Volume 225 — Connecticut Appellate Reports

Pursuant to the rule of practice (§ 61-11 (a)), an automatic appellate stay applies to ''proceedings to enforce or carry out the judgment.'' The plaintiffs, three individuals, including R and G, and three limited liability companies, including E Co., commenced this civil action to recover damages from the defendants for, inter alia, breach of fiduciary duty. The plaintiffs' complaint alleged that the defendant B had engaged in certain ultra vires actions that constituted self-dealing, and, therefore, breached his fiduciary duties in managing the LLCs. Prior to the com- mencement of this action, the parties' dispute was submitted to a binding rabbinical arbitration proceeding in which B sought to buy out the interests of R and G in E Co. The arbitrators' decision, which ordered R and G to sell their interests in E Co. to B, was issued approximately one month after this action had been commenced. B, in the same action, filed an application to confirm the arbitration award pursuant to statute (§ 52-417 et seq.). B and the other defendants thereafter filed motions to dismiss the action. The parties agreed that the trial court should resolve the motions to dismiss prior to the hearing on the application to confirm. The court granted the motions to dismiss for lack of subject matter jurisdiction and rendered judgment thereon, from which the plaintiffs appealed to this court. Subsequently, B attempted to reclaim his application to confirm the arbitration award. The clerk issued an order indicating that no hearing would be scheduled, as the case was ''stayed during the pendency of appeal.'' B and various other defendants filed a motion for review, asking this court for an order clarifying whether Practice Book § 61-11 (a) automatically stayed proceedings in the Supe- rior Court on the pending application to confirm. Held that the motion for review was granted and the relief requested was granted in accor- dance with this court's prior order: contrary to the plaintiffs' claim, the application to confirm the arbitration award, a special statutory proceeding, survived the dismissal of the plaintiffs' complaint, as there was no dispute that B could have secured affirmative relief had he filed the application to confirm in a separate action, and, thus, assuming the conditions of § 52-417 et seq. have been met, the application to confirm can proceed to judgment separately from the judgment on the complaint; moreover, the present appeal from the judgment dismissing the com- plaint did not automatically stay proceedings before the court on the application to confirm the arbitration award because proceedings on that application will not ''enforce or carry out the judgment'' dismissing the complaint pursuant to Practice Book § 61-11 (a), the court having dismissed the entirety of the complaint, which sought damages from the defendants under various theories of liability, for lack of subject matter jurisdiction, and, should that judgment ultimately be reversed by this court, the action would be restored to the pleading stage; further- more, the court's resolution of B's application to confirm the arbitration award will result in a separate judgment with its own appeal period, and, although the present appeal from the judgment of dismissal resulted in an automatic stay as to that judgment, this appeal did not have any effect on the eventual judgment on the application to confirm, and it did not deprive the court of authority to act on the application to confirm. Considered February 14—officially released April 30, 2024

The defendant appealed to this court from the judgment of the trial court for the plaintiff on her claim for negligent infliction of emotional distress. Between 2012 and 2015, the plaintiff periodically operated her business that transported special needs children to and from school from her home. Between 2012 and 2015, the defendant, who resided in a nearby home, became concerned that the plaintiff was operating a commercial transportation business from her home after he observed an increase in the number of cars and the amount of traffic in the neighborhood that was associated with the plaintiff's business. In 2015, the defendant complained to his town's zoning department and discovered that the plaintiff did not have a permit to operate her business from her home. After meeting with one or more zoning department officials, the defen- dant began to document his complaints with photos, digital recordings, and a detailed written timeline of the comings and goings of the plaintiff, her family, and others based upon his personal surveillance of the plain- tiff's property. The defendant continuously recorded the plaintiff's resi- dence and took photos of the plaintiff's property from his vehicle using a zoom lens. Although the defendant stopped taking photos of the plain- tiff's property in approximately January or February, 2016, he continued to conduct video surveillance of the plaintiff's home until the time of trial and would regularly review the digital recordings. The defendant submitted his documentation, including his digital recordings, photos, and a surveillance report of what he believed to be the plaintiff's alleged zoning violation, to the town's zoning department. In November, 2015, a zoning enforcement officer issued a cease and desist order to the plaintiff, claiming that the operation of her business violated the town's zoning regulations. In response, the plaintiff contacted the local police department and complained to the defendant's supervisors at his place of employment about his surveillance of her property. The plaintiff also The record reflects that, after the trial court rendered its decision in the present case, the plaintiff, C. W., sought a civil protective order against the defendant, Keith J. Warzecha. 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. occasionally walked by the defendant's home and raised her middle finger toward his cameras, which she knew were recording her. The plaintiff subsequently commenced the present action, alleging that, over a two year period between October, 2015, and November, 2017, the defendant invaded her privacy by visually surveilling, photographing, and video recording her residence; following her in his car; photo- graphing her minor son at her home and while he was at a neighbor's house; using a zoom lens to photograph through the plaintiff's front door as a visitor entered; spying on her from neighboring properties; peering into her home as she watched television; and driving slowly past her home. In one count of her complaint, the plaintiff alleged negligent infliction of emotional distress and that the defendant knew or should have known that his conduct was likely to cause her to suffer emotional distress so severe that it could cause physical illness. At trial, the plaintiff testified about each of the allegations in her complaint and characterized the impact of the defendant's conduct on her life as ''devastating.'' At the close of the plaintiff's case-in-chief, the defendant's counsel stated that he had an oral motion for a directed verdict. The court reserved judgment on the motion and, at the conclusion of evidence, the court ordered the parties to submit posttrial briefs. In the defendant's posttrial brief, he argued, for the first time, that the court should grant the defendant's ''motion for dismissal'' pursuant to the rule of practice (§ 15-8). Thereafter, the trial court issued a memorandum of decision, in which it found for the plaintiff on her claim for negligent infliction of emotional distress, stating that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, that her distress was foreseeable, that the defendant was, in fact, aware that his conduct angered, annoyed, and distressed the plaintiff, that the plaintiff had established that the distress she experienced was severe enough that it might result in illness or bodily harm, that such distress was caused by the defendant, and that the defendant's conduct created such a level of fear and anxiety that the plaintiff refused to open her windows or curtains or let her children play outside alone, that she lost her sense of privacy, and that she became more socially isolated because no one wanted to visit her at her home. The court awarded the plaintiff $10,000 in compensatory damages but did not address the defendant's motion for dismissal in its memorandum of decision. Held: 1. This court declined to review the defendant's claim that the trial court abused its discretion by asking him questions during the trial, sua sponte, that went beyond the scope of what was permissible: at trial, the defen- dant's counsel did not object contemporaneously to the court's ques- tioning of the defendant, nor did the defendant raise any claim of error related to the court's questions in his posttrial brief, and, therefore, his claim was unpreserved; moreover, even if the defendant had preserved his claim, he did not provide any applicable legal authority or meaningful analysis in his appellate brief to support his claim of error, and, therefore, this court would still decline to review such claim because it was inade- quately briefed. 