author: PETERS, J.

text:
    ZYGMUNT GOLEK v. SAINT MARY’S HOSPITAL, INC., ET AL.
    (AC 32325)
    Beach, Espinosa and Peters, Js.

      Argued October 26, 2011
    officially released January 24, 2012

      Neil L. Moskow, with whom, on the brief, were Deborah M. Garskof and Stephanie Dellolio, for the appellant (plaintiff).

      James F. Shea, with whom, on the brief, was Holly L. Cini, for the appellee (named defendant).

      Lisa A. Zaccardelli, for the appellee (defendant Stanley J. Dudrick).

      Douglas R. Carlson, pro hac vice, with whom were John M. Tanski and, on the brief, William R. Lee, pro hac vice, and Maria E. Kokiasmenos, for the appellee (defendant Accreditation Council for Graduate Medical Education).
   Opinion

PETERS, J.

This case concerns the propriety of a decision by a hospital that conducts an accredited surgical residency training program to decline to promote a senior resident to the position of chief resident. Unwilling to accept the hospital’s proffered renewal of his appointment as a fourth clinical year resident, the resident filed a multicount complaint against the hospital, its surgery program director and its national accrediting association. The resident appeals from adverse rulings in favor of each of these three defendants, focusing on instructional and evidentiary issues that arose in a jury trial and on the propriety of the court’s rendering of summary judgment in favor of the remaining two defendants. We affirm the judgment of the trial court.

In a substituted, multicount complaint filed on September 5, 2008, the plaintiff, Zygmunt Golek, alleged that the defendant Saint Mary’s Hospital, Inc. (hospital), in breach of its contractual obligations, had failed to provide educational and training services to him and had breached the implied covenant of good faith and fair dealing. The plaintiff further alleged that the director of the hospital’s surgery program, the defendant Stanley J. Dudrick, tortiously had interfered with the plaintiffs business expectations and that Dudrick’s conduct was a breach of his fiduciary duty to the plaintiff. Finally, the plaintiff alleged that the organization that accredits the hospital’s residency program, the defendant Accreditation Council for Graduate Medical Education (ACGME), was hable for damages to the plaintiff as a third party beneficiary of ACGME’s relationship with the hospital. The trial court, Eveleigh, J., granted motions for summary judgment filed by Dudrick and ACGME. A jury returned a verdict in favor of the hospital, which the trial court, Stevens, J., accepted and rendered judgment thereon. The plaintiff has appealed from adverse rulings with respect to these three defendants.

The jury reasonably could have found the following largely undisputed facts. From August 11, 2004, to June 30, 2007, the plaintiff was a resident physician in the hospital’s general surgery residency program. Dudrick was the program director. ACGME is a national accrediting body that supervises residency programs in the United States and Canada.

The plaintiff began his association with the hospital on August 10, 2004, when he signed a residency agreement accepting a “categorical” resident position with the hospital. Such a position contemplates that the surgical resident will be promoted, in a series of consecutive yearly contracts, through the various steps of the hospital’s residency program, provided that the resident satisfies the program’s basic requirements. Because the plaintiff already had been a surgical resident at another hospital, he began his residency with the hospital as a second year postgraduate resident, or PGY 2, for the period of August 11, 2004, through June 30, 2005. The plaintiff subsequently was promoted to a PGY 3 position for the period of July 1, 2005, through June 20, 2006. He was then “ ‘skip promoted’ ” to a PGY 5 (clinical research PGY 4) position for the period of July 1, 2006, through June 30, 2007.

The disagreement of the parties arises out of the hospital’s decision not to promote the plaintiff to the position of chief resident in July, 2007. At a meeting on April 4, 2007, Dudrick informed the plaintiff that, contrary to the plaintiffs expectations, due in part to his low scores on two sets of national qualifying examinations, the hospital would offer him only a contract to repeat his PGY 5 year. Dudrick previously had warned the plaintiff that it was important for him to prepare properly for these examinations, which, as the plaintiff concedes, are a predictor of first time pass rates on American Board of Surgery certification examinations and affect a residency program’s professional accreditation.

On June 29, 2007, the hospital offered the plaintiff a residency agreement for the 2007-2008 academic year, pursuant to which he would repeat his PGY 5 year. The plaintiff declined the offer and challenged its validity through the hospital’s grievance process, alleging that it was “a pretextual decision not to employ him.” The plaintiffs challenge was unsuccessful. The plaintiff completed his existing contract and left his employment with the hospital at the end of June, 2007. Approximately twenty months later, in April, 2009, the plaintiff accepted a position as a nonaccredited fellow in the thoracic surgery department at Maimonides Medical Center (Maimonides). Additional facts will be set forth as they become necessary.

I

CLAIMS AGAINST THE HOSPITAL

The plaintiff appeals from the judgment of the trial court, Stevens, J., rendered in favor of the hospital following a jury trial. On appeal, the plaintiff claims that the court improperly (1) instructed the jury on the standard of proof in civil cases and (2) precluded him from presenting relevant evidence to the jury. We are not persuaded.

A

Instruction to the Jury

The plaintiff challenges the propriety of the court’s instruction to the jury on the standard of proof in civil cases. Specifically, the plaintiff faults the court for contrasting the burden of proof in a civil case with the burden of proof in a criminal case. He claims that interjecting the concept of proof beyond a reasonable doubt that governs criminal cases was “confusing, incorrect as a matter of law, and deprived the jury of the proper guidance to evaluate [his] claims under the proper standard of proof.” The plaintiff duly excepted to the charge at trial. We agree with the hospital and conclude that the court’s charge to the jury was not improper.

“Our analysis begins with a well established standard of review. When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 142-43, 757 A.2d 516 (2000).

“An improper instruction on the burden of proof may so mislead the jury as to be potentially harmful to one of the parties and therefore may amount to reversible error.” (Internal quotation marks omitted.) PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 295, 838 A.2d 135 (2004). However, “[a] charge to the jury is not to be critically dissected nor are individual instructions to be judged in artificial isolation from the overall charge. . . . The issue is whether, in view of the charge read as a whole, that portion of the charge to which objection has been taken can be considered a basis for finding harmful error.” (Citation omitted; internal quotation marks omitted.) State v. Moss, 189 Conn. 364, 367-68, 456 A.2d 274 (1983).

In the present case, a review of the entirety of the court’s charge reveals that the jury was instructed properly on the standard of proof. The court began its instruction to the jury by stating: “[0]n TV or in other areas of your Uves, you may have heard about a burden of proof which is called or referred to as beyond a reasonable doubt. That is not applicable to this case. This is a civil case and that standard of proof is not applicable.” The court then gave a complete and legally accurate charge on the standard of proof applicable in civil cases, stating repeatedly that the relevant burden of proof was a preponderance of the evidence. This portion of the court’s charge to the jury followed the text of the Superior Court’s standard civil jury instructions. The court reasonably referred to the criminal standard of proof in order to correct any possible jury misconceptions about the governing civil standard. It repeatedly clarified that the criminal standard did not apply because the jury was considering a civil case.

Although the plaintiff challenges the court’s failure to follow the words of the instruction approved in Cross v. Huttenlocher, 185 Conn. 390, 394-95, 440 A.2d 952 (1981), he has not identified any specific error in the charge as given. The plaintiffs preference for an alternate statement of the standard of proof does not demonstrate impropriety in the charge that was delivered by the court. See Craine v. Trinity College, 259 Conn. 625, 662, 791 A.2d 518 (2002).

B

Evidentiary Rulings

The plaintiff also challenges numerous evidentiary rulings by the trial court. The plaintiff claims that the court improperly granted the hospital’s motion in limine to preclude testimony by a plaintiffs witness and improperly sustained the hospital’s objections to other evidence offered by the plaintiff. We agree with the hospital that the plaintiff cannot prevail on his claims of evidentiary error.

“It is well settled that we will set aside an evidentiary ruling only when there has been a clear abuse of discretion.” (Internal quotation marks omitted.) Kalams v. Giacchetto, 268 Conn. 244, 249, 842 A.2d 1100 (2004). “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 186, 842 A.2d 567 (2004).

The court granted the hospital’s motion in limine to preclude testimony by Stephen J. Lahey, a surgeon whom the plaintiff had proffered to give evidence of the high quality of the plaintiffs surgical services at Maimonides. Concededly, the plaintiff did not begin to work at Maimonides until approximately twenty months after he had left his employment with the defendant hospital. Furthermore, the plaintiff does not contest the accuracy of the hospital’s representation that the plaintiffs surgical position at Maimonides was different in kind from his responsibilities as a surgical resident at the defendant hospital. The plaintiff nonetheless maintains that any evidence of his “superb clinical and surgical skills” was relevant to establish that the defendant’s refusal to offer him the position of chief resident was pretextual. In light of the substantial difference between the plaintiffs responsibilities at the two hospitals, we disagree and conclude that the court’s ruling was not an abuse of its discretion.

