Volume 224 — Connecticut Appellate Reports

The petitioner, who had previously been convicted of four counts of the crime of risk of injury to a child, sought a new trial on the basis of allegedly newly discovered evidence that, if credited by a jury, would support a finding that he was innocent of the charges against him. The petitioner was a rabbi, dean and teacher at a private, Orthodox Jewish school when he sexually abused the victim, E, a student at the school, on various dates in 2002 and 2003, when E was fourteen and fifteen years old. The purported new evidence came to light as a result of testimony given by H, a rabbi and an assistant dean at the school when E attended, during a deposition in a federal civil lawsuit that E had brought against the petitioner. H testified in his deposition that he had had a sexual relationship with the petitioner that started when H himself was a student at the school. H also testified that he was involved in a sexual relationship with the petitioner at the same time that the peti- tioner was abusing E. The petitioner argued that H's testimony at a new trial would establish with certainty that any sexual misconduct by the petitioner toward E could not have begun until after E's sixteenth birth- day. It was an essential element of the crime for which the petitioner had been convicted, risk of injury to a child under the applicable statute (§ 53-21 (a) (2)), that E had been under the age of sixteen at the time of the petitioner's sexual misconduct. The petitioner attached to his petition for a new trial an affidavit sworn by H that stated, to H's knowledge, no acts of misconduct by the petitioner toward E occurred prior to E's sixteenth birthday. At the trial on the petition, H testified, inter alia, that E had called him sometime during the winter of 2020 to 2021 to ask if he had been ''really under sixteen at the time.'' The court denied the petition for a new trial and, in its memorandum of decision, noted that the petitioner's defense strategy had changed since his crimi- nal trial, at which his primary defense had been to attack E's credibility and, by implication, the veracity of his allegations of sexual abuse. The court noted that the petitioner now conceded that some of the alleged sexual acts with E had occurred but only after E had turned sixteen years old. The court stated that H had admitted in his testimony at trial that he had not been present during any sexual acts between the petitioner and E. Held that the trial court did not abuse its discretion in determining that the petitioner's purported new evidence, which con- sisted wholly of H's affidavit and testimony, would not, if introduced at a new trial, likely result in a different outcome, and, accordingly, properly denied the petition for a new trial: contrary to the petitioner's claim, the court gave due consideration to H's testimony regarding E's statement to him because the court specifically addressed that aspect of the new evidence in its memorandum of decision and concluded that the evidence would have done little to undermine the clear evidence in the criminal trial that E was indeed under the age of sixteen when he was sexually assaulted by the petitioner, and the court did not, as suggested by the petitioner, fail to recognize the significance of E's posttrial uncertainty as to how old he was when the sexual assault started, rather, the court simply was unconvinced that a jury hearing the evidence would have reached a different conclusion regarding the petitioner's guilt in light of the totality of the evidence presented, and the court's overall finding that H's testimony lacked credibility, and thus was unlikely to be credited by a jury, applied equally to his testimony regarding the alleged new statement by E; moreover, E's purported statement to H was vague, as E never affirmatively stated that he was sixteen years old or older when the petitioner first abused him, and, at best, his statement indicated possible confusion or doubt on E's part, but it certainly did not amount to a retraction of his trial testimony that helped to establish a timeline from which the jury reasonably could have found that his sexual abuse by the defendant started prior to E turning sixteen years old, and the only evidence before the court regard- ing the exact wording and context of E's purported posttrial statement to H was H's testimony, which the petitioner did not present any evidence to corroborate; furthermore, it was axiomatic that this court, in reviewing a trial court's decision on a petition for a new trial based upon newly discovered evidence could not substitute its own assessment as to the proper weight, if any, to be given to any piece of evidence offered or to revisit a trial court's assessment regarding the credibility of a witness, and the trial court provided a number of reasons why H was not a credible witness, including that H admitted that he had evaded service of process in both the federal civil action and the criminal trial, further weakening the persuasiveness of H's testimony and making it less likely that a jury would find his testimony credible. Argued November 15, 2023—officially released February 27, 2024

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 for modification of unallocated alimony and child support. At the time of dissolution in 2010, the parties had two minor children. The judgment of dissolution incorporated a separation agree- ment, which provided, inter alia, that the plaintiff would have legal and physical custody of the parties' children and that the defendant would pay unallocated alimony and child support in the amount of $1000 weekly. In 2014, by agreement of the parties, the defendant's unallocated alimony and child support was reduced from $1000 to $900 weekly. The 2014 agreement did not specify the amount of child support due to the plaintiff as a portion of the defendant's unallocated support, nor did the agreement expressly prohibit the modification of alimony. The defendant sought modification of the unallocated alimony and child support after the plaintiff and the children moved to Tennessee. During the hearing on the motion, the defendant identified, as substantial changes in circum- stances, the plaintiff's cohabitation and the change in residence in 2021 of his older child, who was then eighteen years old, from the plaintiff's home to the home of the defendant. In support thereof, the defendant sought to have his older child testify as to his change in residence as well as to the plaintiff's cohabitation, which the trial court denied, stating that it did not need the older child's testimony. The trial court also heard the testimony of a private investigator as to the plaintiff's cohabita- tion, and the defendant entered exhibits in support thereof. The plaintiff was not present at the hearing. In denying the defendant's motion, the court found, inter alia, that the defendant had failed to prove a substantial change in circumstances and that the testimony of the private investiga- tor was insufficient and not credible to support a finding of cohabita- tion. Held: 1. The trial court abused its discretion in denying the motion for modification with respect to the child support component of the unallocated support obligation because the court's finding that the defendant failed to demon- strate a substantial change in circumstances was clearly erroneous: this court concluded, on the basis of the undisputed evidence in the record, that the change in residence of the parties' older child, from the home of the plaintiff to the home of the defendant, amounted to a substantial change in circumstances pursuant to statute (§ 46b-86 (a)); moreover, the trial court's finding to the contrary was not supported by the evi- dence, as the court did not have any evidence before it that the defendant was not providing for the older child's necessary expenses and it did not make any findings based on the undisputed evidence that established a change in the older child's residence. 2. The trial court improperly denied the defendant's motion for modification without determining the child support component of the unallocated order, and this court, having determined that the defendant was entitled to a new hearing with respect to his motion to modify the child support component of the unallocated order, set forth the procedure applicable to the financial aspects of the modification of child support in the context of an unallocated support order on remand; the trial court should first unbundle the child support from the unallocated alimony and child support by determining the parties' net weekly income with the assis- tance of the 2014 financial affidavits, which the trial court had access to as they were part of the record, second, the trial court must calculate the presumptive support amount for the two children who, at that time, were minors, using the 2005 Child Support and Arrearage Guidelines in effect at the time of the parties' 2014 agreement, third, the trial court must ascertain the intent of the parties as to how the $900 weekly sum was to be divided because the 2014 agreement was not clear, and, finally, the trial court must consider the newly determined 2014 child support award against the parties' current financial circumstances, which also must be determined due to the passage of time since the trial court initially addressed the defendant's request for modification. 3. The trial court abused its discretion in denying the defendant's motion for modification with respect to the alimony component of his unallocated support obligation: under the totality of the circumstances in the present case, this court concluded that the trial court misapplied the law at the time of the hearing on the motion for modification, as the trial court was under the misapprehension that the separation agreement precluded the termination of alimony, including on the basis of cohabitation, until the death of either party, and, contrary to the trial court's remarks during the hearing, the separation agreement did not provide that the unallocated support obligation was nonmodifiable as to amount or term pursuant to statute (§ 46b-86 (a)); moreover, the trial court, having incorrectly expressed that cohabitation could not form a basis for modifi- cation of alimony, essentially misled the defendant in forgoing his oppor- tunity to present his older child's testimony, which the court had not precluded on evidentiary grounds, as additional evidence in support of the defendant's allegation of the plaintiff's cohabitation; furthermore, despite the trial court having determined that the defendant failed to provide satisfactory evidence of cohabitation, the trial court did not identify any particular aspects of the private investigator's testimony that it specifically discredited, nor did it offer any explanation of its determination that the private investigator's testimony, as a whole, was not credible; accordingly, the defendant was entitled to a new hearing on the motion for modification. Submitted on brief January 10—officially released February 27, 2024

