author: GRUENDEL, J.

text:
    JOSEPH FRADIANNI v. PROTECTIVE LIFE INSURANCE COMPANY ET AL.
    (AC 34550)
    Gruendel, Lavine and Beach, Js.

      Argued April 11
    officially released August 20, 2013

      Keith Yagaloff for the appellant (plaintiff).

      Katherine A. Scanlon, with whom was Peter J. Vodola, for the appellee (named defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Joseph Fradianni, appeals from summary judgment rendered by the trial court in favor of the defendant, Protective Life Insurance Company. He claims that the court improperly found that the defendant was entitled to judgment as a matter of law because no genuine issue of material fact exists as to whether the plaintiffs claims were time barred. We agree, and accordingly, reverse the judgment of the court.

The following facts and procedural history are pertinent to this appeal. In 1992, the plaintiff entered into a contract for universal life insurance with the defendant’s predecessor in interest, Interstate Assurance Company (Interstate), which provided for a $130,000 death benefit. According to the policy schedule, the policy had a seventeen year guaranteed death benefit with a monthly minimum premium of $267.80, or $3213.60 annually. Incorporated into the written policy provided to the plaintiff was a “table of monthly guaranteed cost of insurance rates,” which indicated, based on the age of the insured, the maximum rate the plaintiff could be charged for the insurance component of the policy. The table illustrates that the rate of the cost of insurance increases with the age of the insured. The table also contained the statement that “[f]or cost of insurance rates which are not standard class, the schedule may show . . . rating factors to be applied to [the] table . . . and/or . . . additional monthly charges.” According to the document listing the policy’s benefit information, the policy was issued to the plaintiff with a “rating factor [of] 100%.” The policy itself states that the “Cost of Insurance rates will not exceed those shown in the Table . . . .”

When purchasing the policy, the plaintiff also received an “exchange program illustration,” which detailed the value of the policy over its life, if the plaintiff were to pay $4700 in the first year and $2600 annually for the following eleven years. Thereafter, the illustration assumes no payment by the plaintiff. After year twelve, the illustration indicates that the net accumulated value decreases substantially each year until year nineteen when, as the illustration states, “more premium [is] needed to maintain policy values.”

The plaintiff made a $4700 payment at the inception of the policy and, thereafter, paid toward the policy $2600 per year. A portion of these payments was dedicated to funding the cost of insurance and the balance was placed in an interest-bearing investment account from which future cost of insurance charges would be deducted, or would otherwise accumulate for his benefit. The policy set forth the formula by which the “cost of insurance” would be calculated: “The Cost of Insurance for the Insured is (a) times the result of (b) less (c) divided by 1000 where ... (a) is the Cost of Insurance Rate; (b) is the Insured’s Death benefit on the Monthly Anniversary Date divided by 1.0036748; and (c) is the Accumulated Value on the Monthly Anniversary Date.” The policy also provided for a sixty-one day grace period in the event that “the Cash Value on any Monthly Anniversary Date ... is not sufficient to pay the next Monthly Deduction [comprised of the Cost of Insurance plus any monthly policy charges].”

The defendant sent the plaintiff annual reports detailing the value of the policy, the interest rate applied to the funds in the investment account, and the projected date on which the policy would terminate based on the applicable interest and mortality assumptions. In February 2003, the plaintiff or his wife inquired with the defendant about the status of his policy. The defendant, in response, provided an illustration explaining that “[b]ased on guaranteed assumptions, [the] policy would terminate in 2006 unless higher premiums were paid.” In September, 2008, the plaintiffs policy lapsed because the funds available in the investment account combined with the plaintiffs payment were insufficient to cover the cost of insurance. The defendant offered to reinstate the policy after its lapse if the plaintiff made a one time payment of $5257 and agreed to pay $620 monthly thereafter. The plaintiff rejected the offer.

On August 16, 2010, the plaintiff filed an amended complaint alleging, inter alia, that the defendant engaged in a course of conduct whereby it breached its contract with him by: (1) charging rates in excess of those outlined in the policy; (2) failing to place the appropriate amount of his annual payments into the investment account; (3) allowing his policy to lapse; and (4) requiring him to make a one time payment of $5257 and monthly payments in excess of the guaranteed maximum under the policy in order to reinstate the policy. Thereafter, the defendant moved for summary judgment on the ground that the plaintiff’s claims were barred by the six year statute of limitations set forth in General Statutes § 52-576 (a). The plaintiff objected to the motion, arguing that the continuing course of conduct doctrine tolled the statute of limitations.

The court granted the defendant’s motion, concluding that the continuing course of conduct doctrine did not toll the statute of limitations because the defendant did not owe a fiduciary duty to the plaintiff, nor was the defendant’s periodic charging of the plaintiff and the ultimate lapse of the policy properly characterized as later wrongful conduct related to its alleged initial wrongful act that would give rise to a continuing duty owed to the plaintiff. The court also rejected the plaintiffs alternative argument that each annual charge by the defendant constituted a breach of the contract, placing within the statute of limitations his claims arising from the policy lapse and the charges occurring within the six years prior to the filing of his complaint. From this judgment, the plaintiff now appeals.

“As a preliminary matter, we set forth the applicable standard of review for appeals from the entry of summary judgment. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Rainforest Cafe, Inc. v. Dept. of Revenue Services, 293 Conn. 363, 371, 977 A.2d 650 (2009).

I

The plaintiff first claims that the trial court erred in finding that the continuing course of conduct doctrine did not toll the six year statute of limitations prescribed by § 52-576 (a). Specifically, he claims that the defendant engaged in a breaching course of conduct, beginning in 1992, when the defendant annually charged the plaintiff the cost of insurance applicable to insureds classified as double the standard risk, in excess of the maximum cost of insurance rates set forth in the policy. This breaching course of conduct continued, according to the plaintiff, when the defendant drew on the accumulated cash value of the policy to cover the excessive cost of insurance charges, which led to the ultimate lapse of the policy. We disagree. Although we conclude that the court properly determined that the continuing course of conduct doctrine does not apply under the circumstances of the present case, we reach this conclusion by way of an alternate rationale.

Our Supreme Court recently examined the purpose and application of the continuing course of conduct doctrine in Watts v. Chittenden, 301 Conn. 575, 22 A.3d 1214 (2011). “[That] court has recognized the continuing course of conduct doctrine in many cases involving claims sounding in negligence. For instance, [it has] recognized the continuing course of conduct doctrine in claims of medical malpractice. ... In doing so, [it] noted that [t]he continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied. . . . The continuing course of conduct doctrine has also been applied to other claims of professional negligence in this state. . . .

“In these negligence actions, [our Supreme Court] has held that in order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where [the court] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. . . .

“Therefore, a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff. . . .

“A second requirement for the operation of the continuing course of conduct doctrine is that there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. . . . [Our Supreme Court] has held this requirement to be satisfied when there was wrongful conduct of a defendant related to the prior act.” (Citations omitted; internal quotation marks omitted.) Id., 583-85.

“In examining the use of the continuing course of conduct doctrine, [our Supreme Court was] mindful of the nature of the doctrine as [then] Chief Judge Richard Posner of the Seventh Circuit Court of Appeals has explained: ‘A violation is called “continuing,” signifying that a plaintiff can reach back to its beginning even if that beginning lies outside the statutory limitations period, when it would be unreasonable to require or even permit him to sue separately over every incident of the defendant’s unlawful conduct. The injuries about which the plaintiff is complaining in [these] case[s] are the consequence of a numerous and continuous series of events. . . . When a single event gives rise to continuing injuries . . . the plaintiff can bring a single suit based on an estimation of his total injuries, and that mode of proceeding is much to be preferred to piecemeal litigation despite the possible loss in accuracy. But in [cases in which the continuing course of conduct doctrine is applicable, each incident increases the plaintiffs injury]. Not only would it be unreasonable to require him, as a condition of preserving his right to have [the full limitations period] to sue ... to bring separate suits [during the limitations period] after each [incident giving rise to the claim]; but it would impose an unreasonable burden on the courts to entertain an indefinite number of suits and apportion damages among them.

“ ‘In between the case in which a single event gives rise to continuing injuries and the case in which a continuous series of events gives rise to a cumulative injury is the case in which repeated events give rise to discrete injuries, as in suits for lost wages. If [a] plaintiff were seeking backpay for repeated acts of wage discrimination (suppose that every pay day for five years he had received $100 less than he was entitled to), he would not be permitted to reach back to the first by suing within the limitations period for the last. ... As emphasized in Pollis [v. New School for Social Research, 132 F.3d 115, 119 (2d Cir. 1997)], the damages from each discrete act of discrimination would be readily calculable without waiting for the entire series of acts to end. There would be no excuse for the delay. And so the violation would not be deemed “continuing.” ’ ” (Citations omitted.) Watts v. Chittenden, supra, 301 Conn. 587-89.