2. The defendant's claim that the evidence presented at trial did not support a finding of negligent infliction of emotional distress was unavailing, this court having found, on the basis of its careful review of the record and viewed in the manner most favorable to sustaining the judgment, that there was sufficient evidence in the record to support the trial court's judgment for the plaintiff with respect to each of the essential elements for a cause of action sounding in negligent infliction of emo- tional distress: a. The defendant could not prevail on his arguments that no reasonable fact finder could find that his documentation of activity open to public view created an unreasonable risk of causing the plaintiff severe emo- tional distress and that, because the plaintiff introduced no evidence that she knew of the full extent of the defendant's documentation prior to trial, that the documentation in the emails from the defendant to the town could not support this element of her claim: this court's review of the trial court's memorandum of decision reflected that the trial court did not refer to the emails from the defendant to the town in concluding that he had created an unreasonable risk of causing the plaintiff emo- tional distress but, rather, based its finding on the defendant's conduct as testified to by the plaintiff, which plainly encompassed conduct of which the plaintiff was aware prior to the time of trial; moreover, although the plaintiff, prior to the time of the trial, may not have been aware of the full extent of the defendant's extremely detailed documentation of her daily activities, her testimony supported a finding that the distress she experienced arose from the defendant's surveillance activities that were well-known to her over the course of the two year period, and, in addition to the plaintiff's testimony concerning her emotional reaction to these activities, the trial court readily could have inferred that such distress was reasonable given the pervasive nature and extent of the defendant's surveillance activities. b. The defendant's argument that the plaintiff introduced no evidence that he knew she was distressed by his documentation of her activity was unavailing: the plaintiff was not required to prove that the defendant had actual knowledge of her distress, only that he should have realized that his conduct involved an unreasonable risk of causing the plaintiff emotional distress, to satisfy this element of her claim, and, on the basis of the evidence of the surveillance activities of which the plaintiff was aware prior to the trial, the trial court reasonably could have inferred that the nature and extent of those activities were such that the defendant should have realized that his conduct involved an unreasonable risk of causing the plaintiff emotional distress; moreover, even though the plaintiff did not bear the burden of proving that the defendant actually was aware that his activities were causing her emotional distress, the defendant's claim was further undermined by the evidence in the record that supported a finding that, prior to the time of trial, he was in fact aware that the plaintiff had experienced emotional distress because of his surveillance activities, given evidence that the plaintiff raised her middle finger in the direction of the defendant's security cameras on multiple occasions and the defendant's testimony that the plaintiff com- plained to the police and his employer more than fifteen times within a nine month period about his surveillance of the plaintiff's property, from which the court reasonably could infer that the plaintiff was distressed by the presence of the cameras and which further supported a finding that the defendant was made aware or should have realized that his repeated conduct was actually causing the plaintiff to experience emo- tional distress but that he continued the surveillance nonetheless. c. The defendant could not prevail on his argument that the evidence presented at trial did not support a finding that the plaintiff's emotional distress was severe enough to result in illness or bodily harm to her; the plaintiff was not required to show that her emotional distress resulted in bodily injury, but only that such distress might result in illness or bodily harm, and the plaintiff presented sufficient evidence of her dis- tress, including her testimony that she was devastated by the defendant's conduct and that she was afraid to open her windows or her curtains or to let her children play outside alone. d. The defendant's argument that the evidence at trial did not support a finding that his conduct caused the plaintiff's emotional distress was unavailing, this court having found that, on the basis of the plaintiff's testimony as to the cause of her distress, that it was reasonable for the trial court to conclude that the plaintiff had satisfied the element of causation in her negligent infliction of emotional distress claim. 3. The defendant could not prevail on his claim that this court should rule on his motion to dismiss that was not explicitly addressed by the trial court: because a motion to dismiss is a motion entrusted to the trial court, not a reviewing court, and the defendant did not cite any law to the contrary, this court was unable to grant the defendant any relief with respect to his claim; moreover, even if this court reasonably could construe the defendant's claim as an attempt to challenge the trial court's failure to rule on the motion to dismiss, in light of the trial court's finding for the plaintiff with respect to her claim of negligent infliction of emotional distress, it was reasonable for this court to consider the trial court's decision not to grant the defendant's motion to dismiss to be the functional equivalent of a denial, which was not reviewable on appeal. Argued October 16, 2023—officially released April 30, 2024

The petitioner, who had been convicted, after a jury trial, of the crimes of strangulation in the first degree, sexual assault in the third degree, and assault in the third degree, sought a writ of habeas corpus, claiming that, pursuant to State v. Dickson (322 Conn. 410), his due process rights had been violated and that his trial and appellate counsel had rendered ineffective assistance. On his direct appeal from his underlying convic- tion, the petitioner had claimed, inter alia, that the trial court had improp- erly denied his motion to suppress in-court and out-of-court identifica- tions of him made by a witness to the assault. Dickson, which was decided by our Supreme Court more than four months after the petitioner had filed his direct appeal, held, inter alia, that, in cases in which identity is an issue, in-court identifications that are not preceeded by a successful identification in a nonsuggestive procedure implicate due process princi- ples. The petitioner's appellate counsel did not raise any claim predicated on Dickson in either his principal or reply briefs in the direct appeal. The respondent, the Commissioner of Correction, filed a return to the petition in which he raised a special defense of procedural default because the petitioner had failed to raise the Dickson claim on direct appeal. At the habeas trial in the present case, the habeas court heard testimony from the petitioner, his trial counsel, and a legal expert but not from the petitioner's appellate counsel. The court rendered judgment denying the petition for a writ of habeas corpus, and, on the granting of certification, the petitioner appealed to this court. Held: 1. The petitioner could not prevail on his claim that the habeas court improp- erly determined that he failed to satisfy the cause and prejudice test set forth in Reed v. Ross (468 U.S. 1) to excuse his procedural default for failing to raise the due process claim during his criminal trial; the petitioner was unable to rely on Dickson to demonstrate cause and prejudice to overcome the respondent's special defense of procedural default, as our Supreme Court explicitly stated that Dickson may not be applied retroactively on collateral review. 2. The habeas court properly denied the petitioner's petition for a writ of habeas corpus: because the Dickson decision was released while the petitioner's direct appeal was pending, a Dickson claim was neither unknown nor sufficiently novel to excuse the petitioner's procedural default, and, in the absence of evidence to the contrary, this court presumed that the petitioner's appellate counsel made a tactical decision in deciding to forgo a Dickson claim during the direct appeal; moreover, although the Supreme Court's decision in Dickson contained clear instructions on how to apply the new rule in pending appeals, indicating that the court anticipated the possibility of viable Dickson claims arising in cases that were pending on appeal at the time that Dickson was released, the petitioner failed to challenge the habeas court's adverse ruling on his claim of ineffective assistance of appellate counsel. Argued November 13, 2023—officially released April 30, 2024

The plaintiff bank sought to foreclose a mortgage on certain real property owned by the defendant S, who filed an answer and ten special defenses. Approximately two years later, S filed a request for leave to amend her answer and special defenses to include a five count counterclaim, seek- ing damages for, inter alia, alleged property damage and trespass. In the counterclaim, S claimed that the plaintiff's agents had, inter alia, broken a door to the property, taken certain construction materials from it, and replaced the locks, which S alleged interfered with her ability to rent and repair the property. The plaintiff objected to S's request, arguing that her allegations were unfounded, that the counterclaim was not made on the basis of new information, and that S failed to show good cause to allow the amendment at that stage of the proceedings. The trial court sustained the plaintiff's objection. S filed a second request for leave to amend her answer, which included a counterclaim asserting the same five counts, but added that the plaintiff's agents had more recently trespassed on her property. The trial court again sustained the plaintiff's objection to the request, which contained the same grounds as the first objection. The plaintiff thereafter withdrew the foreclosure action. S appealed to this court, claiming that the trial court abused its discretion in sustaining the plaintiff's objections because her proposed amendments were timely and would not have prejudiced the plaintiff. Held: 1. The plaintiff could not prevail on its claim that this appeal should be dismissed as moot because, having withdrawn its action before any counterclaim had been filed against it, no practical relief could be afforded to S on the basis of any such unfiled claim: this court concluded that the appeal was not moot because it could provide practical relief to S if it decided her claim on the merits, despite the plaintiff having withdrawn its foreclosure action, namely, that, if this court were to determine that S should have been permitted to file her proposed coun- terclaim, it could remand this case to the trial court with direction to restore the case to the docket and conduct further proceedings with respect to S's proposed counterclaim; moreover, although S's proposed counterclaims were not yet filed when the action was withdrawn because the court had effectively denied her requests for leave to amend her answer to assert the proposed counterclaims when it sustained the plaintiff's objections, the plaintiff's withdrawal would not have impaired her right to proceed with the proposed counterclaims had she otherwise been permitted to file them. 2. S could not prevail on her claim that the trial court abused its discretion in sustaining the plaintiff's objections to her requests for leave to amend her answer to assert a counterclaim: the trial court record provided a sound basis for the court's conclusion that permitting S's amendments would have caused an unreasonable delay, as the foreclosure action had already been pending for approximately two years, and, during that time, S had filed several unmeritorious motions in addition to two interlocutory appeals that had been dismissed, and the court could have considered S's request to amend her answer to be an additional dilatory tactic; moreover, S's proposed counterclaims were not based on informa- tion that she recently had obtained or learned after filing her answer, thereby potentially making it unreasonable for her to wait for almost two years after she was served before seeking leave of court to assert the counterclaims, and, although S alleged that agents of the plaintiff had recently trespassed onto the property, she also alleged that there were at least fifty forceable entries onto the property during the term of her mortgage, and S did not claim that she only recently learned of the alleged misconduct underlying her proposed counterclaims at the time she filed her request for leave to amend her answer, and, thus, the court could have considered that S's requests were not made seasonably. Argued February 1—officially released May 14, 2024

