Volume 227 — Connecticut Appellate Reports

The plaintiff subleased certain real property to the defendants. After the defendants failed to make a rent payment, the plaintiff sent the defen- dants a notice of cancellation of the lease and served them with a notice to quit possession on the ground of nonpayment of rent. When the defendants did not quit possession, the plaintiff served the defendants with a summary process summons and complaint. The sublease agree- ment contained a clause providing that the agreement could not be modified in any manner except by an instrument in writing executed by the parties. At trial, the plaintiff presented testimony from the plain- tiff's lease administrator, who testified that the defendants' rental pay- ments were habitually late, that she typically sent the defendants a notice of default with a ten day right to cure such default, and that she would routinely accept the late payments that followed but that she had lost patience with the defendants. The court found that the defen- dants had breached the sublease agreement by nonpayment of rent, rejected the defendants' argument that the sublease agreement required the plaintiff to provide the defendants with a pretermination notice and a ten day right to cure, and rendered a judgment of possession for the plaintiff. On the defendants' appeal to this court, held: 1. The defendants could not prevail on their claim that the trial court should have considered evidence of the parties' course of performance in its interpretation of the sublease agreement and improperly concluded that the language of the lease controlled; the plain and unambiguous language of the sublease agreement made clear that a pretermination notice and a ten day cure period were not required in the context of a default for nonpayment of rent and that such notice applied only to other specified events of default. 2. The defendants could not prevail on their claim that the parties' course of performance modified the terms of the sublease agreement; the trial court properly relied on the written terms of the sublease agreement to conclude that the plaintiff was not required to provide the defendants with a pretermination notice and an opportunity to cure their default for nonpayment of rent, as any modification of the agreement by the parties' course of performance was barred by the contractual provision requiring that modifications be in writing. Argued May 13—officially released July 30, 2024

Convicted of the crimes of assault in the first degree, criminal possession of a firearm and carrying a pistol without a permit, the defendant appealed to this court, claiming that his constitutional rights to confron- tation and a fair trial were violated as a result of misrepresentations made by the state in moving to join his case for trial with that of his codefendant, J. The defendant and J had entered an apartment in which C was staying and engaged in an altercation with him, during which the defendant shot C, and C stabbed J with a knife. A police detective, F, interviewed J twice. During trial, the state informed the court that it intended to offer as consciousness of guilt evidence against J a recording of only J's first interview with the police. That recording was admitted into evidence during the state's direct examination of F, and the state did not thereafter question F about the second interview or offer the recording of that interview into evidence. On cross-examination, in response to an open-ended question by defense counsel, F testified that, during the second interview, J had identified the defendant and had stated that the defendant was in C's apartment at the time of the shooting. The court denied the defendant's motion to strike F's answer but expressed concern about F's reference to the second interview, of which the jury previously had been unaware. The court then approved an agreement between the parties, under which they would each elicit limited testimony from F about the second interview. F further testified that J had later identified the defendant from a photographic array the police had prepared. During closing argument, the state relied on F's testimony as substantive evidence of the defendant's culpability. Held that the defendant could not prevail on his unpreserved claim that the joinder of his case with J's case for trial was improper because the state had misrepresented that the evidence in the two cases was cross admissible: it was only after F had referenced J's second interview with the police in a truthful, responsive answer to defense counsel's open- ended question on cross-examination about the police investigation that the state relied on that interview as substantive evidence against the defendant; moreover, at no point prior to that cross-examination did the state use, or suggest an intention to use, the second interview against the defendant, and the defendant abandoned any challenge to the court's denial of his motion to strike F's testimony by failing to brief a claim of error as to that issue; furthermore, defense counsel expressly agreed to the procedure approved by the trial court that permitted the state to introduce limited portions of J's second interview through F's redirect testimony, and defense counsel failed to raise any objection to the agreement on the record. Argued March 6—officially released July 30, 2024

Pursuant to the rule of practice (§ 61-11 (g)), ''[i]n any action for foreclosure in which the owner of equity has filed, and the court has denied, at least two prior motions to open or other similar motion, no automatic stay shall arise upon the court's denial of any subsequent contested motion by that party, unless the party certifies under oath, in an affidavit accompanying the motion, that the motion was filed for good cause arising after the court's ruling on the party's most recent motion. . . .'' The substitute plaintiff sought to foreclose a mortgage on certain real prop- erty owned by the defendants W and J. The trial court rendered a judgment of strict foreclosure, which W appealed to this court. This court affirmed the judgment and remanded the case for the purpose of setting new law days. W then filed his first motion to open and vacate the judgment of strict foreclosure, which the trial court denied. J appealed to this court, which affirmed the judgment and remanded the case for the purpose of setting new law days. The trial court denied W's second motion, captioned ''Motion for Judgment of Dismissal for Lack of Stand- ing and Lack of Subject Matter Jurisdiction,'' and W appealed to this court, which dismissed the appeal. The trial court denied W's third motion, captioned ''Motion for Void Judgment,'' and reset the law days. W and J then filed a motion to set aside the judgment resetting the law days. On the date the law days were set to commence, W and J filed the present appeal from the trial court's inaction on their motion to set aside the judgment. The next day, the trial court denied that motion, and W and J filed an amended appeal from that decision. Held that this court could not grant W and J any practical relief, and, accordingly, the appeal was dismissed as moot: W's first, second and third motions constituted ''at least two prior motions to open or other similar motion'' under the plain meaning of Practice Book § 61-11 (g) and, accordingly, because no automatic stay arose on the trial court's denial of the motion to set aside the judgment and the filing of the appeal therefrom, the law days had passed, and title to the property had vested absolutely in the substitute plaintiff; moreover, the motion to set aside the judgment did not have an accompanying affidavit, as required by § 61-11 (g), that set forth that the motion was filed for good cause that arose after the trial court's ruling on W's third motion. Argued February 15—officially released July 30, 2024