Our Supreme Court, looking to a case decided by a Texas Court of Appeals; Twyman v. Twyman, 790 S.W.2d 819 (Tex. App. 1990); explained that the doctrine applies to cases, such as negligent infliction of emotional distress, that “involv[e] a continuing course of conduct which over a period of years cause [s] injury. Since usually no single incident in a continuous chain of tortious activity can fairly or realistically be identified as the cause of significant harm, it seems proper to regard the cumulative effect of the conduct as actionable.” (Internal quotation marks omitted.) Watts v. Chittenden, supra, 301 Conn. 592.

The case now before us, where the plaintiff alleges that the defendant breached the insurance contract annually, at precisely identifiable moments when it allegedly overcharged the plaintiff, is analogous to the suit for lost wages as described by Chief Judge Posner. The plaintiffs damages arising from the defendant’s alleged breaches were readily calculable and actionable at the time of breach, unlike those cases where it is the cumulative effect of the defendant’s behavior that gives rise to the injury. Simply put, the plaintiffs allegations do not constitute a “course of conduct” by the defendant; but instead allege a series of repeated breaches over a period of years. Accordingly, the continuing course of conduct doctrine is inapplicable to the present case. We, therefore, conclude that the court properly found that the doctrine did not serve to toll the six year statute of limitations set forth in § 52-576 (a).

II

The plaintiff also claims that the court erred in rejecting his alternate argument that the statute of limitations did not bar the claims for breach of contract that occurred annually in the six years preceding the filing of this action or for the defendant’s alleged breach of terminating the policy. We agree.

In rejecting the plaintiff’s alternate argument, the court relied primarily on a Civil War era United States Supreme Court case, New York Life Ins. Co. v. Statham, 93 U.S. 24, 23 L. Ed. 789 (1876). Statham presented the question of whether several insureds’ nonpayment of whole life insurance premiums was excused by the prohibition of commerce between members of the Confederacy and members of the Union during the Civil War, thereby allowing for the revival of their lapsed policies. Id., 28. As part of their argument to the Supreme Court, the plaintiff insureds analogized life insurance policies to fire insurance policies, which are renewed from year to year. Id., 30. The Supreme Court rejected this argument, reasoning that the annual payments toward a policy of life insurance are installment payments in consideration for an entire insurance for life, rather than payments that initiate a new contract for a given year. Id. Applying the principle set forth in Statham to the present case, the court found that the defendant’s charging of the plaintiff, despite occurring annually, was indivisible, and therefore, did not serve to reinitiate the statute of limitations period.

Statham, however, does not control the factual scenario presented in this case. In Statham, the Supreme Court rejected the insureds’ contention that each annual premium payment initiated a new contract for life insurance. The Supreme Court did not decide the question of whether annual overcharges by the insurer may constitute discrete, but recurring, breaches of the contract, as the plaintiff in the present case argues. Although we agree with the general principle that a contract for life insurance is indivisible, it does not follow then that a life insurance contract is not susceptible to repeated breaches.

The defendant, each year, calculated the cost of insurance for the plaintiff based on his age, sex, and rating class. It then, periodically, deducted from the policy’s accumulated cash value an amount necessary to cover that calculated cost of insurance. The plaintiff alleges that each year the defendant charged him for a cost of insurance that was in excess of the maximum amount allowed under the terms of the contract and then deducted that excessive amount from the policy’s accumulated cash value. These actions, if found to be true, would constitute separate breaches by the defendant, several of which occurred within the statute of limitations period. We conclude, therefore, that there exists a genuine issue of material fact as to whether the defendant breached the insurance contract. Accordingly, the rendering of summary judgment was improper.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       Louis Gulino was also a defendant originally named in the plaintiffs action, but is not a party to this appeal. We, therefore, refer to Protective Life Insurance Company as the defendant throughout this opinion.

       The plaintiff baldly asserts that the court erred in denying his own motion for summary judgment, but does not brief the issue in any maimer. We, therefore, deem this claim abandoned. See Roby v. Connecticut General Life Ins. Co., 166 Conn. 395, 398 n. 1, 349 A.2d 838 (1974) (claims not briefed deemed abandoned). During oral argument before this court, the plaintiff also abandoned all but his breach of contract claim. Accordingly, we review only this claim.

       The glossary published by the Connecticut Insurance Department defines “universal life insurance” as: “A flexible premium [l]ife [(Insurance [pjolicy under which the policyholder may change the death benefit from time to time (with satisfactory evidence of insurability for increases) and vary the amount or timing of premium payments. Premiums (less expense charges) are credited to a policy account from which mortality charges are deducted and to which interest is credited at a rate, which may change from time to time.” Connecticut Insurance Department, “Glossary,” (last modified August 30, 2011), available at http://www.ct.gov/cid/cwp/view.asp?Q=390158 (last visited August 8, 2013).

       As defined by the Connecticut Insurance Department, a “standard risk” is “[a] person, who, according to á company’s underwriting standards, is entitled to purchase insurance protection without extra rating or special restrictions.” Connecticut Insurance Department, “Glossary,” (last modified August 30,2011), available athttp://www.ct.gov/cid/cwpMew.asp?Q=390158 (last visited August 8, 2013).

       A “rated policy,” as defined by the Connecticut Insurance Department, is “[a]n insurance policy issued at a higher-than-standard premium rate to cover a higher-than-standard risk; for example, for an [i]nsured who has impaired health or a hazardous occupation.” Connecticut Insurance Department, “Glossary,” (last modified August 30, 2011), available at http:// www.ct.gov/cid/cwp/view.asp?Q=390158 (last visited August 8, 2013).

       The contract guaranteed an interest rate of 4.5 percent for funds placed in this account.

       At least one of these reports, the report for the period from 2005 to 2006, contains the following alert: “Important: Based on current interest and mortality assumptions, [the] policy will terminate” on May 16, 2008.

       The plaintiff claims, and the defendant disputes, that the 100 percent rating factor set forth in the contract indicates that the plaintiff was classified as a standard risk. In other words, according to the plaintiffs reading of the contract, he should have been charged 100 percent of the standard risk premium, rather than double the standard risk premium that the defendant did charge him.

       We note that the continuing course of conduct doctrine is one classically applicable to causes of action in tort, rather than in contract. The doctrine concerns itself with “wrongs,” the nomenclature of tort, not with “breach,” the language of contract. See S. Thel and P. Siegelman, “You Do Have to Keep Your Promises: A Disgorgement Theory of Contract Remedies,” 52 Wm. & Mary L. Rev. 1181, 1185-86 (2011) (conventional wisdom of contract law does not involve moral culpability of breaching party). Because, however, we have determined that the plaintiff’s allegations do not constitute a “course of conduct” in the first instance, we need not address whether the continuing course of conduct doctrine may apply outside of actions in tort.

       The defendant also argues that the continuing course of conduct doctrine does not toll the statute of limitations because the plaintiff “discovered the allegedly actionable activity” when he inquired about his policy in 2003. See
        Rosato v. Mascardo, 82 Conn. App. 396, 405, 844 A.2d 893 (2004) (“the continuing course of conduct doctrine has no application after the plaintiff has discovered the harm”). Because we already have determined that the continuing course of conduct doctrine is inapplicable to the facts of this case, we need not address this argument. We do, however, note that we are unaware of any authority that stands for the proposition that this principle would apply to actions for breach of contract.

       Because it is not necessary to the resolution of this appeal, we do not pass on the question of whether a variable universal life insurance policy, such as the plaintiffs, is, in fact, indivisible, as with whole life or term life insurance policies. We do note, however, that there are substantial differences among these kinds of policies. “Term life insurance is pure protection. The policyholder pays the insurance company a premium to protect against the risk of death for a limited time period . . . renewable at the insured’s option. . . . Whole life was developed to solve the problem caused by individuals living to older ages when the premiums for term insurance became prohibitively expensive. With whole life the insured pays a level premium over the life of the policy. In early years the premium substantially exceeds the risk of mortality and policy expenses, and the insurance company uses this excess premium for investment and development of a policy reserve or cash value. The reserve value increases constantly over the life of the policy and makes up part of the policy death benefit. The insurance company’s risk as measured by the difference between the policy death benefit and reserve value decreases over the life of the policy. At older ages the insurance company need not collect a ‘term’ type premium for the entire policy death benefit. Rather, it merely needs a premium sufficient to cover its decreasing risk exposure. . . .
      “Universal life may be described as a repackaging of traditional whole life in which protection and accumulation elements found in whole life have been separated and unbundled. . . . When the policy-holder makes a [payment], the insurance company removes an expense charge. . . . The net deposit is then credited to the accumulation fund under the contract. As of an accounting date each month, the accumulation fund is credited with monthly interest, and a charge is made against the monthly cost of [insurance] . . . .” R. Shaw, “Universal Life Insurance—How It Works,” 71 A.B.A. J. 68, 68-69 (1985). “The universal policy will lapse if the cash value or premium payments fall below the cost of insurance. Whole life policies, on the other hand, guarantee the death benefit so long as the premiums are paid. . . . [Because] [u]niversal life premium payments are credited to the insured’s account along with interest income . . . the policy owner [has] certain discretion to increase or decrease premium payments as their financial situation changes over time.” J. Kabaker, “Life Insurance in Estate Planning: Universal Life Insurance—A Ticking Time Bomb,” 9 J. Pract. Est. Plan. 11, 11-12 (2007).