The petitioner, who had been convicted, following a jury trial, of the crimes of murder and criminal possession of a pistol or revolver, filed a fourth petition for a writ of habeas corpus. The habeas court, upon the request of the respondent, the Commissioner of Correction, issued an order to show cause why the petition should not be dismissed as untimely given that it had been filed beyond the time limit for successive petitions set forth in the applicable statute (§ 52-470 (d)). The court held an eviden- tiary hearing, during which the petitioner testified that he had filed a timely third habeas petition but withdrew it prior to trial on the advice of his prior habeas counsel. The petitioner further testified that counsel did not discuss § 52-470 (d) and that, if the petitioner had known that withdrawing his third petition and refiling would result in an untimely petition, he would not have done so. The habeas court dismissed the fourth habeas petition as untimely, concluding that the petitioner had failed to demonstrate good cause for the delay in filing the petition. Thereafter, the petitioner, on the granting of certification, appealed to this court, which affirmed the judgment of the habeas court. The peti- tioner, on the granting of certification, appealed to the Supreme Court, which granted the petition for certification, vacated the judgment of this court, and remanded the case to this court for further consideration in light of Rose v. Commissioner of Correction (348 Conn. 333). Held that, after further consideration of the issue raised in this appeal, the proper remedy was to remand the matter to the habeas court for a new hearing and good cause determination under § 52-470 (d) and (e), consistent with the principles set forth in Rose, Rapp v. Commissioner of Correction (224 Conn. App. 336), and Hankerson v. Commissioner of Correction (223 Conn. App. 562). Argued April 8—officially released May 14, 2024

The petitioner, who had been convicted, following a jury trial, of, inter alia, sexual assault in the first degree, sought a writ of habeas corpus. The petitioner had filed two prior state habeas corpus petitions, the second of which was denied in January, 2009, and the habeas court's decision was affirmed on appeal to this court. The Supreme Court denied the petitioner's request for certification to appeal that decision in January, 2011. The petitioner subsequently brought a federal habeas action, and the court denied the federal petition in December, 2014. The petitioner filed the habeas petition underlying this appeal in December, 2016, and the respondent, the Commissioner of Correction, filed a request for an order to show cause pursuant to statute (§ 52-470 (e)), asserting that the petition should be dismissed because it was not timely filed pursuant to § 52-470 (d) (1). At the good cause hearing, the petitioner asserted that his petition was timely under § 52-470 (d) because it was filed within two years of the final judgment on his federal habeas petition or, alternatively, that he had established good cause, under § 52-470 (e), This appeal was argued on November 9, 2020, before a panel of this court consisting of Judges Cradle, Alexander and Harper. On March 19, 2021, this court stayed the appeal pending the final disposition of Kelsey v. Commissioner of Correction, 202 Conn. App. 21, 244 A.3d 171 (2020), aff'd, 343 Conn. 424, 274 A.3d 85 (2022), and Felder v. Commissioner of Correction, 202 Conn. App. 503, 246 A.3d 63 (2021), aff'd, 348 Conn. 396, 306 A.3d 1061 (2024), by our Supreme Court. On February 6, 2024, this court issued the following order: ''As [Kelsey] and [Felder] have been decided by the Supreme Court, the stay that was entered on March 19, 2021, and continued on June 21, 2022, is hereby lifted. The parties are hereby ordered, sua sponte, to submit supplemental memoranda of no more than 2000 words, on or before February 28, 2024, addressing the impact of Kelsey v. Commissioner [of Correction], 343 Conn. 424, 274 A.3d 85 (2022), and Felder v. Commissioner [of Correction], 348 Conn. 396, 306 A.3d 1061 (2024), on this appeal. The supplemental memo- randa should also indicate whether additional oral argument is requested.'' (Footnote omitted.) Both parties filed supplemental briefs in accordance with that order and waived additional oral argument. On April 11, 2024, Chief Judge Bright replaced Judge Alexander on the panel, and he has read the briefs and appendices and listened to a recording of oral argument prior to participating in this decision. to overcome the presumption of unreasonable delay for the filing of his untimely habeas petition because he was not aware of the limitation periods imposed by § 52-470 (d). The habeas court dismissed the petition as untimely under § 52-470 (d), concluding that the petitioner had failed to establish good cause for the delay. Thereafter, the habeas court denied the petitioner's petition for certification to appeal, and the petitioner appealed to this court. Held that the petitioner could not prevail on his claim that the habeas court abused its discretion in denying his petition for certification to appeal as, pursuant to Felder v. Commissioner of Correction (348 Conn. 396), the petitioner's lack of knowledge, standing alone, was insufficient to establish good cause for a delay in filing his untimely petition, and the phrase ''prior petition,'' as used in § 52-470 (d), unambiguously refers solely to state habeas petitions, and, therefore, any contrary interpretation by the petitioner was unreasonable; accord- ingly, this court could not conclude that the resolution of the petitioner's claims involved issues that were debatable among jurists of reason, that a court could resolve in a different manner, or that deserved encourage- ment to proceed further. Argued November 9, 2020—officially released May 21, 2024

Pursuant to statute (§ 52-552e (a)), ''[a] transfer made or obligation incurred by a debtor is fraudulent as to a creditor, if the creditor's claim arose before the transfer was made or the obligation was incurred and if the debtor made the transfer or incurred the obligation: (1) With actual intent to hinder, delay or defraud any creditor of the debtor; or (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor (A) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction, or (B) intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due.'' The defendant J appealed from the judgment of the trial court rendered for the plaintiff on three counts of his complaint that asserted claims of fraudulent transfer against J and her husband, the defendant W, pursuant to the Connecticut Uniform Fraudulent Transfer Act (CUFTA) (§ 52- 552a et seq.). In September, 2004, on the advice of W, the plaintiff transferred funds from his 401 (k) account into an individual retirement account (IRA) comanaged by A Co., W's employer. W subsequently formed T Co., and he left his employment with A Co. in 2007. In 2008, on the advice of W, the plaintiff transferred the balance of his IRA into another entity, and the funds were subsequently transferred to a bank account owned by T Co. so that W, as the sole member of T Co., could fully manage and invest the funds for the plaintiff. As part of this transaction, T Co. issued an unsecured promissory note to the plaintiff in the amount of $185,000. The plaintiff invested additional funds into accounts held and managed by T Co. in 2009 and 2011, bringing the plaintiff's total principal investment to more than $227,000. Thereafter, W mismanaged the plaintiff's investments and was negligent in the han- dling of assets committed to him by the plaintiff by, inter alia, commin- gling the plaintiff's assets with those of other investors, taking no steps to secure the plaintiff's investment, paying numerous personal expenses with T Co.'s assets and transferring T Co.'s assets to his personal accounts without the knowledge of investors. Between 2008 and 2012, T Co. suffered significant losses, failed to provide the plaintiff with periodic reports concerning T Co.'s poor financial condition and failed to provide the plaintiff with any financial records reflecting the plaintiff's losses. On May 1, 2017, the promissory note from T Co. to the plaintiff matured. Although W represented to the plaintiff that his assets were secure, T Co. was unable to satisfy its obligation to the plaintiff because it lacked assets sufficient to satisfy the note. W subsequently dissolved T Co., giving no notice of the dissolution to the plaintiff or to any other creditors. The plaintiff commenced the present action in May, 2018, claiming, inter alia, that W and J fraudulently transferred to themselves various moneys and assets belonging to T Co. in violation of CUFTA, specifically § 52-552e. In July, 2018, the plaintiff applied for a prejudg- ment remedy against, inter alia, J and W, which was granted in January, 2019, as against W. While the litigation was ongoing, the Department of Banking commenced an investigation into W, and, although it was unclear from the record precisely when the department's investigation commenced, as of September, 