duty of confidentiality and was negligent in sending the plaintiff's records to the Probate Court but denied that it was the proximate cause of the plaintiff's injuries. The plaintiff filed an offer of judgment, to which the defendant objected. Thereafter, the trial court granted the plaintiff's motion to join the bankruptcy trustee as a party plaintiff. The jury returned a general verdict in favor of the plaintiff and awarded her noneconomic damages. Thereafter, the trial court denied the defendant's motion for a new trial, to set aside the verdict and for remittitur, and it granted the plaintiff's motion for offer of judgment interest. On the defendant's appeal to this court, held: 1. The defendant failed to prove that it was harmed or that injustice resulted from the trial court's limiting of the scope of the testimony of K, the retired probate judge acting as the defendant's expert witness: although the trial court precluded K from opining with regard to the specific facts of the case or stating, as the defendant would have liked, that ''it was extraordinarily abnormal for the Probate Court clerk to have placed the plaintiff's medical records in a public file,'' his testimony left no doubt that the clerk had mishandled the records; moreover, on the basis of the testimony that was allowed, the members of the jury were capable of determining whether the clerk's handling of the records was so extraordinary that it broke the chain of causation between the defen- dant's conduct and the plaintiff's injury. 2. Contrary to the defendant's claim, the trial court did not improperly permit the plaintiff to submit a claim for future emotional damages to the jury on the basis of a single, vague, speculative statement in a hearsay report: a. The trial court did not abuse its discretion when it admitted into evidence the psychological report written by the plaintiff's treating psy- chologist, B: because the report was written on B's stationary and was signed by B, there was a presumption that it was made in the ordinary course of business and was admissible as a business entry; moreover, contrary to the defendant's claim, the report was not inadmissible pursu- ant to statute (§ 52-174 (b)) for being prepared in anticipation of litigation because the defendant was in possession of the report when it deposed B and, therefore, had the opportunity to cross-examine B as to his opinions therein even though B was unable to testify at trial. b. The trial court properly submitted the plaintiff's claim for future noneconomic damages to the jury on the basis of the evidence presented at trial: there was evidence in the record, in addition to B's report, to support a showing of a reasonable probability of future or ongoing injury, including the testimony of the plaintiff, the testimony of a licensed clinical social worker who treated the plaintiff eight years after her medical records had been made public, and the length of time between the admitted negligence of the defendant and the return of the verdict; moreover, the fact that there was contrary evidence in the record from the plaintiff's other treating physicians regarding future injury was not a sufficient reason for the trial court to withhold its instruction on future noneconomic damages. c. The trial court did not abuse its discretion by denying the defendant's request to submit to the jury interrogatories distinguishing between past and future damages: the request was untimely filed, as the defendant did not request such interrogatories until after the trial court had given the majority of its charge to the jury, and, pursuant to the applicable rule of practice (§ 16-22), written requests for jury interrogatories must be filed with the clerk of the trial court before the beginning of arguments. 3. The trial court's award of offer of judgment interest was not improper: pursuant to DiLieto v. County Obstetrics & Gynecology Group, P.C. (297 Conn. 105), the offer of judgment was validated at the time the trustee was added as a party plaintiff; moreover, since DiLieto, neither the legislature nor the rules committee of the Superior Court has amended the statutes or rules governing the procedures applicable to offers of judgment when a bankruptcy trustee is substituted as a party plaintiff under the applicable statute (§ 52-109), despite our Supreme Court's express suggestion in DiLieto that they do so; accordingly, in making its award, the trial court properly followed our Supreme Court's holding in DiLieto. Argued September 22, 2021—officially released May 10, 2022

The plaintiff sought to recover damages from the defendants, a church and its pastor, P, and the city of Hartford and its police officer, J, in connec- tion with his arrest by J for his alleged trespass at the church. The plaintiff had been a member of the church for several decades, but, after a dispute between the plaintiff and P, church leaders voted to dismiss the plaintiff from the church. Church leadership sent the plaintiff a letter notifying him of his dismissal and informing him that he was no longer allowed on the church premises. After the plaintiff received the letter from the church, he instituted a lawsuit challenging his dis- missal. While the lawsuit was pending, the plaintiff attended a funeral at the church. After P called the police, J arrested the plaintiff for criminal trespass in the first degree. That charge was later dismissed. The plaintiff revised his complaint in this action to set forth, inter alia, a claim against J and the city for J falsely arresting him without probable cause in violation of the applicable federal law (42 U.S.C. § 1983), a civil conspiracy claim alleging that all of the defendants had conspired to violate his civil rights in violation of the applicable federal law (42 U.S.C. § 1985 (3)), and a claim of intentional infliction of emotional distress against the church and P. The city and J filed a motion to strike the civil conspiracy claim, and the trial court granted that motion. In their answer and special defenses, the city and J pleaded several special defenses of immunity, including that J was entitled to qualified immunity because his conduct was reasonable under the circumstances. After trial, the jury returned a verdict for the city and J on the § 1983 claim. The jury returned a verdict for the plaintiff on the claim of intentional infliction of emotional distress and awarded him $30,000 in compensa- tory damages, but found that he was not entitled to punitive damages. The trial court rendered judgment in accordance with the jury's verdict. On the plaintiff's appeal to this court, held: 1. The evidence presented at trial was sufficient to support the jury's verdict for the city and J on the § 1983 claim, as the jury reasonably could have concluded that J had either actual or arguable probable cause to arrest the plaintiff for criminal trespass: prior to arresting the plaintiff, J had been told that the plaintiff had been warned numerous times not to return to the church, and the plaintiff admitted to J that he had received the letter telling him that he was banned from the church; moreover, although the plaintiff told J that he had a lawsuit with the church and that he and his family were longtime members, which the plaintiff argued provided J with exculpatory evidence, the jury could have credited J's testimony that the plaintiff never told him that he disputed the validity of his expulsion from the church in the lawsuit, such information would not undermine a reasonable conclusion that probable cause existed to arrest the plaintiff, and this was not a case where, even if J had investi- gated further, the plaintiff would have been exonerated, as any further investigation would result in the same facts that J already knew; further- more, although the plaintiff argued that he believed he had a right to be at the church and that the funeral was open to the public, both of which constitute affirmative defenses to criminal trespass, the existence of a possible affirmative defense to a criminal charge is neither inconsis- tent with nor undermines the existence of probable cause in the absence of plainly exculpatory evidence, and the jury reasonably could have concluded that further investigation by J would not have conclusively established either of the claimed affirmative defenses. 2. The trial court properly granted the motion to strike the civil conspiracy claim filed by the city and J: the plaintiff's revised complaint failed to set forth any facts alleging an agreement of any type, explicit or implicit, between the four defendants, as required to establish a civil conspiracy; moreover, an allegation that one defendant merely took action on the basis of a request of, and false information provided by, another defen- dant is, without more, insufficient to set forth a claim brought pursuant to § 1985 (3). 3. This court declined to review the plaintiff's claim that the jury erred when it failed to award him punitive damages on his intentional infliction of emotional distress claim despite returning a verdict for him on that count: the plaintiff failed to properly preserve this claim, as he never argued before the trial court that if the jury rendered a verdict for him on his intentional infliction of emotional distress claim, then he was necessarily entitled to an award of punitive damages; moreover, the plaintiff failed to object to, and, in fact, approved of, the verdict form as written and submitted to the jury, which left the question of whether to award punitive damages to the jury's discretion; furthermore, the plaintiff did not object to the trial court's instruction to the jury that it was not required to award punitive damages. Argued November 30, 2021—officially released May 10, 2022

