author: GRUENDEL, J.

text:
    ROBERT J. TELLAR v. ABBOTT LABORATORIES, INC.
    (AC 29504)
    Flynn, C. X, and Gruendel and Harper, Js.

      Argued March 12
    officially released May 5, 2009

      Charles D. Houlihan, Jr., for the appellant (plaintiff).

      Shel D. Myers, for the appellee (defendant).
   Opinion

GRUENDEL, J.

This appeal concerns the accidental failure of suit statute, General Statutes § 52-592. The plaintiff, Robert J. Tellar, appeals from the judgment of the trial court dismissing his age and gender discrimination action against the defendant, Abbott Laboratories, Inc. He claims that the court improperly determined that § 52-592 did not apply under the particular facts at hand. We reverse the judgment of the trial court.

The procedural posture of this case governs our recitation of the facts underlying the appeal. “When a . . . court decides a . . . question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Bellman v. West Hartford, 96 Conn. App. 387, 393, 900 A.2d 82 (2006). Further, in addition to admitting all facts well pleaded, the motion to dismiss “invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.” (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 242, 789 A.2d 1142 (2002).

Given that standard, the court was required to find, for purposes of deciding the motion to dismiss, that the plaintiff worked for the defendant for thirty-two years. In the spring of 2005, he was constructively discharged from his employment as a result of intolerable working conditions that stemmed from age and gender discrimination on the defendant’s part. The plaintiff filed timely complaints with the commission on human rights and opportunities (state commission) and the federal Equal Employment Opportunity Commission (federal commission). With their consent, the plaintiff commenced a civil action against the defendant in March, 2006 (first action). On May 31, 2006, the defendant served on the plaintiff its “First Set of Interrogatories and Requests for Production of Documents” that consisted of sixty-six interrogatories replete with multiple subparts and nineteen documentary requests. On August 14, 2006, the court granted the defendant’s motion to compel discovery. When the plaintiff failed to respond in any manner, the court, Hon. Richard M. Rittenband, judge trial referee, rendered a judgment of dismissal against him on September 29, 2006.

The plaintiff thereafter timely moved to open that judgment pursuant to General Statutes § 52-212. Accompanying that motion was the plaintiffs fifty-one page response to the defendant’s discovery request and a sworn affidavit from his counsel. In his motion, the plaintiff averred that “good cause exists to open the judgment because [the plaintiff] has complied with his discovery obligations as soon as possible given the earlier schedule conflicts and the recent unavailability of his attorney.” The plaintiff explained that during the summer of 2006, his counsel, Charles D. Houlihan, Jr., was largely unavailable due to family health issues. Specifically, Houlihan, a sole practitioner, was consumed by the care for his dying father-in-law, with whom Houlihan lived and who ultimately died in November of that year. In addition, Houlihan’s wife, who also served as his legal secretary, underwent a surgical procedure that required hospitalization. As a result, “the routine of counsel's office was substantially disrupted for several weeks because of these events and counsel was unable to attend to the completion of the responses to the discovery requests.” The plaintiff also emphasized that the case was dismissed only months after its commencement. Despite those representations and the plaintiffs subsequent compliance with the discovery request, the court, Bryant, J., denied the plaintiffs motion to open on February 26, 2007.

The plaintiff instituted the present action pursuant to § 52-592 on May 18, 2007. His two count complaint alleged discrimination on the basis of his age and gender. The complaint also alleged that the plaintiff “timely filed this complaint with the [state commission] and the federal [commission] and has been authorized to commence a civil action by each agency.” The defendant’s first responsive pleading was its August 3, 2007 motion to dismiss. In that motion, the defendant alleged that the court lacked subject matter jurisdiction because the complaint was not filed within ninety days of the receipt of the notice of the right to sue issued by the federal commission or the release of jurisdiction issued by the state commission and, hence, was time barred. In neither its motion to dismiss nor its memorandum of law in support thereof did the defendant address § 52-592 or its applicability to the present action, a point raised by the plaintiff in his opposition to the motion. The plaintiff’s opposition also asked the court to take judicial notice of the documents filed in the first action and repeated his allegations concerning Houlihan’s family medical issues. The defendant thereafter filed a reply to the plaintiffs opposition in which it argued that because the plaintiff had not demonstrated mistake, inadvertence or excusable neglect, he could not seek recourse under § 52-592. The court heard argument on the motion to dismiss on November 5, 2007.

In its November 13, 2007 memorandum of decision, the court, McWeeny, J., concluded that the plaintiff had not demonstrated excusable neglect and thus granted the motion to dismiss. The plaintiff filed a motion for reconsideration, in which he argued that the defendant “made no effort to show prejudice by reason of the delay caused by the attention to family medical needs” and requested that he “not lose his substantive rights by reason of the medical emergencies faced by his counsel.” The court denied that motion, and this appeal followed.

On appeal, the plaintiff contends that the court improperly concluded, under the facts of this case, that § 52-592 did not apply. Specifically, he argues that because the conduct precipitating the disciplinary dismissal of the first action was not egregious, he should be entitled to the relief afforded by that remedial statute. The defendant counters that the plaintiff has not demonstrated mistake, inadvertence or excusable neglect. We agree with the plaintiff.

We begin by noting the well established standard of review on a challenge to a ruling on a motion to dismiss. “When the facts relevant to an issue are not in dispute, this court’s task is limited to a determination of whether, on the basis of those facts, the trial court’s conclusions of law are legally and logically correct.” (Internal quotation marks omitted.) Rios v. CCMC Corp., 106 Conn. App. 810, 815, 943 A.2d 544 (2008). Because there is no dispute regarding the basic material facts, this case presents an issue of law and our review is plenary. See id. Similarly, the question of whether the court properly applied § 52-592 presents an issue of law over which our review is plenary. See Gonzalez v. Surgeon, 284 Conn. 554, 572, 937 A.2d 13 (2007) (whether statute properly interpreted and applied is question of law subject to plenary review).

General Statutes § 52-592 commonly is known as the saving statute. See, e.g., Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 116, 735 A.2d 782 (1999); McKeever v. Fiore, 78 Conn. App. 783, 795, 829 A.2d 846 (2003). It provides in relevant part that “[i]f any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . for any matter of form . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.” General Statutes § 52-592 (a). Our Supreme Court has long held that § 52-592 “is remedial and is to be liberally interpreted.” Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972); see also Ruddock v. Burrowes, 243 Conn. 569, 575, 706 A.2d 967 (1998); Isaac v. Mount Sinai Hospital, 210 Conn. 721, 728, 557 A.2d 116 (1989). Its essential purpose is to ensure “the plaintiff the right to atrial of his claim.” Contadini v. DeVito, 71 Conn. App. 697, 702, 803 A.2d 423, cert. denied, 262 Conn. 918, 812 A.2d 862 (2002). That “broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.” (Internal quotation marks omitted.) Isaac v. Mount Sinai Hospital, supra, 733, quoting Gaines v. New York, 215 N.Y. 533, 539, 109 N.E. 594 (1915) (Cardozo, J.).

In Ruddock v. Burrowes, supra, 243 Conn. 569, our Supreme Court considered whether a disciplinary dismissal may be characterized as a dismissal “for any matter of form” for purposes of obtaining relief pursuant to § 52-592. The court concluded that “disciplinary dismissals are not excluded categorically from the relief afforded by § 52-592 (a)”; id., 576; rather, whether the dismissal of a prior proceeding permitted a plaintiff recourse to the statute “depends upon the nature and the extent of the conduct that led to the disciplinary dismissal.” Id., 570. Accordingly, the court instructed that the egregiousness of the conduct precipitating the dismissal must be examined in determining whether § 52-592 applies in a given instance. It stated: “Disciplinary dismissals do not, in all cases, demonstrate the occurrence of misconduct so egregious as to bar recourse to § 52-592. . . . Whether the statute applies cannot be decided in a factual vacuum. To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was ‘a matter of form’ in the sense that the plaintiffs noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.” (Citation omitted.) Id., 576-77. In applying that precedent, this court in Gillum v. Yale University, 62 Conn. App. 775, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001), explained that “it is appropriate to consider each case along a continuum; at one extreme are dismissals for mistake or inadvertence, at the other extreme are dismissals for serious misconduct or a series of cumulative transgressions.” Id., 783.

