author: LAVINE, J.

text:
    PATRICIA SANTORSO, ADMINISTRATRIX (ESTATE OF LAWRENCE SANTORSO), ET AL. v. BRISTOL HOSPITAL ET AL.
    (AC 32136)
    Lavine, Alvord and Borden, Js.

      Argued December 1, 2010
    officially released April 5, 2011

      Michael G. Rigg, with whom was Nancy P. Tyler, for the appellant (defendant Bristol Hospital).

      Jason T. Prueher, for the appellant (defendant Jeffrey Goldberg).

      Lorinda S. Coon, for the appellant (defendant Rainer Bagdasarian).

      Bruce E. Newman, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The defendants, Bristol Hospital (hospital) and physicians Jeffrey Goldberg and Rainer Bagdas-arian, appeal from the denial of their motions for summary judgment in this medical malpractice action. They claim that the trial court, Hon. Joseph M. ShortaU, judge trial referee, improperly denied their motions for summary judgment rejecting their claim that the action is barred by the doctrine of res judicata. We agree and therefore reverse the judgment of the trial court.

The following procedural history is relevant to our resolution of this appeal. On June 1, 2006, Lawrence Santorso (Santorso), the now deceased spouse of the plaintiff, Patricia Santorso, administratrix of the estate of Lawrence Santorso, commenced an action against the defendants in Santorso v. Bristol Hospital, Superior Court, judicial district of New Britain, Docket No. CV-06-5001663-S (first action). The complaint in the first action alleged, in part, that the defendants were negligent in that, for two years, they failed to treat Santorso for a lesion in his lung that had been detected by the hospital’s radiology department on three separate occasions. By the time Santorso was diagnosed with lung cancer, the cancer had metastasized, and he was not a candidate for surgical intervention. He died while the first action was pending.

When the complaint in the first action was served on the defendants, it contained neither an attorney’s good faith certificate nor opinion letters of similar health care providers (opinion letters), both required by General Statutes § 52-190a (a). The defendants filed motions to dismiss the first action pursuant to General Statutes § 52-190a (c), claiming that the court lacked subject matter jurisdiction due to the absence of a good faith certificate and opinion letters. The court, Prestley, J., denied the motions to dismiss on January 25, 2007, concluding that the defect was curable and ordered Santorso, within thirty days, to file an amended complaint containing a good faith certificate and opinion letters.

Kevin E. Creed, Santorso’s counsel, filed an amended complaint containing his good faith certificate and opinion letters purportedly from similar health care providers. The defendants again filed motions to dismiss, claiming that the court lacked subject matter jurisdiction because the opinions were not from similar health care providers. The only opinion letters that conceivably could have been from similar health care providers, however, were dated after the first action had been commenced. On July 31, 2007, Judge Prestley again denied the defendants’ motions to dismiss, concluding that the claimed insufficiencies were to be tested by means of a motion to strike.

Thereafter the defendants filed motions to strike the respective counts of the amended complaint alleged against them. The court, Pittman, J., granted the motions to strike the second amended complaint on April 3,2008. Judge Pittman concluded that “a fair reading of the complaint together with the good faith certificate and the opinion letters yields the conclusion that [Santorso] sued first and conducted the required ‘reasonable inquiry’ later. This is the exact sequence of events that [§ 52-190a (a)] was enacted to prohibit. . . . The complaint, without any appended opinion letter that demonstrates a pre-suit opinion from a similar health care provider, is legally insufficient.” (Emphasis in original.) Santorso failed to plead over, and, on June 25,2008, Judge Pittman granted the defendants’ motions for judgment pursuant to Practice Book § 10-44. The plaintiff did not appeal from the judgment rendered in the first action.

Approximately six weeks later, the plaintiff commenced the present action (present action). In the present action, the plaintiff alleged the same causes of action alleged against the defendants in the first action and sought damages for wrongful death on behalf of Santorso’s estate and loss of consortium on her own behalf. The complaint in the present action contained a good faith certificate signed by Creed and the same opinion letters from a general surgeon and medical oncologist that had been attached to the second amended complaint in the first action. The present action also alleged that it was brought pursuant to General Statutes § 52-592 (a), the accidental failure of suit statute.

The hospital and Goldberg filed motions to dismiss the present action on the ground that the opinions were not written by similar health care providers. Judge Pittman denied the motions to dismiss, reasoning that the opinions offered by a general surgeon and an oncologist were physicians with sufficient training, experience and knowledge to be qualified to offer medical opinions concerning the standard of care. At that stage of the proceedings, Judge Pittman declined “the invitation to begin a detailed and wide ranging comparison of the subspecialties and particularized background of each health care provider in this case.” Following the filing of revisions and amendments to the complaint and certain discovery, the defendants filed their motions for summary judgment in July, 2009.

In their motions for summary judgment, the defendants argued that the first action was not defeated for any “matter of form” and that Creed’s failure to comply with § 52-190a (a) precluded the plaintiff from taking advantage of the accidental failure of suit statute. Without the benefit of the accidental failure of suit statute, the defendants argued that the present action was not commenced within the two year statute of limitations and the three year statute of repose for medical malpractice actions, and, therefore, they were entitled to summary judgment. The defendants also claimed that the present action was barred by the doctrine of res judicata. Judge Shortall denied the defendants’ motions for summary judgment on March 17, 2010.

The defendants appealed from the denial of their motions for summary judgment, claiming that a judgment against a plaintiff on a motion to strike for failure to comply with § 52-190a (a) is a judgment on the merits subject to the doctrine of res judicata. We agree.

I

Before reaching the defendants’ claim on appeal, we must resolve the plaintiffs jurisdictional claim. The plaintiff claims that this court lacks subject matter jurisdiction to consider the defendants’ appeal, arguing that it was not taken from a final judgment. In Singhaviroj v. Board of Education, 124 Conn. App. 228, 232-33, 4 A.3d 851 (2010), this court held that the denial of a motion for summary judgment, predicated on the doctrine of res judicata, is a final judgment for purposes of an appeal pursuant to our Supreme Court’s decision in Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 195, 544 A.2d 604 (1988), which held that “[a] judgment denying [a] claim of collateral estoppel is a final judgment.” “[T]he defense of collateral estoppel is a civil law analogue to the criminal law’s defense of double jeopardy, because both invoke the right not to have to go to trial on the merits. Like the case of a denial of a criminal defendant’s colorable double jeopardy claim, where immediate appealability is well established ... [a] judgment denying [a] claim of collateral estoppel is a final judgment. . . . That precept applies to the doctrine of res judicata with equal force.” (Citations omitted; internal quotation marks omitted.) Singhaviroj v. Board of Education, supra, 232; see also Cayer v. Komertz, 91 Conn. App. 202, 203 n.2, 881 A.2d 368 (2005); Milford v. Andresakis, 52 Conn. App. 454, 455 n.1, 726 A.2d 1170, cert, denied, 248 Conn. 922, 733 A.2d 845 (1999). We conclude that the defendants’ appeal is properly before this court.

II

On the merits of the appeal, the defendants claim that the denial of their motions for summary judgment was improper because the claims alleged in the present action are barred by the doctrine of res judicata due to the fact that the judgment rendered in the first action was on the merits. We agree.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). “On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [or to deny a party’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Id.

“A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Internal quotation marks omitted.) Tiro-zzi v. Shelby Ins. Co., 50 Conn. App. 680, 684, 719 A.2d 62, cert, denied, 247 Conn. 945, 723 A.2d 323 (1998). Summary judgment is appropriate to determine whether a claim is barred by the doctrine of res judicata. See Singhaviroj v. Board of Education, supra, 124 Conn. App. 236.

“[T]he doctrine of res judicata . . . [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it. . . . Furthermore, [t]he judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest.” (Citations omitted; internal quotation marks omitted.) Tirozzi v. Shelby Ins. Co., supra, 50 Conn. App. 685-86.

“The doctrine of res judicata, or claim preclusion, prevents a litigant from reasserting a claim that has already been decided on the merits. . . . Under claim preclusion analysis, a claim — that is, a cause of action— includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. . . . Moreover, claim preclusion prevents the pursuit of any claims relating to the cause of action which were actually made or might have been made. . . . The doctrine of res judicata [applies] ... as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction . . . and promotes judicial economy by preventing relitigation of issues or claims previously resolved.” (Citations omitted; internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 123 Conn. App. 583, 590, 2 A.3d 963, cert, granted on other grounds, 299 Conn. 920, 10 A.3d 1053 (2010). In this case, the elements of res judicata are satisfied; the identity of the parties, or their privies, is the same and the complaint alleges the same causes of action alleged in the first action. See, e.g., Tirozzi v. Shelby Ins. Co., supra, 50 Conn. App. 686.

Our resolution of this appeal turns on whether the motions to strike granted in the first action went to the merits of the causes of action. Practice Book § 10-39 (a) provides in relevant part: “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ... or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof.” “Any adverse party who objects to this motion shall, at least five days before the date the motion is to be considered on the short calendar, file and serve ... a memorandum of law.” Practice Book § 10-42 (a).