The plaintiff appealed from the judgment of the trial court, rendered after a jury trial, for the defendant bank. Following certain litigation over two mortgages on the plaintiff's property, the parties executed a settle- ment and release agreement and a loan modification agreement. After the defendant commenced a foreclosure action against the plaintiff, claiming that he had defaulted on the modified loan, the plaintiff initiated the underlying action against the defendant, claiming, inter alia, breach of the loan modification agreement and settlement agreement, to which the defendant asserted the special defense of setoff. The jury returned its verdict, pursuant to which it found for the plaintiff on the count of his complaint alleging breach of the settlement agreement, and it awarded damages in the amount of $350,000. The jury also found that the defen- dant had proven that, due to the plaintiff's ongoing default in his loan obligations, the plaintiff was indebted to the defendant for more than $4 million. The jury subtracted the amount of the indebtedness from the damages award on the interrogatories form. The jury, however, returned a verdict for the plaintiff. Following clarifying instructions from the court, the jury returned a defendant's verdict on all counts of the complaint consistent with its responses to the interrogatories. The plain- tiff filed various postverdict motions, which the court denied. Held: 1. This court declined to review the plaintiff's claims that the trial court improperly denied his motions to set aside the verdict and for judgment notwithstanding the verdict as those claims were unpreserved: the plain- tiff never sought to challenge the legal sufficiency of the defendant's setoff defense by filing a motion to strike in accordance with the rules of practice and failed to distinctly raise his claim that the setoff defense was invalid prior to the submission of the case to the jury; moreover, the plaintiff failed to preserve his claim that the defendant's material breach of the settlement agreement necessarily discharged his obliga- tions under the loan modification agreement by failing to submit a written request to charge or proposed jury interrogatories on the issue and by agreeing to the submission of interrogatories to the jury that plainly allowed it to find both that the defendant materially breached the settlement agreement and that the plaintiff was indebted to the defendant pursuant to his loan obligations; furthermore, because the plaintiff's trial counsel neither objected to questions about the debt posed by the defendant's counsel nor moved to strike the plaintiff's responses as to the amount of the debt, his claim that the court improp- erly concluded that his testimony as to the amount he owed the defen- dant was a judicial admission was unreviewable. 2. This court declined to review the plaintiff's unpreserved claim that the trial court improperly precluded him from presenting evidence relevant to the damages he incurred after he transferred title to the property to a trust; the record did not reflect that the plaintiff distinctly raised this claim in opposition to the defendant's motion in limine seeking to preclude the plaintiff from presenting evidence of such damages or at any other point during the trial. 3. The trial court did not abuse its discretion in denying the plaintiff's motions to set aside the verdict as inadequate and for additur; because there was a reasonable basis in the evidence for the jury's verdict and there was no evidence of mistakes or partiality, this court deferred to the jury's judgment. 4. The plaintiff could not prevail on his claim that the trial court improperly denied his postverdict motion to consolidate the underlying action with the defendant's related foreclosure action against him: after the defen- dant initiated the foreclosure action, the plaintiff initiated the underlying action instead of asserting his breach of contract claims in a counter- claim in the foreclosure action; moreover, the court properly considered the belated nature of the plaintiff's motion to consolidate as well as the futility of doing so after a verdict had been returned and after the plaintiff's motion for a new trial had been denied. Argued March 12—officially released August 6, 2024

Convicted, on a plea of guilty, of the crimes of reckless endangerment in the second degree, threatening in the second degree, and intimidation based on bigotry or bias in the third degree, the defendant appealed to this court. His conviction arose out of an incident in which he aimed a shotgun at individuals renting his neighbor's property, called them racial slurs and told them to get out. The defendant was charged in a second docket with, inter alia, intimidation based on bigotry or bias in the third degree for his actions in calling his neighbor and leaving a voicemail message that intimated future violence if the neighbor again rented the residence to people of color. He elected to enter a plea of guilty to reckless endangerment and threatening in the first docket and intimida- tion based on bigotry or bias in the second docket. At his plea hearing, the trial court expressed doubt as to the sufficiency of the factual basis for applying the charge of intimidation based on bigotry or bias in the second docket. The state, with the agreement of defense counsel, added the intimidation charge to the first docket, and the defendant was put to plea only in the first docket. The court canvassed the defendant and accepted his guilty plea. The court thereafter denied the defendant's motion to withdraw his plea and rendered a judgment of guilty. Held: 1. The trial court correctly concluded that the plea canvass was sufficient; although the court did not restate each of the three constitutional rights delineated in Boykin v. Alabama (395 U.S. 238), namely, the privilege against self-incrimination, the right to a jury trial, and the right to con- front one's accusers, the defendant was cognizant of those rights prior to entering his guilty plea because he affirmed during the plea canvass that his attorney had fully explained the constitutional rights he was waiving and, thus, his plea was knowingly, voluntarily, and intelli- gently made. 2. The defendant could not prevail on his claim that, prior to ruling on his motion to withdraw his plea, the trial court improperly failed to hold an evidentiary hearing sua sponte on his ineffective assistance of counsel claim; the defendant failed to meet his burden of showing a plausible reason for the withdrawal of his plea sufficient to justify an evidentiary hearing, as the record of the plea proceeding demonstrated that the defendant had previously been presented with a plea offer that he accepted and that contained the same charges, and the defendant failed to allege that his counsel did not advise him on the charges when he was presented with the previous plea offer. 3. The trial court properly determined that defense counsel did not render ineffective assistance, as the defendant failed to prove the performance prong of his claim; the defendant did not dispute that his counsel pro- vided him with adequate information and advice in connection with the previous plea offer, the record reflected that he understood the factual basis underlying his guilty plea and how those facts supported the charges against him, and the only change to the plea offer was the docket in which the intimidation charge was filed, and the defendant failed to present evidence that his counsel did not previously advise him on possible constitutional concerns of a guilty plea to the intimida- tion charge. Argued March 13—officially released August 6, 2024