The plaintiff sought a partition by sale, pursuant to statute (§ 52-500 (a)) of certain real property in which he and the defendants each held an ownership interest. Between the years 2001 and 2019, the defendants B, G, and N Co. invested hundreds of thousands of dollars for the upkeep, maintenance, and improvement of the waterfront property to support a marine based business and also paid all of the real estate taxes on the property. The trial court found that the plaintiff and the defendants M and P had been passive owners and had minimal interests in the property as compared to B, G, and N Co. and determined that the equitable distribution of the minimal interests of the plaintiff and M and P to B, G, and N Co. in exchange for just compensation would better promote the relative interests of the parties. Thereafter, the court accepted an appraisal of the fair market value of the property and awarded the plaintiff one third of that amount, reduced by a credit to B, G, and N Co. for certain investments in the property and a set off for the real estate taxes paid. The court declined to award the plaintiff compensation for B, G, and N Co.'s use and occupancy of the property. On the plaintiff's appeal to this court, held: 1. The trial court did not abuse its discretion in calculating its award of just compensation to the plaintiff: contrary to the plaintiff's argument, the court was not prohibited from crediting B, G, and N Co. for the costs of improvements to the property in the absence of an agreement with the plaintiff to share the cost of those improvements as there was no marital relationship among the parties; moreover, the plaintiff provided no authority for his assertion that the court was required to calculate the amount of credit to B, G, and N Co. on the basis of the amount of their expenditures for improvements rather than the extent to which those expenditures enhanced the fair market value of the property; furthermore, the court reasonably considered in its calculation the mar- ket value of the property, the plaintiff's interest in the property, and the costs and labor associated with the improvements, maintenance and repairs made by B, G, and N Co. during their occupancy of the property and found that much of the investment between 2000 and 2009 was necessary for the property to be useable and, thus, that these expenses benefited all the co-owners of the property. 2. The trial court did not abuse its discretion in declining to award the plaintiff compensation for B, G, and N Co.'s use and occupancy of the property: the plaintiff failed to prove the reasonable value owed to him by B, G and N Co.; the court's finding that the testimony of the plaintiff's real estate valuation expert as to the fair market rental value of the property was not credible was fully supported by the evidence, including the expert's use of a fair market value of the property that differed from the court approved appraisal, the expert's determination of the fair market rental value as if the plaintiff and B, G, and N Co. were the landlord and tenants under a long-term ground lease rather than analyz- ing comparable rentals, and the failure of the expert's analysis to con- sider the actual condition of the property, although it assumed a maritime commercial use of the property. Argued January 3—officially released May 10, 2022

The petitioner, who had been convicted of several crimes in connection with a shooting, sought a writ of habeas corpus, claiming, inter alia, that her trial counsel rendered ineffective assistance when he failed to request that the trial court instruct the jury regarding the elements of the applicable sentence enhancement statute (§ 53-202k) and the statutory (§ 53a-3 (19)) definition of firearm in § 53-202k with respect to the charge of accessory to attempt to commit assault in the first degree. The petitioner and another individual, K, had driven to the residence of a woman, J, where K fired a handgun at the residence before he and the petitioner drove away. The trial court imposed a five year sentence enhancement on the petitioner's conviction of being an accessory to an attempt to commit assault in the first degree. The habeas court denied the habeas petition, concluding that the jury unanimously had determined that the state proved each element of § 53-202k and that any error caused by the trial court's failure to instruct the jury as to the elements of § 53-202k was harmless beyond a reasonable doubt. The habeas court further concluded that the petitioner failed to demon- strate that the outcome of her trial or appeal would have been different even if trial counsel had requested an instruction as to the elements of § 53-202k or objected to the court's instruction concerning § 53-202k. Held: 1. The petitioner could not prevail on her claim that her trial counsel provided ineffective assistance by neglecting to request a jury instruction regard- ing the elements of § 53-202k and the definition of firearm in § 53a-3 (19), or by failing to object to the instruction the court gave, which did not define firearm or instruct as to the elements of § 53-202k: the jury's guilty verdict on the charge of attempted assault as an accessory was predicated on the undisputed evidence the state presented that K dis- charged a loaded handgun at J's residence, from which the jury necessar- ily found both that the state proved each element of § 53-202k and that the handgun K used satisfied the definition of firearm in § 53a-3 (19); moreover, because the jury necessarily accepted the state's theory that K had used a deadly weapon in the commission of the offense, it logically followed that the handgun was a loaded weapon from which he dis- charged gunshots at the residence, and, thus, the court's failure to instruct the jury as to the elements of § 53-202k was harmless beyond a reasonable doubt; furthermore, because of the harmlessness of the court's failure to instruct the jury on the elements of § 53-202k, the petitioner failed to meet her burden of proving that there was a reason- able probability that, but for trial counsel's failure to object to the court's instruction concerning § 53-202k, the result of the underlying criminal proceeding would have been different. 2. This court declined to review the petitioner's unpreserved claim that she was prejudiced by her trial counsel's failure to request that the jury be instructed as to the definition of firearm in § 53-3 (19) because the sentence enhancement under § 53-202k would not have applied if the weapon K used was an assault weapon; the petitioner's claim of preju- dice, which she conceded was raised for the first time before this court, was distinct from her allegation before the habeas court that she was prejudiced by trial counsel's failure to request a jury instruction as to each element of § 53-202k or to otherwise object to the instruction the court gave. Argued September 9, 2021—officially released May 10, 2022

The plaintiff town appealed to the Superior Court from the decision of the defendant State Board of Labor Relations determining that the town had unilaterally changed an established past practice of including extra duty pay in the calculation of pensions for members of the defendant union, M Co., in violation of the Municipal Employees Relations Act (§ 7-467 et seq.). The town established a retirement committee to admin- ister its retirement plan, consisting of three members appointed by the town. In the midst of ongoing negotiations with M Co. for a successor collective bargaining agreement, the retirement committee notified M Co. that it had decided to exclude extra duty pay from pension calcula- tions. M Co. filed a complaint with the labor board, alleging that the town violated the act when the retirement committee unilaterally elimi- nated extra duty pay from pension calculations. The town claimed, inter alia, that the labor board lacked jurisdiction over the complaint because the retirement committee was not a municipal employer under the act as defined by statute (§ 7-467). The labor board issued a finding that the town violated the statute (§ 7-470 (a) (4)) requiring municipal employers to bargain in good faith when the retirement committee excluded extra duty pay from the calculation of pensions. The labor board found, inter alia, that there was a consistent past practice of including extra duty pay in pension calculations that had endured for almost thirty years. It rejected the town's contract defense, concluding that M Co. had not waived its right to bargain over changes to the calculation of future retirement benefits. The labor board applied its well established standard that a waiver must be clear and unmistakable. During the pendency of the town's administrative appeal, the National Labor Relations Board issued a decision in MV Transportation, Inc. (368 N.L.R.B. No. 66), in which it abandoned the clear and unmistakable waiver standard for determining whether a union has waived its right to bargain over an otherwise mandatory subject of bargaining in favor of the contract coverage standard in cases over which it had jurisdiction. Because the National Labor Relations Board held that its newly adopted rule applied retroactively to all pending cases, the trial court remanded the town's case to the labor board to determine whether it would adopt the new standard. The labor board subsequently issued an order declin- ing to adopt the contract coverage standard, and the court dismissed the town's administrative appeal, finding that the town had failed to demonstrate any illegality, abuse of discretion, or prejudice to its rights in the labor board's decision. On the town's appeal to this court, held: 1. The town could not prevail on its claim that the labor board improperly determined that it had jurisdiction over M Co.'s prohibited practice complaint: there was substantial evidence in the record to support the labor board's conclusion that the retirement committee was acting as the town's agent, as the town board of selectmen controlled the composi- tion of the retirement committee under its authority to appoint and remove committee members, the town charter and retirement plan vested in the town the authority to amend or cancel the retirement plan and, in deciding to exclude extra duty pay from pension calculations, the retirement committee relied on the legal opinion of the town attorney; moreover, contrary to the town's claim, the labor board did not fail to adhere to its own administrative precedent, as those prior labor board decisions addressed actions by a retirement committee in administering a plan with regard to specific employee applications, not actions effecting unilateral change to the terms of a plan, and those decisions did not address an agency relationship between pension boards and cities; furthermore, the labor board's decision did not violate the town's rights under the Home Rule Act (§ 7-188) as the labor board's finding that the retirement committee was acting as the town's agent when it unilaterally effected the change at issue did not deprive the town of the right to legislate on purely local affairs or invalidate the town's charter or retirement plan; additionally, the labor board did not exceed its jurisdiction, as it properly considered the terms of the town's charter and retirement plan to the extent necessary to resolve M Co.'s prohibited practice complaint. 2. The town could not prevail on its claim that the labor board, in considering the town's defense to M Co.'s unilateral change complaint, failed to apply the contract coverage standard: the labor board was not compelled to follow the policy adopted by the National Labor Relations Board in MV Transportation, Inc., and it did not act illegally, arbitrarily, or in abuse of its discretion in declining to adopt the contract coverage stan- dard; moreover, this court declined to consider the town's unpreserved argument that the labor board misapplied the clear and unmistakable waiver standard to the facts it found. Argued November 8, 2021—officially released May 10, 2022