In Gillum,, the plaintiffs demonstrated a pattern of dilatory conduct that spanned years. As the court recounted: “The record supports the court’s conclusion that [the original action] was beset by lackadaisical behavior by the plaintiffs at every turn. The court aptly characterized [the original action] as the poster child for dilatory behavior dismissals. In addition to the fact that the plaintiffs’ conduct occasioned three dismissals, which hampered the movement of the case toward a resolution, the plaintiffs further hindered the progress of the case by continually running deadlines to their limits before filing motions to reopen or complying with court orders. Even after the third dismissal, the plaintiffs’ counsel failed to communicate promptly to the court an explanation for his conduct. Additionally, the plaintiffs’ counsel permitted months to elapse before attempting to reopen the case.” Id., 783-84. Given that “pattern of repeated delay,” the court concluded that § 52-592 was inapplicable. Id., 787. This court reached the same conclusion in Skibeck v. Avon, 24 Conn. App. 239, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991), in light of one decade of litigation and the trial court’s dismissal of the original action three times for failure to appear and failure to prosecute. Id., 243; see also Skinner v. Doelger, 99 Conn. App. 540, 915 A.2d 314 (involving failure to prosecute action over period of years and failure to appear at trial), cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007); Pepitone v. Serman, 69 Conn. App. 614, 619-20, 794 A.2d 1136 (2002) (involving failure to close pleadings over period of years).

The present case is readily distinguishable from that line of cases in which § 52-592 did not apply. The conduct here was neither repeated nor protracted. It consisted of a singular failure to comply with a discovery request over the course of four months. As we recently noted, “our Supreme Court [has drawn] a critical distinction between categories of cases involving, for instance, [n]onappearances that interfere with proper judicial management of cases, and cause serious inconvenience to the court and to opposing parties . . . and those involving things such as a mere failure to respond to a notice of dormancy . . . .” (Citation omitted; internal quotation marks omitted.) Skinner v. Doelger, supra, 99 Conn. App. 557-58. The present case involves the mere failure to respond to a detailed set of sixty-six interrogatories and nineteen documentary requests within months. Tellingly, the defendant has not argued, either before the trial court or on appeal, that it has been prejudiced by that failure.

This case more closely resembles Stevenson v. Peerless Industries, Inc., 72 Conn. App. 601, 806 A.2d 567 (2002), which also involved the failure to comply with a discovery request. In concluding that the conduct precipitating the disciplinary dismissal did “not rise to the level of egregious conduct”; id., 609; the court considered the fact that (1) the plaintiffs failure to respond to the discovery request occurred in the time span of six months; id., 610; (2) the conduct did not result in considerable delay or inconvenience to the court or to opposing parties; (3) the plaintiff provided a credible excuse for his failure to respond; (4) it did “not appear that the plaintiff failed to respond to [the defendant’s] request for dilatory reasons or as a delay tactic, particularly when viewed in light of the fact that this case has not been plagued by years of unnecessary litigation”; id.; and (5) the plaintiff represented “that he [was] prepared to comply with all requests.” Id. In light of those considerations, this court concluded that “this situation invokes the type of ‘excusable neglect’ that our Supreme Court provided for in Ruddock,” mandating application of § 52-592. Id. That precedent compels a similar conclusion in the present case.

We already have noted the fact that the conduct giving rise to the disciplinary dismissal was a singular failure to comply with a discovery request over the course of four months that did not result in considerable delay or inconvenience to the defendant or the court. In addition, the plaintiff provided a credible explanation for his failure to comply with the discovery request—namely, the grave health of members of his counsel’s family— that the defendant at no time has disputed. Furthermore, unlike Stevenson, the plaintiff fully complied with the discovery request prior to filing his motion to open the judgment in the first action and prior to instituting the present action. His fifty-one page response to the defendant’s discovery request was filed on January 25, 2007, less than eight months after the request first was made. Such compliance belies any contention that the plaintiff engaged in a pattern of repeated delay. Cf. Gillum v. Yale University, supra, 62 Conn. App. 787.

Intertwined with any analysis of the applicability of § 52-592 is a fundamental policy consideration in this state. “Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court. . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure. . . . For that reason, [a] trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal.” (Citations omitted; internal quotation marks omitted.) Egri v. Foisie, 83 Conn. App. 243, 249-50, 848 A.2d 1266, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004); see also Rocco v. Garrison, 268 Conn. 541, 558, 848 A.2d 352 (2004); Johnson v. Atlantic Health Services, P.C., 83 Conn. App. 268, 278, 849 A.2d 853 (2004). As Justice Shea explained in Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 540 A.2d 59 (1988): “Centuries ago the common law courts of England similarly insisted upon rigid adherence to the prescribed forms of action, resulting in the defeat of many suits for technical faults rather than upon their merits. Some of that ancient jurisprudence migrated to this country with the settlers and has affected the development of procedural law in this state. Beginning in the middle of the nineteenth century, however, our legislature enacted numerous procedural reforms applicable to ordinary civil actions that are designed to ameliorate the consequences of many deviations from the prescribed norm, which result largely from the fallibility of the legal profession, in order generally to provide errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw.” Id., 75-76 (Shea, J., concurring). General Statutes § 52-592 was enacted, in large measure, to shield the client from the fallibility of counsel.

In considering “the nature and the extent of the conduct that led to the disciplinary dismissal”; Ruddock v. Burrowes, supra, 243 Conn. 570; we are convinced that the present case involves excusable neglect. As such, the plaintiff is entitled to the relief afforded by § 52-592. We therefore conclude that the court improperly granted the defendant’s motion to dismiss.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The plaintiff also challenges the propriety of the defendant’s motion to dismiss, contending that the motion procedurally is impermissible in the face of an objection. See Henriquez v. Allegre, 68 Conn. App. 238, 241 n.6, 789 A.2d 1142 (2002); cf. Egri v. Foisie, 83 Conn. App. 243, 247-51, 848 A.2d 1266 (discussing distinction between motion to dismiss and motion to strike), cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). We do not address that issue in light of our resolution of the plaintiffs principal claim.

       By order dated April 21,2008, this court granted the motion of the plaintiff to take judicial notice of the first action and the plaintiffs filings therein.

       We note that we are not asked to pass on the propriety of that judgment in this appeal. Cf. Ruddock v. Burrowes, 243 Conn. 569, 571 n.4, 706 A.2d 967 (1998) (noting that plaintiff elected not to appeal from denial of motion to open, which is governed by abuse of discretion standard of appellate review, and instead brought suit pursuant to General Statutes § 52-592). We further note that the court’s order denying the motion to open stated in full: “[The motion to open] has been denied on February 22, 2007, for reasons stated in the plaintiffs opposition.” We repeatedly have admonished such wholesale adoption of the reasoning or brief of a party. See In re Halle T., 96 Conn. App. 815, 824-27, 902 A.2d 670, cert. denied, 280 Conn. 924, 908 A.2d 1087 (2006); Wendover Financial Services Corp. v. Connelly, 61 Conn. App. 244, 247, 763 A2d 670 (2000); Doe v. Bridgeport Hospital, 40 Conn. App. 429, 432-33, 671 A.2d 405 (1996); Grayson v. Grayson, 4 Conn. App. 275, 284, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987).

       The defendant also stated in his reply to the plaintiffs opposition that “the plaintiff should not be permitted to force the defendant to incur even more costs in a second lawsuit, particularly where as here, the [state commission] has already reviewed the plaintiffs claims of age and gender discrimination based on virtually the same allegations as contained in the instant lawsuit and determined that these claims lack merit.” The defendant repeats that argument in the statement of facts in its appellate brief. To the extent that the argument suggests that the state commission’s preliminary merit assessment review, which is conducted without a hearing, presentation of evidence or opportunity for cross-examination, operates as res judicata, precluding subsequent litigation, the defendant wisely has not pursued such a claim on appeal.

       “Our Supreme Court has construed the term original action with respect to its meaning in [General Statutes] § 52-592 as the first action filed within the time allowed by the applicable statute of limitations.” (Internal quotation marks omitted.) Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn. App. 1, 10, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514 (2004). It is undisputed that the first action was commenced in a timely manner.

       To the extent that the defendant complains that the plaintiff is seeking “a second bite at the apple,” as it maintained in its reply to the plaintiffs opposition to the motion to dismiss, it fundamentally misunderstands General Statutes § 52-592.

       The defendant served on the plaintiff its “First Set of Interrogatories and Requests for Production of Documents” on May 31, 2006, and the court rendered the judgment of dismissal against the plaintiff on September 29, 2006.


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    CORLISS J. UCCI v. WALTER R. UCCI
    (AC 28699)
    Flynn, C. J., and McLachlan and Pellegrino, Js.
    Argued January 22
    officially released May 12, 2009

      John H. Van Lenten, with whom was Alan J. Rome, for the appellant (defendant).

