author: DiPENTIMA, J.

text:
    LUCIO SEGURO ET AL. v. JOHN E. CUMMISKEY, JR., ET AL.
    (AC 22488)
    Bishop, West and DiPentima, Js.
    Argued October 17, 2003 —
    officially released March 30, 2004

      James V. Somers, with whom were Kevin M. Roche and, on the brief, Laura Pascóle Zaino and Stephen H. Broer, for the appellant (named defendant).

      Kevin C. Ferry, with whom, on the brief, was Omar Williams, for the appellee (named plaintiff).
   Opinion

DiPENTIMA, J.

The principal issue in this appeal is the scope of an employer’s duty to supervise an employee. The defendant employer, John E. Cum-miskey, Jr., doing business as J.J. Toon’s Cafe, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff Lucio Seguro, who was injured when the defendant’s employee, William Leonard, caused a vehicular accident after leaving the premises of Leonard’s employment. The defendant claims that because an employer does not have a duty to supervise his employees off-site, the court should have granted his motions for a directed verdict and to set aside the verdict. The defendant further claims that the court improperly permitted evidence of lost earnings when the plaintiff did not have standing to bring the claim and improperly found that the evidence supported the award of damages to the plaintiff. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. Leonard, the defendant’s brother-in-law, worked a Friday night shift on July 26, 1997, as a bartender at J.J. Toon’s Cafe. Prior to his shift at 6 p.m., Leonard consumed two containers of beer at his house. Another bartender, Donna McDonald, was on duty for a portion of the shift. McDonald and the defendant left the bar between 9:30 p.m. and 10 p.m., leaving only Leonard on duty. The defendant returned at or about midnight, and Leonard continued working until approximately 2 a.m. Leonard consumed three more containers of beer between 11 p.m. and the time of closing. After the completion of his shift, Leonard drove to the AAA Diner in East Hartford. At some point in the evening, Leonard consumed four additional containers of beer.

After he left the diner, the vehicle driven by Leonard struck the plaintiffs van, which was parked on the shoulder of Silver Lane in East Hartford while the plaintiff delivered Hartford Courant newspapers to newspaper boxes located on that road. At the time of the impact, the plaintiff was standing outside his van, and the impact caused the van to strike him, resulting in serious injuries.

In July, 1999, the plaintiff commenced an action against the defendant, alleging negligent supervision of Leonard, and failure to prevent Leonard from drinking alcohol and becoming intoxicated on the night of the accident. Specifically, the plaintiff claimed that the defendant was negligent in that he (1) knew or should have known that Leonard did not possess the necessary judgment and control to be employed at a bar, (2) failed to train Leonard properly, (3) allowed Leonard to drink alcohol openly while on duty and to violate the policy against drinking alcohol while on duty, and (4) failed to supervise Leonard properly.

The case proceeded to a trial before a jury. At the conclusion of the evidence, the defendant sought a directed verdict pursuant to the common-law rule that an adult’s voluntary consumption of alcohol relieves a bar owner from liability caused by the adult to a third party. The defendant further claimed that he owed no duty to the plaintiff because the accident occurred after Leonar d had left work. The court denied the defendant’s motion, citing Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383 (1967), for the proposition that Connecticut recognizes a cause of action for negligent supervision of tavern employees.

The jury returned a verdict for the plaintiff, awarding $116,882.25 in economic damages and $160,000 in non-economic damages. The defendant then filed a motion to set aside the verdict. In addition to the claims set forth in the motion for a directed verdict, the defendant alleged that (1) the plaintiff lacked standing to assert the claim of lost wages and (2) the jury’s award of lost wages was excessive. The court again denied the defendant’s motion. This appeal followed.

Our standard of review of a court’s denial of a motion for a directed verdict or a motion to set aside the verdict is well settled. “[Appellate] review of a trial court’s refusal to direct a verdict or to render judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial . . . giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony .... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. ... A jury’s verdict should be set aside only where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles. ... A verdict should not be set aside where the jury reasonably could have based its verdict on the evidence.” (Citation omitted; internal quotation marks omitted.) Coniglio v. White, 72 Conn. App. 236, 240, 804 A.2d 990 (2002).

I

The defendant claims that because he had no duty to supervise Leonard for conduct off the premises, the court improperly denied his motions for a directed verdict and to set aside the verdict. We are persuaded, however, that proprietors of establishments that serve alcohol do indeed have a duty to protect third parties from the conduct of bartenders and other servers who drink intoxicating liquor on the job.

Under Connecticut law, an employer may be held liable for the negligent supervision of employees. See Gutierrez v. Thorne, 13 Conn. App. 493, 500, 537 A.2d 527 (1988) (recognizing independent claim of direct negligence against employer who failed to exercise reasonable care in supervising employee); Roberts v. Circuit-Wise, Inc., 142 F. Sup. 2d 211, 214 (D. Conn. 2001) (in negligent supervision action, “plaintiff must plead and prove that she suffered an injury due to the defendant’s failure to supervise an employee whom the defendant had duty to supervise”); see also Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982) (liability in “any situation where a third party is injured by an employer’s own negligence in failing to select an employee fit or competent to perform the services of employment”).

“Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so. . . . The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” (Citation omitted; internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn. App. 252, 257, 815 A.2d 263 (2003). “[T]he determination of whether a duty exists between individuals is a question of law. . . . Only if a duty is found to exist does the trier of fact go on to determine whether the defendant has violated that duty.” (Citations omitted.) Jaworski v. Kiernan, 241 Conn. 399, 404-405, 696 A.2d 332 (1997). Therefore, it is the court’s role to determine whether the defendant owed a duty to prevent the injury to the plaintiff that occurred after Leonard left the premises.

“Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.” (Citations omitted; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002).

“A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed. ... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . While it may seem that there should be a remedy for eveiy wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results.” (Citations omitted; internal quotation marks omitted.) Id., 756.