The plaintiff sought to recover damages from the defendant property owner, C Co., and its property manager, R Co., for, inter alia, damages incurred as a result of the defendants' alleged negligent failure to maintain certain real property in a reasonably safe condition. R, the sole shareholder of the plaintiff, and C Co. entered into a lease for a portion of one of C Co.'s commercial buildings. Although not a party to the lease, the plaintiff occupied the leased premises. The plaintiff initiated the present action, and the trial court rendered judgment in its favor solely with respect to its negligence claim against C Co., determining that C Co. had committed gross negligence and awarding the plaintiff damages, from which C Co. appealed to this court. Thereafter, the trial court granted the plaintiff's application for a prejudgment remedy to secure its judgment, authorizing the plaintiff to attach C Co.'s real and personal property and to garnish any and all debts due and obligations owed to C Co. After determining that the real property subject to the prejudgment remedy order was encumbered by a mortgage that exceeded the property's fair market value, the plaintiff filed a motion to modify, seeking authorization to garnish an account receivable owed to C Co. by R Co. The trial court sustained the defendants' objection to the motion, determining that permitting the plaintiff to garnish the account receivable would be con- trary to the source of recovery limitation provision of the lease. There- after, in response to the plaintiff's motion to reargue and reconsider the court's order sustaining the defendants' objection, the trial court vacated its prior ruling and granted the plaintiff's motion to modify. The court ordered that the plaintiff was authorized to garnish the account receivable, that payments made thereafter on the account receivable would be held in escrow, and that the escrowed funds could be released only following written authorization of the parties or a court order. Subsequently, this court reversed a portion of the initial judgment ren- dered in favor of the plaintiff, only with respect to the amount of damages awarded and remanded the case to the trial court with direction to render judgment in the plaintiff's favor in a reduced amount. On remand, the trial court rendered judgment in the plaintiff's favor on its negligence claim against C Co. in accordance with a stipulation executed by the parties, which provided that judgment should enter in the plaintiff's favor in a reduced amount. Thereafter, the plaintiff filed a motion seeking to compel C Co. to deliver to the plaintiff all funds held in escrow and any future payments received on the account receivable. The trial court granted the plaintiff's motion to compel, and the defendants appealed to this court. Held that the trial court did not err in granting the plaintiff's motion to compel because the source of recovery limitation provision of the lease did not preclude the plaintiff from collecting the escrowed funds and payments at issue: the lease's source of recovery limitation provision provided, in clear and unambiguous terms, that such provision applied only to R as the tenant and, in contrast to certain other provisions of the lease, did not include language extending its applicability to all entities related to R; moreover, the plaintiff's negligence claim against C Co. was not subject to the lease's source of recovery limitation provision because, by its clear language, that provision applied only to a breach or default by C Co. with respect to its obligations under the lease, and the plaintiff was not a party to the lease and did not assert a claim thereunder but, rather, asserted a tort claim sounding in negligence based on C Co.'s breach of its common-law duty to maintain its property in a reasonably safe condition; furthermore, the defendants' reliance on the lease's negligence waiver and jury trial waiver provisions and the trial court's construction thereof to support its argument that the plaintiff and its negligence claim were subject to the source of recovery limitation was misplaced, as those provisions contained language extending their applicability to the plaintiff and its claim, which language was absent from the lease's source of recovery limitation provision. Argued February 14—officially released May 10, 2022

The plaintiff dentist appealed from the judgment of the trial court dismissing his administrative appeal from the final decision of the defendant Con- necticut State Dental Commission. The plaintiff had treated a minor patient under general anesthesia for the placement of stainless steel crowns in the patient's mouth. Initially, the patient's mother was told that the treatment plan required the placement of only one steel crown and that additional teeth may need fillings, but that such treatment plan could not be finalized until after X-rays were taken during the procedure. Thereafter, the plaintiff placed eight crowns in the patient's mouth, without the knowledge or informed consent of the patient's mother. Subsequently, she filed a complaint with the Department of Public Health, which brought a statement of charges against the plaintiff, alleg- ing that his dental license was subject to disciplinary action pursuant to statute (§ 20-114 (a)). The commission found, inter alia, that the plaintiff failed to meet the applicable standard of care in treating the patient. On the plaintiff's appeal to this court, held: 1. The commission's claim that the trial court lacked subject matter jurisdic- tion to hear the plaintiff's administrative appeal was unavailing; although the plaintiff sent the appeal via certified mail to the department, rather than to the commission, as required by statute (§ 4-183), the record demonstrated that the address for both the department and the commis- sion was essentially the same but for the name of the agency to which the mail was addressed, the commission did not claim that the appeal was untimely, that it did not have actual notice or that it was prejudiced by the plaintiff's error, the commission filed a timely appearance, and, on these bases, the plaintiff's failure to properly serve the commission was akin to a defect in the service of process, rather than a total failure to serve the agency. 2. The trial court properly determined that the commission may rely on its own expertise in assessing the evidence and reaching its conclusion that the plaintiff had breached the applicable standard of care, as the commission was granted broad discretion, pursuant to its statutory (§ 20-103a) authority, in determining the appropriate standard of care in an administrative, licensing procedure: the record revealed that the commission relied on the informed consent requirements of the Ameri- can Academy of Pediatric Dentistry, testimony from various witnesses including the plaintiff, as well as its own expertise, technical compe- tence, and specialized knowledge; moreover, the plaintiff did not cite any support for his claim that the members of the commission were required to have expertise in the specialized field of pediatric dentistry, there was no separate and distinct commission authorized to handle licensing matters concerning pediatric dentistry, and the statute (§ 52- 184c) that defines what constitutes a health care expert in a particular field in medical malpractice actions was not applicable to qualifying the witnesses as experts in an administrative licensing procedure governed by statute (§ 4-178); furthermore, the court did not err in concluding that the commission properly permitted expert testimony from a dentist who was not board certified, as the credibility of the expert was for the commission to consider in its determination of the applicable standard of care in the proceedings. 3. The plaintiff could not prevail on his claim that the trial court improperly dismissed his challenge to the commission's findings that he breached the standard of care by failing to obtain informed consent for placing more than one crown on the patient's teeth, as the record contained substantial evidence to support the commission's findings; although the patient's mother signed a standard consent form on the day of the procedure consenting to treating unforeseen conditions, she had requested to speak with the plaintiff after X-rays were taken and, because he failed to do so, his actions exceeded the consent he received from the standard written form, the commission's determination was based on its assessment of the credibility of the witnesses, and the commission was authorized to ascertain the standard of care, which meant determin- ing the proper standard by which to obtain informed consent. 4. The commission did not act in excess of its statutory (§ 20-114 (a) (2)) authority in ordering disciplinary sanctions as a remedy for the plaintiff's violation of the standard of care; the plaintiff's claim that § 20-114 (a) (2) did not grant the commission authority to discipline him because the department did not, inter alia, allege negligence or incompetence in its charges was unavailing, as it is within the commission's authority to determine the meanings of the terms within § 20-114 (a) (2) relevant to the practice of dentistry, and the commission may take disciplinary action on the basis of a dentist falling below a standard of care, which was equivalent to a finding of incompetence or negligence under § 20- 114 (a) (2). 5. The plaintiff could not prevail on his claim that the record did not support the commission's finding that the plaintiff failed to adequately chart caries and decalcifications, as the record contained substantial evidence, including the plaintiff's operative note made during his treatment of the patient, multiple X-rays of the patient, and witness testimony concerning the patient's charting; although the court misstated the commission's conclusion regarding the adequacy of the charting for the placement of additional crowns, any such error was harmless. 6. The plaintiff could not prevail on his claim that there were unresolved inconsistencies in the commission's decision, as the commission was within its authority to find that the department proved some of the charges alleged against the plaintiff, while finding that the department had failed to prove other charges, and the six charges against the plaintiff were not dependent on each other. 7. This court declined to review the plaintiff's unpreserved claim under State v. Golding (213 Conn. 233) that the trial court's decision to dismiss his appeal violated his right to fundamental fairness, the plaintiff having failed to explain what part of the proceedings allegedly constituted a violation of any constitutional right. Argued January 12—officially released May 17, 2022

