author: WEST, J.

text:
    EDITH HOLMES, ADMINISTRATRIX (ESTATE OF ARNOLD F. HOLMES) v. HARTFORD HOSPITAL
    (AC 30979)
    Sheldon, Keller and West, Js.

      Argued September 26, 2013
    officially released January 28, 2014

      Neil Johnson, for the appellant (substitute plaintiff).

      Michael G. Rigg, with whom, on the brief, were Robert D. Silva and Claire V. Morgan, for the appel-lee (defendant).
   Opinion

WEST, J.

In this medical malpractice action, the plaintiff, Edith Holmes, in her capacity as administratrix of the estate of Arnold F. Holmes (decedent), appeals from the judgment of the trial court rendered in favor of the defendant, Hartford Hospital, following a jury trial. Specifically, the plaintiff claims that the trial court improperly (1) denied her motion to set aside the verdict; (2) denied her motion for a new trial; and (3) ordered her to pay the defendant’s expert witness fees. We affirm the court’s judgment as to the plaintiffs first two claims, and affirm in part and reverse in part the judgment as to the plaintiffs third claim.

The following facts and procedural history are relevant to our review. On February 8, 2007, the plaintiff served a complaint against the defendant claiming medical malpractice. Thereafter, on March 3, 2009, the plaintiff filed an amended complaint alleging that the defendant breached the standard of care owed to the decedent, by failing to provide him proper treatment following his cyst gastronomy. Specifically, she alleged that, after the decedent’s surgical procedure, the defendant negligently transferred the decedent from the procedure suite to the recovery room and another unit of the hospital without monitoring him or providing him oxygen. The plaintiff also alleged that, as a result of the defendant’s negligence, the decedent suffered cardiac arrest that went undetected for twenty minutes. By the time the defendant resuscitated and intubated the decedent, he had suffered neurological deterioration and respiratory failure, causing him to die approximately two weeks later.

In its answer, filed on March 5, 2009, the defendant denied the allegations that it violated the standard of care. In anticipation of trial, the parties conducted discovery and, in accordance with Practice Book § 13-4, filed expert witness disclosures. In mid-December, 2008, the defendant deposed the plaintiff’s expert witnesses, David Crippen and Donna Querim, regarding whether the defendant comported with the nursing standard of care. In late January, 2009, the plaintiff deposed the defendant’s expert witnesses, including Steven Angelo, Peter Schulman, David Pleet, and Anne Holland. A jury trial began on February 23, 2009, and, on March 6, 2009, the jury entered its verdict in favor of the defendant. This appeal followed. Additional facts will be set forth as they pertain to each claim.

I

The plaintiff first claims that the court improperly denied the plaintiffs motion to set aside the verdict, which motion was predicated on the court’s improper evidentiary rulings limiting the testimony of the plaintiffs experts as to the defendant’s analgesic policy. We disagree. The following facts are relevant to our review of this claim.

In late August, 2008, the plaintiff sent the defendant an informal request for copies of any policies related to the transfer of patients. The defendant responded to this request by letter, dated September 12, 2008. The defendant’s response did not, however, include the defendant’s analgesic policy, which pertains to the care of patients who are moderately sedated during medical procedures. The plaintiff first learned of the analgesic policy while deposing Angelo in late January of 2009. On January 30,2009, the plaintiff obtained a copy of the policy during Schulman’s deposition, and subsequently sent it to her experts, Querim, a registered nurse, and Ciippen, a critical care physician, to review before trial.

On the basis of their review, both Querim and Crippen formulated new opinions that conflicted with their deposition testimony. They determined that the defendant breached the standard of care by transferring the decedent to an unmonitored unit while Ms condition was unstable. The plaintiff did not amend her expert disclosures to reflect these new opinions or to identify the analgesic policy as a potential source of the experts’ testimony. See Practice Book § 13-4 (b) (1).

The trial began on February 23, 2009, on wMch date the defendant filed a motion in limine to preclude the plaintiffs experts from testifying about alleged violations of the defendant’s policies. In support of its motion, the defendant argued that a hospital’s policies, as a matter of law, do not establish the standard of care because they may impose a level of care that differs from the national standard. See General Statutes § 52-184c (a); Smith v. Andrews, 289 Conn. 61, 69, 959 A.2d 597 (2008) (Connecticut follows national standard of care). Accordingly, the defendant argued that there was a Mgh risk that the jury would conflate the policies with the standard of care in reaching its verdict. The plaintiff filed an objection to the defendant’s motion in limine, and a hearing was held on February 25, 2009. Although the court orally denied the defendant’s motion, it stated that the admissibility of the policies would be contingent upon the plaintiff demonstrating that they were equivalent to the applicable standard of care.

Consistent with this ruling, Querim testified at trial that the defendant’s analgesic policy comported with the standard of care and, consequently, the court admitted it into evidence. Querim opined that, on the basis of her review of the analgesic policy and the anesthesia flow sheet, the decedent’s vital signs were unstable while he was in the recovery room. Therefore, she testified, the defendant violated the standard of care when the recovery room nurses transferred the decedent to an unmonitored unit before his condition stabilized. On cross-examination, the defendant impeached Querim’s credibility with her deposition testimony, wherein she had stated that the decedent’s vital signs were stable while he was in the recovery room.

On direct examination, Crippen testified that, following his deposition, he reviewed additional records that altered his opinion as to whether the defendant had violated the standard of care. Consequently, the court issued a sua sponte side bar ruling precluding Crippen from testifying as to any opinions formed after his deposition. The jury entered its verdict in favor of the defendant on March 6, 2009. On March 16, 2009, the plaintiff moved to set aside the verdict, arguing that the court had improperly precluded the plaintiffs experts from testifying about the analgesic policy. The plaintiff argued that without the analgesic policy, she could not satisfy her burden of proof.

At a hearing on March 23, 2009, the court denied the plaintiffs motion to set aside the verdict, stating: “[T]he policy of a hospital is not equal to the standard of care. If a hospital wants to adopt a policy which requires a higher level of care, [it’s] free to do so, but if [it violates] that policy, that doesn’t mean [it] violated the standard of care. It defies logic to think that two medical professionals [Querim and Crippen] could have their opinions changed as to whether or not .... the decedent . . . was stable . . . before seeing the policy, based presumably on their knowledge of the standard of care, and then, say [he] was wildly unstable after [seeing] the policy. . . . [T]he bottom line is that these two medical professionals said that [the decedent] was quite stable when they were deposed and then changed their opinions, and it defies logic that the standard of care changed between ... six months before [trial] when their depositions were taken and at the time of trial. . . . [T]he jury heard about the policies, [and] the interpretation of the policies. ... I think that everyone got a fair trial, and in order to accept the plaintiffs argument here [is] to accept that the experts six months before [trial] thought the standard of care—which is something really not dependent on hospital policies—was quite different from that which it was at the time of trial, and I just don’t think I can accept that, so I’m going to deny the motion to set aside [the verdict].” This appeal followed.

“Our standard of review, where the trial court’s action on a motion to set aside a verdict is challenged, is whether the trial court clearly abused its discretion. . . . The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion. ... A trial court has the inherent power to set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict. ... It is proper for a trial court, using due caution, and in the exercise of its discretion, to set aside a verdict when satisfied that ... its rulings on evidence were erroneous and that those erroneous . . . rulings were consequential enough to have had a substantial effect on the verdict.” (Citations omitted; internal quotation marks omitted.) Melo v. Spencer, 62 Conn. App. 727, 729-30, 774 A.2d 217 (2001).

In denying the plaintiffs motion to set aside the verdict, the court set forth a well reasoned explanation for its evidentiary rulings limiting the plaintiffs experts’ testimony as to the defendant’s analgesic policy. In particular, the court found illogical the plaintiffs contention that the standard of care changed during the few months between the time of the plaintiff’s experts’ depositions and the time of their trial testimony. Accordingly, as a matter of law, the court’s contested evidentiary rulings did not affect the plaintiffs ability to prove that the defendant had violated the standard of care on the date in question. Moreover, the court found that, despite its evidentiary rulings limiting Crip-pen’s testimony as to the analgesic policy, the jury nevertheless heard testimony about the policy and its interpretation. Indeed, Querim testified that the analgesic policy was equivalent to the nursing standard of care, and that the defendant’s actions fell below that standard. On the basis of her testimony, the court admitted the policy into evidence as a full exhibit. Accordingly, the contested evidentiary rulings cannot be said to have had a substantial effect on the jury’s verdict. In light of the court’s thorough and legally reasonable analysis, we conclude that it did not abuse its discretion in denying the plaintiffs motion to set aside the verdict.