The plaintiff, the city of New London, sought to recover a balance due for water and sewer services provided to the defendant's property. The defendant filed a counterclaim alleging that she was a debtor in a pending bankruptcy action at the time the underlying action was commenced, and sought damages for the plaintiff's alleged violation of the automatic stay imposed by the United States Bankruptcy Code (11 U.S.C. § 362). The trial court granted the plaintiff's motion to dismiss the counterclaim, finding that it did not have subject matter jurisdiction to hear the action. On the defendant's appeal to this court, held that the trial court improp- erly dismissed the defendant's counterclaim for lack of subject matter jurisdiction: considering the express statutory language in 11 U.S.C. § 362 (k) creating a right to damages for individuals injured by violations of the automatic stay, and consistent with federal precedent construing the same, 11 U.S.C. § 362 (k) authorized an independent cause of action for damages that survived the disposition of the underlying bankruptcy case; moreover, this court concluded, consistent with the majority of federal appellate courts, that the plain language of the federal statute (28 U.S.C. § 1334) governing bankruptcy cases and proceedings grants federal district courts original and exclusive jurisdiction over the bank- ruptcy petition only, and that a claim for damages pursuant to 11 U.S.C. § 362 (k) was not a bankruptcy petition and did not fall under the exclusive jurisdiction of the federal district courts; furthermore, the clear statutory language in 28 U.S.C. § 1334 (b) distinguishing between the exclusive and ''not exclusive'' jurisdiction of the federal district courts reinforced the presumption of concurrent state court jurisdiction over the federal claim for damages pursuant to 11 U.S.C. § 362 (k) and compelled the conclusion that an action for damages pursuant to 11 U.S.C. § 362 (k) is a civil proceeding arising under title 11 and, thus, is within the original but not exclusive jurisdiction of the federal district courts pursuant to 28 U.S.C. § 1334 (b). Argued February 1—officially released August 13, 2024

The plaintiff sought to recover damages for, inter alia, alleged negligent misrepresentation by the defendant insurance company related to a workers' compensation insurance policy. The defendant issued the plain- tiff a policy in September, 2015. In October, 2015, the defendant issued a cancellation notice of the policy with an effective cancellation date of November 3, 2015. After the November 3 date had passed, the defen- dant sent multiple letters to the plaintiff, some of which indicated that the policy may be cancelled and others of which indicated that the policy had been cancelled. An employee of the plaintiff, L, suffered a compensable injury in May, 2016, and filed a workers' compensation claim, and the defendant denied coverage on the basis that the policy had been cancelled on November 3, 2015. In 2019, following a formal hearing, a workers' compensation commissioner concluded that the policy was still in effect on the date of L's injury. The defendant appealed to the Compensation Review Board, which reversed the commissioner's decision. The plaintiff appealed the board's decision to this court, which affirmed the decision. Thereafter, the plaintiff brought the present case relating to the defendant's conduct after the cancellation of the policy. The trial court granted the defendant's motion for summary judgment, concluding that the plaintiff's action was barred by the doctrine of res judicata. On the plaintiff's appeal to this court, held that the trial court improperly rendered summary judgment for the defendant: the doctrine of res judicata did not bar the plaintiff's claims, which related to the defendant's conduct following the cancellation of the policy and, thus, did not fall within the scope of the Workers' Compensation Act (§ 31- 275 et seq.) and could not have been litigated before the commissioner, whose limited jurisdiction did not extend to those claims; accordingly, this court reversed the judgment of the trial court and remanded the case for further proceedings. Argued May 22—officially released August 13, 2024

The plaintiff sought to foreclose a mortgage on certain real property owned by the named defendant, E Co. E Co. executed a promissory note in the plaintiff's favor, which was secured by a mortgage on the property. E Co. subsequently entered into a modification agreement with the plaintiff that increased the amount of the principal in exchange for a six month extension of the maturity date. E Co. thereafter defaulted on the mortgage and the defendants requested a second extension, which the plaintiff refused. The plaintiff also alleged that the defendant guaran- tors had breached their guarantees. The defendants asserted the special defense of unclean hands, claiming that the parties had negotiated for an additional extension of time regarding the maturity date, which the plaintiff refused to honor. In opposition to the plaintiff's motion for summary judgment as to liability, the defendants submitted an affidavit from the defendant S, who signed the modification agreement on E Co.'s behalf. S averred that E Co. entered into the modification agreement in reliance on the plaintiff's false promise to grant an additional extension of the maturity date. The trial court granted the plaintiff's motion for summary judgment, and rendered a judgment of strict foreclosure, from which the defendants appealed to this court. Held: 1. The appeal was dismissed as to the guarantor defendants for lack of standing; it was undisputed that none of the guarantor defendants was a party to the note, mortgage or modification agreement, and neither the plaintiff nor the defendants alleged that the guarantor defendants had any interest in the property or a right of redemption. 2. The trial court properly granted the plaintiff's motion for summary judg- ment as to liability: because the text of the modification agreement expressly addressed the question of further extensions, specifically pro- viding that the maturity date ''shall not be further extended'' past the initial six month extension, the trial court properly concluded that the modification agreement was integrated on this point; moreover, S's affidavit was insufficient to raise a genuine issue of material fact as to the defendants' unclean hands defense, as E Co. could not manufacture a material factual dispute as to the parties' intent by pointing to parol evidence of negotiations that contradicted the express written terms of the modification agreement, even by way of a sworn affidavit. Argued May 23—officially released August 20, 2024