The plaintiff next maintains that the court abused its discretion in sustaining the defendant’s objection to five letters from surgeons practicing at the hospital that attested to the plaintiffs surgical skills and their willingness to act as references for him after he had left the hospital’s residency program. The plaintiff has not, however, contested the accuracy of the hospital’s representation that this evidence would have provided nothing other than additional support for the plaintiffs own, uncontradicted testimony to that effect. Accordingly, we are not persuaded that the plaintiff was prejudiced by the court’s adverse ruling.

The plaintiff also claims that the court improperly failed to admit into evidence exhibits containing e-mails from the plaintiff to directors at other residency programs seeking admission after he had left his employment at the hospital. The plaintiff argues that he was prejudiced by the court’s refusal to admit exhibits 80 and 80A because they contained evidence of his efforts to mitigate his damages. This evidence, however, was irrelevant because the hospital never claimed that the plaintiff had failed to make reasonable efforts to obtain a position in another residency program. Moreover, the plaintiff testified personally about the extent of his efforts to be accepted into another residency program. Accordingly, we are persuaded that the plaintiff was not prejudiced by the court’s adverse ruling.

The plaintiff argues further that the court was required to admit exhibit 80A, pursuant to Connecticut Code of Evidence § 1-5 (b), to complete a statement already in evidence. We disagree. The exhibit in question is an unredacted version of an exhibit relied on by the hospital during its cross-examination of the plaintiff. The court excluded the proffered exhibit because the redacted sentence concerned irrelevant material and was not required for context or to complete the statement contained in the admitted exhibit. We conclude that the court’s refusal to admit the proffered exhibit was reasonable.

The plaintiff next claims that the court improperly refused to admit minutes from the February 13, 2007 meeting of the hospital’s surgical education committee. The plaintiff argues that the minutes indicate that surgical residents customarily are advised of the nonrenewal of their positions a minimum of 120 days before the end of the academic year and, therefore, support his claim that the hospital acted in bad faith. The written policy to which the plaintiff refers, which was admitted into evidence at trial, applies only to residents that are terminated from the hospital’s surgical residency program. Because the plaintiff was not terminated from the program, but chose to withdraw when he was not offered his desired position of chief resident, the court did not abuse its discretion in sustaining the hospital’s objection to the proffered exhibit.

The plaintiff further asserts that, in light of the significance of his performance on the ABSITE examinations, the court improperly sustained the hospital’s objection to a proffered exhibit that attested to his efforts to prepare himself for the examinations. The proffered exhibit was, however, written in the spring of 2006, one year before the hospital’s decision not to promote the plaintiff to the position of chief resident. Because of the exhibit’s limited relevance to the issues being litigated, the court’s ruling cannot properly be characterized as an abuse of its discretion.

Finally, the plaintiff challenges the propriety of the court’s rulings, during his cross-examination of the associate director of the hospital’s surgery program, Michael Ajemian, which denied him the opportunity to question the utility of ABSITE examinations as a measure of a surgical resident’s performance. The plaintiffs bald assertion that his questions were appropriate is not persuasive. This claim must be dismissed as inadequately briefed. See Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008).

We conclude, therefore, that the plaintiffs appeal from the judgment in favor of the hospital cannot be sustained. The court properly accepted the jury’s verdict upholding the hospital’s decision not to promote the plaintiff to the position of chief resident.

II

CLAIMS AGAINST DUDRICK

The plaintiff also appeals from the judgment rendered in favor of Dudrick. The plaintiff claims that the trial court, Eveleigh, J., improperly granted Dudrick’s motion for summary judgment on counts thirteen and fourteen of the plaintiffs substituted complaint, which alleged that Dudrick tortiously had interfered with the plaintiffs business expectations and had acted in breach of his fiduciary duty to the plaintiff. We are not persuaded.

Our standard of review on appeal is well established. “Summary judgment rulings present questions of law; accordingly, [o]ur review of the . . . decision to grant the defendant’s motion for summary judgment is plenary. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law .... [A] summary disposition [must] ... be on evidence which a jury would not be at liberty to disbelieve and . . . where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the [summary judgment].” (Citations omitted; internal quotation marks omitted.) Farrell v. Twenty-First Century Ins. Co., 301 Conn. 657, 661-62, 21 A.3d 816 (2011).

A

Tortious Interference

The court granted Dudrick’s motion for summary judgment on count fourteen of the plaintiffs substituted complaint, alleging tortious interference with the plaintiffs business expectations, on the ground that the plaintiff had failed to present any evidence of actual loss resulting from Dudrick’s allegedly tortious conduct. On appeal, the plaintiff maintains that Dudrick’s disparaging comments injured him by causing Greenwich Hospital to deny his request for surgical privileges. We disagree.

To prove a claim of tortious interference with his business expectations, the plaintiff was required to establish: “(1) the existence of a contractual or beneficial relationship, (2) the defendant's] knowledge of that relationship, (3) the defendant's] intent to interfere with the relationship, (4) [that the defendant’s] interference [with the relationship] was tortious, and (5) a loss suffered by the plaintiff that was caused by the defendant’s] tortious conduct. . . . Unlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss ... it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffers actual loss. . . . Therefore, in order to survive a motion for summary judgment the plaintiff must allege an actual loss resulting from the improper interference with [his] contract.” (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000).

The plaintiff based his claim of tortious interference on Dudrick’s alleged misconduct during the plaintiffs employment as a surgical assistant with USA Surgical Services of CT, P.C. (USA Surgical), where the plaintiff worked from October 29, 2007, until he became employed at Maimonides in April, 2009. USA Surgical provides temporary surgical assistant placement services to hospitals in different states, including Connecticut. Accordingly, it requires its employees to demonstrate that they have medical privileges at a number of hospitals. To satisfy this requirement, the plaintiff applied for surgical privileges at Greenwich Hospital in November, 2007. The plaintiff alleges that his request was denied because of Dudrick’s false negative comments about his surgical skills. Dudrick testified that he had informed a physician at Greenwich Hospital that the plaintiff had not completed the defendant hospital’s residency program and so could not operate independently without the presence of another staff surgeon. The plaintiff thereafter was advised not to report to Greenwich Hospital but continued to be employed by USA Surgical, where he was compensated for his services at an annual salary of $90,000 to $95,000.

The court rendered summary judgment for Dudrick on the plaintiff s ■ claim of tortious interference as a matter of law because of the plaintiff’s failure to present any evidence that Dudrick’s statements had caused him to sustain an actual loss. It is undisputed that, despite the plaintiff’s being denied surgical privileges at Greenwich Hospital, he continued to receive his regular rate of compensation under the terms of his employment agreement with USA Surgical. The plaintiff has not challenged the propriety of the court’s finding that the record does not demonstrate that Dudrick’s injurious comments caused him to suffer an actual loss. He cites no authority in support of his claim that an allegation of damage to his professional reputation suffices to establish actual loss, and we know of none. We therefore affirm the judgment of the court granting Dudrick’s motion for summary judgment as to count fourteen of the plaintiffs substituted complaint.

B

Breach of Fiduciary Duty

The court granted Dudrick’s motion for summary judgment on count thirteen of the plaintiffs substituted complaint, alleging that Dudrick’s conduct was in breach of his fiduciary duty to the plaintiff. The court aptly noted that, in order to maintain a claim for breach of fiduciary duty, the plaintiff was required first to prove the existence of a fiduciary relationship. E.g., Murphy v. Wakelee, 247 Conn. 396, 400, 721 A.2d 1181 (1998). Concluding that the plaintiff had failed to present a factual basis for his claim, the court ruled against the plaintiff and in favor of Dudrick. On appeal, the plaintiff claims that Dudrick, as director of the hospital’s surgery program, had a fiduciary obligation to represent the plaintiff’s interest in becoming chief resident. We affirm the judgment of the court.

“It is well settled that a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. . . . Although this court has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations .... we have recognized that not all business relationships implicate the duty of a fiduciary. ... In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary.” (Citations omitted; internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 640, 804 A.2d 180 (2002). The fact that one party trusts another is not dispositive of whether a fiduciary relationship exists; see Forte v. Citicorp Mortgage, Inc., 66 Conn. App. 475, 490, 784 A.2d 1024 (2001); rather, proof of a fiduciary duty requires an evidentiary showing “of a unique degree of trust and confidence between the parties such that the [defendant] undertook to act primarily for the benefit of the plaintiff.” (Internal quotation marks omitted.) Id., 489.

