Volume 333 — Connecticut Reports

The plaintiff brought an action in Superior Court, seeking to recover damages from the defendants under state law. The plaintiff, who had previously filed a bankruptcy petition in the United States Bankruptcy Court, asserted claims of vexatious litigation and violation of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) in connection with the defendants' actions during the bankruptcy proceeding. The plaintiff claimed, inter alia, that, after he filed his bankruptcy petition, one of the defendants initiated an adversary proceeding in the Bank- ruptcy Court on the basis of certain alleged improprieties that the plain- tiff had committed in connection with the bankruptcy proceeding. After the plaintiff presented evidence to contradict the allegations against him, the Bankruptcy Court dismissed the adversary proceeding. In the present action, the trial court dismissed the plaintiff's state law vexatious litigation and CUTPA claims, concluding that it lacked subject matter jurisdiction over those claims because they were preempted by federal bankruptcy law. The trial court rendered judgment dismissing the plain- tiff's action, from which the plaintiff appealed. Held that the trial court properly dismissed the plaintiff's state law vexatious litigation and CUTPA claims for lack of subject matter jurisdiction, those claims having been preempted by federal Bankruptcy Code provisions relating to sanc- tions for abuse of process: although there was no provision in the Bankruptcy Code that explicitly precluded the plaintiff's vexatious litiga- tion and CUTPA claims and, thus, those claims were not expressly preempted by the Bankruptcy Code, the plaintiff's claims were implicitly preempted, as Congress enacted a comprehensive bankruptcy scheme, inclusive of provisions for sanctions and remedies for abuse of the bankruptcy process, so as to occupy the entire field of penalties and sanctions, leaving no room for state law to supplement federal bank- ruptcy law, and the federal interest in uniformity was so dominant that federal law was assumed to preclude enforcement of state laws that threaten the uniformity and finality of the bankruptcy process for both debtors and creditors; moreover, the plaintiff could not prevail on his claim that, because a successful cause of action for vexatious litigation or unfair trade practices under state law affords relief that potentially is more extensive than that contemplated under the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure, such a cause of action falls outside of the field that Congress intended to occupy, as the differ- ence in remedies did not warrant an inference that Congress intended to permit independent abuse of process actions outside the bankruptcy process; furthermore, although compliance with both the Bankruptcy Code and state law would not be impossible, permitting parties to bring abuse of process actions in state court would hinder Congress' objective of uniformly defining the scope and availability of remedies for abuse of the bankruptcy process. Argued March 29—officially released September 3, 2019

Pursuant to statute (§ 28-13 [a]), ''[n]either the state nor any political subdivi- sion of the state . . . complying with or attempting to comply with [civil preparedness statutes] or any order or regulation promulgated pursuant to [those statutes] . . . shall be liable for the death of or injury to persons . . . as a result of any such activity.'' The plaintiff, both individually and as administratrix of the estate of the decedent, T, sought to recover damages from, among others, the defen- dant city alleging, inter alia, that the city was negligent in responding to a medical emergency involving T. Specifically, the plaintiff alleged that the city had improperly failed to dispatch a fire truck with an emergency medical technician in response to T's emergency call and had impeded prompt arrival of an ambulance by allowing snow to remain in certain public roadways following a statewide winter snowstorm. Before the storm began, the city's mayor declared a state of emergency and activated the local emergency operations center. Shortly thereafter, the governor declared a statewide civil preparedness emergency pursu- ant to statute (§ 28-9). Snowfall during the storm was so significant that both city and state roads were temporarily closed to the public, and plowing and ambulance service were temporarily suspended. After the storm, clearing roads proved unusually difficult, and the city requested that the state summon the assistance of the National Guard, which arrived the following day. Two days after the storm concluded, only certain roads were open to emergency vehicles and several hundred secondary roads, including the road on which T lived, remained impass- able. On that day, T called 911 complaining of severe breathing difficulty. An ambulance arrived approximately twenty minutes later and subse- quently transported T to the hospital, where he was pronounced dead. Three days after the storm concluded, at least one lane was open on each of the city's roads. The city's emergency operations center maintained command over storm response and snow removal for approximately five days after the storm passed and remained staffed for approximately three days thereafter. More than one month later, the governor issued an executive order ending the statewide civil preparedness emergency. The plaintiff subsequently commenced the present action, and the city filed a motion for summary judgment, claiming immunity pursuant to § 28-13. The trial court denied that motion, concluding that there was a genuine issue of material fact as to whether the city was still actively experiencing a civil preparedness emergency at the time of the city's response to T's emergency call, and the plaintiff appealed. Held: 1. This court had subject matter jurisdiction over the city's appeal, as the trial court's denial of the city's motion for summary judgment constituted a final judgment because the city's motion was based on a colorable claim that § 28-13 (a) affords the city sovereign immunity from actions taken in response to declared emergencies; although the plain text of § 28-13 (a) does not clearly define the nature of the immunity afforded under that statute, an examination of relevant legislative history indi- cated that the legislature had intended that statute to extend the state's own sovereign immunity, including both its immunity from suit and liability, to political subdivisions such as the city. 2. The trial court improperly denied the city's motion for summary judgment on the basis of the court's conclusion that a genuine issue of material fact existed as to whether the city was still actively experiencing a civil preparedness emergency at the time of T's death, the trial court having incorrectly concluded that immunity under § 28-13 applies only during a civil preparedness emergency; the city's command and control of storm response and snow removal, including decisions regarding snow plowing and the circumstances in which a fire truck should respond to an emergency call, unambiguously fell within the statutory (§ 28-1 [4]) definition of civil preparedness, which explicitly includes measures taken in preparation of, during, and following major disasters and emer- gencies, and, therefore, evidence relating to whether the civil prepared- ness emergency had ended at the time of the city's response to T's emergency medical call did nothing to contradict the ample evidence in the record that the city was still engaged in activities afforded immu- nity by § 28-13 at that time. Argued October 18, 2018—officially released September 3, 2019

