author: LAVINE, J.

text:
    CLEAVEN A. JOHNSON, JR. v. BOARD OF EDUCATION OF THE CITY OF NEW HAVEN ET AL.
    (AC 31239)
    Gruendel, Lavine and Dupont, Js.

      Argued March 9
    officially released July 19, 2011

      MaxF. Brunswick, with whom was Josephine Smalls Miller, for the appellant (plaintiff).

      Warren L. Holcomb, for the appellees (defendants).
   Opinion

LAVINE, J.

In this action involving a claim of wrongful termination from employment, the plaintiff, Cleaven A. Johnson, Jr., appeals from the judgment of the trial court denying his motion for a new trial in favor of the defendants, the board of education of the city of New Haven (board), Reginald Mayo, superintendent of public schools for the city of New Haven (city), and Deborah Speese-Linehan, the plaintiffs supervisor. The plaintiff claims that the court abused its discretion in denying his motion because it committed reversible error when it (1) excluded testimony offered by the plaintiff as to statements made by him and several coworkers concerning matters related to the workplace, (2) excluded from evidence article 20, section 9, of the collective bargaining agreement (agreement) between the city and the New Haven Management & Professional Management Union, Local 3144, Council 4, AFSCME, AFL-CIO (union), (3) refused to instruct the jury that the law does not permit any presumptions that individuals will not discriminate or retaliate against another person because they are of the same race and (4) denied his motion for recusal because the judge who conducted the pretrial conference also presided over the jury trial. We disagree with the plaintiff and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The board hired the plaintiff in 2000 under a federal grant as an in-school drug education prevention worker at Jackie Robinson Middle School. The plaintiffs responsibilities in this position included monitoring a karate class that took place before the start of the school day. Speese-Linehan visited the karate class on three occasions, and on two of the three occasions the plaintiff was not present for the class and on the other occasion he arrived late. The plaintiff was issued a written warning and placed on a plan of improvement due to his inadequate supervision of the karate class. Before completing the plan, however, the plaintiff took a leave of absence for the entire 2001-2002 school year.

In 2002, the plaintiff returned to work for the board under the supervision of Speese-Linehan. The plaintiff first assisted with a police officer-student mentoring program and then Speese-Linehan assigned the plaintiff to develop ideas for a faith based initiative program for New Haven, both grant funded positions. Although the plaintiffs primary duty in this second position was development of a faith based initiative program, he was given the job title of drug education prevention worker.

In January, 2003, the plaintiff attended a meeting of the Association of Black Clergy of Greater New Haven (association) to talk about faith based initiatives. The Reverend Boise Kimber, the president of the association, allowed the plaintiff to address the attendees because the plaintiff represented that Mayo had sent him to speak to the group and because the plaintiff had business cards which indicated that he was the coordinator of faith based initiatives for the New Haven public school system. After the meeting, Kimber called Mayo to ask him why he had not given the association prior notice that he had sent the plaintiff to the meeting to talk about faith based initiatives. Mayo responded that he had not sent the plaintiff to the meeting. Mayo also never appointed the plaintiff as the faith based initiative coordinator.

On January 23, 2003, the plaintiff met with Mayo and Speese-Linehan to discuss his misrepresentations to the association. At this meeting, Mayo became upset over the misrepresentations made by the plaintiff and told the plaintiff that he could not use the business cards indicating that he was the faith based initiative coordinator for the city. Despite Mayo’s displeasure with the plaintiffs conduct, no formal discipline was imposed at this time.

Mayo also spoke to the plaintiff about complaints the plaintiff previously made to a coworker concerning the promotion of Scott X. Esdaile, a board employee. Prior to the January 23, 2003 meeting, several coworkers expressed their anger to the plaintiff about another employee named Carolyn Ross-Lee who recently received an increase in salary. In response, the plaintiff met with Ross-Lee and told her that he could get mad at the “system” too because Esdaile had just received a raise in salary but did not have a bachelor’s degree. Mayo became aware of the plaintiffs statements about Esdaile and told the plaintiff that if he had an issue with Esdaile’s raise in salary, he should have come to him directly rather than talking to other employees about it.

In July, 2003, pursuant to Speese-Linehan’s recommendation, the plaintiff was laid off from employment because the grant under which he was working had expired. Another board employee, whose position was funded from the same grant, was also laid off on this date.

The plaintiff initiated this action against the defendants, alleging a violation of his first amendment rights pursuant to the United States and Connecticut constitutions, a violation of his free speech rights under state law and breach of an oral contract. The matter was tried before a jury and the jury returned a verdict in favor of the defendants. According to the jury interrogatories, the jury concluded that while the plaintiff had engaged in protected speech, his comments about Esdaile’s raise in salary were not a substantial or motivating factor in the decision to end his employment. The jury also concluded that the plaintiff had failed to prove that the parties had an employment agreement that was definite and certain as to its essential terms and requirements.

On April 16, 2009, the plaintiff filed motions to set aside the verdict and for a new trial. In his motion for a new trial, the plaintiff claimed that the court (1) improperly excluded testimony regarding the content and context of the plaintiffs protected speech, (2) improperly excluded evidence regarding the agreement, (3) failed to charge the jury regarding presumptions about race and (4) failed to disqualify itself from presiding over the jury trial. Addressing each claim in turn, the court denied the plaintiffs motions on June 11, 2009. This appeal followed. Additional facts will be set forth as necessary.

The plaintiff now claims on appeal that the court improperly denied his motion for a new trial. “Our standard of review of such a claim is the abuse of discretion standard. ... A petition for a new trial is addressed to the discretion of the trial court and will never be granted except upon substantial grounds. As the discretion which the court is called upon to exercise is not an absolute but a legal one, we will upon appeal set aside its action when it appears that there was a misconception on its part as to the limits of its power, that there was error in the proceedings preliminary to the exercise of its discretion, or that there was a clear abuse in its exercise of its discretion.” (Citation omitted; internal quotation marks omitted.) LaCroix v. Glens Falls Ins. Co., 107 Conn. App. 332, 334-35, 945 A.2d 489 (2008).

I

In his first two claims, the plaintiff challenges two evidentiary rulings made by the court. Specifically, the plaintiff claims that the court committed reversible error in excluding a portion of his testimony on the grounds that it was irrelevant and inadmissible hearsay and in excluding article 20, section 9, of the agreement between the city and the union from evidence on the ground that it was irrelevant. We disagree and conclude that the court properly excluded the plaintiffs testimony and article 20, section 9, of the agreement from evidence.

“[T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) Lombardi v. East Haven, 126 Conn. App. 563, 567, 12 A.3d 1032 (2011). “To the extent [that] a trial court’s admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review.” (Internal quotation marks omitted.) State v. Grant, 127 Conn. App. 654, 658, 14 A.3d 1070 (2011).

“Evidence is relevant when it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. . . . As it is used in our code, relevance encompasses two distinct concepts, namely, probative value and materiality. . . . [Materiality turns upon what is at issue in the case, which generally will be determined by the pleadings and the applicable substantive law.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Smart v. Corbitt, 126 Conn. App. 788, 810-11, 14 A.3d 368 (2011). “What is in issue is determined by the pleadings and these must be in writing. . . . Once the pleadings have been filed, the evidence proffered must be relevant to the issues raised therein.” (Internal quotation marks omitted.) Foncello v. Amorossi, 284 Conn. 225, 233, 931 A.2d 924 (2007).

“[T]he law regarding out-of-court statements admitted for the truth therein is well settled. An out-of-court statement offered to establish the truth of the matter asserted is hearsay. ... As a general rule, such hearsay statements are inadmissible unless they fall within a recognized exception to the hearsay rule.” (Internal quotation marks omitted.) State v. Canady, 297 Conn. 322, 340-41, 998 A.2d 1135 (2010).

A

The plaintiff first claims that the court committed reversible error in excluding testimony offered by him as to statements he made during a conversation with Ross-Lee and as to statements made by his coworkers about Ross-Lee. The plaintiff argues that because the court excluded this portion of his testimony, it limited the jury’s ability to determine what role his comments concerning Esdaile’s raise in salary played in the defendants’ decision to lay off the plaintiff from employment. We are not persuaded.

The following additional facts are relevant to this claim. During trial, the plaintiff testified that other employees in his department had spoken to him about Ross-Lee’s new job position and salary increase. Before the plaintiff could testify as to what his coworkers told him about Ross-Lee and what he told Ross-Lee during a private conversation, the defendants objected on the grounds that these statements were irrelevant and impermissible hearsay. Outside the presence of the jury, the plaintiff stated that he intended to testify that several coworkers indicated to him that they were upset over the decision to give Ross-Lee a raise in salary. The same coworkers were also upset that Ross-Lee had been going around the office saying, “[o]h, I just love politics. I just love politics.” The plaintiff further stated that in response to his coworkers’ complaints, he told Ross-Lee that she needed to stop making the comments about how she loved politics. It was during this conversation with Ross-Lee that the plaintiff also commented about Esdaile’s raise in salary, comments which Mayo referenced in his January 23, 2003 meeting with the plaintiff.