The plaintiff filed an application to compel arbitration pursuant to an agree- ment entered into by the parties. Following a remote status conference, the trial court issued an order directing the parties to commence arbitra- tion within thirty days, and the defendants appealed to this court. The trial court granted the plaintiff's motion to terminate the automatic appellate stay pursuant to the rules of practice (§ 61-11), and the defen- dants did not file a motion for review of that decision. During oral argument before this court, the parties represented that arbitration pro- ceedings were ongoing, including, inter alia, that a demand for arbitration had been filed and acknowledged and that an answer, counterclaim and special defenses had been filed, but shared the position that the appeal was not moot. Held that the appeal was dismissed as it had been rendered moot and, therefore, this court lacked subject matter jurisdiction to entertain the defendants' claims; when the arbitration proceedings com- menced following the termination of the appellate stay, there was no practical relief that this court could afford the defendants because the trial court's judgment from which they appealed, ordering the parties to commence arbitration proceedings, had been executed and could not now be undone. Argued November 7, 2023—officially released March 12, 2024

The defendant judgment debtor, B, appealed to this court from the judgment of the trial court denying his claim that certain bank accounts were exempt from execution pursuant to statute ((Supp. 2022) § 52-367b) because the plaintiff judgment creditors executed on accounts that did not belong to him but, rather, belonged to his mother, J. The plaintiffs had obtained an arbitration award against B arising from a default on a loan, and the award was confirmed by the United States District Court for the Southern District of New York. The plaintiffs then domesticated the judgment in the Superior Court. After the trial court granted an application for a bank execution to satisfy the domesticated judgment, the plaintiffs served the execution on T Co., a bank, which identified two bank accounts on which B was listed as an account owner along with J and his sister. In his claim of exemption, B did not identify any of the statutory bases for an exemption set forth in § 52-367b or on the form prescribed by the Judicial Branch pursuant to § 52-367b (k). Instead, B indicated on his claim of exemption form that the basis of his claim was ''[o]ther'' and included a handwritten notation stating ''[f]unds in these accounts are not my property.'' Following a hearing, the court denied B's claim of exemption. Held that the trial court did not improperly find that the accounts at issue were joint accounts and were not exempt from execution under § 52-367b, the court having correctly concluded that B's asserted exemption was not recognized or enumerated under § 52-367b: although B purported to claim an exemp- tion under § 52-367b, specifically, that the funds in the accounts were not his but, instead, belonged solely to J, both the plain language of § 52-367b and case law make clear that the only cognizable exemptions are those provided for by that statute or any other laws or regulations of this state or the United States which exempt such debts from execution; moreover, although B noted in a supplemental brief to this court that he had filed a claim in the trial court for determination of interests pursuant to statute (§ 52-356c), that claim was neither pursued by B nor adjudicated by the trial court, and, because only a judgment creditor or a third person may make a claim for determination of interests pursuant to § 52-356c, not a judgment debtor, unless acting in a represen- tative capacity for an appropriate third party with an alleged interest in the subject property, and B lacked any legal capacity to act on J's behalf, he was not authorized by statute to challenge T Co.'s determina- tion that he was a co-owner of the accounts by pursuing a claim for determination of interests. Argued October 16, 2023—officially released March 12, 2024

Pursuant to part I of chapter 909 of the General Statutes, the Revised Uniform Arbitration Act (§§ 52-407aa through 52-407eee) governs arbitration agreements made on or after October 1, 2018, subject to certain excep- tions. Pursuant further to part II of chapter 909 of the General Statutes, titled ''Other Arbitration Proceedings,'' the provisions of other statutes (§§ 52- 408 through 52-424) govern arbitration agreements made before October 1, 2018. The plaintiff city sought to vacate an arbitration award in favor of the defendants, P, a former police sergeant who was employed by the city, and a union, of which P was a member, arising from the termination of P's employment for allegedly violating the city's excessive force policy and related federal law. Pursuant to a municipal collective bargaining agreement, executed in 2020, the union submitted a grievance regarding P's employment termination to the state arbitration board. After a hear- ing, a three member panel of the board concluded that P's employment had not been terminated for just cause and that he should be reinstated with full back pay. The city filed in the Superior Court an application to vacate the arbitration award pursuant to the applicable statutes (§§ 52- 418 and 52-420), claiming, inter alia, that the arbitration panel exceeded its powers and misapplied the law. The defendants filed a combined objection and application to confirm the arbitration award. The Superior Court vacated the arbitration panel's award and remanded the matter to the arbitration board for a new hearing on the merits of the grievance, from which the defendants appealed to this court. The city filed a motion to dismiss the appeal for lack of subject matter jurisdiction on the ground that the judgment of the Superior Court did not constitute a final judgment. The city, in relying on the statute (§ 52-407bbb (a) (5)) in part I of chapter 909 that provides that an appeal may be taken from an order vacating an award without directing a rehearing, claimed that, because the Superior Court expressly directed a rehearing, the defen- dants did not appeal from a final judgment. The defendants objected, claiming that, because they had filed a combined opposition and applica- tion to confirm the award, specific statutes (§§ 52-423 and 52-407bbb (a) (3)) provided them with the statutory basis to appeal from an order denying the confirmation of an award. Held that this court denied the plaintiff's motion to dismiss the defendants' appeal for lack of a final judgment: because this appeal arose in the context of a municipal collec- tive bargaining agreement and is governed by various provisions (§ 7- 467 et seq.) of chapter 113 of the General Statutes, one of the exceptions in part I of chapter 909 was applicable, specifically, the exception in the statute (§ 52-407cc) that provides that a proceeding under chapter 113 shall be subject to part II of chapter 909, regardless of the date the agreement was executed, and, under § 52-423, found in part II of chapter 909, and under Board of Education v. East Haven Education Assn. (66 Conn. App. 202), the defendants had a right to appeal from orders related to the judicial enforcement of arbitration awards and specifically provides a right of appeal from an order vacating an arbitration award. Considered December 13, 2023—officially released March 19, 2024

The petitioner sought relief in a third petition for a writ of habeas corpus, claiming that P, his counsel during his second habeas action, had pro- vided ineffective assistance by failing to raise claims of ineffective assis- tance against G, the petitioner's criminal trial counsel, and D, his counsel on direct appeal from his conviction. The petitioner had been convicted, after a jury trial, of murder as an accessory as a result of a gang related argument during which he and another individual shot at the unarmed victim as he was attempting to flee. The petitioner gave a statement to the police in which he admitted shooting the victim and claimed that the victim had reached toward the front of his waist as if he were about to pull out a gun. The petitioner did not indicate in the statement that he saw an actual weapon. Having determined that the evidence was lacking to support a defense of self-defense and that the outcome of the trial hinged on the petitioner's statement to the police, G decided not to request a jury instruction on self-defense and instead employed a trial strategy of attacking the credibility of the police involved in the petitioner's arrest and discrediting the statement's reliability while highlighting facts about the petitioner that might appeal to the jurors' sympathy. Thereafter, the court instructed the jury on the charge of murder, a specific intent crime. Although the court initially read the murder statute (§ 53a-54a (a)), which contained language requiring the specific intent to cause the victim's death, it also read the entire statutory (§ 53a-3 (11)) definition of intent, which included language on both specific intent and general intent to engage in conduct. The habeas court rendered judgment denying the petition for a writ of habeas corpus, concluding that the petitioner had not established that either G or D had rendered ineffective assistance, and, thus, that he could not prevail on his ineffective assistance claims against P. The court granted the petitioner's petition for certification to appeal, and the petitioner appealed to this court. Held: 1. The petitioner could not prevail on his claim that P rendered ineffective assistance when he failed to raise a claim that G had rendered deficient performance when she declined to request a self-defense instruction at the criminal trial: G's decision was a matter of sound trial strategy, as a defense of self-defense was inconsistent with the evidence that the unarmed victim was shot from behind as he was fleeing, and G was unable to find a witness or other evidence to corroborate the petitioner's belief that the victim was reaching for a weapon at the time of the shooting; moreover, G sought to have the jury consider only secondarily that the petitioner may have acted in self-defense and made the tactical decision to afford the jury two pathways to find the petitioner not guilty of murder without foreclosing the reasonable and well supported strategy of attacking the credibility of his statement to the police, as G's main objective was to discredit the statement in an attempt to persuade the jury to disregard evidence that was key to the state's case while her secondary objective was to suggest that, if the jury were to believe the petitioner's statement, it also might believe that he acted in self-defense when he shot at the victim. 2. The habeas court correctly rejected the petitioner's ineffective assistance claims against P concerning the trial court's jury instruction on the intent element of murder, as the petitioner was not prejudiced by G's failure to object to the instruction, and D did not improperly fail to raise the issue on direct appeal: a. Although G rendered deficient performance when she failed to object to the intent instruction, the record in its entirety, including the petitioner's incriminating statement to the police and the corroborating physical evidence presented by the state, showed that the petitioner failed to demonstrate a substantial likelihood that the outcome of his criminal trial would have been different had G objected to the instruction: although the court incorrectly read the entire definition of intent in § 53a-3 (11), it repeatedly referenced the specific intent language when it thereafter instructed the jury on the lesser included offense of manslaughter in the first degree with a firearm and on accessorial liability as it applied to the murder charge and to manslaughter; moreover, the court correctly distinguished the intent elements of manslaughter and accessory to man- slaughter from the specific intent language of the murder charge and accessory to murder, and, by stressing and emphasizing the differences between the elements of the offenses under which the petitioner could be found guilty, the court eliminated any risk of confusion that could have been caused by its improper prior instruction on intent to commit murder, and, thus, it was not reasonably possible that the jury was misled by the incorrect instruction on the element of intent. b. P did not render ineffective assistance by failing to claim that D improperly failed to raise the issue of the incorrect intent instruction on direct appeal, this court having previously determined, on the basis of its review of the merits of the underlying claim, that it was not reasonably probable that the petitioner would have prevailed on direct appeal. Argued November 14, 2023—officially released March 19, 2024