Pursuant to the waiver rule, when a trial court denies a defendant's motion for a directed verdict at the close of the plaintiff's case-in-chief, the defendant, by opting to introduce evidence in his or her own behalf, waives the right to appeal from the trial court's ruling on the motion for a directed verdict. The plaintiff, whose house had been damaged in a fire, sought to recover damages from the defendant insurance company for breach of a home- owner's insurance contract and negligent infliction of emotional distress in connection with the defendant's denial of the plaintiff's claim for insurance coverage. The plaintiff alleged that the defendant refused to pay his claim for insurance coverage on the ground that its investigation revealed that the plaintiff intentionally had caused the fire and had concealed or misrepresented the facts and circumstances concerning the fire to the defendant's investigators. The plaintiff further alleged that the defendant was negligent in failing to conduct a reasonable investigation into the cause of the fire. After the plaintiff rested his case, the defendant moved for a directed verdict with respect to the emotional distress claim, claiming that the plaintiff had not presented sufficient evidence to establish negligence in the defendant's investigation into the cause of the fire. The trial court reserved decision on the defendant's motion pursuant to the applicable rule of practice (Practice Book § 16- 37), and the defendant thereafter presented its own case. Subsequently, the jury returned a verdict for the plaintiff on both counts, and the defendant moved for judgment notwithstanding the verdict, renewing its claim of evidentiary insufficiency and arguing that the court must decide its motion for judgment notwithstanding the verdict solely on the basis of the evidence submitted during the plaintiff's case-in-chief. The trial court disagreed and, relying primarily on evidence adduced during the defendant's case, concluded that the plaintiff had presented sufficient evidence to support his theory of negligent infliction of emo- tional distress. Accordingly, the trial court denied the motion for judg- ment notwithstanding the verdict and rendered judgment for the plaintiff in accordance with the verdict, from which the defendant appealed to the Appellate Court, which affirmed the judgment of the trial court. On the granting of certification, the defendant appealed to this court. Held: 1. The record was adequate to review the defendant's claim that the waiver rule is inapplicable in civil cases, such as the present one, in which the trial court reserves decision on a motion for a directed verdict, that claim having been distinctly raised before the trial court: Practice Book § 16-37 treats the trial court's election to reserve decision on a motion for a directed verdict as the equivalent of a denial of that motion for purposes of subsequent proceedings and allows a defendant, in situa- tions in which the jury returns a verdict for the plaintiff after the trial court reserved decision on such a motion, to move to have the verdict set aside and to have judgment rendered in accordance with the defendant's motion for a directed verdict; accordingly, § 16-37 contemplates that the issues raised in a motion for a directed verdict are preserved by and incorporated into the postverdict motion to set aside the verdict, and, in the present case, the defendant, in its motion for judgment notwithstanding the verdict, renewed its claim of evidentiary insuffi- ciency contained in its previously filed motion for a directed verdict and specifically argued in its memorandum in support of its motion for judgment notwithstanding the verdict that the trial court was required to decide the motion solely on the basis of the evidence elicited during the plaintiff's case-in-chief. 2. The waiver rule applies to civil cases in which the trial court has reserved decision on, rather than denied, a motion for a directed verdict pursuant to Practice Book § 16-37, the defendant, having presented its own case after the trial court reserved decision on its motion for a directed verdict, waived it right to challenge the sufficiency of the evidence presented during the plaintiff's case-in-chief only, and, accordingly, the trial court properly relied on the defendant's evidence in denying its motion for judgment notwithstanding the verdict: there was nothing in the language of § 16-37 to indicate that a trial court ruling on a motion for judgment notwithstanding the verdict is limited to considering the evidence adduced during the plaintiff's case-in-chief, as the issue presented by both a preverdict motion for a directed verdict and a postverdict motion for judgment notwithstanding the verdict is whether, on the basis of all the evidence presented to the jury, the evidence was sufficient to support the jury's verdict, and a review of the history of the motion for a directed verdict and of earlier amendments to the predecessor rule to § 16-37 further supported the conclusion that the trial court must assess all of the evidence considered by the jury in reaching its verdict; moreover, although the waiver rule may require the defendant to choose between resting on the insufficiency of the plaintiff's proof or presenting its own defense, this court concluded that application of the waiver rule under the circumstances of the present case was not fundamentally unfair, as it merely required the defendant to make a routine, tactical decision, the defendant assumed the risk that the evidence it presented would have the effect of underscoring the inadequacies of its own investigation of the fire, and any burden the rule placed on the defendant was out- weighed by the rule's support for the truth seeking function of the trial and the perceived fairness of the judicial system. Argued November 8, 2018—officially released September 10, 2019

Convicted of two counts of the crime of risk of injury to a child, and found to be in violation of his probation, the defendant appealed to the Appellate Court from the trial court's judgments, claiming that his conviction on one of the two risk of injury counts violated the corpus delicti rule insofar as statements that he had made to the police were the only evidence that he committed the misconduct giving rise to his conviction on that count. The Appellate Court affirmed the trial court's judgments, concluding that, because corpus delicti is an evidentiary rule, the defendant's claim was unreviewable on the ground that he failed to raise the corpus delicti issue or challenge the admissibility of his statements at trial. On the granting of certification, the defendant appealed to this court, claiming, inter alia, that the Appellate Court incorrectly concluded that corpus delicti is a rule of admissibility and, therefore, that his claim was unreviewable. Held that the resolution of the defendant's appeal was controlled by this court's decision in State v. Leniart (333 Conn. 88), in which the court concluded that the corpus delicti rule is a hybrid evidentiary-substantive rule that implicates a defendant's fundamental right not to be convicted in the absence of evidence sufficient to establish every essential element of the charged crime beyond a reasonable doubt and that even unpreserved corpus delicti claims are reviewable on appeal; accordingly, this court reversed the Appellate Court's judgment and remanded the case to that court for full consideration of the merits of the defendant's corpus delicti claim. Argued May 2, 2018—officially released September 10, 2019

