The Connecticut Law Journal, Volume LXXX, No. 24, for December 11, 2018 is now available.

Contained in the issue is the following:

• Table of Contents
• Volume 330: Connecticut Reports (Pages 502 - 519)
• Volume 330: Orders (Pages 949 - 952)
• Volume 330: Cumulative Table of Cases Connecticut Reports
• Volume 186: Connecticut Appellate Reports (Pages 466 - 610)
• Volume 186: Memorandum Decisions (Pages 902 - 903)
• Volume 186: Cumulative Table of Cases Connecticut Appellate Reports
• Miscellaneous Notices
• Supreme Court Pending Cases

• Posted in:
• Connecticut Law Journal,
• Recent Opinions

AC38837 - Rivera v. Commissioner of Correction (Dismissal of writ of habeas corpus for lack of jurisdiction pursuant to Practice Book § 23-29; “On appeal, the petitioner claims that (1) the habeas court’s articulation constitutes an improper modification of its original judgment and must be stricken from the record, and (2) the habeas court improperly dismissed his petition for lack of jurisdiction. We conclude that the habeas court lacked jurisdiction over the petition and, accordingly, affirm the judgment.”)

• Posted in:
• Habeas Corpus Law,
• Recent Opinions

AC38734 - Day v. Seblatnigg ("The principal issue in this case is whether a settlor of a revocable trust who is later under a voluntary conservatorship may, while under conservatorship, acting on her own behalf, convert the trust to an irrevocable trust without action by her conservator and without her conservator obtaining Probate Court approval. The defendant, First State Fiduciaries, LLC, appeals from the judgment of the Superior Court granting the motion of the plaintiff, Margaret E. Day, coconservator of the estate of Susan D. Elia, for summary judgment and declaring that the Susan D. Elia Irrevocable Trust dated September 15, 2011 (Delaware irrevocable trust) was void ab initio and unenforceable, and that all transfers of assets from Elia's conservatorship estate to the Delaware irrevocable trust or its wholly owned limited liability company, Peace at Last, LLC, were unauthorized and improper and ordering that the assets from Elia's conservatorship estate that were transferred to the Delaware irrevocable trust to Peace at Last, LLC, shall be immediately returned to Elia's conservatorship estate.

"On appeal, the defendant claims that the court erred in granting the plaintiff's motion for summary judgment in the absence of an indispensable party, Bryn Mawr Trust Company of Delaware (Bryn Mawr). We conclude that the court properly determined that Elia could not lawfully replace the Connecticut revocable trust with the Delaware irrevocable trust while under a conservatorship. We also conclude that the court properly determined that the former conservator of Elia's estate, Renee F. Seblatnigg, could not transfer the assets of the conservatorship estate to the Delaware irrevocable trust and that this transfer was void ab initio. Finally, we conclude that Bryn Mawr was not an indispensable party. We affirm the judgment of the trial court.")

• Posted in:
• Declaratory Judgment Law,
• Probate Law,
• Recent Opinions

AC40813 - Fiondella v. Meriden (Fraud; "The plaintiffs, Michael J. Fiondella, Jr., trustee of the Jo-An Carabetta 1983 Irrevocable Trust (trust), and The Meriden Homestead, LLC, appeal from the judgment of the trial court dismissing the counts of the complaint alleged against the defendants, Adele G. Eberhart, Harry S. Eberhart, and Vincent T. McManus, Jr. On appeal, the plaintiffs claim that the court improperly (1) applied the litigation privilege in favor of the defendants to conclude that it lacked subject matter jurisdiction and (2) construed the fraud and civil conspiracy allegations against the defendants. We agree that the court improperly applied the litigation privilege to determine that it lacked subject matter jurisdiction. We, therefore, reverse the judgment of the trial court.")

AC40752 - Jolen, Inc. v. Brodie & Stone, PLC (Breach of fiduciary duty; "The plaintiff, Jolen, Inc., appeals from the summary judgment rendered by the trial court in favor of the defendant, Brodie & Stone, PLC, and Brodie & Stone International, PLC, on the plaintiff's claim of breach of fiduciary duty. The plaintiff claims on appeal that, in view of the court's unchallenged determination that an agency relationship existed between the parties, its subsequent failure to conclude that such relationship was per se fiduciary in nature was incorrect as a matter of law. We agree and, accordingly, reverse the judgment of the trial court.")

