Volume 231 — Connecticut Appellate Reports

Convicted of assault of public safety personnel, the defendant appealed to this court. The defendant claimed that the evidence was insufficient to support a finding beyond a reasonable doubt that, when he assaulted K, a judicial marshal, K was acting in the performance of his official duties. Held: The trial court reasonably concluded that the evidence and the reasonable inferences drawn therefrom demonstrated beyond a reasonable doubt that K was acting in the performance of his duties when the defendant assaulted him because K and another judicial marshal testified that they had accompa- nied the defendant from the courthouse, where he had been arraigned, to a hospital, that he guarded the defendant at the hospital, and that K informed the defendant and hospital staff that the defendant was not permitted to eat, and that he did so pursuant to a judicial directive prohibiting the con- sumption of food by inmates while at a hospital, which prompted the defen- dant to spit in K's right eye. The trial court reasonably could have found that K denied the defendant access to food because he had a good faith, albeit erroneous, belief that a judicial directive prohibited the consumption of food by inmates while at a hospital, and this court declined to conclude that K had testified untruthfully, acted in bad faith or was otherwise engaged in a personal frolic, as such a conclusion would substitute its own judgment for that of the trier of fact, which evaluated the evidence and the witnesses' credibility firsthand. Argued November 14, 2024—officially released March 4, 2025

The plaintiff, a dentist, appealed from the judgment of the trial court dismiss- ing his administrative appeal from the decision of the defendant finding that his failure to comply with sanctions imposed by a prior decision of the defendant rendered him unfit or incompetent during the period of noncompli- ance and ordering further disciplinary sanctions with respect to his dental license. The plaintiff claimed, inter alia, that the defendant lacked jurisdiction to suspend his dental license because it failed to provide him with sufficient notice of the facts warranting suspension prior to initiating summary suspen- sion proceedings. Held: The plaintiff's failure to file an administrative appeal to the Superior Court within forty-five days of the defendant's summary suspension of his dental license as required by the statute (§ 4-183 (c)) governing such appeals, deprived this court of subject matter jurisdiction to consider the merits of his claim. The trial court did not abuse its discretion in denying the plaintiff's motion for remand to introduce additional evidence before the defendant, as the additional evidence the plaintiff sought to present on remand was not suffi- ciently material to satisfy even the threshold requirements pursuant to § 4- 183 (h). The defendant's determination, as the governing medical board, that the plaintiff was unfit or incompetent during a period of noncompliance with sanctions that had been previously issued was reasonable and supported by sufficient evidence, and the defendant, in ordering additional sanctions against the plaintiff based on that determination, was acting under its express authority pursuant to statute (§ 20-114 (a) (2)). Argued November 20, 2024—officially released March 11, 2025

The petitioner, who had been convicted of possession of narcotics with intent to sell, appealed, on the granting of certification, from the habeas court's judgment dismissing his petition for a writ of habeas corpus. The petitioner claimed that the court improperly concluded that it lacked subject matter jurisdiction because he was not in the custody of the respondent, the Commissioner of Correction, when he filed his petition one month after completing the conditional discharge portion of his sentence while in federal custody on unrelated charges. Held: The habeas court properly dismissed the petition for lack of subject matter jurisdiction, as the petitioner's period of conditional discharge had com- menced by operation of law pursuant to statute (§ 53a-31 (a)) when he completed the incarceration portion of his sentence while in federal custody, and, despite his claim that the period of conditional discharge never com- menced pursuant to § 53a-31 (a) because he remained continuously in either federal or state custody since his arrest on the narcotics charge, this court concluded that ''imprisonment'' in § 53a-31 (a) unambiguously referred only to state imprisonment and did not encompass federal imprisonment. Argued September 12, 2024—officially released March 11, 2025

The petitioner, who had been convicted of felony murder, appealed after the denial of his petition for certification to appeal from the habeas court's judgment dismissing his petition for a writ of habeas corpus. The petitioner claimed that the court erred in raising the issue of whether good cause existed for trial pursuant to statute (§ 52-470 (b) (1)) before the pleadings were closed. Held: The habeas court abused its discretion in denying the petitioner's petition for certification to appeal to this court, as the issue of whether the habeas court properly considered the issue of good cause under § 52-470 (b) (1) before the pleadings were closed was debatable among jurists of reason, a court could resolve the issue in a different manner and the question was adequate to deserve encouragement to proceed further. The habeas court violated the petitioner's due process right to a fair trial when it considered whether good cause existed for a trial under § 52-470 (b) (1) prior to the close of the pleadings and while the petitioner still had an opportunity to amend his habeas petition, and, accordingly, the judgment was reversed and the case was remanded for further proceedings. Argued November 13, 2024—officially released March 11, 2025