       The defendant argues that if it breached the contract at all, the breach occurred in 1992 when it assigned the plaintiff a 100 percent rating factor, and the plaintiffs claims are therefore time barred. This claim is unavailing. Although it may be true that the original assignment of the 100 percent rating factor was a breach of the insurance contract now outside the statute of limitations, that does not, by extension, place outside of the statute of limitations the alleged breaches of each subsequent annual application of the rating factor, the calculation of the cost of insurance charges based on that application, and the deductions from the policy’s accumulated cash value.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    MARCI FESTA v. BOARD OF EDUCATION OF THE TOWN OF EAST HAVEN
    (AC 34923)
    Robinson, Alvord and Bishop, Js.

      Argued May 15
    officially released August 20, 2013

      Jason R. Stanevich, with whom, on the brief, was Lori B. Alexander, for the appellant (defendant).

      John R. Williams, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant, the Board of Education for the Town of East Haven (board), appeals from the judgment of the trial court remanding the board’s decision to terminate the employment contract of the plaintiff, Marci Festa, for further proceedings pending an independent medical evaluation of the plaintiff. The board claims that the trial court erred by (1) not affirming the board’s decision to terminate the plaintiffs employment for insubordination, and/or other due and sufficient cause pursuant to the Teacher Tenure Act, General Statutes § 10-151, because the court improperly considered the issue of discrimination, and (2) finding that the board violated the Fair Employment Practices Act, General Statutes § 46a-60, by terminating the plaintiffs employment before conducting an independent medical evaluation of the plaintiff. We reverse the judgment of the trial court.

The record reveals the following facts and procedural history relevant to our resolution of this appeal. The plaintiff, a tenured teacher, began her employment as an elementary school teacher with the East Haven Public Schools in August, 1996, and is certified to teach kindergarten through sixth grade. She taught third grade until the board transferred her to a kindergarten position for the 2006-2007 school year.

In August, 2006, the plaintiff was involved in an automobile accident. She did not take any leave from work and was able to continue her employment as a kindergarten teacher. In June, 2008, several teachers filed complaints against the plaintiff alleging that she had made inappropriate comments, which, upon investigation, the board found to have merit. The plaintiff, however, was involved in a second automobile accident before the board issued a disciplinary decision. Due to the injuries sustained from the second accident, the plaintiff remained out of work from October, 2008, until May, 2009.

Shortly after the start of the 2009-2010 school year, the board received complaints that the plaintiff again had made inappropriate comments to parents and to staff. She was suspended pending an investigation and was also suspended for five days because of the June, 2008 complaints. The plaintiffs attorney suggested that her behavior was the result of injuries she suffered from the two automobile accidents, and the board agreed to send the plaintiff for an independent medical examination conducted by Adam Mednick, a neurologist.

Mednick concluded that the plaintiff had a traumatic brain injury due to the two automobile accidents and that a combination of the plaintiffs traumatic brain injury and the medication she was taking for pain were the likely cause of the plaintiffs inappropriate comments. Mednick’s report did not discuss whether the plaintiffs abilities were limited or comment on her teaching capabilities, as those issues were not within the scope of the examination. Upon review of the report, the board decided to reinstate the plaintiff.

Between the 2009-2010 and 2010-2011 school years, the board conducted unprecedented restructuring of the school district, closing two schools and restructuring the remaining elementary schools. As a result, approximately fifty percent of the teachers experienced a change in assignment. The plaintiff was one of these teachers. By letter dated July 27, 2010, Superintendent Anthony Serio informed the plaintiff that she was being transferred to teach third grade at East Haven Academy.

On August 17, 2010, the plaintiff met with Serio and Assistant Superintendent Erica Forti to discuss her reinstatement and her new position teaching third grade. At that meeting, the plaintiff discussed her concerns about teaching third grade in light of her traumatic brain injury and requested a transfer back to a kindergarten classroom. She also presented Serio with a letter from her physician, Mark Thimineur, dated August 16, 2010. Thimineur’s letter stated that although the plaintiff was capable of teaching kindergarten, in his opinion, she was incapable of teaching third grade because she struggled with “certain cognitive difficulties” and therefore, she would “not be able to handle adequately the complexities of a third grade level teaching responsibility.” Serio declined to change the plaintiffs assignment, stating that he was unaware of any factual basis upon which Thimineur could base his opinion since, to his knowledge, he never contacted the board to determine the difference in skill set needed to teach the two grades. Furthermore, Serio stated that there was no difference in the skills and abilities required to teach the two grades and therefore, he believed that assigning the plaintiff to a third grade classroom was in the best interest of her, the students, and the school district.

Serio reaffirmed his decision and reasoning not to transfer the plaintiffs teaching assignment in a letter to the plaintiff dated August 20, 2010. He offered to discuss any accommodations the plaintiff might need in her new position and stated that he expected the plaintiff to start the school year as scheduled. The plaintiffs lawyer responded and requested on his client’s behalf that the board transfer the plaintiff to a kindergarten position as a reasonable accommodation of her disability. Serio again refused to authorize the transfer, but invited the plaintiff to speak with him about any accommodations necessary for her third grade position. On September 1, 2010, the plaintiff did not appear for the first day of work for teachers in the East Haven Public Schools. She did not alert the board that she would be absent, nor did she file a grievance concerning her third grade position with the teacher’s union. Because of her absence, other teachers unpacked and prepared her classroom for the students who would begin school the following week. The board also made last minute position transfers and hired another teacher to cover the plaintiffs position. Because of her failure to appear on the first day of work, Serio wrote the plaintiff a letter informing her that he believed she had abandoned her position and, thus, resigned. Thereafter, the board terminated her salary and benefits.

The plaintiff filed a civil action in the Superior Court, alleging that her employment was terminated in violation of the Teacher Tenure Act because the board did not hold a hearing to determine if there was cause under the statute to justify that termination. As part of a settlement agreement, the board agreed to reinstate the plaintiff and to initiate an administrative hearing pursuant to § 10-151. By letter dated November 23,2010, the board informed the plaintiff that her employment contract was under consideration for termination. The plaintiff responded, seeking a statement of the reasons why the board was considering terminating her employment contract. The plaintiff was provided with a statement of reasons that cited job abandonment, insubordination, and other due and sufficient cause as grounds for her termination. She then requested a hearing.

After three days of proceedings, the impartial hearing panel (panel) concluded that the plaintiff was insubordinate and that other due and sufficient cause existed to support the plaintiff’s termination. The panel unanimously recommended that the board terminate the plaintiffs employment for insubordination and other due and sufficient cause. On May 25, 2011, the board informed the plaintiff that the board had adopted the findings of fact, conclusions and recommendations of the panel, and, accordingly, terminated the plaintiffs employment contract.

On May 31, 2011, the plaintiff filed the present action in the Superior Court, pursuant to the Teacher Tenure Act, appealing from the board’s decision to terminate her employment. In a memorandum of decision dated July 26, 2012, the court held that the board violated the plaintiffs rights under the Fair Employment Practices Act by not conducting an independent medical evaluation of the plaintiff before terminating her employment. It found that the evidence presented to the panel supported a prima facie case of discrimination on the basis of the board’s failure to order further testing of the plaintiff before denying her request to teach kindergarten. Thus, the court found that a credible argument had been made that the plaintiffs mental disability claim was, in effect, ignored by the board, and therefore, remanded the case back to the board for further proceedings pending an independent medical evaluation of the plaintiff. Because of this ruling, the court did not determine whether the panel’s factual findings supported its legal conclusions that the plaintiffs employment properly was terminated for insubordination and other due and sufficient cause. This appeal followed.

We begin by setting forth the standard of review and other legal principles pertinent to this appeal. Pursuant to the Teacher Tenure Act, a court reviewing an appeal from the decision of the board “may affirm or reverse the decision appealed from in accordance with subsection (j) of section 4-183.” General Statutes § 10-151 (e). General Statutes § 4-183 Q) provides: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the corut finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.”

“Judicial review of the school board’s administrative decision follows established principles of administrative law. The court’s ultimate duty is only to decide whether, in light of the evidence, the [board] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the [board] must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically flow from such facts. . . . Judicial review of [a board’s] decision requires a corurt to determine whether there is substantial evidence in the administrative record to support the [board’s] findings of basic fact and whether the conclusions drawn from those facts are reasonable.” (Citation omitted; internal quotation marks omitted.) Langello v. West Haven Board of Education, 142 Conn. App. 248, 264-65, 65 A.3d 1 (2013). “Our task is to review the court’s decision to determine whether it comports with [§ 4-183 (j)], and whether the court reviewing the [board’s decision] acted unreasonably, illegally, or in abuse of discretion.” (Internal quotation marks omitted.) Lawendy v. Connecticut Board of Veterinary Medicine, 109 Conn. App. 113, 118, 951 A.2d 13 (2008).