AC40610 - Perez v. Metropolitan District Commisssion (Wrongful death; "This case arises from the untimely death of Andres Burgos, who drowned while swimming in Lake McDonough, a recreational area that is owned and operated by the defendant, the Metropolitan District Commission. The plaintiff, Vivian Perez, administratrix of the estate of Andres Burgos, appeals from the summary judgment rendered by the trial court in favor of the defendant on the basis of governmental immunity. On appeal, the plaintiff claims that the trial court erred in rendering summary judgment because there is a genuine issue of material fact with respect to (1) whether Burgos' death was caused by the defendant's breach of one or more of its ministerial duties, and (2) whether Burgos was an identifiable person subject to imminent harm. We are not persuaded and, accordingly, affirm the judgment of the trial court.")

• Posted in:
• Declaratory Judgment Law,
• Recent Opinions,
• Tort Law

AC39995 - State v. Greene (Manslaughter in first degree; "The defendant, Antoine Greene, appeals from the judgment of conviction, rendered after a jury trial, of one count of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). The defendant claims that the trial court erred by (1) denying his motion to dismiss after the court's finding of no probable cause for the state's initial charge of murder in violation of General Statutes § 53a-54a, and (2) denying his motions for a judgment of acquittal and for a new trial on the basis that the evidence was insufficient to support a finding that he intended to cause serious physical injury to the victim. We affirm the judgment of conviction.")

AC41288 - State v. Brett B. (Murder; violation of standing criminal protective order; "The defendant, Brett B., appeals from the judgment of conviction, rendered after a jury trial, of three counts of murder in violation of General Statutes § 53a-54a (a) and one count of violating a standing criminal protective order in violation of General Statutes § 53a-223a (a). The defendant claims on appeal that (1) he was denied his right to a fair trial because the prosecutor committed improprieties during closing argument by (a) misrepresenting to the jury that certain DNA found at the crime scene belonged to the defendant despite testimony from the state's DNA expert that the defendant was only a possible contributor, and (b) misleading the jury regarding foot impression evidence; and (2) the trial court abused its discretion by admitting into evidence previously undisclosed opinion testimony from the state's forensic expert that a bloodstain found on a tissue at the crime scene appeared to be caused by a finger rather than by blood spatter, which, if credited, tended to implicate the defendant as the perpetrator. We reject the defendant's claims and, accordingly, affirm the judgment of conviction.")

• Posted in:
• Criminal Law & Procedure,
• Recent Opinions

AC36991 - Forgione v. Forgione (Dissolution of marriage; "This case returns to us on remand from our Supreme Court. The defendant appeals from the judgment of the trial court opening the judgment of dissolution and reissuing financial orders. On appeal, the defendant claims that the trial court erred in its method of dividing the parties' assets because it failed to take into account an advance payment made by the plaintiff to the defendant. Although the defendant raises this claim for the first time on appeal, we exercise our discretion to consider the claim on the merits, and we affirm the judgment of the trial court.")

• Posted in:
• Family Law,
• Recent Opinions

SC20011 - Cady v. Zoning Board of Appeals ("The defendant GM Retirement, LLC, appeals from the judgment of the trial court sustaining the administrative appeal of the plaintiff, Bruce A. Cady. In the present appeal, the defendant argues that the trial court improperly (1) concluded that the defendant's proposed revision of boundary lines between certain adjacent lots constituted a new subdivision under General Statutes § 8-18, thereby implicating § IV.B.5 of the Burlington Zoning Regulations (regulations), which requires an increased minimum lot area for new subdivisions, and (2) applied § III.F.7 of the regulations, which governs the establishment of nonconforming uses on preexisting lots. We conclude that the trial court improperly determined that the defendant's proposed lot line revisions constituted a subdivision and improperly applied § III.F.7 of the regulations.

More specifically, we conclude that, when the town of Burlington (town) adopted § IV.B.5 of the regulations on October 1, 1983, the defendant's property contained three conforming, buildable lots, and that the proposed lot line revisions at issue in this case maintained three conforming, buildable lots. Thus, the defendant's proposed lot line revisions did not create a subdivision because those revisions did not divide one parcel of land into three or more parts. As a result, we further conclude that the defendant did not propose the establishment of a nonconforming use because the property lines, as revised, met the size requirements applicable to lots in existence as of October 1, 1983. Therefore, the trial court improperly applied § III.F.7 of the regulations to the present case. Accordingly, we reverse the judgment of the trial court.")

• Posted in:
• Land Use Law,
• Recent Opinions

The Connecticut Law Journal, Volume LXXX, No. 23, for December 4, 2018 is now available.