In the present case, nothing in the record raises the factual inference that a fiduciary relationship existed between Dudrick and the plaintiff while the parties were negotiating the plaintiffs role in the surgical residency program. As the court noted, the plaintiff is an adult who voluntarily became a physician and entered the hospital’s surgical residency program. The plaintiff alleges that Dudrick, in his role as program director, sometimes praised and sometimes criticized the plaintiffs performance and that he certified surgical residents’ performance records to ACGME. That history does not suffice to establish anything other than a form of a student-teacher relationship. We know of no case, and the plaintiff has cited none, to support the proposition that such a relationship, without something more, was fiduciary in nature or that Dudrick should be deemed to have undertaken a duty “ ‘to act primarily for the benefit of the plaintiff.’ ” Accordingly, we affirm the judgment of the court granting Dudrick’s motion for summary judgment as to count thirteen of the plaintiff’s substituted complaint.

Ill

CLAIMS AGAINST ACGME

The plaintiffs final claim on appeal is that the trial court, Eveleigh, J., improperly granted ACGME’s motion for summary judgment on count eleven of the plaintiff’s substituted complaint, which alleged that the plaintiff was a third party beneficiary of the accreditation agreement between ACGME and the hospital and that he had been injured by the hospital’s breach of that agreement. We affirm the judgment of the court.

“Summary judgment rulings present questions of law; accordingly, [o]ur review of the . . . decision to grant the defendant’s motion for summary judgment is plenary. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . .” (Citation omitted; internal quotation marks omitted.) Farrell v. Twenty-First Century Ins. Co., supra, 301 Conn. 661-62.

The court rendered summary judgment for ACGME on the plaintiffs breach of contract claim, holding that the record established that ACGME was not a party to the employment contract between the plaintiff and the hospital.

On appeal to this court, the plaintiff reiterates his contention that, by setting and enforcing accreditation standards, ACGME manifested its intent to benefit the surgical residents enrolled in the hospital’s training program and to assume responsibility for improprieties in their treatment by the hospital. He points to evidence of ACGME’s investigation of his complaint that he improperly had been denied a contract as chief resident and ACGME’s subsequent decision not to withdraw the hospital’s accreditation. We disagree.

The law regarding the creation of contract rights in third parties in Connecticut is well settled. “[T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties.” (Internal quotation marks omitted.) Grigerik v. Sharpe, 247 Conn. 293, 311-12, 721 A.2d 526 (1998).

The court found that, to be accredited by ACGME, a hospital must be “ ‘in substantial compliance’ ” with ACGME program requirements applicable to each specific program. ACGME’s accreditation standards state certain subjects that the hospital must address, but ACGME was not involved in any day-to-day supervision of the plaintiffs clinical training. After investigating the plaintiffs allegations that the hospital improperly had denied him the promotion to chief resident, ACGME determined that the accreditation status of the hospital’s surgical residency program would not change.

Without challenging the accuracy of the court’s description of the relationship between ACGME and the hospital, the plaintiff claimed that ACGME nonetheless was responsible for his failure to become chief resident because he is a foreseeable third party beneficiary of the accreditation agreement between ACGME and the hospital. The court rejected the plaintiffs claim as a matter of law. It held, under well established case law; see Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 532, 825 A.2d 72 (2003); that foreseeability, alone, was not a sufficient basis for the creation of third party liability.

In the absence of language in the accreditation agreement expressly attesting to the parties’ intent to benefit the plaintiff, the court examined the terms of the accreditation agreement to ascertain its purpose and scope. It agreed with the plaintiff that the contract between ACGME and the hospital concerned the hospital’s accreditation and manifested the parties’ intent to advance the education of resident physicians. The court nonetheless held that such evidence did not establish that ACGME had manifested an intent to obligate itself to the plaintiff. Accordingly, the court rejected the plaintiffs claim that he had adduced probative and sufficient evidence to support his claim to recover as a foreseeable beneficiary of the accreditation agreement and granted ACGME’s motion for summary judgment. The court did not disagree with the plaintiffs contention that he had introduced sufficient evidence to show that the accreditation agreement was intended to benefit him and other residents at the hospital. It held, instead, that this evidence was insufficient to prove the plaintiffs claim as a matter of law because the plaintiff had failed to introduce evidence, as required by Grigerik, that the terms of the accreditation agreement manifested “the intent of the parties to the contract . . . that the promisor should assume a direct obligation to the [alleged] third party [beneficiary] . . . .” (Internal quotation marks omitted.) Grigerik v. Sharpe, supra, 247 Conn. 312.

Under the circumstances of this case, to prevail on his claim for breach of contract, the plaintiff was required to present evidence within the terms of the accreditation agreement that both ACGME and the hospital had intended to extend not only to benefit him, but also to extend contractual rights to him. See id., 311-12. The plaintiffs proffered evidence does not satisfy this test. We agree with the court that there exists no genuine issue of material fact regarding the plaintiffs claim for recovery from ACGME. The plaintiff has introduced no evidence that he qualifies for recovery as a third party beneficiary of the accreditation agreement between ACGME and the hospital pursuant to the requirements set out in Grigerik. The evidence on which the plaintiff relies might persuade a trier of fact that the plaintiff had received certain benefits from that agreement, but it does not suffice to create an issue of fact as to whether the hospital and ACGME intended to obligate themselves to him contractually. Accordingly, we affirm the judgment of the court granting ACGME’s motion for summary judgment on count eleven of the plaintiffs substituted complaint.

IV

CONCLUSION

The record in this case documents an unfortunate disagreement between a senior resident in surgery and a training hospital. Despite the fact that the plaintiff had, in many ways, performed well in the hospital’s surgical residency program, the hospital relied on significant documented deficits in his more recent tests to deny the plaintiff the contract for chief resident that he had expected to receive. The plaintiffs unwillingness to accept a different contract led him to sever his relationship with the hospital and, inferentially, deprived him of future professional opportunities that he might otherwise have expected to enjoy. On the record before us, none of the defendants cited by the plaintiff bears legal responsibility for this outcome, regardless of how disappointing it may be for the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court, Roche, J., granted the hospital’s motion to strike counts of the plaintiffs complaint alleging wrongful discharge, violation of the plaintiffs due process rights, promissory estoppel and negligent and intentional infliction of emotional distress. Although the plaintiff repleaded some of the stricken counts in his substituted complaint, he has not pursued them in this appeal.

       The plaintiff has not appealed from the adverse pretrial resolution of additional claims against the hospital and the other defendants.

       The hospital’s surgical residency program was comprised of six levels: first clinical year (PGY 1); second clinical year (PGY 2); postdoctoral research year (PGY 3); third clinical year (PGY 4); fourth clinical year (PGY 5); and chief resident year (PGY 6), the most senior level of residency. Surgical residents must be promoted through each level in order to graduate from the program.

       As part of the hospital’s surgical residency training program, the plaintiff was required to complete the American Board of Surgery In-Training Surgical Basic Science Examination (ABSITE) each year. The ABSITE is a written examination designed to test overall medical knowledge that is taken each January by all surgical residents. During the course of the plaintiffs residency at the hospital, his ABSITE scores declined from the 38th percentile in 2005, to the 28th percentile in 2006, and to the 11th percentile in 2007. In 2007, the plaintiff twice participated in mock oral board examinations conducted by members of the hospital’s own faculty, as well as faculty from other medical institutions. Each time, the plaintiff failed two of the three sections of the examination. The plaintiff has not challenged the accuracy of his test scores or the relevance of these test scores as a measure of his performance of his duties as a surgical resident.

       The plaintiffs claim of pretext was grounded on two allegations. He first maintained that, in prior years, another resident had been promoted to chief resident despite poor examination scores. Second, he claimed that Dudrick had taken umbrage at the manner in which the plaintiff had requested a letter of recommendation for a program that Dudrick thought to be unpromising.

       The Superior Court’s model jury instructions on the standard of proof in civil cases provide, in relevant part: “In order to meet (his/her) burden of proof, a party must satisfy you that (his/her) claims on an issue are more probable than not. You may have heard in criminal cases that proof must be beyond a reasonable doubt, but I must emphasize to you that this is not a criminal case, and you are not deciding criminal guilt or innocence. In civil cases such as this one, a different standard of proof applies. The party who asserts a claim has the burden of proving it by a fair preponderance of the evidence, that is, the better or weightier evidence must establish that, more probably than not, the assertion is true. . . .” Connecticut Civil Jury Instructions 3.2-1 (revised January 1, 2008), available at http://www.jud.ct. gov/JI/civi]/part3/3.2-l.htm (last visited December 28, 2011).