2018, W had been made aware of the investigation and had retained counsel. Due to this investigation, W closed all his personal bank accounts. Between September, 2018, and July, 2019, W conveyed more than $233,000, representing amounts he had received for professional services he had rendered to various parties, to J through a series of deposits into an account owned solely by her. In July, 2020, the department issued orders that, inter alia, imposed a fine of $900,000 against W and required him to pay restitution to the plaintiff in the amount of $367,000. At trial, J testified that she did not notice in November or December of 2018 that $100,000 had been deposited into her sole personal bank account over a period of two weeks and that she never looked at her bank statements. After the trial, the court, inter alia, rendered judgment against J on three counts of fraudulent transfer, concluding that W fraudulently transferred funds to J between 2018 and 2019 in violation of CUFTA and under the common law. The court found that, at the time of the transfers to J, W was unable to pay fines and restitution orders imposed by the department and had wound up T Co., leaving the plaintiff and others without any means of recovering their investments of principal; that J never provided any consideration for the infusion of funds into her account and used funds from that account to pay various personal and household expenses; that the transfer of funds by W into J's personal account was fraudulent and designed to place his personal assets beyond the reach of creditors and potential creditors, including the plaintiff; and that any claim that J was unaware of the purpose of the fraudulent transfer of funds lacked credibility, that J possessed fraudulent intent and that she willingly and actively participated in W's attempt to shield assets and place those assets beyond the reach of creditors, including the plaintiff. The court also attached J's assets in the amount of the funds fraudulently trans- ferred to her by W. Held: 1. J could not prevail on her claim that the trial court erred in concluding that the transfers from W were made with an actual intent to defraud because its finding that both J and W participated in the transfer with the actual intent to hinder or defraud the plaintiff from collecting on a judgment was clearly erroneous: a. The trial court properly rendered judgment for the plaintiff on his statutory fraudulent transfer claim pursuant to § 52-552e (a) (1) because its finding that the transfers were made with an actual intent to defraud was not clearly erroneous: because § 52-552e (a) (1) does not require a plaintiff to prove that a transferee shared in a transferor's fraudulent intent, the plaintiff was not required to prove that J shared in W's intent in order to prevail under § 52-552e (a) (1); moreover, the evidence pre- sented at trial revealed that the transfers at issue satisfied many of the factors set forth in § 52-552e (b) that courts may consider in determining whether a transfer was made with actual intent to defraud, including that the transfers were made to an insider, that, before the transfers were made, W had been sued or threatened with suit by way of the present action and the investigation by the department, that W was insolvent or became insolvent shortly after the transfers were made or the obligation was incurred, given that W was unable to pay the fine and restitution imposed by the department, and that, at the time of the transfers, he was unable to pay the amount that the plaintiff had invested in T Co., that W retained possession or control of the property transferred after the transfers were made given that J used the transferred funds to pay various personal and household expenses as well as W's personal expenses, that W did not receive reasonably equivalent value in exchange for the transfers to J given that the evidence adduced at trial showed that W received no value whatsoever in exchange for the transfers because he did not receive anything that he could use to satisfy or partially satisfy a creditor's claim, and that the transfers occurred shortly before and shortly after the court granted the prejudgment attachment against W's assets and before the department imposed the fine against W and ordered restitution to be paid to the plaintiff. b. The trial court did not err in concluding that the transfers were actually fraudulent under the common law: the court found that any claim that J was unaware of the purpose of the fraudulent transfer of the funds lacked credibility, that she possessed fraudulent intent and that she willingly and actively participated in W's attempt to shield assets and place those assets beyond the reach of creditors, including the plaintiff, and, as the fact finder, the court was entitled to make this credibility determination as to J, and this court would not disturb those findings on appeal; moreover, the trial court, as the finder of fact, was entitled to infer from all of the circumstances surrounding the transfers that J shared in W's fraudulent intent. 2. J could not prevail on her claim that the trial court improperly determined that the transfers to her were constructively fraudulent under the com- mon law and § 52-552e (a) (2): the court's finding that the transfers to J left W unable to meet his financial obligations was not clearly errone- ous, as the record revealed that W admitted at trial that he was unable to pay the fine or restitution imposed on him by the department or the amount that the plaintiff originally invested in T Co. and, further, that he disclosed information regarding J's personal checking account to the department because of the pending investigation against him but that by the time he had done so there was only a small amount of funds remaining in the account; moreover, there was no support in the record for J's argument that she personally invested $750,000 into the T Co. fund, suggesting that the transfers at issue could have been made as a repayment of her investment into T Co., as W testified at trial that the transfers to J's bank account consisted solely of funds that he received for professional services unrelated to T Co. and that he transferred the funds because of the pending department investigation and, thus, based on W's own testimony, it was clear that the transfers at issue were wholly unrelated to J's alleged investment in T Co.; furthermore, although J argued that love and affection is valid consideration between a husband and wife, none of the cases cited by J in her appellate brief stands for the proposition that love and affection may constitute valid consideration for purposes of defeating a fraudulent transfer claim under the common law or CUFTA, and, on the contrary, various courts have long held that love and affection does not constitute adequate consideration for purposes of defeating a fraudulent conveyance claim, and, accordingly, in the absence of any evidence in the record to support J's assertion that W received adequate consideration or reasonably equivalent value for the transfers, this court could not conclude that the trial court's finding that the transfers were made without consideration and not in exchange for a reasonable equivalent value was clearly erroneous. Argued January 31—officially released May 21, 2024

Convicted, following a bench trial, of criminal damage of a landlord's prop- erty in the first degree, the defendant appealed to this court, claiming that there was insufficient evidence that she intentionally damaged the tangible property of the landlord, R, and that the trial court improperly denied her motion to suppress evidence discovered following a war- rantless entry into her residence and statements she made while in police custody. The defendant had entered into a residential lease agree- ment with R for a single family home. At that time, she was the vice president of a dog rescue company and owned a dog behavioralist company. R was aware of the defendant's businesses and the lease agreement allowed the defendant to keep dogs at the home. One night, the defendant texted R, reporting that the heat to the home was not working and asked R to send someone to repair it. The initial repair person could not fix the heating problem. R asked if she could return with another repair person and the defendant agreed but requested that R not enter the upstairs portion of the home, claiming that the upstairs would be locked and the dogs would be there. When R accompanied another repair person to the home the next day, the doors were unlocked and R went upstairs, observing large amounts of trash, damage to the home, and drug paraphernalia. She called the police, but they did not enter the house that day. She also contacted the defendant, who apolo- gized for the condition of the home and promised to clean it up. R sought permission to enter the house two days later during daylight hours, and the defendant agreed. When R returned to the home, the defendant was not present. R discovered piles of trash everywhere, as well as accumulated feces and urine, and a cage with the skeletal remains of a dog inside. She then left the house and called the police, who arrived promptly to the home. Two police officers and an animal control officer arrived and proceeded to enter the home to ensure no one needed medical attention, because the smell of rotting flesh was emanating from the house. During their time in the home, they found the skeletal remains of five dogs, and, after exiting, they secured the home and notified the detective bureau of the situation. The condition of R's home was so severe that it required a hazmat company to clean the house due to the dogs' remains having rotted in the home. Extensive repairs to the home were required in order for it be habitable again, including, inter alia, the replacement of floors, subfloors, counters, and all appli- ances, due to the pervasive presence of feces and urine. An arrest warrant was subsequently issued for the defendant for animal cruelty, 0 Conn. App. 612 ,0 3 State v. Lueders and she turned herself in, where she was processed for booking by a police detective, D. After being advised of her rights pursuant to Miranda v. Arizona (384 U.S. 436), the defendant made comments to D ques- tioning whether she would go to jail or be permitted to own dogs in the future. The defendant was ultimately charged with ten counts of animal cruelty and a single count of criminal damage of a landlord's property. The