Contained in the issue is the following:

• Table of Contents
• Volume 330: Connecticut Reports (Pages 462 - 501)
• Volume 330: Orders (Pages 944 - 949)
• Volume 330: Cumulative Table of Cases Connecticut Reports
• Volume 186: Connecticut Appellate Reports (Pages 299 - 466)
• Volume 186: Memorandum Decisions (Pages 901 - 902)
• Volume 186: Cumulative Table of Cases Connecticut Appellate Reports
• Supreme Court Pending Cases

• Posted in:
• Connecticut Law Journal,
• Recent Opinions

SC19928 - Breton v. Commissioner of Correction (“Claim that the “2013 amendment to General Statutes (Rev. to 2013) § 54-125a; see Public Acts 2013, No.13-3, § 59 (P.A. 13-3), codified at General Statutes (Supp.2014) § 54-125a; which eliminated risk reduction credit awarded pursuant to General Statutes § 18-98e from the calculation of a violent offender’s initial parole eligibility date, thereby requiring the offender to complete 85 percent of his definite sentence before becoming parole eligible, as applied retroactively to him, violates the ex post facto clause of the United States constitution because he was statutorily entitled to such earlier parole consideration when he committed the crimes for which he is now incarcerated.”… On appeal, the petitioner renews his claim of an ex post facto violation. We agree with the petitioner that the ex post facto clause bars the respondent from applying the 2013 amendment to the petitioner, and, accordingly, we reverse the judgment of the habeas court.”)

SC19927 - Garner v. Commissioner of Correction (Claim of ineffective assistance; claim that a “2013 amendment to General Statutes (Rev. to 2013) § 54-125a; see Public Acts 2013, No. 13-3, § 59 (P.A. 13-3), codified at General Statutes (Supp. 2014) § 54-125a; which eliminated risk reduction credit awarded pursuant to General Statutes § 18-98e from the calculation of a violent offender’s initial parole eligibility date, as applied retroactively to him, violates the ex post facto clause of the United States constitution, because, under the version of § 54-125a in effect when he committed his offenses, he was entitled to have any such credit that he had earned applied to advance his initial parole eligibility date…The habeas court, Fuger, J., rejected the petitioner’s ex post facto claim…On appeal, the petitioner challenges both of these determinations by the habeas court. Although we reject the petitioner’s ineffective assistance claim, we agree that the ex post facto clause bars the respondent from applying the 2013 amendment retroactively to the petitioner. Accordingly, we reverse in part the judgment of the habeas court.”)

AC39715 - Boria v. Commissioner of Correction (Practice Book § 23-29; “The petitioner claims that the habeas court improperly dismissed his claim (1) that amendments to the risk reduction earned credits statute in 2013 and 2015 violated the ex post facto clause of the United States constitution and (2) that his right to due process had been violated because his guilty plea in his underlying criminal case was not knowingly and voluntarily made. As to the first claim, we disagree and, accordingly, affirm that aspect of the judgment of the habeas court. As to the second claim, although we agree with the petitioner that the habeas court should not have dismissed that claim as an improper successive petition under Practice Book § 23-29, we affirm that aspect of the judgment on the alternative ground that it was barred by collateral estoppel.”)

• Concurrence

AC40090 - Davis v. Commissioner of Correction (“On appeal, the petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) erred in concluding that his trial counsel had not rendered ineffective assistance by failing to (A) file a motion in limine to preclude certain evidence, (B) consult with and present the testimony of an eyewitness identification expert, (C) object to the testimony of a laboratory supervisor on the ground that the testimony violated his right to confrontation under the federal constitution and (D) prepare the petitioner for the presentence investigation interview. We dismiss the petitioner’s appeal.”)

AC40101 - Nicholson v. Commissioner of Correction (Amended writ; “On appeal, the petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal, (2) erroneously concluded that he failed to establish that his state and federal constitutional rights to the effective assistance of counsel were violated,1 (3) abused its discretion in declining to treat a witness at the habeas trial as an expert witness, and (4) abused its discretion in failing to review certain evidence admitted at the habeas trial prior to denying his amended petition for a writ of habeas corpus. We conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal and, accordingly, dismiss the appeal.”)

• Posted in:
• Habeas Corpus Law,
• Recent Opinions

AC40477 - State v. Barjon (Robbery in first degree; conspiracy to commit robbery in first degree; robbery in second degree; conspiracy to commit robbery in second degree; "The defendant, Jean Barjon, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2), robbery in the second degree in violation of General Statutes (Rev. to 2011) § 53a-135 (a) (1), and conspiracy to commit robbery in the second degree in violation of § 53a-48 and General Statutes (Rev. to 2011) § 53a-135 (a) (1). On appeal, the defendant claims that the trial court violated his right to conflict free counsel under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. We affirm the judgment of the trial court.")