Convicted of two counts each of the crimes of sexual assault in the second degree and risk of injury to a child, and three counts of the crime of criminal violation of a restraining order, the defendant appealed to the Appellate Court. The defendant, his wife, A, and the minor victim, their daughter, came to the United States from Guatemala. While living in Connecticut, the defendant sexually abused the victim and was verbally and physically abusive toward A and the couple's other children. A eventually reported the defendant's physical abuse of her to the police while the defendant was out of the country and obtained an ex parte restraining order, which was served on him when he returned to the United States. The ex parte order, inter alia, prohibited the defendant from contacting A and her children, and denied the defendant visitation rights pending a hearing. After the hearing, which the defendant attended with his counsel, the trial court issued a temporary restraining order that prohibited the defendant from contacting A and contained additional orders providing that A's children also were protected by the order. The order also allowed the defendant weekly, supervised visitation with the children. Other parts of the order reiterated its terms and stated that violation of the order was a criminal offense and that contacting a protected person could violate the order. The order also contained a Spanish translation of its terms on a separate page. At the hearing, during which the defendant, whose primary language is Spanish, required an interpreter, the trial court explained the terms of the temporary restraining order to the defendant. The court stated, inter alia, that the order prohibited the defendant from assaulting, threatening, abusing or harassing A and the children and that he was not to have any contact with A in any manner. The court further stated that the defendant could have supervised, weekly contact with the children. The defendant thereafter contacted the victim on three occasions, sending her two text messages and a letter that he had one of the victim's siblings deliver to the victim. The Appellate Court upheld the defendant's convictions. In his certified appeal from the Appellate Court's judgment, the defendant claimed that the evidence was insufficient to support his conviction of criminal violation of a restraining order and that the prosecutor commit- ted certain improprieties while questioning two witnesses and during closing argument. Held: 1. The evidence was sufficient to support the defendant's conviction of three counts of criminal violation of a restraining order: a. The defendant could not prevail on his claim that there was insufficient evidence from which the jury reasonably could conclude that he knew that the terms of the restraining order prohibited his contact with the children except during weekly, supervised visitation: although the court did not expressly state during the hearing that the no contact term applied to both A and the children, the court specified, immediately after stating that the no contact term applied to A, that the defendant could have contact with his children but that it must be supervised and then clarified that it would be ''weekly and supervised,'' and the victim advocate similarly characterized the order at the hearing with respect to contact with the children as being limited to weekly, supervised visits; moreover, although it was possible for the jury to infer that the court and the victim advocate meant visitation when they referred at the hearing to contact in light of subsequent references to visitation, it also was entitled to infer that the court and the victim advocate meant what they said when they said contact, and the written temporary restraining order, the actions of A and the victim in reporting the defendant's contacts to the police, and the prior, ex parte order all supported the latter inference. b. This court found unavailing the defendant's claim that he lacked knowledge of the terms of the restraining order on the ground that the record failed to show he was informed in Spanish that he was prohibited from contacting the children by text or letter: the evidence demonstrated that the defendant was fully apprised of the terms of the order in Spanish by defense counsel, the court, and the victim advocate, as defense counsel confirmed with the court that he was fluent enough in Spanish to make the defendant understand what was said in English, counsel stated that he had gone over the proposed order with the defendant in private in a meeting attended by the defendant's sister and the victim advocate, and the defendant was assisted by a Spanish language inter- preter during a portion of the hearing and by defense counsel, who acted as an interpreter during the remainder of the hearing; moreover, the fact that the defendant asked the victim's sibling to deliver the letter to the victim rather than delivering it to the victim himself indicated that the defendant knew he was not permitted to contact the children outside of the weekly, supervised visits. c. The defendant could not prevail on his claim that there was insufficient evidence to establish that he had sent the letter to the victim while the temporary restraining order was in effect and, therefore, that this instance of contact was not in violation of that order; the victim testified that she received the letter during the time the restraining order was in effect, there was evidence that the defendant had given the letter to the victim's sibling for delivery to the victim during one of the supervised visits that was authorized under the order, and the defendant's pleas in the letter for the victim to meet with him suggested that it was written in response to the victim's refusal to attend the court-approved visits. 2. The defendant was not deprived of a fair trial as a result of certain alleged improprieties committed by the prosecutor: the prosecutor's questions to the victim and another witness about whether certain of their testi- mony was truthful were not improper, as defense counsel put the victim's credibility squarely before the jury throughout the trial, information about the witnesses' motivations to lie was the type of information a jury requires to assess their credibility, the prosecutor's questions were unlikely to confuse the issues for the jury, and, because the evidentiary rule against preemptive bolstering of a witness' testimony has its roots in efficiency rather than fairness, this court declined to rely on it as a basis on which to adjudicate a claim of prosecutorial impropriety; moreover, the prosecutor did not make a golden rule argument when, during closing argument, he asked the jurors to consider their own perspectives in considering certain of the victim's testimony, as the prosecutor's comment was not an attempt to encourage the jurors to believe the victim out of passion or sympathy but was directed at her credibility, which was squarely at issue, and was a permissible attempt to encourage the jurors to infer that the victim was not fabricating her testimony; furthermore, the prosecutor did not improperly evoke sympathy for the victim when he referenced her credibility in light of the psychological, social and physical barriers she faced in accusing the defendant of sexual assault, and the prosecutor's comment asking the jurors whether other individuals in circumstances similar to those of the victim would fabricate sexual assault accusations was not improper, as the comment was a permissible, rhetorical device to encourage the jury to infer that the victim had no motive to fabricate her testimony. Argued February 22—officially released September 17, 2019