The plaintiff, as parent and next friend of her minor son, C, sought to recover damages from the defendants, the city of Hartford and D, the city forester, for injuries sustained by C when a tree fell on him while he was playing at a basketball court located in a city park. Eleven days before C was injured, D had visually inspected the tree at issue, which was located approximately twenty feet from the basketball court at the park. She determined that the tree did not constitute an immediate public hazard but designated the tree for removal by posting a sign on the tree allowing ten days for public comment, pursuant to a city ordi- nance (§ 26-11) and the statute (§ 23-59) governing the duties of tree wardens. The plaintiff's three count complaint included allegations of negligence against the city and D. The plaintiff alleged, inter alia, that the defendants were negligent in failing to adequately inspect the tree at issue and remove it. In their answer and special defenses, the defendants alleged that the plaintiff's negligence claims were barred by the doctrine of governmental immunity. Several months later, the defendants filed a motion for summary judgment, arguing that they were entitled to governmental immunity on the negligence claims because all of the allegations involved public duties that were discretionary as a matter of law. More than two years later, the plaintiff filed an objection to the motion for summary judgment wherein she argued that the defendants violated their ministerial duties as to the inspection and removal of the tree at issue. On that same day, the plaintiff also filed a request to amend her complaint, seeking to add one count asserting common-law recklessness, alleging the failure to conduct an inspection of the tree that fell on C. The plaintiff represented that her proposed new count of recklessness related back to her original complaint in that the factual basis for the claim of recklessness had not changed and the new claim merely amplified and expanded upon the allegations in the original complaint by setting forth an alternative theory of liability. The defen- dants filed an objection to the request to amend, arguing that, because their motion for summary judgment had been fully briefed and there was a trial date already assigned, granting the plaintiff's request to amend to include an additional count that raised a new basis of liability would prejudice them. The trial court denied the plaintiff's request to amend, finding that the amendment would considerably delay the proceedings, that it asserted claims not raised in the complaint that was the subject of the pending summary judgment motion, and that the plaintiff had offered no explanation or rationale for the delay in asserting a new claim. Approximately one month later, the court held a hearing on the defendants' motion for summary judgment and the plaintiff's objection thereto, at which the plaintiff's counsel argued that a genuine issue of material fact existed as to whether D's duty to inspect was ministerial or discretionary. The plaintiff subsequently filed a motion for permission to file a supplemental brief to her objection to the motion for summary judgment to argue that the defendants' motion for summary judgment should be denied because the allegations of the original complaint were broad enough to state a nuisance claim and the alleged facts supported a nuisance claim not barred by governmental immunity. The defendants filed an objection arguing that the plaintiff had not, and could not, allege a public nuisance claim against them. Several weeks later, the trial date was continued to a date almost one year after the then scheduled trial date. The plaintiff filed a renewed request to amend her complaint, seeking to add one count for common-law recklessness and one count for public nuisance. In her request, the plaintiff reiterated that the new allegations related back to the allegations in the original complaint and asserted that the new trial date afforded ample time for the defendants to conduct any additional discovery that they deemed necessary. The defendants filed an objection, arguing that the trial date was continued only to provide the court with time to decide the pending motion for summary judgment and that there was no reason to revisit the trial court's prior ruling denying the plaintiff's first request to amend. The court granted the plaintiff's motion for permission to file a supplemental brief but rejected the argument therein, finding that the factual allega- tions of the operative complaint did not support a claim for public nuisance as an alternative to the negligence claims that had been clearly pleaded. On that same day, the court denied the plaintiff's renewed request to amend her complaint, ruling that the proposed new counts were filed beyond the applicable statutes of limitations (§§ 52-577 and 52-584) and that the new counts did not relate back to the allegations in the original complaint. The trial court subsequently issued a memoran- dum of decision granting the defendants' motion for summary judgment and concluding that the allegations of negligence in the plaintiff's com- plaint clearly related to discretionary functions and, therefore, the defen- dants were immune from liability both at common law and under the statute (§ 52-557n) providing governmental immunity. On the plaintiff's appeal to this court, held: 1. The plaintiff could not prevail on her claim that the trial court improperly denied her first request to amend her complaint; when the plaintiff filed that request, the defendants' motion for summary judgment had been pending for more than two years, it had been briefed by both parties, and there was an upcoming trial date, and the trial court's ruling that permitting the amendment would considerably delay the proceedings in light of the upcoming trial date did not reflect an abuse of its discretion. 2. The trial court erred in denying the plaintiff's renewed request to amend her complaint on the basis that the proposed claims of recklessness and public nuisance were barred by §§ 52-577 and 52-584: neither § 52- 577 nor § 52-584 establishes a remedy that does not otherwise exist, and, because such statutes of limitations are procedural, not jurisdic- tional, and the periods of limitation set forth therein could be waived, a trial court may not raise the limitation on its own motion; moreover, because the trial court sua sponte raised the issue of the statutes of limitations and the defendants had not objected to the plaintiff's renewed request to amend her complaint on the ground that the new allegations did not relate back to the allegations of her complaint and were, conse- quently, beyond the applicable statutes of limitations, the court erred in denying the request. 3. The plaintiff's claim that the trial court erred in rendering summary judgment for the defendants was unavailing: a. Contrary to the plaintiff's argument, the trial court did not err in concluding that her complaint failed to set forth a claim for public nuisance; although the plaintiff identified certain allegations in her com- plaint that she claimed set forth a claim of nuisance, specifically, that the defendants allowed C to use the basketball court in the park when they knew or should have known that the tree was rotted or dangerous and continued to maintain the tree with the same defects, those allega- tions, when read in the context of the entirety of the complaint, did not allege that the defendants created the condition that caused the tree to fall but, rather, that they should have recognized the hazard presented by the tree and remediated it, essentially alleging a failure to act on the part of the defendants, and a failure to act or remediate does not consti- tute a nuisance. b. The plaintiff could not prevail on her claim that the trial court erred in concluding that her claims against the defendants were barred by governmental immunity because a genuine issue of material fact existed as to whether the defendants' alleged negligence constituted a violation of a ministerial or discretionary duty: because D determined that the tree at issue in the present case did not pose an immediate public hazard, the plaintiff's claim that § 23-59 imposes a ministerial duty when a tree poses an immediate public hazard was unavailing; moreover, although the plaintiff contended that D violated her ministerial duty to properly inspect the tree at issue, she failed to cite any authority to support her contention that D's duty to inspect the tree at issue was ministerial, and this court has previously held that § 23-59 provides that many, but not all, of the duties of a tree warden involve the exercise of discretion; furthermore, the defendants had not received a complaint or been other- wise notified that the tree at issue was potentially hazardous but, rather, the record reflected that D's inspection of the tree at issue was a matter of routine, there were no policies or regulations that set forth the manner in which the inspection of a tree must be conducted, and, in the absence of such guidelines, it was clear that the routine inspection involved D's judgment and discretion, and, therefore, the court did not err in conclud- ing that the allegations of the complaint challenged D's discretionary con- duct. Argued November 7, 2023—officially released March 19, 2024