II

The plaintiff next claims that the trial court improperly denied her motion for a new trial pursuant to General Statutes § 52-268 because the trial transcript was incomplete, and therefore provided an inadequate basis to brief her claims on appeal. The following facts and procedural history are relevant to our review of this claim.

Following the court’s denial of the motion to set aside the verdict and its judgment in favor of the defendant, the plaintiff filed an appeal and, on July 9,2009, ordered the trial transcript. The court reporter’s office informed the plaintiff that a trial transcript did not exist because the official court reporter, Carol Marcinek, was unavailable to create the transcript, and other court reporters found Marcinek’s notes to be illegible. On November 5, 2010, the plaintiff moved for a new trial on the basis of the court’s “inability to construct a transcript of the trial . . . .” The court denied this motion, noting that “[t]he judicial branch has been attempting and will continue to attempt to obtain an accurate transcription of the proceedings for appeal.” Thereafter, the court contracted with United Court Reporters to transcribe Marcinek’s notes and produce a transcript. The reconstructed transcript was delivered to the plaintiff on March 14, 2012. The plaintiff contended, however, that it was incomplete, noting what she claimed to be hundreds of instances where testimony was omitted or only partially transcribed.

On August 2, 2012, the plaintiff filed a revised motion for rectification of the trial transcript, which the trial court granted on October 12,2012, stating: “The plaintiff shall set forth the legal issue which will be affected by the transcript, specifying what she contends was the relevant testimony. If the defendant agrees with the plaintiffs characterization of the testimony, then there will be no need to resubmit that portion of the transcript to United Reporters. If the defendant does not agree with the plaintiffs characterization of the testimony and the testimony is relevant to an issue on appeal, then that portion of the transcript shall be resubmitted to United Reporters.” i

On November 28, 2012, the plaintiff filed a motion in this court seeking to stay her briefing obligations to afford her time to comply with the trial court’s order of October 12, 2012. This court denied that motion, and, further, ordered the parties to provide proof of compliance with the trial court’s order of October 12, 2012. Accordingly, the plaintiff submitted to the defendant a copy of the transcript with pages containing check marks denoting incomplete or missing testimony, but failing to characterize that testimony, and filed with this court a notice of her compliance with the October 12, 2012 order. Thereafter, the plaintiff filed with this court a motion for review of that order. In an order dated February 7, 2013, this court dismissed the plaintiffs motion for review and ordered her to file her brief on or before March 11, 2013, or her appeal would be dismissed.

In this appeal, the plaintiff claims that the trial court improperly denied her motion for a new trial because the trial transcript was incomplete, and therefore did not provide an adequate record for her appeal. We conclude that this claim was not properly preserved for appeal, and therefore decline to review it. First, the plaintiff did not comply with Practice Book § 61-9, which requires parties to amend their appeal to preserve any claims that arise while the appeal is pending. Here, the plaintiff never amended her appeal to challenge the court’s order denying her motion for a new trial. See Jewett v. Jewett, 265 Conn. 669, 673 n.4, 830 A.2d 193 (2003) (declining to review defendant’s claim challenging trial court’s postjudgment order because defendant did not file amended appeal, as required by Practice Book § 61-9).

Second, insofar as the plaintiff challenges the court’s October 12, 2012 order granting her revised motion for rectification, such an order can only be contested by way of a motion for review, pursuant to Practice Book § 66-5, which provides in pertinent part that “[t]he sole remedy of any party desiring the court having appellate jurisdiction to review the trial court’s decision on [a motion for rectification] . . . shall be by motion for review under Section 66-7.” (Emphasis added.) In accordance with this section, the plaintiff filed a motion for review, which this court dismissed on February 7, 2013. Thus, the plaintiff already obtained the review to which she was entitled. See State v. Crespo, 246 Conn. 665, 669-70, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999).

In light of these procedural defects, we conclude that the plaintiffs claim regarding her motion for a new trial was not preserved for our review.

Ill

Finally, the plaintiff claims that the trial court improperly (1) determined the reasonableness of the defendant’s expert witness fees for their trial testimony, and (2) taxed travel costs associated with such testimony. We disagree as to the plaintiffs first claim, but agree as to the second claim.

The following facts are relevant to our resolution of these claims. On March 31, 2009, the defendant submitted a bill of costs requesting, in part, payment for the trial testimony of the defendant’s expert witnesses. The bill of costs specifically set forth the amounts owed for Schulman ($1500), Angelo ($2000), Pleet ($2030), and Holland ($370). The plaintiff objected to the bill of costs on April 8, 2009, arguing that there was no evidence as to the reasonableness of the experts’ fees.

On April 16, 2009, the defendant responded to this objection, attaching invoices denoting the experts’ hourly rates and the lengths of their trial testimony. The invoices of Pleet and Holland also set forth travel expenses of $30 and $100, respectively. The defendant’s motion further asserted that “[t]he total fee for four (4) defense experts, [two] of whom were from out of state, to testify at trial [was $5900]. The fees for all [four] defense expert witnesses were [$2100] less than what the plaintiff paid to have [one of her experts] testify at trial.”

On May 26, 2009, the court held a hearing on the defendant’s motion to compel payment of fees. At the hearing, the court addressed the plaintiffs claim challenging the reasonableness of the defense experts’ trial testimony fees. The defendant argued that because the total fees for four of its expert witnesses was $2100 less than the fees for just one of the plaintiffs experts, its fees were reasonable by comparison. The court also inquired into the basis for each of the experts’ fees, as set forth in their invoices. Counsel for the defendant represented that (1) Schulman is a cardiologist with approximately twenty years of experience, who testified for about three hours on the standard of care and causation, and prepared models to aid his testimony; (2) Angelo is a hospitalist from Yale with more than eleven years in practice, who testified for approximately an hour and a half; (3) Pleet is a urologist with more than twenty years of experience, who testified for approximately one hour and fifteen minutes as to the standard of care; and (4) Holland is a muse with more than thirty years of experience. Ultimately, the court granted the defendant’s motion to compel, stating, “I heard the doctors and nurses, and I find their fees to be reasonable.” The plaintiff subsequently amended her appeal to include a claim challenging the court’s determination as to the reasonableness of the experts’ fees.

A

The plaintiff claims that the trial court contravened this court’s decision in Boczer v. Sella, 113 Conn. App. 339, 966 A.2d 326 (2009) (Boczer I), by relying solely upon the defense experts’ invoices in determining the reasonableness of their fees. In. Boczer I, the defendant filed a bill of costs setting forth its expert witness fees. At a hearing before the court clerk, the defendant presented invoices for each expert and stated each witness’ medical specialty. Id., 345. In light of this evidence, the clerk determined that the fees were reasonable. Id., 344-45. The plaintiff filed a motion for judicial review of the clerk’s assessment, which the trial court denied. Id., 342. On appeal, this court concluded that “[sjtanding alone, [the] invoices do not establish that the costs stated therein are reasonable. In the absence of any evidence relating to the reasonableness of the fees listed in the invoices, we conclude that the court’s determination was premise!! on an inadequate evidentiary foundation.” (Footnote omitted.) Id., 345.

Our analysis of this claim begins with General Statutes § 52-260 (f), which provides in pertinent part that “[wjhen any practitioner of the healing arts . . . registered nurse, advanced practice registered nurse or licensed practical nurse . . . gives expert testimony in any action or proceeding, including by means of a deposition, the court shall determine a reasonable fee to be paid . . . .” “[Tjhe reasonableness of a particular fee is a question of fact. [W]e will upset a factual determination of the trial court only if it is clearly erroneous. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence ⅜ support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Boczer I, supra, 113 Conn. App. 344.