      Joseph A. Hourihan, with whom, on the brief, was Stephanie S. Baier, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

The defendant, Walter R. Ucci, appeals from the postjudgment order of the trial court denying his motion for modification of alimony payments to the plaintiff, Corliss J. Ucci. On appeal, the defendant claims that the court improperly based its determination on the criteria set forth in General Statutes §§ 46b-86 and 46b-82 rather than the criterion for modification set forth in the parties’ separation agreement as incorporated into the judgment of dissolution. We affirm the judgment of the trial court.

The court, Hon. Simon S. Cohen, judge trial referee, dissolved the parties’ nineteen year marriage on November 16, 2000. The judgment of dissolution incorporated by reference the parties’ separation agreement, which contained provisions setting forth the defendant’s alimony obligations and the extent to which those obligations could be modified. In essence, the defendant was required to pay the plaintiff $10,000 per month until the death of either party, the remarriage of the plaintiff or ten years from the date of the dissolution decree, whichever occurred first. The agreement further provided that alimony was nonmodifiable as to duration but modifiable as to amount “based on the parties’ income from all sources.”

On November 17, 2006, the defendant filed a motion to modify the judgment, claiming a substantial change in circumstances due to a significant decrease in his income. On January 25, 2007, the defendant filed an amended motion for modification of the judgment, claiming a substantial change in circumstances due to a significant decrease in his income and the plaintiffs full-time employment and earning capacity. The court, Simón, J., heard testimony from the parties and their witnesses and admitted several exhibits at a hearing on February 5 and 26, 2007. At the conclusion of the hearing, counsel presented closing arguments. They did not, however, file briefs prior to or after the hearing, and they waived the opportunity to file proposed orders with the court.

On March 22, 2007, the court issued its memorandum of decision. In that decision, the court first noted that it had the authority to modify its alimony order pursuant to § 46b-86. It also noted that if it found a substantial change in the parties’ financial circumstances, it then could consider the defendant’s motion for modification and make an order on the basis of the criteria set forth in § 46b-82. The court proceeded to find that the defendant was forced to leave his employment and that as a result of his removal, he suffered a substantial change in his weekly income. Having found a substantial change in circumstances, the court then considered all of the evidence submitted, including the testimony and credibility of the parties. The court found that the defendant owned six properties with a market value of approximately $5 million, that he had approximately $400,000 in his bank accounts and an additional $109,000 in individual retirement accounts, that he had not altered his lifestyle even though his weekly income had decreased and that even though he had retired, he could continue to seek employment commensurate with his skills and background. For those reasons, the court denied the defendant’s motion for modification. This appeal followed.

The defendant’s sole claim on appeal is that the court improperly applied the criteria set forth in §§ 46b-86 and 46b-82 in denying his motion to modify his alimony obligations. Specifically, he argues that the separation agreement, as incorporated into the judgment of dissolution, provided a single criterion that the court could consider in reaching its determination. That agreement provided that “[a]limony shall be modifiable as to amount based on the parties’ income from all sources.” The defendant claims that he sought the modification pursuant to that provision of the agreement and that the court was thereby limited to consideration of the parties’ income only. According to the defendant, “the language in § 46b-86, as it concerns the concept of ‘substantial change in the circumstances of either party,’ has no import or relevance in the instant matter.”

From a thorough review of the record, including the trial court file and transcript, we conclude that this issue was not distinctly raised at trial. The defendant’s original and amended motions for modification do not reference § 46b-86, but they do seek a modification on the basis of “a substantial change of circumstances since the date of [j]udgment in that the defendant’s income has decreased significantly . . . .” Of greater significance, however, is the fact that the defendant never informed the court, by pleading, memorandum or at any time during the two day hearing, that the modification had been requested solely on the basis of the separation agreement and not the statutory basis for modification.

It is true that counsel for the defendant, and the defendant during his testimony, stated that the basis for the modification request was the decrease in the defendant’s income due to the loss of his salary. The defendant never claimed, however, that the court could not consider any other criteria because the separation agreement limited its consideration to the criterion of income. The court proceeded under the assumption that the statutory criteria were to be considered and clearly stated the basis of its understanding throughout the hearing. The court began the hearing with the statement: “All right, now ... as I understand it, this is [the defendant’s] motion for modification . . . based on the allegations of a substantial change of circumstances.” Later in the hearing, when counsel for the defendant objected to a certain line of questioning on the ground of relevance, the court responded: “See, the problem is ... if you’re asking me to make a finding that there [has] been a substantial change of circumstances, if I make a finding that there [has] been a substantial change of circumstances on his—let’s say his income stream, I then have to revert back to [§] 46b-82 and take up all the criteria that’s within [§] 46b-82 to determine what would be an appropriate order for alimony in taking into consideration all of his assets that he [has] now accumulated or hasn’t accumulated. So, all that goes into the pie, let us say, to establish a new alimony order. . . .

“I mean, I know your position is that I’m just going to look at the income stream. That’s not what the statute says. That’s not what modification says. Modification says I can make a finding of substantial change as to income stream, but once I’ve done that, I have to go back to [§] 46b-82 and take everything back into consideration.”

The court made a similar statement on the second day of the hearing. After counsel for the defendant made a statement about the defendant’s stream of income, the court responded: “[L]et’s get one thing straight. It’s not just stream of income. If I make a finding that there’s a reason for modification, then everything goes back into the criteria to determine whether or not I modify it and by how much I modify it; so, it’s not just stream of income, it’s everything. It’s assets. It’s station in life. It’s future, everything else comes on the table so, you know, let’s stop with the ‘it’s just stream of income’; it’s everything . . . .”

Counsel for the defendant did not adequately question or challenge the court’s statements. Although the defendant’s motion for modification included the language of the modification provision of the separation agreement, as well as the substantial circumstances language of the statute, the defendant did not alert the court at any time that he sought modification pursuant to the agreement only and that the court could not consider the statutory criteria of § 46b-82. Although inartful objections that nonetheless sufficiently apprise the trial court of their precise nature may be overlooked; see, e.g., Daley v. McClintock, 267 Conn. 399, 404-405, 838 A.2d 972 (2004); this is not such a case. Under the circumstances, the court reasonably could have concluded that the parties were proceeding as the court had outlined.

“It is well settled that a trial court can be expected to rule only on those matters that are put before it.” State v. Jose G., 290 Conn. 331, 346, 963 A.2d 42 (2009). The defendant did not present to the trial court the theory that he now argues on appeal. “[A] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one . . . .” (Citation omitted; internal quotation marks omitted.) Ingels v. Saldana, 103 Conn. App. 724, 730, 930 A.2d 774 (2007). “For this court to . . . consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.” (Internal quotation marks omitted.) Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn. App. 663, 680, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005).

The judgment is affirmed.

In this opinion the other judges concurred.

       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 or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . . (Emphasis added.)

       In that decision, the court also ordered the plaintiff to pay certain expert fees and denied her motion for attorney’s fees. Those determinations have not been challenged on appeal.

       We note that the court followed the well established guideline set forth in Borkowski v. Borkowski, 228 Conn. 729, 638 A.2d 1060 (1994). Modification of alimony can be entertained and premised on a showing of a substantial change in the circumstances of either party. Once a court finds a substantial change in circumstances, it then properly can consider a motion for modification of alimony. After the threshold predicate has been established, the court considers the criteria set forth in General Statutes § 46b-82 in structuring the modification orders. Borkowski v. Borkowski, supra, 735-38. In the present case, the court considered the defendant’s decreased income, as required by the separation agreement, in determining that there had been a substantial change in his circumstances. Because the threshold predicate had been established, the court then entertained the defendant’s motion for modification and considered the § 46b-82 factors in making its order.


author: BISHOP, J.

text:
    IN ENERGY SOLUTIONS, INC. v. REALGY, LLC, ET AL.
    (AC 29722)
    Bishop, Robinson and Peters, Js.

      Argued February 10
    officially released May 12, 2009

      John T. Scully, for the appellant-appellees (defendants).

      David M. Spinner, for the appellee-appellant (plaintiff).
   Opinion

BISHOP, J.

The defendant Realgy, LLC, doing business as Realgy Energy Services (Realgy), appeals from the judgment of the trial court awarding damages for breach of contract in favor of the plaintiff, IN Energy Solutions, Inc. (INES). On appeal, Realgy claims that the court improperly calculated the damages it awarded to INES. INES cross appeals, claiming that the court improperly (1) failed to include damages for lost profits in its breach of contract award and failed to rule on INES’ request for certain other damages, (2) construed and applied the law regarding tortious interference with a business relationship, (3) found that it could not prevail on its claim alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., (4) rejected its defamation claim and (5) determined that the defendant Michael Vrtis, the managing director of Realgy, was acting in a corporate capacity and, therefore, could not be held personally liable for his actions. We reverse in part and affirm in part the judgment of the trial court.