The petitioner, who had been convicted, on a plea of guilty, of murder, sought a writ of habeas corpus, claiming that both his trial counsel and prior habeas counsel were ineffective and that his guilty plea was not knowing, intelligent and voluntary in violation of his due process rights. In 2010, approximately two years after his conviction, the petitioner filed a petition for habeas corpus, in which he was represented by D. In 2013, the petitioner withdrew his petition just prior to trial. In 2018, the petitioner filed the underlying habeas petition, which he amended in 2022. The respondent, the Commissioner of Correction, filed a motion pursuant to the statute (§ 52-470) governing summary disposal of habeas corpus matters for an order to show cause as to why the petition should not be dismissed as untimely because it was filed more than five years after the petitioner's judgment of conviction became final in 2008. In response, the petitioner claimed that good cause existed for the delay in the filing of his petition because D failed to advise him of the time constraints outlined in § 52-470 for a subsequent habeas petition and, if he had been so advised, he would not have withdrawn his first habeas petition. The habeas court found that the petitioner had failed to show good cause for the delay in filing and dismissed the petition. Just prior to oral argument in the present appeal, the Supreme Court issued its decision in Rose v. Commissioner of Correction (348 Conn. 333), which held that ineffective assistance of counsel is an objective factor external to a petitioner that may constitute good cause to excuse the late filing of a habeas petition under the totality of the circumstances pursuant to § 52-470 (c) and (e). Held that the habeas court did not apply the correct legal standard under § 52-470 (c) and (e) in deciding that the petitioner had not demonstrated good cause for the late filing of his habeas petition; although the habeas court did not expressly reject the petitioner's allegation that D's alleged ineffective assistance in not advising him of the deadline for filing a new petition caused the delay, the habeas court did not consider the alleged ineffective assistance of counsel as an external factor that caused the delay in filing the untimely petition, and, in light of the Supreme Court's decision in Rose, the petitioner was entitled to a new hearing at which the court applies the correct legal standard set forth by the Supreme Court. Argued January 10—officially released March 19, 2024

The petitioner, who had been convicted of several crimes committed in 2013, sought a writ of habeas corpus, claiming that the retroactive application to him of an amended administrative directive of the respon- dent, the Commissioner of Correction, violated the ex post facto clause of the federal constitution. The petitioner claimed that the amendment's change in the calculation of risk reduction credit he could earn toward completion of his sentence resulted in a longer period of incarceration for him and a postponement of his parole eligibility date to a time later than had originally been projected. Under the statutorily (§ 18-98e) created risk reduction earned credits program, the respondent had the sole discretion to award up to five days of risk reduction credit per month toward the completion of eligible inmates' sentences. Under the administrative directive in effect in 2013, the petitioner had been earning five days of risk reduction credit per month. In 2016, when the respon- dent amended the 2013 administrative directive to align the award of risk reduction credit with inmates' overall risk classification levels, the petitioner began earning risk reduction credit at a rate of three days per month due to his risk classification. The petitioner filed a motion for summary judgment, claiming, inter alia, that he had earned approxi- mately 104 fewer risk reduction credits from the time that the 2016 administrative directive was applied to him until the time of the habeas proceedings than he would have earned under the 2013 administrative directive. The respondent filed a motion to dismiss the habeas petition, arguing that, pursuant to the applicable rule of practice (§ 23-29 (1)), the court lacked subject matter jurisdiction over the habeas petition and, alternatively, that, pursuant to Practice Book § 23-29 (2), the peti- tioner had failed to state a claim on which relief could be granted. The habeas court granted the petitioner's motion for summary judgment, reasoning that the 2016 administrative directive was a law within the meaning of the ex post facto clause and that its retroactive application to the petitioner violated the ex post facto clause because it created a sufficient risk of prolonging his incarceration. The court rendered judgment denying the respondent's motion to dismiss and granting the habeas petition, from which the respondent, on the granting of certifica- tion, appealed to this court. Held that the habeas court improperly granted the petitioner's motion for summary judgment and improperly denied the respondent's motion to dismiss the habeas petition, as the 2016 amended administrative directive did not constitute a law within the meaning of the ex post facto clause, and, thus, the petitioner failed to state a claim on which relief could be granted: whereas the constitutional prohibition on ex post facto laws applies only to penal statutes that disadvantage the offender affected by them, the 2016 administrative directive was not a law but an internal Department of Correction policy that the respondent adopted in his sole discretion, pursuant to § 18-98e (f), to determine the amount of risk reduction credit that inmates may earn according to their overall security risk level, as the adoption of the 2016 administrative directive was an Executive Branch function that was part of the respondent's responsibility to oversee the internal management of the correctional system; moreover, although the peti- tioner correctly asserted that administrative regulations may implicate the ex post facto clause, the respondent did not adopt the 2016 adminis- trative directive in the exercise of authority delegated to him by the legislature to promulgate rules, which are subject to the notice and comment procedures under the Uniform Administrative Procedure Act (§ 4-166 et seq.), as the 2016 administrative directive was not a regulation subject to legislative approval but was merely a notice regarding how the respondent chose to exercise his unilateral statutory discretion con- cerning risk reduction credit; furthermore, the petitioner's failure to demonstrate that the 2016 administrative directive was a law within the meaning of the ex post facto clause meant that his claim was legally insufficient; accordingly, the habeas court improperly failed to grant the respondent's motion to dismiss on the ground that the habeas petition failed to state a claim on which relief could be granted pursuant to Practice Book § 23-29 (2). Argued November 6, 2023—officially released March 26, 2024

The plaintiff landlord sought, by way of summary process, to regain posses- sion of certain premises leased to the defendant tenant. The defendant filed a special motion to dismiss pursuant to the anti-SLAPP statute (§ 52-196a), arguing that the plaintiff violated his first amendment rights, right of association, and right to petition the government by filing a fraudulent and frivolous summary process action to evict him. The trial court denied the motion, and the defendant appealed to this court. The plaintiff filed a motion to dismiss the defendant's appeal, claiming that the trial court's denial of the defendant's special motion to dismiss was not an appealable final judgment. Held that this court lacked subject matter jurisdiction over the defendant's appeal, and, accordingly, the appeal was dismissed: the defendant failed to assert a colorable claim that would entitle him to an immediate review of the trial court's denial of his special motion to dismiss pursuant to § 52-196a because none of the allegations in the plaintiff's complaint was based on the defendant's exercise of his right of free speech, to petition the government, or of association, as the complaint made clear that the summary process action was predicated solely on the defendant's alleged failure to pay rent owed to the plaintiff and the fact that the written lease agreement between the parties had lapsed and had not been renewed, and the complaint did not contain any allegations about things the defendant said or communicated or about other actions that would otherwise implicate the defendant's right of free speech, to petition the government, or of association, as those terms were understood under § 52-196a; moreover, the defendant's allegation that the summary process action was motivated by a complaint he had filed against the plaintiff with the state's Commission on Human Rights and Opportunities did not transform the action into a claim that was based on the defendant's exercise of his right of free speech, to petition the government, or of association, as required by § 52-196a. Considered December 6, 2023—officially released March 26, 2024

The plaintiff sought to recover damages from the defendants for, inter alia, their alleged legal malpractice in connection with their representation of the plaintiff during her prior marital dissolution proceedings. The plaintiff, who initially was self-represented, commenced the action in June, 2020. In September, 2020, the defendants served a set of interroga- tories and requests for production on the plaintiff and also filed a request to revise the complaint. In October, 2020, the defendants filed a motion for a judgment of nonsuit based on the plaintiff's failure to respond to their request to revise. In November, 2020, the defendants filed another motion for a judgment of nonsuit on the ground that the plaintiff had failed to respond to their interrogatories and requests for production. In December, 2020, an attorney, M, filed an appearance on behalf of the plaintiff and requested a thirty day continuance to respond to the defendants' requests to revise and for discovery. The trial court granted the request. In February, 2021, the defendants again moved for a judg- ment of nonsuit in light of the plaintiff's failure to file a revised complaint and to respond to their discovery requests. The plaintiff did not file an objection to that motion. In March, 2021, the trial court issued an order in connection with the February, 2021 motion for a judgment of nonsuit, indicating that the plaintiff had thirty days to file a revised complaint and responses to the defendants' discovery requests or the defendants could file another motion for a judgment of nonsuit that would be granted by the trial court. In April, 2021, the plaintiff filed a revised complaint but did not file a notice of compliance with discovery. In May, 2021, the defendants filed another motion for a judgment of nonsuit, as the plaintiff had failed to respond to discovery pursuant to the trial court's March, 2021 order. The plaintiff filed a notice of compliance with discovery in June, 2021, which the defendants asserted was defi- cient. The following month, the defendants again filed a motion for a judgment of nonsuit on the ground that the plaintiff had failed to fully respond to discovery pursuant to the trial court's March, 2021 order. The plaintiff did not file an objection to the motion, which the trial court granted, and the court rendered a judgment of nonsuit against the plaintiff. In September, 2021, the plaintiff filed a motion to open and set aside the judgment of nonsuit, claiming that there was a bona fide reason for her failure to respond to the defendants' discovery requests. After the defendants filed an objection, arguing that the plaintiff could not establish that a good cause of action existed at the time the nonsuit was rendered or that she was prevented from prosecuting the action due to mistake, accident or other reasonable cause as required by the applicable statute (§ 52-212), M filed an affidavit in support of the plaintiff's motion to open the judgment of nonsuit, in which he asserted that the plaintiff did have good cause under multiple counts and that he had had various medical and veterinary appointments. The trial court denied the plaintiff's motion to open, and the plaintiff appealed to this court. Held that the trial court did not abuse its discretion in denying the plaintiff's motion to open and set aside the judgment of nonsuit: the trial court did not err in concluding that the plaintiff failed to establish reasonable cause for her noncompliance with discovery under the second prong of the test set forth in § 52-212 because, contrary to the plaintiff's assertion, the trial court did not find that her reasons for failing to prosecute were insufficient to constitute reasonable cause but, rather, concluded that she had not adequately substantiated her proffered reasons, as the affidavit she submitted in connection with her motion offered only general references to M's various medical and other issues, without any specific dates, circumstances or other substantiation as to what prevented him from fully complying with the trial court's March, 2021 order; moreover, although the plaintiff claimed that the trial court improperly applied the law because the rule of practice (§ 17- 43) requires an affidavit to set forth particularized circumstances only if a plaintiff is nonsuited for failure to appear, not for failure to comply with discovery, she did not provide any legal authority for that proposi- tion, and a specific explanation was required to sustain her burden of demonstrating reasonable cause for noncompliance. Argued December 5, 2023—officially released March 26, 2024