defendant was acquitted of the charges of animal cruelty, the trial court having found that the state failed to prove beyond a reasonable doubt all the elements of the crime. The court noted that a veterinary pathologist had testified that there was no way to determine how the dogs had died due to their advanced state of decomposition when brought to the laboratory. A detective testified that his investiga- tion revealed that the remains had been in the home for between two and ten months. As to the count of criminal damage to R's property, the court sentenced the defendant to five years of incarceration, execution suspended after fifteen months, and probation for five years with special conditions, which included that she not work with organizations that involve animals and that she complete an animal cruelty prevention program. Held: 1. The defendant could not prevail on her claim that there was insufficient evidence that she intentionally damaged the home she was renting to sustain her conviction for criminal damage of a landlord's property in violation of statute (§ 53a-117e), which required a finding of specific intent: on the basis of the totality of the evidence the state produced at trial, and the reasonable inferences drawn from that evidence, the trial court reasonably could have found that the defendant specifically intended to damage R's property and that the damage was not the product of accident or neglect but, rather, was done with specific intent, as the damage was pervasive and severe, due, in large part, to conditions the defendant not only allowed to occur, but left to exist and fester for extended periods of time, and that required the services of a hazmat company to remediate, and it was permissible for the court to infer that the defendant intended the natural consequences of these actions; moreover, the defendant's conduct with respect to the damage, first, by attempting to prevent R from seeing it and, then, by acknowledging the damage and expressing shame and remorse about causing it, demon- strated her consciousness of guilt, which was also indicative of her specific intent. 2. The trial court did not err in denying the defendant's motion to suppress certain evidence obtained as the result of the alleged unlawful and illegal entry into her home and statements she made to the police while in custody: a. The trial court did not improperly determine that the warrantless entry into the defendant's residence by the police after R returned to inspect the home was supported by the emergency aid doctrine; although the defendant claimed that there was no evidence of an emergency when 4 ,0 0 Conn. App. 612 State v. Lueders the police entered the home or that whatever emergency had existed had since passed, the court credited the testimony of R and the police officers who entered the home, the police officers having testified that they were concerned that an animal or a person, including the defendant, might have needed immediate assistance inside, and, in light of the circumstances, which included the open door to the home, R's discovery of several dog carcasses, the smell of rotting flesh emanating from the home, uncertainty of the defendant's whereabouts and lack of contact with her, the presence of drug paraphernalia in the home, and evidence of unclaimed packages and a mailbox overflowing with uncollected, unopened mail, it was objectively reasonable for the police officers to believe that an emergency existed when they entered the home. b. This court declined to review the defendant's unpreserved claim that the statements that she made to D while in police custody were not the result of a knowing and intelligent waiver of her Miranda rights and were not voluntary, the record having been inadequate for review of that claim: defense counsel did not argue at the conclusion of the suppression hearing that the defendant failed to knowingly and intelligently waive her Miranda rights, instead, counsel argued that the court should sup- press her statements because the searches that led to the defendant's arrest were illegal, and the defendant raised for the first time on appeal claims that she was highly emotional, confused, and under the influence of intoxicants, having just been released from a rehabilitation facility; moreover, because defense counsel did not make these arguments to the trial court, the court made no findings regarding waiver, but found only that the defendant had been properly advised of her Miranda rights and that the defendant ''gave those statements anyway.'' c. The defendant could not prevail on her claim that the statements she made to D were not voluntary: there was no evidence of any coercive conduct by D, and the trial court properly credited D's testimony, which was the only testimony about the circumstances surrounding the defen- dant's statements, that she asked the defendant only basic demographic questions, and, after the defendant had been advised of her Miranda rights, the defendant initiated conversation of her own accord and made her statements within that context, and, although the defendant appeared to be tired and sometimes crying, D testified that the defendant did not appear to be intoxicated by alcohol or drugs. 3. The defendant could not prevail on her claim that the trial court violated her right to due process by relying on evidence related to the animal cruelty charges in imposing its sentence without explicitly finding that her conduct with respect to the deaths of the dogs had been proven by a preponderance of evidence: although the court did not explicitly state during sentencing that it found that the defendant's conduct, with respect to the deaths of the dogs, had been proven by a preponderance of the evidence, it was implicit from the court's probation orders and its observations that, even though the court had not found the evidence 0 Conn. App. 612 ,0 5 State v. Lueders proved beyond a reasonable doubt that the defendant was guilty of the animal cruelty charges, it did find that the defendant's conduct with respect to the deaths of the dogs had been proven by at least a preponder- ance of the evidence; moreover, the evidence regarding the defendant's conduct underlying the acquitted charges had the required minimal indicium of reliability, as many of the facts and circumstances related to the charges of animal cruelty also bore on the offense of criminal damage to a landlord's property, including that there was overwhelming evidence that the deceased dogs had been in the defendant's care, that they had perished two to ten months prior to being discovered in the home from which she ran a dog rescue, and much of the damage to the home, which the defendant was convicted of causing, resulted from the toxins that emanated from the dog's carcasses when they were left to rot; furthermore, the court expressly considered the defendant's actions after the verdict, which included bragging on social media about how she had been found innocent, which the court referenced during sentenc- ing by emphasizing that the defendant had not been found innocent, but was, instead, found not guilty. Argued November 15, 2023—officially released May 28, 2024

The plaintiff sought to recover damages from the defendant for an alleged breach of contract and for unjust enrichment in connection with the plaintiff's restoration of a property that had been damaged by a fire. L, the property owner, financed his purchase of the property with a mort- gage loan that the defendant serviced. In addition, L obtained a home- owners insurance policy for the property from N Co. After the fire, L filed a claim with N Co. N Co. paid out insurance proceeds on the claim, which, in accordance with the loan, were held by the defendant to pay, on behalf of L, for repair and restoration of the property. L entered into a contract with the plaintiff to make repairs to the property in exchange for payments from the proceeds. Less than one year later, when the plaintiff's repair work was approximately 50 percent completed, L died. Although the defendant previously had made multiple disbursements out of the proceeds to the plaintiff as it made repairs, the defendant ceased paying the plaintiff following L's death. At the request of T, a comortgagor and coexecutor of L's estate, the defendant applied the remaining proceeds to pay down the outstanding mortgage loan balance in connection with the sale of the property. The plaintiff claimed that it was an intended third-party beneficiary of the mortgage, that the defendant violated the terms of the mortgage when it applied the pro- ceeds to the outstanding mortgage loan balance instead of paying the proceeds to the plaintiff for the work it had completed, and that its repair work had benefited the defendant by enhancing the marketability of the property to its detriment. The defendant filed a motion for sum- mary judgment as to both counts of the complaint, arguing that there was no genuine issue of material fact that the defendant was not a party to the proceeds contract and that the plaintiff was not a party to the note or the mortgage, that the express language of the note and the mortgage demonstrated no intent for the plaintiff to be a third-party beneficiary thereof, and that there was no genuine issue of material fact that it was not unjustly enriched by its application of the proceeds to the outstanding mortgage loan balance. The defendant supported its motion with, inter alia, a business record affidavit from S, its assistant vice president, and a supplemental affidavit from K, its counsel. The trial court granted the defendant's motion, and the plaintiff appealed to this court. Held: 1. The plaintiff could not prevail on its claim that the trial court erred in granting the defendant's motion for summary judgment because the supporting affidavits did not satisfy the requirements of the applicable rule of practice (§ 17-46) and the common law: a. The trial court did not err in considering S's affidavit in granting the defendant's motion for summary judgment; because S attested that the defendant was the mortgage loan servicer, that she, in her role as an assistant vice president, was authorized to make the affidavit, that she had personal knowledge of the facts and matters stated therein, that she was familiar with the types of records maintained by the defendant, including the loan at issue, and that she had access to and personally reviewed the defendant's business records kept in the ordinary course of its regularly conducted business, including records pertaining to the property, S was a records custodian authorized to authenticate the defen- dant's business records without her actual involvement in the transaction, and her affidavit sufficiently demonstrated her competency to aver to the information therein. b. This court declined to review the plaintiff's unpreserved claim that K's affidavit did not constitute competent evidence pursuant to Practice Book § 17-46, as the plaintiff raised the claim for the first time in a motion to reargue and, on appeal, it did not challenge the trial court's denial of that motion. 