The defendant appealed to this court from the judgment of the trial court granting the plaintiff's application for an order of civil protection. The court held an evidentiary hearing on the application, during which the plaintiff testified. The defendant did not testify and was not present at the hearing but was represented by counsel, Z. The court found that the defendant's position was less credible because he did not appear at the hearing. The court also took judicial notice of a summary process complaint filed against the defendant by a housing authority and con- cluded that the allegations of serious nuisance in the complaint but- tressed the credibility of the plaintiff because the allegations were similar to the plaintiff's. The housing authority had withdrawn the summary process action prior to the evidentiary hearing. Held: 1. The trial court erred when it, sua sponte, took judicial notice of the contents of the summary process complaint against the defendant with- out giving him notice and an opportunity to be heard: although Z attempted to be heard at the evidentiary hearing on the court's decision to take judicial notice of the summary process complaint, the court did not give Z an opportunity to voice her concern with its decision, and, at the conclusion of the hearing, Z attempted to make the court aware that the summary process action had been withdrawn; moreover, the court failed to inquire into the basis for the housing authority's allega- tions or why it withdrew the action; furthermore, the court's error was compounded by its statements that the allegations of the summary process complaint buttressed the plaintiff's credibility. 2. The trial court erred by finding the defendant less credible because he did not appear at the hearing: the court took into account the defendant's conduct, namely, his failure to appear, which was not evidence, to help it decide a substantive issue; moreover, because the defendant, who was represented by counsel, did not testify at the hearing, there was no finding to be made as to his credibility. 3. The trial court's errors resulted in harm to the defendant and, accordingly, it abused its discretion in issuing an order of civil protection: the court's decision to take judicial notice of the contents of the summary process complaint harmed the defendant because the court improperly relied on the unproven allegations of that complaint when it made its factual findings with respect to the plaintiff's credibility; moreover, in finding that the defendant's position was less credible because of his absence at the hearing, the court weighed the defendant's credibility against that of the plaintiff when there was no basis for it to do so; furthermore, the court's decision to issue the civil protection order turned on its determination that the plaintiff was credible and its determination that the defendant's absence hurt his credibility, which undermined this court's confidence in the court's fact-finding process and warranted reversal of its decision because the court's factual findings served as a significant part of the basis for the court's decision to issue the order of civil protection. Argued February 2—officially released May 17, 2022

The plaintiff sought to recover damages and other relief for, inter alia, fraudulent misrepresentation in connection with an alleged conspiracy by the defendants, the city and two of its former employees, to fill the position of police chief in the defendant city's police department. The plaintiff, a former officer in the city's police department, had previously brought a separate action against the city alleging wrongful termination. The parties reached a settlement agreement with respect to the termina- tion action. The plaintiff thereafter filed the complaint alleging a conspir- acy, and the city filed a motion to dismiss the counts of the complaint against it, which alleged fraudulent misrepresentation during settlement negotiations and computer crime, on the basis that the claims were barred by absolute immunity under the litigation privilege. The trial court denied the motion with respect to the claim of computer crime, and the city appealed to this court. Held that the trial court properly denied the city's motion to dismiss the count alleging computer crime on the basis of the city's failure to establish a nexus between the allega- tions of that count and any activity falling within the bounds of the litigation privilege; the count did not contain any allegations with respect to communications involving the city and the conduct alleged could not reasonably be construed as stemming from the plaintiff's prior action against the city, but, rather, the allegations set forth in the count concern the mechanics of how the city's employees carried out a cheating scheme using computers, not any fraud or concealment thereof that occurred during the prior settlement negotiations. Argued January 20—officially released May 17, 2022

The plaintiff employer appealed to the trial court from the decision of the defendant Commission on Human Rights and Opportunities sustaining a disability discrimination complaint filed by the defendant employee, L, and awarding L, inter alia, back pay and emotional distress damages. L, who is hearing impaired, was hired by the plaintiff in 2012 and assigned to a secretarial position in its education personnel department. She worked directly for the human resources assistant, M, and performed many of the same tasks as him and covered his duties when he was absent from the office. As a result of her hearing impairment, L tended to speak loudly, and, on occasion, coworkers had raised concerns to T, the department's interim director, about the volume of her voice. In addition, S, who worked in the civil service personnel department, had inquired whether there was something wrong with L and had told M that he thought that L was loud and unprofessional. In 2014, M informed L that he intended to retire the following year. M encouraged L to apply for his position, began teaching her any duties of the position that she was not already performing, and strongly supported her candidacy. In August, 2015, the position was posted online, and L submitted an application. L met the qualifications listed in the posting. Two weeks later, S had the job posting removed and revised because he felt that he had a vested interest in assuring that the position was filled correctly. S interviewed prospective candidates for the position. Six candidates were interviewed for the position and two, P and J, were hired. L was not granted an interview because S concluded that she did not satisfy the revised minimum requirement of four years of human resources experience set forth in the revised job posting. After M retired, L became the interim human resources assistant until P's employment com- menced. In her complaint, L claimed that the plaintiff had discriminated against her on the basis of her physical disability by failing to interview and promote her. Following a hearing, the commission's human rights referee concluded that the plaintiff had unlawfully discriminated against L on the basis of her disability in violation of statute ((Rev. to 2015) § 46a-60 (a) (1)) and the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), and awarded L back pay and emotional distress damages. The plaintiff appealed to the trial court, which dismissed the appeal and affirmed the commission's decision, concluding, inter alia, that the award of back pay was supported by substantial evidence and that the referee did not abuse her discretion in awarding emotional distress damages. On the plaintiff's appeal to this court, held: 1. The plaintiff could not prevail on its claim that the trial court improperly affirmed the commission's award of back pay because the award was not supported by substantial evidence: contrary to the plaintiff's con- tention, the referee's decision clearly indicated that the award of back pay was predicated on a finding that L would have been promoted to the human resources assistant position if not for the plaintiff's unlawful discrimination; moreover, the referee's conclusion that, in the absence of the unlawful discrimination, L would have been interviewed for and promoted to that position was supported by substantial evidence, as there was evidence that L had worked for the plaintiff for more than three years under M's supervision and guidance, M encouraged L to apply for his position, began training her on any duties she did not already perform, and participated in the candidate interviews, both T and M thought that L was more than qualified for the position because she already had experience performing the precise duties required, and L held one of the preferred undergraduate degrees specified in the original job posting and had established relationships with personnel throughout the plaintiff's school district; furthermore, there was no merit to the plaintiff's contention that the referee improperly marshaled the evidence in favor of finding that L would have been chosen for the position because L placed only seventh on a civil service examination list, as the referee properly found that being placed on that list meant that the candidate was qualified for the position, and, although it was possible that L may not have been selected for the position, the referee properly resolved any uncertainty in favor of L in light of the remedial aims underlying the state's antidiscrimination laws. 2. This court declined to review the plaintiff's claim that the award of emotional distress damages was improper because the commission is not authorized to award compensatory damages pursuant to statute (§ 46a-58) in employment discrimination cases that fall within the scope of § 46a-60, as that claim was not raised before the commission or the trial court and, therefore, was not preserved for appellate review; moreover, this court declined the plaintiff's request to review its unpre- served claim pursuant to our supervisory authority over the administra- tion of justice in light of our Supreme Court's recent decision in Connect- icut Judicial Branch v. Gilbert (343 Conn. 90) because, having reviewed that decision, this court was not persuaded that the exercise of such authority was warranted. Argued February 7—officially released May 24, 2022