A

Foreseeability

A connection between excessive consumption of alcohol and violent traffic accidents is well recognized. See Craig v. Driscoll, 262 Conn. 312, 334-36, 813 A.2d 1003 (2003). We must therefore determine whether it is foreseeable that the negligent supervision of an employee in a bar or restaurant that results in the consumption of intoxicating liquor on those premises may result in harm to third parties after the employee leaves the premises. We find that such an outcome is indeed foreseeable.

Connecticut has recognized “only a limited duty to take action to prevent injury to a third person. Our point of departure has been that absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another. See 2 Restatement (Second), Torts § 315 (1965) .... In any determination of whether even a special relationship should be held to give rise to a duty to exercise care to avoid harm to a third person, foreseeability plays an important role. . . . Although ... no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. . . . Thus, initially, if it is not foreseeable to a reasonable person in the defendant’s position that harm of the type alleged would result from the defendant’s actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff.” (Citations omitted; internal quotation marks omitted.) Fraser v. United States, 236 Conn. 625, 632-33, 674 A.2d 811 (1996).

“The test that is often applied in determining whether . there exists a duty to use care is the foreseeability of harm. ‘Would the ordinarily prudent man in the position of the defendant, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?’ This does not mean foreseeability of any harm whatsoever or foreseeability that the particular injury which resulted would occur. It is, in short, the foreseeability or anticipation that harm of the general nature of that suffered would be likely to result, which gives rise to a duty to use due care, breach of which might constitute negligence.” (Internal quotation marks omitted.) Gutierrez v. Thorne, supra, 13 Conn. App. 500.

The jury reasonably could have found that the defendant had actual knowledge that Leonard was drinking during his shift. Leonard admitted to drinking while at work on July 26, 1997, and stated that he had made no effort to conceal his drinking. Further, the defendant allowed his employees to drink alcoholic beverages while at work. Therefore, the jury reasonably could have found it foreseeable that the defendant’s failure to prevent Leonard’s drinking could have resulted in Leonard’s driving home from work while intoxicated and injuring a third party.

B

Fundamental Policy of the Law

Our Supreme Court has set forth “four factors to be considered in determining the extent of a legal duty as a matter of public policy: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging continued vigorous participation in the activity, while protecting the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.” Perodeau v. Hartford, supra, 259 Conn. 756-57.

We first consider the normal expectations of the participants in the underlying activity, as well as the expectations of third persons regarding their safety with respect to the supervision of employees who serve alcohol. The underlying activity is the consumption of alcoholic beverages in bars and restaurants. In light of our state’s Dram Shop Act, General Statutes § 30-102, in which sellers may be liable in negligence for selling alcohol to an intoxicated patron who later injures a third party, employees are entrusted to make important decisions regarding the service of alcohol. It follows that the same employees who must monitor strictly the amount others drink must themselves be restricted from drinking intoxicating liquor in a manner that would compromise the safety of those who would encounter them either at work or after work. We thus conclude that bar and restaurant owners could expect that they might be held liable if their employees cause harm to third parties after consuming intoxicating liquors on the job. In addition, third parties could expect that their safety will not be compromised due to the negligent supervision of employees who serve alcohol.

The second factor requires us to consider the benefits, if any, of encouraging the underlying activity— the consumption of alcoholic beverages in bars and restaurants. It is not illegal to consume alcoholic beverages, and many establishments derive their business from that legal activity. Further, many businesses legitimately rely on the sale of alcohol, and our laws have protected a business’ right to do so. It is contrary to our public policy, however, to permit or to encourage the immoderate consumption of alcohol when the resulting intoxication may increase the risk of injuries to third parties. Rather, it is consistent with our public policy to encourage employers to supervise their employees in a maimer that prevents employees’ irresponsible consumption of alcohol while at work. Establishment of such a duty will therefore encourage the responsible consumption of alcoholic beverages in bars and restaurants.

Third, we must consider the potential for increased litigation. It is reasonable to believe that responsible employers generally institute policies against the consumption of intoxicating liquor during work hours, particularly in establishments that are in the business of selling alcohol. Extending the scope of liability to include the negligent supervision of employees who sell liquor merely would hold accountable those who have not taken responsibility to implement reasonable policies regarding the consumption of alcohol during the hours of employment.

Finally, we consider the decisions of other jurisdictions. A review of case law in other jurisdictions reveals that employers may be directly liable for the negligent hiring, retention or supervision of an employee who, through a tortious act, injures a third party. See, e.g., Island City Flying Service v. General Electric Credit Corp., 585 So. 2d 274, 276 (Fla. 1991) (“employer is liable for the willful tort of his employee committed against a third person if he knew or should have known that the employee was a threat to others”); Henley v. Prince George’s County, 305 Md. 320, 336, 503 A.2d 1333 (1986) (employer has duty to use reasonable care to select employees competent and ñt for work assigned to them); Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 910 (Minn. 1983) (“person injured by a negligently retained employee may recover damages from the employer”); Di Cosala v. Kay, 91 N.J. 159, 170-71, 450 A.2d 508 (1982) (“employer whose employees are brought into contact with members of the public in the course of their employment is responsible for exercising a duty of reasonable care in the selection or retention of its employees”); Soares v. Ann & Hope of Rhode Island, Inc., 637 A.2d 339, 346 (R.I. 1994) (recognizing “ ‘direct liability of an employer to third parties who are injured by acts of unfit, incompetent, or unsuitable employees’ ”); Welsh Mfg. v. Pinkerton’s, Inc., 474 A.2d 436, 440 (R.I. 1984) (“employer may be directly liable for wrongful acts of its negligently hired employee”); J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 208-209, 372 S.E.2d 391 (1988) (recognizing tort of negligent hiring).

Relevant case law is more limited with respect to negligent supervision of tavern employees. Courts have recognized a duty, however, under circumstances in which an employee’s intoxication has a connection to his employment. See, e.g., Dickinson v. Edwards, 105 Wash. 2d 457, 469, 716 P.2d 814 (1986) (employer liable where employee causes injury after consuming intoxicating liquor at employer sponsored event that was “sufficiently related to the employer’s business to bring the employee’s attendance within the scope of employment”); Chastain v. Litton Systems, Inc., 694 F.2d 957, 962 (4th Cir. 1982) (employer negligent if it failed to use reasonable care in furnishing or permitting employees to furnish alcohol to patron knowing that he was intoxicated), cert. denied, 462 U.S. 1106, 103 S. Ct. 2454, 77 L. Ed. 2d 1334 (1983).