2. The trial court properly rendered summary judgment for the defendant because there were no genuine issues of material fact as to either count of the plaintiff's complaint: a. The trial court properly determined that the plaintiff was not an intended third-party beneficiary of the mortgage: the clear and unambigu- ous language of the note and the mortgage evinced no intent of the contracting parties to confer third-party beneficiary status on the plain- tiff, as there was no direct or indirect reference to the plaintiff in either the note or the mortgage; moreover, the language of the mortgage did not require that the defendant make direct payments of the insurance proceeds to a third party and further provided that insurance proceeds would cover repairs made to the property if the repair was feasible and the defendant's security was not lessened or unless the defendant and L otherwise agreed in writing, and the purpose of that language was to protect the defendant's interests and not to serve as a guarantee on the payment of repair and restoration services; furthermore, this court was unpersuaded by the plaintiff's argument that extrinsic evidence suffi- ciently raised a genuine issue of material fact regarding its third-party beneficiary status, as, having concluded that the clear and unambiguous language of the mortgage reflected no intent to make the plaintiff a third- party beneficiary, the use of parol evidence to vary or contradict such language was forbidden. b. The trial court correctly determined that there was no genuine issue of material fact as to the plaintiff's unjust enrichment claim; the defendant presented evidence that it was not benefited for the purposes of the plaintiff's unjust enrichment claim when it applied the proceeds toward the outstanding mortgage balance and the plaintiff failed to produce evidence that it had a superior equitable entitlement to the proceeds. Argued September 7, 2023—officially released May 28, 2024

The plaintiffs commenced this action against the defendants, D Co. and certain officers of D Co., to recover damages for the wrongful death of twenty-nine adults who died as a result of a four-story building fire in Davao City, Philippines. The fire occurred at a call center where the decedents worked as employees of S Co. The officers of D Co. were also directors and shareholders of S Co. On or before the date of the incident, D Co., whose principal place of business was in Shelton, had secured contracts in the United States to perform work and to provide reports and data to its United States based clients on the basis of that work. D Co. outsourced certain of the work to S Co., specifically, to provide telephone, survey, polling, and data collection services from call centers in the Philippines. The defendants filed a motion to dismiss the plaintiffs' complaint on the ground of forum non conveniens, arguing that the Philippines was an adequate alternative forum to litigate the matter because the defendants were amenable to service of process, had stipulated to accept service of process and had agreed to litigate the dispute in the Philippines. The trial court granted the defendants' motion to dismiss, finding that the Philippines was an adequate alterna- tive forum, and the plaintiffs appealed to this court. Held: 1. The plaintiffs could not prevail on their claim that the trial court applied the wrong test, namely, ''that consent may be used as a substitute for jurisdiction,'' to determine whether the Philippines was an adequate alternative forum: the plaintiffs misinterpreted the court's decision, as a proper interpretation of the court's memorandum of decision was that the court used the test enunciated in Schertenleib v. Traum (589 F.2d 1156) to support its determination that the Philippines was a suitable forum notwithstanding competing expert testimony regarding whether the action was barred in the Philippines by the statute of limitations; moreover, the court correctly relied on Picketts v. International Playtex, Inc. (215 Conn. 490) to determine that the Philippines was an adequate alternative forum because the defendants were amenable to service of process in the Philippines and the Philippines was a suitable forum considering the competing expert testimony regarding whether the action was barred in the Philippines by the statute of limitations; further- more, the court left open the possibility that the case could be restored to the docket if a Philippine court dismissed the case for lack of jurisdiction. 225 Conn. App. 725 JUNE, 2024 3 DeCicco v. Dynata, LLC 2. The plaintiffs could not prevail on their claim that the trial court improperly dismissed the case on the ground of forum non conveniens: the court did not abuse its discretion in applying Picketts in finding that, because the defendants agreed to accept service and litigate in the Philippines, they were amenable to service there; moreover, the court necessarily recognized the bipolarity of the parties' competing expert affidavits regarding whether the statute of limitations barred the plaintiffs from bringing the action in the Philippines in determining that the Philippines was an adequate alternative forum; furthermore, it was evident that the court had a justifiable belief that the plaintiffs could bring the action in the Philippines, such that the court's decision to grant the motion to dismiss on a conditional basis did not constitute an abuse of its discretion. Argued March 5—officially released June 4, 2024

The defendant, who had been convicted of fourteen counts each of false statement in absentee balloting and forgery in the second degree, appealed to this court. The defendant, who was the Democratic city chairman for the city of Stamford during the 2015 municipal election cycle, regularly appeared at the Stamford town clerk's office to ''check on'' ballots. L, the Republican town clerk, admitted that she gave certain absentee ballots to the defendant and his associates, even though deliv- ering a ballot to an individual other than the applicant was improper. Other individuals in L's office accepted applications from the defendant, even though many of them should have been rejected because they were not filled out properly. P worked in the town clerk's office under L's supervision, and she prepared ballot sets for the defendant to pick up and would write the defendant's initials on the applications. After receiving a complaint, B, an investigator for the State Elections Enforce- ment Commission, conducted an investigation, which revealed a ''scheme'' between the defendant and L involving the submission of thirty-one fraudulent absentee ballot applications and twenty-six fraudu- lent absentee ballots to the Stamford town clerk's office. During the bench trial in the present case, the trial court directed the state to file an amended information to add an individual name for each count of false statement in absentee balloting. K, a handwriting and document examination expert, testified on behalf of the state. K compared hand- writing exemplars given by the defendant to the handwritten information on the ballot applications and opined that there were indications that the questioned signatures and the defendant's exemplars shared common ownership. The trial court denied defense counsel's request to disclose a handwriting expert to rebut K's opinions, as well as his motion to strike P's testimony, which was provided during the state's case-in- chief, after she asserted her fifth amendment privilege against self- incrimination when the defense called her as a witness in the defendant's case. The court found the defendant guilty of all charges, and subse- quently issued a memorandum of decision denying the defendant's motion to dismiss. Held: 1. The defendant's claim that the evidence was insufficient to support his conviction, which was based on his claim that the state failed to prove beyond a reasonable doubt that he authored the forged signatures, was unavailing: although the defendant argued that K's testimony that it was highly probable that the defendant's signature exemplars and the 0 Conn. App. 787 ,0 3 State v. Mallozzi questioned documents shared a common author was not a proper eviden- tiary basis for guilt as to each individual ballot, defense counsel did not ask at trial that the evidence as to each ballot be limited only to the counts specifically identifying each ballot, and he did not argue before the trial court that K's opinion was an improper consideration in determining the defendant's guilt as to each count; moreover, K's testi- mony was not the only evidence of the defendant's guilt, as L testified that she gave ballots to the defendant and his associates, P confirmed that she prepared ballots for the defendant to pick up and that she put his initials on those ballots, and B testified that the ballots that bore the defendant's initials appeared to share similar handwriting. 2. The defendant could not prevail on his claim that the trial court improperly permitted the state to amend its information during trial to include the names of the alleged victims with respect to each count of false statement in absentee balloting, which was based on his claim that the state did not provide good cause for such an amendment, pursuant to the applicable rule of practice (§ 36-18): the trial court did not permit the state to amend its information, it directed it to do so, and, accordingly, the state was not required to show good cause; moreover, the amendment directed by the court, which was specifically requested by defense coun- sel earlier in the trial, did not charge an additional or different offense, and it did not prejudice any substantive rights of the defendant, rather, the amendment narrowed the charges against the defendant, allowing defense counsel to focus on the ballots identified in the amended infor- mation; furthermore, the identities of all of the victims were known to the defendant because their names were listed in the arrest warrant affidavit and were contained in K's case notes, which were disclosed prior to trial. 