       Indeed, in his brief to this court, the plaintiff states that “the termination from the hospital’s residency program prevents [the plaintiff] from being board eligible and from working as a surgeon. . . .”

       The exhibits in question are plaintiffs exhibits 80 and 80A. The court refused to admit exhibit 80, which is comprised of e-mails sent by the plaintiff to directors at other residency programs after he had left his employment at the hospital, and denied the plaintiffs motion to admit exhibit 80A, which contains a portion of exhibit 80 that previously had been excluded by the court.

       Connecticut Code of Evidence § 1-5 (b) provides: “Introduction by another party. When a statement is introduced by a party, another party may introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of the first part of the statement, ought in fairness to be considered with it.”

       The policy states, in relevant part: “[W]here a resident’s agreement is not going to be renewed, the [surgical residency program] must ensure that its ACGME-accredited programs provide the resident(s) with written notice of intent not to renew a resident’s agreement no later than four months prior to the end of the resident’s current agreement.”

       The court noted that the plaintiff had failed to cite a single case, from any jurisdiction, in support of his third party beneficiary claim. The plaintiff’s appellate briefs are similarly deficient.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    AMY RATHBUN ET AL. v. HEALTH NET OF THE NORTHEAST, INC.
    (AC 32712)
    DiPentima, C. X, and Robinson and Flynn, Js.

      Argued November 16, 2011
    officially released January 24, 2012

      Paul T. Edwards, with whom, on the brief, were Michael A. Stratton, Joel T. Faxon and Eric P. Smith, for the appellants (plaintiffs).

      Linda L. Morkan, with whom, on the brief, were Theodore J. Tucci and Michael J. Kolosky, for the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiffs, Amy Rathbun and Tanequa Brayboy, appeal following the judgment of the trial court granting a motion for summary judgment in favor of the defendant, Health Net of the Northeast, Inc. On appeal, the plaintiffs, who are Medicaid recipients, contend that the court erred in determining that the defendant could assert a claim against the plaintiffs to recover the costs of medical care owed to the plaintiffs by responsible third parties. We affirm the judgment of the trial court.

The following facts were stipulated to by the parties and accepted by the court. Under the Medicaid Act (Medicaid); 42 .U.S.C. § 1396 et seq.; federal financial assistance is provided to states that choose to reimburse the costs of medical care to the economically disadvantaged. States may choose contractors to provide or to arrange for services under the state Medicaid plan, which is known as Medicaid managed care. The state of Connecticut participates in the Medicaid program and has authorized the department of social services (department) to administer the program within the state. The department is authorized to award “contracts for Medicaid managed care health plans” under General Statutes § 17b-28b.

The department contracted with the defendant directly and through its predecessors from 1995 through 2008 regarding the administration of the Medicaid managed care program. The contract provided that “[t]he [department hereby assigns to [the defendant] all rights to third party recoveries from Medicare, health insurance, casualty insurance, workers’ compensation, tortfeasors, or any other third parties who may be responsible for payment of medical costs for [the defendant’s] members.” The contract limited the defendant’s right to recovery to the amount that the defendant paid toward the cost of its member’s care. The contract required the defendant to make efforts to determine the legal liability of third parties for health care services provided to Medicaid enrollees, and to “pursue, collect, and retain any monies from third party payers for services to [the defendant’s] members under this contract . . . .” The contract further provided that the defendant could assign “the right of recovery to [its] subcontractors and/or network providers.”

The defendant contracted with The Rawlings Company, LLC (Rawlings), during all relevant times to this lawsuit to pursue recoveries for medical treatment provided to the defendant’s members in instances where there was potential for third party liability. When Raw-lings became aware that a member was injured by a third party, it typically notified the injured member and the third party that the defendant had a right to recover medical expenses paid on the member’s behalf.

Rathbun was a member of the defendant’s Medicaid managed care plan. The defendant paid $2982.93 for medical treatment affiliated with Rathbun’s injuries stemming from a motor vehicle accident that occurred on July 24, 2006. Rathbun retained legal counsel to pursue potential tort claims against the driver of the other vehicle involved in the accident. Rawlings notified Rathbun’s counsel, as well as the third party’s insurer, that the defendant had a claim for repayment of the medical benefits it paid on Rathbun’s behalf for injuries sustained in the motor vehicle accident. Rathbun’s counsel sent a check in the amount of $2982.93 to the defendant in satisfaction of the defendant’s claim.

Kay’ Anah Brayboy, the daughter of Tanequa Bray-boy, was a member of the defendant’s Medicaid managed care plan. On July 4, 2007, Kay’ Anah was struck by a motor vehicle and subsequently died as a result of her injuries. The defendant paid $13,541.45 for medical treatment affiliated with Kay’ Anah Brayboy’s injuries from the accident. Tanequa Brayboy retained legal counsel to pursue possible tort claims against the driver of the motor vehicle that struck her daughter. Rawlings notified Tanequa Brayboy’s counsel that the defendant had a claim for repayment for medical benefits paid on behalf of Kay’ Anah Brayboy in connection with the motor vehicle accident. Brayboy subsequently retained new counsel, and Rawlings reissued its notice of claim letter to the attention of Brayboy’s new counsel. To date, the defendant has not been reimbursed for the cost of medical care provided to Kay’ Anah Brayboy.

The plaintiffs brought a putative class action against the defendant on November 26,2008. The plaintiffs filed a second amended complaint, dated May 7, 2009, which alleged four counts, a putative class action, breach of the duty of good faith and fair dealing, conversion and a count seeking a declaratory judgment. The declaratory judgment count sought a declaration of the plaintiffs’ rights and obligations to reimburse the defendant pursuant to Connecticut statutes, regulations and contract. Both parties filed motions for summary judgment on the declaratory judgment count on June 15, 2009. On August 21, 2009, the court granted the defendant’s motion for summary judgment and denied the plaintiffs’ motion for summary judgment.

In its memorandum of decision, the court concluded that the department had assigned its statutory recovery right to the defendant. The court noted that under General Statutes § 17b-265 (a), the department has the right to be subrogated to any right of recovery that the Medicaid enrollee may have against a third party. Relying on § 17b-265 (b), which provides that the department may assign its right to subrogation to a designee or health care provider participating in the Medicaid program, the court concluded that the department properly assigned its statutory rights to the defendant. The court also concluded that, under Connecticut law, the defendant, as the assignee of the department, was not required to bring a separate action against the third party tortfeasor to recover the medical expenses expended on behalf of the Medicaid enrollee. Further, the court found that the defendant’s reimbursement was limited to the amount of Medicaid funds expended by the defendant and identified as part of any settlement or judgment.

On appeal, the plaintiffs contend that the court erred in determining that the defendant could assert a claim against the plaintiffs to recover the costs of medical care received by the plaintiffs from responsible third parties. The plaintiffs argue that General Statutes § 52-225c prohibits the defendant from asserting such a claim against the plaintiffs unless “otherwise provided by law . . . .” The plaintiffs contend that the defendant cannot assert such claims because neither § 17b-265 nor General Statutes § 17b-94 are applicable to the circumstances of the case. We disagree.

We begin by setting forth the relevant standard 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. ... 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 [a party’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) State v. Peters, 287 Conn. 82, 87, 946 A.2d 1231 (2008).

The plaintiffs’ claim challenging the court’s interpretation of a state statute is also subject to plenary review. Brown & Brown, Inc. v. Blumenthal, 297 Conn. 710, 721, 1 A.3d 21 (2010). “The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case .... When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case .... In seeking to determine that meaning . . . [General Statutes] § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter .... We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise . . . .” (Internal quotation marks omitted.) Id., 722.

We begin our review with the language of the relevant statute. Section 17b-265 (a) provides in relevant part that “[i]n the case of such a recipient who is an enrollee in a care management organization under a Medicaid care management contract with the state or a legally hable relative of such an enrollee, the department shall be subrogated to any right of recovery or indemnification which the enrollee or legally hable relative has against such a private insurer or other third party for the medical costs incurred by the care management organization on behalf of an enrollee.” Under § 17b-265 (a) then, the department is subrogated, to the extent of the amount paid for medical care on the behalf of an insured, to any rights that the Medicaid recipient may have to third party reimbursement. The department may assign this statutory right to subrogation under § 17b-265 (b) to “a designee or a health care provider participating in the Medicaid program and providing services to an applicant or recipient . . . ,” In addition, under § 17b-265 (b), as a condition of eligibility, applicants must assign to the department, up to the amount of medical assistance paid, their rights to seek payment from third parties.