Pursuant to the alternative liability doctrine, when the conduct of two or more actors is tortious and it is proven that the plaintiff's injuries have been caused by only one of those actors but it is unclear which one, the burden of proving causation shifts from the plaintiff to each actor to prove that he did not cause those injuries. The plaintiff appealed from the trial court's judgment in favor of the defen- dants, three teenagers who had entered an abandoned mill in the town of Somers and discarded multiple cigarette butts without extinguishing them, thereby causing a fire that destroyed the mill and a sewage line in the mill's basement. While the defendants were exploring inside the mill for about forty-five minutes, each of them smoked approximately five cigarettes and discarded their unextinguished cigarettes by tossing them onto the mill's wooden floor. Experts later determined that the likely cause of the fire was the defendants' careless disposal of the cigarettes. After the plaintiff paid the town for the cost of replacing the sewage line, it brought the present subrogation action against the defendants. The trial court granted the defendants' motions for summary judgment, concluding that the plaintiff could not prevail on the element of causation because it was unable to establish which of the defendants' cigarettes caused the fire. The trial court also declined the plaintiff's request to apply the alternative liability rule, reasoning that it would have the effect of significantly changing the negligence standards in this state and that adoption of the rule was a policy decision to be made by an appellate court or the legislature, none of which previously had endorsed the rule. On appeal, the plaintiff claimed that the trial court improperly failed to apply the alternative liability rule in granting the defendants' motions for summary judgment. Held that the plaintiff should have received the benefit of the alternative liability rule for the purpose of proving its case against the defendants, and, therefore, this court reversed the trial court's judgment and remanded the case for further proceedings: faced with the choice of leaving an injured plaintiff without a remedy, on the one hand, and requiring multiple wrongdoers, all of whom acted negligently toward the plaintiff and created the situa- tion in which the plaintiff was injured, to bear the burden of absolving themselves, on the other, this court concluded that the latter approach, which has been adopted in at least some form in nearly all jurisdictions, represented the fairer, more sensible alternative, and, accordingly, this court adopted the alternative liability rule for application in cases in which the plaintiff can demonstrate that all of the defendants acted negligently and the plaintiff suffered harm, all possible tortfeasors have been named as defendants, and the tortfeasors' negligent conduct was substantially simultaneous in time and of the same character so as to create the same risk of harm; moreover, all of the requirements for the rule to apply were satisfied in the present case, as the plaintiff had adduced evidence demonstrating that all three of the defendants acted negligently, that all possible tortfeasors had been named as defendants, and that the tortious conduct of those defendants was substantially simultaneous and of the same character; furthermore, this court's adop- tion of the alternative liability rule was not incompatible with this state's statutory apportionment of liability scheme, the defendants identified no facts or circumstances that would render retroactive application of the alternative liability rule in the present case unfair or unduly harsh, and there was no basis for the defendants' claim that applying the rule to them would violate or compromise any legitimate reliance interest that they may have had. Argued November 9, 2018—officially released September 17, 2019

The defendant, who had been convicted, on a plea of guilty, of murder as an accessory, appealed to the Appellate Court from the judgment of the trial court dismissing his motion to correct an illegal sentence for lack of subject matter jurisdiction. The defendant, who had committed the crime of which he was convicted when he was sixteen years old, was sentenced to thirty-five years imprisonment without the possibility of parole. In his motion to correct, the defendant claimed, inter alia, that he was entitled to be resentenced because his original sentence had been imposed in violation of the Connecticut constitution insofar as the sentencing court did not consider his age and the hallmarks of adolescence as mitigating factors in imposing his sentence, and insofar as the subsequent enactment of legislation (P.A. 15-84, § 1), which retro- actively afforded certain juvenile offenders, including the defendant, parole eligibility, did not remedy that violation. The Appellate Court rejected the defendant's claim and upheld his sentence, concluding that, although the trial court had jurisdiction over his claim, any potential violation was cured by his eligibility for parole under P.A. 15-84. There- after, while the defendant's petition for certification to appeal from the Appellate Court's judgment was pending, this court determined in State v. Delgado (323 Conn. 801) that, under the federal constitution, resen- tencing was not required if a juvenile offender became eligible for parole under P.A. 15-84 and, therefore, that a court lacks jurisdiction to decide a juvenile offender's motion to correct an illegal sentence that is based on lack of parole eligibility. In light of Delgado, this court declined to rule on the petition for certification to appeal and remanded the case to the Appellate Court. The Appellate Court thereafter upheld the dis- missal of the defendant's motion to correct an illegal sentence, and the defendant, on the granting of certification, appealed to this court, claiming that, under the Connecticut constitution, he was entitled to resentencing even after he became eligible for parole under P.A. 15-84. Held that the resolution of the defendant's appeal was controlled by this court's decision in State v. McCleese (333 Conn. 378), in which the court concluded that the parole eligibility afforded to juvenile offenders by P.A. 15-84 is an adequate remedy for a sentence of life imprisonment, or its functional equivalent, without the possibility of parole imposed on a juvenile without consideration of the juvenile offender's age and the hallmarks of adolescence, and, because the defendant became eligi- ble for parole upon the enactment of P.A. 15-84, the state constitution did not require resentencing; accordingly, the Appellate Court's judg- ment was affirmed. (One justice dissenting) Argued October 15, 2018—officially released August 23, 2019

The petitioner, who had been convicted of murder, sought a writ of habeas corpus, claiming, inter alia, that he was actually innocent of the crime, the eyewitness identification procedures employed in connection with his criminal case violated his due process rights under the federal consti- tution, his first habeas counsel provided ineffective assistance of coun- sel, and his sentence for a crime he committed when he was a juvenile, without any consideration of the mitigating effects of his youth, violated the constitutional prohibition against cruel and unusual punishments. The murder occurred as the victim and another person, P, were sitting in the victim's parked car at a well illuminated intersection at around 11 p.m. P saw the shooter approach the car, lean into the driver's side window, and shoot the victim. The next day at the police station, P identified the petitioner's photograph from a photographic array, and the petitioner was arrested three days later. Two other witnesses, W and D, testified at the petitioner's criminal trial, corroborating P's description of the events, but they were unable to identify the petitioner as the shooter. D identified the petitioner in court as the man she had seen running on an adjacent street shortly after the shooting, entering