The following facts are relevant to our consideration of the claims raised in the appeal and the cross appeal. On March 12, 2003, INES and Realgy entered into an energy sales broker agreement (agreement). The agreement required Realgy to supply natural gas to customers referred to it by INES and to pay commissions to INES for sales generated from those referrals. The agreement had an initial term of one year and, thereafter, remained in effect until terminated by either party. The agreement could be terminated for any reason by either party upon giving at least ninety days written notice. The agreement was subject to termination if either party was in default of any of its duties under the agreement or if either party filed for bankruptcy, went into compulsory liquidation or made an assignment for the benefit of creditors. The agreement contained a provision prohibiting Realgy from soliciting any of INES’ customers for eighteen months after termination of the agreement and subagents or related parties for twenty-four months after termination.

On March 3, 2005, Realgy sent INES a letter giving notice of its intent to terminate the agreement as of August 1, 2005. Thereafter, on July 20, 2005, Realgy sent another letter purporting to terminate the contract retroactively as of May 1, 2005, on the ground that INES had acted in a manner that constituted a material breach of the agreement in disclosing Realgy’s confidential and proprietary information in violation of its sales policies.

Fritz Kreiss, the president of INES, testified that as of May 3, 2005, when he received the first cancellation notice, commissions were late, and he was informed by Vrtis that Realgy was out of the contract and would not pay commissions. Vrtis contacted INES’ subagents and indicated that the contract with INES had concluded and asked them to contact him directly. Vrtis also asked subagents of INES to work for Realgy.

INES filed a five count complaint alleging breach of contract, interference with INES’ business relationships, violation of CUTPA, unjust enrichment and defamation and disparagement. In response, Realgy filed special defenses claiming that INES’ complaint failed to state a cause of action, that INES materially breached the agreement, that the terms of the agreement were ambiguous and, as such, should be construed against INES and that INES breached its duty of good faith and fair dealing.

On January 24, 2008, following a court trial, the court issued a memorandum of decision rendering judgment in favor of INES on its breach of contract count only, finding that INES had failed to meet its burden of proof regarding its claims of tortious interference, CUTPA and defamation and disparagement. The court also found that Realgy had failed to prove that INES breached the agreement. The court concluded that although Realgy’s conduct “was not wrongful or tortious [so as to] allow damages for interference with business relationships, defamation and disparagement or under CUTPA, [Realgy] is not relieved from paying commissions pursuant to the contract.” The court awarded damages in the amount of $218,994.09, consisting of $122,955.24 for pretermination commissions and $96,038.85 for posttermination commissions. This appeal and cross appeal followed. Additional facts will be set forth as necessary.

I

APPEAL

On appeal, Realgy claims that the damages awarded for pretermination commissions and posttermination commissions were not supported by the evidence. Section ten of the agreement specifically addresses the payment of commissions upon termination, providing: “On termination, [b]roker will be paid commission as and when set forth in [s]ection 3; (1) if the [agreement was terminated for a reason set forth in section 8, on sales of [e]nergy [s]ervices to [customers prior to [t]ermination [d]ate or, (2) if the [agreement was terminated for a reason other than one or more of the reasons set forth in [s]ection 8, on sales of [e]nergy [s]ervices to [bjroker’s [customers for the remaining term of the [n]ew [c]ontract.” Section three provides, inter alia, that commissions “will be paid to [b]roker within 10 days following the [c]ompany’s receipt of payment for the [e]nergy [s]ervices sold to [broker’s [customers.”

It is incumbent on the party asserting damages to provide sufficient evidence to prove such damages. See Frillici v. Westport, 264 Conn. 266, 283, 823 A.2d 1172 (2003). Further, “[w]hen damages are claimed they are an essential element of the plaintiffs proof and must be proved with reasonable certainty. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.” (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 646, 904 A.2d 149 (2006). “[T]he trial court has broad discretion in determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” (Internal quotation marks omitted.) Bhatia v. Debek, 287 Conn. 397, 418-19, 948 A.2d 1009 (2008). “When, however, a damages award is challenged on the basis of a question of law, our review [of that question] is plenary.” (Internal quotation marks omitted.) Robert v. Scarlata, 96 Conn. App. 19, 22, 899 A.2d 666 (2006). With these principles in mind, we address Realgy’s claims in turn.

A

Realgy first claims that the court improperly calculated the pretermination commissions to which INES was entitled pursuant to the agreement. Realgy contends that because the agreement provided that the commissions did not become due until ten days after Realgy received payment for its energy services, the court improperly included the figures for June and July, 2005, in the pretermination award because they would not become due until August or September, 2005. We disagree.

The termination provision of the agreement has two components: the sales on which INES is entitled to a commission, and a time line stating when payment is due from Realgy. The question of when payment of those commissions is due would be relevant only if Realgy had not gotten paid for those sales. There is no contest that Realgy was ultimately paid for those contracts. Because the agreement may be interpreted as providing that entitlement to a commission arises on the date the sale is made, even if payment may be deferred until after Realgy receives payment, the court properly included the figures for June and July in its calculation of pretermination damages.

B

Realgy also claims that there was no evidence from which the court could have calculated the posttermination commissions. Specifically, Realgy asserts that the court’s award of posttermination commissions was based on a document that was not in evidence. We agree.

The agreement provided that, after termination, INES was entitled to commissions on energy sales during the remaining term of new contracts and was not entitled to receive commissions on sales made pursuant to renewal contracts. INES did not offer into evidence any of the contracts for which it was seeking commissions, nor did it offer evidence regarding the number of new contracts that were in existence at the time of termination or the remaining terms or end dates of those contracts.

Following the close of evidence and the submission of posttrial briefs, the court held a status conference at which it stated that it had found that “the briefs were inadequate for the court to determine the issue of damages.” Consequently, the court ordered the parties to file simultaneous supplemental briefs regarding commissions and requested that the parties specifically identify pretermination and posttermination commissions. The brief filed by INES contained two documents that had not been introduced into evidence at trial. The documents identified claimed contract end dates and specifically set forth the claimed amount of $96,038.85 as the amount that INES claimed for posttermination commissions.

In its memorandum of decision, the court stated that it based its award on exhibit eight, which is a spreadsheet prepared by INES to illustrate the losses it suffered as a result of Reaigy’s actions. Although the court stated that “[t]he calculations made by [INES] by the extrapolation of data from [INES’] exhibit eight has established damages with reasonable certainty,” exhibit eight does not distinguish between new and renewal contracts. Thus, it is impossible to know the amount of posttermination commissions to which INES is entitled on the basis of exhibit eight or any of the other evidence offered at trial. To order the posttermination damages that it awarded, the court had to have relied on the supplemental filings of INES, which were not introduced into evidence and, therefore, not subject to cross-examination or rebuttal by Realgy. Because the court relied on a document that was not in evidence, and there is no evidence in the record to support the court’s award of posttermination commissions, the award for those commissions in the amount of $96,038.85 is clearly erroneous.

II

CROSS APPEAL

A

INES first claims on its cross appeal that the court improperly failed to award damages for lost profits as a component of the damages for breach of contract. INES also claims that the court failed to rule on its claims regarding fixed rate contract discrepancies and nonpayment of commissions due on conversion of guaranteed savings contracts to fixed rate contracts. We decline to review these claims.

At trial, INES claimed damages in the amount of $1,369,808.86, including damages for, inter alia, lost profits, a fixed rate contract commission discrepancy in the amount of $60,000 and the failure to pay commissions due on the conversion of guaranteed savings accounts to fixed rate accounts in the amount of $188,550. Although the court acknowledged in its memorandum of decision that INES claimed this amount of total damages, it did not address INES’ claims for damages for lost profits, fixed rate contract commission discrepancies or commission conversions of guaranteed savings contracts. INES filed a motion to reargue in which it sought, inter alia, an articulation or clarification of the court’s rulings on its claims for the fixed rate discrepancies and the guaranteed savings contracts. The court denied that motion, and INES did not seek review of the denial of its motion. INES never sought an articulation as to the court’s decision regarding lost profits.