In the present case, the department contracted with the defendant to administer the Medicaid managed care program. The department assigned to the defendant “all rights to third party recoveries . . . who may be responsible for payment of medical costs of [the defendant’s] members.” The contract further provided that the defendant was to make every reasonable effort to determine if there was third party liability for medical payments made to the defendant’s members and to “pursue, collect, and retain any monies from third party payers for services to [the defendant’s] members under this contract . . . .” Under the contract, the defendant could assign its right to recovery to subcontractors or network providers. Section 17b-265 (b) provides that the department may assign its right to subrogation to a designee or a health care provider participating in the Medicaid program. On the basis of those stipulated facts, we conclude that, the department, through its contract with the defendant, assigned its statutory right to subrogation under § 17b-265 (b) to the defendant.

The primary issue on appeal is whether the defendant may assert its right to subrogation as a basis on which to recover money from the plaintiffs. The plaintiffs contend that § 17b-265 (a) provides the department with the right to seek reimbursement through subrogation directly from a third party only, and not from the Medicaid recipient. We disagree.

“In its simplest form, subrogation allows a party who has paid a debt to ‘step into the shoes’ of another (usually the debtee) to assume his or her legal rights against a third party to prevent that party’s unjust enrichment. ... In that way, an insurance company, for example, can be substituted for the insured in an action against a third party tortfeasor. The insured, having been paid by the insurer, in essence, transfers his rights against the tortfeasor to the insurer. The insurer, thus, can attempt to collect from the party that caused the loss to the extent expended by the insurer in satisfying the claim.” (Citation omitted.) Wasko v. Manella, 74 Conn. App. 32, 35-36, 811 A.2d 727 (2002), rev’d on other grounds, 269 Conn. 527, 849 A.2d 777 (2004).

The plaintiffs rely on language found in State v. Peters, supra, 287 Conn. 82, to support their contention that § 17b-265 (a) requires that the department or its designee seek reimbursement through its right to subrogation only against the third party directly. In Peters, the issue before the court was whether federal law requires the department to pursue third parties directly for reimbursement of Medicaid funds, or whether the department could assert a lien against any settlement or judgment that the Medicaid recipient received. Id., 85-86. In reaching its conclusion that federal law did not preclude the department from asserting a lien against the Medicaid recipient’s recovery, the court noted: “General Statutes (Sup. 2008) § 17b-265 requires that medicaid recipients in Connecticut, as a condition of eligibility, assign to the state the right to reimbursement from third parties for medical expenses. Under § 17b-265, the department of social services is subrogated to any right of recovery that a recipient has against a third party for reimbursement. Sections 17b-93 and 17b-94 provide that the state may assert a lien to effectuate the state’s reimbursement of medicaid funds. Thus, to obtain reimbursement when a third party is liable for a recipient’s medical expenses that the state has paid, the state may pursue those claims against the third party directly pursuant to the assignment and subrogation scheme or, alternatively, indirectly by placing a hen on personal injury judgments or settlements obtained by a medicaid recipient from a hable third party.” Id., 92-93. The plaintiffs point to the court’s language referencing the department’s right to pursue claims against third parties directly pursuant to the statutory subrogation scheme found in § 17b-265 as support that such subrogation rights may only be asserted against third parties.

We do not read the language of the Peters decision as asserting that the department may only assert its right of subrogation against the third party directly. The issue before the court in Peters was whether the department could assert a hen against any settlement or judgment that the Medicaid recipient received, or alternatively whether it must pursue the third party directly. In reaching its conclusion, the court simply noted that there are three statutes that govern the rights of the insured to seek reimbursement from responsible third parties. The court was not tasked with the responsibility of construing § 17b-265, as we are today. Therefore, we do not read the court’s dicta concerning these statutes as asserting that under § 17b-265 (a), the department may only assert its right to subrogation against the third party directly.

When an insurer has the right of subrogation, it can stand in the shoes of the insured in order to recover the costs of payments made to the insured. Westchester Fire Ins. Co. v. Allstate Ins. Co., 236 Conn. 362, 367, 672 A.2d 939 (1996). In order to assert its subrogation rights, an insurer, therefore, could intervene in an action between the insured and the third party, or bring direct suit against the third party. If an insured secures a settlement or judgment from a third party, however, the insurer’s right to be reimbursed under its right to subrogation does not end. Rather, the insurer may be reimbursed by the insured under its right to subrogation for the payments they provided. Amica Mutual Ins. Co. v. Barton, 1 Conn. App. 569, 574, 474 A.2d 104 (1984).

In Amica Mutual Ins. Co. v. Barton, supra, 1 Conn. App. 570, the plaintiff insurance company sought reimbursement from its insured for benefits it paid when the insured settled with the responsible third party. The insurer was entitled to subrogation under state statute. The insured, however, argued that the statute only granted the insurer a right of subrogation against the tortfeasor and did not provide for a direct cause of action against the insured. Id., 571. This court noted that “[n]o section of the statute grants an express right to an insurer to bring suit against its insured for reimbursement for basic reparations benefits paid where the insured has collected damages from [the third party tortfeasor].” Id., 572. This court concluded, however, that “the plaintiff had a statutory right of subrogation . . . which the defendant destroyed when he entered into a general release of all of his claims . . . with the tortfeasor. Having obliterated the subrogation rights of the plaintiff, the defendant cannot, in equity, retain the benefit of what amounts to a duplicate payment. . . . The subrogation right ... is given to insurers as a remedy in the event recalcitrant insureds do not pursue their own rights. The subrogation right of the statute does not preclude the insurer from seeking reimbursement from an insured who has pursued his rights and effected a settlement or judgment. To hold otherwise would be to enrich unjustly an insured by allowing him to retain a benefit at the expense of another. If the statute were to be interpreted as barring a direct action by the insurer against the insured for reimbursement, the consequences would be calamitous.” (Citations omitted.) Id., 574.

As was the case in Barton, in the present case, the defendant had a statutory right to subrogation, which the plaintiffs affected when they settled or secured judgment with the responsible third parties. Like the statute in Barton, the statute here does not reference the department’s express right to recover from the insured directly under its right to subrogation. Simply because the statute does not reference a direct right to be reimbursed from funds collected by the insured, however, does not mean that such right does not exist. The statute here specifically provides that the Medicaid enrollee must make a subrogation assignment to the department or its designee. It would thus be inequitable to allow the insured to bypass the dictates of the statute simply by securing a settlement or judgment and ultimately recovering a double payment. As such, an insurer who possesses a subrogation right, such as the defendant in this case, has the right to seek reimbursement from the insured if the insured has effected a settlement or judgment with a responsible third party. See also Sargeant v. Local 478 Health Benefits & Ins. Fund, 746 F. Sup. 241, 245-46 (D. Conn. 1990) (“The proposition is well established that an insurer’s right to subrogation . . . includes a claim against any judgment secured by the insured against the party at fault for the amount paid by the insurer in satisfaction of the insured’s damages claim under the policy. . . . This benefactor’s right to recovery against the beneficiary has been recognized in contract, based on the terms of the agreement . . . and in equity, based on theories prohibiting unjust enrichment .... In Connecticut courts, an insurer which has paid a claim for which a third person has been held responsible can seek reimbursement out of the funds received by the insured in satisfaction of his/ her claim against the third person and no cases have qualified such rights.” [Citations omitted; internal quotation marks omitted.]). Accordingly, the court properly granted the defendant’s motion for summary judgment on the ground that the defendant could recover from the plaintiffs under § 17b-265.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court noted in its memorandum of decision and the defendant noted in footnote one of its appellate brief that the defendant does not issue or administer health benefits in Connecticut. Rather, Health Net of Connecticut, Inc., a former subsidiary of the defendant, provided benefits to the plaintiffs as per the terms of their respective health plans. This fact, however, was never properly asserted before the trial court or raised as an issue before this court on appeal. The parties stipulated at trial that the defendant “directly and through its predecessors . . . were parties to a contract regarding the administration of the Medicaid managed care program . . . .’’Asa result, we do not read the defendant’s assertion that Health Net of Connecticut, Inc., provided benefits to the plaintiffs as asserting that the defendant is not the proper party to this action.

       Following the granting of the motion for summary judgment in favor of the defendant on the fourth count of the complaint, the plaintiffs withdrew counts one, two and three of the complaint on September 16, 2010. This appeal followed.