The petitioner, who had previously been convicted, following a jury trial, of murder, sought a writ of habeas corpus, claiming that the state had violated his right to due process during his underlying criminal trial by failing to disclose an alleged cooperation agreement with G, who had been with the petitioner on the day of the murder and who testified at the petitioner's criminal trial. At the petitioner's habeas trial, the respondent, the Commissioner of Correction, introduced testimony from G, G's former attorney, and three prosecutors who were involved in the petitioner's underlying criminal trial and sentencing, all of whom testi- fied that there was no formal or informal agreement or understanding between G and the state prior to or during the petitioner's trial. The habeas court denied the petitioner's petition for a writ of habeas corpus but granted certification to appeal. While the petitioner's appeal was pending, he filed a motion for rectification and/or augmentation of the record, seeking to include additional transcripts from the prosecution of G and G's court file. The habeas court denied the motion, finding, inter alia, that the petitioner was improperly seeking to create a record, rather than rectify the existing record. The petitioner filed with this court a motion for review of the habeas court's denial of his motion, and this court granted the motion for review but denied the relief requested therein. Held: 1. The petitioner could not prevail on his claim that the habeas court erred in rejecting his claim that the state violated his right to due process by failing to disclose an alleged cooperation agreement with G to the defense and by knowingly soliciting allegedly false and misleading testi- mony from G and allowing that testimony to stand uncorrected: contrary to the petitioner's assertions, the transcripts from G's sentencing hearing that the petitioner submitted as exhibits during his habeas trial did not contradict the testimony of the witnesses who testified at the habeas trial because, although the transcripts from that hearing revealed that the prosecutor informed the court that it was supporting a relatively lenient disposition in consideration for the testimony that G had given at the petitioner's criminal trial, he did not state or imply that the state had reached an agreement or understanding with G at the time of the petitioner's criminal trial; moreover, the habeas court was not required to infer such an agreement or understanding under the circumstances of this case and, on the basis of the record in this case, the habeas court's finding was not clearly erroneous. 2. This court declined to revisit its prior ruling on the petitioner's motion for review or to take judicial notice of certain materials that were never submitted to the habeas court: the petitioner's arguments on appeal were nearly identical to those he made before this court in his motion for review, and this court has made clear that it will order a hearing pursuant to State v. Floyd (253 Conn. 700) only in the unusual situation in which a defendant was precluded from perfecting the record due to new information obtained after judgment; moreover, if this court were to grant the petitioner's request and consider evidence that was not reviewed by the habeas court or by the state, even though the petitioner had the opportunity to present such evidence, the result would be trial by ambuscade. Argued April 15—officially released August 20, 2024

The petitioner, who had been convicted of murder, sought a writ of habeas corpus more than two years after the judgment had become final in the petitioner's previous state habeas action. The respondent, the Commis- sioner of Correction, sought an order to show cause pursuant to statute (§ 52-470 (d) and (e)), asserting that the petition was untimely. At the show cause hearing, the petitioner testified that he had been diagnosed with dyslexia and attention deficit disorder and that he had reading and writing difficulties. The habeas court dismissed the petition as untimely and denied the petition for certification to appeal. On the petitioner's appeal to this court, held that the habeas court did not abuse its discre- tion in denying the petition for certification to appeal following its determination that the petitioner had failed to establish good cause to overcome the statutory presumption of unreasonable delay in the filing of his untimely habeas petition: the habeas court did not find the petition- er's testimony as to his alleged mental deficiencies credible for the purpose of establishing good cause, and this court must defer to the credibility findings of the habeas court based on its firsthand observation of a witness' conduct, demeanor, and attitude; moreover, despite the petitioner's attempt in his appellate brief to explain how his alleged mental deficiencies contributed to the delay in filing his habeas petition, he did not make such an attempt before the habeas court, asserting only that his alleged mental deficiencies affected his ability to read and write and to understand the legal process, and the record revealed that he was able to file both a first state habeas petition and a federal habeas petition as a self-represented party while struggling with the same alleged deficiencies; furthermore, although he testified that he had previously relied on certain fellow inmates acting as jailhouse lawyers to help with filing petitions, the record was devoid of evidence or explanation as to why his alleged mental deficiencies prevented him from utilizing these jailhouse lawyers to file the present petition earlier than he did. Argued May 16—officially released August 20, 2024