The plaintiffs counsel argued that the plaintiffs statements to Ross-Lee and the statements made by his coworkers were necessary for the jury to determine if the comments made by the plaintiff concerning Esdaile’s promotion were protected speech. Specifically, counsel argued that these statements provided the necessary context for the jury to determine whether the plaintiffs comments about Esdaile’s raise in salary had a broader public concern. See DiMartino v. Richens, 263 Conn. 639, 667, 822 A.2d 205 (2003) (“[w]hether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of [the speech], as revealed by the whole record” [internal quotation marks omitted]). Counsel also argued that the statements constituted circumstantial evidence that tended to show what exactly was reported to Mayo concerning the plaintiffs conversation with Ross-Lee.

The court sustained the defendants’ objection and concluded that the statements made to Ross-Lee were irrelevant because the complaint did not contain any allegations concerning Ross-Lee and that the statements made by the plaintiffs coworkers were inadmissible hearsay. In denying the plaintiffs motion for a new trial, the court maintained that the excluded testimony regarding the plaintiffs statements to Ross-Lee was irrelevant and the testimony regarding the statements made by the plaintiffs coworkers was hearsay. The court further noted that the plaintiffs argument failed because the jury found in favor of the plaintiff on the issue of whether his comments about Esdaile’s raise in salary were protected speech. We conclude that the court properly excluded the testimony.

In the operative complaint, the plaintiff alleges that “[t]he real reason for [his] termination was Dr. Mayo’s voiced displeasure with the plaintiff over several unrelated matters, including . . . [t]he plaintiff voiced dissatisfaction when he was not given the promised raise that Scott X. Esdaile, who is the president of the NAACP and is not even a college graduate was being paid a salary of $55,000 per year by the board. ” Concerning this allegation, the jury had two tasks to complete before returning a verdict. First, the jury had to determine whether the plaintiffs statements about Esdaile’s raise in salary constituted speech on a matter of public concern and, second, whether the plaintiffs speech was a substantial or motivating factor in the defendants’ decision that the plaintiff be laid off from employment. See D’Angelo v. McGoldrick, 239 Conn. 356, 362, 685 A.2d 319 (1996).

As for the jury’s first task, we need not reach the issue of whether the plaintiffs statements to Ross-Lee about her new position and raise in salary were relevant or if the statements made by the plaintiffs coworkers about Ross-Lee were inadmissible hearsay. Even if the court abused its discretion in excluding the plaintiffs testimony, any error was harmless. “The harmless [impropriety] standard in a civil case is whether the improper ruling would likely affect the result. . . . When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the basis of the printed record before it. ... In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless. . . . Moreover, an evidentiary impropriety in a civil case is harmless only if we have a fair assurance that it did not affect the jury’s verdict.” (Internal quotation marks omitted.) Dow-Westbrook, Inc. v. Candlewood Equine Practice, LLC, 119 Conn. App. 703, 722, 989 A.2d 1075 (2010).

The jury noted in its interrogatories that in making the statements about Esdaile’s raise in salary to Ross-Lee, the plaintiff was speaking out as a citizen on a matter of public concern. The jury, therefore, reached the conclusion that the plaintiff had engaged in constitutionally protected speech despite not having heard the excluded testimony.

As to the jury’s second task, we agree with the court that the excluded testimony is not relevant. The plaintiff does not allege in his complaint that he was laid off from employment because he told Ross-Lee that she should stop going around the office saying that she loved politics. See Edelman v. Page, 123 Conn. App. 233, 243, 1 A.3d 1188 (“parties are bound by their pleadings”), cert. denied, 299 Conn. 908, 10 A.3d 525 (2010). The excluded testimony does not include any references to Esdaile and, as such, it does not make it more probable or less probable that the plaintiff was laid off from employment because of statements about Esdaile. We conclude, therefore, that the court properly denied the plaintiffs motion for a new trial on the basis of his claim that the court improperly excluded a portion of his testimony from evidence.

B

The plaintiff next claims that the court improperly excluded from evidence article 20, section 9, of the agreement between the city and the union. The plaintiff argues that for the jury to determine accurately if he was laid off from employment because of his comments about Esdaile’s raise in salary, rather than because of a lack of funding, it needed to have access to the agreement. Again, we disagree and conclude that the court properly excluded from evidence article 20, section 9, of the agreement.

The following additional facts are relevant to this claim. In early November, 2003, a drug education prevention worker who was working for the board died. The plaintiff was on the list of former employees to be recalled for an interview to fill a vacancy within the board, but Speese-Linehan decided not to fill the position. Speese-Linehan did not request to fill the vacancy with the plaintiff for two reasons. First, the grant was in its final year and the federal government prefers not to approve personnel on grants during the final year. Second, Speese-Linehan felt that the plaintiff was not qualified for the position given his past performance.

During trial, the plaintiff attempted to introduce evidence concerning provisions in the agreement. Specifically, the plaintiff sought to introduce article 20, section 9, of the agreement to show that the refusal to recall him to fill the vacant drug education prevention worker position in accordance with the agreement was evidence that he was laid off from employment because of his comments about Esdaile’s raise in salary, rather than the stated reason given by the defendants.

The defendants objected to the introduction of this evidence, claiming that it was irrelevant to the plaintiffs first amendment claim. In response, the plaintiff argued that the agreement was relevant in establishing that he was laid off from employment because of his comments about Esdaile’s raise in salary. The court excluded the agreement from evidence, and in its memorandum of decision denying the plaintiffs motion for a new trial, the court concluded that the agreement was irrelevant because “what did or did not occur after the layoff had no logical bearing on the reasons for the layoff.”

The plaintiff maintains on appeal that article 20, section 9, of the agreement is relevant because “it established the most critical fact at issue, namely, whether the reason proffered for the layoff . . . was a pretext for the defendants’ desire to get rid of the plaintiff because of his exercise of free speech rights.” He also claims that the refusal to recall him was highly relevant to the issue of the real reason for his layoff from employment.

We agree with the court that article 20, section 9, is irrelevant to the determination of whether the plaintiff was laid off from employment due to his comments about Esdaile’s raise in salary. Additionally, we note that the defendant’s argument is unavailing because recall of former employees for position vacancies is not mandated under the agreement.

According to article 20, section 9, former board employees are not guaranteed the right to be recalled every time a position becomes available. See Alstom Power, Inc. v. Balcke-Durr, Inc., 269 Conn. 599, 610, 849 A.2d 804 (2004) (“ [w]here the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms” [internal quotation marks omitted]). The defendants did not violate the agreement by not recalling the plaintiff to fill the vacant drug education prevention worker position. Their decision, therefore, does not support the plaintiffs allegation that the proffered reason for the layoff was pretextual. Accordingly, we conclude that article 20, section 9, is irrelevant to the plaintiffs first amendment claim because it does not tend to make it more or less likely that the plaintiff was laid off from employment because of his comments about Esdaile’s raise in salary.

The plaintiff argues that this court’s decision in Chouinard v. Marjani, 21 Conn. App. 572, 575 A.2d 238 (1990), is dispositive of his claim. We disagree. Although Chouinard supports the plaintiffs argument that when a trial court erroneously excludes relevant evidence this court can reverse the judgment of the court, it does not tend to support his argument that article 20, section 9, was relevant to his first amendment issue.

II

The plaintiffs third claim is that the court committed reversible error when it refused to instruct the jury that the law does not permit any presumptions to be made that individuals will not discriminate or retaliate against another person because they are of the same race. We agree with the court that the issue of race is irrelevant to this case and conclude that the court properly declined to give the plaintiffs requested instruction.

The following additional facts are necessary for the resolution of this claim. The plaintiff requested that the court instruct the jury that “the law does not permit any presumptions to be made that individuals will not discriminate or retaliate against someone simply because they are of the same race,” and that they “may not make any presumptions regarding the role that may have been played by race in assessing the facts regarding the conduct of the defendants.” The defendants objected to the request, claiming that race was irrelevant to the issues raised in the complaint. The court agreed with the defendants and concluded that it would not give the requested instruction to the jury because “this [is] a case regarding the freedom of expression and not a race discrimination case . . . .” The court did instruct the jury, however, that “sympathy, prejudice and bias were to play no role in their deliberations.” In its memorandum of decision denying the plaintiffs motion for a new trial, the court relied on its previous reasoning for refusing to give the requested instruction and added that “[a]ny concern that the jury would engage in discriminatoiy or biased conduct was alleviated by the court’s instruction . . . that improper factors cannot play a part in deliberations.”