“A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court. As a result, our review of the [trial] court’s ruling is plenary. . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Thus, we assume the truth of both the specific factual allegations and any fact fairly provable thereunder. In doing so, moreover, we read the allegations broadly . . . rather than narrowly.” (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010).

A motion to strike a cause of action in its entirety challenges the most fundamental aspect of a plaintiffs cause of action. See Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 15, 578 A.2d 646 (1990). “If no cause of action was stated and the complaint could not be amended to correct this deficiency, judgment necessarily would be rendered for the defendants.” Id., 15-16. That a judgment rendered pursuant to a motion to strike is a judgment on the merits has been a part of our decisional law for more than a century. “Since the decision on the [motion to strike] determined that no right of action existed, the judgment [following a failure to plead over] was as final and complete as a judgment following a trial on the merits.” Carvette v. Fidelity & Deposit Co., 152 Conn. 697, 699, 204 A.2d 409 (1964). “The fact that the former judgment was upon demurrer, does not militate in the least against its being a decision on the merits, and as binding as a judgment after verdict.” Brennan v. Berlin Iron Bridge Co., 71 Conn. 479, 487, 42 A. 625 (1899).

In this matter, the defendants filed motions to strike, and the plaintiff opposed the motions by filing objections and supporting memoranda of law. The parties appeared before Judge Pittman and argued the same. In its memorandum of decision, the court concluded that the complaint in the first action, “without any appended opinion letter that demonstrates a pre-suit opinion from a similar health care provider, is legally insufficient.” (Emphasis in original.) The sufficiency of the allegations of the complaint, therefore, were contested, or litigated, by the parties.

In Tirozzi v. Shelby Ins. Co., supra, 50 Conn. App. 680, the same parties and the same claims were asserted in two separate causes of action; “the plaintiff sought damages under his employer’s underinsured motorist coverage.” Id., 686. The first action was stricken due to the state of the law of underinsured motorist coverage at the time. Subsequently, the legislature amended the law, and our Supreme Court held that the amendment had retroactive application. Id., 683-85. The plaintiff in Tirozzi never attempted to have the judgment in the first action set aside and brought a second action. Id., 682-83; see footnote 9 of this opinion. This court concluded that the second suit was barred by the doctrine of res judicata because “[t]he judgment in the first action was rendered on the merits by a court of competent jurisdiction.” (Internal quotation marks omitted.) Tirozzi v. Shelby Ins. Co., supra, 686. This court reasoned that “[t]he motion to strike required the trial court to decide the merits of the plaintiffs claim. The parties had the opportunity to fully litigate the matter. The motion to strike was contested, and both parties participated in oral argument. . . . After the trial court granted the motion to strike, the plaintiff neither repleaded pursuant to Practice Book § 10-44 nor took an appeal. The plaintiff, therefore, had an adequate opportunity to litigate the matter in the first action and to seek appellate review.” Id., 686-87. The trial court, therefore, “correctly determined that the judgment in the first action was preclusive and, by failing to replead or take an appeal, the plaintiff abandoned his opportunities to avoid res judicata.” Id., 689.

For the foregoing reasons, the defendants’ motions for summary judgment should have been granted, as the causes of action alleged with respect to each of the defendants in the present action were barred by the doctrine of res judicata. We recognize that although the loss of a spouse is enormous and that such a loss “is easily comprehensible to anyone with knowledge of the human condition, the trial judge, armed with such knowledge, nonetheless was not relieved of his obligation to apply the law reasonably applicable to the plaintiffs complaint and the state of the pleadings.” Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn. App. 569, 571, 966 A.2d 813, cert, denied (death of plaintiffs child), 292 Conn. 911, 973 A.2d 661 (2009).

The judgment is reversed and the case is remanded with direction to grant the defendants’ motions for summary judgment.

In this opinion the other judges concurred.

       Generally, the denial of amotion for summary judgment is not appealable, but the denial of a motion for summary judgment predicated on the doctrine of res judicata is a final judgment for purposes of appeal. See part I of this opinion, quoting Singhaviroj v. Board of Education, 124 Conn. App. 228, 232, 4 A.3d 851 (2010).

       General Statutes § 52-190a (a) provides in relevant part: “No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987 ... in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action . . . has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint . . . shall contain a certificate of the attorney or party filing the action ■ ■ • that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant .... To show the existence of such good faith, the claimant. . . shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. . . .”

       General Statutes § 52-190a (c) provides that “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for dismissal of the action.”

       Although Judge Prestley concluded that Santorso’s failure to include a good faith certificate and opinion letters was a curable defect, this court in Rios v. CCMC Corp., 106 Conn. App. 810, 822, 943 A.2d 544 (2008), held that “the plain language of this new statutory subsection [§ 52-190a (c)] . . . expressly provides for dismissal of an action when a plaintiff fails to attach a written opinion of a similar health care provider to the complaint, as required by § 52-190a (a).”
      “[M]otions to dismiss are not limited to jurisdictional challenges. . . . For example, under General Statutes § 52-549t (b) a court may dismiss an action when parties have failed to appear before a fact finder. The dismissal in § 52-549t (b) is discretionary and in no way implicates the jurisdiction or the power of the court to hear the case. Similarly, Practice Book § 14-3 provides for dismissal due to lack of diligence in prosecution of an action. Again, the power of the court to hear the case is not implicated by virtue of a dismissal for lack of diligent prosecution under this provision.” (Citation omitted.) Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn. App. 569, 582-83, 966 A.2d 813, cert, denied, 292 Conn. 911, 973 A.2d 661 (2009).
      “A plaintiff’s failure to comply with the requirements of § 52-190a (a) does not destroy the court’s subject matter jurisdiction over the claim; it does not affect the power of the court to hear her medical malpractice action. However, the legislature has provided that such a failure does render her complaint subject to dismissal pursuant to § 52-190a (c). Dismissal pursuant to this section is a statutory remedy for any defendant who is subject to a legal action in which the statutorily required written opinion is not annexed to the complaint or initial pleading.” Id., 583-84; see also Bennett v. New Milford Hospital, Inc., 117 Conn. App. 535, 550, 979 A.2d 1066 (2009) (action properly dismissed when opinion letter not authored by similar health care provider), affd, 300 Conn. 1, 12 A.3d 865 (2011).

       Judge Prestley noted the absence, at the time, of appellate authority with respect to § 52-190a (c) and the division of authority on the question of subject matter jurisdiction among the judges of the Superior Court. Judge Prestley concluded that a court’s decision to dismiss a complaint for failure to attach a written opinion was discretionary. She relied on LeConche v. Elligers, 215 Conn. 701, 709-10, 579 A.2d 1 (1990), superseded by No. OS-275, § 2, of the 2005 Public Acts, which was codified in § 52-190a (c), for the proposition that the certificate required by § 52-190a (a) prior to the 2005 amendment was not jurisdictional, as the Superior Court traditionally has had subject matter jurisdiction to adjudicate actions alleging medical negligence. Judge Prestley also concluded that the question of when the opinion letters were authored was not a jurisdictional matter, and the sufficiency of the opinions could be tested by means of a motion to strike.

       The plaintiff was appointed administratrix of Santorso’s estate after he died in 2007.

       On appeal, the plaintiff has argued that the defendants’ motions for summary judgment were properly denied because the first action had not been decided on its merits pursuant to § 52-592 (a). We need not address this contention in this appeal. But see Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 56, 12 A.3d 885 (2011) (“we conclude that a plaintiff may bring a subsequent medical malpractice action pursuant to the matter of form provision of § 52-592 [a] only when the trial court finds as a matter of fact that the failure in the first action to provide an opinion letter that satisfies § 52-190a [a] was the result of mistake, inadvertence or excusable neglect, rather than egregious conduct or gross negligence on the part of the plaintiff or his attorney”). Judge Shortall stated that “[i]t cannot be said that counsel’s failure to file a good faith certificate and opinion letters in [the first action] was the result of ‘mistake, inadvertence or excusable neglect.’ ”

       In denying the defendants’ motions for summary judgment, the court concluded, in relevant part, that the judgment in the first action was not rendered on the merits; that a plaintiff who fails to comply with § 52-190a may avail herself of the benefit of § 52-592 if the first action failed for any matter of form; that Creed’s failure to comply with § 52-190a (a) was deliberate and not “the result of ‘mistake, inadvertence or excusable neglect’ ” but that Creed’s conduct was not sufficient to deny the plaintiff the benefit of § 52-592; the defendants were not unduly prejudiced; Creed complied with § 52-190a (a) before commencing the present action; and the “harsh consequences of visiting upon the client the consequences of her attorney’s misconduct are mitigated by [§ 52-592 (a)].” Finally, the court concluded that the purpose of § 52-592 and the state’s policy preference to secure a litigant’s day in court and to resolve a dispute on its merits could be achieved without unfair prejudice to the defendants and without undermining the purpose of § 52-190a. The court found that the first action was defeated for a matter of form in that Creed failed to file the required good faith certificate and opinion letters and that § 52-592 (a) saved the present action from the effects of the running of the statute of limitations and the statute of repose.