AC40694 - State v. Davis (Violation of probation; motion to dismiss; motion for continuance; "The defendant, Frederick M. Davis, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the Commissioner of Correction for nine years. On appeal, the defendant claims that the court (1) improperly denied his motion to dismiss predicated on an alleged lack of jurisdiction, (2) violated his constitutional right to be present at a critical stage of the probation revocation proceeding, and (3) improperly denied his request for a continuance. We affirm the judgment of the trial court.")

• Posted in:
• Criminal Law & Procedure,
• Recent Opinions

AC39759 - LeSueur v. LeSueur ("In this postmarital dissolution appeal, the plaintiff, Janine LeSueur, appeals from the postjudgment orders of the trial court granting the motion for modification of custody and child support filed by the defendant, Andrew LeSueur, and denying her motion for modification of unallocated alimony and child support. Specifically, the plaintiff claims that the court, Tindill, J., (1) abused its discretion by granting the defendant's motion to modify custody and child support because the child support order is predicated on clearly erroneous factual findings and because it terminated the defendant's child support obligation retroactively without sufficient information to evaluate the parties' financial circumstances, and without considering that she continued to incur and pay expenses for the parties' son from September 2, 2015, until the date of the hearing; (2) misconstrued the parties' separation agreement (agreement) regarding the parties' obligations to pay for their children's postsecondary education; and (3) abused its discretion by denying her motion to modify unallocated alimony and support. We affirm in part and reverse in part the judgment of the trial court.")

• Posted in:
• Family Law,
• Recent Opinions

AC40282 - Bruno v. Whipple ("This case returns to us following a remand to the trial court for a hearing in damages. See Bruno v. Whipple, 162 Conn. App. 186, 130 A.3d 899 (2015), cert. denied, 321 Conn. 901, 138 A.3d 280 (2016).The self-represented plaintiff, Lisa Bruno, appeals from the judgment of the trial court rendered in favor of the defendant Heritage Homes Construction Company, LLC. On appeal, the plaintiff claims that the trial court (1) improperly concluded that she failed to prove actual damages resulting from the defendant's breach of a residential construction contract and (2) exceeded the scope of the remand order. We affirm the judgment of the trial court.")

• Posted in:
• Contract Law,
• Recent Opinions

The Connecticut Law Journal, Volume LXXX, No. 22, for November 27, 2018 is now available.

Contained in the issue is the following:

• Table of Contents
• Volume 330: Connecticut Reports (Pages 447 - 462)
• Volume 330: Orders (Pages 942 - 944)
• Volume 330: Cumulative Table of Cases Connecticut Reports
• Volume 186: Connecticut Appellate Reports (Pages 224 - 299)
• Volume 186: Cumulative Table of Cases Connecticut Appellate Reports
• Notices of Connecticut State Agencies

• Posted in:
• Connecticut Law Journal,
• Recent Opinions

AC40439 - State v. Mark T. ("The defendant, Mark T., appeals from the judgment of conviction, rendered after a jury trial, of one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). On appeal, the defendant claims that the trial court abused its discretion by excluding relevant evidence, and thereby violated his constitutional right (1) to present a defense and (2) to testify in his own defense. We disagree and, therefore, affirm the judgment of the trial court.")

• Posted in:
• Criminal Law & Procedure,
• Recent Opinions

AC40112 - Moore v. Commissioner of Correction (Whether petitioner established that trial counsel provided ineffective assistance by failing to inform petitioner of potential total sentence exposure if petitioner succeeded at trial in proving lesser included offense; whether trial counsel provided adequate information for petitioner to make informed decision as to whether to accept state's plea offers; "The petitioner, Joseph Moore, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly rejected his claim that his trial counsel had rendered ineffective assistance. We conclude that the court did not abuse its discretion in denying the petition for certification to appeal, and, accordingly, dismiss the petitioner's appeal.")