Laws regarding liability arising out of the service of alcohol have evolved differently in each jurisdiction and reflect different means to address public policy concerns regarding the service of liquor. It is consistent with the development of our law to recognize a duty of employers at an establishment that serves liquor to third parties to supervise employees and to protect the public from an employee who drinks on the job. See Craig v. Driscoll, supra, 262 Conn. 334 (holding that purveyor who provides alcohol to already intoxicated patron may, as matter of law, be proximate cause of injuries caused by that intoxicated patron).

After a review of cases in other jurisdictions and consideration of Connecticut’s public policy, we conclude that employers have a duty to supervise tavern employees at the workplace as to their consumption of intoxicating liquor. Accordingly, it was proper for the court to have found that the defendant owed a legal duty to protect the plaintiff from the harm caused by his employee, Leonard, who had consumed intoxicating liquor on the job.

II

The defendant next claims that the plaintiff did not have standing to bring a claim for lost wages. The defendant bases that assertion on the fact that the business of delivering newspapers was a sole proprietorship that was in the name of the plaintiffs wife, and that there was no evidence that he was an employee of the business and had lost wages as a result of the accident. We disagree.

A party must be aggrieved to have standing to invoke the jurisdiction of the court. In re Shawn S., 262 Conn. 155, 164-65, 810 A.2d 799 (2002). “The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action] .... Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action].” (Internal quotation marks omitted.) Cardi Materials v. Connecticut Landscaping Bruzzi Corp., 77 Conn. App. 578, 581, 823 A.2d 1271 (2003).

The evidence showed that, in practice, the plaintiff maintained the primary responsibility of the newspaper route and that he had received the wages therefrom. The plaintiff therefore demonstrated a specific, personal and legal interest in the wages he received from delivering the Hartford Courant. See AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 568, 775 A.2d 284 (2001). Moreover, it was not, as the defendant claims, the postaccident decision by the plaintiffs wife not to operate the newspaper route herself that resulted in the plaintiffs lost wages. Rather, the plaintiffs interest in his wages was specially and injuriously affected by the accident, which was proximately caused by the defendant’s negligent supervision of Leonard. The plaintiff therefore had standing to seek lost wages from the defendant.

Ill

Finally, the defendant claims that the court improperly found that the evidence regarding the plaintiffs claim for lost wages was legally sufficient.

“A party who seeks to recover damages . . . [on the ground of lost earnings or earning capacity] must establish a reasonable probability that his injury did bring about a loss of earnings, and must afford a basis for a reasonable estimate by the trier, court or jury, of the amount of that loss.” (Internal quotation marks omitted.) Daigle v. Metropolitan Property & Casualty Ins. Co., 60 Conn. App. 465, 469, 760 A.2d 117 (2000), aff'd, 257 Conn. 359, 777 A.2d 681 (2001).

The substance of the defendant’s claim is an attack on the credibility of the plaintiffs testimony. “The assessment of damages is peculiarly within the province of the trier and the award will be sustained so long as it does not shock the sense of justice. The test is whether the amount of damages awarded falls within the necessarily uncertain limits of fair and just damages. ... In making its assessment of damages . . . the trier must determine the existence and extent of any deficiency and then calculate its loss to the injured party. The determination of both of these issues involves a question of fact which will not be overturned unless the determination is clearly erroneous. . . . [Credibility is a matter for the trier of fact to determine. In a [proceeding] tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . Where there is conflicting evidence ... we do not retry the facts or pass on the credibility of the witnesses. . . . The probative force of conflicting evidence is for the trier to determine.” (Citations omitted; internal quotation marks omitted.) Southington v. Commercial Union Ins. Co., 71 Conn. App. 715, 743, 805 A.2d 76 (2002).

The defendant claims that the plaintiffs tax returns demonstrate that the claim for lost wages was not supported by evidence. The defendant claims that the tax returns accurately reflect the plaintiffs net income of $65 per week, rather than the $300 per week claimed by the plaintiff. The plaintiff testified, however, that because he did not have accounting experience, an accountant prepared his tax returns. The plaintiff also testified that he did not understand the relevant deductions reflected in the tax returns, but that his net income from the newspaper route was between $300 and $325 per week. There was thus adequate evidence in the record to support the jury’s finding that the plaintiff accurately stated his loss of wages as $300 per week.

The judgment is affirmed.

In this opinion the other judges concurred.

       William Leonard was an apportionment defendant only and is not a party to this appeal. We therefore refer only to John Cummiskey, Jr., doing business as J.J. Toon’s Cafe, as the defendant.

       Because Seguro’s wife, Susan Seguro, withdrew her claims prior to trial, we refer in this opinion to Lucio Seguro as the plaintiff.

       It is undisputed that Leonard dranlc four additional containers of beer in the evening. A question exists, however, as to where and when those containers of beer were consumed. Leonard asserts that he consumed the four containers of beer, which were warm at the time, in his car in the parking lot of the AAA Diner. The plaintiff argues, however, that it was unlikely that Leonard chose to consume those warm containers of beer in his car when he had access to cold beer at the bar and at home, which was ten minutes away from his place of employment. Moreover, the police officer at the scene of the accident did not find the empty beer cans that Leonard testified that he had left in his car.

       The second count of the complaint set forth a recklessness claim against the defendant. The plaintiff withdrew that count. The third count of the complaint alleged a loss of consortium on behalf the plaintiffs wife, Susan Seguro. Prior to the commencement of trial, the consortium claim was withdrawn.