       Because we resolve the defendants’ appeal on res judicata grounds, we need not consider whether the accidental failure of suit statute is applicable to the facts of this case. But see Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 56, 12 A.3d 885 (2011).

       “The motion to strike . . . replaced the demurrer in our practice. Its function, like that which the demurrer served, is to test the legal sufficiency of a pleading.” (Citation omitted.) Alarm, Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980).


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    EDWARD MEHAN v. CITY OF STAMFORD ET AL.
    (AC 31648)
    DiPentima, C. J., and Beach and Pellegrino, Js.

      Argued December 9, 2010
    officially released April 5, 2011

      Maribeth M. McGloin, with whom, on the brief, was Scott Wilson Williams, for the appellants (defendants).

      Daniel A. Benjamin, with whom, on the brief, was Derek Mello, for the appellee (plaintiff).
   Opinion

BEACH, J.

The defendant city of Stamford appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner for the seventh district (commissioner) awarding workers’ compensation benefits to the plaintiff, Edward Mehan. On appeal, the defendant claims that the board erred in affirming the commissioner’s decision (1) granting the plaintiffs motion to preclude, (2) denying the defendant’s motion for reconsideration and (3) finding that the plaintiff sustained a compensable work-related injury. We affirm the decision of the board.

The following facts, as found by the commissioner and accepted by the board, are relevant to this appeal. The plaintiff had been a firefighter with the defendant since 1959. On February 10, 2001, he suffered chest pains while fighting a fire and subsequently was taken to Stamford Hospital for treatment and to undergo a medical examination. The results of his medical examination showed that he did not suffer a myocardial infarction. The plaintiff continued to suffer chest pains and, in March, 2001, underwent a cardiac catheterization by Robert L. Labarre, his treating physician. Following his catheterization, the plaintiff was informed that he had preexisting coronary artery disease.

Shortly after the February 10,2001 incident, the plaintiff reported it to his supervisor, who so informed the defendant’s third party administrator for workers’ compensation claims. On April 9, 2001, the plaintiff filled out a form 30C, in which he entered his personal information but did not fill out the “injury section” or sign the form. The plaintiff gave the partially completed form 30C to assistant fire chief Peter Brown and explained to him the nature of the injury that he sustained on February 10, 2001. Brown then filled out the “injury section” of the form, describing the nature of the plaintiffs injury, and signed the form on the plaintiffs behalf as his representative. The plaintiffs form 30C, however, apparently never was delivered to the defendant’s human resources department, which is where Brown normally sent such forms.

In October, 2002, the plaintiff was found to be physically unfit for active duty as a firefighter. In May and December, 2003, he had stents inserted into his coronary arteries. Having undergone these procedures and having been deemed physically unfit to work, the plaintiff retired in late 2003. On September 26, 2005, Labarre described the injury suffered by the plaintiff on February 10, 2001, as an “acute coronary syndrome.” He described the syndrome as an “insufficient blood flow via the coronary arteries to the heart” and opined that “[i]t is reasonably likely that [the plaintiffs] heart exertion while firefighting on [February 10, 2001] precipitated his acute coronary syndrome.”

The plaintiff initiated proceedings against the defendant, and a hearing was held on November 20, 2006, to determine whether the commissioner had subject matter jurisdiction to hear the case. On July 25,2007, the commissioner determined that she had subject matter jurisdiction to hear the case. On January 28, 2008, the plaintiffs case proceeded to a formal hearing on the merits before the commissioner. The hearing did not conclude on that date and was continued. In March, 2008, our Supreme Court issued its decision in Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102, 942 A.2d 396 (2008), and the plaintiff filed a motion to preclude the defendant from contesting liability on March 14, 2008. In support of his motion to preclude, the plaintiff relied on Harpaz and the fact that the defendant did not timely file a form 43.

The hearing on the merits resumed on April 7, 2008, and the record closed on June 25, 2008. On October 2, 2008, the commissioner denied the plaintiffs motion to preclude. The plaintiff filed a motion to correct and for reconsideration on October 3, 2008. On October 10, 2008, the commissioner granted the plaintiffs motion for reconsideration and issued, sua sponte, a decision vacating the October 2, 2008 order. Concluding that the plaintiff properly filed his form 30C and that the defendant did not timely file a form 43, the commissioner granted the plaintiffs motion to preclude on October 13, 2008. On October 16, 2008, the commissioner issued a decision concluding that the plaintiffs acute coronary syndrome, suffered as a result of the February 10, 2001 incident, was a compensable work-related injury that aggravated his preexisting coronary artery disease. The commissioner further concluded that the defendant was entitled to workers’ compensation benefits, including those for a 25 percent permanent partial disability rating to his heart.

On October 30, 2008, the defendant filed a motion for reconsideration regarding the commissioner’s October 16, 2008 decision, and also filed an appeal from the commissioner’s decision with the board. The commissioner denied the motion on January 28,2009. The board then affirmed the decision of the commissioner on October 14, 2009, and this appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the board erred in affirming the commissioner’s granting of the plaintiffs motion to preclude. Specifically, the defendant argues that the form 30C that the plaintiff delivered to Brown on April 9,2001, was insufficient to trigger its obligation to file a form 43. We disagree.

The following additional facts are relevant to our resolution of this claim. The commissioner made findings regarding the execution and delivery of the plaintiffs form 30C. Brown was an administrative chief with the defendant’s fire department, and it was his job to represent the department and its employees with matters involving the defendant’s human resources department. It was Brown’s obligation to deliver forms 30C to the human resources department, and in the ordinary course of business he would have delivered the plaintiffs form there. Historically, the defendant accepted forms 30C for processing from the human resources department, the town clerk’s office and the law department, thus establishing flexibility in the defendant’s service procedures. When the plaintiff handed his form 30C to Brown, Brown was an administrative agent of the defendant with apparent authority to act on the defendant’s behalf when dealing with the processing of workers’ compensation claims. Therefore, the timely notice of the plaintiffs claim to Brown constituted timely notice of the claim to the defendant, and any deficiency on Brown’s part in processing the plaintiffs form 30C did not deprive the defendant of timely notice of the plaintiffs claim. On the basis of these findings, the commissioner concluded that the plaintiff sufficiently complied with his obligation in presenting a form 30C, such that the defendant was put on notice of the plaintiffs claim, and thus triggered the defendant’s obligation to file a form 43, if it intended to contest liability. The board adopted the findings and affirmed the commissioner’s decision, holding that the commissioner properly granted the plaintiffs motion to preclude.

We begin by setting forth our standard of review governing workers’ compensation appeals. “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Neither the . . . board nor this court has the power to retry facts. It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the] board. . . . The commissioner has the power and duty, as the trier of fact, to determine the facts.” (Citation omitted; internal quotation marks omitted.) Cervero v. Mory’s Assn., Inc., 122 Conn. App. 82, 90, 996 A.2d 1247, cert, denied, 298 Conn. 908, 3 A.3d 68 (2010).

General Statutes § 31-294c governs notice of claims for workers’ compensation benefits. Section 31-294c (a) provides in relevant part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident .... Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident . . . and the name and address of the employee and of the person in whose interest compensation is claimed. . . .” The workers’ compensation commission created the form 30C for use in complying with § 31-294c (a). See Tardy v.Abington Constructors, Inc., 71 Conn. App. 140, 150, 801 A.2d 804 (2002).

Regarding the manner of serving a notice of claim for workers’ compensation benefits, General Statutes § 31-321 provides in relevant part: “Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commission direct otherwise, any notice required under this chapter to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail . . . .” Regarding any defects in notice, § 31-294c (c) provides in relevant part that “[n]o defect or inaccuracy of notice of claim shall bar maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning the personal injury and' was prejudiced by the defect or inaccuracy of the notice. ...” General Statutes § 31-294c (c).

Section 31-294c (b) dictates the strict standards of an employer that seeks to contest liability. Section 31-294c (b) provides in relevant part: “Whenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice in accord with a form prescribed by the chairman of the Workers’ Compensation Commission stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested. The employer shall send a copy of the notice to the employee in accordance with section 31-321. . . . Notwithstanding the provisions of this subsection, an employer who fails to contest liability for an alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury or death on or before such twenty-eighth day, shall be conclusively presumed to have accepted the compensability of the alleged injury or death.” The workers’ compensation commission created the form 43 for use in complying with § 31-294c (b).

The defendant claims that the board erred in affirming the commissioner’s granting of the motion to preclude because the plaintiffs form 30C was insufficient to trigger the defendant’s obligation to file a form 43. The defendant contends that the form 30C was insufficient because, at the time it was delivered to Brown, it did not contain the information required by § 31-294c (a) relating to the nature of and date of the plaintiffs injury. The defendant argues that without such information, the form 30C was insufficient to trigger its obligation to file a form 43, if it wanted to contest the claim. The plaintiff argues that his form 30C, as completed by Brown after discussion, was sufficient because it put the defendant on notice of his claim and thus triggered its obligation to file a form 43. We agree with the plaintiff.