I

The board claims that the trial court erred in not affirming the board’s decision to terminate the plaintiffs employment for insubordination and other due and sufficient cause. It argues that the court failed to uphold the plaintiffs termination on the basis of the undisputed factual findings because the court improperly considered the plaintiffs disability claim, thereby abusing its discretion. The plaintiff argues that the court properly considered the issue of the board’s compliance with the Fair Employment Practices Act because the plaintiff raised the board’s failure to make a reasonable accommodation at the administrative hearing as a defense for her failure to report for work. The plaintiff argues that the board failed to reasonably accommodate her disability, and, therefore, she was not insubordinate, nor was there other due and sufficient cause to terminate her employment. Because the plaintiff raised the issue of reasonable accommodation as a defense to her termination, and in light of our recent decision in Langello v. West Haven Board of Education, supra, 142 Conn. App. 248, we conclude that the court did not abuse its discretion by considering whether the board complied with the Fair Employment Practices Act.

In Langello, “we conclude[d] that any teacher who is terminated pursuant to the Tenure Teacher Act enjoys the protections of the Fair Employment Practices Act. A contrary conclusion . . . would thwart the purpose of the Fair Employment Practices Act. To ensure compliance with the purpose of the Fair Employment Practices Act, a teacher who is discharged for any of the reasons enumerated in § 10-151 (d) must be afforded the protections of § 46a-60.” (Emphasis added.) Id., 260. Section 46a-60 (a) (1) prohibits discrimination because of an individual’s “present or past history of mental disability, intellectual disability, learning disability or physical disability . . . .” Moreover, our Supreme Court has held that the Fair Employment Practices Act requires “employers to make a reasonable accommodation for an employee’s disability.” Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415, 944 A.2d 925 (2008).

Therefore, in keeping with the public policy that prohibits discrimination because of disability, and our recent precedent established in Langello, we conclude that the court did not abuse its discretion in considering whether the plaintiff was afforded the protections of the Fair Employment Practices Act when the board terminated the plaintiffs employment for insubordination and other due and sufficient cause.

II

Having determined that the court did not abuse its discretion by considering the plaintiffs claim regarding the Fair Employment Practices Act, we must now address the board’s claim that the trial court acted unreasonably, illegally or in abuse of its discretion in determining that the plaintiff was not afforded the protections of the Fair Employment Practices Act. The board argues that the court improperly found that it violated the Fair Employment Practices Act by terminating the plaintiff without conducting an independent medical evaluation of the plaintiff. We agree with the board.

On appeal to the trial court, the plaintiff argued that the board failed to provide the plaintiff with a reasonable accommodation for her disability because the board denied her request to transfer to a kindergarten position. Furthermore, the plaintiff argued that the board failed to make any effort to engage her in the interactive process required under the Fair Employment Practices Act.

As previously stated, the Fair Employment Practices Act requires employers to make a reasonable accommodation for an employee’s known disability. Curry v. Allan S. Goodman, Inc., supra, 286 Conn. 415. Although this case concerns Connecticut law, our Supreme Court has held that “we review federal precedent concerning employment discrimination for guidance in enforcing our own antidiscrimination statutes.” Id.

To assert a reasonable accommodation claim, “the plaintiff must produce enough evidence for a reasonable jury to find that (1) he is disabled within the meaning of the [statute], (2) he was able to perform the essential functions of the job with or without a reasonable accommodation, and (3) [the defendant], despite knowing of [the plaintiffs] disability, did not reasonably accommodate it. ... If the employee has made such a prima facie showing, the burden shifts to the employer to show that such an accommodation would impose an undue hardship on its business.” (Citations omitted; internal quotation marks omitted.) Id., 415-16.

“Once a disabled individual has suggested to his employer a reasonable accommodation, federal law requires, and [our Supreme Court] agreefs], that the employer and the employee engage in an informal, interactive process with the qualified individual with a disability in need of the accommodation . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. ... In this effort, the employee must come forward with some suggestion of accommodation, and the employer must make a good faith effort to participate in that discussion.” (Citation omitted; internal quotation marks omitted.) Id., 416. “The need for bilateral discussion arises because each party holds information the other does not have or cannot easily obtain. . . . However, recognizing that the responsibility for fashioning a reasonable accommodation is shared between the employee and the employer . . . courts have held that an employer cannot be found to have violated the [American Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.] when responsibility for the breakdown of the informal, interactive process is traceable to the employee and not the employer.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999).

“Neither the ADA nor the regulations assign responsibility for when the interactive process fails. No hard and fast rule will suffice, because neither party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility.” Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996).

The record reveals that the parties did engage in the interactive process. The plaintiff, Serio, and Forti met on August 17, 2010, to discuss the plaintiffs reinstatement and transfer to the third grade. At this meeting, the plaintiff presented Serio with a letter from her physician, which stated that she could not teach third grade because of her “cognitive difficulties,” but that she was still capable of teaching kindergarten. This letter did not discuss what cognitive difficulties the plaintiff had or how those difficulties related to her job. At the end of the meeting, Serio stated that he was unaware of any basis upon which her physician could opine that the plaintiff was qualified to teach kindergarten but not third grade. Additionally, because Serio found no difference in the skills needed to teach the two grades, he declined the plaintiffs transfer request, but invited her to discuss any other accommodations that might aid her in her third grade position. In a letter dated the following day, he reduced these communications to the plaintiff to writing. Instead of providing Serio with additional medical information that would allow him either to conclude that the plaintiffs request was reasonable, or to aid him in suggesting other reasonable accommodations, the plaintiff responded by demanding that the board transfer her to a kindergarten position. In response, Serio denied her request, but again invited the plaintiff to discuss any accommodations that might aid her in her position as a third grade teacher. The plaintiff then failed to report to work on the first day of work for teachers.

The record also reveals that the plaintiff was responsible for obstructing the interactive process between the parties. The plaintiff is not entitled to the accommodation of her choice; she is entitled to a reasonable accommodation. See McElwee v. County of Orange, 700 F.3d 635, 641 (2d Cir. 2012) (“[a]lthough a public entity must make reasonable accommodations, it does not have to provide a disabled individual with every accommodation he requests or the accommodation of his choice” [internal quotation marks omitted]). Moreover, if the plaintiff needs a specific accommodation, then she needs to provide the board with enough information for the board to understand why only that accommodation is sufficient. “Where the missing information is of the type that can only be provided by one of the parties, failure to provide the information may be the cause of the breakdown and the party withholding the information may be found to have obstructed the process.” Beck v. University of Wisconsin Board of Regents, supra, 75 F.3d 1136; see also Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997) (employers will not always understand what employee is capable of and employee will not always understand what accommodations are reasonably available).

After Serio informed the plaintiff during their August 17, 2010, meeting that the letter from her physician was not sufficient to support her position that only a kindergarten position was a reasonable accommodation for her disability, the plaintiff failed to provide Serio with any additional information. The record reveals that the plaintiff was aware that the board lacked sufficient information to understand how her disability specifically affected her job performance, and, therefore, did not understand why her requested accommodation was necessary or reasonable as her physician’s letter did not inform the board of how the plaintiffs disability affected her skills or job performance, or on what basis he founded his opinion that only a kindergarten position would accommodate her disability. Only the plaintiff could provide the board with information of her medical condition, and without such information, the board could not have been expected to know what accommodations were necessary and reasonable to aid the plaintiff. Instead of providing that information, the plaintiff again demanded a transfer to a kindergarten classroom. She then failed to report to work on September 1, 2010, for orientation, after Serio again rejected her request but expressed that he would be willing to discuss accommodations so that she could teach the third grade. The plaintiff obstructed the process by failing to engage Serio in his offers to discuss alternate reasonable accommodations, and then by failing to report to work on September 1, 2010. See Beck v. University of Wisconsin Board of Regents, supra, 75 F.3d 1135 (“[a] party that fails to communicate, by way of initiation or response, may also be acting in bad faith” [emphasis added]). By failing to accept the board’s subsequent offers to discuss other reasonable accommodations, the plaintiff did not demonstrate a good faith effort to participate in the process.

Furthermore, by failing to report to work, the plaintiff withdrew from the interactive process before the performance of her teaching duties was imminent. Courts have found, and we agree, that the employer is not hable for failing to make a reasonable accommodation until the employee’s problematic duties are imminent. See Loulseged v. Akzo Nobel Inc., supra, 178 F.3d 737 (“we believe that in an informal process the employer is entitled to move at whatever pace he chooses as long as the ultimate problem—the employee’s performance of her duties—is not truly imminent”). The plaintiffs counsel claimed in oral argument before this court that reporting to work on September 1, 2010, would have harmed the plaintiff. We discern no evidence in the record, however, to support that assertion. Although the plaintiff was required to report for work on September 1,2010, students did not start school until the following week. Thus, the plaintiffs failure to report for work occurred before she actually was required to teach. Therefore, the plaintiff prevented the board from completing the process and demonstrating its good faith.