Convicted, following a jury trial, of the crimes of assault in the first degree causing serious physical injury and carrying a dangerous weapon in connection with a stabbing incident, the defendant appealed to this court, claiming that the trial court judge, because of the appearance of partiality, was required to recuse himself at the defendant's sentencing hearing pursuant to the applicable rule of practice (§ 1-22) and the applicable rule (rule 2.11) of the Code of Judicial Conduct. Prior to trial, the defendant rejected a judge's plea offer of twelve years of incarceration, execution suspended after five years, and a period of probation. A separate judge thereafter presided over the defendant's trial, at which the jury returned a guilty verdict. When the defendant appeared for his sentencing, the judge brought to the attention of both the prosecution and the defense that he would strike a reference in the presentence investigation report to the rejected plea offer previously made to the defendant. The defendant moved for a mistrial and a new trial, which the court denied and interpreted as a motion to recuse the judicial authority. The court denied the defendant's motion for recusal, reasoning, inter alia, that it had no participation in any pretrial plea offers and, therefore, there was no violation of the rule set forth in State v. Niblack (220 Conn. 270), which held that a judge who participates in pretrial plea negotiations is disqualified from further proceedings if the offer is not accepted. The judge sentenced the defendant to twenty years of incarceration, suspended after twelve years, and three years of probation. On the defendant's appeal, held that the trial court did not abuse its discretion in denying the defendant's motion for recusal: the defendant, as the moving party, failed to meet his burden in demon- strating that recusal was warranted, as there was nothing in the record to establish that a reasonable person would question the judge's impar- tiality, the judge did not participate nor have any involvement in plea negotiations or plea offers in the defendant's case and was not responsi- ble for the improper reference to the plea offer in the presentence investigation report and, once he learned of such improper reference, he alerted both defense and the prosecutor, struck the reference thereto, and stated on the record that it would have no effect on the imposed sentence and that he had made no effort to confirm whether the alleged plea offer had been made; moreover, after attending the lengthy trial, the sentencing judge properly considered facts from the evidence relating to the seriousness of the crime and the resulting near-death injuries to the victim to determine the defendant's length of sentence and, although the sentencing judge considered other factors such as the defendant's remorse, his criminal history, and his age, the judge ultimately concluded that a lenient sentence was not warranted for his crimes; furthermore, the defendant's claim that the reference to the plea offer in the presen- tence investigation report created a floor that the judge might have felt an obligation to exceed was unavailing as courts are obligated to set aside irrelevant matter in performing their duties and courts are presumed to consider only properly admitted evidence when rendering a decision and, therefore, such a presumption applied equally to an improper men- tion of a rejected plea offer in a presentence investigation report pro- vided to the judge. Argued January 31—officially released May 24, 2022

The defendant, whose marriage to the plaintiff previously had been dis- solved, appealed to this court from the judgment of the trial court denying his motion to modify his alimony obligation. In his motion, the defendant alleged that his alimony obligation should be terminated on the basis of the plaintiff's cohabitation with a third party, or that his alimony obligation should be modified on the basis of a substantial change in his financial circumstances, as his current income was less than his income at the time of the dissolution as a result of his recent loss of employment. The court denied the defendant's motion in an oral ruling at the conclusion of a hearing on that motion. Held: 1. The defendant could not prevail on his claim that the trial court improperly relied on a certain rule of practice (§ 15-8), which applied to civil actions and not to family matters, in denying his motion to modify his alimony obligation: the defendant failed to demonstrate that the trial court, in fact, relied on Practice Book § 15-8, as the plaintiff did not make a motion for judgment of dismissal under § 15-8 and the court did not dismiss the defendant's motion or refer to § 15-8 in its decision; more- over, the court's statement that the defendant had not proven a prima facie case of either cohabitation or a substantial change in circumstances reasonably could be interpreted to mean that, in its role as fact finder, the court had evaluated the totality of the evidence and did not find the relevant factual issues in the defendant's favor. 2. This court declined to review the defendant's remaining claims, namely, that the trial court improperly weighed the evidence and abused its discretion in declining to terminate or to modify the defendant's alimony obligation, the defendant having failed to provide an adequate record for review as required pursuant to the applicable rule of practice (§ 61- 10): the record did not contain a proper statement of the court's decision, as the court did not file a memorandum of decision setting forth its reasoning in denying the motion and the defendant did not take steps to obtain a transcribed copy of the decision signed by the trial court; moreover, although the record included the certified transcript, this court could not identify in the transcript the trial court's factual or legal bases for denying the defendant's motion, and the defendant failed to seek an articulation of the court's oral decision. Argued January 10—officially released May 24, 2022

The plaintiff sought to recover damages from the defendant city for public nuisance in connection with injuries she sustained when she was physi- cally and sexually assaulted while walking along a public trail in the city. The plaintiff's complaint alleged, inter alia, that the city has a high crime rate and is one of the least safe municipalities in the state, that the city had created or participated in the development of the trail and had invited people of all ages to walk the trail and that the trail was isolated, lacked security and was prone to criminal activity. The plaintiff sought damages under the statute (§ 52-557n (a) (1) (C)) that imposes liability on a municipality when its acts constitute the creation or the participation in the creation of a nuisance. The city moved to strike the complaint, asserting, inter alia, that the plaintiff's public nuisance action was barred by governmental immunity. The trial court granted the city's motion to strike, concluding that the complaint failed to allege that the city created the nuisance by some positive act as required by § 52-557n (a) (1) (C) and that there was no logical nexus by which to attribute the criminal actions of the plaintiff's assailant to the city. Thereafter, the plaintiff filed a substitute complaint, which contained the same allegations as the original complaint and an additional allegation that the city permitted ''vandals and other non-law-abiding people'' to loiter, roam and congregate on the trail, which created a dangerous condition for people walking the trail. The city filed a motion to strike the substitute complaint, which the trial court granted for the same reasons that it had granted the city's previous motion to strike. Subsequently, the trial court granted the plaintiff's motion for judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Held that the plaintiff could not prevail on her claim that the trial court erred in granting the city's motion to strike because she properly had alleged in her substitute complaint that the city created the nuisance by a positive act as required by § 52-557n (a) (1) (C): although the plaintiff contended that the nuisance was the dangerous condition of the trail, the allegations viewed in the light most favorable to the plaintiff indicated that the nuisance, if any, was created by the ''vandals and other non-law-abiding people'' on the trail, and, despite alleging that the city permitted those individuals to be on the trail, the plaintiff did not allege that the city took any action to cause them to commit crimes, and, therefore, because the acts giving rise to the alleged nuisance were those of third parties and because the city's act of participating in the construction of the trail did not create or participate in the creation of a nuisance, the plaintiff failed to allege a legally sufficient cause of action for public nuisance; moreover, insofar as the plaintiff relied on her allegations that the city itself is especially dangerous in arguing that the city's conduct of constructing a trail, permitting ''vandals and other non-law-abiding people'' on that trail, and inviting the public to walk on the trail created the nuisance, such allegations were not a sufficient basis on which to conclude that the city positively acted to create the alleged nuisance, as the acts giving rise to the nuisance were of third parties and, therefore, were not positive acts of the city, and there was no logical nexus by which to attribute the criminal conduct of the ''vandals and other non- law-abiding people'' to the city. Argued April 5—officially released May 24, 2022

The petitioner, who had been convicted, following a guilty plea, of two counts of reckless endangerment in the first degree, sought a writ of habeas corpus, claiming that his trial counsel had rendered ineffective assistance. The petitioner had been sentenced, inter alia, to a period of three years of probation, which ended on April 7, 2020. The habeas court granted the respondent's motion to dismiss the petition on the basis that it lacked jurisdiction, as the court did not receive the petition until April 24, 2020, at which point the petitioner was not in custody. The habeas court granted the petition for certification to appeal, and the petitioner appealed to this court. Held that the habeas court properly dismissed the petition for lack of subject matter jurisdiction: although the petitioner effected personal delivery of his petition to a state marshal on the final day of his probation, the court declined to apply the savings statute (§ 52-593a), as a habeas action, unlike other civil actions, is not initiated until a petitioner files the petition with the clerk of the court for review by a judge; moreover, this court declined to review the petitioner's claim that he met the ''in custody'' requirement of the statute (§ 52-466) because he was being deprived of his liberty as a result of two standing criminal protective orders, effective for ten years, which were entered by the court at sentencing, as the petitioner failed to distinctly raise this claim before the habeas court and the court did not rule on this claim in a manner adverse to the petitioner. Argued March 10—officially released May 24, 2022

