author: LAVTNE, J.

text:
    ROBERT E. MARTIN, JR. v. TOWN OF WESTPORT
    (AC 28524)
    Flynn, C. J., and Lavine and Beach, Js.
    Argued February 25
    officially released July 1, 2008

      Ikechukwu Umeugo, for the appellant (plaintiff).

      Michael J. Rose, with whom were Adrienne R. DeLucca, and, on the brief, Johanna G. Zelman, for the appellee (defendant).
   Opinion

LAVTNE, J.

This appeal concerns the trial court’s granting of a motion for summary judgment filed by the defendant, the town of Westport, in an action in which the plaintiff, Robert E. Martin, Jr., alleged that the defendant discriminated against him in violation of General Statutes § Sl^OOa. Specifically, the plaintiff alleges that the defendant improperly terminated his employment after he was injured during the course of his employment and filed a workers’ compensation claim and that the defendant’s agents or employees intentionally and negligently inflicted emotional distress on him. On appeal, the plaintiff claims that in granting the motion for summary judgment, the court improperly (1) weighed the evidence as to his allegations under § 31-290a, rather than limiting its decision to whether there were genuine issues of material fact, and (2) determined that governmental immunity barred his emotional distress claims. We affirm the judgment of the trial court.

The plaintiff commenced his three count action in December, 2004. In count one, the plaintiff alleged that the defendant, through its agents and employees, violated § 31-290a by discriminating against him on the basis of his work-related injury. In count two, the plaintiff alleged that the defendant, through its agents and employees, discriminated against him because he filed a claim for workers’ compensation benefits pursuant to § 31-290a. In count three, the plaintiff alleged that the conduct of the defendant’s agents and employees was extreme and outrageous and resulted in negligent and intentional infliction of emotional distress. In response, the defendant alleged several special defenses as to each count.

The plaintiffs claims are predicated on the following facts as alleged in his complaint. The defendant employed the plaintiff as a mechanic in 1984 and later, for fourteen years, as a master mechanic. The plaintiff was the only African-American male employed by the defendant as a master mechanic in the defendant’s department of public works. The complaint also alleged that the defendant is a municipal corporation that regularly employs more than fifteen, persons. At all times relevant, Stephen J. Edwards was the director of public works.

On March 18, 2002, the plaintiff injured his back in the course of his employment and sought treatment for his injury. The plaintiffs treating physicians, Anthony LaMarca and Nicholas Polifroni, orthopedic surgeons, placed the. plaintiff on light duty from 2003 until August, 2004. On April 8, 2003, Polifroni opined that the plaintiff had a 5 percent permanent partial disability of his back and that he had reached maximum medical improvement. The complaint further alleged that the defendant began to mistreat him and place certain conditions on him on the basis of his March 18, 2002 work-related injury. The plaintiff returned to work several times, and the defendant sent him home, despite the plaintiffs having obtained a physician’s permission to work. Edwards refused to let the plaintiff perform light duty assignments as permitted by his treating physician.

The plaintiff also alleged that on April 8, 2003, he was able to return to his employment without any restrictions. He alleged that due to his disability or work-related injury, the defendant deprived him of certain privileges that were available to his colleagues, such as permitting him to work with his disability or work-related injury. The plaintiff alleged that he complained about the discriminatory practices of his colleagues but that the defendant did nothing to remedy the situation and violated the duty it owed the plaintiff.

On August 10,2004, the defendant informed the plaintiff that it had awarded him a disability pension, as the result of his March 18, 2002 back injury, effective September 1,2004. According to the plaintiff, the defendant’s actions against him were extreme and outrageous and created an unreasonable risk of causing him emotional distress. Moreover, the plaintiff alleged that the defendant intended, knew or recklessly disregarded the fact that its extreme and outrageous conduct caused the plaintiff to suffer mental, physical and emotional harm, as well as injury to his self-esteem and sense of self-worth.

The plaintiff alleged that as a direct and proximate result of the defendant’s acts and those of its agents and employees, he suffered injury to his physical health, good reputation, humiliation, anguish, embarrassment, mortification, outrage, lost wages and work benefits, such as vacation, sick and personal time, salary increases and pension benefits. The plaintiff alleged that the defendant’s acts were oppressive and malicious, entitling him to an award of punitive damages.

In March, 2006, the defendant filed a motion for summary judgment. In its motion, the defendant claimed that there were no genuine issues of material fact and that it was entitled to summary judgment on the grounds that (1) there was no causal connection between the plaintiffs exercising his right to workers’ compensation benefits and his receiving a disability pension, (2) the defendant was entitled to governmental immunity for claims of intentional infliction of emotional distress and (3) the plaintiffs claim for negligent infliction of emotional distress failed because the plaintiffs employment was not terminated because he was awarded a disability pension. The defendant supported its motion for summary judgment with copies of medical records from the plaintiffs treating physicians, medical reports issued pursuant to three independent medical examinations, deposition testimony and an affidavit from Edwards and Scott Sullivan, the defendant’s highway superintendent.