The plaintiff sought to recover damages from the defendant city for injuries she sustained in connection with a motor vehicle accident. On the night of the accident, after finishing their shifts, C and G, police officers employed by the defendant, drove separately to a restaurant, where C consumed alcoholic beverages. When they left the establishment, C was visibly intoxicated. As G was following C to his home, C's vehicle crossed into the plaintiff's lane of travel and collided with her vehicle. The plaintiff claimed that the defendant was liable for G's allegedly negligent conduct in allowing C to operate his vehicle while under the influence of alcohol pursuant to the applicable statute (§ 52-557n) and for failing to properly screen C prior to hiring him as a member of the police department. The trial court granted the defendant's motion for summary judgment and denied the plaintiff's motion for summary judgment, and the plaintiff appealed to this court. Held: 1. The trial court properly determined that a genuine issue of material fact did not exist as to whether G was acting within the scope of his employment or official duties so as to subject the defendant to a claim for the plaintiff's injuries pursuant to § 52-557n (a) (1) (A): the affidavits submitted by the defendant in connection with its motion for summary judgment demonstrated that G was not engaged in any official duty of his employment or doing something incidental to it at the time of his allegedly negligent conduct, as G and C had been off duty for approxi- mately four hours prior to the accident, they drove their personal vehi- cles to the restaurant, they were not in uniform and did not have badges, identifying insignia or service weapons on their person at the restaurant, they had not been attending a party sponsored by the police department, and they did not perform any police services while at the restaurant; moreover, contrary to the plaintiff's assertions, G's violations of the police department's policies and procedures did not constitute violations of his official duties pursuant to statute (§ 54-1f) but, rather, were viola- tions of his overall responsibility and ethical character. 2. The trial court properly determined that the plaintiff's claim regarding the defendant's negligent hiring of C was barred by the applicable statute of limitations (§ 52-584): because C was hired in 2011 and the present case was commenced in 2019, C was hired more than three years before the institution of the present action; moreover, the court properly deter- mined that the plaintiff had waived her claim that the continuing course of conduct doctrine tolled the statute of limitations as it was procedurally defective because, instead of affirmatively pleading the doctrine in avoid- ance of the defendant's statute of limitations special defense, she asserted it for the first time in her memorandum of law in opposition to the defendant's motion for summary judgment; furthermore, the court properly rejected the plaintiff's continuing course of conduct argument on substantive grounds as the plaintiff failed to allege that she had a special relationship with the defendant or to demonstrate that a genuine issue of material fact existed with respect to whether the defendant committed some later, actual or affirmative wrongful act related to the initial hiring of C. Argued February 7—officially released August 27, 2024

The defendant guarantor appealed to this court from the trial court's granting of a motion for approval of trial and appellate court costs and attorney's fees filed by the plaintiff note holder pursuant to the terms of the promissory note, following judgment rendered in its favor on its breach of guarantee claim. The defendant claimed that the plaintiff's motion was not timely filed pursuant to the rule of practice (§ 11-21) governing motions for attorney's fees and was made without any showing of excus- able neglect to permit the late filing. Held: 1. The plaintiff could not prevail on its claim that Practice Book § 11-21 did not apply to its motion for contractual attorney's fees, as opposed to statutory attorney's fees: the text of Practice Book § 11-21 makes it clear that the rule applies to attorney's fees sought postjudgment and not to those attorney's fees assessed as a component of damages, and to the extent there is ambiguity as to whether the rule governs contractual attorney's fees, the commentary to the rule and dicta in Meadowbrook Center, Inc. v. Buchman (328 Conn. 586) support this court's construc- tion that postjudgment motions for contractual attorney's fees are sub- ject to the rule; moreover, to the extent that the plaintiff contended that the trial court's award of attorney's fees constituted an award of damages, the plaintiff did not identify any support in the record for that proposition, it did not suggest any legal theory that could support a postjudgment award of contractual attorney's fees incurred entirely in connection with the prosecution of the plaintiff's breach of guarantee claim as damages, and the fact that the plaintiff sought attorney's fees for the first time postjudgment and following an appeal without remand readily distinguished the court's award of attorney's fees from an award of attorney's fees assessed as a component of damages, and, accordingly, Practice Book § 11-21 applied, as a matter of fact, to the plaintiff's motion, such that the motion was untimely filed. 2. The trial court abused its discretion in entertaining the plaintiff's untimely request for trial court and appellate attorney's fees: although the plaintiff argued that the fact that the clerk of the trial court did not enter the judgment or a document titled ''judgment'' constituted excusable neglect for its late filing of its motion for trial court attorney's fees, that con- tention incorrectly articulated the relevant portion of Practice Book § 11-21 by substituting the entry of judgment for the rendering of judg- ment, and, regardless of whether a separate document titled ''judgment'' was entered, there could not reasonably be any ambiguity or confusion regarding the fact that the trial court had rendered a final judgment when it granted the plaintiff's motion for summary judgment, and the fact that the defendant took a timely appeal, in which the plaintiff participated, added further support to this conclusion; moreover, the plaintiff provided no additional reason for the untimely filing with respect to appellate attorney's fees and, because the plaintiff failed to present the trial court with any viable reason for its delay in moving for appellate attorney's fees it therefore made a legally insufficient show- ing to support an excusable neglect finding. Argued March 7—officially released August 27, 2024

Pursuant to statute (§ 53a-155 (a)), a defendant is guilty of tampering with evidence if, ''believing that a criminal investigation conducted by a law enforcement agency . . . is . . . about to be instituted, [the defendant] . . . conceals . . . [a] thing with purpose to impair its . . . availability in such criminal investigation . . . .'' Convicted, following a jury trial, of the crimes of evading responsibility in the operation of a motor vehicle and tampering with physical evidence, the defendant appealed to this court. The defendant's conviction stemmed from an incident during which the defendant struck and killed the victim with the SUV he was driving, fled the scene, and thereafter left the SUV in a driveway. Held: 1. The defendant could not prevail on his claim that the evidence was insufficient to support his conviction of tampering with evidence: a. The evidence was sufficient to prove beyond a reasonable doubt that the defendant believed that a criminal investigation was about to be instituted when he fled the scene of the accident and abandoned the SUV he was driving in a driveway; the jury was permitted to consider circumstantial evidence presented by the state to make reasonable infer- ences regarding the defendant's state of mind, including evidence that the defendant saw the victim on the ground when he returned to the intersection before fleeing the scene, or that the defendant must have known from the significant damage to the SUV that the victim had been injured, and the jury was free to credit or discredit the defendant's statements in his recorded statement to the police. b. There was sufficient evidence to prove beyond a reasonable doubt that the defendant had concealed the SUV; a rational juror could consider and credit the context for the defendant's act of concealment, including evidence that the defendant likely knew he had seriously injured a pedes- trian, fled the scene, and needed to act quickly and temporarily abandon the vehicle, which had become disabled, and, in light of the defendant's exigent circumstances, a juror could conclude that he saw an opportunity to make the SUV less noticeable in a private driveway among several other vehicles. 2. This court did not reach the merits of the defendant's claim that the trial court's refusal to answer two questions submitted by the jury during its deliberations as to whether moving evidence equated to tampering or concealing evidence resulted in an unconstitutional enlargement of the charged crimes, as that claim was deemed waived pursuant to State v. Kitchens (299 Conn. 447): although the trial court did not inform the parties of the answer it intended to provide to the jury's questions, it invited counsel, outside the presence of the jury, to raise any issues before the answer was given, both counsel stated that they had nothing further to discuss, and counsel failed to object after the court responded to the jury's questions; accordingly, this court could not say that the defendant was deprived of a fair trial when the record indicated that the defense was provided a meaningful opportunity to propose an answer to the jury's questions and to object to the trial court's response to those questions, and, therefore, the defendant waived the right to chal- lenge that response on appeal. Argued May 15—officially released August 27, 2024