The plaintiff in error, B Co., a law firm that represented the plaintiff, E, in the underlying action to recover underinsured motorist benefits from the defendant in error, L Co., filed a writ of error claiming that the trial court improperly ordered sanctions, requiring B Co. to pay all costs related to L Co.'s retention of D, an expert disclosed by L Co. as a potential trial witness in the underlying case. L Co.'s disclosure indicated that, on the basis of his review of E's medical records, D would opine that E's shoulder injury was not related to the underlying motor vehicle accident. During his deposition, however, D indicated that his opinion might change if he learned that E had been complaining about her shoulder injury since the date of the accident. Thereafter, without informing or obtaining the consent of L Co., B Co. sent E's deposition transcripts, in which she indicated that she had been complaining about her shoulder pain since the date of the accident, to D and set up an appointment for D to perform a medical examination of E. Prior to the examination, B Co. filed a disclosure indicating that it intended to call D as an expert witness at trial to testify that, contrary to his earlier opinion, D believed that E's shoulder injury was a direct result of the motor vehicle accident. Following the medical examination, D prepared a report to that effect. Thereafter, the trial court granted L Co.'s motion for expenses, requiring B Co. to reimburse L Co. for all expenses it had paid to D for his expert services. Held that the trial court's order of sanctions must be reversed because our rules of practice do not clearly prohibit ex parte communications between an attorney and an expert who previously had been disclosed by the opposing party as a potential trial witness: pursuant to our Supreme Court's decision in Millbrook Owners Assn., Inc. v. Hamilton Standard (257 Conn. 1), for a trial court's order of sanctions for a violation of a discovery order or rule to withstand scrutiny, the order or rule to be complied with must be reasonably clear, and the applicable rule of practice (§ 13-4) in the present case does not include language that explicitly prohibits ex parte communications with experts who have been disclosed by an opposing party; moreover, the trial court's holding that B Co.'s ex parte communi- cations with D were implicitly forbidden because they were not explicitly permitted by Practice Book § 13-4 was predicated on outdated authori- ties that analyzed a pre-1993 version of rule 26 (b) (4) of the Federal Rules of Civil Procedure, which the trial court claimed mirrored Practice Book § 13-4 and provided the exclusive means for conducting discovery of expert witnesses, however, the exclusivity language of the pre-1993 version of rule 26 (b) (4) is not included in the current version of the rule or in the current version of Practice Book § 13-4; furthermore, Practice Book § 13-4 (e), which establishes a procedure by which a party can adopt and make use of an expert already disclosed by another party, implicitly suggests that some sort of communication may be required between opposing counsel and a disclosed expert to satisfy the disclosure requirements of that subsection; accordingly, the trial court's justification for the order of sanctions, which was based on its finding that B Co.'s conduct with respect to D was wrongful, was clearly erroneous. Argued February 8—officially released May 31, 2022

Convicted, after a jury trial, of the crimes of unlawful restraint in the first degree, assault in the third degree and threatening in the second degree, and, after pleas of guilty, of being a persistent offender, the defendant appealed to this court. He claimed, inter alia, that the trial court violated his sixth amendment right to self-representation when it denied his request to proceed as a self-represented party. At a pretrial hearing, at which his counsel was not present, the defendant stated to the court that he wanted to fire his counsel. When the court began to explain that it was not allowed to talk directly with him without his attorney present, the defendant interjected and asserted that he wanted to defend himself. The court then said, ''I can't,'' twice in an attempt to finish its sentence and thereafter reiterated, ''I can't talk to you about'' self- representation. When the defendant asked for a transcript of the proceed- ings, the court stated, ''[n]o, no. You're not getting canvassed'' as to self-representation and told him to file an appearance with the clerk's office, after which he would be canvassed at the next court proceed- ing. Held: 1. The trial court did not violate the defendant's sixth amendment right to self-representation, as his statements to the court did not constitute a clear and unequivocal request to proceed as a self-represented party: the court neither clearly nor conclusively denied the defendant's request to represent himself but, rather, emphasized that it did not want to, and could not, speak with him without his attorney present, as the court's statements, ''I can't,'' and, ''I can't talk to you about this,'' reasonably could have referred to its view that it could not properly talk to the defendant about his request without his attorney present, and the court's statement, ''[n]o, no. You're not getting canvassed,'' could not be read as a clear denial of the defendant's request to represent himself, as it was not clear from the transcript of the proceeding to what the court was saying no; moreover, although the court inadvisably instructed the defendant, who was incarcerated throughout the proceedings, to file a pro se appearance with the clerk's office and stated that he would be canvassed at the next court hearing, the court did not condition its willingness to consider his request on the fulfillment of that instruction, and its acknowledgment of his right to self-representation and suggestion that the required canvass would occur at a later date refuted the defen- dant's assertion that the court clearly and conclusively denied his request; furthermore, the defendant waived his right to self-representa- tion when he acquiesced in representation by counsel at subsequent hearings and at trial, and failed to reassert that right. 2. The trial court did not abuse its discretion in limiting the scope of defense counsel's cross-examination of the victim regarding her motivation for not wanting to go to jail; the court did not unduly restrict counsel's cross-examination, as it permitted counsel to question the victim about her statement to the police that she did not want to go to jail so as to expose her motive, interest, bias or prejudice in cooperating with the police, and, as the victim admitted that she did not want to go to jail, her motive to avoid prison was undisputed. Argued February 2—officially released May 31, 2022

The plaintiffs, who had entered into an agreement to purchase a parcel of residential property from the defendants, sought, inter alia, the return of certain contractual deposits pursuant to a mortgage contingency clause in the agreement. The mortgage contingency clause provided in relevant part that the plaintiffs' obligation was contingent on the plain- tiffs obtaining financing. If the plaintiffs were unable to obtain a written mortgage commitment and notified the defendants in writing by 5 p.m. on the mortgage commitment date, the agreement would be null and void and any deposits would be returned to the plaintiffs, otherwise, the agreement would continue in full force and effect. The agreement also contained a liquidated damages clause, which provided that, if the plaintiffs failed to comply with the terms of the agreement by the time set forth for compliance, the defendants would be entitled to the deposit funds. Two days before the expiration of the relevant contingency date, the plaintiffs sent the defendants an e-mail in which they requested an extension of the mortgage commitment and closing dates. They explained that they would not be able to obtain a mortgage commitment by 5 p.m. that day, namely, the date that the e-mail was sent, but that they expected a mortgage commitment from a bank the following week. Although the defendants responded that they would be willing to agree to an extension if the plaintiffs provided certain additional information, that information was never provided. After the mortgage contingency date passed, the plaintiffs made three additional requests proposing amendments to extend the commitment and closing dates, but the parties did not reach an agreement on those requests. The plaintiffs subse- quently requested termination of the agreement and a return of their deposits. After a trial to the court, judgment was rendered in favor of the defendants, from which the plaintiffs appealed to this court. Held that the trial court properly determined that the plaintiffs failed to provide adequate notice to the defendants of their inability to obtain a written mortgage commitment on or before the commitment date, as required pursuant to the parties' real estate agreement, and they were not entitled to recover their deposits: the plaintiffs' e-mail requesting an extension, viewed in its entirety, was equivocal with respect to whether the plaintiffs would be able to obtain a written mortgage com- mitment on or before the commitment date, as their notice of an expecta- tion of receiving the commitment from a bank the following week left open the possibility that they might receive a written commitment by the commitment date; moreover, when the defendants declined to sign the proposed amendment attached to the plaintiffs' e-mail, the plaintiffs did not provide notice on or before the commitment date that they would not be able to obtain a written mortgage commitment by the commitment date or take any other subsequent actions consistent with a termination of the agreement and the right to a return of their deposits, and, as a result, the parties' agreement remained in effect and the defen- dants were entitled to retain the deposits when the plaintiffs subse- quently failed to close on the property in accordance with the agreement. Argued December 1, 2021—officially released May 31, 2022