Trial courts frequently have applied the following multifactor test in determining the reasonableness of expert fees: “(1) the [witness’] area of expertise; (2) the education and training required to provide the expert insight that is sought; (3) the prevailing rates of other comparably respected available experts; (4) the nature, quality, and complexity of the discovery responses provided; (5) the fee actually charged to the party who retained the expert; (6) fees traditionally charged by the expert on related matters; and (7) any other factor likely to assist the court in balancing the interest implicated by [the applicable rule]. . . . Ultimately, however, it is in the court’s discretion to set an amount that it deems reasonable.” (Internal quotation marks omitted.) Rose v. Jolly, 48 Conn. Supp. 606, 607, 854 A.2d 824 (2004) (adopting multifactor test assessing reasonableness of deposition fees, under Practice Book § 13-4, from federal case, Fisher-Price, Inc. v. Safety 1st, Inc., 217 F.R.D. 329, 333 [D. Del. 2003]); see Young v. Debiase, Superior Court, judicial district of New Britain, Docket No. CV-07-5003992-S (September 16, 2010) (50 Conn. L. Rptr. 611, 612-13) (finding experts’ trial testimony fees reasonable based on multifactor test).

On remand from this court following our decision in Boczer I, the trial court relied upon this multifactor test in assessing the reasonableness of the experts’ fees, and the plaintiff once again appealed to this court, this time challenging the trial court’s determination of the reasonableness of the experts’ fees. Boczer v. Sella, 135 Conn. App. 360, 363, 41 A.3d 1162 (2012) (Boczer II). This court concluded that the trial court’s determination as to the reasonableness of the experts’ fees was proper where “[e]ach witness testified as to his expertise, his experience and the basis on which he computed his fee.” Id., 364. Similarly, in the present case, the court’s determination as to the reasonableness of the defense experts’ fees was based on the experts’ expertise and experience, insofar as the court considered their trial testimony, as well as representations made by counsel for the defendant at the hearing on the defendant’s motion to compel payment of fees.

At trial, the court heard testimony on both direct and cross-examination as to the experts’ experience and qualifications. Also, throughout the trial, the court independently observed the length, content, and complexity of each witness’ testimony. See Celentano v. Oaks Condominium Assn., 265 Conn. 579, 619, 830 A.2d 164 (2003) (“[a] trial court may rely on its own general knowledge of the trial itself to supply evidence in support of an award of attorney’s fees” [internal quotation marks omitted]); compare Fortier v. Salm, Superior Court, judicial district of Hartford, Docket No. CV-02-0813312-S (October 27, 2009) (48 Conn. L. Rptr. 702) (costs taxed by presiding judge at trial), with Boczer I, supra, 113 Conn. App. 344-45 (costs taxed by clerk).

Additionally, at the hearing on the defendant’s motion to compel payment of fees, counsel for the defendant recited the particular specialties, years of experience, and length and contents of each expert’s testimony. Moreover, counsel for the defendant presented evidence of “the prevailing rates of other comparably respected available experts” through its representation that the fee for one of the plaintiffs experts was over $2000 more than the fees for four of the defendant’s experts. See Fortier v. Salm, supra, 48 Conn. L. Rptr. 703 (finding defense expert witness fees reasonable where fees were lower than those charged by plaintiffs experts); Brought v. Batson, Superior Court, judicial district of Danbury, Docket No. CV-02-0347176-S (December 17, 2003) (36 Conn. L. Rptr. 189, 192) (finding expert’s flat fee unreasonable as compared to prevailing rates of comparable experts and assessing reasonable fee).

Thus, contrary to the plaintiffs contention, the court did not rely solely upon the experts’ invoices in determining that their fees were reasonable. Rather, the court’s determination was supported by evidence of the experts’ “expertise . . . experience and the basis on which [they] computed [their] fee[s].” Boczer II, supra, 136 Conn. App. 364. Therefore, we conclude that the court properly determined that the fees charged by the defendant’s expert witnesses were reasonable.

B

Finally, the plaintiff claims that the trial court improperly taxed the plaintiff with the travel costs associated with the defendant’s expert witness fees. “The question of whether trial costs are taxable is a question of law over which our review is plenary.” Smith v. Andrews, supra, 289 Conn. 81. Pursuant to § 62-260 (f), “[w]hen any practitioner of the healing arts . . . registered nurse, advanced practice registered nurse or licensed practical nurse . . . gives expert testimony in any action or proceeding, including by means of a deposition, the court shall determine a reasonable fee to be paid . . . and taxed as part of the costs in lieu of all other witness fees payable to [them] . . . .” This statute “neither authorizes a reasonable fee for an expert’s trial preparation time as distinguished from his or her in-court trial testimony, nor expressly authorizes costs for an expert’s travel, transportation and hotel costs. . . . [B]y its express terms, § 52-260 (f) treats as taxable only those costs that arise from an expert’s testimony at trial.” (Citation omitted; internal quotation marks omitted.) Smith v. Andrews, supra, 87.

Here, the invoices of Pleet and Holland delineate their travel expenses. Specifically, Pleet’s invoice sets forth a $30 travel expense based on sixty miles of travel at fifty cents per mile. Holland’s invoice sets forth a $100 charge for 140 miles at fifty cents per mile. We conclude that the trial court improperly taxed Pleet’s and Holland’s travel expenses to the plaintiff in violation of § 52-260 (f).

The judgment is reversed only with regard to the taxing of Pleet’s and Holland’s travel costs and the case is remanded with direction to recalculate costs consistent with the preceding paragraph; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       On February 7,2013, this court granted the plaintiffs motion to substitute Karen Mae Homes-Previti, the administratrix of the estate of Arnold F. Holmes, as the party plaintiff.

       Notably, the defendant argues that the plaintiff did not properly preserve for appeal her claim challenging the court’s denial of her motion to set aside the verdict, predicated on improper evidentiary rulings, because the plaintiff failed to take exception to such contested evidentiary rulings at trial. See State v. Jorge P., 308 Conn. 740, 754, 66 A.3d 869 (2013) (“the determination of whether a claim has been properly preserved will depend on a careful review of the record to ascertain whether the claim on appeal was articulated below with sufficient clarity to place the trial court on reasonable notice of that very same claim”). We need not address, however, whether the plaintiff properly preserved for our review an evidentiary claim because the issue presented on appeal is whether the court improperly denied the plaintiffs motion to set aside the verdict—not whether the court made improper evidentiary rulings. Cf. Rubel v. Wainwright, 86 Conn. App. 728, 746-46, 862 A.2d 863 (holding that plaintiffs claim challenging court’s eviden-tiary ruling was not preserved for appeal where it was raised for first time in motion to set aside verdict), cert. denied, 273 Conn. 919, 871 A.2d 1028 (2005).
      Additionally, in connection with her claim that the court improperly denied her motion to set aside the verdict, the plaintiff appears to argue that her ability to fully and fairly litigate the case was unduly prejudiced by the defendant’s failure to produce the analgesic policy in response to the plaintiffs request for the defendant’s policies pertaining to the transfer of patients. We conclude that this aspect of the claim was not preserved for our review because the court did not address it in its denial of the plaintiffs motion to set aside the verdict. An explanation of the court’s decision regarding this claim is necessary to our determination of whether the court properly exercised its discretion. “Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting this claim would be entirely speculative.” (Intemal quotation marks omitted.) Keith E. Simpson Associates, Inc. v. Ross, 126 Conn. App. 539, 544 n.7, 9 A.3d 394 (2010).

       General Statutes § 62-268 (a) provides: “Any party who intends to appeal or has appealed a final judgment of the Superior Court, or of a judge thereof, an appeal from which properly lies, may move the court in writing for a new trial if the judge who rendered judgment, or the stenographer or court reporter who took the testimony at the original trial therein if his stenographic notes are not decipherable, has died or become incapable of taking the action necessary for the appeal, and the partly had complied with the rules relating to the taking of appeals before such death or incapacity.”

       Practice Book § 61-10 (a) provides that “[t]he appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. . . . [T]he term ‘record’ . . . includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.”

       The plaintiffs motion was actually titled “motion for mistrial” instead of “motion for new trial. ” The substance of the motion, however, is consistent with a motion for a new ¿ral, pursuant to Practice Book § 42-53 and General Statutes § 52-268 (a). Therefore, we will treat this motion as a motion for a new trial in light of the well settled principle that “[i]t is the substance of a motion . . . that governs its outcome, rather than how it is characterized in the title given to it by the movant.” State v. Taylor, 91 Conn. App. 788, 792, 882 A.2d 682, cert. denied, 276 Conn. 928, 889 A.2d 819 (2005).

       At oral argument before this court, the plaintiff conceded that she is not challenging the reasonableness of the defense experts’ deposition fees.

       In fact, at the hearing on the defendant’s motion to compel payment of fees, the trial court distinguished Boczer I, supra, 113 Conn. App. 339, from the present case, concluding that, in Boczer I, the clerk, and not the presiding judge at trial, had determined the reasonableness of the experts’ fees in the first instance.

