David M. Borden

This case involves a foreclosure action brought by Bank of America, as trustee, against Briarwood Connecticut, LLC, after Briarwood defaulted on a $13.5 million promissory note secured by a mortgage on an apartment complex. Briarwood raised a special defense of payment, arguing that the bank's receipt of TARP funds constituted payment on the loan and sought discovery and a continuance to support that defense. The trial court granted the bank's motion for summary judgment as to liability, finding no genuine issue of material fact, and later entered a judgment of strict foreclosure. The appellate court affirmed, holding that Briarwood failed to make a timely or proper request for a continuance under Practice Book § 17-47, did not demonstrate steps taken to obtain discovery, and had conceded the bank's prima facie case for foreclosure. The court reasoned that the special defense of payment lacked sufficient support to create a triable issue.

propertyprocedurebusiness & regulatory

This case involved a negligence claim by a seven-year-old child and her mother against the landlord of their apartment building after the child was seriously injured when another child threw a large rock from a third-floor balcony; the rock came from debris, including rocks and broken concrete, left in the building's backyard common area where children regularly played. The trial court granted summary judgment to the defendant landlord, ruling that it owed no legal duty to the plaintiffs under the undisputed facts. On appeal, the Connecticut Appellate Court reversed, holding that the existence of a duty could not be resolved against the plaintiffs as a matter of law. The court applied the two-part test for duty, finding that harm of this general nature was reasonably foreseeable to an ordinary person in the landlord's position and that public policy considerations did not preclude liability.

torts & liabilityproperty

In State v. Ducharme, the defendant appealed the trial court's denial of his motion to withdraw his guilty plea to sexual assault in the second degree (under the Alford doctrine) and employing a minor in an obscene performance, claiming the plea was involuntary due to his alleged incompetency at the time and that the court's canvass failed to substantially comply with Practice Book § 39-19. The Appellate Court affirmed the trial court's judgment denying the motion. The court treated competency and the knowing/voluntary nature of the plea as separate issues, reviewed the competency finding for abuse of discretion, and held that the trial court reasonably concluded the defendant was competent based on the hearing evidence, including conflicting expert testimony and the defendant's responses during the original plea canvass. It further determined that the canvass adequately covered the constitutional rights waived by the plea.

criminal lawprocedure

In this case, the plaintiff sought to foreclose on a judgment lien arising from a prior dispute over attorney's fees, leading to multiple appeals and motions for appellate attorney's fees. After a prior reversal and remand directing an evidentiary hearing on the reasonableness of fees, the same trial judge presided over the remand proceedings, awarded additional fees, and held the defendant in contempt. The defendant appealed, claiming the judge should have recused under General Statutes § 51-183c. The appellate court reversed the judgments, holding that the statute prohibits the same judge from retrying a case after reversal on appeal and requires assignment to a different judge on remand. The matter was remanded for a new hearing before a different judge on the fee motions, discovery issues, and contempt motion.

procedure

In this case, plaintiff Edmund H. Lohnes sued emergency room physician Vinu Verghese and the Hospital of Saint Raphael for medical negligence after Verghese administered the NSAID Motrin to the plaintiff despite his known allergy, resulting in respiratory failure and further complications. The trial court granted the defendants' motions to dismiss the complaint because the opinion letter attached to the complaint, authored by a pulmonologist, did not come from a "similar health care provider" as required by General Statutes §§ 52-190a and 52-184c, since Verghese was board-certified in emergency medicine. On appeal, the plaintiff argued that the expert qualified under the statutes, that the dismissal violated constitutional provisions including the open courts and due process clauses, and that any defect was merely circumstantial under § 52-123. The Appellate Court affirmed the dismissal, holding that the letter failed to meet the statutory requirements for a similar health care provider and rejecting the constitutional and procedural challenges. The court also addressed the timeliness of the motions but found no waiver in this instance.

proceduretorts & liabilityhealthcare

This case involved an enforcement action by the former commissioner of environmental protection against Cadlerock Properties Joint Venture, L.P., the owner of 335 acres of property in Connecticut, for failing to comply with a 1997 administrative pollution abatement order requiring investigation of potential soil, groundwater, and surface pollution. After years of noncompliance, the trial court issued a permanent injunction mandating compliance with the order and imposed a civil penalty of $282,000 under environmental statutes. On appeal, the defendant argued that the court improperly considered the liability and financial resources of nonparty affiliated entities when assessing the penalty based on the "size of the business involved" factor. The appellate court affirmed the judgment, holding that the trial court did not abuse its discretion in applying the statutory factors for civil penalties, including economic considerations tied to related companies, as no penalty was assessed against nonparties.