The petitioner, who had been convicted, on a conditional plea of nolo contendere, of the crimes of sexual assault in the first degree and home invasion, appealed after the habeas court denied his petition for certification to appeal from the court's judgment denying his petition for a writ of habeas corpus. The petitioner claimed, inter alia, that the habeas court improperly concluded that the sentencing court did not violate his right to due process by imposing a lengthier sentence than it offered him previously because he had pursued and failed to prevail on a motion to suppress certain statements he made to the police. Held: The habeas court did not abuse its discretion in denying the petitioner certification to appeal, the court having properly determined that he was not denied his right to due process as a result of the imposition of the lengthier sentence, and, given clear precedent on that issue, this court was not persuaded that the issue was debatable among jurists of reason, that it reasonably could have been resolved differently or that it raised questions that deserved further appellate scrutiny. Argued January 14—officially released March 11, 2025

The plaintiff appealed from the judgment of the trial court dismissing her appeal from the decision of the defendant, which upheld the decision of the defendant's zoning enforcement officer to approve an application for a permit by the plaintiff's neighbors to build a retaining wall along the plaintiff's shared property line. The plaintiff claimed that the court erred in determining that the proposed retaining wall was not a structure within the meaning of applicable zoning regulations. Held: Because the permit approved by the defendant had expired and the plaintiff failed to demonstrate that her claim was reviewable under the capable of repetition, yet evading review exception to the mootness doctrine, this court dismissed the plaintiff's appeal as moot and vacated the judgment of the trial court and the decision of the defendant. Argued January 6—officially released March 18, 2025

The defendant appealed from the trial court's judgment granting the plain- tiff's postdissolution motion for contempt with respect to the defendant's failure to pay certain child health care expenses. The defendant claimed, inter alia, that the court abused its discretion in finding him in contempt. Held: The trial court abused its discretion in finding the defendant in contempt because, in light of the defendant's payment of all health care expenses specified in the plaintiff's motion for contempt prior to the hearing on the motion, the defendant's conduct could not reasonably be viewed as wilful disobedience of a court order. This court concluded that, although the defendant's incarceration following the trial court's finding of contempt was improper in light of its conclusion that the trial court abused its discretion in finding him in contempt, the trial court's order that the defendant be taken into custody until the alleged arrearage was purged did not constitute an improper criminal sanction, as by its plain terms the sanction was conditional in nature and allowed the defendant to end the sentence and discharge himself by paying the sum of the arrearage. Argued November 20, 2024—officially released March 18, 2025

The plaintiff, whose marriage to the defendant previously had been dis- solved, appealed from the judgment of the trial court denying her postdissolu- tion motion for an order requiring the defendant to pay the balance of attorney's fees awarded as part of the judgment of dissolution. The plaintiff claimed, inter alia, that the court improperly denied her motion on the ground that she had failed to ensure that a new, court-ordered fee affidavit was provided to the court. Held: The trial court neither misapplied the law nor abused its discretion in denying the plaintiff's motion for order, as the plaintiff, who did not appeal from the court's order to provide a new fee affidavit, had an obligation to comply with the court's valid and unambiguous order requiring a new fee affidavit in support of her motion for order. Argued November 21, 2024—officially released March 18, 2025

The defendant C, a beneficiary of a trust that consisted primarily of a certain piece of real property and that terminated upon the death of his mother, the decedent, appealed from the trial court's judgment for the plaintiff, individually and in her fiduciary capacities, on the complaint in part and on C's counterclaim. C claimed, inter alia, that the court improperly deter- mined that the trust instrument did not require the sale of the trust property within one year of the decedent's death. Held: The trial court properly interpreted the term ''liquidate'' in the trust instru- ment to include actions other than a sale of the trust property, as contempo- rary dictionary definitions of ''liquidate'' and the discretion afforded to the plaintiff by the trust instrument and the relevant statute (§ 45a-235) sup- ported the conclusion that the decedent intended to permit the trustees to distribute the interests of the beneficiaries in an alternative manner to a sale of the trust property. The trial court properly concluded that the trust instrument did not require the plaintiff to sell the trust property within one year of the decedent's death because the discretion afforded to the trustees in the trust instrument demonstrated that the decedent contemplated the possibility that the trust- ees could distribute the property outside of the one year timeline prescribed in the trust instrument. The trial court properly rendered judgment for the plaintiff on the breach of fiduciary duty claim in C's counterclaim because, although it found that the plaintiff had engaged in self-dealing and had failed to establish by clear and convincing evidence that such self-dealing was otherwise fair to C, the court also found that the plaintiff was acting in good faith and was therefore shielded from liability pursuant to a provision in the trust instrument. This court declined to review C's claim that the trial court improperly refused to impute knowledge of the terms of the trust instrument to the plaintiff because the claim was inadequately briefed. This court found no error in the trial court's adoption of a procedure whereby it would determine in a future proceeding the amount of reasonable expenses The listing of judges reflects their seniority status on this court as of the date of oral argument. incurred by the plaintiff in prosecuting the action and defending against the failed counterclaim. Argued November 18, 2024—officially released March 18, 2025