Although “[o]ur rules of practice require that the trial court state its decision on each issue in the case and its conclusion as to each issue in the case and its conclusions as to each claim of law raised by the parties . . . [i]t remains the appellant’s responsibility to furnish an adequate appellate record. . . . Thus, the failure of a litigant to file a motion for articulation upon a court’s failure to rule upon a claim vitiates appellate review of their claim.” (Citation omitted; internal quotation marks omitted.) Moasser v. Becker, 107 Conn. App. 130, 137, 946 A.2d 230 (2008). Further, “[w]e have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court . . . .” (Internal quotation marks omitted.) McGuire v. McGuire, 102 Conn. App. 79, 87, 924 A.2d 886 (2007).

Here, although the court failed to rule on INES’ requests for certain damages, INES failed to file a motion for articulation asking the court to address these claims or to seek review of the denial of its requested articulation. Accordingly, we decline to review these claims.

B

INES next claims that the court applied the wrong legal standard to its claim of tortious interference with business relationships. We agree.

In support of its claim for interference with business relationships, INES cited language in the agreement that prohibited Realgy from soliciting INES’ customers and, at trial, provided evidence to the court purporting to show that Realgy did solicit its customers. Realgy claimed that in communicating with INES’ customers following the termination of its agreement with INES, it was merely trying to maintain a contractual relationship with customers with whom it already had an existing contract and that the nature of their communications was merely explanatory or informational. The court found that INES had not proven that Realgy acted wrongfully and, therefore, rejected INES’ claim for interference with business relationships.

“A successful action for tortious interference with business expectancies requires the satisfaction of three elements: (1) a business relationship between the plaintiff and another party; (2) the defendant’s intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss. . . .

“Our case law has recognized that not every act that disturbs a business expectancy is actionable. [A] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself. . . . Accordingly, the plaintiff must plead and prove at least some improper motive or improper means. . . . [F]or a plaintiff successfully to prosecute such an action it must prove that . . . the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously. ... In the context of a tortious interference claim, the term malice is meant not in the sense of ill will, but intentional interference without justification. ... In other words, the [plaintiff] bears the burden of alleging and proving lack of justification on the part of the [defendant].” (Citations omitted; internal quotation marks omitted.) American Diamond Exchange, Inc. v. Alpert, 101 Conn. App. 83, 90-91, 920 A.2d 357, cert. denied, 284 Conn. 901, 931 A.2d 261 (2007).

Although the court properly set forth the cited law as the applicable legal standard for a claim of interference with a business relationship, the court then stated: “To prevail on a claim of interference with business contracts and relationships, [INES] must prove that [Realgy’s] conduct was tortious, namely, that the interference was by some improper motive or improper means. Also, [INES] must show that [Realgy] was guilty of fraud, misrepresentation or intimidation.” (Emphasis added.) In restating the law, the court improperly set forth the requirements of both improper motive or means and fraud, misrepresentation or intimidation. In doing so, the court placed a burden on INES that is not required by law. Because the court did not apply the correct law to INES’ claim for interference with business relationships, INES is entitled to a new trial on that count of its complaint.

C

INES next claims that the court improperly found that it could not prevail on its claim alleging a violation of CUTPA. We disagree.

“[General Statutes §] 42-110b (a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons].” (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 18-19, 938 A.2d 576 (2008). “All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 43, 717 A.2d 77 (1998).

“It is well settled that whether a defendant’s acts constitute . . . deceptive or unfair trade practices under CUTPA, is a question of fact for the trier, to which, on appellate review, we accord our customary deference. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Chamlink Corp. v. Merritt Extruder Corp., 96 Conn. App. 183, 189, 899 A.2d 90 (2006).

In regard to INES’ CUTPA claim, the court stated: “While [INES] may have established a claim for breach of contract by showing that [Realgy] did not pay commissions due, a simple breach of contract does not amount to a violation of CUTPA in the absence of substantial aggravating circumstances. The court finds that the evidence does [not] establish substantial aggravating circumstances. Further, [INES] has not sustained its burden of proof that [Realgy’s] conduct was unethical or unscrupulous or that its conduct was wilful or reckless. Accordingly, the court denies [INES’] claim of a violation of CUTPA.”

On appeal, INES claims that the court improperly determined that Realgy’s conduct in failing to pay commissions and soliciting its customers and subagents did not amount to a CUTPA violation. First, the court did not make any findings regarding Realgy’s purported solicitation attempts as they related to the CUTPA claim, and, in making these arguments, INES invites us to weigh the evidence in this case. An appellate court, however, “cannot sift and weigh evidence.” (Internal quotation marks omitted.) State v. Nash, 278 Conn. 620, 641, 899 A.2d 1 (2006). “It is the [fact finder’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [fact finder] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Santos, 108 Conn. App. 250, 253, 947 A.2d 414 (2008).

Here, the court specifically found that INES did not prove that Realgy’s conduct in failing to pay commissions was unethical, unscrupulous, wilful or reckless. Because weighing evidence is beyond the scope of our review, and we do not retry the facts or pass on the credibility of witnesses, we cannot conclude that the court’s finding that INES failed to prove a violation of CUTPA was clearly erroneous.

D

INES next claims that the court improperly rejected its defamation claim. “A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him .... To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiffs reputation suffered injury as a result of the statement.” (Internal quotation marks omitted.) Hopkins v. O’Connor, 282 Conn. 821, 838, 925 A.2d 1030 (2007).

INES claims that Realgy engaged in a “campaign of communications with all [of INES’ customers] which state that [INES] and its agents are only ‘sales people’ and are not ‘dedicated energy professionals, that [Realgy’s] representatives provide fair and professional service (directly implying that INES brokers do not), referring to INES brokers as ‘middlemen’ providing ‘self-serving advice and guidance’ and stating that Realgy monitors the actions of INES subbrokers and this is consistent with terminating this broker for cause, can only be understood as an imputation by [Realgy] of conduct on the part of [INES] and its agents incompatible with the proper conduct of [INES] and its sub-agents as energy brokers working in the best interests of their customers.”

In its decision, the court stated: “As to [INES’] claims for defamation and disparagement . . . based on [Realgy’s] explanation for its conduct, the court finds that the facts do not show that [Realgy] acted within the requirements to establish the cause of action of defamation and disparagement. . . . [INES] has failed to establish that the communications sent by [Realgy] were defamatory in nature.” The court did not set forth the law on which it relied in coming to this conclusion, nor did the court set forth the specific explanation offered by Realgy on which it relied in denying INES’ defamation claim. In analyzing INES’ tortious interference claim, the court referred to Realgy’s defense of its communications as “explanatory or informational” and that “the purpose of the communication was to inform the customers of the adverse impact of selling storage, switching marketers and to make sure that Realgy was not to be blamed for such impact. ” Although we can infer that this is the rationale that the court relied on in its rejection of INES’ defamation claim, we cannot be sure. “We have noted in the past that the wholesale adoption by the Superior Court of a party’s reasoning in its legal memoranda as the basis for the court’s own decision is not a sound practice because it does not afford an appellate court a clear understanding of the reasons underlying the trial court’s decision.” Wendover Financial Services Corp. v. Connelly, 61 Conn. App. 244, 247, 763 A.2d 670 (2000). Further, the court’s decision is also devoid of any discussion of whether the allegedly defamatory communications identified INES to a reasonable third person, whether they were published to a third person, or whether INES’ reputation suffered injuiy as a result of the allegedly defamatory statements.

INES filed a motion to reargue in which, rather than reargument, it appeared to request certain articulations. It sought to reargue the issue of defamation but did not actually seek articulation of the court’s ruling on its defamation claim. Even if the motion to reargue could be construed as amotion for articulation, however, that motion was denied, and INES did not seek review of the denial of that motion. “Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the appellant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) Ravetto v. Triton Thalassic Technologies, Inc., 285 Conn. 716, 731-32, 941 A.2d 309 (2008). Because the record does not adequately reveal the grounds for the court’s rejection of the defamation claim, we are unable to review it on appeal.

E

INES finally claims that the court improperly determined that Vrtis was acting in a corporate capacity and, therefore, could not be held personally liable for his actions. In this regard, the court stated: “During the trial, [INES’] counsel made a reference to the fact that . . . Vrtis may have acted individually. However, this issue was not pursued in the trial brief. Nevertheless, the court finds [that] such a reference has no merit in that the evidence shows that . . . Vrtis was acting in a corporate capacity.” On appeal, INES does not dispute that it did not raise this claim in its trial brief. Rather, INES claims that “it is clear that most of the actions constituting the interference with [its] business were undertaken either directly by . . . Vrtis or at [his] direction . . . .’’In its argument, however, INES does not refer to the evidence in the record that supports its claim that Vrtis should be held personally liable. An appellate brief is required to contain appropriate references to the page or pages of the transcripts or to the relevant documents that support the claims on appeal. See Practice Book § 67-4 (d). The mere recital of claims, supposedly supported by the evidence, without directing the court’s attention to those specific portions claimed to be relevant and material, does not adequately place those claims before the court for its consideration. See Drabik v. East Lyme, 234 Conn. 390, 397-99, 662 A.2d 118 (1995); Solek v. Commissioner of Correction, 107 Conn. App. 473, 480, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).