       The court’s reliance on Nolan for the proposition that Connecticut recognizes a cause of action for negligent supervision of tavern employees requires clarification. The Supreme Court stated, in dicta, that “a cause of action predicated on negligence in the failure of a proprietor of a restaurant, or his servants or agents, to exercise reasonable care in the supervision of the conduct of patrons or other business visitors within his establishment would be unaffected by the common-law rule .... In such a situation, a patron or business visitor of the establishment who sustained an injury in person or property as a consequence of such negligence in supervision might have a common-law cause of action . . . .” (Citation omitted; emphasis added.) Nolan v. Morelli, supra, 154 Conn. 440-41, citing Lowthert v. Loyal Order of Moose of Stamford, Lodge 940, Inc., 147 Conn. 529, 533, 163 A.2d 106 (1960) (owner of establishment owes duty to business visitor to exercise reasonable care to keep premises reasonably safe for reasonably foreseeable uses of premises). The Supreme Court thus did not recognize liability for negligent supervision of tavern employees per se, but of patrons or other business visitors in contexts other than service of alcohol to a patron who voluntarily becomes intoxicated. That is not discordant with liability for negligent supervision of tavern employees, however, as such liability is consistent with the court’s finding that an employer must “exercise reasonable care in the supervision of the conduct of patrons or other business visitors within his establishment . . . .” Nolan v. Morelli, supra, 440-41.

       The jury apportioned 75 percent of the responsibility to Leonard and 25 percent to the defendant.

       Initially, the defendant had claimed on appeal that as a matter of law, any negligence on his part was not the proximate cause of the plaintiffs injuries. The defendant withdrew that claim at oral argument, however, in light of Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), in which our Supreme Court rejected the claim that “a purveyor who provides alcoholic beverages to an already intoxicated patron or a patron known to him to be an alcoholic cannot, as a matter of law, be the proximate cause of subsequent injuries caused by the intoxicated patron.” (Emphasis in original.) Id., 334.

       The defendant relies on § 317 of the Restatement (Second) of Torts in arguing that there is no duty to control an employee outside the scope of employment. Such reliance is misplaced. The negligence in question did not occur off-site, but rather involved the actions and inactions of the defendant in failing to supervise Leonard as to consumption of intoxicating liquor on the job.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    JENNE MAAG v. HOMECHEK REAL ESTATE SERVICES, INC., ET AL.
    (AC 23285)
    (AC 23286)
    Foti, Dranginis and McLachlan, Js.

      Argued December 1, 2003 —
    officially released March 30, 2004

      Donald A. Mitchell, for the appellant-appellee (named defendant).

      Zbigniew S. Rozbicki, for the appellant-appellee (plaintiff).

      D. Randall DiBella, for the appellee (Ernest Belmont).
   Opinion

FOTI, J.

The plaintiff, Jenne Maag, brought the underlying action, sounding in negligence, against the defendants, Homechek Real Estate Services, Inc. (Homechek), and Ernest Belmont. The plaintiff and Homechek, appealing separately, challenge the judgment of the trial court, rendered after a jury verdict, against Homechek and in favor of Belmont. The plaintiff claims that the court improperly denied (1) her motion to set aside the verdict and to render judgment in her favor against Belmont, and (2) her motion to compel the jury to reconsider its verdict. Homechek claims that the court improperly (1) denied its motion to set aside the verdict in light of the jury’s answers to the court’s interrogatories and (2) denied its motion to set aside the verdict when there was insufficient evidence that it was directly liable for the plaintiffs damages. We agree with Homechek that the evidence did not support the verdict; accordingly, we reverse the judgment in part and remand the case with direction to render judgment for Homechek.

The jury reasonably could have found that in September, 1997, the plaintiff hired Homechek, doing business as Pro Chek, to inspect a residential property that she was interested in purchasing. Homechek was primarily engaged in the business of conducting real estate inspections. Belmont was a licensed real estate inspector in Homechek’s employ and, acting as Homechek’s agent, inspected the property and prepared a handwritten inspection report that Homechek later issued to the plaintiff in typewritten form. Relying, in part, on that written report, the plaintiff purchased the property.

The plaintiff later learned that a stone retaining wall approximately 120 feet long and located in close proximity to the rear of her new home was deteriorating and in danger of collapsing. The stone wall was integral to a stone terrace at the rear of the property, the home’s foundation, the home’s immediate grounds and the landscaping. The report did not disclose the wall’s defects. To the contrary, Belmont did not inspect the retaining wall, but noted in his report that the retaining walls on the premises were in an “acceptable” condition.

The plaintiff, alleging that the defendants’ negligence caused her financial detriment, brought the underlying action. By way of interrogatories, the jury found that both Homechek and Belmont were negligent in the performance of the home inspection for the plaintiff. The jury attributed 100 percent of the negligence to Homechek and awarded the plaintiff $65,480. The court denied various postverdict motions that were submitted by the parties, and these appeals followed.

I

THE PLAINTIFFS APPEAL

The record reflects the following undisputed facts. After the jury reported that it had reached a verdict, the court assembled the jury in the courtroom. The court reviewed the jury’s answers to the interrogatories and the completed verdict form. The clerk then read aloud both of those documents, and the jury agreed to its verdict. The court stated that the verdict “is accepted and ordered recorded.” The clerk again read aloud the completed interrogatories and the verdict for a second time. The clerk inquired of the jury if it was its verdict; the jury responded that it was.

Immediately thereafter, the plaintiff’s attorney addressed the court outside of the presence of the jury. The plaintiffs attorney argued that “the verdict in favor of [Belmont] is inconsistent with the answer to the interrogatories.” The court responded that it had noticed “some question” with regard to the verdict, but that it had accepted the verdict and ordered that it be recorded. The court stated that the plaintiffs attorney could raise any objections to the verdict by way of postjudgment motions. The plaintiffs attorney then stated that the court could accept and order that a verdict be recorded only after it has been read twice. The plaintiffs attorney argued that the court had accepted and ordered that the verdict be recorded after it had been read once, and asked that the court order the jury to reconsider its verdict. The court denied the request, stating that “once the verdict is accepted and ordered recorded, it is done.” The court then returned the members of the jury to the courtroom, thanked them for their service and discharged them.