The defendant appealed from the trial court's judgment granting the plain- tiff's motion for summary judgment in its action to recover from the defen- dant for his breach of an agreement to guarantee payment of a promissory note executed by a third-party borrower. The defendant claimed that the trial court erred in rejecting his statute of limitations special defense. Held: The trial court properly granted the plaintiff's motion for summary judgment, as the undisputed evidence established the defendant's breach of the guar- anty agreement and clearly demonstrated that the defendant had acknowl- edged the debt prior to the expiration of the limitation period, thereby resetting the limitation period. Argued September 17, 2024—officially released March 18, 2025

The defendant appealed from the trial court's judgment rendered in favor of the substitute plaintiff, the executor of the plaintiff's estate, on her claim of adverse possession with respect to a portion of the defendant's property. The defendant claimed that the trial court clearly erred in finding that the plaintiff had adversely possessed the disputed area under a claim of right. Held: Although the trial court's finding that the plaintiff had installed a new fence at the edge of the disputed area shortly after 1985 was clearly erroneous, the error was harmless because the court made only a single reference in its opinion to the fence being erected in 1985, it in no way suggested that such fact was central to its analysis or impacted its findings as to other facts, and the other evidence in the record demonstrated that the plaintiff used the disputed area as his own without permission from the record owner continuously from 1985 to 2018. The trial court's finding that the plaintiff possessed the disputed area under a claim of right was not clearly erroneous because the evidence was suffi- cient to support the finding, and it was not the role of this court to second- guess the trial court's credibility determinations or to reweigh conflicting evi- dence. Argued January 9—officially released March 25, 2025

Convicted, following a conditional plea of nolo contendere, of the crime of criminal possession of a firearm, the defendant appealed, claiming that the trial court had improperly denied his motion to suppress evidence of a shotgun the police seized during a search of his home. K, who had accused the defendant of harassing and threatening her, had taken a photograph of a shotgun in the defendant's home office when she was there to clean his house fourteen months before the search warrant was executed. The defendant contended that the lapse of time between when the photograph was taken and the date that the search warrant was issued rendered probable cause lacking to believe that the materials identified in the search warrant would be in his possession at the time the warrant was issued. Held: The trial court properly denied the defendant's motion to suppress, as the passage of fourteen months did not render the information in the search warrant affidavit stale, and, on the basis of that information, it was reason- able for the judge who issued the warrant to believe that the items sought to be seized would be found at the time the warrant was executed. Argued October 10, 2024—officially released March 25, 2025

The plaintiff appealed from the judgment of the trial court, rendered follow- ing its granting of the defendants' motions to dismiss her breach of contract action for lack of personal jurisdiction due to, inter alia, insufficient process. The defendants J and M sold certain real property in Fairfield to the plaintiff, and the defendants Z and D were attorneys who represented the parties in the real estate transaction. In their motion to dismiss, J and M claimed, inter alia, that M was served in hand at their home, but that no copy was left for J, nor was he served in hand. Z and D claimed in separate motions that the plaintiff failed to effectuate proper service because the state marshal attempted to serve them by leaving a copy of the summons and complaint at their respective law firms, rather than serving them through in person or abode service, and they had not authorized anyone at their law offices to accept service on their behalf. On appeal, the plaintiff claimed that the court erred in, inter alia, concluding that it lacked personal jurisdiction over J and M on the basis of insufficiency of process and insufficient service. Held: The trial court erred in concluding that the plaintiff's designation of ''J and M'' on the summons form as one defendant, rather than listing J and M as separate individuals, deprived the court of personal jurisdiction over M and J pursuant to statute (§ 52-45a), as the designation of ''J and M'' was a circumstantial defect that could not reasonably have resulted in any confu- sion about their identities, J and M did not dispute that they received actual notice of the action, and they did not claim that they suffered any prejudice from the plaintiff's failure to list them separately. The trial court erred in dismissing the action as to J for insufficient service of process prior to holding an evidentiary hearing, as there was a factual dispute over whether the state marshal left a copy of the summons and complaint for J, and the court was not permitted to resolve that issue based solely on the parties' affidavits. The trial court erred in concluding that it lacked personal jurisdiction over M, as the court found that the state marshal left one copy of the summons and complaint in the hands of M, thereby serving her in a manner allowed by statute (§ 52-57), and counsel for M conceded at oral argument before this court that M was properly served. The trial court properly dismissed the action as to Z and D for lack of personal jurisdiction because the plaintiff failed to properly effectuate ser- vice pursuant to § 52-57 (a), and the record failed to support the plaintiff's claim that Z and D evaded service of process. Argued February 3—officially released March 25, 2025