The self-represented plaintiff, who was incarcerated following his convic- tion, on pleas of guilty, of various criminal charges including attempted murder, sought damages for, inter alia, the alleged legal malpractice of the defendants, attorneys who represented the plaintiff with respect to his criminal convictions. The plaintiff claimed that he suffered monetary damages as a result of the defendants' representation, alleging that, after entering into flat fee agreements for their services, the defendants demanded additional funds to continue their representation and that one of the defendants executed asset forfeiture agreements relating to approximately $17,000 that the state had seized from the plaintiff, with- out the plaintiff's knowledge or consent and after the applicable statutory (§§ 54-36h (b) and 54-36p (b)) period for the seizures had ended. The plaintiff also claimed that the defendants had pressured him into plead- ing guilty to the charges against him, even though he was not competent to do so at the time as a result of emotional distress caused by his mother's recent death. The trial court granted the defendants' motion to dismiss, concluding that it was without subject matter jurisdiction due to the exoneration rule, which required the plaintiff to demonstrate that his underlying convictions had been invalidated prior to proceeding with his legal malpractice claims. On the plaintiff's appeal to this court, held that the trial court improperly dismissed the plaintiff's claims relat- ing to the fee dispute and the forfeiture agreements but properly dis- missed, for lack of subject matter jurisdiction, the plaintiff's legal mal- practice claim as to the actions of the defendants in allegedly pressuring him to enter guilty pleas with respect to the charges against him: contrary to the plaintiff's claim, Connecticut courts have adopted and applied the exoneration rule to bar civil claims that necessarily imply the invalidity of an underlying conviction, however, such rule does not bar civil claims that do not challenge the validity of an underlying conviction; moreover, the plaintiff's claims relating to the fee dispute and the forfeiture agree- ments were entirely collateral to, and did not seek to attack, the plaintiff's guilty pleas and convictions, as his fee dispute claims challenged only the fees that the defendants charged for their representation and his forfeiture agreement claims did not allege that the forfeiture agreements were a component of his criminal sentence but, rather, asserted only that, at the time the agreements were executed, it was too late for the state to seek the forfeiture of his seized assets pursuant to §§ 54-36h (b) and 54-36p (b); furthermore, the plaintiff's legal malpractice claim as to the actions of the defendants in improperly pressuring him to enter into his guilty pleas did constitute a collateral attack on his guilty pleas and convictions and created a risk of inconsistent judgments; accordingly, the plaintiff's claims relating to the fee dispute and the forfeiture agreements were ripe and were not barred by the exoneration rule, however, his claim relating to the improper pressure the defendants allegedly exerted against him with respect to his guilty pleas was not ripe and was barred by the exoneration rule. (One judge concurring separately) Argued March 8—officially released May 31, 2022

The plaintiffs in error, four individual insureds, filed a writ of error, challeng- ing a discovery order issued by the trial court finding that the insureds had waived the attorney-client privilege as to all communications con- cerning the merits of the claims of the plaintiffs in the underlying action, W and J. In a prior action, W and J brought a claim against the insureds and their company, B Co., which owned an insurance policy issued by the defendant in error, L Co., which provided liability coverage for B Co. and its directors and officers. Pursuant to the policy, L Co. paid the costs of defending against W and J's action. Thereafter, L Co. denied that the policy provided coverage for any judgment in that action, and the insureds entered into a stipulated judgment assigning their rights under the policy to W and J and directed their attorney, E, to provide W and J with copies of all communications with L Co. regarding coverage under the policy, redacted as necessary to protect the attorney-client privilege. W and J then brought the underlying action against L Co., seeking to enforce the stipulated judgment, during which they served on L Co. a discovery request seeking all communications between L Co. and E regarding the prior action against the insureds. After L Co. informed W and J that the responsive documents were protected by the attorney-client privilege, the court held a discovery conference and ordered L Co. to produce all communications between L Co. and E that constituted statements of fact or related to the issue of insurance coverage. The insureds reviewed and redacted portions of the relevant documents and instructed L Co. as to which documents to withhold entirely, and L Co. provided the redacted documents and a privilege log to W and J. Thereafter, W and J filed a motion for summary judgment in the underlying action, in which they relied on certain privileged communications between E and L Co., which E had disclosed to them pursuant to the stipulated judgment in the prior action. Subsequently, L Co. notified the insureds that it would seek the court's permission to produce and disclose all communications between it and E regarding the merits of W and J's claims in the prior action to defend itself in the underlying action because the insureds had waived the attorney-client privilege by producing some communications on the same subject. Coun- sel for the insureds requested that L Co. identify specific documents that allegedly constituted waiver of that privilege, and L Co. identified six documents, two of which had been used in the motion for summary judgment. At a hearing on the privilege issue, the court, which noted that it had limited time to hear argument on the issue, concluded that the documents E provided to W and J waived the privilege, basing its decision solely on brief excerpts of documents read by L Co.'s attorney during the hearing without conducting an in camera review of the undis- closed documents to determine which were encompassed by the subject matter waiver. The court subsequently denied the motion for reconsider- ation filed by the insureds, and they filed a writ of error. Held: 1. Because the subject matter waiver rule is consistent with Connecticut's precedent and is based on the same fairness principle supporting the implied waiver rule, this court adopted it as the law in this state: the voluntary disclosure of a privileged attorney-client communication con- stitutes a waiver of the privilege as to all other communications concern- ing the same subject matter when the trial court has determined that the waiver was intentional and that fairness dictates that the disclosed and undisclosed communications be considered together; moreover, where a party asserts that the rule applies on the basis of disclosed communications, the court must review the relevant disclosed and undis- closed communications to determine whether a waiver has occurred and, if so, must determine the scope of that waiver through a fact intensive inquiry into the nature of the communications. 2. The trial court erred in not holding an evidentiary hearing and reviewing the communications in question: a. The trial court abused its discretion in failing to review the actual documents on which the claim of waiver was based: given the parties' conflicting positions regarding the importance of the documents at issue, the court was required to review the relevant communications before issuing its ruling finding that the insureds had waived the privilege as to all communications regarding E's analysis of W and J's claims; more- over, if the court, following a review of the documents, determines that there had been a subject matter waiver, it would need to conduct an in camera review of the claimed privileged documents to determine which documents were covered by the waiver and should be produced; accord- ingly, this court remanded the case for an evidentiary hearing. b. Because this court found error and remanded the case for an eviden- tiary hearing, it addressed the claims of the insureds likely to arise on remand: because not all of the communications were disclosed in compliance with a court order, on remand, the trial court was required to determine which privileged communications were voluntarily dis- closed by the insureds and whether fairness requires that the voluntarily disclosed communications and any undisclosed communications regard- ing the same subject matters be considered together; moreover, because L Co. produced only those communications authorized by the insureds, which they had reviewed and redacted, its actions did not neglect its duty to protect the attorney-client privilege and its productions of com- munications could have constituted a subject matter waiver of the insureds' privilege; furthermore, although the insureds were not parties to the underlying action, they had an interest in the action notwithstand- ing their lack of status and, therefore, the subject matter waiver rule may properly be applied to them. Argued December 2, 2021—officially released May 31, 2022