“The test to determine if a jury charge is proper is 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. . . . [W]e must determine whether the jury instructions gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues. . . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. ... 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.) Umsteadt v. G. R. Realty, 123 Conn. App. 73, 79, 1 A.3d 243 (2010).

In the second amended complaint, the plaintiff did not allege that race played a factor in the defendants’ decision to lay him off from employment. See Edelman v. Page, supra, 123 Conn. App. 243. The plaintiffs requested instruction would have caused confusion for the jury and created a side issue, which was not raised in the pleadings. Furthermore, we note that any concerns the plaintiff had concerning juror bias were addressed when the court instructed the jury that sympathy, prejudice and bias were not to play a role in their deliberations. We conclude, therefore, that the court properly declined to give the plaintiffs requested instruction.

Ill

In his final claim, the plaintiff argues that the presiding judge at trial should have recused herself because “no reasonable person who was aware of the trial judge’s opinion of this case after the pretrial conference . . . could ever believe that the judge could be fair and impartial.” We disagree.

On February 26, 2009, this case was assigned to the court, Keegan, J., for pretrial negotiations. These negotiations were unsuccessful and the case was assigned for a jury trial before Judge Keegan on March 18, 2009. On that day, the plaintiff made an oral motion for Judge Keegan to recuse herself from the case, claiming that because she had been involved in pretrial negotiations, she could not hear the matter. The court denied the motion, citing Krattenstein v. G. Fox & Co., 155 Conn. 609, 236 A.2d 466 (1967). The plaintiff submitted a written motion for recusal on March 20, 2009, which the court denied for failure to comply with Practice Book § 1-23. The plaintiff filed a second written motion for recusal, which was referred to the court, Cosgrove, J., on March 25, 2009. Judge Cosgrove denied the motion.

In denying the plaintiffs motion for a new trial, Judge Keegan concluded that “[t]his case was tried to a jury; the trial judge was not called upon to decide the issue of Lability and damages as would be the case in a court trial. Any fear that the court would rely on in chambers discussion to the detriment of the plaintiff is belied by the fact that the court denied the defendants’ motion for directed verdict. And, the plaintiff raised the same recusal issue before another judge, who also denied the motion.”

“The inquiry into whether a motion for disqualification properly was ruled upon is governed by the abuse of discretion standard of review. ... In applying that standard, we ask whether an objective observer reasonably would doubt the judge’s impartiahty given the circumstances. ... If an objective observer, in view of all of the facts would reasonably doubt the court’s impartiality, the court’s discretion would be abused if a motion to recuse were not granted. 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. . . .

“[Speculation is insufficient to establish an appearance of impropriety. As this court has explained, [a] factual basis is necessary to determine whether a reasonable person, knowing all of the circumstances, might reasonably question the trial judge’s impartiality. . . . Vague and unverified assertions of opinion, speculation and conjecture cannot support a motion to recuse . . . .” (Citations omitted; internal quotation marks omitted.) McKenna v. Delente, 123 Conn. App. 137, 143-44, 1 A.3d 260 (2010).

The plaintiff claims that no reasonable person could ever believe that Judge Keegan could be fair and impartial because during pretrial negotiations she stated that the plaintiff would have a difficult time proving his case. The plaintiff further alleges that although this was a jury trial and the court was not the trier of fact, Judge Keegan was still responsible for determining whether there were factual foundations for the introduction of evidence and erroneously refused to admit article 20, section 9, of the agreement.

The mere fact that Judge Keegan stated that the plaintiff would have a difficult time proving his case does not convince us that an objective observer reasonably would doubt her impartiality. The purpose of the pretrial conference was to effectuate a settlement before trial and Judge Keegan simply offered her advice as to the plaintiff’s prospects of receiving a favorable verdict after trial. Furthermore, we note, as the trial court did, the allegation that Judge Keegan predetermined the outcome of the case prior to trial is undermined by the fact that she denied the defendants’ motion for a directed verdict. Finally, we do not draw an inference of bias from the court’s exclusion of article 20, section 9, of the agreement from evidence. The plaintiff baldly asserts that this evidentiary ruling is evidence of bias without any factual support and we already have concluded that the exclusion of the agreement from evidence was not improper. We, therefore, conclude that the court properly denied the plaintiffs motion for a new trial concerning the plaintiffs claim that Judge Keegan should have recused herself from presiding over the jury trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the initial complaint and pleadings refer to Speese-Linehan as Dee Spence Linehan, and other variations of that name, we refer to her in this opinion as Deborah Speese-Linehan.

       Board employees are laid off when a grant expires or they decide to depart from their employment with the board and look for work elsewhere.

       It was possible that the plaintiff could have maintained employment with the board under a new grant funded position by writing a letter of intent expressing his desire to be considered for employment; however, the plaintiff never wrote such a letter and was not considered for a new position with the board.

       In his motion to set aside the verdict, the plaintiff claimed that the verdict was against the weight of the evidence and, therefore, the jury’s verdict disregarded the law or the verdict was the result of some mistake or prejudice. In denying this motion, the court concluded that the jury reasonably could have reached its verdict based on the totality of the evidence and the reasonable inferences drawn therefrom. Although the plaintiff also appeals from the denial of his motion to set aside the verdict, he makes no claims that the evidence weighed against the jury’s verdict. We, therefore, address only the claims raised concerning the denial of his motion for a new trial.

       Furthermore, we note that the court allowed the plaintiff to provide other evidence to establish the context for his statements about Esdaile’s raise in salary. The court permitted the plaintiff to testify that Ross-Lee got a new position with the board with a $7000 raise in salary, that other employees approached him about Ross-Lee’s new position and that he decided to speak with Ross-Lee because his coworkers were very angry and upset over her raise in salary. Any argument by the plaintiff that this evidence was not sufficient to establish the context of his conversation with Ross-Lee is belied by the fact that the jury concluded that the plaintiffs comments concerning Esdaile’s promotion were protected speech.

       Article 20, section 9, of the agreement provides: “hr the event of a loss of a grant or reduction in [f]unds whereby the [c]ity has to reduce personnel funded by [s]pecial grants, [gjrants, or ETA [a]dministrative money, those employees holding positions that were cut from the [g]rant shall be laid off unless they are qualified to fill another position in the project or other projects in the reasonable judgment of the [department [h]ead or [s]pecial [f]und [coordinator, or ETA [a]dministrator. Such employees shall have recall rights for a period of two (2) years in a similar position provided they are qualified to fill another opening in the reasonable judgment of the [d]epartment [h]eador [s]pecial [f\und [c]oordinator or ETA [administrator.” (Emphasis added.)

       The plaintiff argues that the issue of whether recall is automatic under the agreement is a question of fact for the jury. We conclude that this claim is without merit. “If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review.” (Emphasis added; internal quotation marks omitted.) O’Connor v. Waterbury, 286 Conn. 732, 744, 945 A.2d 936 (2008). We also note that even if the intent of the union and the city were a question of fact for the jury, in order to determine that recall was automatic, the jury would be forced to resort to speculation given that the plain language of the contract did not mandate recall of former employees. This would have been improper. See Riccio v. Harbour Village Condominium, Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007) (“ [although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation” [internal quotation marks omitted]).

       In Chouinard, the defendant, an oncology surgeon, performed surgical procedures on the plaintiff to excise masses in both her breasts. Chouinard v. Marjani, supra, 21 Conn. App. 573-74. The plaintiff denied that she gave her consent for surgery on her right breast, however, the defendant claimed that the plaintiff was informed of, and gave oral consent to, the bilateral surgery. Id., 574. The defendant filed a motion in limine seeking to prevent the plaintiff or her lawyer from making any reference to an alleged falsification of her signature on a consent form for the bilateral surgery without any claims or proof that the defendant forged her name. Id., 575. The court granted the motion, concluding that because the defendant was relying on oral consent for the surgery, the document was irrelevant and prejudicial to the defendant. Id.
      This court concluded that the trial court erred in excluding the consent form from evidence because the allegedly forged form was relevant to the jury’s assessment of the inconsistencies in the defendant’s claims concerning what form of consent he received from the plaintiff to perform surgery on both her breasts. Id., 576. This court also concluded that it was error for the trial court to fail to find sufficient evidence linking the defendant to the consent form as a foundation for admitting the document in its entirety. Id., 577.

       In Chouinard, “[t]he only issue at trial was whether the plaintiff gave her consent to bilateral surgery, an issue tightly bound to the credibility of the parties, particularly as the defendant asserted that the plaintiff orally consented.” Chouinard v. Marjani, supra, 21 Conn. App. 575. Whether the plaintiff signed a consent form and whether the defendant forged the plaintiffs name on a consent form was, therefore, relevant to the issue before the jury. In the present case, as the plaintiff admits, the issue before the jury was whether the plaintiff was laid off from employment because of a lack of funding or for retaliation because of his comments about Esdaile’s promotion. Because the agreement did not mandate that the defendants recall former employees to till job vacancies, article 20, section 9, is irrelevant.