       To the extent that the plaintiff claims that the court improperly taxed the travel expenses of Schulman and Angelo, we conclude that she failed to demonstrate that the court factored travel costs into their fees. We “do not presume error on the part of the trial court. . . . Rather, we presume that the trial court, in rendering its judgment . . . undertook the proper analysis of the law and the facts.” (Citations omitted; internal quotation marte omitted.) Brett Stone Painting & Maintenance, LLC v. New England Bank, 143 Conn. App. 671, 681, 72 A.3d 1121 (2013).


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    KIM HINDE v. SPECIALIZED EDUCATION OF CONNECTICUT, INC.
    (AC 35265)
    Lavme, Robinson and Alvord, Js.

      Argued October 9, 2013
    officially released January 28, 2014

      Katrena Engstrom, with whom, on the brief, was John R. Williams, for the appellant (plaintiff).

      Sandra Rachel Stanfield, for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ROBINSON, J.

The plaintiff, Kim Hinde, appeals from the trial court’s judgment dismissing her action for failure to exhaust her administrative remedies against the defendant, Specialized Education of Connecticut, Inc., before filing her employment discrimination action directly with the Superior Court. The plaintiff claims that the court erred by (1) misinterpreting a prior order dismissing her original complaint, (2) failing to make findings as to her arguments of estoppel and alter ego, and (3) concluding that she failed to exhaust her administrative remedies with respect to both her cause of action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), and the Connecticut Fair Employment Practices Act, General Statutes § 46a-51 et seq. (CFEPA). We affirm the trial court’s judgment of dismissal.

The record reveals the following facts and procedural history necessary to our resolution of the plaintiffs appeal. The plaintiff, a teaching assistant at High Road School in Wallingford, filed a complaint and charge of discrimination with the Commission on Human Rights and Opportunities (commission) against Specialized Education Services, Inc. (SESI), in March, 2011, alleging that, because of her gender, she had been sexually harassed and subjected to a hostile work environment. After a mandatory mediation conference between the plaintiff and SESI, the plaintiff received a release of jurisdiction in December, 2011, to file an action against SESI in the Superior Court.

On February 24, 2012, the plaintiff filed her original complaint (February, 2012 complaint) in the New Haven Superior Court. When filing that complaint, the plaintiff listed “Specialized Student Education Services, Inc.,” as the defendant on the summons and caption of the complaint, but named “Specialized Education of Connecticut (‘SESI’)” as the defendant in the body of the complaint. The plaintiff referred to the defendant as SESI throughout the entire complaint and served SESI with the complaint and summons.

On April 12, 2012, the plaintiff filed a motion to correct the caption, requesting that the caption list “Specialized Education of Connecticut, Inc.,” as the defendant. The defendant filed an objection to the motion to correct the caption, stating that it was not proper to substitute an entity that had not been served properly. The court, Silbert, J., denied the plaintiffs motion.

SESI then filed a motion to dismiss, claiming lack of personal jurisdiction. It argued that there was no personal jurisdiction for the court to hear the case because the plaintiff was not an employee of SESI, but rather an employee of the defendant, which was a distinct and separate entity, and was not named as a defendant in the February, 2012 complaint. SESI supported its motion with an affidavit from Nancy Kelly, Director of Human Resources for SESI, who averred that the defendant and SESI were separate, independent entities, and that, at all times pertinent to the complaint, the plaintiff was not an employee of SESI.

The plaintiff filed an objection to the motion to dismiss, arguing that SESI was the parent corporation of the defendant, and that SESI had represented itself to the plaintiff as her employer. Accordingly, the plaintiff argued that SESI had waived the issue of personal jurisdiction, or, alternatively, that SESI should be estopped from claiming that it was not the plaintiffs employer. The plaintiff supported her objection with administrative paperwork she had in her possession bearing SESI’s logo.

After a hearing held on May 21,2012, the court, Frech-ette, J., rejected SESI’s claim of lack of personal jurisdiction, reasoning that SESI should have brought its motion to dismiss under a claim of lack of subject matter jurisdiction. Accordingly, the court ordered supplemental briefing on this issue. The court also ordered supplemental briefing on how the plaintiffs arguments of waiver and estoppel would apply to a motion to dismiss grounded in lack of subject matter jurisdiction. SESI filed a supplemental brief and affidavit in support of its motion to dismiss addressing those issues. An affidavit from Brooke Violante, the defendant’s Chief School Director, was attached thereto, attesting that the defendant and SESI were separate entities, and that the plaintiff was an employee of the defendant for all times relevant to the plaintiffs complaint. The plaintiff did not file a supplemental brief, and neither party requested an evidentiary hearing. The court granted the motion to dismiss on September 24, 2012, after finding that “Specialized Student Education Services, Inc.,” presented “uncontroverted evidence via affidavit that it was not the employer of the plaintiff.” The plaintiff did not appeal from that order, and neither party moved for an articulation.

On October 11, 2012, the plaintiff filed the present action against the defendant in the Meriden Superior Court. The defendant then filed a motion to dismiss claiming that, pursuant to CFEPA and Title VII, the plaintiff failed to exhaust her administrative remedies against the defendant prior to filing the action in the Superior Court. The plaintiff filed an opposition to the motion to dismiss to which the defendant replied. The plaintiff argued that the exhaustion requirement should be set aside by the corut under the doctrines of waiver and estoppel because SESI was the alter ego of the defendant, and, therefore, the defendant was aware of, and had participated in, the proceedings before the commission. The matter was heard on short calendar on December 10, 2012. Again, neither party requested an evidentiary hearing. In its December 12, 2012 memorandum of decision, the court, J. Fischer, J., noted that there already was a judicial determination by Judge Frechette that SESI was not the plaintiffs employer, and that the defendant and SESI were separate entities. Accordingly, the court concluded that the plaintiff failed to exhaust her administrative remedies as to the defendant and dismissed the plaintiffs action. This appeal followed.

We begin by setting forth our standard of review. “In an appeal from the granting of a motion to dismiss on the ground of subject matter jurisdiction, this court’s review is plenary. A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Chayoon v. Sherlock, 89 Conn. App. 821, 825-26, 877 A.2d 4, cert. denied, 276 Conn. 913, 888 A.2d 83 (2005), cert. denied, 547 U.S. 1138, 126 S. Ct. 2042, 164 L. Ed. 2d 797 (2006).

I

The plaintiff claims that the court erred in its interpretation of Judge Frechette’s order granting SESI’s motion to dismiss the February, 2012 complaint. The plaintiff argues that Judge Frechette dismissed the claims against Specialized Student Education Services, Inc., not SESI, and that Judge Frechette did so because no such corporation existed, and because the plaintiffs counsel acknowledged that listing Specialized Student Education Services, Inc., as the defendant was a misnomer. Additionally, the plaintiff contends that the court erred in concluding that Judge Frechette had found the defendant and SESI to be separate entities. We do not agree.

“Because [t]he construction of a judgment is a question of law for the court . . . our review of the . . . claim is plenary. As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. . . . Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The judgment should admit of a consistent construction as a whole.” (Citation omitted; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 91-92, 952 A.2d 1 (2008).

Judge Frechette specifically found that “Specialized Student Education Services, Inc., has submitted uncon-troverted evidence via affidavit that it was not the employer of the plaintiff. (See affidavit of Nancy Kelly, attached to [the] motion to dismiss.) The plaintiff did not dispute at oral argument that she sued the incorrect entity, and that [it] was not her employer.” The plaintiff argues that this ,s a finding that Specialized Student Education Services, Inc.—an entity that the plaintiff concedes does not exist—is not the plaintiffs employer, and therefore, that it is an order dismissing the plaintiffs February, 2012 complaint against Specialized Student Education Services, Inc. Additionally, the plaintiff argues that there is no finding by Judge Frechette in his order that SESI and the defendant are separate and independent entities. The defendant argues that this is a finding that SESI—the party that the plaintiff actually served, that appeared in court and that submitted affidavits—is not the plaintiffs employer, and therefore, that it is an order dismissing the plaintiffs complaint against SESI. The defendant also argues that it is implicit in Judge Frechette’s finding that he rejected the plaintiffs claim that SESI was the alter ego of the defendant, and therefore, that it is a finding that SESI and the defendant are separate and independent entities. Although Judge Frechette’s order did not explicitly dismiss the complaint against SESI or find that the defendant and SESI are two separate entities, the record supports this conclusion.