The plaintiff, C Co., sought to foreclose a mortgage on certain real property owned by the defendant, S. Thereafter, A Co. was substituted for C Co., and the trial court granted A Co.'s motion for a judgment of strict foreclosure and rendered judgment thereon, from which S appealed to this court, which reversed in part the trial court's judgment and remanded the case to that court for further proceedings. Following the remand, A Co. filed a motion for summary judgment as to liability only, and, in support of its motion, submitted, inter alia, the affidavit of H, a litigation specialist employed by A Co.'s loan servicer. In her affidavit, H summarized the history of the assignment of the mortgage and further averred that C Co. had been the holder of the note at the time the present action was commenced and that A Co. was the current holder of the note and the mortgagee of record. After the deadline for filing a response to A Co.'s motion for summary judgment expired, S filed a document captioned ''Practice Book § 17-47 Motion for Extension of Time to Respond to the Plaintiff's Motion for Summary Judgment, or Alternatively, Objection to Summary Judgment,'' which the court denied as untimely. S then noticed the deposition of a designee of A Co., seeking various documents, and A Co. filed a motion for a protective order on the grounds that S's requests were untimely and sought information to which he was not entitled, and the trial court summarily granted the motion for a protective order. When the parties appeared before the court, the court granted A Co.'s motion for summary judgment without a hearing, in the absence of opposition, after S's attorney acknowledged that he had not filed a response to the motion. Subsequently, A Co. filed a motion for a judgment of strict foreclosure, which the trial court granted and rendered judgment thereon, from which S appealed to this court, which reversed in part the trial court's judgment and remanded the case to that court for further proceedings. During the proceedings on remand, A Co. reclaimed for adjudication its summary judgment motion, and S issued notices of two depositions, seeking information nearly identical to the information he had previously sought, which was the subject of the protective order. A Co. then moved for a protective order barring S from deposing its corporate designee and keeper of records. S filed a memorandum of law in opposition to A Co.'s motion for summary judgment, arguing, inter alia, that, because A Co. refused to produce H for a deposition, the court should deny the motion pursuant to the rule of practice (§ 17-47) that permits the court to deny summary judgment when appropriate documents are unavailable. S also filed an affidavit pursuant to Practice Book § 17-47 explaining why he should be granted a continuance to conduct discovery. After a hearing, the court granted A Co.'s motion for summary judgment as to liability and rendered a judgment of strict foreclosure, from which S appealed to this court. Held: 1. S could not prevail on his claim that the trial court erred in granting summary judgment as to liability because it improperly relied on H's affidavit in determining that C Co. was the holder of the note at the time the action had been commenced: H averred that she had personal knowledge of the records pertaining to the note and mortgage in this case based upon her review of those records, which were received and maintained in the regular and ordinary practice of A Co.'s loan servicer, such that they constituted competent evidence of C Co.'s status as holder of the note when the action had been commenced; moreover, this court rejected S's claim that the trial court should not have relied on H's affidavit because she failed to attach to it the documents on which her averments were based, noting that our Supreme Court rejected virtually the same argument in RMS Residential Properties, LLC v. Miller (303 Conn. 224), and reasoning that to be competent to testify, H needed only to have personal knowledge of the business records. 2. S could not prevail on his claim that the trial court erred in granting summary judgment as to liability because it failed to give him, as the nonmoving party, the benefit of all favorable inferences to be drawn from the evidence by neglecting to draw an adverse inference from A Co.'s refusal to produce witnesses and documents requested by S: S failed to set forth any facts, other than A Co.'s filing of a motion for a protective order, which is permitted by our rules of practice, in support of his contention that A Co. had engaged in extraordinary measures to prevent S from deposing H or any other corporate designees of A Co.; moreover, S's claim that he was entitled to an adverse inference for A Co.'s failure to allow him to depose H on the basis of the missing witness rule adopted in Secondino v. New Haven Gas Co. (147 Conn. 672) was legally flawed in that the missing witness rule was significantly limited in civil cases by statute (§ 52-216c) after Secondino had been issued, and S failed, in his brief to this court, to acknowledge the abrogation of Secondino; furthermore, setting aside the fact that S's reliance on Secondino was misplaced, S was unable to demonstrate that he would have been entitled to the benefit of the adverse inference permitted by § 52-216c. 3. S could not prevail on his claim that the trial court abused its discretion when it implicitly granted A Co.'s motion for a protective order, resulting in a complete denial of discovery and a denial of his ability to rebut A Co.'s claims: S's claim was belied by the fact that he neither filed a request pursuant to Practice Book § 17-47 with the court nor requested that the court rule on A Co.'s motion for a protective order; moreover, the trial court granted A Co.'s motion for a protective order as to S's request to depose a designee of the plaintiff after the first remand from this court and prior to S's second appeal, and S could have challenged the propriety of the protective order in his second appeal, but chose not to do so; furthermore, further discovery was beyond the rescript order of this court in the second appeal, as this court addressed the discovery issue because it was likely to arise on remand and determined that the trial court did not abuse its discretion in ruling that S's request for an extension of time to conduct discovery to respond to A Co.'s motion for summary judgment was untimely. Argued January 3—officially released April 9, 2024

The plaintiffs, owners of certain real property in Easton that is benefitted by a right-of-way easement over the defendants' neighboring property, sought, inter alia, a mandatory injunction requiring the defendants to consent to the removal of a utility pole that provided electrical services to the defendants' property and obstructed the easement and to upgrade the electrical connection between the defendants' house and a new utility pole that had been erected on the plaintiffs' property so that the connection complied with the building code then in effect. Prior to the commencement of trial, the attorneys for the parties attended a pretrial conference before the trial court. Thereafter, pursuant to Audubon Park- ing Associates Ltd. Partnership v. Barclay & Stubbs, Inc. (225 Conn. 804), the plaintiffs filed a motion to enforce a settlement agreement that they claimed the parties had entered into at the pretrial conference. In their motion, the plaintiffs asserted that the parties had discussed and orally agreed on the location of an underground conduit for the defen- dants' new electrical service at the pretrial conference and that, subse- quently, the defendants refused to allow the plaintiffs to perform the work that was agreed on or to implement the settlement agreement. The plaintiffs attached an exhibit to their motion, which they drafted after the pretrial conference to outline the terms of the parties' alleged agreement. The defendants objected to the plaintiffs' motion, asserting that, although the parties had attempted to reach an agreement at the pretrial conference, they never did so, as they failed to reach a consensus regarding the location and scope of the expected work and the length of time it would take. Following a remote status conference, the trial court went on the record to hear arguments from the parties' counsel and then incorporated the additional terms that were discussed by the defendants' counsel into the settlement agreement as it was outlined in the exhibit. The defendants' counsel discussed the modified settlement agreement with the defendants during a short recess and then informed the trial court that the defendants did not consider the modified settle- ment agreement to be agreeable. Thereafter, the trial court granted the plaintiffs' motion to enforce the settlement agreement, subject to the terms and conditions of the exhibit, as modified by the court and reflected in the transcript of that day's proceeding. On the defendants' appeal to this court, held that the trial court abused its discretion in granting the plaintiffs' motion to enforce a settlement agreement because the parties did not reach a clear and unambiguous agreement either at or following the pretrial conference: the trial court treated the exhibit as an agreement binding on the parties despite the fact that there was nothing in the record, beyond the plaintiffs' reliance on the exhibit, to demonstrate that an agreement had been reached, the agreement was unsworn, and the defendants repeatedly disputed that they had entered into the agreement; moreover, even if the trial court had assumed that the exhibit memorialized an agreement between the parties, when faced with numerous issues concerning the adequacy of the agreement and after acknowledging that a material term of the settlement was not agreed on, the court failed to hold an Audubon hearing to determine whether the parties had a clear and unambiguous agreement and, instead, issued an order granting the plaintiffs' motion subject to the terms and conditions as modified by the court; accordingly, this court reversed the judgment of the trial court and remanded the case with direction to deny the plaintiffs' motion to enforce the settlement agree- ment. Argued October 3, 2023—officially released April 9, 2024