Our Supreme Court has stated that “[t]he rule of strict compliance ... is not supported by either the plain language or the legislative history of [General Statutes §] 31-297 (b) [now § 31-294c].” Pereira v. State, 228 Conn. 535, 543 n.8, 637 A.2d 392 (1994). To the contrary, our Supreme Court has noted that “[§] 31-297 (b) [now § 31-294c] is remedial legislation that should be liberally construed to accomplish its humanitarian purpose.” Id. Section 31-294c “was enacted to require a prompt and thorough investigation of the employee’s claim so as to yield a specific disclaimer of liability and to avoid unnecessary delay in the adjudication of workers’ claims.” Id. Accordingly, “if the notice of claim is sufficient to allow the employer to make a timely investigation of the claim, it triggers the employer’s obligation to file [a form 43 contesting liability].” Id.; see also Tardy v. Abington Constructors, Inc., supra, 71 Conn. App. 149-50; Pernacchio v. New Haven, 63 Conn. App. 570, 575-76, 776 A.2d 1190 (2001).

In the present case, the commissioner found, and the board agreed, that the plaintiffs form 30C as delivered to and completed by Brown, after conversing with the plaintiff, was sufficient to give the defendant notice of his claim. To the extent that the determination of whether the defendant received proper notice of the claim is a factual issue, we generally are obligated to defer to the findings of the commissioner. See Cervero v. Mory’s Assn., Inc., supra, 122 Conn. App. 90. The record supports the commissioner’s finding that “[the plaintiff] timely notified . . . Brown ... of his work-related incident” and that “[s]aid notice resulted in the preparation of a form 30C [that] was reasonably calculated to give the employer notice of the claim.” The record also supports the commissioner’s finding that Brown was an agent of the defendant with authority to act on the defendant’s behalf in the processing of workers’ compensation claims. Furthermore, the defendant has not provided any persuasive argument as to why it may have been unreasonable for the commissioner to have concluded that timely notice to Brown, as the defendant’s agent, constituted timely notice to the defendant. Accordingly, the board did not err in determining that the plaintiffs form 30C was sufficient to trigger the defendant’s responsibility to file a form 43. We, therefore, conclude that the board properly affirmed the commissioner’s granting of the plaintiff s motion to preclude.

II

The defendant next claims that the board erred in affirming the commissioner’s denial of its motion for reconsideration. Specifically, the defendant argues that the denial of its motion deprived it of a meaningful opportunity to defend against the plaintiffs claim because the commissioner was prohibited from considering any evidence it presented, thus denying the defendant due process of law. We disagree.

The following additional facts are relevant to our resolution of this claim. After granting the plaintiffs motion to preclude, the commissioner, in rendering her decision, considered only the evidence presented by the plaintiff to prove a prima facie case of compensability and expressly disregarded all evidence previously offered by the defendant. In its motion for reconsideration, the defendant argued that although Harpaz limited its ability to defend once a motion to preclude has been granted, it should “at least be provided the due process opportunity to address, via posttrial memorandum, what Harpaz means in general, and, more importantly, its impact upon a decision on entitlement to benefits, including permanent partial disability benefits, in the context of [the plaintiffs] case.” The commissioner denied the motion on January 28, 2009. The board, in rendering its decision, concluded that the Supreme Court’s decision in Donahue v. Veridiem, Inc., 291 Conn. 537, 970 A.2d 630 (2009), “clearly demonstrate[d] that the . . . commissioner properly applied the precedent in Harpaz in rendering her decisions ... as to the effect of preclusion.”

The defendant asks this court to hold that the conclusive presumption contained in § 31-294c (b) is an unconstitutional denial of due process. We are constrained by our Supreme Court’s decisions in Harpaz v. Laidlaw Transit, Inc., supra, 286 Conn. 102, and Donahue v. Veridiem,, Inc., supra, 291 Conn. 537. In Harpaz, our Supreme Court analyzed the extent to which a motion to preclude pursuant to § 31-294c (b) limits an employer’s ability to contest compensability for a claim of workers’ compensation. The court concluded that “under § 31-294c (b), if an employer neither timely pays nor timely contests liability, the conclusive presumption of com-pensability attaches and the employer is barred from contesting the employee’s right to receive compensation on any ground or the extent of the employee’s disability.” Harpaz v. Laidlaw Transit, Inc., supra, 130. The court also held that although a motion to preclude bars noncomplying employers from contesting liability, a claimant is still required “to prove that he has suffered a compensable injury, i.e., an injury that arose out of and in the course of his employment, including the extent of his disability.” Id., 131.

In Donahue, our Supreme Court further examined the extent to which an employer’s ability to contest a workers’ compensation claim is limited by the granting of a motion to preclude, addressing the issue of “whether an employer subject to the conclusive presumption is precluded from challenging the claimant’s proof through cross-examination and submission of a written argument.” Donahue v. Veridiem,, Inc., supra, 291 Conn. 540. The court answered in the affirmative, holding that “once a motion to preclude is granted, the only role an employer plays is to decide whether to stipulate to the compensation claimed. If the employer does not so stipulate, the claimant proceeds with her case, subject to examination by the commissioner.” Id., 546-47.

The court acknowledged that it was “conscious of the drastic effect of a [m]otion to [preclude, as it divests the employer of the right to contest liability for a claim. ” (Internal quotation marks omitted.) Id., 550. The court further acknowledged that it did “not believe that this rather harsh remedy should be imposed without ensuring that both parties have been provided with . . . due process protections . . . .” (Internal quotation marks omitted.) Id. The court reasoned that an employer is not denied due process because “the employer does have a role to play following [the granting of a motion to preclude], albeit a rather limited one.” Id. The court described the nature of the employer’s role as follows: “[W]hen an employer stipulates entirely to the compensation being claimed, that is, both the compensability and the extent of disability arising from the alleged injury, the remand to the commissioner usually involves a nondiscretionary calculation of benefits using the formula set forth by statute and thus is a final judgment; but when the employer does not so stipulate, an evidentiary hearing is necessary so that the claimant may prove her right to the compensation claimed. ” Id., 551. Accordingly, the court concluded that “[t]here is nothing . . . to suggest that an employer has the right to test the evidence proffered by the claimant ... by way of question or argument.” Id.

In arguing that the conclusive presumption contained in § 31-294c (b) is unconstitutional, the defendant essentially asks this court to overturn both Harpas and Donahue. It is axiomatic that “[o]ur Supreme Court is the ultimate arbiter of the law in this state.” State v. Brown, 73 Conn. App. 751, 756, 809 A.2d 546 (2002). “[W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.” (Internal quotation marks omitted.) State v. Smith, 107 Conn. App. 666, 684-85, 946 A.2d 319, cert, denied, 288 Conn. 902, 952 A.2d 811 (2008). Accordingly, we must decline the defendant’s request to reevaluate decisions of our Supreme Court.

m

The defendant finally claims that the board erred in affirming the commissioner’s decision concluding that the plaintiffs February 10, 2001 incident was a compen-sable work-related injury. Specifically, the defendant argues that the board erred in affirming the commissioner’s decision because the evidence presented did not support the commissioner’s conclusion that the acute coronary syndrome that the plaintiff suffered as a result of the February 10, 2001 incident was a substantial contributing factor in the aggravation of his preexisting coronary artery disease. We disagree.

We begin by reiterating our standard of review that governs workers’ compensation appeals. “The commissioner is the sole trier of fact and [t]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry the facts. ... On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s findings and award. . . . Our scope of review of [the] actions of the [board] is [similarly] . . . limited. . . . [However] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) DiBlase v. Logistec Connecticut, Inc., 123 Conn. App. 753, 757-58, 3 A.3d 128, cert, denied, 299 Conn. 908, 10 A.3d 524 (2010).

In arguing that the evidence presented did not support the commissioner’s conclusion that the plaintiffs acute coronary syndrome was a substantial contributing factor in the aggravation of his preexisting coronary arteiy disease, the defendant points to the following testimony of Labarre: “I do think, with a fair likelihood, that his climbing five flights of stairs at age sixty-eight, carrying heavy medical equipment, which we assessed could be more than seventy pounds, at this time could have exacerbated coronary disease through a physical force which may have moved coronary plaque and caused a transient but significant acute coronary syndrome for which he was hospitalized . . . .” The defendant contends that in light of this testimony, the commissioner reasonably could not have concluded that the plaintiffs acute coronary syndrome was a significant contributing factor in his coronary artery disease. After examining the evidence considered by the commissioner in its totality, we conclude that there was sufficient evidence from which she reasonably could have concluded that the plaintiffs acute coronary syndrome was a significant contributing factor to coronary artery disease.