3. The trial court properly denied defense counsel's request during trial to obtain and disclose a handwriting expert witness to rebut the state's expert witness: our rules of practice (§§ 40-13 and 40-26 (2)) require a defendant to disclose to the state, within forty-five days of a written request, the names of any witnesses the defendant intends to call at trial, in addition to any reports or statements of experts made in connec- tion with the case, and the failure to comply with those rules may result in the preclusion of specific evidence; moreover, the defendant was aware of the state's reliance on K's opinions since he was arrested, as K's opinions were referenced in the arrest warrant affidavit, and, nevertheless, the defense did not seek to discuss K's opinions with him or disclose its own expert to rebut them, and, accordingly, this court rejected the defendant's argument that he was ''sandbagged'' by K's testimony; furthermore, defense counsel did not disclose the name of his intended expert, he did not proffer a curriculum vitae or a summary of the expert's proposed opinion, and it was unlikely that a rebuttal expert could render an opinion in the one hour indicated by defense counsel as K had spent years examining the evidence in this case and 4 ,0 0 Conn. App. 787 State v. Mallozzi provided three days of testimony, and the rebuttal expert's testimony would then have necessitated a response by K, which would have dis- rupted and delayed the proceedings in a manner not contemplated by defense counsel. 4. The defendant could not prevail on his unpreserved claim that his right to due process was violated by the lack of a rule of practice that the state disclose the substance of any expert opinion on which it intended to rely at trial; the defendant's claim essentially was alleging a constitu- tional right to discovery, and, because a criminal defendant has no general constitutional right to discovery, the defendant's claim was not of constitutional magnitude alleging the violation of a fundamental right, and, accordingly, failed under the second prong of the test set forth in State v. Golding (213 Conn. 233). 5. The defendant's claim that his right to confrontation under the sixth amendment to the United States constitution was violated because the trial court declined to strike P's testimony was unavailing: the defense had ample opportunity to cross-examine all aspects of P's testimony that were elicited on direct examination, defense counsel questioned P relating to the investigation by the State Elections Enforcement Commis- sion in this case, her various communications with B and the written statement that she provided to him, and, thus, the defense had an unrestricted opportunity to explore on cross-examination any motive or bias that P may have had and to impeach any portion of her testimony. 6. The defendant could not prevail on his claim that the trial court improperly denied his motion to dismiss on the ground of selective prosecution, which was based on his claim that the court ignored the allegations of a ''scheme'' allegedly involving several individuals, all of whom, the defendant contends, were similarly situated, and that the only difference between him and those other individuals was that he was the only one who exercised his right to counsel: the defendant ignored the difference between his conduct and that of the other individuals whom he claims were similarly situated because the defendant was the one who fraudu- lently filled out the absentee ballot applications and forged the signatures of the victims; moreover, the defendant's claim was devoid of any argu- ment of animus or invidious discrimination on the part of the state. Argued January 29—officially released June 4, 2024

The petitioner, who previously had been convicted of murder, sought a writ of habeas corpus, claiming, inter alia, that his trial counsel had provided ineffective assistance and that the state had violated Brady v. Maryland (373 U.S. 83). The petitioner had filed a petition for a writ of habeas corpus alleging those same claims in 2011, after having withdrawn seven previous actions seeking a writ of habeas corpus. At the petitioner's request, his trial date for the 2011 petition was postponed multiple times. In 2017, on the day that trial was scheduled to commence, the petitioner's counsel, L, informed the habeas court that the petitioner wanted to withdraw his petition. The habeas court canvassed the petitioner regard- ing this desire and informed the petitioner that, if he withdrew his petition, it would be with prejudice, meaning that he would be unable to raise the same claims in a subsequent petition. L argued that, although exhibits had been marked and witnesses had been subpoenaed and were present, the petitioner should be able to withdraw his petition without prejudice because the evidence had not yet been presented, the peti- tioner had not previously litigated a habeas petition, and there were potential witnesses whom the petitioner and L had been unable to locate. Although the habeas court stated that, if the trial proceeded that day, it would provide the petitioner with a second trial date to allow him to locate the missing witnesses, following a second canvass, the petitioner reiterated his desire to withdraw the petition. Thereafter, L and the petitioner signed a withdrawal form that included a notation stating that the withdrawal was accepted by the habeas court with prejudice. That same day, the petitioner filed a motion to reconsider the habeas court's ruling that the withdrawal was with prejudice, which the habeas court denied. On the granting of certification, the petitioner appealed to this court, which affirmed the habeas court's judgment. In 2019, the petitioner filed the present habeas petition, and the habeas court raised a motion to dismiss sua sponte. Following a hearing on that motion, the court denied the petition, finding that the petitioner was barred from litigating his claims due to the withdrawal with prejudice of the 2011 petition. Thereafter, the habeas court denied the petitioner's 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 petitioner's petition for certification to appeal, the petitioner having failed to present an issue that was debatable among jurists of reason, that a court could resolve in a different manner, or that deserved encour- agement to proceed further: the court did not err in finding that the petitioner knowingly, voluntarily, and intelligently had withdrawn the 2011 petition with prejudice and, thus, was barred from litigating the claims raised in the 2019 petition because, to the extent that statements made to the habeas court by L or counsel for the respondent, the Commissioner of Correction, during the 2017 proceeding created any ambiguity as to the consequences of the withdrawal of the 2011 petition, those ambiguities were resolved by the habeas court's thorough canvass of the petitioner, the record having supported the conclusion that the court adequately and accurately informed the petitioner that he would be barred from raising the same claims raised in the 2011 petition in a subsequent petition; moreover, contrary to the petitioner's assertions, the habeas court in the present action reasonably could have inferred that the petitioner fully understood the consequences of withdrawing the 2011 petition, namely, that he would be barred from pursuing his habeas claims unless he succeeded on appeal in distinguishing his case from Marra v. Commissioner of Correction (174 Conn. App. 440) or, alternatively, that he would have to take his chances that the respondent would not raise a collateral estoppel or res judicata defense if the petitioner were to file a subsequent petition raising the same claims as those raised in the 2011 petition; furthermore, the petitioner's statements during the canvass that he understood that he could withdraw his peti- tion at any time prior to a hearing without prejudice merely demonstrated that he believed that the habeas court should allow him to withdraw without prejudice, not that he did not understand the consequences should the court instead grant the withdrawal with prejudice; addition- ally, the petitioner's argument that he believed he was not bound by Marra due to the statements the habeas court made at a hearing that was held more than one week prior to the canvass, noting that the situation was dissimilar to that in Marra, was without merit, as the petitioner could not have reasonably believed that such statements applied to conduct that had not yet occurred, including the withdrawal with prejudice of the 2011 petition and the petitioner's subsequent filing of the 2019 petition raising the same claims. Argued April 9—officially released June 4, 2024