We discern no evidence in the record that the board failed to respond in some manner to the plaintiffs request for accommodation, nor is there evidence from which we can discern any attempt by the board to ignore her request for a reasonable accommodation. The plaintiff has been afforded the protection required by the Fair Employment Practices Act, but the record reflects that she was responsible for the breakdown in the interactive process. Accordingly, the court abused its discretion by finding that the board failed to comply with the mandates of the Fair Employment Practices Act and by remanding the matter back to the board for further consideration pending a medical evaluation of the plaintiff.

Ill

Having based its ruling on its erroneous determination that the board failed to comply with the Fair Employment Practices Act, the court failed to address the plaintiffs claim as to whether the board properly terminated her employment on the grounds of insubordination and other due and sufficient cause. As that is the sole issue left to be resolved in this administrative appeal, we ordinarily would remand the matter with direction to the court to determine whether the panel’s factual findings support its conclusion that the plaintiffs employment was properly terminated. In all likelihood, the court would make its determination and one of the parties would appeal. None of the facts would change on remand, however, and on a second appeal, we would again be faced with the substantive question of whether the board properly terminated the plaintiffs employment, which is a question of law. See Louis Gherlone Excavating, Inc. v. McLean Construction Co., Inc., 88 Conn. App. 775, 782, 871 A.2d 1057, cert. granted, 274 Conn. 909, 876 A.2d 1201 (2005) (appeal withdrawn February 3, 2006); see also Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 581, 735 A.2d 231 (1999) (“[w]here . . . the administrative agency has made a legal determination, the scope of review ordinarily is plenary”). “[B]ecause the administrative record before us on appeal is identical to that which was before the trial court, the interests of judicial economy would not be served by a remand in this case.” Connecticut Light & Power Co. v. Dept. of Public Utility Control, 216 Conn. 627, 639, 583 A.2d 906 (1990). We therefore review the plaintiffs claim directly.

On appeal to the trial court, the plaintiff argued that the board’s conclusions that the plaintiff was insubordinate and that other due and sufficient cause existed to terminate the plaintiff’s employment were arbitrary, unreasonable and unsupported by the evidence because the board failed to make a reasonable accommodation for her disability. The plaintiff argued that she unquestionably presented unchallenged evidence that: (1) she is disabled wdthin the meaning of Connecticut law, (2) she is able to perform the essential functions of her job if given the accommodation of being assigned a kindergarten position, (3) such position was available, (4) she requested it, and (5) the defendant not only refused to grant that accommodation, but also failed to engage in the mandatory interactive process with the plaintiff as required by the Fair Employment Practices Act.

To support these assertions, the plaintiff pointed to her hearing testimony, in which she testified that there was a difference in the skills necessary to teach third grade and kindergarten, and that she was qualified to testify on this issue because of her experience teaching both grades. Furthermore, the plaintiff argued that she offered testimony as to how her disability specifically affected her abilities to teach and that the letter from her physician supported her assertion that she could not teach third grade, but was still capable of teaching kindergarten. Thus, the plaintiff argued that in fight of this evidence, it was unreasonable for the panel to conclude that she was insubordinate and that there was other due and sufficient cause to terminate her employment because the board failed to provide a reasonable accommodation for her disability, and, therefore she was excused from reporting to work.

The board countered that the plaintiff had not challenged any of the panel’s findings of fact or argued how the factual findings were unsupported by substantial evidence in the record. Because there was evidence to support the panel’s uncontested findings, the board asked that its decision be upheld.

As we previously stated, “[t]he court’s ultimate duty is only to decide whether, in fight of the evidence, the [board] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the [board] must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically flow from such facts.” (Internal quotation marks omitted.) Langello v. West Haven Board of Education, supra, 142 Conn. App. 264-65.

As the board correctly noted, the plaintiff does not challenge any of the factual findings that supported the panel’s conclusions that she was insubordinate and that there was due and sufficient cause for her termination. On the basis of our review of the record, we agree that the conclusions made by the panel reasonably and logically flow from the facts found by it. Because we have determined that the board did not violate the Fair Employment Practices Act as the record reflects that the plaintiff caused a breakdown in the interactive process for determining whether she needed a reasonable accommodation, and in light of the evidence, we conclude that the board did not abuse its discretion in terminating the employment of the plaintiff on the grounds of insubordination and other due and sufficient cause.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment affirming the board’s decision to terminate the plaintiffs employment for insubordination and other due and sufficient cause.

In this opinion the other judges concurred.

       We note that in its statement of issues the board asserted that it is challenging whether the trial court erred in not affirming its decision to terminate the plaintiff “based on the substantial evidence in the administrative record,” and that the plaintiff, in her appeal to the trial court, also asserted that she was contesting whether there was substantial evidence in the record to support the panel’s findings of insubordination and other due and sufficient cause. Because the substance of both arguments, however, examines the panel’s legal conclusions that the plaintiffs employment properly was terminated on the grounds of insubordination and other due and sufficient cause, we will address the arguments as such.

       Although the board additionally argues that there was substantial evidence to support the plaintiffs termination on the ground of job abandonment, the Teacher Tenure Act does not provide for job abandonment as a ground for terminating a tenured teacher. Additionally, the record indicates that the board only terminated the plaintiffs employment for insubordination and other due and sufficient cause.

       We note that the Teacher Tenure Act has been amended several times since 2010. See Public Acts 2010, No. 10-111, § 9; Public Acts 2011, No. 11-28, § 8; Public Acts 2011, No. 11-135, § 10; Public Acts 2011, No. 11-136, § 14; Public Acts 2012, No. 12-116, § 57. The amendments in Public Acts 2012, No. 12-116, will take effect on July 1, 2014. Because these amendments are not relevant to the claims raised by the plaintiff, we refer in this opinion to the current revision of § 10-151.
      General Statutes § 10-151 (d) provides in relevant part: “The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons: (1) Inefficiency or incompetence. . . (2) insubordination against reasonable rules of the board of education; (3) moral misconduct; (4) disability, as shown by competent medical evidence; (5) elimination of the position to which the teacher was appointed or loss of a position to another teacher ... or (6) other due and sufficient cause. . . .” (Emphasis added.)


author: PER CURIAM.

text:
    ROGER EMERICK v. TOWN OF GLASTONBURY
    (AC 34208)
    Alvord, Bear and Peters, Js.
    Argued February 19
    officially released August 20, 2013

      Roger Emerick, self-represented, the appellant (plaintiff).

      Beth Bryan Critton, for the appellee (defendant).
   Opinion

PER CURIAM.

The self-represented plaintiff, Roger Emerick, appeals from the judgment of the trial court dismissing his action against the defendant, the town of Glastonbury (town). The plaintiff sought to prevent the demolition of the former Slocomb Mill located on town property. On appeal, the plaintiff claims that the court (1) improperly granted the town’s motion to dismiss the plaintiffs action on the ground of mootness, (2) improperly failed to award him punitive damages for the town’s conduct in demolishing the mill while his action was pending, and (3) violated his due process rights by denying his ex parte motion for a temporary injunction to halt the demolition of the mill. The town claims that the plaintiff lacked standing to bring this action. We affirm the judgment of dismissal on the ground that the plaintiff lacked standing to bring this action, and, therefore, we do not reach the issues raised by the plaintiff in this appeal.

The following facts, as alleged in the complaint or as disclosed in the record as undisputed, are relevant to this appeal. The plaintiff owns property that abuts the former Slocomb Mill in Glastonbury. The town purchased the mill property in 2008 and intended to demolish various buildings and structures at the site. On November 3, 2010, the plaintiff commenced the present action seeking a writ of mandamus, and injunctive and declaratory relief, to restore and preserve the mill property. On March 18, 2011, the town filed its first motion to dismiss the plaintiffs complaint claiming that the issues were not ripe for adjudication. Shortly thereafter, the town filed an amended motion to dismiss on April 4, 2011, claiming that (1) the plaintiffs action was premature and not ripe for adjudication and (2) the plaintiff lacked standing to bring the action. The plaintiff filed a memorandum in opposition to the town’s amended motion to dismiss on April 15, 2011.

The court held a hearing on the town’s amended motion to dismiss on May 9, 2011. At that time, counsel for the town presented the court with reasons as to why the plaintiff lacked standing to challenge the town’s actions with respect to the mill property. Counsel also stated that the matter was not ripe for adjudication because the process for obtaining the requisite permits for demolition had not been completed. The court then told the plaintiff that although the amended motion to dismiss had been filed by the town, it was the plaintiffs burden to demonstrate that the court had subject matter jurisdiction over the action. The plaintiff responded: “I would like you to read the complaint, verified complaint, my opposing memorandum and affidavits, and what I’ve written in its entirety . . . because it addresses specifically all the points opposing counsel have brought up in court.” The court took the matter on the papers.