In rendering her decision, the commissioner relied on the deposition of Labarre. In his deposition, Labarre testified that it was his opinion, “ío a reasonable medical probability” that the plaintiffs exertion while fighting a fire on February 10, 2001, precipitated his acute coronary syndrome. (Emphasis added.) Labarre further testified that it was his opinion to a reasonable medical probability that the plaintiffs acute coronary syndrome aggravated his preexisting coronary artery disease. Additionally, Labarre opined that prior to the plaintiffs February 10, 2001 acute coronary syndrome, his coronary artery disease was stable. Labarre also noted, that following the February 10, 2001 incident, the plaintiff had an increase in his anginal pattern. Finally, Labarre stated that the plaintiff suffered from a 30 percent permanent partial disability of the heart, 25 percent of which was attributable to coronary artery disease.

On the basis of this information, the commissioner concluded that the plaintiff suffered a compensable work-related injury and was entitled to workers’ compensation benefits. In its decision, the board concluded that “[gjiven the totality of the evidence provided, we believe [that] the . . . commissioner could reasonably have determined that the February 10, 2001 cardiac incident did not create merely a transient impairment in the [plaintiffs] medical condition but, instead, led to a permanent increase in the [plaintiffs] level of disability.” The evidence presented supported the commissioner’s decision. Accordingly, we conclude that the board did not err in affirming the decision of the commissioner awarding workers’ compensation benefits to the plaintiff.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The other defendant, PMA Management Coiporation of New England, did not file a separate brief or participate at oral argument in this appeal. We refer in this opinion to the city of Stamford as the defendant.

       A myocardial infarction is a heart attack. Stedman’s Medical Dictionary (27th Ed. 2000) p. 895.

       Prior to the February 10, 2001 incident, the plaintiff was treating with Joseph Costanzo, a physician, for hypertension.

       A form 30C is the document prescribed by the workers’ compensation commission to be used when filing a notice of claim pursuant to the Workers’ Compensation Act, General Statutes § 31-275 et seq.

       A stent is defined as a “thread, rod, or catheter, lying within the lumen of tubular structures, used to provide support during or after their anastomosis, or to assure patency of an intact but contracted lumen.” Stedman’s Medical Dictionary (27th Ed. 2000) p. 1696.

       A form 43 is a disclaimer that notifies a claimant who seeks workers’ compensation benefits that the employer intends to contest liability to pay compensation. If an employer fails timely to file a form 43, a claimant may file a motion to preclude the employer from contesting the compensability of his claim.

       The defendant does not contest the fact that it did not file a timely form 43 in response to the plaintiffs April 9, 2001 form 30C. The defendant contests only the determination that the plaintiffs form 30C was sufficient to trigger its obligation to file a form 43.

       In McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117, 527 A.2d 664 (1987), our Supreme Court stated that it is a “long-standing rule that the claimant must prove that a sudden, unusual, and unexpected employment factor was a substantial factor in causing the claimant’s condition.” The court further stated that “[i]n order to recover [workers’ compensation benefits], the claimant must prove causation by a reasonable medical probability.” Id., 118.


author: ALVORD, J.

text:
    DIAMOND 67, LLC v. PLANNING AND ZONING COMMISSION OF THE TOWN OF VERNON
    (AC 31913)
    Alvord, Bear and Peters, Js.

      Argued November 8, 2010
    officially released April 5, 2011

      Derek V. Oatis, for the appellant (intervenor).

      Harold R. Cummings and Doreen Amata, for the appellee (defendant).

      Robert A. Fuller and Stanley Falkenstein, for the appellee (plaintiff).
   Opinion

ALVORD, J.

This appeal arises from a judgment rendered in accordance with a settlement agreement in which the plaintiff, Diamond 67, LLC; the intervening plaintiff, Home Depot U.S.A., Inc.; and the defendant, the planning and zoning commission of the town of Vernon, settled this mandamus action pertaining to the plaintiffs site plan application. Glenn Montigny, an environmental intervenor pursuant to General Statutes § 22a-19, claims that on remand from this court, the trial court (1) improperly denied his request for a continuance, (2) misinterpreted our remand order in Diamond 67, LLC v. Planning & Zoning Commission, 117 Conn. App. 72, 978 A.2d 122 (2009), and (3) improperly approved the settlement between the plaintiff and the defendant without his consent. The plaintiff and the defendant claim, as alternate grounds for affirmance of the court’s decision, that Montigny, as an environmental intervenor, does not have standing to raise procedural issues on appeal or to challenge a stipulated judgment that was reviewed and approved by the Superior Court. We affirm the judgment of the trial court.

The decision of this court in Montigny’s previous appeal sets forth the following facts and procedural history that are relevant to the present appeal. “In 2003, in connection with its proposed development of the subject property known as 117 Reservoir Road in Vernon, [the plaintiff] applied to the Vernon inland wetlands commission (wetlands commission) for a wetlands permit and to the defendant for site plan approval and related permits. Thereafter, the wetlands commission denied [the plaintiffs] application, and [the plaintiff] appealed to the Superior Court. On May 10, 2007, after several proceedings before the Superior Court and the wetlands commission, the court, Hon. Lawrence C. Klaczak, judge trial referee, sustained the appeal and remanded the application to the wetlands commission for the purpose of attaching conditions to the issuance of a wetlands permit. The wetlands commission subsequently issued a permit to [the plaintiff].

“In 2003, while resolution of [the plaintiffs] wetlands permit application was pending, the defendant tabled [the plaintiffs] site plan and related permit application. After the wetlands application was substantially resolved by the judgment of the Superior Court in May, 2007, [the plaintiff] filed a new and similar application with the defendant for approval of a site plan and related permits. In June, 2007, however, [the plaintiff] made a written demand to the defendant to approve its 2003 application, alleging that the defendant had failed to act within the time limits in General Statutes § 8-3 (g) and General Statutes (Rev. to 2003) § 8-7d. In July, 2007, after the defendant faded to respond to [the plaintiffs] demand letter, [the plaintiff] filed this action, seeking a writ of mandamus directing the defendant to issue a certificate of approval of the 2003 application. Thereafter, the defendant denied [the plaintiffs] 2003 application, a decision from which [the plaintiff] filed an administrative appeal, separate from its mandamus action.

“While the mandamus action and the administrative appeal were pending, Montigny filed a motion, pursuant to ... § 22a-19 (a), to intervene in both actions. . . . On October 17, 2007, the court, Sferrazza, J., granted Montigny’s motion to inteivene in the administrative appeal and denied his motion to inteivene in the mandamus action. The court’s rationale was that the administrative appeal clearly fell within the ambit of § 22a-19 (a) but that Montigny did not have the right to intervene in the mandamus action because the complaint was based on the automatic approval doctrine . . . and, therefore, the environmental impact of the site plan was immaterial.

“After the court denied Montigny’s motion to intervene in the mandamus action, the [plaintiff, Home Depot U.S.A., Inc.] and the defendant engaged in mediation and settlement discussions in the mandamus action, in which Montigny was precluded from participating. The settlement discussions led to a possible agreement on a new site plan, which differed from the 2003 application at issue in both appeals. The defendant held an informal public forum to discuss the new plan but acknowledged that the forum ‘was not a public hearing as that term is legally defined . . . .’ Thereafter, the defendant voted to approve the settlement, and [the plaintiff] moved for the court to render judgment in accordance with it. On February 13, 2008, before any action was taken on the motion for judgment in accordance with the settlement agreement, Montigny filed a renewed motion to intervene. He argued that unlike the issues in a mandamus action, review of the settlement between the [plaintiff, Home Depot U.S.A., Inc.] and the defendant required the court to consider the environmental impact of the new plan, and, therefore, pursuant to § 22a-19 (a), he had a right to intervene.

“On February 14, 2008, a hearing took place on the motion for judgment in accordance with the settlement agreement. The court, Sferrazza, J., began the hearing by denying Montigny’s renewed motion to intervene but permitted Montigny’s counsel to participate in the hearing on a limited basis. Consistent with the request by the [plaintiff, Home Depot U.S.A., Inc.] and the defendant, the court treated the motion as one for judgment in accordance with their settlement. . . . The court did not conduct a hearing compliant with General Statutes (Rev. to 2003) § 8-8 (n), which requires a more scrupulous review of settlements in administrative appeals. See generally Willimantic Car Wash, Inc. v. Zoning Board of Appeals, 247 Conn. 732, 724 A.2d 1108 (1999).

“At the hearing, Montigny’s counsel articulated his argument on the motion to intervene, but he was not permitted to address the environmental impact of the proposed settlement. Counsel for the defendant, [the plaintiff and Home Depot U.S.A., Inc.] provided a brief description of the agreed on modifications to the 2003 application, but the court did not inquire about the merits of the mandamus action or the environmental implications of the settlement. The court rendered judgment in accordance with the terms of the settlement after confirming that the representatives of the [plaintiff, Home Depot U.S.A., Inc.] and the defendant understood it.” (Citations omitted.) Diamond 67, LLC v. Planning & Zoning Commission, supra, 117 Conn. App. 75-78.