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 alimony. The separation agreement that was incorporated into the judgment of dissolution required the defendant to pay the plaintiff a percentage of his ''income from employment'' as alimony. The dissolution judgment was subse- quently modified by agreement of the parties, and that agreement deleted the provisions defining ''income from employment,'' including language pertaining to phantom income. After a hearing, the trial court granted the defendant's motion to modify alimony on the basis that he had been involuntarily terminated from his employment at F Co., and, therefore, concluded that he did not have the ability to pay his remaining alimony obligation. On the plaintiff's appeal to this court, held that the trial court properly granted the defendant's motion for modification of alimony: the defendant testified that his termination from F Co. was involuntary, partners and/or directors of F Co. testified that the defendant's termina- tion was involuntary, and because there was evidence that he was involuntarily terminated, this court could not conclude that the court's factual determination was clearly erroneous; moreover, although the plaintiff claimed that the court abused its discretion in declining to consider phantom income allocated to the defendant in determining his ability to pay alimony, the plaintiff relied on language in the dissolution judgment that defined income from employment, and this reliance was misplaced because the original judgment was superseded by the subse- quent modification; furthermore, the court did not fail to consider the applicable statutory (§ 46b-82) criteria, as the court referenced the statu- tory factors and discussed many of them in its decision. Argued February 15—officially released May 31, 2022

The plaintiff sought to recover damages from the defendants, B Co. and I Co., in connection with certain steps taken by the defendants involving the plaintiff's mortgaged property. B Co. was the servicer of a residential loan to the plaintiff under a note secured by a mortgage on his property. I Co. issued an insurance policy to the plaintiff covering the mortgaged property against loss, as required by the mortgage. After the plaintiff became delinquent on his mortgage payments, an inspection was com- pleted on the mortgaged property. The resulting inspection report noted that the property appeared to be vacant. B Co. advised I Co. of the possible vacancy, and that there might be a change of risk, and also sought assurances from the plaintiff that he either still occupied the property or had procured sufficient insurance to cover it against loss because the current insurance policy did not provide coverage if the property was vacant. Although the plaintiff still occupied the property, B Co.'s receipt of information to the contrary led I Co. to cancel the insurance policy and refund a portion of the premium. Following a conversation with the plaintiff, I Co. reinstated the policy and invoiced the plaintiff for the refunded portion of the premium. When the premium for the reinstated policy was never paid, B Co. procured a more costly lender placed insurance policy at the plaintiff's expense. The plaintiff eventually provided B Co. with evidence that he had obtained his own insurance coverage for the property and the lender placed policy was cancelled. Subsequently, the plaintiff filed an action against a trade name of B Co., and, after that company was defaulted for failure to appear, judgment was rendered in favor of the plaintiff. When B Co. learned of that action, it filed a motion to open and vacate the default judgment. The trial court granted B Co.'s motion and the action was dismissed for lack of subject matter jurisdiction and personal jurisdiction. The plaintiff then commenced the second action against B Co. under the accidental failure of suit statute (§ 52-592) and continuing course of conduct doctrine to recover damages on several theories of liability for injuries and losses, later moving successfully to cite in I Co. B Co. and I Co. then filed separate motions for summary judgment, which the trial court granted on the grounds that none of the plaintiff's untimely claims was saved by the accidental failure of suit statute or the continuing course of conduct doctrine and were barred by the applicable statutes of limitations, and that the plaintiff's remaining claims failed as a matter of law, and the plaintiff appealed to this court. Thereafter, the plaintiff filed an amended appeal from a postjudgment order of the trial court granting I Co.'s motion to enforce a settlement agreement it had reached with the plaintiff. Held: 1. The trial court did not err in granting I Co.'s motion to enforce a settlement agreement: a. The trial court properly exercised its authority under Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc. (225 Conn. 804) (Audubon) to enforce the settlement agreement: even though the plaintiff did not raise his unpreserved claim that a trial court lacked authority to summarily enforce a settlement agreement formed postjudgment dur- ing the pendency of an appeal, review was appropriate in the exercise of this court's supervisory powers under Blumberg Associates World- wide, Inc. v. Brown & Brown of Connecticut, Inc. (311 Conn. 123), as the record was adequate for review, all parties had an opportunity to be heard on the issue as both parties filed supplemental briefs on this issue, there was no unfair prejudice to any party as I Co. did not assert that it would have presented additional evidence or proceeded differently if the claim had been raised in the trial court, and the party who benefitted from the application of this court's supervisory powers, the plaintiff, could not prevail, thus, review of the claim did not prejudice I Co. and provided the plaintiff with a sense of finality that the plaintiff otherwise would not have had if this court declined to review the claim; moreover, the trial court was not deprived of its authority to enforce a settlement agreement simply because the action that the agreement settled was on appeal, as a settlement reached by the parties postjudgment and during the pendency of an appeal is a settlement within the framework of the original lawsuit under Audubon; furthermore, under Waldman v. Beck (101 Conn. App. 669), the court had the authority to order the precise form of relief agreed to by the parties, in this case not a judgment in favor of a party, but rather the withdrawal of the action. b. The trial court properly concluded that a clear, unambiguous, and enforceable agreement had been reached between the plaintiff and I Co. to settle the dispute between them in this action: upon a thorough review of the record, the court's finding concerning the mutual assent of the parties to the terms of the agreement was not clearly erroneous as the plaintiff's attorney never expressly stated to I Co.'s attorney in their e-mail communications that the settlement agreement was contingent upon reaching a global settlement that included B Co., and the fleeting references by the plaintiff's attorney to negotiations with B Co. were not enough to convey to a reasonable person in the position of the attorney for I Co. that the agreement was contingent; moreover, the court did not err in finding that the settlement agreement was supported by valid consideration, as the court found that the terms of the settlement agreement clearly and unambiguously established that I Co. would pay the plaintiff $10,000 in exchange for his release of all claims against it. c. Because the trial court did not err in granting I Co.'s motion to enforce the settlement agreement, this court did not address the plaintiff's claims concerning the trial court's granting I Co.'s motion for summary judg- ment. 2. The trial court properly granted B Co.'s motion for summary judgment: a. The trial court did not err in concluding that § 52-592 was inapplicable and therefore could not save the plaintiff's otherwise untimely claims; the communications between the plaintiff and B Co. and B Co.'s belated appearance in the original action filed by the plaintiff were insufficient to create a genuine issue of material fact that B Co. had actually received the summons and complaint and thereby had actual or effective notice of the original action, as pursuant to Rocco v. Garrison (268 Conn. 541) and Dorry v. Garden (313 Conn. 516), an action is commenced within the meaning of § 52-592 when a defendant receives actual or effective notice of the action, within the time period prescribed by law, by way of receipt of the summons and complaint, and the plaintiff failed to provide the court with any evidence that B Co. itself had actual or effective notice of the original action by way of receipt of the summons and complaint as in Rocco and Dorry, and there was no evidence that service was ever made on B Co. b. The trial court did not improperly conclude that the continuing course of conduct doctrine was inapplicable to the plaintiff's claims and there- fore could not toll the applicable statutes of limitations: there was no genuine issue of material fact regarding whether B Co. owed a continuing duty to the plaintiff as the relationship between the parties was at arm's length and commercial in nature, and there was no special relationship between the plaintiff and B Co. which gave rise to such a continuing duty; moreover, although the court found for the purpose of deciding B Co.'s motion for summary judgment that an implied in fact contract existed between the parties, this court has held that a mere contractual relationship does not create a fiduciary or confidential relationship, as the relationship between B Co. and the plaintiff lacked the unique degree of trust and confidence found in a special or fiduciary relationship; furthermore, B Co., as a servicer of the loan, had a right to further its own interests and therefore was under no duty to represent the interests of the plaintiff. c. The trial court did not improperly conclude that the plaintiff's claim of breach of the covenant of good faith and fair dealing failed as a matter of law as there was no genuine issue of material fact as to whether B Co. acted in bad faith: because the plaintiff became delinquent on his mortgage payments, B Co. conducted a property inspection of the mort- gaged property, the resulting inspection report indicated that the property might be vacant, B Co. then informed I Co. that the property might be vacant and, in its letter to I Co. informing it of such, there was a clear indication of uncertainty as to the occupancy status of the property, B Co. sent numerous letters to the plaintiff stating that it believed the property to be vacant, it was required to inform I Co. of this belief, and the plaintiff should have contacted I Co. with information regarding the occupancy status of the property, and these actions all indicated that B Co. was not acting in bad faith; moreover, the plaintiff pointed to no evidence supporting his claim that B Co. had acted in bad faith, and his argument that B Co. twice failed to pay the premium on his insurance policy was plainly contradicted by evidence provided by B Co. Argued January 20—officially released June 7, 2022