The petitioner, who had been convicted of various crimes pursuant to a plea agreement reached in accordance with State v. Garvin (242 Conn. 296), sought a writ of habeas corpus, claiming that his trial counsel rendered ineffective assistance. In accordance with the Garvin agree- ment, the trial court agreed to a specific sentence for the petitioner as long as the petitioner, inter alia, was not arrested for any offense for which a court made a finding of probable cause while awaiting sentenc- ing. If there was a violation of the agreement, the petitioner would no longer be entitled to the agreed upon sentence and would face a longer period of incarceration. Before the petitioner was sentenced, he was arrested on subsequent charges. The sentencing court found a Garvin violation as a result and sentenced him accordingly. Before the habeas court, the petitioner alleged that his trial counsel performed deficiently by improperly advising him with respect to whether the sentencing court could deviate from the plea agreement, providing him with unrealistic expectations as to the sentence he would face, and that he was preju- diced by this advice because he would not have accepted the plea deal but for his counsel's deficient performance. After a trial, the habeas court rendered judgment denying the petition, and the petitioner, on the granting of certification, appealed to this court. Held that the habeas court properly denied the operative petition as to the petitioner's claim of ineffective assistance of his trial counsel: the petitioner failed to prove that he was prejudiced by any alleged deficient performance of his trial counsel in advising him of the remote possibility that the trial court could deviate from the plea agreement at the time of sentencing, as the trial court's swift response when this notion was raised by trial counsel made it clear that there was no real possibility of that outcome, and the petitioner's bald assertion in his appellate brief that there was a reasonable probability that, but for counsel's improper advice, he would have rejected the plea agreement and proceeded to trial, without more, was insufficient to establish that the petitioner was prejudiced by his trial counsel's performance; moreover, the plea canvass conducted In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as amended by the Violence Against Women Act Reauthorization Act of 2022, Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to identify any person protected or sought to be protected under a protection order, protective order, or a restraining order that was issued or applied for, or others through whom that person's identity may be ascertained. by the trial court established that the petitioner understood the sentenc- ing possibilities and made the strategic decision to plead guilty to ensure that he would receive a shorter period of incarceration and to avoid the risk of being exposed to the maximum possible sentence for the charges if he went to trial; furthermore, the petitioner failed to present any credible evidence at the habeas trial that he would have gone to trial but for trial counsel's allegedly deficient performance in inducing him to plead guilty. Argued January 16—officially released April 9, 2024

The petitioner, who had been convicted, after a jury trial, of various crimes in connection with a home invasion and the shooting of two victims, sought a writ of habeas corpus, claiming that the state had suppressed exculpatory information in violation of Brady v. Maryland (373 U.S. 83) and that his trial counsel, K, had rendered ineffective assistance by failing to consult with or retain an expert on eyewitness identification and by failing to impeach P, one of the eyewitnesses who testified for the state. After an altercation with the two victims at a bar hours earlier, the petitioner and another man entered an apartment where a group of individuals had gathered, including the two victims, several of whom had known the petitioner for years. Both men were armed and had their heads and faces covered. When the petitioner reached the living room, he pulled down his mask and fired toward the window. He then fired two shots at the first victim, striking him. The two men chased the second victim out of the apartment, firing and striking him. At the apartment, P called 911 and stated that the first victim had been shot. After being transported to a hospital, the first victim died, and the second victim survived. After the police arrived on the scene, several people who were present during the shooting identified the petitioner as one of the shooters. At the petitioner's criminal trial in 2016, several witnesses testified that the petitioner was the shooter, and at least two witnesses testified that they had heard an eyewitness scream the petitioner's name during the shooting. A recording of P's 911 call, in which she identified the petitioner as the individual who had shot the first victim, was admit- ted at the petitioner's criminal trial. The spontaneous excited utterances identifying the petitioner as the shooter made by both an eyewitness when she phoned her mother shortly after the shooting and by the second victim, when he spoke to a police officer as he was being treated for his gunshot wounds in the hospital, were also admitted at the petition- er's criminal trial. Two years after the petitioner was convicted, in an appeal in an unrelated habeas case brought by T, this court held that the state's failure to correct the false testimony of P in T's 2009 criminal trial violated T's due process rights. At the habeas trial in the present case, K testified that he had requested that the state disclose all exculpa- tory material but did not recall whether the state had disclosed any exculpatory material related to P, and the prosecutor in the petitioner's criminal trial, R, testified that he believed that he had turned over all exculpatory material that was in his possession to the defense. The petitioner presented the testimony of B, a professor of psychology spe- cializing in memory and psychology in the legal system. In his testimony, B detailed factors that can reduce identification accuracy or impact memory and testified that he would have been able to assist the petition- er's trial counsel in connection with cross-examination and arguments and in pursuit of a motion to suppress. On cross-examination, B testified that an eyewitness' familiarity with a suspect would make an identifica- tion more reliable. The habeas court rendered judgment denying the petition for a writ of habeas corpus. Thereafter, the habeas court denied the petition for certification to appeal, and the petitioner appealed to this court. Held: 1. 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. 2. The petitioner could not prevail on his claim that the habeas court improp- erly determined that he was not deprived of his rights to due process and to a fair trial in violation of Brady because the state failed to disclose that P had testified falsely in T's criminal trial: pursuant to State v. Guerrera (331 Conn. 628), R was not required to search the file in T's unrelated criminal case to exclude the possibility that the file contained exculpatory information; moreover, there was no evidence presented and no findings made by the habeas court that R had actual knowledge or cause to know of the existence of Brady material in T's file, R's lack of memory as to whether he had exculpatory information regarding P did not, without more, equate to affirmative proof of any fact, and there was no evidence at the habeas trial and the habeas court made no factual finding that K had made a specific request for that information, which was required in order to trigger the state's examination of that file under the circumstances of this case. 3. The petitioner could not prevail on his claim that the habeas court improp- erly concluded that he had failed to establish that K rendered ineffective assistance during his criminal trial: a. Contrary to the petitioner's argument, the habeas court properly con- cluded that K did not render ineffective assistance by failing to consult with or call an expert on eyewitness identification to testify at the peti- tioner's criminal trial: K offered a legitimate strategic reason for his decision not to consult an expert on eyewitness identification in which he recognized that the primary concern with eyewitness identifications was not present because the eyewitnesses knew the petitioner prior to the shooting; moreover, the petitioner failed to demonstrate that there was a reasonable probability that the result of his criminal trial would have been different if K had consulted such an expert, as the witnesses knew the petitioner and were therefore likely to identify him accurately, B testified on cross-examination that familiarity makes an eyewitness identification more reliable, the petitioner admitted that K had attempted to impeach all of the eyewitnesses by testing their credibility and the consistency of their accounts, and the petitioner offered no evidence to undermine the fact that the witnesses who identified the petitioner at his criminal trial knew him for a long time before the shooting occurred. b. The petitioner could not prevail on his alternative claim that, if the state had disclosed P's prior false testimony, then K rendered ineffective assistance by failing to impeach her concerning that false testimony; the evidence adduced at the habeas trial did not establish that the state failed to disclose P's false testimony in T's criminal case to the defense, and the petitioner failed to call P to testify at the habeas trial to offer the additional information he claims should have been elicited by more thorough cross-examination or to show how alternative cross-examina- tion questions would have impacted her credibility. Argued February 8—officially released April 9, 2024