the driveway of a house that the petitioner admitted staying at frequently at the time of the murder, and as a man she previously had seen in her neighborhood. In support of the alibi defense the petitioner presented at his criminal trial, he offered the testimony of three witnesses who claimed that he was with them at a party at C's home at the time of the shooting. H, an investigator retained by the petitioner's trial counsel, gave trial counsel a report summarizing an interview with C in which C indicated that the petitioner had been at the party. Trial counsel thereafter spoke with C twice during the petitioner's criminal trial but did not call her as a witness. The state nevertheless called C as a rebuttal witness, and she testified that she did not know the petitioner and had never seen him before. The petitioner's conviction was upheld on direct appeal. At the petitioner's first habeas trial, the habeas court denied his petition, in which he alleged that his trial counsel had rendered ineffec- tive assistance of counsel. During the petitioner's second habeas trial, the petitioner presented the expert testimony of K, who testified regarding scientific research on the reliability of eyewitness identifications. K testified that several factors surrounding P's opportunity to observe the shooter could have undermined the reliability of P's identification and that the composition of the photographic array, as well as the procedures surrounding P's viewing of the array, undermined the reliability of her selection of the petitioner's photograph. At the second habeas trial, the petitioner also presented the testimony of three witnesses who claimed that a third party, N, had made statements to them indicating the petition- er's innocence and implicating himself in the shooting, although they had never relayed this information to the police. Following the petitioner's second habeas trial, the habeas court rendered judgment denying the petition. On the granting of certification, the petitioner appealed. Held: 1. The habeas court properly denied the petitioner's claim of actual inno- cence, as the petitioner failed to sustain his burden of proving by clear and convincing evidence, in view of all of the evidence adduced at his criminal and habeas trials, that he was actually innocent of the victim's murder and that no reasonable fact finder would find him guilty of that crime: K's critique of P's eyewitness identification did not constitute affirmative proof of actual innocence, as P's testimony was not the only evidence linking the petitioner to the murder and was largely corrobo- rated by another neutral, credible witness, W, and by D, whose testimony, if credited, would have severely undermined the petitioner's alibi defense by placing him near the crime scene shortly after the shooting; moreover, there were numerous, significant inconsistencies in the testimony of the petitioner's alibi witnesses, two of those alibi witnesses were not disinterested parties and, therefore, their stories may have been viewed with skepticism by the jury; furthermore, the habeas court's determina- tion not to credit the testimony of the petitioner's third-party culpability witnesses was not clearly erroneous, as those witnesses failed to report N's confessions to law enforcement, N's reputation for veracity was subject to challenge by virtue of the witnesses' descriptions of N as ''crazy,'' ''under the influence,'' ''paranoid,'' and as exhibiting bipolar behavior, and N's confession to one of those witnesses appeared to be inconsistent with P's account of how the victim spent the evening of the murder. 2. The habeas court correctly concluded that the identification procedures employed in connection with the petitioner's criminal case did not violate his due process rights: this court declined to consider the petitioner's contention that the photographic array from which P selected the peti- tioner's photograph was unnecessarily suggestive, as that claim had been adjudicated in the petitioner's direct appeal from his criminal conviction, and K's testimony that certain variables, such as poor viewing conditions and the stressful effects of suddenly confronting an armed assailant, undermined P's ability to recognize the perpetrator was not compelling, as the jury reasonably could have credited P's testimony that she had an adequate opportunity to observe the perpetrator in view of the fact that the crime scene had been well illuminated and the fact that P had several opportunities to observe the petitioner at close range before she saw that he was carrying a firearm; moreover, a review of the record did not bear out the petitioner's contention that he was convicted solely on the basis of P's identification of him as the shooter, as the jury, considering the testimony of W and D together, reasonably could have concluded that the petitioner was the perpetrator. 3. The habeas court properly rejected the petitioner's claim that his habeas counsel had provided ineffective assistance at his first habeas trial by failing to challenge trial counsel's decision not to impeach C, as trial counsel's decision did not prejudice the petitioner's defense: the petition- er's failure to call C to testify at his second habeas trial made it impossible to know how she would have explained and reconciled her inconsistent statements to H, and, accordingly, it could not be determined how the jury at the petitioner's criminal trial would have weighed her statements; moreover, in light of other evidence admitted at the petitioner's criminal trial, there was no reason to believe that the jury would have viewed C's inability to recall meeting the petitioner as overly damaging to his alibi defense. 4. Even if the habeas court incorrectly concluded that the doctrine of res judicata barred it from resolving the merits of the petitioner's claim that it was cruel and unusual punishment for the trial court to have sentenced him to a term of imprisonment of fifty years for an offense he committed when he was seventeen years old without considering the mitigating effects of his youth pursuant to Miller v. Alabama (567 U.S. 460), and its progeny, he could not prevail on that claim, as this court rejected virtually identical claims in State v. McCleese (333 Conn. 378) and State v. Williams-Bey (333 Conn. 468), in which it held that parole eligibility under a recent legislative enactment (P.A. 15-84) was an adequate rem- edy under the state constitution, just as it is under the federal constitu- tion, and that, because parole eligibility negates rather than cures a Miller violation, resentencing is not required. (One justice concurring in part and dissenting in part) Argued February 19—officially released October 22, 2019