       General Statutes § 17b-265 (b) provides in relevant part: “An applicant or recipient or legally liable relative, by the act of the applicant’s or recipient’s receiving medical assistance, shall be deemed to have made a subrogation assignment and an assignment of claim for benefits to the department. The department shall inform an applicant of such assignments at the time of application. Any entitlements from a contractual agreement with an applicant or recipient, legally liable relative or a state or federal program for such medical services, not to exceed the amount expended by the department, shall be so assigned' Such entitlements shall be directly reimbursable to the department by third party payors. The [department] may assign its right to subrogation or its entitlement to benefits to a designee or a health care provider participating in the Medicaid program and providing services to an applicant or recipient, in order to assist the provider in obtaining payment for such services. In accordance with subsection (b) of section 38a-472, a provider that has received an assignment from the department shall notify the recipient’s health insurer or other legally liable third party including, but not limited to, a self-insured plan, group health plan, as defined in Section 607 (1) of the Employee Retirement Income Security Act of 1974, service benefit plan, managed care organization, health care center, pharmacy benefit manager, dental benefit manager or other party that is, by statute, contract or agreement, legally responsible for payment of a claim for a health care item or service, of the assignment upon rendition of services to the applicant or recipient. Failure to so notify the health insurer or other legally liable third party shall render the provider ineligible for payment from the department. The provider shall notify the department of any request by the applicant or recipient or legally liable relative or representative of such applicant or recipient for billing information. This subsection shall not be construed to affect the right of an applicant or recipient to maintain an independent cause of action against such third party tortfeasor.”

       The plaintiffs contend in their appellate brief that the defendant did not comply with the notice provisions set forth in §17b-265 (b), and therefore the department did not properly assign its right to subrogation to the defendant. The plaintiffs, however, did not assert this argument in their motion for summary judgment, nor did the trial court address this contention in its memorandum of decision. It appears, then, that the plaintiffs are attempting to assert this argument for the first time on appeal. “[BJecause our review is limited to matters in the record, we will not address issues not decided by the trial court. . . . [T]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Citation omitted; internal quotation marks omitted.) West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 27-28, 901 A.2d 649 (2006). Further, because the plaintiffs did not file a transcript from oral argument on the cross motions for summary judgment, we cannot determine if this argument was raised at oral argument. The appellant is responsible for providing an adequate record for our review. In re Elysa D., 116 Conn. App. 254, 266, 974 A.2d 834, cert. denied, 293 Conn. 936, 981 A.2d 1079 (2009). Therefore, we will not address this claim.

       The plaintiffs’ contention on appeal is that there is no statutory authority that provides the defendant with the right to recover the costs of medical care paid to the plaintiff. In addition to its argument that the defendant may not assert its right to subrogation against the plaintiffs, the plaintiffs also maintain that the defendant does not have the right to assert a hen under § 17b-94 because the statute does not provide the state with authority to assign such right. Because we conclude that the court properly granted the defendant’s motion under § 17b-265, we need not address this contention.


author: ALVORD, J.

text:
    PETER J. AVOLETTA ET AL. v. CITY OF TORRINGTON ET AL.
    (AC 32714)
    Alvord, Espinosa and Pellegrino, Js.

      Argued November 9, 2011'
    officially released January 24, 2012

      Deborah G. Stevenson, for the appellants (plaintiffs).

      Alexandria L. Voccio, for the appellees (named defendant et al.).

      S. Peter Sachner, for the appellee (defendant Edward Kavle).
   Opinion

ALVORD, J.

The plaintiff Joanne Avoletta brought this action as parent and next friend of the plaintiffs Peter J. Avoletta and Matthew Avoletta, her minor sons, and on her own behalf, seeking damages and injunctive relief against the municipal defendants, the city of Torrington (city) and the Torrington board of education (board of education), and seven individually named defendants in their individual capacities as well as in their official capacities. The complaint alleged that the defendants failed to implement and enforce federal and state laws that required them to provide the minor plaintiffs with a free and appropriate public education in a safe school environment in properly maintained buildings with adequate indoor air quality. On appeal, the plaintiffs claim that the trial court improperly rendered judgment in favor of the city, the board of education and the individual defendants in their official capacities after striking the two counts of their state complaint on the ground of governmental immunity. We affirm the judgment of the trial court.

The following procedural history and facts, as alleged in the plaintiffs’ complaint, are relevant to our resolution of the issues on appeal. Peter Avoletta attended the Torrington Middle School from August, 1999, to June, 2002. Shortly thereafter, he was diagnosed with irreversible lung disease that had been caused or exacerbated by the existence of bacteria and mold at the school. For the 2003-2004 school year, Peter attended Torrington High School. On the advice of his physician, however, he did not return the following academic year. Although the defendants were willing to provide him with homebound instruction through the use of tutors, the plaintiffs requested that he be provided with a “free appropriate public education” by placing him in a private school located outside of the school district. See Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. When the defendants refused, Joanne Avoletta unilaterally placed Peter at the Chase Collegiate School in Waterbury for his eleventh and twelfth grade education. Her subsequent demand for reimbursement from the defendants for that placement was denied.

In 2003, Matthew Avoletta suffered from chronic allergies and asthma. Although he was not a student at the Torrington Middle School, Matthew attended an event there in May, 2003, and suffered exacerbated symptoms and breathing difficulties. On the advice of his physician, Matthew refused to attend the Torrington Middle School to avoid further personal injury. Joanne Avoletta notified the defendants that she unilaterally had placed Matthew at the Chase Collegiate School, and she sought reimbursement for that placement for all relevant school years. Her request was denied.

On April 30, 2007, the plaintiffs commenced this action ¿gainst the municipal and individual defendants by way of an eight count complaint. The defendants removed the case to the United States District Court for the District of Connecticut because the plaintiffs had alleged several federal causes of action. The defendants then filed a motion to dismiss the entire complaint with the District Court. By order dated March 31, 2008, the District Court dismissed six of the eight counts, but it declined to exercise supplemental jurisdiction over the state law claims in the remaining two counts, six and seven, and remanded the case to the Superior Court.

On August 14, 2009, the municipal defendants and six of the individual defendants in their official capacities filed a motion to strike the remaining two counts of the complaint on the ground of governmental immunity. The plaintiffs filed an objection to that motion. Following a hearing, the court issued its memorandum of decision on December 21, 2009, granting the defendants’ motion to strike both counts. In reaching that determination, the court concluded that the remaining counts, labeled “intentional spoliation of evidence” and “fraudulent concealment,” alleged intentional acts involving wilful misconduct and fraud and that the plaintiffs had failed to set forth a statutory basis for abrogating the defendants’ governmental immunity under General Statutes § 52-557n. The court subsequently rendered judgment in favor of the defendants on the stricken counts, and this appeal followed.

The plaintiffs claim that the court improperly struck the remaining counts of their complaint because “[the court] failed to take the facts in the complaint as admitted, failed to construe the complaint in a manner most favorable to sustaining its legal sufficiency and failed to consider exceptions to the doctrine of governmental immunity.” Specifically, they argue that for purposes of the motion to strike, the defendants must be deemed. to have admitted that they spoliated evidence and concealed information requested by the plaintiffs for the purpose of delaying or defeating the plaintiffs’ claims in impending civil and administrative actions. According to the plaintiffs, that conduct constituted a violation of the defendants’ ministerial duties. In the alternative, the plaintiffs claim that if the defendants’ acts are characterized as discretionary, one or more of the exceptions to discretionary act immunity would apply under the circumstances of this case.

The standard of review in an appeal from the granting of a motion to strike is well established. “Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling . . . is plenary. ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” (Citations omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000). “[W]here it is apparent from the face of the complaint that [a] municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike. ” (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).

We begin with the principles of governmental immunity. “The general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statutes § 52-557n.” (Internal quotation marks omitted.) Martin v. Westport, 108 Conn. App. 710, 729, 950 A.2d 19 (2008). Section 52-557n (a) (2) provides: “Except as otherwise provided by law, apolitical subdivision of the state shall not be hable for damages to person or property caused by (A) [a]cts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct . . . .” Accordingly, a complaint fails to state a legally sufficient cause of action against a municipal defendant when such actions are alleged unless its immunity has been abrogated by statute. See Pane v. Danbury, 267 Conn. 669, 677, 841 A.2d 684 (2004), overruled in part on other grounds by Grady v. Somers, 294 Conn. 324, 349, 984 A.2d 684 (2009); McCoy v. New Haven, 92 Conn. App. 558, 562, 886 A.2d 489 (2005). Further, “[i]t is well settled law that an action against a government official in his or her official capacity is not an action against the official, but, instead, is one against the official’s office and, thus, is treated as an action against the entity itself.” Kelly v. New Haven, 275 Conn. 580, 595, 881 A.2d 978 (2005).