Montigny appealed from that judgment, claiming that the trial court had improperly denied his renewed motion to intervene. Id., 79. We agreed and reversed the judgment of the court. This court concluded that § 22a-19 may also apply to proceedings that are not administrative proceedings. Id., 82. We acknowledged that, in general, there is no right to intervene in a mandamus action, because the only necessary party is the person or entity whose duty it is to perform the act sought. Nevertheless, we concluded that, under the specific facts of this case, the court improperly denied Montigny’s renewed motion to intervene in the mandamus action. Id., 83-84. We reached this conclusion because the substance of the settlement between the plaintiff, Home Depot U.S.A., Inc., and the defendant addressed the issues of the administrative appeal and was not limited to the issues of the mandamus action. In substance, the settlement resolved the administrative appeal. Id., 84-85.

We reversed the judgment and remanded the case with direction to grant Montigny’s motion to intervene and for further proceedings consistent with the opinion. Id., 85. This court stated that “[o]n remand, before rendering judgment in accordance with a settlement between the [plaintiff, Home Depot U.S.A., Inc.] and the defendant, the court must conduct a hearing compliant with § 8-8 (n) to review the settlement, in which Mon-tigny is entitled to participate for the purpose of raising environmental issues. . . . Our holding is limited to the circumstances presently before us, in which the purported settlement of the mandamus action was reached through concessions that addressed the substance of the administrative appeal, which were irrelevant in the mandamus action, and in which the parties could not have settled the administrative appeal without the participation of Montigny.” Id. Further, this court noted that the “decision does not preclude the [plaintiff and Home Depot U.S.A., Inc.] from continuing to seek a writ of mandamus in the Superior Court.” Id., 85 n.8.

Pursuant to this court’s remand order, on September 29, 2009, the trial court issued a computer generated notice of hearing scheduled for October 21, 2009, to all of the parties. Montigny’s counsel attended the scheduled hearing, as did counsel for the plaintiff, Home Depot U.S.A., Inc., and the defendant. At the beginning of the hearing, the court granted Montigny intervenor status. The court then stated that Montigny’s counsel should indicate how he wished to proceed with the § 8-8 (n) hearing. Montigny’s counsel responded that a § 8-8 (n) hearing could not proceed because such hearings were permitted by statute only in zoning appeals. He then argued that a mediator’s report and notice to interested parties and abutting landowners were required before such a hearing could commence. When the court indicated that it intended to proceed with the § 8-8 (n) hearing, Montigny’s counsel requested a short recess to review the statutes and Practice Book rules. The court granted his request.

When court reconvened, Montigny’s counsel represented that the intervenor was not prepared at that point to offer testimony regarding environmental issues because the remand order of this court was ambiguous. He further claimed that he had not received notice of the scheduled hearing and was unaware that he was expected to bring his witnesses to address the merits of Montigny’s environmental claims. He stated that he had been made aware of the hearing indirectly, at a status conference held a few weeks prior in a related matter. For those reasons, Montigny’s counsel orally requested a continuance of the hearing. The court denied the request and proceeded with the hearing. Montigny’s counsel cross-examined the other parties’ witnesses. He did not present any evidence concerning environmental issues.

The parties, including Montigny, submitted simultaneous briefs after the hearing. Montigny claimed that (1) the court was in error for failing to grant a continuance because he had no notice of the hearing, (2) the parties were without legal authority to settle the action pursuant to § 8-8 (n) because the statute applied to administrative appeals only and (3) there could be no judgment in accordance with the proposed settlement because Montigny did not consent to the settlement.

By memorandum of decision issued December 3, 2009, the court found that (1) Montigny was provided adequate notice of the October 21, 2009 hearing, (2) counsel for the plaintiff and the defendant appeared at the hearing with their witnesses and were prepared to proceed, (3) delaying the matter under the circumstances was unwarranted and would be an unreasonable burden on the opposing parties and judicial resources, (4) it had granted Montigny intervenor status and held the required hearing in compliance with § 8-8 (n) as directed in this court’s remand order, (5) the intervenor was not present in court and no evidence was offered to support any claim of an environmental impact from the proposed development and (6) the proposed settlement was reached by good faith negotiations and was fair, just and reasonable. Accordingly, the court approved the settlement proposal and rendered judgment in accordance with the terms of the agreement.

Montigny filed a motion to reargue the decision, which was denied by the court on January 5, 2010. This appeal followed.

I

“Ordinarily, we would consider . . . alternate grounds for affirmance only after finding merit in [the claim] raised on appeal. [0]nce the question of lack of jurisdiction of a court is raised, [however, it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case.” (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). We therefore consider as a threshold issue the claims of the plaintiff and the defendant that Mon-tigny lacks standing to pursue the issues raised in his appeal because, as an environmental intervenor, he cannot raise procedural issues or challenge a stipulated judgment that was reviewed and approved by the Superior Court.

“[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Fleet National Bank v. Nazareth, 75 Conn. App. 791, 793, 818 A.2d 69 (2003).

A

In support of their claim that Montigny does not have standing in this court to challenge the manner in which the hearing on remand was held, the plaintiff and the defendant cite Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 953 A.2d 1 (2008). In that case, our Supreme Court held that the environmental intervenors lacked standing because they failed to raise any environmental issues in accordance with § 22a-19, and, accordingly, the court dismissed their appeal. Id., 163. Because Montigny has not raised environmental issues in the present appeal, the plaintiff and the defendant argue that he lacks standing to pursue his procedural claims.

Pond View, LLC, did not involve a stipulation as to land use and the competing interests that arise when such settlements are reached. See Sendak v. Planning & Zoning Commission, 7 Conn. App. 238, 242-43, 508 A.2d 781 (1986). Furthermore, Montigny’s claims are based on the premise that he was precluded from raising the environmental issues because he had not received notice of the hearing, was denied a continuance to prepare for the hearing and had not consented to the settlement agreement. We therefore conclude that he has standing to bring this appeal.

B

The plaintiff and the defendant also claim that Mon-tigny lacks standing because a stipulated judgment is not an appealable decision. Citing Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 793 A.2d 215 (2002), and Sendak v. Planning & Zoning Commission, supra, 7 Conn. App. 238, they argue that the decision of a land use agency to settle an appeal by a stipulated judgment is valid and not subject to appeal in the absence of bad faith, collusion or other improper conduct by the parties. For that reason, they claim that Montigny’s appeal should be dismissed. We disagree.

Although this case is similar to Brookridge District Assn, and Sendak in that it involves a settlement agreement, it is distinguishable from both of those cases. In Sendak, the Ridgefield planning and zoning commission obtained a stipulated judgment to settle several pending actions. Sendak v. Planning & Zoning Commission, supra, 7 Conn. App. 239. The plaintiffs appealed to the trial court, which dismissed the appeal for lack of subject matter jurisdiction. Id. This court affirmed the dismissal, reasoning that permitting a third party to appeal a commission’s decision to settle a land use case should not be allowed because such an appeal would undercut the important interest of promoting the settlement of litigation by agreement of the parties. Id., 243. Sendak did not involve a hearing under § 8-8 (n) and, in fact, was decided before the hearing requirement existed. See id., 243 n.l.

In Brookridge District Assn., the trial court dismissed an appeal from a commission’s decision to enter into a proposed stipulated judgment. Our Supreme Court, citing Sendak, upheld the dismissal. Brookridge District Assn. v. Planning & Zoning Commission, supra, 259 Conn. 613-14. Brookridge District Assn, also did not involve a hearing pursuant to § 8-8 (n) because the plaintiff appealed from the commission’s decision to settle before a settlement hearing had been held. Id., 618 n.ll. In this case, such a hearing was held, and Montigny’s challenge to the judgment rendered in accordance with the settlement agreement is premised on his claim that the proceeding was flawed. The policy concerns expressed in Sendak and Brookridge District Assn, do not preclude our review under these circumstances.

II

We next turn to Montigny’s first claim on appeal, which is that the court improperly denied his request for a continuance of the hearing. Specifically, he argues that the court’s denial was unfair and arbitrary because he had not received notice from the court that a hearing was to be held on October 21, 2009, at which time he was required to appear with his witnesses. He claims that no information regarding the substance of the hearing was ever provided or received.

“A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion. . . . We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of trial. . . . Every reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.” (Internal quotation marks omitted.) Irving v. Firehouse Associates, LLC, 82 Conn. App. 715, 719-20, 846 A.2d 918 (2004). In deciding whether to grant a continuance, the court of necessity balances several factors, including the importance of effective case flow management and the relative harm or prejudice to the parties. Id., 720.

In the present case, our remand order indicated that “before rendering judgment in accordance with a settlement between the [plaintiff] and the defendant, the court must conduct a hearing compliant with § 8-8 (n) to review the settlement, in which Montigny is entitled to participate for the purpose of raising environmental issues.” Diamond 67, LLC v. Planning & Zoning Commission, supra, 117 Conn. App. 85. The purpose and the parameters of the hearing are set forth in that remand order. Pursuant to the remand order, the trial court sent a computer generated notice to the parties advising them of the date and time of the hearing and requiring counsel, the parties and their witnesses to attend. The court indicated, and our review of the court records confirms, that notice was sent to Montigny’s counsel.