       The plaintiff cites several federal cases from the United States Supreme Court and the United States Court of Appeals for the Second Circuit in support of his claim that the court erred in not giving his requested instruction. Specifically, the plaintiff cites Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998), Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977), Feingold v. New York, 366 F.3d 138 (2d Cir. 2004), and Danzer v. Norden Systems, Inc., 151 F.3d 50 (2d Cir. 1998). None of these cases stands for the proposition that, in a case where racial discrimination is not alleged in the pleadings, the court must instruct the jury that they are not to presume that individuals will not discriminate or retaliate against another person because they are of the same race.

       In Krattenstein, the plaintiffs initiated an action against the defendant to recover damages for injuries allegedly sustained by one of the plaintiffs when a waitress, employed by the defendant, spilled hot coffee on her arm and leg. Krattenstein v. G. Fox & Co., 155 Conn. 610. The case was tried to the court, which rendered judgment for the defendant. Id. On appeal, the plaintiffs claimed that it was error for the judge who held a pretrial conference in his chambers to also preside over the trial. Id., 612. Our Supreme Court concluded that there was no error because the plaintiffs had failed to seek recusal during trial. Id., 615-16. The court did conclude, however, that “[w]hen a jury [is] ultimately to determine the issues of liability and damages, a question is not likely to arise as to the disqualification of the judge who conducted the pretrial hearing and who thereafter presides over the trial of the case. When, however, a judge engages in a chambers conference looking to the settlement of a case which he is about to try as a court and in which he will be called upon to decide the issues of liability and damages, quite a different situation prevails. It is then impossible to avoid questions as to whether the judge can disregard, on the trial, matters disclosed in the conference but unmentioned during the trial and whether a preliminary judgment, formed at the conference and predicated on unsubstantiated claims of proof, may have some subtle influence on a final judgment after a full hearing.” Id., 614-15.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    PARAGON CONSTRUCTION COMPANY v. DEPARTMENT OF PUBLIC WORKS ET AL.
    (AC 32073)
    Robinson, Bear and Flynn, Js.

      Argued April 11
    officially released July 19, 2011

      Lawrence Russ, assistant attorney general, with whom were Drew S. Graham, assistant attorney general, and, on the brief, Richard Blumenthal, former attorney general, for the appellants (defendants).

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

ROBINSON, J.

The defendants, the department of public works and the department of correction, appeal from the judgment of the trial court denying their motion to dismiss part of the action of the plaintiff, Paragon Construction Company, which was based on the doctrine of sovereign immunity. On appeal, the defendants claim that the court improperly denied their motion to dismiss. We affirm in part and reverse in part the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The department of correction is the administrator of the Cheshire Correctional Center, and both the department of public works and the department of correction let out for bid and administered a project for renovation of the Cheshire Correctional Center. In July, 1999, the plaintiff entered into a public works contract with the department of public works pursuant to which the plaintiff was to act as the general contractor on the construction project at the Cheshire Correctional Center. Pursuant to the contract, the plaintiff agreed to provide services and materials for the construction project in return for the defendants’ payment of the contract amount. Subsequently, the plaintiff entered into a subcontract with MacKenzie Painting Company (MacKenzie) pursuant to which MacKenzie agreed to “de-lead” and paint certain security bars on windows at the Cheshire Correctional Center. After substantial completion of the construction project, a dispute arose between the plaintiff and the defendants over payment for additional required work and delays.

On December 2, 2005, the plaintiff filed a two count complaint against the defendants seeking to collect sums allegedly due for additional required work and delays. The first count alleged a claim of breach of contract, while the second count alleged a claim of unjust enrichment. Specifically, as to the first count, the plaintiff alleged breach of contract on two different grounds, the first being based on the allegation that the plaintiff was owed $178,312 for the “de-leading” of security bars on windows, as set forth in paragraph seven of count one of the complaint, and the second being based on the allegation that the defendants caused construction delays and required additional work that damaged the plaintiff to the extent of $293,023.60, as set forth in paragraph eight of count one of the complaint. The defendants did not seek to dismiss the portion of the breach of contract claim that alleged breach by construction delays and additional required work. In the second count, the plaintiff alleged that the defendants were unjustly enriched as a result of their failure to pay the plaintiff for the “de-leading” of the security bars and for the delays and other additional work they had required, which caused the defendants to realize an unjust economic benefit of $471,335.60.

On January 17, 2006, pursuant to Practice Book § 10-31 (a) (1), the defendants filed a motion to dismiss on the ground that the court lacked subject matter jurisdiction on the basis of the doctrine of sovereign immunity. Specifically, the defendants claimed that the doctrine of sovereign immunity barred the breach of contract claim because the plaintiff failed to allege a “ ‘disputed claim’ ” under a contract with the state, as required by the statutory waiver of immunity provided in General Statutes § 4-61 (a). The defendants also claimed that the unjust enrichment claim, as set forth in count two, was barred because it failed to meet the requirements in § 4-61 (a) because “the services and merchandise that the [defendants] allegedly failed to compensate the [p]laintiff for were ‘not contemplated by the contract’ . . . .” The court, Hon. Jerry Wagner, judge trial referee, having construed the allegations in a manner most favorable to the plaintiff, concluded that the allegations set forth in paragraph eight of the first count, which also was incorporated in the second count, sufficiently brought each count of the complaint within the requirements of § 4-61 (a) and, accordingly, denied the motion.

Subsequently, through the discovery process, the defendants deposed both Albert Ridinger, the plaintiffs president, and Malcolm MacKenzie, MacKenzie’s president. On December 21, 2009, the defendants filed a second motion to dismiss, this time purportedly supplemented by “undisputed facts” established by the deposition testimony. In their motion, the defendants asserted that the plaintiffs lack of compliance with the requirements of § 4-61 (a) deprived the court of subject matter jurisdiction over that portion of count one that alleged that the Cheshire Correctional Center had failed to pay the plaintiff for the “de-leading” of the security bars and the entirety of count two.

As to the portion of the breach of contract claim that alleges that the Cheshire Correctional Center had failed to pay the plaintiff for the “de-leading” of the security bars, the defendants argued, based on our Supreme Court’s decision in Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 680 A.2d 1321 (1996), that the allegations set forth in paragraph seven of count one were insufficient to meet the requirements of § 4-61 (a), because the plaintiff was required to allege either that it had paid MacKenzie $178,312 or to admit that it unconditionally was hable to MacKenzie for that amount and, therefore, was due payment from the defendants. In addition, the defendants argued that the deposition testimony of both Ridinger and Malcolm MacKenzie established that the plaintiff had not yet paid MacKenzie $178,312 or admitted that it unconditionally was hable to MacKenzie for that amount. As to the unjust enrichment claim, the defendants argued that, because the claim did not fall directly under the terms of the contract, it did not meet the requirements of § 4-61 (a).

On March 8, 2010, the court, Peck, J., denied the second motion to dismiss for two reasons. First, the court concluded that the question of whether the claim asserting that the Cheshire Correctional Center had failed to pay the plaintiff for the “de-leading” of the security bars, as set forth in paragraph seven of the breach of contract claim, met the requirements of § 4-61 (a) was inherently fact bound and, consequently, was an issue to be resolved by a fact finder. Second, the court concluded that because paragraph eight of count one and as incorporated into count two contained a viable claim for delay damages against the defendants, it could not dismiss the action. Subsequently, the defendants appealed.

As a preliminary matter, we set forth the standard of review. “[W]e have long recognized the validity of the common-law principle that the state cannot be sued without its consent .... Nevertheless, a plaintiff may surmount this bar against suit if, inter alia, he can demonstrate that the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity .... Even when there is an express statutory waiver of immunity, however, the plaintiffs complaint must allege a claim falling within the scope of that waiver. . . .

“Lack of a statutory waiver of immunity is a jurisdictional defect properly raised by a motion to dismiss. ... A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. ... In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged. . . .

“Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to [Practice Book] § 10-31 (a) (1) may encounter different situations, depending on the status of the record in the case. As summarized by a federal court discussing motions brought pursuant to the analogous federal rule, [l]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts. . . . Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . .

“In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss; Practice Book § 10-31 (a); other types of undisputed evidence; see, e.g., Kozlowski v. Commissioner of Transportation, [274 Conn. 497, 504 n.7, 876 A.2d 1148 (2005)] (photographs and deposition testimony); Ferreira v. Pringle, 255 Conn. 330, 336, 766 A.2d 400 (2001) (lease agreement); Shay v. Rossi, [253 Conn. 134, 139 n.7, 749 A.2d 1147 (2000)] (official records of department of children and families), [overruled in part on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003)]; and/ or public records of which judicial notice may be taken; Cox v. Aiken, [278 Conn. 204, 217, 897 A.2d 71 (2006)] (state employees’ collective bargaining agreement); the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint. . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts]. ... If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits; see Practice Book § 10-31 (b); or other evidence, the trial court may dismiss the action without further proceedings. ... If, however, the defendant submits either no proof to rebut the plaintiffs jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein. . . .

“Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts. . . . Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits. ... An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.” (Citations omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 649-54, 974 A.2d 669 (2009).

On appeal, the defendants claim that the court improperly denied their motion to dismiss because both the breach of contract claim alleging that the Cheshire Correctional Facility had failed to pay the plaintiff for the “de-leading” of the security bars, as asserted in paragraph seven of the first count, and the unjust enrichment claim asserted in the second count do not meet the statutory waiver of immunity requirements of § 4-61 (a). We address each claim in turn.

I

The defendants first claim that the breach of contract claim alleging that the Cheshire Correctional Facility had failed to pay the plaintiff for the “de-leading” of the security bars should be dismissed for lack of subject matter jurisdiction because it does not meet the waiver of immunity requirements set forth in § 4-61 (a). Specifically, the defendants argue that the allegations set forth in paragraph seven of count one merely assert the claim of MacKenzie, a subcontractor, and fail to allege that the plaintiff itself has a “ ‘disputed claim’ ” under its contract with the state as is required by § 4-61 (a). We disagree.

A

“Sovereign immunity relates to a court’s subject matter jurisdiction over a case, and therefore presents a question of law over which we exercise de novo review. ... In so doing, we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law. ... It has deep roots in this state and our legal system in general, finding its origin in ancient common law. ... Not only have we recognized the state’s immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state. . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence. . . .

“[T]he sovereign immunity enjoyed by the state is not absolute. There are [three] exceptions: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state’s sovereign immunity ... (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiffs constitutional rights . . . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer’s statutory authority. . . . For a claim made pursuant to the first exception, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed. . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity. ... In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper.” (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349-50, 977 A.2d 636 (2009).

“Section 4-61 (a) waives sovereign immunity for any person, firm or corporation which has entered into a contract with the state ... for the design, construction, construction management, repair or alteration of any highway, bridge, building or other public works of the state. . . . Such an entity may, in the event of any disputed claims under such contract . . . bring an action against the state ... for the purpose of having such claims determined.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., supra, 239 Conn. 101. Section 4-61 is the sole Connecticut statute that expressly waives sovereign immunity for specifically enumerated public works contract actions. 184 Windsor Avenue, LLC v. State, 274 Conn. 302, 311, 875 A.2d 498 (2005). “Thus, a party who seeks to litigate or arbitrate a disputed claim arising under a public works contract bears the burden of proving that the claim fits precisely within the narrowly drawn reach of § 4-61.” Dept. of Transportation v. White Oak Corp., 287 Conn. 1, 9, 946 A.2d 1219 (2008).

“Section 4-61 (a) expressly grants the right to sue the state only to contractors who have [(1)] ‘entered into a contract with the state’ and who have [(2)] a dispute ‘under such contract.’ Nowhere in § 4-61 or elsewhere in the General Statutes is there any provision that grants a subcontractor, who does not have a contract with the state, the right to sue the state.” Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., supra, 239 Conn. 104. Here, there is no dispute that the plaintiff entered into a contract with the state, acting through the defendants, for a public works project. The parties’ dispute related to the breach of contract claim centers only on whether the allegations in paragraph seven of the first count properly can be characterized as asserting a “ ‘disputed claim’ ” under the contract. Our analysis is guided by our Supreme Court’s decision in Federal Deposit Ins. Corp.

In Federal Deposit Ins. Corp., the issue presented on appeal was “whether a general contractor has a ‘disputed [claim] under [its] contract’ with the state, within the meaning of § 4-61 (a), if the general contractor’s claim against the state takes the form of a claim for indemnification that is based upon the pending claim of a subcontractor.” Id., 101. In that case, like the present one, only the general contractor had a contract with the state. Id., 102. The subcontractor “had no contract with the state and, therefore, could not sue the state directly.” Id. Due to this fact, the subcontractor’s successor in interest brought an action against the general contractor with whom the subcontractor did have a contract. Id. The court noted that “the only existing ‘disputed claim’ at [that] point . . . [was] between the general contractor and the subcontractor.” Id.

Thereafter, the general contractor attempted to implead the state for indemnification because the subcontractor’s claims for damages were based on the state’s alleged failure to compensate the subcontractor properly. Id., 96. In its third party complaint, the general contractor denied liability to the subcontractor but alleged that, if it were found liable to the subcontractor, the department of transportation should be responsible for any judgment. Id., 97-98. The department of transportation moved to dismiss on the ground of sovereign immunity, claiming that its immunity was not waived because the third party complaint was not a “disputed claim” under the state contract for the purposes of § 4-61 (a). Id., 100.

Our Supreme Court agreed with the department of transportation: “[W]e are persuaded that a general contractor who has entered into a contract with the state cannot bring a third party action against the state based on the mere prospect that the contractor may be liable to a subcontractor at some point in the future. That scenario does not constitute a disputed claim by the contractor against the state.” Id., 103. The court based its holding on the plain language of § 4-61 (a), specifically the language stating that a party seeking to sue the state must have “ ‘disputed claims’ ” under its contract with the state. Id., 102-103. The court concluded: “[A] contractor cannot implead the state in an action against the contractor by a subcontractor unless the contractor admits liability to the subcontractor and incorporates the subcontractor’s claim into its own, so that the contractor then has a disputed claim under its own contract with the state.” Id., 105.

The defendants contend that the holding in Federal Deposit Ins. Corp. is applicable to the facts of the present case. The plaintiff counters that that case is distinguishable factually from the present case because Federal Deposit Ins. Corp. involved a subcontractor’s action against a general contractor and a subsequent attempt by the general contractor to implead the state into that action for indemnification, while the present matter involves a direct action initially filed by a general contractor against the state. Furthermore, the plaintiff attempts to distinguish Federal Deposit Ins. Corp. on the ground that the contractor in that case denied liability to the subcontractor, while the plaintiff has made no such allegation here. Notwithstanding these factual distinctions, we find the reasoning in Federal Deposit Ins. Corp. pertinent to the present case.

B

With these principles in mind, we turn to the defendants’ claim that the breach of contract claim alleging that the Cheshire Correctional Facility had failed to pay the plaintiff for the “de-leading” of the security bars should be dismissed for lack of subject matter jurisdiction because the allegations in paragraph seven of count one are insufficient to meet the “disputed claim” requirement in § 4-61 (a). Paragraph seven of the first count of the complaint specifically provides: “Despite substantial completion of its obligations under the [agreement, [Cheshire Correctional Center] has failed to pay [the] [p]laintiff $178,312.00 for the de-leading of security bars on windows reflected on the July 8, 2003 [i]nvoice from MacKenzie . . . annexed [to the complaint] as [an exhibit] . . . .” (Emphasis added.) From this allegation, it readily is apparent that the claim belongs to the plaintiff and clearly asserts that it is the plaintiff that is owed money. The fact that the plaintiff evidenced its claim with an invoice from MacKenzie does not mean necessarily, as the defendants suggest, that the claim belongs to MacKenzie. We conclude therefore that, on its face, when viewed in a light most favorable to the plaintiff, paragraph seven of count one sufficiently alleges that the plaintiff, and not MacKenzie, has a disputed claim under its contract with the state.

Although the claim is sufficient on its face, the defendants contend, nonetheless, that the deposition testimony of Ridinger and Malcolm MacKenzie conclusively establish that the plaintiff has not paid MacKenzie in the amount of the invoice, nor has it admitted unconditional liability to MacKenzie for that amount. The defendants contend that these purportedly undisputed facts contradict the allegation in paragraph seven of count one that the claim belongs to the plaintiff. We conclude, however, that the testimony does not establish the undisputed fact that the plaintiff has not admitted unconditional liability to MacKenzie.

Specifically, when asked whether he was aware of any agreements, oral or written, between the plaintiff and MacKenzie wherein the plaintiff promised to pay MacKenzie for the performance of any additional work performed at Cheshire Correctional Center, Ridinger testified that, although there was no written admission of liability to MacKenzie for the $178,312, he had “an understanding with Malcolm [MacKenzie] that [they] were going to somehow compensate him” and that the plaintiff was “on the hook for what [MacKenzie] [had] performed as extra work.” This testimony, at best, is equivocal as to the question of whether the plaintiff admitted that it was unconditionally liable to MacKenzie. Even if we were to assume that Ridinger’s testimony established that he did not admit unconditional liability to MacKenzie, the testimony of Malcolm MacKenzie would contradict that testimony. When asked the same question, Malcolm MacKenzie testified that the plaintiff orally promised to pay MacKenzie the $178,312 “whether or not [the plaintiff] succeed[s] on this claim with the state . . . .” This testimony indicates that the plaintiff bound itself to an unconditional liability to pay MacKenzie in the amount of $178,312. At the very least, there exists a factual dispute regarding the question of whether the plaintiff admitted unconditional liability to MacKenzie in the amount of $178,312. “[W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts.” Conboy v. State, supra, 292 Conn. 652. Because paragraph seven of count one, when viewed in a light most favorable to the plaintiff, sufficiently alleges on its face that the plaintiff has a disputed claim under its contract with the state, and because jurisdiction is dependent on the resolution of a critical factual dispute, we conclude that the court properly denied the defendants’ motion to dismiss as to count one.