environmentbusiness & regulatoryprocedure

In State v. Beebe, the defendant was convicted after a jury trial of two counts of attempted robbery in the first degree and one count of threatening in the second degree, arising from an incident in which he entered a restaurant wearing a disguise, displayed a gun in his waistband, and demanded money before fleeing when the employee screamed. The defendant appealed, claiming that the trial court gave an improper jury instruction on the irrelevance of punishment to the verdict and that the evidence was insufficient to prove attempted robbery while using or threatening a dangerous instrument. The appellate court affirmed the convictions, holding that the jury instruction was a correct statement of law and that witness accounts, the defendant's statements to others, and other evidence provided sufficient support for the jury's findings.

criminal lawguns

In Balaska v. Balaska, the plaintiff mother appealed a trial court order that modified visitation following the parties' 2007 divorce, increasing the defendant father's visitation with their son C to include overnights while suspending his visitation with their daughter A and requiring the parents to attend monthly coparenting counseling. The plaintiff argued that the court abused its discretion by modifying visitation without finding a substantial change in circumstances or that the change served the child's best interests, improperly ordered counseling, erroneously found parental alienation, and referenced non-exhibit materials. The Appellate Court affirmed the trial court's judgment, holding that modifications to visitation orders do not require a threshold finding of substantial change in circumstances, that the trial court properly exercised its broad discretion based on the best interests of the child under General Statutes § 46b-56, and that the remaining claims lacked merit.

family law

The case involved Tyquan Avant Brodia, who was convicted after a jury trial of multiple counts of possession of narcotics with intent to sell, including near a public housing project. The defendant appealed, arguing that the trial court erred in denying his motion to suppress evidence from a warrantless vehicle search, failing to instruct the jury on nonexclusive possession, not requiring a unanimous verdict, and that the evidence was insufficient for conviction. The appellate court affirmed the convictions, determining that the search was justified under the plain view doctrine after officers observed drug activity and contraband, the jury instructions and verdict were proper, and there was sufficient evidence of both actual and constructive possession of the drugs based on witness testimony and the circumstances of the arrest.

criminal lawprocedure

This case concerned a dispute between insurance companies over whether United States Liability Insurance Company had a duty to defend Community Renewal Team, Inc., against a personal injury claim brought by an employee injured during a challenge course event. Arrowood Indemnity Company, as subrogee after settling the underlying claim, sought coverage under a liability policy issued by the defendant, which contained an exclusion for bodily injury arising from participation in any athletic activity. The trial court granted summary judgment to the defendant, finding no duty to defend, and the appellate court affirmed. The court reasoned that the athletic activity exclusion was unambiguous in the factual context of the employee's free-fall participation on the challenge course, so the underlying complaint did not trigger coverage.

business & regulatorytorts & liability

The case involved Justin Cross appealing the denial of his motion to correct an illegal sentence for his 2003 felony murder conviction under General Statutes § 53a-54c. The defendant argued that felony murder does not carry a mandatory minimum sentence of twenty-five years and sought to amend the mittimus accordingly. The court affirmed the trial court's denial, holding that felony murder is a form of murder, a class A felony requiring a twenty-five year mandatory minimum under Connecticut's statutory sentencing provisions as established in State v. Lopez.

criminal lawprocedure

In this postjudgment family case, the plaintiff ex-wife filed motions for contempt claiming the defendant ex-husband had failed to pay child support since 1998 under the terms of their 1994 divorce stipulation and judgment. The defendant argued that an oral agreement had modified his obligation so that he would pay private school expenses instead, and he raised defenses including equitable estoppel and waiver while seeking credits for those payments; he also challenged the trial court's award of attorney's fees. The trial court ruled that the oral agreement was ineffective to modify the written stipulation because it lacked the required formalities, found the defendant owed $225,000 in arrears, rejected his defenses and cross claims, and awarded the plaintiff $25,000 in fees. On appeal, the Appellate Court affirmed, holding that the original support order remained in effect and that the court properly enforced it without crediting the defendant's alternative payments. The core reasoning centered on the enforceability of the stipulation's modification clause and the statutory and contractual basis for the fee award.

family law

The case involved the conviction of Christopher E. on multiple criminal counts, including risk of injury to a child, reckless endangerment, unlawful restraint, and others, arising from an incident in which he argued with his wife, fired a shotgun at the family home's door, injured his father and child with shrapnel, and held family members hostage until surrendering to police. After a jury trial, the defendant was found guilty and sentenced to twelve years incarceration, suspended after fifty-four months, with five years probation. On appeal, the defendant claimed violations of his right to a fair trial due to the admission of prior misconduct evidence and other constitutional errors, but the court affirmed the convictions, rejecting the claims primarily because they were not properly preserved at trial, inadequately briefed, or did not constitute plain error.

criminal law

This case involved a union's appeal from a trial court's decision to vacate an arbitration award that had reduced a correctional officer's termination for sexual harassment to a one-year unpaid suspension and ordered his reinstatement. The officer had been fired for repeated violations of the Department of Correction's zero-tolerance policy under Administrative Directive 2.2, including verbal comments and physical touching that occurred publicly over time. The trial court found the award violated a well-defined public policy against workplace sexual harassment, as reflected in state statutes and the department's directives, particularly given the employee's knowledge of the policy and the ongoing nature of the misconduct. The appellate court affirmed the vacatur, holding that enforcement of the award would undermine that public policy.