The defendant appealed from the judgment of the trial court dissolving his marriage to the plaintiff and awarding her certain pre-embryos that the parties had cryopreserved after having created them through in vitro fertilization during their marriage. The parties had entered into a storage agreement with the reproductive services center responsible for cryo- preserving the pre-embryos. The storage agreement contained checkbox options that provided for disposition of the pre-embryos under certain circumstances. The parties checked the box indicating that they agreed to have the pre-embryos discarded in the event that they divorced, initialed their selection, and signed the agreement. The plaintiff asked the trial court to order that the pre-embryos be discarded in accordance with the storage agreement, whereas the defendant claimed that he had changed his mind, was no longer bound by that provision of the storage agreement, and wanted the pre-embryos preserved so that the parties could have children in the event that they reconciled or, in the alternative, wanted the pre-embryos to be donated. The trial court determined that the storage agreement was not enforceable because it lacked consider- ation. The court then awarded the pre-embryos to the plaintiff, conclud- ing that the plaintiff's interest in them outweighed the defendant's inter- est. On appeal, the defendant claimed that the trial court incorrectly determined that a pre-embryo is property subject to distribution under the statute (§ 46b-81) governing distribution of the marital estate upon divorce and also claimed that, even if it is property, in the absence of an enforceable contractual agreement, the court failed to employ a legal presumption in his favor as the party seeking to preserve the pre-embryos because they are human beings. Held: 1. This court concluded that the contractual approach to determining the disposition of a pre-embryo upon divorce, pursuant to which an agree- ment between progenitors governing the disposition of a pre-embryo is presumed valid and enforceable in a dispute between them, is the appropriate first step in such a determination, reasoning that progenitors should be the primary decision makers regarding the disposition of their pre-embryos, there are significant benefits to making such a decision in advance rather than at the moment of disposition, such an approach is consistent with Connecticut's public policy and the current practices of most state courts that have confronted the issue, and various profes- sional associations focusing on the field of reproductive medicine recom- mend advance directives regarding the disposition of pre-embryos in the event of divorce; moreover, this court clarified that such an approach applies in cases in which an agreement, if enforced, will not result in procreation and declined to decide whether such an approach would apply to a scenario in which one party would be compelled to become a genetic parent against his or her wishes or what approach a court should take in the absence of an enforceable agreement. 2. The trial court incorrectly determined that the parties had not entered into an enforceable agreement to discard the pre-embryos upon divorce, and, accordingly, this court reversed the trial court's judgment insofar as that court determined that their agreement was not enforceable, vacated the trial court's order awarding the pre-embryos to the plaintiff, and remanded the case with direction to order the disposition of the pre-embryos in accordance with the agreement: there was an offer and an acceptance of definite terms, as each party offered the other the opportunity to create pre-embryos by contributing gametic material under the terms of the agreement, and each party accepted the other's offer by signing the agreement and contributing gametic material; more- over, the trial court's determination that the storage agreement lacked consideration was clearly erroneous, as the plaintiff and the defendant made mutual promises to contribute gametic material, and the reproduc- tive services center promised to store the pre-embryos in exchange for the certainty provided by the parties' election of a disposition in the event of the parties' divorce; furthermore, the trial court's focus on the checkbox nature of the storage agreement to conclude that the agree- ment was unenforceable was misplaced, as agreements in which parties use checkboxes to indicate their rights and responsibilities are not insufficient for that reason alone, checkboxes, sometimes accompanied by the parties' initials, are routinely used in important and binding legal documents, and any suggestion that the checkboxes were evidence that the parties had not seriously considered the matter of disposition was contradicted by the storage agreement and the parties' testimony. 3. This court having determined that there was an enforceable agreement, the defendant could not prevail on his claims that, in the absence of a contractual agreement, a pre-embryo is not property within the meaning of § 46b-81 because it is a human life or, if it is deemed property, that the trial court should have applied a presumption in favor of preserving the pre-embryos, as those claims incorrectly presupposed that there was no enforceable contract between the parties; moreover, to the extent that the defendant claimed that an agreement that provides for the disposition of a pre-embryo is unenforceable on the ground that a pre- embryo is a human life, this court declined to review that claim for lack of an adequate record, as the defendant did not raise such a claim at trial and did not even appear to make that argument on appeal. Argued April 30—officially released November 5, 2019

The plaintiff public affairs firm sought to recover damages from the defen- dant, a quasi-public agency responsible for providing solid waste dis- posal and recycling services to numerous Connecticut municipalities, alleging that it had engaged in certain anticompetitive practices by con- ducting a sham public bidding process in connection with its award of a contract for municipal government liaison services in violation of the Connecticut Antitrust Act (§ 35-24 et seq.). The defendant had issued a request for proposals for a multiyear liaison services contract. The plaintiff and B Co., a law firm that had provided the defendant with liaison services since 2006, were the only bidders for the contract, and, even though the plaintiff's bid complied with the request for proposals and B Co.'s did not, the defendant ultimately awarded the contract to B Co. The plaintiff alleged that the defendant had evaluated the bids in a biased manner to ensure that B Co. was awarded the contract, in violation of its own procurement policies and the competitive bidding statute (§ 22a-268) requiring the defendant to engage in open and com- petitive bidding for contracts with outside vendors. The plaintiff further alleged that the defendant awarded the contract to B Co. because B Co. carried out lobbying services on behalf of the defendant in violation of the statute (§ 1-101bb) prohibiting quasi-public agencies such as the defendant from retaining lobbyists. In addition, the plaintiff alleged that the defendant's conspiracy with B Co. had reduced the number of competitors for the liaison services contract, had increased the price paid by the defendant for liaison services, resulting in higher costs for those municipalities that dealt with the defendant, and had adversely affected the quality of the defendant's services. The defendant moved to dismiss the plaintiff's operative complaint, claiming, inter alia, that the plaintiff lacked standing to bring the antitrust claim because it did not allege that it had suffered an antitrust injury and that it was an efficient enforcer of the antitrust laws. The defendant also moved to strike the complaint, contending that the plaintiff had failed to allege facts sufficient to demonstrate an antitrust violation. The trial court denied the motion to dismiss, concluding, inter alia, that the plaintiff had standing to bring an antitrust claim against the defendant on the basis of the defendant's alleged violation of a competitive bidding law pursuant to this court's decision in Cheryl Terry Enterprises, Ltd. v. Hartford (270 Conn. 619). The trial court, however, granted the defen- dant's motion to strike on the ground that the plaintiff had failed to allege an antitrust injury because its allegations were conclusory and there was no allegation that the defendant's conduct has an adverse effect on competition as a whole in the relevant market of which it is a member. The trial court further found that, to the extent that being an efficient enforcer of the antitrust laws is required to state a cognizable claim under Connecticut