The plaintiff sought to recover damages from the defendant for personal injuries he sustained in connection with an alleged slip and fall as a result of untreated ice on premises owned, controlled, and maintained by the defendant. The trial court granted the defendant's motion for summary judgment on the basis of the ongoing storm doctrine, and the plaintiff appealed to this court. Held that the trial court properly granted the defendant's motion for summary judgment as it was undisputed that there was an ongoing storm at the time the plaintiff fell, the defendant satisfied its initial burden of establishing, prima facie, that it neither created the snow and ice condition nor did it have actual or constructive notice of the condition, and the plaintiff failed to satisfy his burden of raising a genuine issue of material fact with respect to whether the icy condition existed prior to the storm that was ongoing at the time of his fall. Argued April 25—officially released August 27, 2024

The plaintiff father appealed to this court from the judgment of the trial court awarding the defendant mother sole legal and physical custody of their two minor children. Held: 1. The plaintiff could not prevail on his claim that the trial court improperly awarded the defendant sole legal and physical custody of the children because it failed to consider the test set forth in the statute (§ 46b-56d) governing a parent's postjudgment relocation with a child: § 46b-56d was inapplicable to the facts of the case because it did not involve a postjudgment relocation, as the plaintiff filed an application seeking joint legal custody with a shared parenting plan, the defendant filed a cross complaint seeking sole legal custody, and, before a trial was held and a custody determination was made, the defendant relocated to South Carolina with the children, and, thus, the court was not required to perform the relocation analysis set forth in § 46b-56d; moreover, it was undisputed that the court applied the standard of the best interest of the child as set forth in the statute (§ 46b-56) governing the custody of minor children, the standard that governs a relocation issue that arises prior to the time a judgment is rendered awarding custody; furthermore, it was clear on the basis of the record and the court's factual findings, which were not challenged on appeal, that the court considered the impact of the children's relocation in its best interest analysis. 2. The plaintiff could not prevail on his claim that the trial court improperly issued orders that required him to be current with his child support obligation and to pay one half of the travel expenses for the minor children in order to receive parenting time with the children in Connecti- cut: this court concluded that the plaintiff's claim is an inaccurate recita- tion of the substance of the trial court's parenting time orders, as this In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the court. Moreover, 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. court construed the parenting time orders as providing that, if the plain- tiff is not current on child support, then he would bear the entire cost of the children's travel to Connecticut and, if he was current on child support, he and the defendant would share the costs equally, and the only circumstance in which the defendant was allowed to cancel a visit was if the plaintiff had not provided her with payment for his portion of the travel expenses, not if the plaintiff was not current on child support payments. 3. The plaintiff could not prevail on his claim that the trial court improperly relied on the testimony of the guardian ad litem in its analysis of the best interests of the minor children: the fact that the guardian ad litem was unable to observe a visit between the plaintiff and his children, despite clear efforts made to do so, did not render the guardian ad litem unable to issue recommendations to the court, nor did it make it improper for the court to rely on those recommendations; moreover, the guardian ad litem investigated the facts necessary to make recom- mendations to the court related to custody and parenting time and received updates from a third-party supervisor who had observed the plaintiff's visits with the children; furthermore, given that the guardian ad litem testified at a hearing and was subject to cross-examination by the parties, the court was able to consider the basis for the guardian ad litem's observations and recommendations and to afford them whatever weight it deemed appropriate. Argued May 16—officially released September 3, 2024

The defendant appealed to this court from the judgment of the trial court finding him in violation of his probation and revoking his probation. The defendant claimed that the trial court improperly denied his counsel's motion to withdraw her appearance and failed to conduct an adequate hearing into his competency to stand trial and, thus, improperly denied his motion for a competency evaluation pursuant to statute (§ 54- 56d). Held: 1. The trial court did not abuse its discretion in denying the motion to withdraw filed by the defendant's counsel: the court's ruling made clear that the timing of the motion was central to its determination because, although the court stated at a hearing more than one month before the scheduled violation of probation trial that it had no objection to counsel's proposed motion to withdraw, counsel indicated she would file that motion within one or two days of the hearing, and, at the time she ultimately filed the motion, it was only nine days before the trial date; moreover, the court properly concluded that exceptional circumstances did not exist to justify granting the motion so close to trial, as the record reflected that the defendant had the capacity to communicate with the court and that it was the defendant's choice to refuse to communicate with his counsel. 2. The trial court properly evaluated the defendant's motion for a competency evaluation and, thus, did not abuse its discretion in denying the motion: although the defendant's counsel disagreed with the defendant's deci- sions not to accept a plea offer and not to attend the trial, it was the defendant's right to do so and did not reasonably suggest that he lacked an understanding of the facts of the case or the nature of the proceeding and there was no indication that he could not assist with his defense; moreover, the court observed the defendant's demeanor and conversed with him over the course of a lengthy colloquy regarding the defendant's participation in the hearing, and it reasonably could have determined that his statements did not reflect an inability to grasp the nature of the proceeding or the facts related to the case. Argued March 4—officially released September 3, 2024