Before the court issued a ruling on the town’s April 4, 2011 amended motion to dismiss, the town filed a third motion to dismiss on June 24,2011. In that motion, the town claimed that the court lacked subject matter jurisdiction over the action because the plaintiff failed to exhaust his administrative remedies. In its memorandum in support of the motion, the town represented that on May 26, 2011, the Conservation Commission had approved the town’s application for inland wetlands approval in connection with the demolition project and that the plaintiff had not appealed from that decision. The plaintiff filed a memorandum in opposition to the town’s third motion to dismiss on August 1, 2011.

On September 27, 2011, the town filed its fourth motion to dismiss. At that time, no court decisions had been made with respect to the town’s prior motions to dismiss. In this fourth motion, the town claimed that the court lacked subject matter jurisdiction over the plaintiffs action because (1) the plaintiff failed to exhaust his administrative remedies and (2) events had occurred since the filing of the plaintiffs complaint that rendered the matter moot. The plaintiff filed a memorandum in opposition to the town’s fourth motion to dismiss on November 4, 2011.

On November 21, 2011, the court held a hearing on the September 27, 2011 motion to dismiss. The court began the hearing by referring to all of the pleadings that the parties had filed subsequent to the May 9, 2011 hearing on the town’s April 4, 2011 amended motion to dismiss, and then asked the parties: “It’s just like it’s a moving target and I’d like to know what—exactly what it is that you’re asking me to decide. ” The town’s counsel responded that the ripeness claim was no longer being asserted because the inland wetlands approval and the demolition application process had been completed. Counsel indicated that the town still was pursuing the plaintiffs failure to exhaust administrative remedies and the plaintiffs lack of standing as grounds for dismissal. Counsel also stated that an additional ground for dismissal, that of mootness, now was applicable because of subsequent events that had occurred.

The corut addressed the plaintiff: “So are you satisfied that you filed everything you wished to file on— as to each of these claims? And right now the claims are standing and mootness.” The plaintiff responded: “Yes, Your Honor.” After the court indicated that it would take the matter on the papers, the plaintiff inquired: “May I talk?” When the court answered in the affirmative, the plaintiff voiced his frustration over the fact that his previous applications for a temporary injunction had been denied by the court. He stated that his action was intended to preserve the mill and that the mill already had been demolished. Although the court was aware that much of the procedure for securing the demolition of the mill had been completed, it did not know until that moment that the mill had been tom down. The court confirmed with the parties that the actual demolition had commenced on October 18, 2011, and was substantially completed. The court told the parties that it would address the motion to dismiss as quickly as possible because “it does look like there’s nothing much left of the lawsuit at this point and that it should be dismissed for either [standing or mootness] reason . . . .”

On November 22,2011, the court rendered ajudgment of dismissal on the ground of mootness. In its notice to the parties, the court stated that the mill had been substantially demolished on October 18, 2011, and that there was no practical relief that the court could afford the plaintiff. On December 9,2011, pursuant to Practice Book § 11-11, the plaintiff filed a motion to reargue the granting of the motion to dismiss. The court denied the plaintiffs motion on December 23, 2011, and this appeal followed.

“A motion to dismiss [for lack of standing] . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting grant of the motion to dismiss [is] de novo.” (Internal quotation marks omitted.) West Hartford v. Murtha Cullina, LLP, 85 Conn. App. 15, 20-21, 857 A.2d 354, cert. denied, 272 Conn. 907, 863 A.2d 700 (2004).

“[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) R. F. Daddario & Sons, Inc. v. Shelansky, 123 Conn. App. 725, 731, 3 A.3d 957 (2010).

“Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 486, 815 A.2d 1188 (2003).

We begin with well settled principles regarding standing and its aggrievement component. “Two broad yet distinct categories of aggrievement exist, classical and statutory. . . . Classical aggrievement requires a two part showing. First, aparty must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share. . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest.” (Internal quotation marks omitted.) Andross v. West Hartford, 285 Conn. 309, 322, 939 A.2d 1146 (2008). “Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Internal quotation marks omitted.) Id.

“The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.” Fink v. Golenbock, 238 Conn. 183, 199 n.13, 680 A.2d 1243 (1996). A plaintiff has the burden of proof with respect to standing. Sadloski v. Manchester, 235 Conn. 637, 648-49, 668 A.2d 1314 (1995). “To establish aggrievement, first, the plaintiff [must allege] facts which, if proven, would constitute aggrievement as a matter of law, and, second . . . [prove] the truth of those factual allegations.” (Internal quotation marks omitted.) Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 193 n.13, 676 A.2d 831 (1996).

We now review the plaintiffs complaint to determine whether he has alleged facts that, if proven, would constitute aggrievement as a matter of law. See id. Construction of pleadings is a question of law. Kovacs Construction Corp. v. Water Pollution & Control Authority, 120 Conn. App. 646, 659, 992 A.2d 1157, cert. denied, 297 Conn. 912, 995 A.2d 639 (2010). In paragraph one of his complaint, the plaintiff alleges: “The plaintiff, Roger Emerick, is an abutting property owner of the Slocomb Mill and dam at 68 Matson Hill Road, South Glastonbury, and owns property along Roaring Brook.” No other facts are alleged that would support a claim of aggrievement. The remaining paragraphs of the complaint contain allegations that the town, inter alia, improperly committed “municipal financial resources to procure and secure destruction of historic and natural resources” and “violated] the intent of Town Codes 306, 315, 316 and 2-64

The plaintiffs status as an abutting landowner does not automatically confer standing in this action. Although abutting landowners are statutorily aggrieved in zoning cases, this is not an administrative appeal from the decision of a zoning agency or a conservation commission. Simply alleging the fact that he owns property that abuts the mill property, without more, is not sufficient to confer standing. See Brouillard v. Connecticut Siting Council, 52 Conn. Supp. 196, 203, 39 A.3d 1241 (2010), aff'd, 133 Conn. App. 851, 38 A.3d 174, cert. denied, 304 Conn. 923, 41 A.3d 662 (2012). Significantly, the plaintiff has failed to allege a specific, personal and legal interest in the demolition of the mill that would be any different from the general interest that all members of the community would share. See Andross v. West Hartford, supra, 285 Conn. 322.

In his appellate reply brief, and during oral argument before this court, the plaintiff argued that he has taxpayer and voter standing. He does not allege in his complaint that he is a registered voter in Glastonbury or that he was qualified to vote at any proposed referendum; see Windham Taxpayers Assn. v. Board of Selectmen, 234 Conn. 513, 526, 662 A.2d 1281 (1995); and, therefore, he has failed to allege voter standing. With respect to taxpayer standing, the plaintiff does allege in his complaint that he “owns property” in the town. “[P]roof of ownership of property within a city is sufficient to establish a presumption that one is a taxpayer in that city.” Jolly, Inc. v. Zoning Board of Appeals, supra, 237 Conn. 194 n.13. Accordingly, for purposes of this appeal, we conclude that the plaintiff did allege in his complaint that he was a taxpayer in the town.

That allegation, without more, however, is insufficient for purposes of alleging taxpayer standing to bring the present action. “The plaintiff’s status as a taxpayer does not automatically give [him] standing to challenge alleged improprieties in the conduct of the defendant town. . . . The plaintiff must also allege and demonstrate that the allegedly improper municipal conduct cause[d him] to suffer some pecuniary or other great injury. ... It is not enough for the plaintiff to show that [his] tax dollars have contributed to the challenged project .... [T]he plaintiff must prove that the project has directly or indirectly increased [his] taxes . . . or, in some other fashion, caused [him] irreparable injury in [his] capacity as a taxpayer.” (Internal quotation marks omitted.) Murphy v. Stamford, 115 Conn. App. 675, 677, 974 A.2d 68, cert. denied, 294 Conn. 901, 982 A.2d 645 (2009). Here, the plaintiffs complaint does not contain the requisite allegations, and, therefore, the plaintiff has failed to allege taxpayer standing.

Because the record in this case is sufficient for us to determine that the plaintiff lacked standing, it is unnecessary for us to remand the matter to the trial court. The complaint clearly does not allege facts that, if proven, would constitute aggrievement as a matter of law. See Jolly, Inc. v. Zoning Board of Appeals, supra, 237 Conn. 193 n.13. Accordingly, while we agree that the trial court properly dismissed the plaintiffs action, we so conclude on the ground that the plaintiff lacked standing to bring this action.

The judgment is affirmed.

       The affidavit of the town manager submitted with the motion averred that the demolition could not occur without the issuance of appropriate permits.

       The court addressed the plaintiff as follows: “You understand, Mr. Emer-ick, that you do—even though it’s the [town’s] motion, when it comes to subject matter jurisdiction, that is, thepower of the court to act in apartieular matter, that the plaintiff bears the burden of proof with respect to jurisdiction. So in this case, the challenge has to do with whether or not you have legal standing and—as well as some other claims.”

       “The Court: They knocked it down? It’s knocked down already?”