The plaintiff objected to the motion for summary judgment, arguing that (1) the defendant’s awarding him a disability pension violated § 31-290a because it was based on his back injury of March 18, 2002, (2) the defendant assigned him tasks that aggravated his injury, (3) he returned to work capable of doing his job, but the defendant refused to let him do so, (4) the awarding of his disability pension was a case of retaliatory discharge, (5) other employees who sustained injuries were treated differently, and (6) the defendant’s conduct was extreme and outrageous. The plaintiff attached his affidavit, some medical records and correspondence to his objection. The defendant responded to the plaintiffs objection in a memorandum of law, arguing that the evidence produced by the plaintiff constituted legal conclusions and did not raise genuine issues of material fact.

The court granted the motion for summary judgment in a memorandum of decision on January 17, 2007, and rendered judgment thereon. With respect to the first two counts of the complaint alleging discrimination on the basis of the plaintiffs injury and workers’ compensation claim, the court found that there was no dispute that the plaintiff had engaged in a protected activity and that the defendant’s awarding the plaintiff a disability pension terminated his employment. The court also concluded that the plaintiff failed to present any facts that created a genuine issue of material fact as to the causal relationship between his injury and workers’ compensation claim and the defendant’s awarding him a disability pension. The plaintiff failed to offer any evidence that the defendant had awarded him a disability pension for any reason other than that it could no longer afford to pay him for work he could not perform. Although the plaintiff claimed that the defendant treated him differently from other employees who had suffered work-related injuries, he failed to provide any evidence to substantiate his claim. The court therefore concluded that there were no genuine issues of material fact as to counts one and two and that the defendant was entitled to summary judgment.

As to the allegations of count three, the court concluded, citing Pane v. Danbury, 267 Conn. 669, 684-86, 841 A.2d 684 (2004), that the defendant was immune from liability for the alleged intentional infliction of emotional distress by its employees. As to the plaintiffs claims of negligent infliction of emotional distress, the court concluded that a municipality cannot be sued directly for common-law negligence and that the plaintiff failed to allege any statute that would abrogate the common law. The defendant, therefore, was entitled to summary judgment. The court granted the defendant’s motion for summary judgment, and this appeal followed.

This court’s review of a trial court’s granting of a motion for summary judgment is plenary in nature. See Reardon v. Windswept Farm, LLC, 280 Conn. 153, 158, 905 A.2d 1156 (2006). Our task is to determine “whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Pepitone v. Serman, 69 Conn. App. 614, 618, 794 A.2d 1136 (2002). “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing . . . that the party is . . . entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Kinney v. State, 285 Conn. 700, 709, 941 A.2d 907 (2008). “The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Reardon v. Windswept Farm, LLC, supra, 158.

I

The plaintiff claims that the court improperly granted the defendant’s motion for summary judgment as to his § 31-290a claims because the court weighed the evidence rather than deciding whether there were genuine issues of material fact. We disagree. Our review of the record discloses that the court, in its memorandum of decision, did not weigh the evidence but distinguished the character and quality of the alleged evidence produced by the parties.

“Claims of employment discrimination are evaluated under the burden shifting analysis set forth in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990). . . . Section 31-290a (a) prohibits an employer from discharging or otherwise discriminating against an employee because the employee had filed a claim for workers’ compensation benefits or otherwise exercised her rights under the act. . . . The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. ... In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. ... If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions. ... If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. . . . The plaintiff then must satisfy her burden of persuading the factfinder that she was the victim of discrimination either directly by persuading the [fact-finder] . . . that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” (Citations omitted; internal quotation marks omitted.) Moran v. Media News Group, Inc., 100 Conn. App. 485, 493-94, 918 A.2d 921 (2007).

“To establish a prima facie case of discrimination under § 31-290a, the plaintiff must show that she was exercising a right afforded her under the [Workers’ Compensation Act (act), General Statutes § 31-275 et seq.] and that the defendant discriminated against her for exercising that right. . . . [T]he plaintiff must show a casual connection between exercising her rights under the act and the alleged discrimination she suffered. Implicit in this requirement is a showing that the defendant knew or was otherwise aware that the plaintiff had exercised her rights under the act. . . . [T]o establish [a] prima facie case of discrimination, the plaintiff must first present sufficient evidence . . . that is, evidence sufficient to permit a rational trier of fact to find [1] that she engaged in protected [activity] ... [2] that the employer was aware of this activity, [3] that the employer took adverse action against the plaintiff, and [4] that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action . . . .” (Citations omitted; internal quotation marks omitted.) Moran v. Media News Group, Inc., supra, 100 Conn. App. 494-95.