The judgment is reversed as to the amount of damages awarded for posttermination commissions and that award in the amount of $96,038.85 is vacated. The judgment is reversed as to the count of tortious interference and the case is remanded for further proceedings on that count. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Realgy and Vrtis also filed separate counterclaims that they did not pursue at trial and are not a subject of this appeal.

       As to INES’ claim for unjust enrichment, the court stated that “the damages for this cause of action will be determined under the breach of contract claim in the first count.” This ruling has not been challenged on appeal.

       The term “[bjroker” in the agreement refers to INES.

       Section eight sets forth the confidentiality and ethical expectations of the parties.

       The “[c]ompany” refers to Realgy.

       Realgy contended that its posttermination communications with INES’ customers and subagents were based upon its belief that INES breached the agreement, thereby voiding the nonsolicitation provision. Although the court found that INES did not breach the agreement and was, therefore, “entitled to the benefit of [the] full performance of the agreement,” the court, as noted, found that Realgy breached the agreement only in failing to pay commissions, not in violating the nonsolicitation provision. INES does not claim on appeal that the court should have found a breach of contract on the basis of a violation of the nonsolicitation provision or that breach of contract damages should have been awarded on that ground.

       Although the court’s memorandum of decision states that “the evidence does establish substantial aggravating circumstances,” the parties agree, on the basis of the entirety of the decision, that the court meant to say that the evidence does not establish substantial aggravating circumstances.

       Even if we were to proceed to determine whether Realgy’s communications were defamatory, we note that the communications specified by INES do not actually identify INES by name. In fact, most of the alleged defamation is, in INES’ own words, “implied.” This court has rejected claims of “defamation by innuendo.” See Mercer v. Cosley, 110 Conn. App. 283, 305, 955 A.2d 550 (2008).


text:
    LESLIE MULLIN ET AL. v. GUIDANT CORPORATION
    (AC 29829)
    DiPentima, Gruendel and Schaller, Js.
    Argued January 12
    officially released May 12, 2009

      Harold J. Geragosian, for the appellants (plaintiffs).

      Andrew D. Carpenter, pro hac vice, with whom were Frank H. Santoro and Scott D. Kaiser, and, on the brief, CalumB. Anderson and R. Cornelius Danaher, Jr., for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiffs, Leslie Mullin and Vincent Mullin, appeal from the judgment of the trial court dismissing their product liability action. On appeal, the plaintiffs claim that the court improperly concluded that their two count complaint was preempted by the Medical Device Amendments of 1976, 21 U.S.C. § 360c et seq. (MDA). We agree with the court that the plaintiffs’ action is preempted by federal law. The court, however, improperly concluded that it lacked subject matter jurisdiction over the case. Therefore, although the defendant, Guidant Corporation, nevertheless prevails, we must reverse the judgment of the trial court dismissing the plaintiffs’ action and remand the case with direction to render judgment in favor of the defendant.

The record, viewed in the light most favorable to the plaintiffs; see Martinelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009); reveals the following facts. In July, 1999, Leslie Mullin, who at the time was in her early thirties, suffered a cardiac arrest and respiratory distress. She was resuscitated successfully and transported to a hospital where medical personnel diagnosed her as having suffered from a ventricular fibrillation arrest. After additional testing, her physician recommended that she receive an implantable cardioverter defibrillator (implant). The implantation was performed on July 9, 1999, using a Ventak Mini IV Model 1793 manufactured by the defendant.

Some two years later, in October, 2001, Leslie Mullin’s implant began beeping. Her physicians determined that the device was malfunctioning and had reverted to a “failsafe” mode. The physicians recommended that the implant be removed and replaced as soon as possible. On November 8, 2001, the device was replaced with a different model, which also was manufactured by the defendant. The hospital and medical expenses associated with the replacement of the implant were borne by the defendant.

On October 25, 2004, the plaintiffs filed their two count complaint in the Superior Court. In the first count, the plaintiffs asserted a cause of action under the Connecticut Product Liability Act, General Statutes § 52-572m et seq. The count contained several allegations relating to the implant’s safety, design, manufacture and distribution, including breach of implied and expressed warranties, failure to evaluate the safety of the implant, and subjecting Leslie Mullin to unreasonable danger. In the second count, the plaintiffs claimed that Vincent Mullin, Leslie Mullin’s husband, suffered physical and emotional distress, loss of consortium and fiscal expense as a result of the failure of his wife’s implant. The defendant filed an answer to the complaint in which it denied liability and asserted several special defenses, including federal preemption of the plaintiffs’ causes of action.

On December 14, 2007, the defendant filed a motion for summary judgment. In its motion and accompanying memorandum, the defendant asserted that it was entitled to judgment as a matter of law because (1) there was no evidence that the implant was defective or that there had been a breach of any warranty and (2) the plaintiffs’ claims were preempted by federal law. On April 8, 2008, the court issued its memorandum of decision in which it found that the causes of action were preempted by the MDA and that the court therefore lacked subject matter jurisdiction to hear the case. It thus treated the defendant’s motion for summary judgment as a motion to dismiss under our holding in Lewis v. Chelsea G.C.A. Realty Partnership, L.P., 86 Conn. App. 596, 607, 862 A.2d 368 (2004), cert. denied, 273 Conn. 909, 870 A.2d 1079 (2005), and dismissed the plaintiffs’ action. This appeal followed.

Before addressing the plaintiffs’ claims on appeal, we first set forth the applicable standards of review. “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.” (Internal quotation marks omitted.) Byrne v. Burke, 112 Conn. App. 262, 267, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009). Our review of the trial court’s decision on a motion for summary judgment “is plenary and we must decide whether the trial court’s conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Id., 268. In addition, our review of the court’s decision to dismiss the case for lack of subject matter jurisdiction is likewise plenary. Bloom v. Miklovich, 111 Conn. App. 323, 335, 958 A.2d 1283 (2008).

I

The dispositive issue on appeal is whether the MDA preempts the plaintiffs’ claims arising under state law. Before addressing that substantive issue, however, we must first determine if the court properly treated the defendant’s motion for summary judgment as a motion to dismiss for lack of subject matter jurisdiction. We conclude that it did not. Federal preemption of a state law or cause of action does not necessarily implicate the court’s subject matter jurisdiction. “It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Lawton v. Weiner, 91 Conn. App. 698, 714, 882 A.2d 151 (2005).

Our Supreme Court has held that a claim of federal preemption of a state cause of action is waived unless pleaded as a special defense. See Stokes v. Norwich Taxi, LLC, 289 Conn. 465, 488-89, 958 A.2d 1195 (2008) (“[b]ecause the defendants did not file a special defense of federal preemption to the plaintiffs claims . . . and did not object to any of the evidence introduced to support the plaintiffs claims . . . the defendants waived this special defense”). It is axiomatic, however, that “[t]he subject matter jurisdiction requirement may not be waived by any party . . . .” Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). Because a preemption defense maybe waived but jurisdictional defects may never be waived, we conclude that the MDA’s preemptive effect does not implicate our courts’ subject matter jurisdiction. Consequently, the court improperly dismissed the case for lack of subject matter jurisdiction.

II

This determination does not indicate, however, that the court improperly concluded that the plaintiffs’ claims were preempted and that the defendant was entitled to summary judgment. We begin our analysis of the preemption issue by providing some background on the federal statute at issue, the MDA.

A

“The Federal Food, Drug, and Cosmetic Act . . . has long required [Food and Drug Administration (FDA)] approval for the introduction of new drugs into the market. Until the statutory enactment at issue here, however, the introduction of new medical devices was left largely for the States to supervise as they saw fit.

“The regulatory landscape changed in the 1960’s and the 1970’s, as complex devices proliferated and some failed. Most notably, the Daikon Shield intrauterine device, introduced in 1970, was linked to serious infections and several deaths, not to mention a large number of pregnancies. Thousands of tort claims followed. . . .