labor & employmentcivil rights

This case involved a negligence claim by Karen DiPietro on behalf of her minor daughter, who injured her ankle while playing soccer on a carpet surface at an indoor facility operated by the defendants. The trial court granted summary judgment to the defendants, ruling that the plaintiff needed expert testimony to establish a specific standard of care for indoor soccer facilities. On appeal, the Connecticut Appellate Court held that the claim was governed by traditional premises liability rules rather than specialized standards requiring expert testimony on soccer surfaces, allowing the claim to survive summary judgment against Farmington Sports Arena, LLC, Dimensional Technology Group, LLC, and Paul DiTommaso, Jr. The court further determined that the claim against DiTommaso Associates, LLC was barred by res judicata because a prior action against that entity had been dismissed. The decision reversed the trial court's judgment in part and remanded for further proceedings.

torts & liabilityprocedure

This case involved the dissolution of a marriage between Peter McKenna and Roberta Delente, along with disputes over the enforcement of their premarital agreement, repayment of loans, division of assets including a pension, attorney fees, and a motion for contempt against the plaintiff for alleged violations of automatic orders. The defendant appealed the trial court's rulings, claiming errors in finding the premarital agreement enforceable under New York law, determining the operative event date for a distributive award, exercising discretion on property awards, and denying the contempt motion. The appellate court affirmed the trial court's judgments, concluding that the agreement was valid and enforceable as no special defenses were raised, the operative event was properly identified based on the plaintiff's notice, the asset divisions were within discretion, and there was no contempt. The core reasoning centered on application of New York law to the agreement, statutory provisions on joint property, and procedural rules regarding automatic orders in dissolution actions.

family lawpropertyprocedure

The case involved a petition for a writ of habeas corpus filed by Munsur Abdullah, a black defendant convicted of murder and sentenced to life imprisonment after rejecting a plea bargain. He alleged that Connecticut's judicial procedures for charging, negotiating, and sentencing criminal cases systematically impose a greater 'trial penalty' on black defendants who refuse plea bargains than on white defendants, resulting in racially disparate sentences that violate equal protection under the fourteenth amendment and the Connecticut constitution, regardless of whether any state actor acted with discriminatory purpose. The habeas court dismissed the petition under Practice Book § 23-29(2) for failure to state a claim, and the appellate court affirmed, concluding that federal precedent in McCleskey v. Kemp requires a showing of purposeful discrimination and that the state constitution imposes the same burden.

criminal lawcivil rights

In McKenna v. Delente, the defendant wife appealed the denial of her post-judgment motion to disqualify the trial judge in her marriage dissolution case, claiming that a prorated alimony check from the plaintiff husband dated five days before the December 2007 judgment proved he had improper advance notice of the court's decision to terminate pendente lite alimony and demonstrated judicial bias against her. The trial court denied the motion after a hearing, finding the allegations amounted to speculation without evidence of impropriety and noting that the motion was untimely under Practice Book § 1-23. On appeal, after remanding for an evidentiary hearing before a different judge to develop the factual record on the check, the appellate court affirmed the denial, holding that the defendant's claims lacked support and did not warrant disqualification or vacatur of the proceedings.

family lawprocedure

The case concerned a juvenile respondent's appeal from a trial court order extending her delinquency commitment by six months, where she challenged the authority of a judge trial referee to hear the matter without her written consent under General Statutes § 52-434(a)(3). The appellate court dismissed the appeal as moot, noting that the extended commitment had expired on January 1, 2010, with no further extensions sought, leaving no practical relief available. Although the respondent argued that the issue qualified for review under the capable of repetition yet evading review exception to mootness, the court determined that the claim failed to satisfy the exception's requirements regarding inherently limited duration and likelihood of recurrence affecting the same party. The ruling emphasized that courts must address only existing controversies and cannot issue advisory opinions on moot questions.

criminal lawfamily lawprocedure

In this foreclosure action, U.S. Bank National Association, as trustee for the Structured Asset Investment Loan Trust, sought strict foreclosure on property owned by Germanie Fequiere after she defaulted on a promissory note originally issued to BNC Mortgage, Inc. and secured by a mortgage assigned from Mortgage Electronic Registration Systems, Inc. The defendant moved to dismiss for lack of subject matter jurisdiction, claiming the plaintiff lacked standing because the mortgage assignment was invalid and the trust was not a valid express trust under General Statutes § 52-106. The trial court denied the motion to dismiss, and the appellate court affirmed that ruling. The court reasoned that the plaintiff, as holder of the note endorsed in blank, was entitled to foreclose under General Statutes § 49-17, and the defendant's claim regarding the trust was without merit.

propertyprocedure