With these principles in mind, we examine counts six and seven of the plaintiffs’ complaint. Count six, labeled “intentional spoliation of evidence,” alleged that the defendants “intentionally spoliated evidence [that was] critical” to the plaintiffs’ civil action in federal court and to their pursuit of various administrative remedies by directing a remediation contractor not to test six samples taken at the Torrington Middle School for the existence of bacteria and mold. They also alleged that the defendants failed to retain a certain report on the conditions of the heating, ventilation and air conditioning (HVAC) system at the school and failed to provide that report when requested by the plaintiffs pursuant to the Freedom of Information Act, General Statutes § 1-200 et seq.

Count seven, labeled “fraudulent concealment,” alleged that the defendants had actual awareness of (1) the conditions at Tomngton Middle School and Torrington High School, (2) documents and a specific report regarding those conditions and (3) the directive to the remediation consultant not to test the samples taken from the Torrington Middle School. The plaintiffs further alleged that the defendants “intentionally concealed these facts” for the purpose of delay and to defeat claims critical to the plaintiffs’ civil action in federal court and to their pursuit of various administrative remedies.

In their appellate brief, the plaintiffs do not contest the fact that they have alleged intentional torts in counts six and seven of their complaint. To the contrary, they argue that “[t]he conduct on the part of the city of Torrington, the Torrington board of education, and its employees, involved malice, wantonness or intent to injure. . . . [T]he defendants repeatedly, maliciously, wantonly and intentionally attempted to injure the plaintiffs to avoid their own liability.” Significantly, however, neither in the complaint nor in their brief do they cite any statutory basis for abrogating governmental immunity for claims of intentional spoliation of evidence or fraudulent concealment of evidence.

Accordingly, we conclude that counts six and seven of the plaintiffs’ complaint alleged intentional torts involving fraud or wilful misconduct and that such claims are barred by governmental immunity. Section 52-557n (a) (2) (A) expressly provides that a political subdivision of the state shall not be liable for acts or omissions of its employees that constitute “criminal conduct, fraud, actual malice or wilful misconduct . . . .” (Emphasis added.) There is no dispute that the city is a political subdivision, and our Supreme Court has held that the term “wilfulness” is synonymous with “intentional.” Pane v. Danbury, supra, 267 Conn. 685. Intentional spoliation of evidence and fraudulent concealment are acts encompassed within § 52-557n (a) (2) (A), and, under our case law, a municipality cannot be held liable for the intentional torts of its employees. See id.; Martin v. Westport, supra, 108 Conn. App. 730; McCoy v. New Haven, supra, 92 Conn. App. 562; O’Connor v. Board of Education, 90 Conn. App. 59, 65, 877 A.2d 860, cert. denied, 275 Conn. 912, 882 A.2d 675 (2005). The court properly struck counts six and seven on that basis.

The plaintiffs argue, however, that the court improperly failed to consider whether the alleged acts were ministerial in nature or, in the alternative, whether one or more of the exceptions to discretionary act immunity applied before striking the two counts. The defendants respond that the plaintiffs’ argument is flawed because neither the distinction between ministerial and discretionary acts nor the exceptions to discretionary act immunity factor into an analysis of governmental immunity when intentional as opposed to negligent causes of action are alleged. We agree.

Section 52-557n (a) (2) (B) provides that a political subdivision of the state shall not be liable for damages to person or property caused by negligent acts or omissions that require the exercise of judgment or discretion. Generally, however, municipal employees are liable for the misperformance of ministerial acts or duties that are to be performed in a prescribed manner without the exercise of judgment or discretion. Violano v. Fernandez, supra, 280 Conn. 318. For that reason, when a complaint against municipal defendants and employees sounds in negligence, a determination has to be made whether the alleged acts or omissions are ministerial or discretionary in nature. If the complaint alleges negligence in the performance of discretionary acts, the claims will be barred on the ground of governmental immunity unless there is a statute that abrogates the immunity or unless one or more of the three well established exceptions to discretionary act immunity applies under the circumstances of the case. See footnote 4 of this opinion. From our review of the applicable statutory provisions and case law, we conclude that the distinctions between ministerial and discretionary acts and the exceptions to discretionary act immunity are considered only in negligence actions against political subdivisions and their employees. All of the cases cited by the plaintiffs in support of their argument that the trial court improperly failed to consider such factors when ruling on the defendants’ motion to strike involved actions alleging negligence.

Here, the plaintiffs have alleged intentional tort causes of action. Subsection (a) (2) (A) of § 52-557n provides that a political subdivision is not liable for acts or omissions of its employees that constitute fraud, malice or wilful misconduct. The provision makes no distinction between ministerial and discretionary acts. When a plaintiff alleges an intentional tort that is governed by the immunity provided in § 52-557n (a) (2) (A), it is immaterial whether the acts were ministerial or discretionary. See O’Connor v. Board of Education, supra, 90 Conn. App. 65 (“[b]ecause the plaintiffs claim was governed by the immunity provided in § 52-557n [a] [2], the defendant was immune from suit for the intentional torts of its employees, regardless of whether the acts were ministerial or discretionary”).

Accordingly, we conclude that the court properly granted the defendants’ motion to strike counts six and seven of the complaint on the ground of governmental immunity. Those counts alleged intentional torts that were barred by § 52-557n (a) (2) (A), and the plaintiffs cited no statute that abrogated that immunity for claims of intentional spoliation of evidence and fraudulent concealment of evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs alleged that the individual defendants were employees or agents of the municipal defendants.

       This appeal has been taken from a final judgment because the judgment disposed of all the remaining causes of action brought by the plaintiffs against the municipal defendants and the individual defendants in their official capacities. See Practice Book § 61-3 (“judgment disposing of only a part of a complaint ... is a final judgment if that judgment disposes of all causes of action in that complaint . . . brought by or against a particular party or parties”).

       On August 24, 2009, the seventh individual defendant, who was represented by separate counsel, moved that the two counts be stricken as to him in his official capacity. The plaintiffs filed an objection to that motion, and the matter was taken on the papers at the short calendar session on December 21, 2009. The court’s December 21, 2009 decision granting the motion to strike the remaining two counts of the complaint encompassed all of the individual defendants in their official capacities.

       “There are three exceptions to discretionary act immunity. . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure. . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws. . . . Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . .” (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 319-20, 907 A.2d 1188 (2006).

       The plaintiffs do not claim that a motion to strike was an improper procedural vehicle for challenging their action on the ground of governmental immunity.

       “[T]he tort of intentional spoliation of evidence consists of the following essential elements: (1) the defendant’s knowledge of a pending or impending civil action involving the plaintiff; (2) the defendant’s destruction of evidence; (3) in bad faith, that is, with intent to deprive the plaintiff of his cause of action-, (4) the plaintiffs inability to establish a prima facie case without the spoliated evidence; and (5) damages.” (Emphasis added.) Rizzuto v. Davidson Ladders, Inc., 280 Corm. 225, 244-45, 905 A.2d 1165 (2006).

       “To prove fraudulent concealment, a plaintiff must demonstrate that the defendant: (1) had actual awareness, rather than imputed knowledge, of the facts necessary to establish the cause of action, (2) intentionally concealed those facts from the plaintiff and (3) concealed those facts for the purpose of obtaining delay on the part of the plaintiff in filing a cause of action against the defendant.” (Emphasis added.) Flannery v. Singer Asset

        Finance Co., LLC, 128 Conn. App. 507, 515-16, 17 A.3d 509, cert. granted on other grounds, 302 Conn. 902, 23 A.3d 1242 (2011).

       During oral argument before this court, the plaintiffs argued that the allegations in counts six and seven should be interpreted to include acts of negligence. This claim is not in the plaintiffs’ appellate brief. Further, after a careful review of the record before the trial court, including the plaintiffs’ brief filed in opposition to the defendants’ motion to strike and the transcript of the hearing on that motion, we note that the plaintiffs did not make that claim before the trial court. “[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).


author: PER CURIAM.

text:
    NORTHLAND TWO PILLARS, LLC, ET AL. v. HARRY GRODSKY AND COMPANY, INC. NORTHLAND TWO PILLARS, LLC, ET AL. v. KONE, INC. NORTHLAND TWO PILLARS, LLC, ET AL. v. TURNER CONSTRUCTION COMPANY
    (AC 31160)
    Robinson, Alvord and Pellegrino, Js.

      Argued October 28, 2011
    officially released January 24, 2012

      Jared Cohane, for the appellants (plaintiffs).

      Benjamin M. Wattenmaker, with whom, on the brief, was John M. Wolf son, for the appellee (defendant Harry Grodsky & Co., Inc.).

      Martin A. Clayman, with whom, on the brief, was Michael Hafkin, for the appellee (defendant Kone, Inc.).