Moreover, Montigny’s counsel did appear at the October 21, 2009 hearing. He claimed that he learned of the hearing only indirectly at a status conference in a related matter held two weeks prior to the scheduled hearing. He maintains, however, that he believed Mon-tigny would be granted intervenor status at the October 21, 2009 hearing and that an additional hearing would be scheduled to present evidence as to the settlement agreement and environmental issues. Yet, despite his assertion that the remand notice was ambiguous and he was confused, Montigny’s counsel failed to seek clarification from the case flow coordinator, the clerk’s office or the court prior to the hearing date. The plaintiff, the defendant and their witnesses were present and ready to proceed with the evidence.

In light of the foregoing, we cannot conclude that the trial court abused its discretion in denying Montigny’s request for a continuance on the day of the scheduled hearing.

Ill

Montigny’s next claim is that the court misinterpreted our remand order in Diamond 67, LLC v. Planning & Zoning Commission, supra, 117 Conn. App. 72. Specifically, he argues that this court’s order required any settlement to be approved in a § 8-8 (n) hearing in an administrative appeal proceeding pursuant to § 8-8, and not in the present mandamus action. He claims that the plaintiff and the defendant “simply repeated their prior conduct and continued to treat, what was clearly an administratively based action, as a civil action.”

We begin our analysis with the applicable standard of review. “Determining the scope of a remand is a matter of law because it requires the trial court to undertake a legal interpretation of the higher court’s mandate in light of that court’s analysis. See, e.g., Higgins v. Karp, 243 Conn. 495, 502-503, 706 A.2d 1 (1998) (duty of trial court to comply with Supreme Court mandate according to its true intent and meaning . . .). Because a mandate defines the trial court’s authority to proceed with the case on remand, determining the scope of a remand is akin to determining subject matter jurisdiction. . . . We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Citation omitted; internal quotation marks omitted.) Hurley v. Heart Physicians, P.C., 298 Conn. 371, 383, 3 A.3d 892 (2010).

Our remand order provides: “On remand, before rendering judgment in accordance with a settlement between the [plaintiff] and the defendant, the court must conduct a hearing compliant with § 8-8 (n) to review the settlement, in which Montigny is entitled to participate for the purpose of raising environmental issues.” Diamond 67, LLC v. Planning & Zoning Commission, supra, 117 Conn. App. 85. The direction to the trial court is clear. This is a mandamus action, but the settlement in substance resolves the administrative appeal; id.; we therefore ordered a hearing that would be compliant with § 8-8 (n). If, as argued by Montigny, we intended that the hearing take place in the administrative appeal action, we would have expressly so stated, and we would have required that the trial court conduct a hearing pursuant to § 8-8 (n).

The trial court followed this court’s mandate and conducted a hearing compliant with § 8-8 (n). Montig-ny’s claim that the court misinterpreted our remand order is without merit.

IV

Montigny’s final claim is that the court improperly approved the settlement between the plaintiff and the defendant because he did not consent to the settlement. Citing AvalonBay Communities, Inc. v. Zoning Commission, 280 Conn. 405, 908 A.2d 1033 (2006), he argues that an environmental intervenor, as a party, has to agree to a proposed settlement in order for it to be approved because the settlement of land use appeals requires the agreement of all of the parties.

Our remand order specifically provided that Mon-tigny was to be granted intervenor status and was “entitled to participate [in a hearing compliant with § 8-8 (n)] for the purpose of raising environmental issues.” Diamond 67, LLC v. Planning & Zoning Commission, supra, 117 Conn. App. 85. The trial court granted Montig-ny’s motion to intervene in this mandamus action and afforded him the opportunity to present evidence relating to his claim of an environmental impact from the proposed development. Montigny did not avail himself of that opportunity. He was not present at the hearing, and his counsel presented no witnesses or documentary evidence to support his environmental claim. Lacking any evidence addressed to environmental issues, the court, as stated in its decision, could not find any basis for finding an adverse environmental impact from the proposed development. We conclude that Montigny abdicated his right of approval by abandoning his responsibility to raise environmental issues as an inter-venor pursuant to § 22a-19.

The judgment is affirmed.

In this opinion the other judges concurred.

       Home Depot U.S.A., Inc., the then owner of the property that is the subject of this appeal, was added as a party plaintiff by order of the court, Sferrazza, J., on September 10, 2007. Diamond 67, LLC, had an option to purchase the property. On October 1, 2010, Home Depot U.S.A., Inc., sold the property to Diamond 67, LLC, and no longer has an interest in this appeal. We therefore refer in this opinion to Diamond 67, LLC, as the plaintiff.

       General Statutes § 22a-19 (a) provides in relevant part: “In any administrative, licensing or other proceeding, and in any judicial review thereof . . . any person ... or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

       “The [plaintiff] filed a motion entitled ‘Motion for Approval of Settlement Agreement.’ At the hearing on the motion, the defendant and Home Depot U.S.A., Inc., joined in that motion. Counsel for the defendant also stated to the court that the motion was not in substance a motion for approval of a settlement under General Statutes § 8-8 (n), which is required in the context of a settlement of an administrative appeal, and that the correct title for the motion should have been ‘Motion for Judgment in Accordance with the Stipulation.’ ” Diamond, 67, LLC v. Planning & Zoning Commission, supra, 117 Conn. App. 77 n.3.

       General Statutes (Rev. to 2003) § 8-8 (n) provides: “No appeal taken under subsection (b) of this section [by any person aggrieved by any decision of a board, including a decision to approve or deny a site plan] shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and such court has approved such proposed withdrawal or settlement.”

       According to court records, this notice was sent to Montigny’s counsel. The notice provided that “[t]he above captioned matter is assigned for hearing at the date and time above. All counsel, parties and necessary witnesses must attend. Please call the civil case flow coordinator . . . three days prior to the hearing to obtain information concerning the location of the hearing.”

       Montigny was not in attendance.

       Although referred to as a § 8-8 (n) hearing, we note that the hearing was not held in an administrative proceeding. Our remand order directed that the trial court was required to “conduct a hearing compliant with § 8-8 (n),” not that the hearing be conducted pursuant to § 8-8 (n). (Emphasis added.) Diamond 67, LLC v. Planning & Zoning Commission, supra, 117 Conn. App. 85. This distinction is important.

       At the hearing on October 21, 2009, counsel for the plaintiff represented that he had suggested to Montigny’s counsel that the parties request a meeting with the court prior to the hearing to discuss the procedure to be followed at the hearing. Montigny’s counsel did not dispute that representation.

       “The purpose of [a § 8-8 (n) hearing] is to ensure that zoning matters can be scrutinized by the public by means of a public record. . . . The requirements of a hearing and of court approval serve to protect the integrity of the land use planning process by prohibiting side or secret settlements by parties once there has been an appeal to the Superior Court. ... If, after appealing to the Superior Court, the parties could settle their dispute without the participation of the board and without a public hearing with formal procedural protections, the underlying statutory policy of protecting the public interest would be at risk.” (Citations omitted; internal quotation marks omitted.) Willimantic Car Wash, Inc. v. Zoning Board of Appeals, supra, 247 Conn. 742.


author: PER CURIAM.

text:
    GODFREY BURTON ET AL. v. CITY OF STAMFORD
    (AC 32144)
    Bishop, Bear and Lavery, Js.
    Argued January 10
    officially released April 5, 2011

      William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellants (plaintiffs).

      Kenneth B. Povodator, assistant corporation counsel, with whom, on the brief, was Michael D. Larobina, corporation counsel, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiffs, Godfrey Burton (Burton) and Peninah Burton, appeal from the judgment of the trial court rendering summary judgment in favor of the defendant, the city of Stamford (city). On appeal, the plaintiffs claim that the court improperly concluded that their claims were barred by the doctrine of collateral estoppel on the basis of a prior arbitration award. We affirm the judgment of the trial court.

The following factual and procedural history is pertinent to this appeal. On October 2, 2003, the plaintiffs filed a complaint alleging that Burton sustained injuries in a motor vehicle accident that occurred between him and a Stamford police officer, James Grabinski. The plaintiffs alleged that Grabinski’s negligence caused the injuries that Burton sustained in the accident and that the city is liable for the negligence of its employee and agent, Grabinski. On February 4, 2004, the city filed a counterclaim and alleged that Burton’s negligence caused the accident.

In 2004, Grabinski commenced a separate action against Burton seeking compensation for the injuries that he had sustained in the accident. In that case, the city filed an intervening complaint. Subsequently, Burton and Grabinski agreed to arbitrate all claims for damages against Burton. On May 19,2006, the arbitrator issued a decision, which the court confirmed, finding that Burton was responsible for the accident and awarding damages to Grabinski.

Meanwhile, Burton’s action against the city went to trial. For procedural reasons more fully set forth in the trial court’s decision, this case never reached the jury and remained pending at the time the arbitrator issued his decision. After the arbitrator issued his decision, the city filed a motion for summary judgment claiming that this action is barred by the doctrine of collateral estoppel on the basis of the arbitrator’s finding that Burton was responsible for the accident. By memorandum of decision filed March 24, 2010, the trial court granted the defendant’s motion for summary judgment, concluding that the parties had “already litigated the issue of liability for the accident, and none of the exceptions to the doctrine of collateral estoppel apply . . . .” This appeal followed.