The defendant appealed from the trial court's judgment for the plaintiff on its counts alleging conversion and statutory theft. He claimed, inter alia, that the court erred in concluding that he had committed conversion and statutory theft. Held: The trial court did not err in finding that the defendant committed conversion and statutory theft, as ample evidence in the record, unchallenged by the defendant, supported the court's conclusion that the defendant engaged in the unauthorized withdrawal of the plaintiff's funds and that he intended to deprive the plaintiff of its property. This court declined to review the defendant's unpreserved claim that the trial court abused its discretion by failing to address various discovery disputes arising from the plaintiff's alleged noncompliance with the defen- dant's discovery requests. Argued October 17, 2024—officially released April 1, 2025

The defendant property owner appealed from the judgment of the trial court denying its motion to open and vacate the judgment of foreclosure. The defendant claimed, inter alia, that the court erred in denying its motion to open because the plaintiff failed to comply with the notice requirements pursuant to the rule of practice (§ 17-22). Held: There was no merit to the defendant's claim that the trial court abused its discretion in denying the motion to open because the plaintiff lacked stand- ing, as the plaintiff had been the holder of the note at the time of the commencement of the foreclosure action. The trial court acted within its discretion in denying the defendant's motion to open the foreclosure judgment with respect to the issue of whether the amount of the debt had been properly proven, as the defendant failed to challenge the amount of the debt in an appeal from the foreclosure judgment and the issue of the amount of the debt attacked the merits of the underlying foreclosure judgment. The trial court abused its discretion in denying the motion to open because the plaintiff failed to comply with the notice requirements of Practice Book § 17-22, having failed to provide proper notice of the foreclosure judgment to two defendants. Argued January 6—officially released April 1, 2025

Convicted, after a trial to the court, of the crime of health insurance fraud as a result of billing requests he submitted to the Department of Social Services for face-to-face counseling sessions he claimed to have had with clients on 114 separate occasions in their homes in Connecticut while he was in Texas, the defendant appealed. In sentencing the defendant, the court determined that the value of the funds he wrongfully obtained had some value that could not be satisfactorily ascertained and thus set that value at $50 or less pursuant to statute (§ 53a-121 (a) (3)). The court further determined that the defendant's conviction thus constituted a crime of the same grade or degree as larceny in the sixth degree, a class C misdemeanor, and imposed a suspended term of three months of incarceration and eighteen months of probation with special conditions. The court thereafter granted in part the state's motion to correct an illegal sentence and reduced the defendant's probationary term to one year, the maximum period of probation for a conviction of a class C misdemeanor pursuant to statute (§ 53a-29 (d) (4)). The defendant claimed, inter alia, that his rights to due process were violated because the court was required to acquit him on the health insurance fraud charge after having found him not guilty of larceny in the first degree by defrauding a public community in violation of statute ((Rev. to 2017) § 53a-122 (a) (4)). Held: The trial court did not violate the constitutional prohibition against double jeopardy when it corrected the defendant's sentence and resentenced him to a lesser term of probation. Although the trial court found that the state had failed to prove that the value of the funds the defendant wrongfully obtained exceeded the $2000 necessary to convict him on the larceny charge, the court did not, as the defendant claimed, reverse its decision on the value element of that charge in ruling on the motion to correct an illegal sentence but, rather, reiterated its finding that the value of the funds could not be satisfactorily ascertained and therefore set that value at $50 or less pursuant to § 53a-121 (a) (3). The defendant's claim that the trial court was required to find him not guilty on the health insurance fraud charge because it had found him not guilty on the larceny charge was unavailing, as the court did not find, as the defendant contended, that no value for the wrongfully obtained property had been proven under the larceny charge but, rather, expressly found that some value had been proven. The evidence was sufficient to sustain the defendant's conviction of health insurance fraud, as the cumulative effect of all the evidence supported the trial court's conclusions that the defendant had submitted bills to and received payments from the department for face-to-face counseling services that he could not have provided while he was in Texas and that the proven value of the unearned portion of those payments was properly determined to have a value of $50 or less. Argued September 6, 2024—officially released April 8, 2025

The defendant appealed from the judgment of the trial court denying her motion to open and vacate a default judgment rendered for the plaintiffs in their action for, inter alia, breach of contract. The defendant claimed that the court abused its discretion in denying the motion. Held: The trial court did not abuse its discretion in denying the defendant's motion to open and vacate the default judgment, as the court concluded that the defendant failed to satisfy her burden under either of the prongs set forth in the governing statute (§ 52-212 (a)) and rule of practice (§ 17-43), namely, that a good defense existed at the time the adverse judgment was rendered and that the defense was not at that time raised by reason of mistake, accident or other reasonable cause, and the defendant provided no good basis to disturb that determination. Argued November 18, 2024—officially released April 8, 2025