The plaintiff thereafter filed a pleading titled “Motion to Set Aside the General Verdict and Judgment Entered Thereon for the Defendant Belmont and Motion for Entry of Judgment for the Plaintiff Based on the Answers to the Court’s Interrogatories,” and a pleading titled “Plaintiffs Motion to Set Aside Verdict and Judgment for the Defendant Belmont and Motion N. O. V.” The court denied those motions. The plaintiff argued in those motions, as she does on appeal, that the jury’s answers to the court’s interrogatories contradicted the verdict.

A

The plaintiff first claims that the court improperly denied her motion to render judgment consistent with the jury’s answers to the court’s interrogatories. We disagree.

“The role of an appellate court where an appellant seeks a judgment contrary to a general verdict on the basis of the jury’s allegedly inconsistent answers to such interrogatories is extremely limited. ... To justify the entry of a judgment contrary to a general verdict upon the basis of answers to interrogatories, those answers must be such in themselves as conclusively to show that as [a] matter of law judgment could only be rendered for the party against whom the general verdict was found; they must negate every reasonable hypothesis as to the situation provable under the issues made by the pleadings; and in determining that, the court may consider only the issues framed by the pleadings, the general verdict and the interrogatories, with the answers made to them, without resort to the evidence offered at the trial. . . .

“It is not the function of the court to search the record for conflicting answers in order to take the case away from the jury on a theory that gives equal support to inconsistent and uncertain inferences. When a claim is made that the jury’s answers to interrogatories in returning a verdict are inconsistent, the court has the duty to attempt to harmonize the answers.” (Citations omitted; internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 269-70, 698 A.2d 838 (1997).

The plaintiff claims that the jury’s verdict was improper because the jury found that both Homechek and Belmont were negligent, yet attributed 100 percent of the negligence to Homechek. The plaintiff argues: “Since a corporation can only act through its agents and Belmont was the only agent who performed the services which the jury found to be negligent, the pleadings, the court’s charges, the verdict against Homechek and the jury’s answers to the court’s interrogatories compelled the court, as a matter of law, to apply the law to the facts found by the jury in their answers to the court’s interrogatories and to enter judgment for the plaintiff on the basis of said interrogatories.” The plaintiff posits that the jury’s allocation of negligence was “of no consequence” and that, as a matter of law, the verdict against Homechek applied to Belmont. The plaintiff asks this court to set aside the verdict in Belmont’s favor and to remand the case to the trial court with direction to render judgment against Belmont as a joint tortfeasor in the amount of $65,480.

In her complaint, the plaintiff alleged that the defendants were negligent in that the “inspection negligently failed to disclose” the defective condition on her property, that “[t]he defendants were negligent in conducting their inspection and in the preparation of their report” and that “[t]he defendants were also negligent in fading to alert the plaintiff to the potential cost and extent of the repairs of said wall and its consequences . . . .” The defendants denied those allegations. The plaintiff also alleged: “The defendant Pro Chek negligently failed to supervise, instruct and oversee the defendant Belmont and to set adequate standards in the performance of his inspection duties.” Homechek denied that allegation, which the plaintiff directed only to Homechek.

We conclude that the general verdict rendered solely against Homechek was not inconsistent with the jury’s answers to the interrogatories. The plaintiff presumes that the jury could not have found that Homechek was directly liable for the plaintiffs injuries, and the plaintiff relies heavily on the well settled legal principle that “when a plaintiff brings a claim against a principal based solely upon the tortious conduct of the agent, the plaintiff cannot recover any more compensatory damages from the principal than it could from the agent.” (Internal quotation marks omitted.) Alvarez v. New Haven Register, Inc., 249 Conn. 709, 722, 735 A.2d 306 (1999).

Here, however, the plaintiff specifically claimed that Homechek was liable, apart from Belmont’s negligence, because of its own failures in supervising, overseeing and instructing Belmont, and in its failures to “set adequate standards in the performance of [Belmont’s] inspection duties.” The plaintiff, therefore, did not bring the action against Homechek solely on the basis of Belmont’s allegedly tortious conduct; she brought suit against Homechek for its own tortious conduct.

Further, the interrogatories are silent with regard to the jury’s findings as to proximate cause. The jury could have found that both defendants had breached different duties of care owed to the plaintiff and that Homechek’s breach of the duties it owed the plaintiff proximately had caused her damages. The interrogatories did not ask the juiy to specify whether Belmont’s negligence proximately caused the plaintiff any damages. “[I]f the interrogatories did not address certain issues, they are deemed to be found for the defendant and, therefore, judgment may not be rendered contrary to the general verdict.” (Internal quotation marks omitted.) Murteza v. State, 7 Conn. App. 196, 202, 508 A.2d 449, cert. denied, 200 Conn. 803, 510 A.2d 191 (1986). A jury’s finding that a defendant was negligent in one or more respects as alleged in a complaint does not, in and of itself, mandate a finding that such negligence proximately caused the damages complained of. Id., 204.

We conclude that the jury’s answers to the court’s interrogatories may be readily harmonized and that “an entirely reasonable hypothesis [concerning the jury’s verdict] might be formulated within the scope of the pleadings [that is] not inconsistent with the answer[s] to the interrogatories”; Belchak v. New York, N. H. & H. R. Co., 119 Conn. 630, 635, 179 A. 95 (1935); so as to justify the general verdict in Belmont’s favor. Consequently, we conclude that the court properly denied the plaintiffs motion to render judgment contrary to the verdict.

B

The plaintiff next claims that the court improperly denied her motion to compel the jury to reconsider its verdict in light of the answers to the court’s interrogatories. We disagree.

The court plays an essential role in supervising the jury and in ensuring that the verdict is reasonable and lawful. “The control of the court over the verdict of the jury is limited but salutary.” (Internal quotation marks omitted.) Van Nesse v. Tomaszewski, 265 Conn. 627, 634, 829 A.2d 836 (2003). General Statutes § 52-223 provides: “The court may, if it judges the jury has mistaken the evidence in the action and has brought in a verdict contrary to the evidence, or has brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for the same reason may return them to a third consideration. The jury shall not be returned for further consideration after a third consideration.” Practice Book § 16-17 mirrors that rule. A decision with regard to an order for reconsideration rests within the court’s sound discretion. Cruz v. Drezek, 175 Conn. 230, 242-43, 397 A.2d 1335 (1978).