The plaintiffs, B, E, and M Co., sought to recover damages from the defendant car dealership for alleged breach of contract, fraud, theft, and violation of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) in connection with the purchase and sale of a plow truck. B, the managing member of M Co., testified that, on January 21, 2015, he signed an instalment contract on behalf of M Co. for the purchase of the plow truck. E, who was not a member of M Co., cosigned the contract, and B drove the truck off the lot. The plaintiffs did not submit this purported contract as an exhibit in the trial court. A few days later, B returned to the showroom at the request of D, one of the defendant's salesmen, to return the purchase documents so that corrections could be made. B was assured that the terms of the documents would not change. B and E claimed that they never signed any other documents in connection with the sale of the plow truck. Both parties, however, submitted into evidence an instalment contract dated January 26, 2015, which identified the plow truck as the purchased vehicle and listed an increased sales price, a higher loan interest rate, and a longer loan period than that which the plaintiffs alleged had been quoted by D and incorporated into the original contract. The plaintiffs claimed that the defendant forged their signatures on the January 26, 2015 contract documents. They also alleged that the window sticker on the plow truck, known as a Monroney sticker, did not reflect the vehicle's true price. D died sometime after the purchase of the plow truck and was never deposed in this action. G, the owner of the defendant, was called to testify at the trial by the plaintiffs. She stated that, although she did not have firsthand knowledge of the events surrounding the transaction, she had discussed it with D and there was no indication that there had been a deal or contract that reflected the terms the plaintiffs claimed were set forth in the January 21, 2015 contract. She stated that two contracts were signed in connec- tion with the sale of the plow truck, the first on January 21, 2015, and the second on January 26, 2015; however, she claimed that both contracts reflected the same cash price of the truck and the same amount financed. She stated that the January 26, 2015 contract was signed because the defendant was able to secure more favorable approval terms with a second lender, A Co., and that D had asked the plaintiffs to return to the defendant to rescind the January 21, 2015 contract so they could take advantage of those terms. The trial court rendered judgment in favor of the defendant, finding that the plaintiffs failed to sustain their 224 Conn. App. 668 APRIL, 2024 3 Burr v. Grossman Chevrolet-Nissan, Inc. burden of proof regarding their claims of breach of contract, fraud, and theft and that they failed to establish that the defendant engaged in unfair or deceptive acts or practices, and the plaintiffs appealed to this court. Held: 1. The plaintiffs' claim that the trial court misinterpreted their legal claims was unavailing: to the extent the plaintiffs claimed that the trial court failed to make certain factual findings or that it overlooked claims made by the plaintiffs, this court did not agree with such claims, and the plaintiffs failed to file a motion to reargue, a motion for clarification, or a motion for articulation seeking to have the trial court address the alleged deficiencies; moreover, in its memorandum of decision, the trial court explicitly addressed each of the counts of the plaintiffs' complaint, and each of the claims B asserted at trial when the court asked him to summarize their claims, before holding that the plaintiffs had not met their burden of proof as to each count. 2. The plaintiffs' arguments challenging the trial court's credibility determina- tions were not convincing: contrary to the plaintiffs' contention, there was no indication that the trial court did not base its credibility determi- nations on the conduct, demeanor and attitude of the witnesses; more- over, after finding G's testimony credible, the trial court stated that her testimony was supported by documentary evidence and properly explained its determination by citing to various portions of her testimony and the other evidence admitted at trial, and it was not the role of this court to second-guess the trial court's credibility determinations. 3. The plaintiffs' claim that the trial court made findings contrary to the evidence that undermined appellate confidence in the trial court's fact- finding process and required a new trial failed: a. This court was not left with a definite and firm conviction that the trial court had erred in finding that there was no evidence to support the plaintiffs' claims and that the plaintiffs had signed the documents related to the sale of the plow truck: the trial court's finding that it ''defie[d] common sense'' that the defendant would allow the plaintiffs to drive the truck off the defendant's property without a deal in place was not clearly erroneous because the court explicitly credited G's testimony, which supported a finding that the defendant did not engage in a yo-yo scam and that the plaintiffs executed a contract for the purchase of a plow truck before leaving the defendant's premises on January 21, 2015; moreover, in asserting that the trial court erred in finding that the evi- dence did not support their claims because they had been forced to return to the defendant the only copy of the alleged original contract, the plaintiffs misapprehended the burdens of proof related to their com- plaint, implying that the defendant had the burden of proving that the plaintiffs had signed the documents in evidence when, in fact, the burden was on the plaintiffs to prove that the signatures were not genuine; furthermore, the plaintiffs did not submit any credible evidence that their signatures on the documents in evidence had been forged, that any 4 APRIL, 2024 224 Conn. App. 668 Burr v. Grossman Chevrolet-Nissan, Inc. of the documents in evidence had been improperly fabricated or changed, that there was ever a January 21, 2015 contract with A Co., or that any of the defendant's behavior amounted to a CUTPA violation, and they offered only the testimony of B and E in support of their complaint, which the trial court found not to be credible. b. This court declined to review the plaintiffs' remaining challenges to the trial court's findings: in making their claims that it was clearly errone- ous for the trial court to find that it was not logical or reasonable that E would make payments to A Co. with respect to a January 26, 2015 contract that he had never signed and that the trial court could not reconcile the claim that someone else put E's name, as a member of M Co., on the January 26, 2015 documents with the fact that M Co. bought the plow truck, the plaintiffs were questioning the trial court's interpreta- tion of their claims at trial, which they should have addressed by filing a motion to reargue, a motion for clarification, or a motion articulation; moreover, the trial court's finding that the plaintiffs ratified the January 26, 2015 contract was unnecessary to its holding because the court had already found that M Co. agreed to the contract, and, as such, the plaintiffs could not have been aggrieved by any alleged error as to the court's finding; furthermore, the plaintiffs failed to preserve for appellate review their claim that the trial court erred in finding that the defendant's failure to supplement the Monroney sticker on the plow truck to reflect that the truck had been equipped with a plow was insignificant because, in the trial court, they did not cite to any law or make any argument to explain the significance of affixing an addendum to the Monroney sticker. Argued January 16—officially released April 16, 2024

Pursuant to statute (§ 16-244z (a) (1) (C)), the state Department of Energy and Environmental Protection (department) is required ''to develop pro- gram requirements and tariff proposals for shared clean energy facilities'' subject to the approval of the state Public Utilities Regulatory Agency (PURA). Pursuant further to statute (§ 4-176 (a)), any person may petition an agency for a declaratory ruling as to the applicability to specified circumstances of a provision of the General Statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency. The plaintiff, a renewable energy developer, brought an action for a declara- tory judgment pursuant to statute (§ 4-175), seeking to have the Superior Court issue a ruling as to whether a bid submitted by the defendant F Co. in response to a 2020 request for proposals for shared clean energy facilities satisfied a site control program requirement developed by the defendant department pursuant to § 16-244z (a) (1) (C). I Co., an electric company, had issued the request for proposals seeking bids for shared clean energy facility projects in its service territory, and the plaintiff and F Co. submitted bids to I Co. Bidders were required by the department's program requirements to show that they had control of the generation site or an unconditional right to acquire control or an unconditional option agreement to purchase or lease the site. F Co.'s bid, which contained an option to lease agreement, was selected by I Co. and was ultimately approved by PURA. The plaintiff petitioned the Commissioner of Energy and Environmental Protection to issue a declaratory ruling stating that the department erred in concluding that F Co.'s bid satisfied the site control program requirement and that the department's failure to remove the bid from the rankings was arbitrary and capricious. The commissioner declined to issue the ruling, stating that the plaintiff failed to identify any statute, regulation or final decision of the department to serve as a basis for the declaratory ruling and that the department lacked the authority to issue such a ruling on the basis of the specified circumstances laid out in the petition. The plaintiff thereafter initiated the underlying declaratory judgment action pursuant to the Uniform Administrative Procedure Act (UAPA) (§ 4-166 et seq.). The department filed a motion to dismiss, contending that no statute, final decision, or regulation interfered with the plaintiff's legal rights. The trial court granted the department's motion, concluding that the department's 0 Conn. App. 688 ,0 3 Jefferson Solar, LLC v. Dept. of Energy & Environmental Protection review of F Co.'s bid was not a final decision, that the program require- ments pursuant to § 16-244z were neither General Statutes nor regula- tions, and that it could not consider the program requirements pursuant to statute (§ 16-35), which barred appeals from PURA energy procure- ment processes. On the plaintiff's appeal to this court, held that the trial court properly dismissed the plaintiff's action seeking a declaratory judgment under § 4-175, as the plaintiff's requested ruling did not ask the court to determine whether a regulation was valid or to determine the application to specified circumstances of a provision of a regulation, a statute, or a final decision: the legislature did not intend for the department's program requirements pursuant to § 16-244z (a) (1) (C) to be regulations subject to the rule-making process under the UAPA, as the language of that statute did not direct the department to establish regulations as the legislature expressly has done in other sections of the same chapter; moreover, the plaintiff did not have a right to judicial review, as the legislature directed the department to develop the program requirements under § 16-244z for PURA's approval, which implicated § 16-35, and that statute expressly provided that such procedures would be uncontested, and to conclude that the program requirements consti- tuted regulations subject to a declaratory judgment under § 4-175 would render meaningless the express language of both §§ 16-35 (c) and 16- 244z (a) (1) (C) exempting the procurement process from judicial review. Argued October 19, 2023—officially released April 16, 2024