Convicted, on a plea of guilty, of the crime of strangulation in the second degree, the petitioner appealed to this court from the judgment of the trial court dismissing his petition for a writ of error coram nobis because it lacked subject matter jurisdiction. In his petition, the petitioner sought permission to withdraw his guilty plea, claiming, inter alia, that his trial counsel had rendered ineffective assistance. Held that the trial court properly determined that it lacked subject matter jurisdiction over the petition for a writ of error coram nobis; because the petitioner could have raised his ineffective assistance of counsel claim in a petition for a writ of habeas corpus during his period of probation, he failed to avail himself of an alternative legal remedy available to him; moreover, this court declined the petitioner's request that this court overrule State v. Stephenson (154 Conn. App. 587), which clearly held that the prior availability of a writ of habeas corpus defeats the jurisdiction of the trial court to entertain a petition for a writ of error coram nobis, the petitioner having failed to file a motion requesting that this court hear his appeal en banc. Argued May 29—officially released September 3, 2024

The plaintiff sought to recover damages from the defendants, the city of Hartford and D, a police officer employed by the city, in connection with injuries he sustained when a motorcycle he was driving collided with D's police vehicle. At the time of the accident, the plaintiff was driving through an intersection with a green light, and D, who was responding to an emergency call, accelerated his vehicle through the same intersection with a red light. D activated the lights and sirens on his vehicle pursuant to statute (§ 14-283) only as he entered the intersection, not before. The plaintiff alleged that D's negligence had caused his injuries and that the city was required to indemnify D pursuant to the municipal indemnification statute (§ 7-465). After a trial, the jury returned a verdict for the plaintiff against both defendants, and the trial court rendered judgment in accordance with the verdict. On the defendants' appeal to this court, held: 1. The defendants could not prevail on their claim that it was plain error for the trial court to instruct the jury on common-law principles of negligence regarding the operation of a motor vehicle and to fail to instruct the jury that D, as an operator of an emergency vehicle, was permitted to disregard driving statutes, ordinances and regulations: recent decisions by our Supreme Court, including Adesokan v. Bloom- field (347 Conn. 416) and Daley v. Kashmanian (344 Conn. 464), sup- ported a claim that the law is unsettled with respect to whether common- law negligence principles apply in the context of § 14-283; moreover, the instructions to the jury regarding negligence in this case did not amount to an error so obvious on its face that it was undebatable, as the court's instructions adequately apprised the jury on the applicable exception to the ordinary rules of driving triggered on satisfaction of the requirements of § 14-283. 2. The defendants could not prevail on their claim that the trial court commit- ted plain error by failing to instruct the jury that § 14-283 (e) imposed a legal duty on the plaintiff to slow down, pull over and/or stop prior to entering an intersection when an emergency vehicle with its lights and sirens on approached the same intersection; the court's instruction to the jury on contributory negligence substantially complied with the language of § 14-283 (e) and adequately apprised the jury of the plaintiff's duty under § 14-283 (e), and the omission of a specific instruction was not so obvious an error as to constitute plain error. Argued May 16—officially released September 3, 2024

The plaintiff sought to foreclose a mortgage on certain real property owned by the defendant R Co. The defendant H Co. was a junior lienholder. The trial court rendered a judgment of strict foreclosure. Before the judgment of strict foreclosure was recorded in the trial court file and notice issued to counsel, H Co. filed a motion for judgment of foreclosure by sale, on which the trial court never ruled. Thereafter, the law days passed, and the plaintiff recorded the passing of title. More than two years later, H Co. reclaimed the motion for judgment of foreclosure by sale, which was eventually marked off short calendar. H Co. also filed a motion to open the judgment, which the trial court denied. On H Co.'s appeal to this court, held: 1. H Co. could not prevail on its claim that the trial court, in denying its motion to open, improperly concluded that it was not entitled to relief pursuant to statute (§ 49-15) because absolute title to the property had vested in the plaintiff: no appellate stay was in effect when the law days passed, such that the law days were legally effective, and, without redemption, absolute title to the property vested in the plaintiff, thereby precluding the defendant from obtaining relief pursuant to § 49-15; more- over, the filing of the motion for judgment of foreclosure by sale did not operate to extend the appellate stay vis-à-vis the judgment of strict foreclosure, which expired well before the law days passed, as the motion did not satisfy the requirements of the relevant rule of practice (§ 63-1 (c) (1)). 2. H Co. could not prevail on its claim that the trial court, in denying its motion to open, failed to consider that, even if absolute title to the property had vested in the plaintiff, the court had inherent, continuing jurisdiction to open the judgment as a result of the plaintiff's failure to comply with the court's Uniform Foreclosure Standing Orders; although H Co.'s claim for equitable relief in the motion to open was colorable, H Co. failed to demonstrate the existence of rare and exceptional circum- stances warranting the extraordinary equitable relief that it sought in the motion to open. Argued April 16—officially released September 10, 2024