We have examined the record on appeal and considered the briefs and the arguments of the parties and conclude that the judgment of the trial court should be affirmed. Because the trial court thoroughly addressed the arguments raised in this appeal, we adopt its well reasoned decision as a statement of the facts and the applicable law on the issue. See Burton v. Stamford, 52 Conn. Sup. 1, 17 A.3d 543 (2010). Any further discussion by this court would serve no useful purpose. See, e.g., Woodruff v. Hemingway, 297 Conn. 317, 321, 2 A.3d 857 (2010).

The judgment is affirmed.

       The plaintiffs did not sue Grabinski individually.


author: PELLEGRINO, J.

text:
    STATE OF CONNECTICUT v. CARL GRANT
    (AC 31318)
    Beach, Alvord and Pellegrino, Js.

      Argued November 18, 2010
    officially released April 5, 2011

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, Michael E. Kennedy, senior assistant state’s attorney, and Eric Washer, certified legal intern, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, Carl Grant, appeals from the judgment of conviction, rendered after a jury trial, of possession of cocaine in violation of General Statutes § 2 la-279 (a), possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a), possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b) and interfering with an officer in violation of General Statutes § 53a-167a. On appeal, the defendant claims that (1) the court improperly admitted hearsay evidence at trial, (2) there was insufficient evidence to prove that the defendant possessed narcotics with the intent to sell within 1500 feet of a public housing project and (3) the statutory term “public housing project,” contained in § 21a-278a (b), is void for vagueness. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of September 13, 2007, New London police officers went to 24 Connecticut Avenue in New London to execute a search and seizure warrant related to narcotics activity at that address. Upon arriving at the scene, Officer Brian Laurie witnessed the defendant standing in front of the residence. Laurie identified himself to the defendant, stated that he had a warrant to enter and search the premises and instructed the defendant not to ran. The defendant ran inside the residence and locked the door, forcing the police to use a battering ram to gain entry into the home.

Upon entering the home, Laurie heard atoilet flushing and witnessed the defendant exiting the bathroom. After the defendant refused to comply with the officers’ instruction that he get on the floor, the officers physically forced him to the ground and forcibly handcuffed his hands behind his back. During their search of the residence, officers discovered two rocks of crack cocaine, assorted pills, digital scales, plastic bags commonly used to package drags and more than $1400 in cash. A cellular telephone belonging to the defendant rang numerous times during the search and was eventually answered by Officer Deana Nott in order to perform a “reversal” in which she pretended to be the defendant’s girlfriend. According to Nott, the male caller stated that “[h]e was looking for one,” which she understood to mean that he wanted one rock of crack cocaine. The caller also stated that he was a little short of the $20 needed for the purchase and would be arriving a few minutes later in a green colored vehicle.

Shortly thereafter, a male and a female arrived in a green vehicle to purchase narcotics. The male, Noel Soto, approached the back door with $18 and subsequently was arrested for criminal attempt to possess crack cocaine. Thereafter, the defendant was arrested and charged with possession of cocaine in violation of § 21a-279 (a), possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of § 21a-278a (b) and interfering with an officer in violation of § 53a-167a. After a jury trial, the defendant was found guilty on all counts except for the charge of possession of narcotics with intent to sell by a person who is not drug-dependent. The jury found the defendant guilty of the lesser included offense of possession of narcotics with intent to sell in violation of § 2 la-277 (a). The court sentenced the defendant to a total effective term of fifteen years incarceration, execution suspended after nine years, with five years probation. The defendant appeals that conviction. Additional facts will be provided as necessary.

I

The defendant first claims that the court improperly admitted the utterances of a cellular telephone caller concerning the purchase of drugs. We disagree.

First, we set forth our standard of review. “To the extent [that] a trial court’s admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. . . . We review the trial court’s decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. L.W., 122 Conn. App. 324, 329, 999 A.2d 5, cert, denied, 298 Conn. 919, 4 A.3d 1230 (2010). Here, because the defendant challenges whether the court properly admitted evidence of the utterances of a cellular telephone caller, our review is plenary.

Through the testimony of Nott, the state sought to admit evidence of the conversation that transpired when she answered the defendant’s cellular telephone. The defendant objected to the proffered testimony, arguing that it was inadmissible hearsay. The state argued that the testimony was admissible as a verbal act. The court agreed with the state’s analysis and allowed Nott to testify before the jury as to the telephone call. During her testimony, Nott asserted that a man on the phone asked her for “one,” which, based on her training, she understood to mean crack cocaine. She also testified that the caller stated that he “was a little short” of the $20 needed to pay for the drugs, which she testified was generally the standard price for a “rock” of crack cocaine. Lastly, she testified that the caller asserted that he would be arriving a few minutes later in a green colored car.

The court admitted Nott’s testimony not for the purpose of proving the truth of the statements asserted by the caller, but as evidence that the defendant had received a telephone call from a caller who was attempting to purchase narcotics. See State v. Tolisano, 136 Conn. 210, 214, 70 A.2d 118 (1949) (statements by anonymous callers to suspected bookie’s apartment admissible because statements offered not for truth of their content but as proof of verbal acts of placing bets). Because Nott’s testimony was offered as proof of the caller’s verbal act and not as inadmissible hearsay, we conclude that the court properly admitted that evidence.

II

The defendant next claims for the first time on appeal that the evidence adduced at trial was insufficient to sustain his conviction of possession of narcotics with intent to sell within 1500 feet of a public housing project. The defendant specifically alleges that the evidence was insufficient to establish that the nearby Riozzi Court housing project is apublic housing project. We disagree.

“[T]he [d]ue [p]rocess [cjlause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). “[Ajny defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs [set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)]. Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim.” (Internal quotation marks omitted.) State v. Torres, 111 Conn. App. 575, 579, 960 A.2d 573 (2008), cert, denied, 290 Conn. 907, 964 A.2d 543 (2009).

“The standard of review [that] we [ordinarily] apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Hedge, 297 Conn. 621, 656-57, 1 A.3d 1051 (2010).

Section 21a-278a (b) prohibits any person from “transporting with the intent to sell or dispense, [or] possessing with the intent to sell or dispense . . . any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising . . . a public housing project . . . .” “For the purposes of this subsection, ‘public housing project’ means dwelling accommodations operated as a state or federally subsidized multifamily housing project by a housing authority, nonprofit corporation or municipal developer, as defined in section 8-39, pursuant to chapter 128 or by the Connecticut Housing Authority pursuant to chapter 129.” General Statutes § 21a-278a (b).

At trial, the jury heard testimony from Laurie and George Potts, a police officer, from which it reasonably could have concluded that the Riozzi Court housing project was a public housing project. Potts described the housing project as “a federally subsidized, elderly/ disabled housing complex ... in New London,” run by “[t]he city of New London housing authority.” Laurie similarly testified that the Riozzi Court neighborhood was “an elderly apartment complex owned and operated by the city of New London housing authority.” There was no evidence in the record to suggest that the Riozzi Court housing project was anything other than a public housing project. Thus, in construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have concluded that the Riozzi Court housing project is a public housing project, and that the cumulative force of the evidence established the defendant’s guilt beyond a reasonable doubt.

Ill

Finally, the defendant claims that the definition of “public housing project,” as defined in § 21a-278a (b), is void for vagueness. We disagree.

We begin by setting forth the relevant legal principles. “A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, [and the court makes] every presumption in favor of its validity. . . . To demonstrate that [a statute] is unconstitutionally vague as applied to him, the [defendant] therefore must . . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement. . . . [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement. . . .

“The general rule is that the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue. ... To do otherwise, absent the appearance that the statute in question intrudes upon fundamental guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of [the statute].” (Internal quotation marks omitted.) State v. Kalman, 93 Conn. App. 129,138-39, 887 A.2d 950, cert, denied, 277 Conn. 915, 895 A.2d 791 (2006)

We conclude that the definition of “public housing project” in § 21a-278a (b), by its plain terms, afforded the defendant notice that the statute applied to public housing projects where elderly or disabled people reside. Further, the state was not required to prove that the defendant knew that he was within 1500 feet of a public housing project when he engaged in the sale of narcotics. See State v. Denby, 235 Conn. 477, 482, 668 A.2d 682 (1995). Accordingly, the defendant has not demonstrated that a constitutional violation exists.

The judgment is affirmed.

In this opinion the other judges concurred.

       According to the testimony of Laurie, a reversal is a method by which an officer, pretending to be an associate of a suspected drug dealer, attempts to bring the caller to a certain location for the purchase of narcotics.

       “A verbal act is an out-of-court statement that causes certain legal consequences, or, stated differently, it is an utterance to which the law attaches duties and liabilities . . . [and] is admissible nonhearsay because it is not being offered for the truth of the facts contained therein. ” (Internal quotation marks omitted.) State v. Perkins, 271 Conn. 218, 255, 856 A.2d 917 (2004).