II

The defendants next claim that count two of the complaint, sounding in unjust enrichment, should be dismissed for lack of subject matter jurisdiction because it does not meet the waiver of immunity requirements set forth in § 4-61 (a), such claim not being one that is brought “under” the contract with the state.

Whether the plaintiffs claim for unjust enrichment comes within the scope of § 4-61 is a question of statutory interpretation. “The process of statutory interpretation involves a reasoned search for the intention 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 this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, 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. . . .

“Our analysis is more specifically illuminated by the well settled principle that when the state waives sovereign immunity by statute a party attempting to sue under the legislative exception must come clearly within its provisions, because [statutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed .... Where there is any doubt about [the] meaning or intent [of a statute in derogation of sovereign immunity, it is] given the effect which makes the least rather than the most change in sovereign immunity. . . . The state’s sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication. . . . Thus, before bringing suit under a statutory waiver of sovereign immunity, [a] plaintiff must prove . . . that there is a precise fit between the narrowly drawn reach of the relevant statute . . . and the contractual language upon which the plaintiff depends.” (Citations omitted; emphasis added; internal quotation marks omitted.) Dept. of Public Works v. ECAP Construction Co., 250 Conn. 553, 558-59, 737 A.2d 398 (1999).

We look first to the relevant language of § 4-61 (a), which provides in relevant part: “Any person, firm or corporation which has entered into a contract with the state . . . for the . . . repair or alteration of any . . . building or other public works of the state . . . may, in the event of any disputed claims under such contract . . . bring an action against the state to the superior court for the judicial district of Hartford for the purpose of having such claims determined . . . .” (Emphasis added.) Our Supreme Court specifically addressed the meaning of the term “under” in Dept. of Public Works.

In Dept. of Public Works, the department of public works (department) filed an action seeking a permanent injunction barring a contractor from arbitrating a claim against the department for breach of an agreement that purported to settle various claims that the contractor had against the department relating to a construction contract. Dept. of Public Works v. ECAP Construction Co., supra, 250 Conn. 556. Specifically, the department claimed that the contractor’s claim did not fall within the limited waiver of sovereign immimity contained in § 4-61 because the parties’ disagreement over the settlement agreement “did not constitute a disputed claim arising ‘under’ the contract within the meaning of the statute.” Id., 557. On appeal, the court agreed with the department and stated: “It is clear . . . that the parties’ purported settlement agreement . . . constitutes a separate agreement that, although related to the [construction] contract, does not arise ‘under’ that contract.” Id., 562. “The legislature’s use of the word ‘under’ [in § 4-61 (a)], as opposed to a broader term such as ‘related to,’ ‘connected with’ or ‘derived from,’ indicates an intent to authorize only those disputed claims against the state that fall directly under the contract itself. To permit an action against the state for a claim that is related to or connected with a public works contract would expand the limited waiver of immunity inherent in § 4-61 beyond the statute’s plain language. . . . We are not persuaded that the legislature intended such an expansion of § 4-61.” Id., 559.

Guided by the decision in Dept, of Public Works, we conclude that the plaintiffs unjust enrichment claim does not fall directly under the contract. Paragraph fourteen of count two of the plaintiffs complaint alleges: “As a result of the foregoing, the [p]laintiff has performed services and provided materials not contemplated by the [c\ontract and to the extent that the [defendants . . . have received such services and material without compensating the [pjlaintiff for same, they have been unjustly enriched.” (Emphasis added.) The stated basis of the unjust enrichment claim, therefore, is that the plaintiff performed services and provided materials that were not contemplated by the contract itself. The plaintiff contends, nevertheless, that the unjust enrichment claim properly is before the court because such claim “directly flow[s] from the contract and the work contemplated by the contract . . . .’’As our Supreme Court in Dept, of Public Works noted, the claim must fall directly under the contract itself. Dept. of Public Works v. ECAP Construction Co., supra, 250 Conn. 559. It is not enough that the conduct alleged flows from, relates to or is connected with the contract. Recognition of the plaintiffs unjust enrichment claim, which it specifically admits to be not contemplated by the contract, would “expand the limited waiver of immunity inherent in § 4-61 beyond the statute’s plain language.” Id. Accordingly, we conclude that the court incorrectly determined that sovereign immunity did not bar the plaintiffs unjust enrichment claim in count two.

The judgment denying the defendants’ motion to dismiss count two of the plaintiffs complaint is reversed and the case is remanded with direction to grant the defendants’ motion on that count and to render judgment thereon for the defendants. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The denial of a motion to dismiss on the basis of sovereign immunity is an immediately appealable final judgment. See Gold v. Rowland, 296 Conn. 186, 190 n.4, 994 A.2d 106 (2010).

       Paragraph seven of count one of the plaintiffs complaint specifically provides: “Despite substantial completion of its obligations under the [agreement, [Cheshire Correctional Center] has failed to pay [the] [pjlaintiff $178,312.00 for the de-leading of security bars on windows reflected on the July 8, 2003 invoice from MacKenzie Painting Company annexed [to the complaint] as [an exhibit] and made a part [thereof].” We note that the plaintiff also alleged that the department of correction is the administrator of the Cheshire Correctional Center. The parties and the trial court have not made a distinction between the defendants and the Cheshire Correctional Center. Accordingly, we assume without deciding that they are one and the same for purposes of this appeal.

       Paragraph eight of count one of the complaint specifically provides: “[T]here remains outstanding a request for an equitable adjustment to the contract price in accordance with the Eichlea Formula for delays and additional work required at the [Cheshire Correctional Center] ... as a result of [the] de-leading as well as numerous other delays imposed on Paragon by [the defendants] in the amount of $293,023.60, all as set forth in [the] schedule prepared by Paragon, annexed [to the complaint] and made a part [thereof].”

       The uxyust enrichment count incorporated the allegations of the breach of contract count and also alleged in relevant part: “As a result of the foregoing, the [defendants . . . have been benefited in that [the] [pjlaintiff has performed as contemplated by the parties and pursuant to the terms of the [c]ontract. . . . [T]he [p]laintiff has performed services and provided materials not contemplated by the [c]ontract and to the extent that the [defendants . . . have received such services and materials without compensating the [p]laintiff for same, they have been unjustly enriched. . . .”

       General Statutes § 4-61 (a) provides in relevant part: “Any person, firm or corporation which has entered into a contract with the state, acting through any of its departments, commissions or other agencies, for the design, construction, construction management, repair or alteration of any highway, bridge, building or other public works of the state or any political subdivision of the state may, in the event of any disputed claims under such contract or claims arising out of the awarding of a contract by the Commissioner of Public Works, bring an action against the state to the superior court for the judicial district of Hartford for the purpose of having such claims determined, provided notice of each such claim under such contract and the factual bases for each such claim shall have been given in writing to the agency head of the department administering the contract within the period which commences with the execution of the contract or the authorized commencement of work on the contract project, whichever is earlier, and which ends two years after the acceptance of the work by the agency head evidenced by a certificate of acceptance issued to the contractor or two years after the termination of the contract, whichever is earlier. . .

       The record reveals that after the court denied the motion, the defendants filed a request to revise the plaintiffs complaint on March 14, 2007, which subsequently was denied. Additionally, the record reveals that the defendants filed a motion to strike on April 18, 2007, which also was denied.

       See footnote 2 of this opinion.

       The motion to dismiss contained two additional grounds, namely, that the plaintiffs should have sought authorization to sue from the claims commissioner and that the state would be harmed if the plaintiff was permitted to move forward with its claims. The plaintiff does not raise these grounds on appeal.

       With respect to this point, the court suggested that “the state does have an avenue here to seek to preclude those damages at the time of trial in the form of a motion in limine or ... as a matter of evidence in the course of trial . . . .”