We first address the plaintiffs argument that Judge Frechette’s order finds that Specialized Student Education Services, Inc., was not the plaintiffs employer. At the September 24, 2012, hearing, Judge Frechette acknowledged that Specialized Student Education Services, Inc., was a misnomer on the summons for SESI. Additionally, the record reveals that SESI was the entity that was served by the plaintiff, that responded to the complaint, that appeared in court and that submitted an affidavit by Kelly. Thus, Judge Frechette’s reference to the filing of Kelly’s affidavit in the order supports the conclusion that his finding pertained to SESI as it was SESI that submitted evidence via affidavit to the court. We therefore construe Judge Frechette’s reference in his order to Specialized Student Education Services Inc., as referring to SESI, and, accordingly, a finding that SESI is not the plaintiffs employer.

As for the plaintiffs argument that the order does not find that the defendant and SESI are separate entities, the record does not support this interpretation. The plaintiff originally argued the theory of alter ego in her objection to SESI’s motion to dismiss, in which she contended that SESI was the parent corporation of the defendant, and, therefore, that SESI should be held hable as the plaintiffs employer. Judge Frechette asked for supplemental briefing on this issue, and heard oral argument from both parties as to whether the defendant and SESI were an integrated enterprise or two separate and distinct entities. SESI submitted affidavits from KeUy and Violante attesting that the entities were separate and distinct, and that the plaintiff was an employee of the defendant only. The plaintiff submitted no affidavits or testimony to refute these affidavits. In light of these circumstances and Judge Frechette’s finding that SESI is not the plaintiffs employer, we necessarily must construe Judge Frechette’s order as implicitly rejecting the plaintiffs claim that SESI is the alter ego of the defendant. It would be illogical for Judge Frechette to determine that SESI was not the plaintiffs employer had he found that SESI and the defendant were an integrated enterprise. We therefore conclude that the court did not err in its interpretation of Judge Frechet-te’s order.

II

The plaintiff also claims that the court erred in not making findings as to her arguments of estoppel and alter ego. The plaintiff contends that the defendant should be estopped from claiming that she did not properly fulfill the exhaustion requirement prior to filing her employment discrimination action because the defendant allowed SESI to hold itself out as the plaintiffs employer and Violante, an employee of the defendant, allegedly participated in the proceedings before the commission against SESI. The plaintiff further contends that the exhaustion requirement should be waived with regard to the defendant because SESI is the alter ego of the defendant and the court’s refusal to address this issue because it was not pleaded in the plaintiffs complaint was error. We are not persuaded.

“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 court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide. . . . Our Supreme Court has determined that when ruling upon whether a complaint survives a motion to dismiss, 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. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Citations omitted; emphasis altered; internal quotation marks omitted.) Bailey v. Medical Examining Board for State Employee Disability Retirement, 75 Conn. App. 215, 219, 815 A.2d 281 (2003). “Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.” (Footnote omitted.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988).

Our review of the plaintiffs complaint reveals that the plaintiff failed to allege any facts sufficient to support an allegation of estoppel or alter ego. Additionally, the plaintiff failed to supplement the record with supporting affidavits as to facts not apparent on the record, or to request an evidentiary hearing in which the plaintiff could have presented testimony on these two claims. See Practice Book § 10-31 (b) (“[a]ny adverse party who objects to [a motion to dismiss] shall . . . where appropriate, [file and serve] supporting affidavits as to facts not apparent on the record”); see also footnote 5 of this opinion. The only thing presented by the plaintiff to support her arguments of estoppel and alter ego was her counsel’s assertions and argument at the hearing on the motion to dismiss. It is well established that representations of counsel are not evidence. See Martin v. Liberty Bank, 46 Conn. App. 559, 562, 699 A.2d 305 (1997). Therefore, on the basis of the allegations on the face of the complaint taken in the light most favorable to the plaintiff, there exists no foundation on which the plaintiff could support her arguments of estoppel and alter ego. Accordingly, we conclude that the court did not err in failing to make express findings as to these arguments when determining whether to dismiss the plaintiff’s action for lack of subject matter jurisdiction.

Iff

We now turn our attention to the plaintiffs claim that the court erred by concluding that the plaintiff had failed to exhaust her administrative remedies. The plaintiff argues that her failure to obtain a notice of right to sue letter is not a jurisdictional bar to a civil action, but a precondition to filing that can be, and should have been, waived by the trial court. To support her argument, the plaintiff relies on federal case law that has held that fulfilling procedural requirements, such as timely filing a complaint in the appropriate administrative agency, or receiving a right to sue letter, are preconditions to bringing a Title VII claim in federal court, rather than a jurisdictional requirement, and as such, these conditions can be waived. The plaintiff argues that, under this jurisprudence, the court erred in dismissing her Title VII cause of action for failure to exhaust her administrative remedies. Further, the plaintiff argues that the federal jurisprudence should apply to her claim under CFEPA, and, accordingly, she argues that the court erred in dismissing her state cause of action for failing to exhaust her administrative remedies. We do not agree.

The following facts and procedural history are relevant to the resolution of this claim. In March, 2011, the plaintiff filed a charge of discrimination with the commission against SESI, along with a complaint alleging sexual harassment and gender discrimination. In December, 2011, the plaintiff received a release of jurisdiction from the commission granting .the plaintiff permission to file an action against SESI in the Superior Court. The plaintiff commenced the February, 2012 action alleging in count one of her complaint that SESI violated CFEPA and in count two of her complaint that it violated Title VII. After a finding by the court that SESI was not the plaintiffs employer, the court dismissed the action against SESI. The plaintiff then filed identical claims against the defendant in the Superior Court.

A

We first address the plaintiffs claim that the court erred in dismissing her Title VII cause of action for failure to exhaust her administrative remedies. The United States Supreme Court has held that “filing a timely charge of discrimination with the [Equal Employment Opportunity Commission] is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982). The Supreme Court reasoned that the legislature listed the filing requirement in a separate section of Title VII than the section that grants jurisdiction to the federal district courts. Id., 393-94. Furthermore, the Supreme Court reasoned that “[b]y holding compliance with the filing period to be not a jurisdictional prerequisite to filing a Title VII suit, but a requirement subject to waiver as well as tolling when equity so requires, we honor the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement, to give prompt notice to the employer.” Id., 398.

Since the Supreme Court’s holding in Zipes, some federal circuit courts have held that “all Title VII procedural requirements to suit are henceforth to be viewed as conditions precedent to suit rather than as jurisdictional requirements”; Fouche v. Jekyll Island-State Park Authority, 713 F.2d 1518, 1525 (11th Cir. 1983); while other federal circuit courts have taken a piecemeal approach to extending the holding in Zipes to other procedural requirements. See Rivers v. Board of Education, 143 F.3d 1029, 1031 (6th Cir. 1998). When presented with the issue of extending the Zipes holding to the right to sue letter requirement, every federal circuit court has decided that that procedural requirement is a precondition subject to equitable tolling, estoppel and waiver. See, e.g., Pietras v. Board of Fire Commissioners, 180 F.3d 468, 473-74 (2d Cir. 1999); Forehand v. Florida State Hospital, 89 F.3d 1562, 1567-69 (11th Cir. 1996); McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 505 (1st Cir. 1996); Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1487 (6th Cir. 1989); Gooding v. Warner-Lambert Co., 744 F.2d 354, 358 (3d Cir. 1984).

The plaintiff contends that the court should have waived the preconditions of timely filing a charge of discrimination and obtaining a right to sue letter against the defendant because the defendant should have been estopped from claiming that it did not have notice of the administrative proceedings. The plaintiff argues that because employees of the defendant allegedly appeared at the hearing before the commission against SESI and because SESI is the alter ego of the defendant, the defendant had sufficient notice of the proceedings. The plaintiff failed to seek an articulation of the court’s judgment; however, we necessarily must conclude that it is implicit in the court’s finding that the plaintiff failed to exhaust her administrative remedies that the court rejected the plaintiffs arguments of estoppel and alter ego. As discussed in part II of this opinion, the plaintiff failed to allege any facts sufficient to support an allegation of estoppel or alter ego. On the basis of the limited record before us, we conclude that the court did not err in its determination that the plaintiff failed to exhaust her administrative remedies with respect to her Title VII claim.