The plaintiff sought to recover damages from the defendant, a business selling heating, ventilation and air conditioning equipment, in connection with the defendant's sale of allegedly defective equipment. The plaintiff commenced an action, alleging, inter alia, breach of contract. The defen- dant filed a request to revise, and the plaintiff revised his complaint. The defendant thereafter filed a motion to dismiss based on a lack of subject matter jurisdiction due to a forum selection clause contained in the underlying contract. The trial court, noting that the forum selection clause implicated personal jurisdiction and not subject matter jurisdic- tion, denied the motion to dismiss, both as untimely and because the defendant waived the right to file a motion based on lack of personal jurisdiction when it filed a request to revise. The parties engaged in settlement negotiations, both written and oral, including an offer by the plaintiff that the defendant could take possession of the equipment if it chose. The defendant filed an offer of compromise with the court pursuant to statute (§ 52-193) and the rule of practice (§ 17-11). The plaintiff emailed the defendant's counsel to communicate that he agreed on the settlement amount contained in the offer of compromise and the defendant's counsel replied that she would send the plaintiff a draft settlement agreement. Prior to the receipt of the draft settlement agree- ment, the plaintiff emailed the defendant's counsel that he had disposed of the equipment. Thereafter the defendant withdrew the offer of com- promise, and the plaintiff objected and filed a motion with the court to compel the settlement. The trial court granted the motion to enforce the settlement agreement, finding that the defendant did not condition its offer to settle upon the return of the equipment. On the defendant's appeal to this court, held: 1. The trial court erred in granting the plaintiff's motion to enforce the settlement agreement as the parties had not reached a binding and enforceable contract: the parties were engaged in ongoing negotiations regarding the terms of the settlement agreement but the terms of the agreement had not been finalized, as the plaintiff created an outstanding offer regarding the possession of the equipment, and he did not revoke that offer prior to unilaterally disposing of the equipment before the agreement had been completed, memorialized or signed by either party; accordingly, this court reversed the judgment of the trial court and remanded the case for further proceedings in accordance with its opin- ion. 0 Conn. App. 844 ,0 3 Martin v. Todd Arthurs Co. 2. This court declined to review the defendant's unpreserved claim that the trial court abused its discretion in declining to enforce a forum selection clause in the contract after it determined that the defendant's motion to dismiss based on a lack of personal jurisdiction was both untimely and that the defendant had waived its ability to contest personal jurisdic- tion; the defendant did not challenging the court's rulings on timeliness or waiver on appeal, and it failed to distinctly raise its claim before the trial court that the court should have conducted an analysis to determine whether the forum selection clause was reasonable and gave effect to the parties' expectations prior to denying the motion. Argued November 15, 2023—officially released June 4, 2024

The plaintiff church appealed to this court from the judgment of the trial court granting the motion by the defendants, F and F Co., to dismiss its action alleging fraud, constructive trust, conversion, and statutory theft. In its operative complaint, the church alleged that it owned certain real property and that F had been named pastor of the church. More than one year after his appointment, F advised the church's board of directors at a board meeting that the church owed taxes and that the church should change its legal name and business structure in order to avoid that tax obligation. The church alleged that, unbeknownst to it and its board, F had incorporated F Co. prior to the board meeting, that F knew that the church, which was a tax-exempt entity, did not in fact owe any taxes despite his representations to the contrary, that F, in his purported role as president of the church, had filed documents dissolving the church as a corporation without receiving authorization from the church's board and that, without the knowledge of the church or its board, F signed and filed documents purporting to transfer the church's properties to F Co. and removed money from the church's bank accounts. The defendants filed a motion to dismiss the church's complaint, arguing, inter alia, that D and J, the persons who purported to have commenced the present action in the name of church, were not authorized to initiate litigation on behalf of the church and, therefore, the church lacked standing to bring the present action and the court consequently lacked subject matter jurisdiction. In support of their motion to dismiss, the defendants filed, inter alia, an affidavit of F and deposition testimony of D and J. The church filed an objection to the defendants' motion to dismiss, arguing, inter alia, that, contrary to the defendants' contentions, the church was not properly dissolved by a duly authorized action of its board of directors and that, because the church had not been properly dissolved, the defendants could not rely upon their improper actions to deprive the church of its ability to pursue its claims that stemmed from those very actions. The church further argued that J, who the church claimed was the vice president of the church prior to the church's dissolution, and D, who the church claimed was a member of the church's deacon board, were authorized to bring the present action in the church's name because they more fairly and accurately represented the interests of the church. At the hearing on the defendants' motion to dismiss, the court's principal concern was that, even if the court were to assume that the dissolution of the church was improper, there were no indicia of authorization for D or J to bring the action in the name of the church. The court subsequently granted the defendants' motion to dismiss and overruled the church's objection to the motion. In the court's written order that followed, the court explained that there was no written autho- rization for the church to initiate the present action, nor was the action brought by any member of the religious congregation in a derivative capacity. Accordingly, the court concluded that it lacked subject matter jurisdiction over the matter and dismissed the action. The church subse- quently filed a motion for reargument and reconsideration in which it argued, inter alia, that the court's ruling ignored that F's wrongful actions were the reason that no written authorization existed and that the defen- dants should not be permitted to benefit from those wrongful actions. One day after filing its motion for reargument and reconsideration, the church filed a supplement to its motion, which included a document dated May 4, 2019, purporting to be a resolution authorizing the present action against the defendants. The defendants objected and argued that the church's filings called into question the credibility of the claims asserted in both the church's motion for reargument and reconsideration and the supplemental filing in support of that motion. The defendants noted that the church had conceded in its motion for reargument and reconsideration that there had been no authorization because F's actions purportedly made that impossible but in its supplemental filing had purported to submit a written resolution from May 4, 2019, authorizing the present action. The defendants further noted that J had testified during a deposition in October, 2019, that the church's board never voted to commence a lawsuit against the defendants or to authorize any person to act on the church's behalf against the defendants. At the hearing on the motion for reargument and reconsideration, the court expressed concerns with the purported May 4, 2019 resolution and concluded that the purported authorization was not credible and, accord- ingly, denied the church's motion for reconsideration. Held that the church could not prevail on its claim that the trial court improperly dismissed its action against the defendants for lack of standing: the defendants' motion to dismiss and the affidavits and evidence in support of it conclusively established that the church lacked the authority to sue the defendants, as F averred that the church's board never authorized any individual to bring the present lawsuit, D testified in his deposition that he did not attend any meeting about bringing the present action, and J testified in his deposition that he did not conduct any board meetings after the church was purportedly dissolved, that he was not aware of any votes or minutes by the board that were taken in relation to the church after the purported dissolution, and that the board never took any vote in relation to instituting the present lawsuit; moreover, the church's opposition to the motion to dismiss failed to overcome the defendants' evidence establishing that no person was authorized to bring the present action in the name of the church, as the affidavits and documents attached to the church's objection to the motion to dismiss, which aimed to show that F improperly dissolved the church and subse- quently transferred property to F Co., did not demonstrate that the church was authorized to commence the present action against the defendants and, even if this court were to assume arguendo that the church was improperly dissolved by F, the church's objection to the motion to dismiss and the evidence submitted in support of that objec- tion failed to demonstrate that any individual, including J or D, had the authority to maintain the present action in the church's name, either as a result of internal church proceedings or by law; furthermore, although the church contended on appeal to this court that the May 4, 2019 document that it submitted was evidence that the church was authorized to bring the present action against the defendants, the trial court properly concluded that the document had significant shortcomings and therefore was entitled to no weight, as the May 4, 2019 document did not specifi- cally authorize the present lawsuit, the church failed to explain why an unquantified number of members of the church, as opposed to a majority of a quorum of the board of directors of the church, were legally empow- ered to authorize the church to commence a lawsuit, the document stated that the meeting was presided over by J and D but recorded no roll call, no number of members present, no identity of a movant pressing a motion, and no identity of a second to the motion, the document purported to be from a meeting that took place months after the com- mencement of the present litigation with no indication that any pur- ported business conducted that day was to apply retroactively, and J testified at a deposition in October, 2019, many months after the pur- ported May 4, 2019 members meeting took place, that no vote to initiate the present action had been taken or recorded, which further called into question the veracity of the document submitted by the church; additionally, although the church argued in its appellate brief that a corporation acts through its officers, suggesting that J, in his purported role as vice president, or D, as a purported member of the deacon board, could authorize the church to commence the present action, the church failed to demonstrate that J or D was authorized to commence the present action in the name of the church and, in fact, most courts have held that a vice president does not have power to act on behalf of the corporation in highly important and unusual transactions in the absence of specific authorization in the bylaws or a resolution of the board of directors. Argued January 11—officially released June 4, 2024