The plaintiff, a renewable energy developer, brought a third action seeking to invalidate the winning bid by a competing energy developer, the defendant F Co. and its subsidiary, for a long-term clean energy contract with a utility company, the defendant I Co. The plaintiff and F Co. submitted bids in response to a request by I Co. for proposals to construct a shared clean energy facility that would sell energy to the public. Bidders were required to show that they had either control of the generation site, an unconditional right to acquire control or an unconditional option agreement to purchase or lease the site. F Co.'s bid, which contained an option to lease agreement, was selected by I Co. and ultimately approved by the Public Utilities Regulatory Authority. In a prior action the plaintiff brought against F Co., Jefferson Solar, LLC v. FuelCell Energy, Inc. (213 Conn. App. 288) (prior action), the trial court rendered judgment dismissing the action, which this court affirmed on appeal. The trial court determined that the plaintiff's claims were moot and that it lacked standing to seek a declaratory ruling as to the viability of the option agreement. The court further determined that the plaintiff lacked standing as to its claims for tortious interference with prospective con- tractual relations and unfair trade practices. In the present action, the plaintiff claimed that F Co.'s bid did not meet the site control requirement and sought declaratory and injunctive relief to void F Co.'s bid and the contract it was awarded as well as damages based on various legal theories, including unfair trade practices. The defendants filed a motion to dismiss, contending that the plaintiff lacked standing to pursue its claims. The trial court granted the motion, concluding that the plaintiff lacked standing to pursue its claims against F Co. for declaratory and injunctive relief because the plaintiff was a disappointed bidder for a public contract that failed to demonstrate fraud, corruption or favoritism that undermined the integrity of the bidding process. The court further determined that the plaintiff lacked standing because the damages it sought, lost profits from the contract that was awarded to F Co., were indirect and too remote from the defendants' allegedly wrongful conduct in submitting and accepting F Co.'s bid. On the plaintiff's appeal to this court, held: 1. This court determined, consistent with its reasoning in the prior action, that the plaintiff lacked standing to assert its various causes of action for monetary damages because the injuries it alleged were indirect and too remote from F Co.'s alleged wrongdoing: the plaintiff's claimed 0 Conn. App. 710 ,0 3 Jefferson Solar, LLC v. FuelCell Energy, Inc. injuries and the defendants' allegedly wrongful conduct were the same in both actions, as the plaintiff's appellate counsel stated during oral argument before this court that there was no meaningful difference between the unfair trade practices claims in both actions, and the plain- tiff's other counts that sought damages were based on the same allega- tion in the prior action that F Co.'s bid did not comply with the site control requirement because the option to lease was invalid; moreover, contrary to the plaintiff's assertion that the trial court in the prior action based its decision on a different complaint with different allegations and lacked the benefit of F Co.'s concession in the present action that its bid certification was no good, the trial court's findings and ultimate conclusion in the present action regarding the remoteness of the plain- tiff's claimed injuries were consistent with this court's reasoning in the prior action, which applied with equal force in the present case; furthermore, the record supported the trial court's finding that the plain- tiff's claimed injuries were too speculative because there were too many links in the chain of causation for F Co.'s conduct to be the direct cause of the plaintiff's injuries and the Public Utilities Regulatory Authority retained discretion in awarding contracts. 2. The trial court properly concluded that the plaintiff lacked standing to assert its claims for declaratory and injunctive relief because it was a disappointed bidder on a public contract that failed to demonstrate fraud, corruption or favoritism that undermined the bidding process: the plaintiff's claim that the contract was not a public contract because the state was not a counterparty was unavailing, as the contract was awarded pursuant to competitive bidding in a public procurement pro- cess that was developed by and subject to the oversight of two state agencies; moreover, the plaintiff's reliance on the program requirements to challenge the award was no different from a disappointed bidder's reliance on state or municipal bidding statutes when challenging the award of a government contract, the program requirements, like compet- itive bidding laws, having been established for the benefit of the public, not bidders, and the trial court's application of standing rules regarding disappointed bidders on public contracts represented a proper balance between fulfilling the purposes of competitive bidding rules and pre- venting frequent litigation that might result in extensive delays in the commencement and completion of government projects to the detriment of the public; furthermore, even if, as the plaintiff contended, the contract were a public contract and the trial court improperly failed to find that F Co. knew its bid certification was false and that I Co. undermined the integrity of the bidding process by ignoring the program requirements, nothing in the record showed that F Co.'s bid did not conform to the site control requirement or that I Co. applied that requirement differently to other bidders, as I Co., which was permitted to select bids with option leases, applied the program requirements in a consistent, nondiscrimina- tory fashion. Argued October 19, 2023—officially released April 16, 2024 4 ,0 0 Conn. App. 710 Jefferson Solar, LLC v. FuelCell Energy, Inc.

The plaintiffs sought to recover damages from the defendant insurance companies, G Co., S Co., L Co., and M Co., in connection with the denial of the plaintiffs' claim under a homeowners insurance policy. The plaintiffs sought to recover damages for breach of contract, breach of the implied covenant of good faith and fair dealing, violation of the Connecticut Unfair Trade Practices Act (§ 42-110a et seq.) and the Connecticut Unfair Insurance Practices Act (§ 38a-815 et seq.), and viola- tion of the Connecticut Unauthorized Insurers Act (CUIA) (§ 38a-271 et seq.). The defendants filed a motion for summary judgment as to all counts of the complaint, arguing, inter alia, that the insurance policy did not provide coverage for the plaintiffs' claim and that the extracon- tractual claims were unfounded. The trial court granted the defendants' motion, and the plaintiffs appealed to this court. Held: 1. The trial court properly rendered summary judgment as to the plaintiffs' breach of contract claim: although the plaintiffs asserted that the policy issued by G Co. and appended to the defendants' motion for summary judgment was not the policy that was the subject of their contract claim, the trial court properly determined that there existed no genuine issue of material fact that the plaintiffs' insurance policy had been issued by G Co. and that G Co. had denied the plaintiffs' insurance claim, as the materials appended to the defendants' motion for summary judgment included a copy of the policy that clearly states that it was issued by G Co., an affidavit of a claims team manager that stated that the policy was issued by G Co. to insure the plaintiffs' property and that G Co. was licensed to issue insurance policies in Connecticut, a policy renewal letter that identified G Co. as the issuer of the policy, and a letter stating that the claim submitted to G Co. for damages to the plaintiffs' property was denied; moreover, the plaintiffs did not submit evidence that created a genuine issue of material fact that the authenticated policy that was appended to the defendants' motion was not the policy at issue in the complaint, as neither their argument that the policy was issued by an entity named Safeco Insurance nor their statements in their affidavits that they did not interact with G Co. created a genuine issue of material fact regarding whether G Co. issued the policy, and both the plaintiffs' argument that the affidavit submitted by the defendants contained false statements regarding the insurer of the policy and that they did not receive a copy of the policy were unmeritorious because the trial court did not find any affidavit submitted by the defendants to be false and 0 Conn. App. 838 ,0 3 Travinski v. General Ins. Co. of America the plaintiffs did not append to their opposition any evidence that they had asked for a copy of the policy and had been denied; furthermore, the plaintiffs failed to provide any legal authority for the proposition that any affiliation or involvement the other defendants had with G Co. as the underwriter of the policy could form a basis for liability under the terms of the policy. 2. The trial court properly rendered judgment in favor of S Co., L Co., and M Co. with respect to plaintiffs' CUIA claim: despite the plaintiffs' assertion that S Co., L Co., and M Co. had conducted an unlicensed insurance business in Connecticut in violation of CUIA under the name of Safeco Insurance, the trial court properly determined that no genuine issue of material fact existed that G Co., which was a licensed insurer in Connecticut, had issued the policy to the plaintiffs and that neither S Co., L Co. nor M Co. had issued the policy. 3. The plaintiffs' claim that the trial court improperly permitted S Co., L Co., and M Co. to file a motion for summary judgment without posting a bond pursuant to the applicable statute (§ 38a-27) was without merit: because there was no genuine issue of material fact that the plaintiffs' policy had not been issued by S Co., L Co., or M Co., there was no evidence that these entities insured the plaintiffs' property; accordingly, S Co., L Co., and M Co. could not have acted as the unauthorized insurers at issue in § 38a-27 and were not required to post a bond. Argued January 8—officially released April 16, 2024