B

We next; consider the plaintiffs claim that the court erred in dismissing her claim under CFEPA after finding that she failed to exhaust her administrative remedies. Although the plaintiff is correct that Connecticut courts turn to federal precedent for guidance in construing our antidiscrimination statutes; Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996); we are not bound to automatically adopt federal precedent, and the law regarding exhausting administrative remedies with respect to CFEPA has been well settled in the wake of Zipes. “The provisions of . . . CFEPA that prohibit discriminatory employment practices . . . must be read in conjunction with the act’s provisions for the filing of complaints concerning alleged discriminatory practices with the [commission].” (Citations omitted.) Sullivan v. Board of Police Commissioners, 196 Conn. 208, 215, 491 A.2d 1096 (1985). General Statutes § 46a-83 (b) provides in relevant part: “Within ninety days of the filing of the respondent’s answer to the complaint, the [commission’s] executive director or the executive director’s designee shall conduct a merit assessment review. The merit assessment review shall include the complaint, the respondent’s answer and the responses to the commission’s requests for information, if any, and the complainant’s comments, if any, to the respondent’s answer and information responses . . . .” “After finding that there is reasonable cause to believe that a discriminatory practice has been or is being committed as alleged in the complaint, an investigator shall attempt to eliminate the practice complained of by conference, conciliation and persuasion within fifty days of the finding.” General Statutes § 46a-83 (g). If the investigator fails to eliminate a discriminatory practice, the investigator must certify the complaint, hold a hearing on the matter, and order appropriate relief. General Statutes §§ 46a-84 and 46a-86. Thereafter, any party aggrieved by a final order of the commission may appeal to the Superior Court. General Statutes §§ 46a-94a (a) and 4-183.

If a party has filed a timely complaint with the commission and has Obtained a release of jurisdiction, General Statutes § 46a-100 allows that party to file an. action directly with the Superior Court without a ruling from the commission. General Statutes § 46a-101 (a), however, mandates that “[n]o action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission . . . .”

“Read in its entirety . . . CFEPA not only defines important rights designed to rid the workplace of discrimination, but also vests first-order administrative oversight and enforcement of these rights in the commission. It is the commission that is charged by the act with initial responsibility for the investigation and adjudication of claims of employment discrimination. That the act does not provide an unconditional private right of action for claimants like the plaintiff is underscored by the terms of General Statutes § 46a-99, which expressly provides such a direct right of action when the allegedly discriminatory employer is a state agency.” Sullivan v. Board of Police Commissioners, supra, 196 Conn. 216. “Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an. administrative proceeding, unless and until that remedy has been sought in the administrative forum. ... In the absence of exhaustion of that remedy, the action must be dismissed.” (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).

Because the court properly interpreted Judge Frech-ette’s order as a finding that the defendant and SESI are separate and distinct entities, under current Connecticut precedent, it was proper for the court to conclude that the plaintiff failed to exhaust her administrative remedies as to the defendant. The court’s conclusion was proper because the plaintiff did not commence an action against the defendant with the commission, nor did the plaintiff receive a release from the commission to sue the defendant. The plaintiff had administrative remedies available to her that could have afforded her meaningful relief under the federal and state statutes that govern her claim of gender discrimination. Her failure to bring her complaint against the defendant to the commission foreclosed her access to judicial relief because it deprived the trial court of jurisdiction to hear her complaint.

The plaintiff argues that we should adopt the federal rule discussed in part III A of this opinion and apply it to CFEPA, thereby holding that the failure to obtain a right to sue letter is a precondition that may be waived by the court upon proper compelling circumstances instead of a jurisdictional requirement. Because our Supreme Court has determined that a plaintiff who “fail[s] to follow the administrative route that the legislature has prescribed for [her] claim of discrimination . . . lacks the statutory authority to pursue that claim in the Superior Court”; Sullivan v. Board of Police Commissioners, supra, 196 Conn. 216; both the trial court and this court are bound by its decision. See Martin v. Plainville, 40 Conn. App. 179, 182, 669 A.2d 1241 (1996) (Appellate Court, as intermediate court, prevented from “reexamining or reevaluating Supreme Court precedent”), aff'd, 240 Conn. 105, 689 A.2d 1125 (1997); Lash v. Aetna Casualty & Surety Co., 36 Conn. App. 623, 624, 652 A.2d 526 (1995) (Appellate Court “bound by Supreme Court precedent”), aff'd, 236 Conn. 318, 673 A.2d 84 (1996). Accordingly, we conclude that the court did not err in dismissing the plaintiffs cause of action under CFEPA for failing to exhaust her administrative remedies.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint also named Edward Botwick and Ronald Chomicz as defendants. They axe not, however, parties to the present action and appeal.

       The certified mail receipt shows that, although the plaintiff addressed the summons and complaint to “Specialized Student Education Services, Inc.” in Yardley, Pennsylvania, Nancy Kelly, Director of Human Resources for SESI, accepted service.

       Although the plaintiff argued to the court, and continues to argue on appeal that SESI is the alter ego of the defendant, the plaintiff stated at a May 21,2012 hearing that there appeared to be two defendants and requested leave to file an amended complaint. The court denied leave to amend the complaint because a proper motion was not before it at that time. The plaintiff failed to file a motion requesting leave to amend the complaint thereafter.

       The plaintiff appended the following exhibits bearing SESI’s logo: a letter from SESI regarding the plaintiffs request for a foreseeable medical leave form; a foreseeable medical leave form; a staff training manual; and an unsigned employment contract for the plaintiff.

       In adjudicating a motion to dismiss, the trial court must hold an evidentiary hearing to determine disputed facts necessary to the resolution of the motion. See Bellman v. West Hartford, 96 Conn. App. 387, 396, 900 A.2d 82 (2006). The plaintiff, however, does not raise this issue as a claim on appeal, and therefore, we need not address whether it was error for the court not to hold an evidentiary hearing to determine whether SESI was the alter ego of the defendant.

       Specialized Student Education Services, Inc., is the entity that the plaintiff named as the defendant on the summons and in the caption of the February, 2012 complaint. Both pavties, however, acknowledge that an entity by this name does not exist.

       We note that the February, 2012 complaint remains open as the motion to dismiss did not apply to the claims against the individual defendants, Edward Botwick and Ronald Chomicz.

       We note that the plaintiff filed this action in a different judicial district.

       The transcript from the September 24, 2012 hearing reads:
      “[The Plaintiffs Counsel]: So, you see the heading on [the paperwork is] the Delaware company.
      “The Court: Well, it’s [SESI].
      “[The Plaintiffs Counsel]: Yep.
      “The Court: As opposed to Specialized Student Education Services, Inc.
      “[The Plaintiffs Counsel]: Right. That’s the wrong name. I—That’s correct. That’s the wrong name.
      “The Court: It’s a misnomer on the—on the writ [of summons].
      “[The Plaintiffs Counsel]: Yea.”


author: BEACH, J.

text:
    TROY MOZELL v. COMMISSIONER OF CORRECTION
    (AC 34568)
    Beach, Alvord and Bear, Js.

      Argued September 24, 2013
    officially released January 28, 2014

      Cheryl A. Juniewic, assigned counsel, for the appellant (petitioner).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Clifton, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

BEACH, J.

The petitioner, Troy Mozell, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing the fourth count of his petition for a writ of habeas corpus “with prejudice.” The petitioner claims that the court erred in (1) denying his oral motion to amend his petition, and (2) accepting his withdrawal of count four of his petition “with prejudice.” The petitioner also claims that the court abused its discretion in denying his petition for certification to appeal. We dismiss the appeal with respect to the first claim. With respect to the second claim, we agree that the court abused its discretion in denying the petition for certification to appeal, but conclude that the petitioner cannot prevail on the merits of his claim.

This court has previously set forth the following facts that the jury reasonably could have found at the petitioner’s underlying criminal trial. In March, 1991, the petitioner and others were under surveillance by the New Haven police as suspected members of a drug ring. State v. Mozell, 36 Conn. App. 672, 673, 652 A.2d 1060 (1995). After obtaining search warrants, the police found a .38 caliber handgun at the residence of Nicole Lowery and a safe containing a large quantity of crack cocaine at a residence of another suspected member of the drug ring. Id. The petitioner was arrested and later convicted, following a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 2 la-278, and conspiracy to sell narcotics in violation of General Statutes §§ 21a-278 and 53a-48. Id. His conviction was upheld on appeal. Id., 672. In his first habeas petition, the petitioner alleged that his appellate counsel was ineffective for failing to raise various issues on direct appeal. Mozell v. Commissioner of Correction, 51 Conn. App. 818, 820, 725 A.2d 971 (1999). The habeas court’s dismissal of his petition was upheld on appeal. Id., 824. The petitioner filed a second habeas petition, which the habeas court denied. The denial of his petition by the habeas court was affirmed on appeal. See Mozell v. Commissioner of Correction, 120 Conn. App. 902, 990 A.2d 391, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010).