The plaintiff posits that the court improperly determined that once it had accepted the verdict and ordered it recorded, it could not ask the jury to reconsider the verdict. The record suggests, however, that the court accepted the verdict because it had determined that the verdict was proper. We note that the plaintiff did not ask the court to order the jury to reconsider its verdict until after the court had accepted the verdict. “After the verdict has been announced and before it has been accepted, the court may refuse to accept it if it is not in proper form or otherwise imperfect, or it may refuse to accept it for the time being and return the jury to a second and even third consideration of the case.” (Emphasis added; internal quotation marks omitted.) State v. Martin, 189 Conn. 1, 4 n.1, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983).

The record reveals that the court reviewed the verdict forms, heard the jury assent to its verdict and then accepted the verdict. Practice Book § 16-31 provides: “Subject to the provisions of Section 16-17, the judicial authority shall, if the verdict is in order and is technically correct, accept it without comment.” After the court accepted the verdict, the plaintiff made the motion at issue. The court denied the motion, stating that it had reviewed the verdict forms “carefully” and had determined that it should accept the verdict.

We already have determined that the verdict, on its face, was not necessarily contrary to the answers to the interrogatories. We likewise conclude, on the limited ground presented, that the court did not abuse its discretion by denying the motion to compel reconsideration of the verdict.

II

HOMECHEK’S APPEAL

A

Homechek first claims that because the jury’s answers to the court’s interrogatories rendered the verdict legally improper, the court improperly denied its motion to set aside the verdict. We disagree.

“[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict . . . [is] the abuse of discretion standard. ... 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. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. ... A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” (Internal quotation marks omitted.) Arnone v. Enfield, 79 Conn. App. 501, 505-506, 831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804 (2003).

Homechek claims that the jury, having found that Belmont was negligent and was Homechek’s agent, could not attribute 100 percent of the negligence to Homechek. Homechek claims that the jury’s finding that Belmont did not cause any of the plaintiffs damages absolved it “from any vicarious liability” and rendered the verdict legally improper. Homechek points out that when a plaintiff seeks recovery against a principal solely on the basis of an agent’s wrongdoing, the plaintiff “cannot recover any more compensatory damages from the principal than it could from the agent.” (Internal quotation marks omitted.) Alvarez v. New Haven Register, Inc., supra, 249 Conn. 722.

We reject Homechek’s claim on the same limited basis that we rejected the plaintiffs challenge to the verdict. See part IA of this opinion. Homechek’s argument rests on the assumption that the verdict against it followed from a finding by the jury that Homechek was vicariously hable for Belmont’s wrongdoing. As noted previously, neither the verdict nor the answers to the interrogatories indicate that the jury necessarily based its verdict on the principle of vicarious liability.

B

Homechek also claims that the court should have set aside the verdict because if the jury returned its verdict on the ground that Homechek was directly liable to the plaintiff, the evidence did not support the verdict. We agree.

“A court is empowered to set aside a jury verdict when, in the court’s opinion, the verdict is contrary to the law or unsupported by the evidence. ... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the juiy might reasonably have reached its conclusion. ... In analyzing a sufficiency of the evidence claim, the test that we employ is whether, on the basis of the evidence before the jury, a reasonable and properly motivated juiy could return the verdict that it did. ... On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.” (Internal quotation marks omitted.) Carusillo v. Associated Women's Health Specialists, P.C., 79 Conn. App. 649, 653, 831 A.2d 255 (2003).

We have examined all of the evidence presented at trial. There was evidence concerning Homechek’s control, guidance and oversight of Belmont’s inspection activities. The evidence was uncontroverted that Homechek, on receiving a request from a client to conduct an inspection, assigned the j ob to one of the inspectors Homechek employed. That was the case concerning the plaintiffs request to inspect the subject property. Belmont testified that Homechek had requested him to conduct his inspections according to the American Society of Home Inspection’s standards of practice. Belmont testified that Homechek gave him a copy of those standards and that Homechek personnel conducted biweekly seminars during which inspectors received instruction on specific aspects of their duties as home inspectors.

Belmont also testified that Homechek provided him with an “outline of what should be inspected and how.” Specifically, Homechek gave its inspectors, including Belmont, a blank “inspection report” to complete during their inspections. That report required inspectors to describe features of the property and included a lengthy checklist, which described specific features of the property and required the inspectors to rate each feature that was inspected. The evidence demonstrated that Belmont submitted his completed report for the subject property, which he completed during his inspection, to Homechek and that Homechek typed his handwritten notes onto a clean copy of the report and gave the completed report to the plaintiff.

Lorri Carty, Homechek’s president, testified that Homechek issued training manuals to its home inspectors. Carty testified that once Belmont had accepted the job that Homechek assigned to him, he was required to follow Homechek’s procedures. Carty also testified that Homechek did not review the conduct of its inspectors in the performance of their duties.

Although there was evidence concerning the plaintiffs dealings with Homechek and Homechek’s involvement with Belmont’s performance of his duties, there was no evidence that Homechek proximately had caused the damages for which the plaintiff sought to recover. The plaintiff did not substantiate her claim that Homechek “negligently failed to supervise, instruct and oversee the defendant Belmont and to set adequate standards in the performance of his inspection duties.” There was no evidence on which the jury reasonably could have found that Homechek’s supervision, instruction or oversight of Belmont’s work, or that its standards for the performance of that work deviated in any way from the standards of the profession or that it proximately had caused the damages for which the plaintiff sought to recover. To recover, the plaintiff had to demonstrate that any negligent acts or omissions by Homechek were related to the report’s failure to disclose the deteriorating condition of the retaining wall.