The petitioner sought a writ of habeas corpus, claiming that he was actually innocent of the crimes of which he had been convicted. The petitioner had planned to steal property from the victim with two other individuals, M and T, although T ultimately did not participate in the robbery. During the commission of the robbery by the petitioner and M, M shot and killed the victim. After a jury trial, the petitioner was convicted of felony murder, robbery in the first degree, and conspiracy to commit robbery in the first degree. In a subsequent trial, M was found not guilty by reason of mental disease or defect of the crimes with which he was charged stemming from the robbery. In his habeas petition, the petitioner claimed that, as a matter of law, he could not have conspired with M or formed an agreement with him to participate in a robbery of the victim because M lacked the mental capacity to engage in the charged crimes. The habeas court denied the petition for a writ of habeas corpus and subsequently denied the petition for certification to appeal. On the petitioner's appeal to this court, held: 1. The habeas court abused its discretion in denying the petition for certifica- tion to appeal; the petitioner's actual innocence claim involved issues that were debatable among jurists of reason, that could have been resolved by a court in a different manner, and that raised a question that was adequate to deserve encouragement to proceed further. 2. Even assuming, as this court did, that the fact of M's incapacity was newly discovered evidence, which was essential for the petitioner's claim regarding actual innocence, the petitioner could not prevail on his claim that the habeas court improperly concluded that he failed to prove that he was actually innocent of the crimes of which he was convicted: a. The petitioner failed to meet his burden of proving his actual innocence with regard to his conviction of conspiracy to commit robbery in the first degree: although there was no question that M was unable to form any intent to conspire with the petitioner to rob the victim and that, therefore, no crime of conspiracy could have been committed with M, the aggregate evidence at the petitioner's criminal trial and his habeas trial, all of which was required to be considered by the habeas court, would not prevent a reasonable jury from finding, beyond a reasonable doubt, that the petitioner was guilty of conspiring with T to commit the robbery, and, as such, even if evidence of M's incapacity had been presented at the petitioner's criminal trial, there was still sufficient evi- dence from which the jury could have found the petitioner guilty of conspiracy to commit robbery. b. The petitioner could not prevail on his claim that he was actually innocent of robbery in the first degree and felony murder because M's mental state prevented him from forming any intent to participate in the robbery, which was the predicate felony for the felony murder charge: because the plain language of the statute governing first degree robbery (§ 53a-134 (a) (2)) provides that an individual may be guilty of first degree robbery if he or another participant in the crime uses or threatens the use of a deadly weapon, there was sufficient evidence for the jury to find that, during the commission of the robbery, the petitioner acted in concert with M; moreover, because the petitioner never disputed that M shot and killed the victim, the petitioner's criminal liability as an accessory for acts perpetrated by M was inherent in § 53a-134 (a) (2), and the fact that M lacked the ability to form any criminal intent due to his mental disease or defect did not excuse the petitioner from liability; furthermore, the felony murder statute (§ 53a-54c) does not require proof of intent and, because the petitioner was criminally liable as a participant in the robbery and the homicide was committed by the other participant, M, in the execution of that robbery, he was also guilty of felony murder pursuant to § 53a-54c. Argued February 7—officially released September 10, 2024

The plaintiff, O, sought to recover damages from the defendant, L, arising out of a motor vehicle accident. At the time of the accident, O was insured by N Co., and N Co. paid to repair the damage to O's vehicle that resulted from the accident. In O's action against L, O sought damages for, inter alia, the diminished value of his vehicle. L moved to implead N Co. as a third-party defendant and filed a third-party complaint against N Co., alleging that his insurer had tendered his full policy limit to N Co. O filed an amended complaint that purported to assert apportion- ment claims against N Co. The court granted N Co.'s motion for a judgment of nonsuit against L. Less than four months before jury selec- tion was scheduled, O requested leave to amend his complaint, which the court denied. Subsequently, the court granted N Co.'s motion to strike counts of the operative complaint, including a count sounding in unjust enrichment. On O's appeal to this court, held: 1. O could not prevail on his claim that the trial court improperly denied his request for leave to amend his complaint, O having failed to demon- strate that the court abused its discretion in denying his request: the court's denial did not prevent O from curing alleged pleading deficiencies with respect to the counts initially pleaded because O had the opportu- nity to cure such deficiencies when he filed a third amended complaint two months later; moreover, although O could not properly assert the additional causes of action in the subsequent amended complaints he filed, the court found that he had had an opportunity to assert those causes of action in prior requests to amend the complaint and failed to do so; furthermore, the court also found that permitting the proposed amendment would considerably delay the proceedings in light of the upcoming trial date, despite the fact that the parties were still in the pleading stage of litigation. 2. O could not prevail on his claim that the trial court improperly dismissed his unjust enrichment count against N Co. for lack of subject matter jurisdiction: a. O's unjust enrichment claim against N Co. was not ripe for adjudication as it was contingent on whether and to what extent O could recover against L as well as whether L would be able to satisfy the hypothetical judgment; moreover, because O's claim against L has yet to be adjudi- cated and liability, if any, for the alleged loss determined, and there was no allegation that L was insolvent, it was impossible to ascertain whether O would sustain any compensatory injury as a result of N Co.'s alleged misconduct. b. The trial court properly decided the issue of subject matter jurisdiction on the basis of the operative complaint alone and did not improperly fail to consider evidence O presented regarding ripeness: O's proffered exhibits were copies of emails unaccompanied by any affidavit or other undisputed evidence as required by the applicable rule of practice (§ 10- 31); moreover, even considering O's exhibits, they were not sufficient to render his claim against N Co. ripe for adjudication, as O's claim against N Co. was wholly contingent on O obtaining a judgment against L and L being unable to satisfy the hypothetical judgment. Argued May 29—officially released September 10, 2024