law, the plaintiff also failed to adequately plead that element. Thereafter, the trial court rendered judgment for the defendant, from which the plaintiff appealed and the defendant cross appealed. Held that the trial court correctly concluded that the plaintiff failed to sufficiently allege an antitrust injury, but, because the failure to allege an antitrust injury implicates the plaintiff's standing and, thus, a court's subject matter jurisdiction, the trial court should have granted the defendant's motion to dismiss rather than its motion to strike: this court relied on federal case law, in accordance with the legislative intent expressed in the Connecticut Antitrust Act (§ 35-44b), in concluding that, to have standing to bring a claim under that act, a plaintiff must adequately allege both that it has suffered an antitrust injury and that it is an efficient enforcer of the antitrust laws, and, because a claim that a plaintiff has failed to allege either of those elements implicates the trial court's subject matter jurisdiction, such a claim should be raised in a motion to dismiss; in the present case, although the plaintiff alleged that the defendant's conduct had the anticompetitive effects of reducing the quality of its services and increasing its prices, it failed to demon- strate that the defendant's conduct itself was anticompetitive, as an agreement to provide illegal lobbying services in exchange for the award of a public contract, which does not restrict a purchaser's freedom of choice or prevent other potential bidders from competing, does not constitute a restraint of trade for purposes of antitrust law from which an antitrust injury could be inferred; moreover, because the plaintiff lacked standing as a result of its failure to allege an antitrust injury and the trial court therefore lacked subject matter jurisdiction, this court concluded that the form of the trial court's judgment, which was based on the granting of the defendant's motion to strike, was improper, and it vacated the granting of the motion to strike and remanded the case with direction to grant the defendant's motion to dismiss instead. Cheryl Terry Enterprises, Ltd. v. Hartford (270 Conn. 619), to the extent that it suggests a plaintiff need not allege that it has suffered an antitrust injury to establish standing to pursue an antitrust claim, overruled. Argued January 14—officially released November 12, 2019

The plaintiff taxpayer appealed to the trial court from the decision of the defendant, the Commissioner of Revenue Services, denying the plaintiff's protest in connection with the defendant's denial of state income tax credits that the plaintiff sought for nonresident income taxes paid to the state of New York on the distributive share of profits that he received for managing two limited partnerships. The plaintiff, who resided in Connecticut but worked in New York, was a member of a limited liability company, L Co., which served as the general manager for the limited partnerships. The limited partnerships, which operated as hedge funds and primarily traded their own stock index options, paid L Co. a share of their profits for L Co.'s services, and L Co., in turn, allocated to the plaintiff his distributive share of those profits. In 1997 and 1998, the plaintiff reported the income he received from L Co. as capital gains on his New York state income tax returns, paid taxes on that income to New York, and sought a credit against his Connecticut resident income taxes for the taxes he paid to New York during those years pursuant to the statute (§ 12-704 [a] [1]) allowing a resident of this state to receive a credit against nonresident income tax paid to another state when the nonresident income being taxed would otherwise be subject to taxation in Connecticut. The defendant disallowed the credit under § 12-704 (a) (1), reasoning that the plaintiff's income must be treated as if it derived from trading intangible property for his own account because the limited partnerships were trading their own intangible property and the charac- ter of the partnerships' income passed through to the income of their general partner, and that Connecticut does not tax nonresidents on income from the trading of intangible property for the nonresident's own account pursuant to statute (§ 12-711 [f]). In sustaining the plaintiff's appeal, the trial court first determined that, for purposes of § 12-711 (f), the plaintiff was not trading intangible property for his own account but was engaging in the trade or business of trading intangible property owned by others, namely, the limited partnerships. The trial court also determined that, even if the plaintiff was trading intangible property for his own account, he nonetheless must be deemed to have been engaged in a trade or business, pursuant to Moller v. United States (721 F.2d 801), on the basis of the frequency and volume of his trading activity, which involved millions of transactions and approximately $250 million. The trial court concluded, on the basis of either of those two grounds, that the plaintiff would be taxed in Connecticut on such income and, therefore, that he was entitled to the credits that he sought for the nonresident income taxes he paid to New York. The defendant appealed, claiming that the trial court incorrectly concluded that the plaintiff was not trading intangible property for his own account but, rather, was engaged in the trade or business of trading intangible property owned by others. Held that the defendant's appeal was moot because the defendant challenged only one of the trial court's two independent bases for its determination that the plaintiff was entitled to the income tax credits he sought, and, accordingly, his appeal was dismissed: the defendant conceded that he challenged the trial court's judgment only on the issue of whether the plaintiff was trading intangible property for his own account, and, because he did not challenge the alternative ground on which the trial court based its decision, namely, that, even if the plaintiff was trading intangible property for his own account, the plaintiff none- theless was deemed to have been engaged in a trade or business under Moller on the basis of the frequency and volume of his trading activity, there existed an unchallenged, independent basis for the trial court's decision, and, therefore, there was no relief that this court could afford the defendant; moreover, this court rejected the defendant's claim that the trial court's determination under Moller did not constitute an alterna- tive, independent basis for its decision, especially in view of the defen- dant's concession in his posttrial brief to the trial court that the plaintiff could be treated as if he were engaged in a trade or business under Moller if he was engaged in substantial, daily trading activity. Argued April 30—officially released November 19, 2019