       The court reasoned: “Since the primary relief sought was injunctive, accompanied by a request for declaratory relief and a writ of mandamus, the object of which was to preserve the mill until a public referendum could be held, the demolition of the mill has rendered the plaintiffs complaint herein moot.”

        The court’s decision did not address the town’s claim that the plaintiff lacked standing to bring the action.

       The classical aggrievement test is not limited to zoning or other administrative appeals. Andross v. West Hartford, supra, 285 Conn. 324.

       Paragraph ten of the plaintiff’s complaint alleges violations of various historic and environmental statutes. Although allegations that the town’s conduct was reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources could have been considered for purposes of alleging aggrievement, the plaintiff has expressly stated that “the mill is gone and he is not appealing these statutes. [The plaintiff referenced General Statutes §§ 22a-9, 22a-16, 22a-19a and 29-401]. On other matters raised in this appeal, the plaintiff has standing.” Accordingly, we do not review the facts alleged in paragraph ten to determine whether they are sufficient for purposes of alleging statutory aggrievement.

       “[T]he rationale for disallowing taxpayer suits, absent special circumstances, has been explained by one court as follows: This rule is based on the sound policy ground that without a special injury standing requirement, the courts would in all likelihood be faced with a great number of frivolous lawsuits filed by disgruntled taxpayers who, along with much of the taxpaying public these days, are not entirely pleased with certain of the taxing and spending decisions of their elective representatives. It is felt that absent some showing of special injury as thus defined, the taxpayer’s remedy should be at the polls and not in the courts. Moreover, it has long been recognized that in a representative democracy the public’s representatives in government should ordinarily be relied on to institute the appropriate legal proceedings to prevent the unlawful exercise of the state or county’s taxing and spending power. . . . Dept. of Revenue v. Markham, 396 So. 2d 1120, 1122 (Fla. 1981) (noting that, absent special injury, taxpayer standing only permitted when allegation of violation of state constitution’s tax and spend provision).” (Internal quotation marks omitted.) West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 21 n.13, 901 A.2d 649 (2006).

       It is dispositive that the plaintiff failed to sufficiently allege voter or taxpayer standing in his complaint. For that reason alone, the trial court lacked subject matter jurisdiction over the plaintiffs action. We also note, however, that the plaintiff presented no evidence before the trial court to demonstrate such standing, although he was given the opportunity to do so at the May 9, 2011 and November 21, 2011 hearings. A plaintiff must allege and prove that he has the requisite standing in order for the trial court to have subject matter jurisdiction over his claims. See Jolly, Inc. v. Zoning Board of Appeals, supra, 237 Conn. 193 n.13.

       This court and our Supreme Court have affirmed a trial court’s judgment of dismissal on the ground of standing rather than the ground relied on by the trial court. In Connecticut Business & Industry Assn., Inc. v. Commission on Hospitals & Health Care, 218 Conn. 335, 336-37, 589 A.2d 356 (1991), our Supreme Court affirmed the trial court’s judgment of dismissal on the ground that the plaintiff lacked standing to bring the action when the trial court had dismissed it because of the plaintiffs failure to exhaust administrative remedies. This court also reached such a conclusion in Lewis v. Swan, 49 Conn. App. 669, 671, 716 A.2d 127 (1998).


author: KELLER, J.

text:
    RANDI SHAMITZ v. JONATHAN TAFFLER
    (AC 34034)
    Gruendel, Keller and Mihalakos, Js.

      Argued May 28
    officially released August 20, 2013

      Barbara A. Stark, for the appellant (plaintiff).
   Opinion

KELLER, J.

The plaintiff, Randi Shamitz, appeals from the judgment of the trial court denying her postjudgment motion to modify the orders of the court regarding the child support and alimony obligations of the defendant, Jonathan Taffler. The plaintiff claims that the court improperly concluded that she failed to demonstrate a substantial change in circumstances because the court disregarded evidence of changes in her financial circumstances and those of her children. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. The parties married on June 25,2000, in Westport. The plaintiff filed a marital dissolution complaint on April 4,2009. On September 15, 2010, the parties filed a separation agreement, which, on the same day, the court approved and incorporated by reference into its judgment dissolving the parties’ marriage. The parties have two minor children, both of whom had yet to reach the age of twenty-three at the time of the court’s judgment dissolving the marriage.

In the separation agreement, the parties included sections regarding alimony and child support. The alimony section of the agreement provided that the defendant was to pay the plaintiff “periodic alimony of one dollar per year until the death of either party, the [plaintiffs] remarriage, or five . . . years from the date the alimony increases above [one dollar] per year, whichever first occurs.” The alimony section also specifically stated that the alimony term was to be nonmodifiable and that “[i]n no event shall it extend beyond the date the youngest child graduates from high school.” In addition, the agreement set forth the tax implications of any future orders of alimony payments from the defendant to the plaintiff and stated that “[t]he [plaintiffs] right to receive alimony shall be subject to [General Statutes §] 46b-86 (b) as it may be amended and applicable case law regarding her cohabitation.”

The child support section of the separation agreement provided in relevant part: “No specific order for direct child support shall enter at present. The parties ask the [c]ourt to approve this [agreement as being in the best interests of the children based on the coordination of total family support, property settlement, and tax implications contained in the [a]greement in that the parties’ comprehensive settlement enhances the economic benefits to the children. All obligations for the payment of child support and child-related expenses as provided herein shall continue until that child dies, marries, or reaches the age of [eighteen], whichever first occurs. However, if a child at age [eighteen] is still enrolled full time in high school and living with one parent, the parents’ obligation for child support for that child shall continue until the child’s graduation from high school or age [nineteen], whichever first occurs.”

Under the child support section, the parties agreed that, for as long as the parties cohabited the marital home in Wilton, the defendant would pay the plaintiff $750 per month for the family’s monthly groceries and household supplies. The agreement also provided that the defendant would (1) pay for the children’s school lunches until they graduate from high school, (2) contribute $500 per birthday per child through each child’s tenth birthday, (3) pay up to $35 for birthday gifts for birthday parties that the children attend, (4) pay for 100 percent of the children’s extracurricular expenses for three years after judgment is entered and then 75 percent of such expenses for the duration of the child support obligation, (5) pay the plaintiff $84 per month per child for clothing purchases until the date a child begins college or the date of the child’s high school graduation if the child does not attend college, and (6) pay the plaintiff $84 per month per child for the children’s miscellaneous expenses for as long as he is obligated to pay child support. In addition, the agreement provided that “the parties will allocate cost for child care necessary for the [plaintiffs] employment pursuant to the child support guidelines and related case law.”

On May 3,2011, the plaintiff filed a motion for modification, in which she requested an increase in child support and alimony. A hearing on the plaintiffs motion was held before the court on October 24, 2011, in which the court heard testimony from the parties and the plaintiffs expert witness on the defendant’s current earnings, earning capacity, and business. The plaintiff testified that the marital home of the parties sold in April, 2011, that she had since moved to a different residence with her children, and that she was paying $3000 in rent at the time of the hearing on the motion for modification. The testimony and evidence presented at the hearing primarily focused on the defendant’s earning capacity and the plaintiffs argument that there had been a substantial change in circumstances since the dissolution of the marriage due to certain changes in her financial circumstances.

At the conclusion of the hearing, the court orally denied the plaintiffs motion, after stating the following: “It appears to me from the testimony that was presented . . . that the manner in which the defendant has been reinvesting in his company has been continuing and ongoing. It was that way during the course of the marriage. It was that way at the time of the dissolution. It’s that way now. Also at the time of the dissolution, the plaintiff received a portion, a share, from a value of the [defendant’s] business. She’s now trying to double dip into that to get a stream of income from an asset that she received a portion of. The situation in terms of his employment hasn’t changed. It has in terms of his income. It’s less than it was at the time of the dissolution. So, I don’t even have to reach to the point of whether . . . there’s an earning capacity because there has been no change in circumstance. The plaintiff has not sustained her burden in terms of proving whether . . . there has been a substantial change in circumstance.”

The plaintiff filed the present appeal on November 10,2011. During the pendency of this appeal, on October 4, 2012, the plaintiff filed a motion for articulation of the judgment of the court denying her motion for modification. The court denied the motion for articulation on November 14, 2012, stating in the order that the “court explained its decision at [the] time of [the] order.” The plaintiff did not file a motion for review of the court’s denial of her motion for articulation.

We first set forth the standard of review and relevant legal principles governing the plaintiffs claim. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Trial courts have broad discretion in deciding motions for modification.” (Internal quotation marks omitted.) Pite v. Pite, 135 Conn. App. 819, 824, 43 A.3d 229, cert. denied, 306 Conn. 901, 52 A.3d 728 (2012).