In September, 2009, the petitioner filed his third habeas petition, which is the subject of this appeal. In his second amended petition, the petitioner alleged ineffective assistance of trial counsel (count one), direct appellate counsel (count two), first habeas counsel (count three), and second habeas counsel (count four). The respondent, the Commissioner of Correction, moved to dismiss counts one through three of the second amended petition on the ground that those counts “present the same grounds as a prior petition previously denied and [fail] to state new facts or proffer new evidence not reasonably available at the time of the prior petition.”

On February 22, 2012, the day on which the habeas trial was to begin, the court granted the respondent’s motion to dismiss, reasoning that “counts one, two and three [of the second amended petition] involve the same or substantially the same grounds that have or could have been raised in prior petitions, seek the same relief, and fail to allege any facts that were not reasonably available to the petitioner at the time the other petitions were pursued.” The court noted that “[t]hat leaves us with count four, which is an ineffective assistance claim against prior habeas counsel . . . .” When the court inquired as to whether the petitioner’s counsel was ready to proceed on count four, the petitioner’s counsel asked the court for permission to amend the habeas petition, and the court, at counsel's request, permitted the petitioner to address the court personally to state the nature of the claims sought to be added. After the court denied this request, the petitioner, addressing the court himself, stated, “I wish to move to withdraw my habeas, then. There’s no sense of going through the whole process . . . .” The court called a recess to give the petitioner a chance to talk to his counsel.

Following the recess, the petitioner’s counsel informed the court that the petitioner still wanted to withdraw the habeas petition. The court stated that if the petitioner wanted to withdraw the fourth count, the court would accept the withdrawal, but only with prejudice. The court explained the ramifications, and, after providing the petitioner with another opportunity to discuss the matter with counsel, asked the petitioner if he still wanted to withdraw his petition, to which question the petitioner answered affirmatively. The court accepted the withdrawal and the words “with prejudice” were added to the withdrawal form. The court thereafter denied the petition for certification to appeal from the habeas court’s judgment. This appeal followed.

We begin by setting forth the applicable standard of review and procedural hurdles that the petitioner must surmount to obtain appellate review of the merits of a habeas court’s denial of the habeas petition following denial of certification to appeal. “In Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994), we concluded that . . . [General Statutes] § 52-470 (b) prevents a reviewing court from hearing the merits of a habeas appeal following the denial of certification to appeal unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas court. In Simms v. Warden, 230 Conn. 608, 615-16, 646 A.2d 126 (1994), we incorporated the factors adopted by the United States Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as the appropriate standard for determining whether the habeas court abused its discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... A petitioner who establishes an abuse of discretion through one of the factors listed above must then demonstrate that the judgment of the habeas court should be reversed on its merits. ... In determining whether the habeas court abused its discretion in denying the petitioner’s request for certification, we necessarily must consider the merits of the petitioner’s underlying claims to determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Castonguay v. Commissioner of Correction, 300 Conn. 649, 657-58, 16 A.3d 676 (2011).

I

The petitioner first claims that the court abused its discretion in denying his oral motion to amend his petition. We conclude that the court properly denied the petition for certification to appeal with regard to this claim.

“We will not disturb a habeas court’s grant or denial of permission to amend a pleading in the absence of a clear abuse of discretion. . . . Pursuant to Practice Book § 23-32, [t]he petitioner may amend the petition at any time prior to the filing of the return. Following the return, any pleading may be amended with leave of the judicial authority for good cause shown. . . . While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . . The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn. App. 1, 6-7, 916 A.2d 864, cert, denied, 282 Conn. 908, 920 A.2d 1017 (2007).

At the petitioner’s criminal trial, the gun found at Lowery’s residence was admitted into evidence over his objection. See State v. Mozell, supra, 36 Conn. App. 674. On February 22, 2012, at the habeas trial at issue, the petitioner himself addressed the court following the court’s granting of the respondent’s motion to dismiss. He asked that the court permit him to amend his petition to include a claim that the trial court violated his right to due process by (1) permitting into evidence Lowery’s gun and (2) by permitting the introduction into evidence of “gang evidence” at his criminal trial. The court denied the petitioner’s request and reasoned that, with reference to Practice Book § 23-32, the return already had been filed and that the petitioner had not shown good cause.

It was not an abuse of discretion for the court not to allow the petitioner to amend his petition on the day of trial to add additional claims regarding alleged improprieties that had occurred at his criminal trial. See Pierce v. Commissioner of Correction, supra, 100 Conn. App. 7 (not abuse of discretion for habeas court to deny motion to amend petition where return already filed and motion to amend filed two weeks prior to habeas trial). Additionally, on direct appeal in State v. Mozell, supra, 36 Conn. App. 677-78, this court already had held that the trial court abused its discretion in admitting Lowery’s gun into evidence and allowing the testimony of Lowery concerning the gun, but that the errors were harmless.

Because this issue is not debatable among jurists of reason and does not deserve encouragement to proceed further, and a court could not resolve the issue in a different manner; see Simms v. Warden, supra, 230 Conn. 618; the habeas court did not abuse its discretion in denying the petition for certificatio¡n to appeal from its denial of the habeas petition on this ground.

II

The petitioner next claims that the court erred in accepting his withdrawal of the fourth count of his petition “with prejudice.” We are not persuaded.

We begin by addressing the respondent’s argument that this claim is not ripe for review. The respondent reasons that the claim is not justiciable because withdrawal with prejudice was not necessarily binding on any subsequent habeas court and that any alleged prejudice is merely speculative until a future attempt to refile the petition is frustrated. We disagree.

“Ripeness is a justiciability doctrine, which implicates the court’s subject matter jurisdiction.” Bloom v. Miklovich, 111 Conn. App. 323, 336, 958 A.2d 1283 (2008). An issue regarding justiciability presents a question of law, over which review is plenary. See Esposito v. Specyalski, 268 Conn. 336, 347-48, 844 A.2d 211 (2004). “[T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements .... Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent [on] some event that has not and indeed may never transpire.” (Internal quotation marks omitted.) Janulawicz v. Commissioner of Correction, 310 Conn. 265, 271, 77 A.3d 113 (2013).

We conclude that the petitioner’s claim is ripe for review. Although the petitioner may choose not to refile the fourth count in a new petition, or perhaps may somehow be able to raise the claim in some forum in the future, the withdrawal of that count “with prejudice” does not constitute a hypothetical injury contingent on a future event. The court’s decision constituted a final adjudication ending this matter and concluded the petitioner’s rights with respect to this case. The term “with prejudice” means “[w]ith loss of all rights; in a way that finally disposes of a party’s claim and bars any future action on that claim . . . .” Black’s Law Dictionary (9th Ed. 2009); cf. Schmier v. McDonald’s, LLC, 569 F.3d 1240, 1242 (10th Cir. 2009) (under [Federal Rules of Civil Procedure] voluntary dismissal with prejudice operates as final adjudication on merits); Feinsod v. Noon, 261 N.J. Super. 82, 84, 617 A.2d 1234 (App. Div. 1992) (withdrawal with prejudice amounts to final disposition on matter).

Having determined that the claim is ripe, we now turn to the merits. The petitioner argues that the court erred in accepting his withdrawal “with prejudice” because a withdrawal with prejudice does not and should not exist within our jurisprudence. He reasons that the voluntariness of a withdrawal is nullified when a court accepts a withdrawal with prejudice. He further contends that the habeas court may grant a dismissal only for one or more of the reasons listed in Practice Book § 23-29 and that “[p]rior to the court granting a dismissal, an evidentiary hearing must be held on the issue.” (Footnote added.)