The plaintiff did not demonstrate that Homechek was negligent by asking Belmont to follow the procedures that it asked him to follow. There was no evidence that those procedures were improper or that they in any way led to the claimed inaccuracy in the report. There was no evidence that Homechek was negligent by giving Belmont any of the instructions, directions or protocols that it required him to follow. Further, there was no basis on which to find that any of Homechek’s directives led to the damages complained of. To the contrary, there was uncontroverted evidence that Homechek instructed Belmont to follow industry standards that were not challenged at trial, to assess conditions that he actually observed and to indicate on his report those features of the property that, for whatever reason, he did not inspect. There was no evidence that Homechek, in any way, instructed or led Belmont to rate a feature of the property that he did not inspect or that it caused Belmont to rate the retaining wall as he did.

The evidence reflects that Homechek employees, other than Belmont, used Belmont’s handwritten field report to create a typewritten version of the report that Homechek later issued to the plaintiff. The plaintiff has not demonstrated any negligence on Homechek’s part in those acts and certainly has not proven that those acts led to the damages for which she sought compensation. Carty testified that Homechek did not review Belmont’s conduct in the performance of his duties. The plaintiff did not, however, demonstrate that this omission, in and of itself, breached the duty of care that Homechek, as one employing a licensed home inspector, owed to the plaintiff or, even if it had breached the standard of care, that the breach proximately caused the plaintiffs claimed damages.

We conclude that the verdict was not supported by the evidence if the jury based it on Homechek’s direct liability to the plaintiff. The verdict was legally improper if the jury based it on vicarious liability because, as the parties correctly posit, Homechek could be no more liable for the plaintiffs damages than was its agent, Belmont. Accordingly, the verdict cannot stand. The court abused its discretion in refusing to set aside the verdict against Homechek, and we must direct a judgment in favor of Homechek.

On the plaintiffs appeal, the judgment in favor of Belmont is affirmed. On Homechek’s appeal, the judgment against Homechek is reversed and the case is remanded with direction to render judgment in Homechek’s favor.

In this opinion the other judges concurred.

         Absent objection, the court submitted both sets of interrogatories and verdict forms for both defendants to the jury. The interrogatories and the jury’s responses thereto were as follows:
      “JURY INTERROGATORIES
      “1. Was Defendant, BELMONT, an agent of Defendant, [HOMECHEK]?
      “Yes X No_
      “2. Was Defendant BELMONT an independent contractor?
      “Yes_No X
      “3. Was Defendant, HOMECHEK, negligent in the performance of the house inspection for Plaintiff JENNE MAAG?
      “Yes X No_
      “If the answer to this interrogatory is no, then you should complete the [HOMECHEK] Defendant’s verdict form and proceed to interrogatory #5.
      “4. If the above answer to interrogatory #3 is Yes, what percent of negligence is attributable to Defendant [HOMECHEK]?
      “ 100
      “5. Was Defendant, BELMONT, negligent in the performance of house inspection for Plaintiff JENNE MAAG?
      “Yes X No_
      “If the answer to this interrogatory is no, then you should complete the BELMONT Defendant’s verdict form and proceed to interrogatory #7.
      “6. If the answer to interrogatory #5 is Yes, what percent of negligence is attributable to Defendant BELMONT?
      “ 0%
      “If you have answered no to interrogatory #3 and no to interrogatory #5, then do not complete the other interrogatories on this form.
      “7. Was Plaintiff, JENNE MAAG, negligent?
      “Yes_No X
      “8. If the above answer to interrogatory #7 is Yes, what percent of negligence is attributable to Plaintiff JEANNE MAAG?
      “_%
      “9. Did the Defendants, [HOMECHEK] and BELMONT, or either one of them, cause the Plaintiff, JENNE MAAG, any damages?
      “Yes X No

        “10. What was the total amount, in dollars, of the damages incurred by Plaintiff, JENNE MAAG
      “$65.480.00”
      The jury’s verdict form, completed by the foreperson, states in relevant part:
      “PLAINTIFF’S VERDICT FORM
      “SECTION ONE: PERCENT OF NEGLIGENCE
      “We find for the plaintiff, JENNE MAAG, and against the defendants, [HOMECHEK] REAL ESTATE INC. D/B/A PRO CHECK and ERNEST BELMONT, as follows:
      “The percentage of negligence, as defined by the court, of defendant [HOMECHEK] REAL ESTATE SERVICES, INC. D/B/A PRO CHECK as set forth in response to Jury Interrogatory number 4 is 100%.
      “The percentage of negligence, as defined by the court, of defendant, ERNEST BELMONT as set forth in response to Jury Interrogatory number 6 is 0%.
      “The percentage of negligence, as defined by the court, of plaintiff, JENNE MAAG, as set forth in response to Jury Interrogatory number 8 is 0%.
      “NOTE: THE TOTAL NEGLIGENCE MUST EQUAL 100%
      “SECTION TWO: FINDINGS OF DAMAGES
      “The amount of damages as set forth in Jury Interrogatory number 10 is $65.480.00”

       The court denied the motions, as well as Homechek’s postverdict motions, without issuing an oral or written decision.

       Homechek also claims that the plaintiff failed to present any evidence concerning the applicable standard of care. We disagree. The court ruled that the plaintiffs expert, William Selski, was qualified to render expert testimony concerning the duty of care that a home inspector should follow in his professional duties. Selski testified that the “basic" standard is that a home inspector should note on his report whether he did or did not inspect a certain feature listed thereon. Next, Selski testified, the inspector had a duty to report truthfully and accurately the condition of any feature he represents to have inspected.

       Our holding with regard to the sufficiency of the evidence makes it unnecessary for us to review other claims raised by Homechek. Homechek claimed that the evidence did not support the jury’s award of damages in the amount of $65,480. Homechek also claimed that the court improperly admitted into evidence certain estimates for the cost of repairing the retaining wall. Our resolution of this evidentiary claim would not affect our holding. Any error in this regard inured to the strength of the plaintiffs case, which we hold was not strong enough to support the verdict.


text:
    STATE OF CONNECTICUT v. JOSEPH BOOKLESS
    (AC 23354)
    Dranginis, Flynn and DiPentima, Js.