       We note that the appellate courts of this state have ordered the dismissal of portions of a count of a complaint on the basis of sovereign immunity. See Fetterman v. University of Connecticut, 192 Conn. 539, 557, 473 A.2d 1176 (1984) (upholding trial court’s dismissal of portions of counts contained in plaintiffs complaint on basis of sovereign immunity), superseded by statute on other grounds as stated in Piteau v. Board of Education, 300 Conn. 667, 680-81, 689, 15 A.3d 1067 (2011); Ware v. State, 118 Conn. App. 65, 80-81, 983 A.2d 853 (2009) (reversing trial court’s judgment denying defendant’s motion to dismiss portions of counts contained in plaintiffs complaint on basis of sovereign immunity).


author: BEAR, J.

text:
    ROBERT J. CASSOTTO v. GLEN AESCHLIMAN
    (AC 32263)
    Lavine, Bear and Dupont, Js.

      Argued February 14
    officially released July 19, 2011

      John R. Williams, for the appellant (plaintiff).

      Nicole M. Rothgeb, with whom, on the brief, was Gregg D. Adler, for the appellee (defendant).
   Opinion

BEAR, J.

The plaintiff, Robert J. Cassotto, appeals from the judgment of the trial court rendered in favor of the defendant, Glen Aeschliman. On appeal, the plaintiff claims that the court improperly struck his complaint in its entirety. We affirm the judgment of the trial court.

The plaintiff commenced this action on or about December 23, 2008. By way of a revised one count complaint, the plaintiff alleged the following relevant facts: “3. On or about August 15, 2005, the defendant falsely and maliciously told the plaintiff that the plaintiffs supervisor had directed that the plaintiff need not call in if he expected to be late for work, thereby placing the plaintiff at risk of violating work rules at his place of employment.

“4. Between November 17, 2005, and November 25, 2005, the precise date or dates being unknown to the plaintiff at this time, the defendant stated to third persons, whose identities are not presently known to the plaintiff, that the plaintiff had engaged in outbursts and irrational behavior. The defendant knew such statements were false.

“5. On or about September 20, 2006, the defendant became violently angry at the plaintiff, causing the plaintiff to fear for his physical safety.”

The revised complaint further alleged that such actions were extreme and outrageous and were “carried out with the knowledge and the intention that [they] would cause the plaintiff to suffer emotional distress” and, consequently, “the plaintiff suffered severe emotional distress.”

On May 28, 2009, the defendant filed a motion to strike the revised complaint, arguing that the plaintiffs allegations were legally insufficient to state a cause of action for intentional infliction of emotional distress because the alleged actions did not constitute extreme and outrageous conduct as a matter of law. On September 2, 2009, the court, Roche, J., granted the defendant’s motion to strike the one count revised complaint and stated in its memorandum of decision that the plaintiff s allegations “simply do not, as a matter of law, constitute behavior that is so outrageous and extreme as to go beyond all possible bounds of decency, and cannot be regarded as atrocious and utterly intolerable in a civilized community.”

On March 1, 2010, the plaintiff filed an amended revised complaint that contained allegations substantively identical to those allegations that had been previously set forth in his revised complaint, with an additional allegation that: “6. On or about May 22, 2008, the defendant threatened to kill the plaintiff, looking directly at the plaintiff and stating: ‘Bang. Bang.’ ”

On March 12, 2010, the defendant filed a motion to strike the amended revised complaint on the grounds that, even with the additional allegation, the complaint failed to plead facts establishing extreme and outrageous conduct. On March 30, 2010, the court, Shaban, J., issued an order granting the motion to strike, stating that “[t]he allegations as amended do not rise to the level of extreme and outrageous conduct.” On April 15, 2010, the defendant filed a motion for judgment, which was granted by the court. See Practice Book § 10-44. This appeal followed.

On appeal, the plaintiff claims that the court erred in holding that, as a matter of law, that the conduct alleged in the amended revised complaint could not be considered “extreme and outrageous.” We disagree.

We begin by setting forth our standard of review. “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 on [a motion to strike] is plenary. . . . In an appeal from the granting of a motion to strike, we must read the allegations of the complaint generously to sustain its viability, if possible .... We must, therefore, take the facts to be those alleged in the complaint that has been stricken and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Melanson v. West Hartford, 61 Conn. App. 683, 687, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001).

“In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe.” (Internal quotation marks omitted.) Stancuna v. Schaffer, 122 Conn. App. 484, 491-92, 998 A.2d 1221 (2010). “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965).

“Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. . . . Only where reasonable minds disagree does it become an issue for the jury.” (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn. App. 835, 846, 888 A.2d 104 (2006). “[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous.” (Internal quotation marks omitted.) Id., 847.

The plaintiff alleges that the defendant (1) deliberately misinformed the plaintiff about a directive from his superior, thereby placing him at risk of violating work rules; (2) falsely reported to others, whose identities are unknown to the plaintiff, that the plaintiff engaged in outbursts and irrational behavior; (3) became “violently angry” at the plaintiff such that he feared for his physical safety; and (4) on one occasion “look[ed] directly at the plaintiff and staffed]: ‘Bang. Bang.’ ”

Taking the facts as alleged in the amended revised complaint, we conclude that the defendant, over a period of nearly three years, engaged in four incidents of alleged inappropriate conduct that were upsetting to the plaintiff, but the allegations of such conduct do not rise to the level of extreme and outrageous behavior. “Although the defendants’ alleged behavior no doubt was hurtful and distressing to the plaintiff, plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.” (Internal quotation marks omitted.) Davis v. Davis, 112 Conn. App. 56, 67, 962 A.2d 140 (2009).

Our Supreme Court and this court previously have held that allegations of similar conduct are not extreme and outrageous. See, e.g., Morrissey v. Yale University, 268 Conn. 426, 428, 844 A.2d 853 (2004) (plaintiffs coworker and co-worker’s boyfriend made insulting and derogatory comments to plaintiff and, on one occasion, defendant pointed at plaintiff and said: “ ‘[s]ooner or later I’m going to kick your fucking ass’ ”); Appleton v. Board of Education, 254 Conn. 205, 211, 757 A.2d 1059 (2000) (defendant supervisors’ conduct not extreme and outrageous where, inter alia, they made condescending comments about plaintiff in front of colleagues, asked police to escort her from work and suspended her); Gillians v. Vivanco-Small, 128 Conn. App. 207, 213, 15 A.3d 1200 (2011) (claim that “defendants vindictively conspired to terminate the plaintiffs employment” not sufficient to allege extreme and outrageous conduct); Tracy v. New Milford Public Schools, 101 Conn. App. 560, 922 A.2d 280 (conduct not outrageous where supervisor conspired with superintendent in pattern of harassment including denial of position, initiating disciplinary actions without proper investigation, defamation of character and intimidation), cert. denied, 284 Conn. 910, 931 A.2d 935 (2007); Bator v. Yale-New Haven Hospital, 73 Conn. App. 576, 577, 808 A.2d 1149 (2002) (plaintiff alleged that he was required to report for duty when under physician’s care, was recommended for discipline when he failed to report and person in authority falsely accused him of serious misconduct and of endangering patient’s life), cert. denied, 279 Conn. 903, 901 A.2d 1225 (2006); Dollard v. Board of Education, 63 Conn. App. 550, 552-53, 777 A.2d 714 (2001) (supervisors engaged in concerted and successful plan to force plaintiff to resign by hypercritically examining her professional and personal conduct, transferring her involuntarily, placing her under intensive supervision and publicly admonishing her); Davis v. Davis, supra, 112 Conn. App. 59-60 (former husband made repeated angry and hostile threats that he would have police evict plaintiff from their former marital residence, and defendant and new spouse gained access to the residence when plaintiff was not home and changed locks so that plaintiff had to telephone police to regain entry).

The occurrences alleged by the plaintiff may very well have been distressing and hurtful to him. They do not, however, constitute extreme and outrageous conduct within the scope of the precedents of our Supreme Court and this court. Because the defendant’s alleged actions in the present case were not so atrocious as to exceed all bounds usually tolerated by decent society, they are insufficient as a matter of law to form the basis of an action for intentional infliction of emotional distress. We thus conclude that, because the plaintiff failed to set forth a viable cause of action for intentional infliction of emotional distress, the court’s granting of the defendant’s motion to strike and its rendering of judgment after the plaintiff failed to replead were correct under the applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant filed a request to revise the original complaint on or about March 16, 2009. The plaintiff then filed a revised complaint on May 11, 2009.

       The defendant notes that the incidents alleged in paragraphs three and four of the complaint occurred in August and November, 2005, respectively. The defendant argues that, because the alleged incidents occurred more than three years before the plaintiff commenced the action, they are untimely. See, e.g., DeCorso v. Watchtower Bible & Tract Society of New York, Inc., 78 Conn. App. 865, 873, 829 A.2d 38 (no recovery in tort for alleged actions that occurred more than three years prior to suit), cert. denied, 266 Conn. 931, 837 A.2d 805 (2003); Novak v. Omega Plastics Corp., 60 Conn. App. 424, 428, 760 A.2d 137 (no recovery in contract for services performed more than six years before action brought), cert. denied, 255 Conn. 910, 763 A.2d 1035 (2000). The defendant raised this issue in a footnote in the memorandum in support of his March 12,2010 motion to strike. In granting the defendant’s March 12, 2010 motion, the court did not address whether the allegations were untimely. Because we determine that all the allegations, when taken together, do not amount to extreme and outrageous conduct on the part of the defendant, we need not address this issue. We note, however, that “[t]he special defense of a time bar is appropriately the basis of a motion for summary judgment if the statute of limitations has, in fact, run.” DeCorso v. Watchtower Bible & Tract Society of New York, Inc., supra, 873.