The disposition of withdrawal with prejudice exists within Connecticut jurisprudence. See Fine v. Commissioner of Correction, 147 Conn. App. 136, 81 A.3d 1209 (2013) (discussing canvass requirements for withdrawal with prejudice); see also Mason v. Commissioner of Correction, 80 Conn. App. 142, 144 n.1, 832 A.2d 1216 (2003), cert. denied, 267 Conn. 910, 840 A.2d 1172 (2004). Indeed, the disposition of withdrawal with prejudice is a logically compelling disposition in some circumstances. A plaintiff is generally empowered, though not without limitation, to withdraw a complaint before commencement of a hearing on the merits. See General Statutes § 52-80. A plaintiff is not entitled to withdraw a complaint without consequence at such hearing. See, e.g., Melendez v. Commissioner of Correction, 141 Conn. App. 836, 62 A.3d 629, cert. denied, 310 Conn. 921, 77 A.3d 143 (2013). The disposition of withdrawal with prejudice is well suited to the situation here. The petitioner, therefore, cannot prevail on his claim that the marking of “with prejudice” was erroneous on the ground that it did not precisely fall into a category specified in Practice Book § 23-29.

The withdrawal with prejudice did not violate the petitioner’s constitutional rights; the record shows it was knowing, voluntary and intelligent. Cf. Fine v. Commissioner of Correction, supra, 147 Conn. App. 147; see also Michigan Surgery Investment, LLC v. Arman, 627 F.3d 572, 575 (6th Cir. 2010) (before converting motion for voluntary dismissal without prejudice into dismissal with prejudice, under Federal Rules of Civil Procedure, court must [1] give notice of intention to do so, [2] give plaintiff opportunity to be heard in opposition and.'[3] must give plaintiff opportunity to withdraw request for voluntary dismissal and proceed with litigation). After the petitioner asked to withdraw the fourth count, the court informed him that the withdrawal would be “with prejudice.” The court explained to the petitioner the “potential ramifications” of a withdrawal with prejudice, stating: “That doesn’t mean that you can’t bring another petition in the future .... But what will happen, likely, is, when you bring that new petition—it could be before me if I’m still here; it could be before another judge—the [respondent] is going to argue that . . . you were allowed to withdraw your last petition with prejudice .... It’s a successive petition; that we’re all wound up here ready to go; that we have witnesses set up, and everybody is prepared to go forward. Whether another judge would agree with that or not, I don’t know. I can’t tell you what would happen, but it’s a risk that you’re taking, and that’s what you need to understand.” The court then gave the petitioner time to discuss the matter with his counsel, after which the court asked the petitioner: “[Y]ou have decided after talking to your attorney that you do, in fact, wish to withdraw your case, is that right?” The petitioner answered: “Yes.” The court adequately informed the petitioner of the ramifications, and the petitioner still wanted to proceed with the withdrawal.

The court acted within its discretion in accepting the withdrawal and adding, “with prejudice.” The court explained: “[T]oo much has happened today in connection with this case to allow it to be withdrawn not with prejudice .... And under the circumstances—many of which have been expressed today by [the respondent’s counsel]—that is why I am adding the with prejudice in this particular case.” The respondent’s counsel had expressed the notion that the petitioner should not be permitted to withdraw the fourth count without prejudice. Witnesses had been subpoenaed and were in court ready to proceed; expense such as setting up videoconferencing for a witness in Nevada had been incurred; evidence had begun, according to the respondent’s counsel, in that some exhibits had already been admitted in full; this was the petitioner’s third habeas action; and that “ [t]his is not exactly a new thing for [the petitioner] to get to trial and be unhappy and attempt to withdraw.” Habeas courts are given wide latitude in fashioning remedies. See Negron v. Warden, 180 Conn. 153, 166 n.6, 429 A.2d 841 (1980) (“[H]abeas corpus has traditionally been regarded as governed by equitable principles. . . . Among them is the principle that a suit- or’s conduct in relation to the matter at hand may disen-title him to the relief he seeks.” [Internal quotation marks omitted.]).

We determine that the court abused its discretion in denying the petition for certification to appeal on this claim because it is debatable among jurists of reason. We, conclude, however, that the petitioner cannot prevail on the merits of this claim because the court acted within its discretion in accepting the withdrawal of the fourth count but only “with prejudice.”

The appeal is dismissed as to the first claim and the judgment is affirmed as to the second claim.

In this opinion the other judges concurred.

       The petitioner’s counsel asked to “withdraw the current habeas petition . . . .” The court later clarified that it had granted the respondent’s motion to dismiss counts one through three, and asked the petitioner whether he was currently seeking to withdraw the remaining fourth count. To which question, the petitioner answered, “Yes.” The judgment file indicates that counts one through three were dismissed and count four was “withdrawn . . . .” The petitioner makes no claim on appeal regarding the dismissal of counts one through three.

       For reasons we will discuss, we hold that a withdrawal “with prejudice” is the functional equivalent of a dismissal.

       The petitioner also claims that the court violated his right to due process under the state and federal constitutions when it denied his oral motion to amend his habeas petition. There is no merit to this claim.

       The injury at this point, of course, is that this case concluded without affording relief to the petitioner.

       Precisely like “withdrawal with prejudice,” a “voluntary dismissal” pursuant to the Federal Rules of Civil Procedure is a disposition initiated by a plaintiff, which, if the court decides to dispose of the cause of action, is a dismissal “with prejudice.” See Cabrera v. Esso Standard Oil Co. (Puerto Rico), Inc., 723 F.3d 82, 87 (1st Cir. 2013) (“Rule 41 [a] [2] permits a plaintiff to request dismissal of an action by court order, on terms that the court considers proper. . . . The rule . . . provides that such a dismissal is without prejudice, [ujnless the [court’s] order states otherwise. . . . Accordingly, dismissal without prejudice is the norm, unless the court finds that the defendant will suffer legal prejudice.” [Citations omitted; internal quotation marks omitted.]).

       The petitioner has not indicated why an evidentiary hearing was required to resolve the issues presented in this appeal. He cites Mercer v. Commissioner of Correction, 230 Conn. 88, 644 A.2d 340 (1994). Mercer, however, stands for the rather unremarkable proposition that determinations of the merits of a habeas corpus action ordinarily require evidentiary hearings. The case before us is in a different posture altogether.

       Practice Book § 23-29 provides: “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that:
      “(1) the court lacks jurisdiction;
      “(2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted;
      “(3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition;
      “(4) the claims asserted in the petition are moot or premature;
      “(5) any other legally sufficient ground for dismissal of the petition exists.”

       But see Practice Book § 23-29 (5). Under that subsection, the court may dismiss the petition or any count thereof if it determines that “any other legally sufficient ground for dismissal of the petition exists.” Practice Book § 23-29 (5).
      Nevertheless, the petitioner’s argument that the court failed to provide him with a hearing pursuant to Practice Book § 23-29 (3) fails. Whatever the requirements of Practice Book § 23-29 (3) are, they do not apply even if the court had dismissed count four because the fourth count itself was not raised in a prior habeas petition.

       The petitioner cites no authority for the proposition that his constitutional rights were violated, and we conclude that there is no merit to this claim.

        Fine sets forth the procedures to be followed for a withdrawal with prejudice, but concluded that the record was inadequate to determine in that case whether such a withdrawal occurred. We conclude in this case that a court, under certain circumstances, may accept a withdrawal only with prejudice. Both a withdrawal with prejudice and a dismissal end a case with finality and are functionally one in the same. A court is permitted under Practice Book § 23-29 (5) to end a case via a dismissal, sua sponte, for any “legally sufficient ground . ...” A court, then, by analogy, is also permitted to end a case via the acceptance of a withdrawal with the sua sponte addition of “with prejudice,” but only so long as the constitutional safeguards addressed in Fine are followed.

       By analogy to the Federal Rules of Civil Procedure, apetitioner’s request to withdraw can be converted into a withdrawal with prejudice, as long as certain safeguards are in place.

       Prior to finally accepting the withdrawal with prejudice, the court informed the petitioner that if the court accepted the withdrawal, there could well be significant impediments to bringing the same claims again. The court stated that it could not predict with certainty what might happen but said that the respondent would likely argue that he had been prepared before and that the petitioner ought not be able to bring the same claim again. In light of our law regarding successive petitions, the court’s advice was substantially accurate.

       The petitioner does not argue that he should have been permitted to withdraw his petition under General Statutes § 52-80 (“The plaintiff may withdraw any action . . . before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any such action, the plaintiff may withdraw such action . . . only by leave of court for cause shown.”). He was, nonetheless, permitted to withdraw his petition and although § 52-80 does not say what happens when a withdrawal is accomplished after commencement of trial, its implication is clear.