“As to the substantial change of circumstances provision of § 46b-86 (a), [w]hen presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and . . . make an order for modification. ... A party moving for a modification of a child support order must clearly and definitely establish the occurrence of a substantial change in the circumstances of either party that makes the continuation of the prior order unfair and improper. . . . The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.” (Internal quotation marks omitted.) McKeon v. Lennon, 131 Conn. App. 585, 598, 27 A.3d 436, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011). “Following [a finding of a substantial change in circumstances], the court then answers the question of modification [of alimony], taking into account the general alimony factors found in [General Statutes] § 46b-82.” Gervais v. Gervais, 91 Conn. App. 840, 854, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005).

“It is well established that [t]his court does not presume error on the part of the trial court; error must be demonstrated by an appellant . . . .” (Internal quotation marks omitted.) Acadia Ins. Co. v. O’Reilly, 138 Conn. App. 413, 419, 53 A.3d 1026 (2012), cert. denied, 308 Conn. 904, 61 A.3d 1097 (2013). “It is axiomatic that the appellant must provide this court with an adequate record for review. See Practice Book § 61-10 .... [W]here a party is dissatisfied with the trial court’s response to a motion for articulation, [she] may, and indeed under appropriate circumstances [she] must, seek immediate appeal of the rectification memorandum to this court via the motion for review.” (Internal quotation marks omitted.) Emrich v. Emrich, 127 Conn. App. 691, 706, 15 A.3d 1104 (2011).

The plaintiff claims that the court erred in concluding that she had failed to demonstrate a substantial change in circumstances because the court disregarded evidence regarding changes in the financial circumstances of the plaintiff and the parties’ children. Specifically, the plaintiff argues that, because the court only made findings related to the defendant’s income and employment in its oral decision denying her motion, the court disregarded evidence that the marital home had been sold, that the parties no longer lived together, and that she had increased living expenses when she moved for a modification of alimony and child support. We are not persuaded.

Preliminarily, we note an inconsistency in the plaintiffs arguments on appeal in that she argues that it was error for the court to deny her motion to modify the court’s original child support order even though she simultaneously acknowledges that, in accordance with the terms of the parties’ agreement that the court adopted and incorporated by reference into the judgment of dissolution, the court never issued a specific order of direct child support. The separation agreement provided for some sharing of the children’s expenses, but specifically stated that “ [n] o specific order for direct child support shall enter at present.” The plaintiff appears to suggest that even though the court did not issue a specific order of child support, the court’s adoption of the provisions of the child support section of the separation agreement, under which the defendant agreed to pay certain amounts of money to support the children—namely, $336 per month for clothing and miscellaneous expenses—functioned as a modifiable child support order. Because we conclude that the court did not abuse its discretion in denying the plaintiffs motion for modification, we need not resolve the issue of whether the court’s adoption of these provisions in the separation agreement constituted a specific order of child support.

The plaintiffs claim that the court abused its discretion by disregarding evidence of changes in her financial circumstances and those of her children is unavailing because the court’s oral decision does not demonstrate that it disregarded any evidence. The court had before it a motion for modification based upon the plaintiffs claim that there had been a substantial change in circumstances. As such, before it could properly grant the motion, the court was required to make a threshold finding that there had been a substantial change in circumstances of one or both of the parties. The record reflects that the court heard testimony from the plaintiff about the sale of the marital home, her new living arrangements, and her increased living expenses, as well as testimony from the defendant and the plaintiffs expert regarding the defendant’s earning capacity. Prior to its ruling, the court found that the defendant’s employment situation had not changed and that he was earning less income than at the time of the dissolution, and concluded that there had been no change in circumstance with respect to the defendant. The court did not articulate any specific findings regarding the plaintiffs claimed changes. The court then denied the plaintiffs motion after concluding that the plaintiff had not sustained her burden of proving that there had been a substantial change in circumstances since the dissolution of the parties’ marriage.

Because the court’s oral decision was silent as to the sale of the marital home, the parties’ independent living arrangements, and the plaintiffs increased living expenses, the plaintiff seeks to have us infer that the court improperly disregarded this evidence in concluding that she had failed to demonstrate a substantial change in circumstances. Without more, however, we cannot and will not draw such an inference when it is not apparent from the court’s decision. See Acadia Ins. Co. v. O’Reilly, supra, 138 Conn. App. 419. Although the court denied the plaintiffs motion for articulation of its decision, the plaintiff failed to move for review of that denial in this court. Because the plaintiff has failed to take the appropriate steps to provide us with an adequate record from which we can discern any error by the court, we will not presume such error. Making every reasonable presumption in favor of the correctness of the court’s decision on the basis of the record before us, we conclude that the court did not abuse its discretion in denying the plaintiffs motion for modification.

The judgment is affirmed.

In this opinion the other judges concurred.

       In her motion for modification, the plaintiff also sought to modify the order of the court regarding the parties’ visitation arrangement that was issued in connection with the judgment of the court dissolving their marriage. During the hearing on the motion for modification, the plaintiffs counsel indicated that the plaintiff was proceeding on her motion for modification only as it pertained to child support and alimony. Accordingly, the court did not consider a modification to the visitation arrangement and that aspect of the motion for modification is not at issue in this appeal.

       Because the defendant did not file a brief with this court, this decision is made solely on the basis of the record, the plaintiffs appellate brief, and the plaintiffs oral argument before this court.

       The plaintiff also claims that the court improperly concluded that she was barred from seeking a modification or having the merits of her motion considered because she sought to obtain income from the value of the defendant’s business, part of which already had been allocated to the plaintiff as part of the marital property distribution. Our review of the record indicates that the court made no such conclusion, and, accordingly, we find no merit in this claim.

       On the modification form, the plaintiff selected both options listed as possible explanations for her request for a modification. She claimed that there had been a substantial change in circumstances because the parties’ marital home had been sold, the parties had separated, and the defendant’s support to her had decreased, while her expenses had increased. In response to the second prompt on the form, which states: “[t]he final order for child support is substantially different from the Child Support Guidelines as follows,” the plaintiff stated only that the parties were “[l]iving together at [the] time of [the] original order.”

       We note that, during the preliminary discussion between the court and the plaintiffs counsel, the plaintiffs counsel stated that “there was minimal child support that was not in accordance with the guidelines . . . .” On the basis of our review of the transcript of the hearing, however, it cannot fairly be said that this isolated statement served to advance an argument that the plaintiff should be granted a modification because the final order of child support was substantially different from the presumptive amount under the child support guidelines as the hearing focused almost exclusively on the plaintiffs claim that there had been a substantial change in circumstances.

       We note that the plaintiffs claim set forth in footnote 3 of this opinion appears to refer to this portion of the court’s oral decision. As is evident from the transcript of the court’s decision, the court makes no finding that the plaintiffs motion for modification was barred or that the court would not consider the merits of her motion as a result of the court’s observation regarding the plaintiffs share in the defendant’s business.

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may, at any time thereafter, be . . . modified by the court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. . .

       In addition, we note that the record before us reveals that, in issuing its original financial orders in copjunction with the judgment of dissolution, including those that related to child support, the court failed to make a specific on-the-record finding that specified the presumptive amount of child support due under the child support guidelines or any findings regarding a deviation from that amount. To the extent that the court’s adoption and incorporation of the separation agreement operated to produce child support orders accompanying its judgment of dissolution, the court’s failure to make these specific findings was an abuse of its discretion. See Deshpande v. Deshpande, 142 Conn. App. 471, 478-79, 65 A.3d 12 (2013). Because, however, the plaintiff has not appealed from the court’s original financial orders and instead has appealed from the subsequent denial of her motion for modification only on the basis that the court should have found a substantial change in circumstances, the court’s error in issuing its original financial orders cannot form the basis for our resolution of the present appeal. See State v. Carattini, 142 Conn. App. 516, 529, 73 A.3d 733 (“[o]ur review is limited to those issues raised on appeal”), cert. denied, 309 Conn. 912, 69 A.3d 308 (2013); State v. Lage, 141 Conn. App. 510, 522, 61 A.3d 581 (2013) (“claims of error not raised before the trial court will not be considered by a reviewing court” [internal quotation marks omitted]).

       On her motion for modification form, the plaintiff selected both options listed as possible explanations for her request for a modification: (1) that “the circumstances concerning this case had changed substantially”; and (2) that “[t]he final order for child support is substantially different from the Child Support Guidelines . . . The plaintiffs statement that the parties were “[ljiving together at [the] time of [the] original order,” however, was not responsive to the prompt for the second option, which specifically asked for an explanation as to how the final order for child support was substantially different from the child support guidelines. Further, the testimony and evidence presented at the hearing focused solely on the plaintiffs argument that there had been a substantial change in circumstances since the dissolution of the marriage. As such, it cannot be said that the court had before it a claim that the final order of child support was substantially different from the child support guidelines, and, therefore, the court properly confined its ruling to whether there had been a substantial change in circumstance. Moreover, during her oral argument before this court, the plaintiff, through counsel, explicitly confirmed that she is not pursuing a claim on appeal that the court erred by failing to find that the final order of child support was substantially different from the amount dictated by the guidelines and instead is only claiming that the court erred by failing to find a substantial change in circumstances.