“Congress stepped in with the passage of the [MDA] which swept back some state obligations and imposed a regime of detailed federal oversight. The MDA includes an express pre-emption provision that states: ‘Except as provided in subsection (b) of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement—(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.’ [21 U.S.C.] § 360k (a). The exception contained in subsection (b) permits the FDA to exempt some state and local requirements from pre-emption.

“The new regulatory regime established various levels of oversight for medical devices, depending on the risks they present. . . . The devices receiving the most federal oversight are those in Class III, which include replacement heart valves, implanted cerebella stimulators, and pacemaker pulse generators .... In general, a device is assigned to Class III if it cannot be established that a less stringent classification would provide reasonable assurance of safety and effectiveness, and the device is ‘purported or represented to be for a use in supporting or sustaining human life or for a use which is of substantial importance in preventing impairment of human health,’ or ‘presents a potential unreasonable risk of illness or injury.’ [21 U.S.C.] § 360c (a) (1) (C) (ii)----

“[The MDA] established a rigorous regime of premarket approval for new Class III Devices .... A manufacturer must submit what is typically a multivolume application. ... It includes, among other things, full reports of all studies and investigations of the device’s safety and effectiveness that have been published or should reasonably be known to the applicant; a ‘full statement’ of the device’s ‘components, ingredients, and properties and of the principle or principles of the operation’; ‘a full description of the methods used in, and the facilities and controls used for, the manufacture, processing, and, when relevant, packing and installation of, such device’; samples or device components required by the FDA; and a specimen of the proposed labeling. [21 U.S.C.] § 360e (c) (1). . . .

“Once a device has received premarket approval, the MDA forbids the manufacturer to make, without FDA permission, changes in design specifications, manufacturing processes, labeling, or any other attribute, that would affect safety or effectiveness. ... If the applicant wishes to make such a change, it must submit, and the FDA must approve, an application for supplemental premarket approval, to be evaluated under largely the same criteria as an initial application. . . .

“After premarket approval, the devices are subject to reporting requirements. . . . These include the obligation to inform the FDA of new clinical investigations or scientific studies concerning the device which the applicant knows of or reasonably should know of . . . and to report incidents in which the device may have caused or contributed to death or serious injury, or malfunctioned in a manner that would likely cause or contribute to death or serious injury if it recurred .... The FDA has the power to withdraw premarket approval based on newly reported data or existing information and must withdraw approval if it determines that a device is unsafe or ineffective under the conditions in its labeling.” (Citations omitted.) Riegel v. Medtronic, Inc., 552 U.S. 315-20, 128 S. Ct. 999, 169 L. Ed. 2d 892 (2008).

Leslie Mullin’s implant, the Ventak Mini IV, was classified as a class III medical device under the MDA and the FDA’s regulations. As such, the defendant submitted a premarket approval application to the FDA. On December 2, 1998, the FDA issued premarket approval for the implant, permitting its distribution and use. The FDA’s approval of the device was in effect throughout the events that form the factual basis for the plaintiffs’ claims.

B

In light of the statutory language purporting to preempt all state law requirements for medical devices “different from, or in addition to” those provided by federal law; 21 U.S.C. § 360k (a); the question we must answer is whether the claims set forth in the plaintiffs’ complaint under the state product liability statutes would impose requirements “different from, or in addition to” the requirements set forth in the federal statute and the FDA’s premarket approval of the device at issue. See Riegel v. Medtronic, Inc., supra, 552 U.S. 321-22. “The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution.” (Internal quotation marks omitted.) Hackett v. J.L.G. Properties, LLC, 285 Conn. 498, 504, 940 A.2d 769 (2008). Federal laws and regulations may preempt state laws and causes of action in several ways. See Papic v. Burke, 113 Conn. App. 198, 206, 965 A.2d 633 (2009). For the purposes of the present case, the relevant method by which federal law preempted state law is that of express preemption: “Congress can define explicitly the extent to which its enactments pre-empt state law. . . . Pre-emption fundamentally is a question of congressional intent . . . and when Congress has made its intent known through explicit statutory language, the courts’ task is an easy one.” (Citations omitted.) English v. General Electric Co., 496 U.S. 72, 78-79, 110 S. Ct. 2270, 110 L. Ed. 2d 65 (1990); accord Hackett v. J.L.G. Properties, LLC, supra, 504.

In 2008, the United States Supreme Court decided Riegel v. Medtronic, Inc., supra, 552 U.S. 312, in which it determined the scope of the MDA’s express preemption clause as it relates to causes of action under state law. Specifically, the court addressed “whether the pre-emption clause enacted in the [MDA] bars common-law claims challenging the safety and effectiveness of a medical device given premarket approval by the [FDA].” (Citation omitted.) Id., 315. Although the present case involves, at least in part, statutory claims rather than common law claims; see General Statutes § 52-572m et seq.; this is a distinction without a difference. The Riegel case is analogous to the present case, and the opinion, as an interpretation of federal law by the United States Supreme Court, is binding on our decision.

In Riegel, the Supreme Court determined that the premarket approval process “imposes ‘requirements’ under the MDA .... [T]he FDA requires a device that has received premarket approval to be made with almost no deviations from the specifications in its approval application . . . .” (Citations omitted; emphasis added.) Riegel v. Medtronic, Inc., supra, 552 U.S. 322-23. In deciding whether the product liability claims at issue in that case imposed requirements “different from, or in addition to” those set forth under the federal regulatory regime, the court stated: “State tort law that requires a manufacturer’s [medical devices] to be safer, but hence [potentially] less effective, than the model the FDA has approved disrupts the federal scheme no less than state regulatory law to the same effect. Indeed, one would think that tort law, applied by juries under a negligence or strict-liability standard, is less deserving of preservation [than state regulations].” Id., 325. Therefore, in light of the precedent set by the Riegel decision, the tort claims raised in the plaintiffs’ complaint are preempted by federal law.

C

The plaintiffs also assert, however, that their claims would not create requirements that are different from or in addition to the federal requirements, but rather they “parallel” the federal requirements. The Riegel decision left the door open for such parallel claims: “State requirements are pre-empted under the MDA only to the extent that they are ‘different from, or in addition to’ the requirements imposed by federal law. . . . Thus, § 360k does not prevent a State from providing a damages remedy for claims premised on a violation of FDA regulations; the state duties in such a case ‘parallel,’ rather than add to, federal requirements.” (Citation omitted.) Id., 330, citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 495, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996). A review of the plaintiffs’ complaint does not reveal any claim or request for relief that could be construed to allege a violation of FDA regulations. As such, the plaintiffs do not set forth a parallel claim that might entitle them to relief.

We conclude that the plaintiffs’ claims are expressly preempted by federal law. See 21 U.S.C. § 360k. Therefore, viewing the pleadings and evidence in the light most favorable to the plaintiffs, the defendant is entitled to judgment as a matter of law. See Byrne v. Burke, supra, 112 Conn. App. 267.

The form of the judgment is improper. The judgment dismissing the action is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       As will be discussed in greater detall in part I, the court treated the defendant’s motion for summary judgment as a motion to dismiss. Although the court properly determined that the plaintiffs’ claims are preempted by federal law, it improperly determined that it lacked subject matter jurisdiction to hear the claims. As such, the defendant was entitled to judgment as a matter of law rather than a dismissal for lack of subject matter jurisdiction.

       “These devices are implanted, in a manner similar to that of permanent pacemakers, in patients at high risk of sudden cardiac death from ventricular arrhythmias. The device continuously monitors cardiac activity, and if the heart rate exceeds a certain programmable threshold for a specified time . . . the [implant] delivers an appropriate intervention, such as an electrical shock.” L. Lilly, Pathophysiology of Heart Disease (4th Ed. 2007) p. 285.

       We recognize that in certain circumstances, federal preemption may deprive state courts of subject matter jurisdiction. See, e.g., Cox Cable Advisory Council v. Dept. of Public Utility Control, 259 Conn. 56, 70-71, 788 A.2d 29 (addressing express preemption provision in federal Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., as it relates to section in same act specifically setting forth jurisdiction of state courts), cert. denied, 537 U.S. 819, 123 S. Ct. 95, 154 L. Ed. 2d 25 (2002); Lewis v. Chelsea G.C.A. Realty Partnership, L.P., supra, 86 Conn. App. 605 (federal preemption in field of bankruptcy deprives Connecticut courts of jurisdiction to hear state law unfair trade practices claim asserting that action brought in federal Bankruptcy Court improper). In the present case, however, our Supreme Court’s holding in Stokes v. Norwich Taxi, LLC, supra, 289 Conn. 465, indicates that the preemption clause at issue does not deprive our courts of jurisdiction.