      Edwin L. Doemberger, for the appellee (defendant Turner Construction Company).
   Opinion

PER CURIAM.

The plaintiffs, Northland Two Pillars, LLC, Northland Trumbull Block, LLC, and Northland Tower Block, LLC, appeal from the judgments of the trial court denying their applications, in three cases, to discharge three mechanic’s liens filed by the defendants, Harry Grodsky & Co., Inc., Kone, Inc., and Turner Construction Company. The plaintiffs claim that the court improperly determined that they had abandoned that portion of their applications seeking, as alternative relief, a reduction in the amount of those hens. We agree and reverse in part the judgments of the trial court.

The following facts and procedural history are taken from the record and the decision of the trial court. The defendants, a general contractor and two subcontractors, were involved in thé construction of the residential tower built over the Hartford Civic Center on Trumbull Street in Hartford. A dispute arose as to moneys owed on the project, and each defendant filed a mechanic’s lien against the plaintiff Northland Two Pillars, LLC. On November 10, 2008, Northland Two Pillars, LLC, filed three separate applications in Superior Court seeking to discharge the hens or, in the alternative, to reduce the amount of those hens. Northland Trumbull Block, LLC, and Northland Tower Block, LLC, subsequently were added as plaintiffs at the direction and by order of the court. On January 14 and 15,2009, the court held a consohdated hearing on the three applications.

On the first day of the hearing, before any evidence had been submitted, the plaintiffs’ counsel represented to the court that the parties had reached an agreement to bifurcate the proceedings. He stated that all counsel had agreed that the hearing before the court would be limited to the issue of whether the hens should be discharged. If the court concluded that the liens were valid, then an additional hearing would be scheduled to determine whether the amount of the liens was excessive. At the conclusion of the two day hearing, the court requested posthearing briefs from all parties. On May 28, 2009, the court issued its memorandum of decision, in which it concluded that the mechanic’s hens were valid and rendered judgments denying the plaintiffs’ applications to discharge the mechanic’s hens. In footnote 1 of its decision, the trial court stated: “Plaintiffs apphcation actually was titled, Apphcation for Discharge or, in the alternative, Reduction of Mechanic’s Lien.’ However, only the apphcation for Discharge was heard and briefed by the parties so the apphcation for Reduction is deemed abandoned.” This appeal followed.

The plaintiffs claim that they neither waived nor abandoned their right to seek the alternative rehef requested in their applications, i.e., the court’s reduction of the amounts claimed in the defendants’ mechanic’s hens. “Waiver is the intentional relinquishment or abandonment of a known right or privilege. . . . Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) Wiele v. Board of Assessment Appeals, 119 Conn. App. 544, 549, 988 A.2d 889 (2010). “[B]ecause waiver [is a question] of fact ... we will not disturb the trial court’s [finding] unless [it is] clearly erroneous.” (Internal quotation marks omitted.) Banks Building Co., LLC v. Malanga Family Real Estate Holding, LLC, 102 Conn. App. 231, 239, 926 A.2d 1 (2007).

The record does not contain any evidence that the plaintiffs waived or abandoned their claim for the reduction of the mechanic’s liens. To the contrary, counsel for the plaintiffs made it clear at the beginning of the hearing that the parties, at a prior pretrial conference, agreed to bifurcate the proceedings. The transcript reveals that all parties were operating under the assumption that the court would first determine whether the liens were valid and then, if the court determined that they were valid, the value of those hens would be determined at a subsequent proceeding. Additionally, the posthearing briefs filed by Harry Grodsky & Co., Inc., and Kone, Inc., both contain the following language: “Northland Two Pillars LLC’s Application [to] Discharge and/or Reduce [Mechanic’s Lien] should be denied, subject to further proceedings to establish the debt, the commencement date and the last day of performing services and/or delivering materials.” Furthermore, at oral argument before this court, counsel for the defendants conceded that the parties reached an agreement before Judge James Graham that the matter should be bifurcated. Accordingly, the trial court’s finding that the plaintiffs abandoned their claim for a reduction of the mechanic’s liens was clearly erroneous.

Nevertheless, the defendants argue that the trial court’s judgments should be affirmed because (1) the plaintiffs failed to file a motion for articulation seeking an explanation for the trial court’s determination of abandonment, thereby failing to provide this court with an adequate record to review their claim on appeal and (2) the court’s ruling is harmless because the plaintiffs will have the opportunity to present evidence in support of reducing the value of the mechanic’s liens at the time the defendants proceed with the foreclosure of those liens. We are not persuaded.

A motion for articulation was not necessary under the circumstances of this case. “[A]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Internal quotation marks omitted.) Misthopoulos v. Misthopoulos, 297 Conn. 358, 379, 999 A.2d 721 (2010). Here, the court very clearly stated that it deemed the applications for a reduction of the amount of the liens to have been abandoned because “only the application for [discharge was heard and briefed by the parties . . . .” We have the court’s factual basis for its determination; there is no ambiguity and no clarification is necessary.

Further, the court’s ruling was not harmless. General Statutes § 49-35a provides a procedure for seeking the discharge or the reduction of a mechanic’s lien. General Statutes § 49-35b (b) (3) authorizes a court to reduce the amount of a mechanic’s lien if the amount is found to be excessive by clear and convincing evidence. General Statutes § 49-35c provides that any such order entered pursuant to § 49-35b (b) shall be deemed a final judgment for purposes of appeal. There also is a statutory mechanism for discharging or reducing the amount of the hen by posting a bond. See General Statutes § 49-35b (b) (4). To conclude, as argued by the defendants, that the error of the trial court in this matter was harmless would thwart the purpose of those statutory provisions.

The judgments are reversed in part and the case is remanded for consideration of the plaintiffs’ claims for reduction of the mechanic’s liens. The judgments are affirmed in all other respects.

       Northland Two Pillars, LLC, claimed that the mechanic’s liens should be discharged because it was not the fee owner of the liened premises nor did it have any property rights in the premises. It claimed that it had assigned all of its interests in the premises to Northland Trumbull Block, LLC, and Northland Tower Block, LLC. At the direction of the trial court, Northland Trumbull Block, LLC, and Northland Tower Block, LLC, moved to intervene as plaintiffs in all three actions, and the court granted those motions in February, 2009. The three cases were consolidated for purposes of the hearing on the plaintiffs’ applications.

       The plaintiffs do not challenge the court’s determination that the mechanic’s liens were valid in this appeal.

       On February 8, 2011, Turner Construction Company filed a motion to dismiss the plaintiffs’ appeal with this court, arguing that the appeal was moot because, subsequent to the filing of this appeal, it had signed an agreement with the plaintiffs to arbitrate all claims. The plaintiffs filed an opposition to the motion to dismiss on February 17, 2011. This court denied the motion to dismiss on March 30, 2011.
      In its brief on appeal, Turner Construction Company again raises the issue of mootness and claims that this court lacks jurisdiction to hear the appeal. In previously denying the motion to dismiss, this court already has reviewed the claims in that motion to dismiss, and we will not review the same issues again. See Greci v. Parks, 117 Conn. App. 658, 666, 980 A.2d 948 (2009); Santoro v. Santoro, 33 Conn. App. 839, 841-42, 639 A.2d 1044 (1994). Contrary to the argument of Turner Construction Company, we have subject matter jurisdiction and will review the claim of the plaintiffs.

         On the first day of the hearing, the parties’ counsel made the following representations:
      “[The Plaintiffs’ Counsel]: Based on counsel’s discussions earlier on with Judge Graham, it was decided, and I believe agreed upon, between the various counsel that it made sense to consolidate these three actions, for the purposes of this discharge hearing, because, at least preliminarily, all three actions raise the identical issue.
      “In addition to consolidating the Turner, Grodsky, and Kone matters, I believe there was also an agreement with Judge Graham and counsel that the proceedings would be bifurcated, in the sense that today’s hearing would be limited to whether the liens ought to be discharged.
      “Then and only if the court refused to discharge the liens, would we have a subsequent hearing on the amount of the liens.
      * ** *
      “[Counsel for Harry Grodsky & Co., Inc.]: If I may, Your Honor, the statute again provides that the — normally, in a case, the lienor would go first, to prove his lien.
      “However, in this case, we’ve agreed that the details regarding each party’s lien are going to weighed — are going to be delayed until a later hearing. . . .

        “[Counsel for Turner Construction Company]: We’re not asking [the plaintiffs] to prove today the magnitude of the lien, because that’s been bifurcated and that’s been pushed to another day. But they do need to establish the other statutory prerequisites; specifically, what is specifically in dispute today is whether their lien is valid . . . .”