      Argued January 21 —
    officially released March 30, 2004

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Proloy K. Das, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and John J. Davenport, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Joseph Bookless, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 and interfering with an officer in violation of General Statutes § 53a-167a. After his conviction, the defendant pleaded guilty to part B of the information, which charged him with being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a). The defendant was sentenced to a total effective term of twenty-five years of imprisonment with fifteen years of special parole. On appeal, the defendant’s sole claim is that the court improperly denied his motion to dismiss the part B information. We affirm the judgment of the trial court.

The following procedural facts are relevant to our review. On May 22, 2000, the defendant was arrested as a result of the robbery of a store and the ensuing struggle with police officers. The defendant initially was charged with robbery in the first degree in violation of § 53a-134, larceny in the sixth degree in violation of General Statutes § 53a-125b, use of drug paraphernalia in violation of General Statutes § 2 la-267 (a), two counts of threatening in violation of General Statutes (Rev. to 1999) § 53a-62, interfering with an officer in violation of § 53a-167a and two counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63. The bail commissioner informed the court that the defendant had more than twenty prior felony convictions and recommended bond in the amount of $100,000. The court found probable cause and set bond in the amount of $100,000.

The defendant entered a pro forma not guilty plea and a jury election on June 7, 2000. The state filed a substitute long form information on August 29, 2000, which reduced the offenses to robbery in the first degree and interfering with an officer. Also on that date, the state filed a part B information alleging that the defendant was a persistent dangerous felony offender who had been convicted twice of predicate offenses exposing him to a potential sentence of life imprisonment.

The defendant objected to the filing of the part B information on the ground that the probable cause hearing should have been held within sixty days of his original arrest. On September 15, 2000, he filed a motion to dismiss the part B information, which the court denied prior to the probable cause hearing on October 4, 2000. The court reasoned that the sixty day requirement of General Statutes § 54-46a ran not from the original arrest date, but from the date that the information exposing the defendant to life imprisonment was filed. The case proceeded to trial before a jury, which on May 1, 2002, found the defendant guilty of robbery in the first degree and interfering with an officer. Thereafter, the defendant pleaded guilty to the part B information. After a thorough canvass, the court found that the defendant had been convicted of robbery in the first degree on November 8,1977, and robbery in the second degree on November 14,1999. The court then accepted the guilty plea. After the imposition of sentence on June 12, 2000, this appeal followed.

The defendant claims that the court improperly denied his motion to dismiss the part B information because the information was filed more than ninety days from his arraignment on the underlying charges. Specifically, he claims that it was improper for the court not to require the state to show good cause for the ninety day delay. This court need not reach that issue because the defendant has waived his right to appeal from the trial court’s denial of his motion to dismiss the part B information.

The defendant had a statutory right to appeal from the denial of his motion to dismiss under General Statutes § 54-94a. Section 54-94a permits a defendant to enter a plea of nolo contendere conditioned on the right to file an appeal from the court’s denial of the motion to dismiss. State v. Gilnite, 202 Conn. 369, 376, 521 A.2d 547 (1987). “Because this right to appeal the denial of a motion to dismiss is statutory, it is accorded only if the conditions fixed by the statute are met.” (Emphasis added.) Id., 375-76. Consequently, a defendant may appeal from the denial of his motion to dismiss if he enters a plea of nolo contendere and that plea was expressly conditioned on his right to file an appeal from the court’s ruling. In the event that those conditions are not met, the defendant’s claim is considered waived. See id., 376. Here, the defendant did not enter a nolo contendere plea conditioned on his right to appeal. He entered a plea of guilty.

Generally, “[a] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” (Internal quotation marks omitted.) Id., 374 n.4, quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973). Moreover, that unconditional guilty plea, made knowingly and intelligently, “operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings.” State v. Madera, 198 Conn. 92, 97, 503 A.2d 136 (1985). It is true that a plea, whether conditional or unconditional, does not preclude review of jurisdictional defects. Id., 98 n.6. Here, the defendant makes no claim of jurisdictional defects.

In arguing that he has not waived his right to appeal, the defendant relies on the established authority that the charge of being a persistent felony offender is a sentence enhancement rather than a separate offense. See, e.g., State v. Velasco, 253 Conn. 210, 221-25, 751 A.2d 800 (2000) (determination of ultimate fact triggering application of sentence enhancement statute is routinely question for juiy); State v. Dash, 242 Conn. 143, 150 n.8, 698 A.2d 297 (1997) (vacating conviction under General Statutes § 53-202k after jury trial, holding that it is sentence enhancement); State v. Groomes, 232 Conn. 455, 459, 656 A.2d 646 (1995) (defendant appealed after court trial on part B information); State v. Sinclair, 184 Conn. 215, 216-17, 439 A.2d 945 (1981) (finding of guilt on part B information after court trial). The cases he cites, however, do not stand for the proposition that § 54-94a is inapplicable to a guilty plea entered on a charge of being a persistent felony offender. This court sees no basis for adopting that proposition.

Even if the defendant’s claim had not been waived, his argument that the state should have been required to show good cause for not filing the part B information sooner than it did is without merit. The part B information, charging the defendant as a persistent dangerous felony offender, exposed the defendant to a potential sentence of life imprisonment. Because of that, § 54-46a required that a probable cause hearing be held within sixty days of the filing of the information exposing the defendant to possible life imprisonment. In this case, the part B information was filed on August 29,2000, and the probable cause hearing began on October 4, 2000. The hearing was held thirty-six days after the filing of the information and, therefore, there clearly was compliance with § 54-46a. Moreover, the defendant has cited, and this court has found, no legal authority requiring the state to show good cause for not filing the part B information any earlier than it did.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       Practice Book § 36-17 provides: “If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in its discretion, may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced.” Cf. State v. Wilson F., 77 Conn. App. 405, 411, 823 A.2d 406, cert. denied, 265 Conn. 905, 831 A.2d 254 (2003).