       In his amended revised complaint, the plaintiff alleges that this statement constitutes a threat to kill the plaintiff. We note that a motion to strike “admits aR facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.” (Emphasis in original.) Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985).

       Courts, however, have allowed claims under circumstances more egregious than those alleged by the plaintiff, specifically those in which the defendant subjected the plaintiff to actual physical violence. See Berry v. Loiseau, 223 Conn. 786, 614 A.2d 414 (1992) (subjecting plaintiff to false imprisonment and repeated physical abuse, including punching and choking); McKelvie v. Cooper, 190 F.3d 58, 60-61 (2d Cir. 1999) (kicking plaintiff and probing his penis, testicles and anus).


author: PER CURIAM.

text:
    PHH MORTGAGE CORPORATION v. MELISSA CAMERON ET AL.
    (AC 32560)
    Bishop, Beach and Robinson, Js.
    Argued May 17
    officially released July 19, 2011

      Norman Cameron, pro se, the appellant (defendant).

      Andrew P. Barsom, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The pro se defendant Norman Cameron appeals from the judgment of the trial court granting his motion to dismiss a foreclosure action filed by the plaintiff, PHH Mortgage Corporation, for lack of subject matter jurisdiction. On appeal, the defendant claims that the court improperly addressed the merits of his claim that the promissory note was unenforceable. We dismiss the appeal.

The following facts and procedural history are relevant to our disposition of the appeal. On July 22, 2005, Melissa Cameron executed a promissory note in favor of Members Mortgage Company, Inc. (Members). On that same date, the defendant and Melissa Cameron executed a mortgage in favor of Members as security for the promissory note. In February, 2008, the plaintiff commenced a foreclosure action against the defendant and Melissa Cameron, alleging default in payment of the note and mortgage.

On March 5, 2009, the defendant filed a motion to dismiss the plaintiffs foreclosure action for lack of subject matter jurisdiction. In his memorandum of law in support of his motion to dismiss, the defendant claimed that the plaintiff did not have standing to file the foreclosure action because it was not the holder of the promissory note at the time the action was commenced. Alternatively, the defendant claimed that the promissory note was not enforceable because the original note had been lost. In support of his alternative claim, the defendant relied on the following handwritten language included on the note, as set forth with its original spelling, which allegedly was added at the time it was executed: “In the event this original note and/or the original mortgage deed becomes distroyed, lost or stolen then together (the mortgage deed and note) they both becomes unenforcible, null and void, releasing the Borrowers of their obligation to repay this debt and borrowed amount on the deed. The lean must be removed from the land records.”

The court conducted an evidentiary hearing on the defendant’s motion to dismiss and issued its memorandum of decision on May 18, 2010. The court concluded that the plaintiff lacked standing to pursue the foreclosure action because it was only the servicer, and not the holder, of the subject promissory note at the time the foreclosure action was commenced. Accordingly, the court granted the defendant’s motion to dismiss.

Following its granting of the motion to dismiss, the court proceeded to consider the merits of the defendant’s claim that the promissory note was unenforceable. The court recognized that this claim was “a defense to the merits of [the] case, and [did] not raise an issue of standing,” but it decided to consider the claim in the interest of “judicial economy.” After reviewing the evidence, the court found that the handwritten language was not included in the promissory note at the time it was executed but instead had been added by the defendant after he had learned that the plaintiff had lost the original promissory note. On the basis of these findings, the court concluded that the defendant’s claim was without merit. This appeal followed.

Although the parties did not raise the issue of aggrievement in this appeal, we raise it sua sponte because aggrievement implicates this court’s subject matter jurisdiction and, therefore, is a threshold matter that must be resolved before addressing the claims raised on appeal. See Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 91, 971 A.2d 1 (2009) (“[i]f a party is found to lack [aggrievement], the court is without subject matter jurisdiction to determine the cause” [internal quotation marks omitted]); State v. T.D., 286 Conn. 353, 358, 944 A.2d 288 (2008) (addressing issue of aggrievement sua sponte because “[a]ggrievement implicates . . . court’s subject matter jurisdiction”); Kinney v. State, 213 Conn. 54, 58, 566 A.2d 670 (1989) (court must dispose of issues concerning subject matter jurisdiction as threshold matter).

“It is settled law that the right to appeal is purely statutory and is allowed only if the conditions fixed by statute are met. ... In all civil actions a requisite element of appealability is that the party claiming error be aggrieved by the decision of the trial court. . . . The test for determining [classical] aggrievement encompasses a well settled twofold determination: first, the party claiming aggrievement must demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest shared by the community as a whole; second, the party claiming aggrievement must establish that this specific personal and legal interest has been specially and injuriously affected by the decision. ... [A] party cannot be aggrieved by a decision that grants the very relief sought. . . . Such a party cannot establish that a specific personal and legal interest has been specially and injuriously affected by the decision.” (Citation omitted; internal quotation marks omitted.) Fontana v. Zymol Enterprises, Inc., 95 Conn. App. 606, 614, 897 A.2d 694 (2006), quoting In re Allison G., 276 Conn. 146, 156-57, 883 A.2d 1226 (2005).

In the present case, the defendant prevailed on his motion to dismiss the plaintiffs foreclosure action for lack of subject matter jurisdiction and the court dismissed the foreclosure action. Although the defendant prevailed and was granted the relief that he sought, he claims nevertheless that he has been aggrieved by the trial court’s consideration of his claim that the note was unenforceable. We disagree.

“Once it becomes clear that the trial court lacked subject matter jurisdiction to hear the [action], any further discussion of the merits is pure dicta.” (Internal quotation marks omitted.) Shockley v. Okeke, 92 Conn. App. 76, 85, 882 A.2d 1244 (2005), appeal dismissed, 280 Conn. 777, 912 A.2d 991 (2007); see Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 246, 558 A.2d 986 (1989). If the trial court issues a decision on the merits of a case over which it lacks subject matter jurisdiction, the decision constitutes an advisory opinion. See Statewide Grievance Committee v. Rozbicki, supra, 246; Shockley v. Okeke, supra, 85; Lindo v. Lindo, 48 Conn. App. 645, 651, 710 A.2d 1387 (1998). “Such an opinion is not a judgment and is not binding on anyone.” Shockley v. Okeke, supra, 85.

On the basis of these legal principles, we conclude that the defendant has failed to establish that he has a specific personal and legal interest that has been specially and injuriously affected by the trial court’s decision. The court’s decision that the defendant’s claim was meritless was simply an advisory opinion. As an advisory opinion, the decision lacks “the force and effect of a [binding] judgment”; id.; and, therefore, is not an enforceable judgment on the merits of the defendant’s claim. Consequently, the decision does not foreclose the defendant from raising the same claim concerning the enforceability of the promissory note in a future foreclosure action. Accordingly, the defendant has not been aggrieved by the court’s decision.

The appeal is dismissed.

       Melissa Cameron, Kingdom Enterprises, LLC, and Bank of America, N.A., also were named as defendants in the foreclosure action, but none of these parties has filed an appeal with this court. Although it appears that Norman Cameron is seeking to vindicate only his own interest in this appeal, to the extent that he is attempting to represent the interests of another party, such representation by a pro se litigant is not permitted. See Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn. App. 543, 546, 642 A.2d 62 (“[t]he authorization to appear pro se is limited to representing one’s own cause, and does not permit individuals to appear pro se in a representative capacity”), cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994). Therefore, all references in this opinion to the defendant are to Norman Cameron.

       In his brief to this court, the defendant makes a number of additional claims directed to the court’s consideration of his claim that the promissory note was unenforceable. Because we conclude that the defendant was not aggrieved, we do not address any of his claims raised on appeal.

       In support of his allegation that the original promissory note had been lost, the defendant relied on an affidavit of lost note, which the plaintiff had submitted in support of its motion for summary judgment.

       “[Our Supreme Court has] consistently held that [our courts should] not render advisory opinions.” (Internal quotation marks omitted.) Martino v. Scalzo, 113 Conn. App. 240, 242 n.2, 966 A.2d 339, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009).

       We note that during oral argument before this court, the plaintiff conceded that the trial court’s decision on the merits of the defendant’s claim that the promissory note was unenforceable had no effect on any subsequent foreclosure action involving the parties.