The plaintiffs, who had defaulted on a residential mortgage for which the defendant financial institution was the loan servicer, sought to recover damages for the defendant's alleged violation of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) and for negligence in connection with conduct that had occurred during postdefault negotia- tions. After the plaintiffs defaulted on their mortgage, the defendant instituted a foreclosure action. In an effort to avoid foreclosure, the plaintiffs made repeated, unsuccessful attempts, over the course of two and one-half years, to obtain a loan modification from the defendant pursuant to a federal loan modification program known as HAMP. The defendant then withdrew the foreclosure action without explanation. The plaintiffs continued to seek a loan modification, but the defendant instituted a second foreclosure action. The defendant continued to mis- handle the loan modification process for approximately three additional years before it finally provided the plaintiffs with a permanent loan modification. The terms of the modification increased the principal amount that the plaintiffs owed by including attorney's fees for media- tion, default fees, fees for commencing the second foreclosure action, and accrued interest in excess of what the plaintiffs would have paid if their initial loan modification application had been timely and properly evaluated. The plaintiffs alleged in count one of their complaint that, during the course of seeking a loan modification, the defendant commit- ted unfair or deceptive acts in the conduct of trade or commerce with the intent of preventing them from receiving a loan modification in that the defendant failed to exercise reasonable diligence in reviewing and processing completed loan modification applications, repeatedly requested duplicative and unnecessary updates to financial information, erroneously denied applications on the basis of purported failures to provide requested documentation, misrepresented the status of the plaintiffs' loan modification applications, erroneously denied applica- tions on the basis of investor restrictions that did not apply, and repeat- edly changed the personnel responsible for communicating with the plaintiffs. The plaintiffs also alleged that the defendant had failed to engage productively in approximately eighteen mediation sessions con- ducted pursuant to Connecticut's foreclosure mediation program. The plaintiffs claimed that the defendant's conduct offended the public policy reflected in HAMP, the federal Real Estate Settlement Procedures Act of 1974 (RESPA) (12 U.S.C. § 2601 et seq. [2012]), a 2011 consent order that the defendant had entered into with the Office of the Comptroller of the Currency, a national mortgage settlement to which the defendant was a party, and this state's foreclosure mediation statutes (§§ 49-31k through 49-31o), and caused them to suffer substantial financial and emotional injuries. In addition, the plaintiffs claimed that the defendant had a corporate culture of intentional conduct designed to prevent mortgagors from receiving HAMP modifications. With respect to the negligence count of the complaint, the plaintiffs asserted that the defen- dant owed them a duty of care arising out of the servicing standards imposed by the same federal and state statutes, consent order and mortgage settlement agreement, and that the defendant breached that duty. The defendant moved to strike both counts of the complaint, claiming, inter alia, that the allegations pertaining to the manner in which a lender or loan servicer reviews a loan modification application are insufficient to state a cognizable CUTPA claim and that no duty of care exists between a lender or loan servicer and a borrower to support a negligence claim. The trial court granted the motion to strike the complaint, reasoning that the alleged conduct focuses on negotiation of relief from existing contractual obligations and that the parties are adversarial given the pendency of the foreclosure action. The trial court further reasoned that allowing such actions could discourage mortgage companies from negotiating loan modifications, lead to increased litiga- tion, and subject mortgage companies to liability, even in the absence of material misrepresentation or malfeasance. The trial court finally noted that other remedies, such as sanctions for misconduct during the course of mediation, were available. On appeal from the trial court's judgment in the defendant's favor, held: 1. The plaintiffs' allegations having been sufficient to support a claim under CUTPA, this court reversed the judgment of the trial court insofar as that court struck the plaintiffs' CUTPA claim: the defendant's conduct in connection with its loan modification activities occurred in the con- duct of trade or commerce; moreover, the plaintiffs' allegations included conduct and actions by the defendant that involved a conscious, system- atic departure from known, standard business norms, and described practices that fell within the penumbra of some established concept of unfairness, as the alleged conduct was contrary to the public policies embodied in HAMP, RESPA, the consent order, the national mortgage settlement, and this state's foreclosure mediation statutes; furthermore, the defendant's allegedly improper practices, if proven at trial, could be found to be immoral, unethical, oppressive or unscrupulous and the cause of substantial injury to the plaintiffs, an injury that was not one that the plaintiffs or other consumers could have reasonably avoided and that was not outweighed by any countervailing benefits to loan servicers in escaping liability for such actions or to consumers or compe- tition. 2. This court concluded that the defendant did not owe a common-law duty of care to the plaintiffs, and, accordingly, the trial court properly granted the defendant's motion to strike the plaintiffs' negligence count of the complaint: assessing the relationship between the plaintiffs and the defendant under the totality of the circumstances, this court determined that, although the defendant should reasonably have been expected to review loan modification applications in a timely and accurate manner and to follow the loan servicing industry standards and rules regarding the loan modification process imposed by federal and state statutes, the consent order, and the national mortgage settlement, the law does not impose a duty on lenders to use reasonable care in commercial transactions with borrowers because the relationship between lenders and borrowers is contractual and loan transactions are conducted at arm's length, and to impose a duty of care on loan servicers, such as the defendant, could inhibit participation in the loan modification process, increase litigation, and have far-reaching consequences that extend beyond anything implicated under CUTPA; moreover, the consent order and the national mortgage settlement, to which the defendant was a party, did not create a special relationship between lenders and borrow- ers that would give rise to a legal duty, the plaintiffs, as incidental third- party beneficiaries of that order and settlement, did not have standing to sue to protect the benefits that the order and settlement confer, loan servicers already are subject to liability for violations of RESPA's implementing regulations and civil penalties for violations of the national mortgage settlement, making it unlikely that imposing a new duty on loan servicers would provide them with further incentive to carry out their review of loan modification applications with more due care, and numerous jurisdictions have concluded that neither the provisions of HAMP nor the relationship between a borrower and a lender or a loan servicer result in the imposition of any duty of care in the present context; furthermore, this court declined to consider the plaintiffs' claim that their negligence count could be construed to extend to a theory of negligence per se on the basis of the allegations in their complaint that the defendant breached a duty imposed by federal regulations and state statutes and that such breach caused their injuries, the plaintiffs having failed to raise this claim distinctly before the trial court, as they did not specifically allege negligence per se in their complaint, did not identify the particular legal provisions that the defendant allegedly violated or that established the standard of care, did not seek an articulation from the trial court, and did not mention such a theory in their motion to reargue. Argued November 9, 2018—officially released November 26, 2019