• Posted in:
• Habeas Corpus Law,
• Recent Opinions

AC40199 - Citibank, N.A. v. Stein ("The present appeal concerns the foreclosure of real property located at 983 New Norwalk Road in New Canaan (property). The self-represented defendant, Brian Stein, appeals from the judgment of strict foreclosure rendered in favor of the substitute plaintiff, Wilmington Trust, N.A. (Wilmington Trust), as successor trustee to the plaintiff, Citibank, N.A. (Citibank), as trustee of the holders of Bear Stearns Alt-A Trust 2006-6, Mortgage Pass-Through Certificates, Series 2006-6. On appeal, the defendant claims that the trial court, Heller, J., (1) erred by denying his motion to dismiss, (2) abused its discretion by denying his motion to reargue and for reconsideration, (3) abused its discretion by refusing to consider, after the June 2015 trial, documents the defendant considered newly discovered evidence, (4) erred in finding that the mortgagor had defaulted on the note and default notice, and (5) erred under J.E. Robert Co. v. Signature Properties, LLC, 309 Conn. 307, 71 A.3d 492 (2013), in concluding that Citibank had proven its right as a nonholder in possession to bring the foreclosure action. We affirm the judgment of the trial court.")

• Posted in:
• Foreclosure Law,
• Recent Opinions

AC39973 - DE Auto Transport, Inc. v. Eurolite, LLC (Wrongful repossession, statutory theft; "The plaintiff, DE Auto Transport, Inc., appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendants, Eurolite, LLC (Eurolite), and Leopold Zayaczkowski. On appeal, the plaintiff claims that the trial court erred in its damages analysis. We disagree and, accordingly, affirm the judgment of the trial court.")

• Posted in:
• Business Law,
• Contract Law,
• Recent Opinions,
• Tort Law

AC40466 - Bozelko v. D'Amato ("In this legal malpractice action, the plaintiff, Chandra Bozelko, appeals from the summary judgment rendered by the trial court in favor of the defendants, Tina Sypek D'Amato and the Law Offices of Tina Sypek D'Amato. The trial court granted the defendants' motion for summary judgment on the ground that the plaintiff had failed to disclose an expert witness in support of her malpractice claim. The plaintiff challenges the summary judgment on the grounds that expert testimony was unnecessary to prove her claim of legal malpractice because her allegations against D'Amato fit the gross negligence exception to the expert testimony requirement for legal malpractice claims and expert testimony is not required when a legal malpractice case is tried to the court rather than to a jury. Because the plaintiff failed to disclose an expert witness who would testify that her alleged injury was caused by D'Amato's alleged grossly negligent representation of her, we affirm the judgment of the trial court.")

• Posted in:
• Legal Malpractice & Attorney Discipline Law,
• Recent Opinions

SC20010 - Browning v. Van Brunt, DuBiago & Co., LLC ("The sole question presented in this appeal is whether the trust beneficiaries are the proper parties to bring an action against third parties on behalf of the trust. The plaintiffs—Ann Browning, Richard Browning, Lance Browning, Karen Guinta, and Jill Milligan—are beneficiaries of a trust, and appeal from the judgment of the trial court dismissing their breach of contract claim against the defendants Dougherty & Company, LLC (Dougherty), the financial advisor for the trust, and Thomas Olander, an employee of Dougherty. Although the parties agree that the general rule is that beneficiaries of a trust lack standing to bring an action against a third party for liability to the trust, they disagree that the general rule applies under the facts of the present case. See 4 Restatement (Third), Trusts, § 107, p. 102 (2012). Specifically, the plaintiffs claim that they fit within an exception that allows beneficiaries to bring an action against third parties if the trustee improperly refuses or neglects to do so. The defendants respond that the plaintiffs do not fit within the exception to the general rule because they failed to demand that the current trustee bring an action and they did not allege in their complaint that the current trustee improperly neglected to sue the defendants. The defendants further argue that, because standing implicates subject matter jurisdiction, they properly raised the issue by way of a motion to dismiss. We conclude that the trial court properly determined that it lacked subject matter jurisdiction over the claim and, therefore, that the trial court properly granted the motion to dismiss. Accordingly, we affirm the judgment of the trial court.")

• Posted in:
• Contract Law,
• Recent Opinions

The Connecticut Law Journal, Volume LXXX, No. 21, for November 20, 2018 is now available.

Contained in the issue is the following:

• Table of Contents
• Volume 330: Connecticut Reports (Pages 400 - 447)
• Volume 330: Orders (Pages 939 - 942)
• Volume 330: Cumulative Table of Cases Connecticut Reports
• Volume 186: Connecticut Appellate Reports (Pages 163 - 224)
• Volume 186: Memorandum Decisions (Pages 901 - 901)
• Volume 186: Cumulative Table of Cases Connecticut Appellate Reports
• Miscellaneous Notices
• Notices of Connecticut State Agencies

• Posted in:
• Connecticut Law Journal,
• Recent Opinions