       Our conclusion that the preemption provision of the MDA does not deprive our courts of subject matter jurisdiction is consistent with the holding of the United States Court of Appeals for the First Circuit in Violette v. Smith & Nephew Dyonics, Inc., 62 F.3d 8 (1st Cir. 1995), cert. denied, 517 U.S. 1167, 116 S. Ct. 1568, 134 L. Ed. 2d 667 (1996). In that case, the court held that the MDA’s preemption provision was not jurisdictional: “[Wjhere Congress has designated another forum for the resolution of a certain class of disputes . . . such designation deprives the courts of jurisdiction to decide those cases. . . . Where, however, the question is whether state tort or federal statutory law controls, preemption is not jurisdictional and is subject to the ordinary rules of appellate abdication, including timely presentment and waiver. . . . This case presents a ‘choice-of-law’ question and thus falls squarely within the later category. Preemption is not here jurisdictional . . . .” (Citations omitted.) Id., 11-12.

       In enacting the Connecticut Product Liability Act, General Statutes § 52-572m et seq., the General Assembly “was merely recasting an existing [common law] cause of action and was not creating a wholly new right for claimants harmed by a product.” Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 292, 627 A.2d 1288 (1993).

       We briefly mention the recent United States Supreme Court decision, Wyeth v. Levine, 555 U.S. 555, 129 S. Ct. 1187, 173 L. Ed. 2d 51 (2009), in which the court determined that federal law and FDA approval do not preempt state tort claims relating to prescription medication. That opinion could be read as being at odds with both Riegel and our disposition of the present case. The distinction, however, is that the MDA contains an express preemption provision, 21 U.S.C. § 360k (a), whereas there is no equivalent provision for prescription drugs. See id., 574. Although the Wyeth decision may be indicative of a new trend in the law of federal preemption of medical product liability claims, Riegel still governs preemption of claims involving medical devices approved through the FDA’s premarket approval process.

       We note that the Riegel decision determined that federal law preempted both the tort claims of the individual directly harmed by the allegedly defective medical device and the derivative loss of consortium claim of the plaintiffs spouse. See Riegel v. Medtronic, Inc., supra, 552 U.S. 321. Likewise, in the present case, the claims of both Leslie Mullin and Vincent Mullin are preempted.


author: PELLEGRINO, J.

text:
    AMICA MUTUAL INSURANCE COMPANY v. WELCH ENTERPRISES, INC., ET AL.
    (AC 29732)
    Flynn, C. J., and Bishop and Pellegrino, Js.

      Argued February 4
    officially released May 12, 2009

      Susan L. Miller, for the appellant (plaintiff).

      George A. Dagon, Jr., with whom, on the brief, was Marilyn B. Fagelson, for the appellee (defendant P.M. Pearson, Inc.).
   Opinion

PELLEGRINO, J.

The only issue in this appeal is whether the plaintiff, Arnica Mutual Insurance Company, entered into a settlement agreement with the defendant P.M. Pearson, Inc., that was clear and unambiguous and, therefore, enforceable. We do not agree with the trial court that the parties had an understanding that constituted an enforceable agreement and, therefore, conclude that there was no basis for the court to grant the defendant’s motion to enforce the settlement agreement.

The following facts provide the necessary background for the disposition of the plaintiffs appeal. The plaintiffs insureds, Sean Egan and Patricia Egan, purchased a home in Farmington from the defendant. As a condition of the sale, the defendant agreed to repair a leak in the roof and Welch Enterprises, Inc. (Welch), was hired to perform the repairs. While in the process of repairing the roof, a Welch employee allegedly was responsible for causing a fire that destroyed the Egans’ home. The plaintiff paid the Egans for the fire loss and subsequently instituted this action, pursuant to its rights of subrogation, to recover the moneys it had paid. The plaintiff filed suit against Welch on a theory of negligence and against the defendant on a breach of warranty. The Egans were not parties to this action. Thereafter, Welch offered to settle the plaintiffs claim for its policy limits, and the case then proceeded only as against the defendant. The controversy before this court is whether the plaintiff and the defendant entered into a clear and unambiguous agreement to settle their dispute.

The parties, through their attorneys, began exchanging settlement letters in March, 2007. On May 7, 2007, the defendant’s attorney, by letter, offered to settle the plaintiffs claim for $10,000, seeking in addition a general release from both the plaintiff and the Egans. That offer was rejected, and then, by letter dated July 5, 2007, the plaintiffs attorney agreed to accept $25,000 in full and final settlement of its claim. There was no mention in the July 5,2007 letter that the plaintiff would provide a general release from the Egans. It is the defendant’s claim that by its attorney’s letter dated July 27, 2007, it accepted the plaintiffs demand to pay $25,000 in full settlement of its claim and that it expected the plaintiff to provide general releases, including a release from the Egans. The plaintiff claims that it agreed to accept $25,000 in full settlement of its claim but never agreed to provide a general release from the Egans because it did not represent the Egans, nor were they parties to the action. The defendant contends that in all of its correspondence to the plaintiff, it specifically had provided offers of payment conditioned on a release from the Egans and that never in any correspondence did the plaintiff indicate that it was unwilling or unable to provide such a release.

In its motion to enforce the settlement agreement, the defendant argued that the letters exchanged by the parties resulted in an enforceable agreement to pay the $25,000 demanded and to provide a release from the Egans. After a hearing on the defendant’s motion to enforce the settlement agreement, the court found that a binding settlement agreement had been made between the parties, and it granted the defendant’s motion. The court ordered the plaintiff to provide a general release executed by the Egans in exchange for the payment of $25,000 from the defendant. The court further ordered the plaintiff to withdraw its action by a certain date, or, in lieu thereof, the court directed the clerk to dismiss the action as against the defendant with prejudice. The plaintiff did not provide a release from the Egans, nor did it withdraw its action as ordered. Accordingly, the clerk dismissed the action pursuant to the court’s order. This appeal followed.

The issue in this appeal is whether the letters exchanged by the parties constituted an enforceable agreement. We first start with our standard of review. “A settlement agreement is a contract among the parties.” Housing Authority v. DeRoche, 112 Conn. App. 355, 370, 962 A.2d 904 (2009). “It is well settled that [w]here the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. . . . Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . The court’s determination as to whether a contract is ambiguous is a question of law; our standard of review, therefore, is de novo.” (Internal quotation marks omitted.) Electric Cable Compounds, Inc. v. Seymour, 95 Conn. App. 523, 528-29, 897 A.2d 146 (2006).

In Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993), our Supreme Court held that “a trial court may summarily enforce a settlement agreement within the framework of the original lawsuit as a matter of law when the parties do not dispute the terms of the agreement.” Id., 812. Our review of the record leads us to the conclusion that there was nothing from which the court could have concluded that the plaintiff clearly and unambiguously agreed to secure a release from the Egans. There was a dispute as to the terms of the agreement. The plaintiff claimed in the trial court that it never agreed to provide a release from the Egans, as it did not represent the Egans in the subrogation action. The defendant claimed that the plaintiffs silence as to the request for the general release from the Egans meant that the plaintiff agreed to that term. Because the parties were not in agreement as to the terms of the settlement, there was a clear dispute. The court, therefore, had no basis to render judgment pursuant to Audubon Parking Associates Ltd. Partnership. See id. Only when the terms are clear and unambiguous can the court enforce the settlement agreement. “A trial court has the inherent power to enforce summarily a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous.” Id., 811. Moreover, because nothing in the record indicates that the plaintiff ever agreed to get a release from the Egans, there was no meeting of the minds, and, therefore, the agreement was not enforceable. See Aquarion Water Co. of Connecticut v. Beck Law Products & Forms, LLC, 98 Conn. App. 234, 239, 907 A.2d 1274 (2006).

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

In this opinion the other judges concurred.

       Welch Enterprises, Inc., was also a defendant in this action but is not a party to this appeal. Therefore, we refer in this opinion to P.M. Pearson, Inc., as the defendant.

       Because our resolution of the plaintiffs claim is dispositive, we need not discuss in depth the plaintiffs silence as to the defendant’s request for a general release from the Egans. We simply will state that for there to be an enforceable contract, there must be a meeting of the minds between the parties. See Aquarion Water Co. of Connecticut v. Beck Law Products & Forms, LLC, 98 Conn. App. 234, 239, 907 A.2d 1274 (2006) (“In order for an enforceable contract to exist, the court must find that the parties’ minds had truly met. ... If there has been a misunderstanding between the parties, or a misapprehension by one of both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make. ” [Internal quotation marks omitted.]).