Here, the court determined that there was no genuine issue of material fact that the plaintiff had alleged a prima facie case of discrimination. The parties agree that the plaintiff had engaged in a protected activity by filing a claim for workers’ compensation benefits for his March 18, 2002 injury and that the defendant was aware of it. The court also determined, as a matter of law, that there was no dispute that the plaintiff suffered a materially adverse change in the terms and conditions of his employment. See Sanders v. New York City Human Resources Administration, 361 F.3d 749, 755 (2d Cir. 2004) (“adverse employment action [is defined] as a materially adverse change in the terms and conditions of employment. ... To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. . . . Examples of such a change include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.” [Citations omitted; internal quotation marks omitted.]). There is no dispute that the plaintiff made out a prima facie case. The court’s decision to grant the motion for summary judgment turned on its conclusion that there were no genuine issues of material fact that a causal connection between the plaintiffs exercising his right to workers’ compensation benefits and his disability pension did not exist. That decision concerns the third step of the Ford analysis.

“A causal connection may be established either indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by a defendant.” (Emphasis in original; internal quotation marks omitted.) Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991).

In an effort to overcome the inference of discrimination implied by the awarding of the disability pension, the defendant presented evidence that more than two years after the March 18, 2002 work-related injury, the plaintiff still was unable to perform the duties of a master mechanic without restrictions. During that period of time, the defendant provided the plaintiff with light duty assignments, and the plaintiff continued to receive workers’ compensation benefits. After two years, however, the defendant could no longer justify the expense of continuing to pay the plaintiff for work that he could no longer perform. The court ultimately concluded, after reciting the plaintiffs alleged claims of discrimination and the reasons given in his brief, that he had failed to raise any genuine issue of material fact that the defendant’s reason for awarding him a disability pension was anything other than the one proffered by the defendant. To support its conclusion that the defendant had terminated the plaintiffs employment for a legitimate, nondiscriminatory reason, the court quoted this court’s decision in Kopacz v. Day Kimball Hospital of Windham County, Inc., 64 Conn. App. 263, 779 A.2d 862 (2001). Section “31-290a . . . does not require an employer to retain an employee unable to perform his or her work simply because that inability resulted from a work related injury or illness. . . . Businesses would suffer significant losses if they were prevented from filling employment vacancies after the lapse of a reasonable period of time.” (Citations omitted; internal quotation marks omitted.) Id., 269.

On appeal, the plaintiff claims that there is a genuine issue of material fact as to whether there is a causal connection between the exercise of his right to workers’ compensation benefits and the termination of his employment. To establish the necessary dispute , as to material facts, the plaintiff suggested that (1) he was treated in a manner different from that of his co workers, Dale Wehmhoff, Douglas Meyers and Joe Bottone, who are white and who were provided light duty assignments; (2) Edwards assigned him work and equipment that aggravated his shoulder injury; (3) the defendant failed to pay him for time he worked in August, 2002; (4) Edwards sent him home despite the plaintiffs having a note from his physician that he was able to work light duty; and (5) the defendant deprived him of certain privileges that were available to his coworkers, i.e., permitting him to work with his disability.

“It is frequently stated in Connecticut’s case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [T]ypically [demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.” (Internal quotation marks omitted.) McKinney v. Chapman, 103 Conn. App. 446, 451, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007). “Mere statements of legal conclusions . . . and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment.” (Citation omitted.) Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn. App. 162, 170, 604 A.2d 1339, aff'd, 224 Conn. 240, 618 A.2d 506 (1992).

With regard to the plaintiffs assertion that he was treated differently from his white coworkers, the court found that he failed to provide details of the coworkers’ duties, injuries or restrictions. The defendant, however, by means of an affidavit from Edwards, presented details of the several injuries that the plaintiff sustained during the course of his employment with the defendant and those of Wehmhoff, Meyers and Bot-tone. Edwards attested that there “are nine more employees in the building maintenance division . . . than ... in the equipment division. . . . The different functions performed by maintenance or highway divisions provide greater opportunities for long-term, light duty assignments than in the [two]-person equipment maintenance division . . . .” The plaintiff presented no evidence to challenge the evidence presented in Edwards’ affidavit. The court concluded that the plaintiff failed to carry his burden to demonstrate the existence of a genuine issue of material fact.

As to the allegation that Edwards once assigned him duties that aggravated his injury, in a deposition the plaintiff testified that he was referring to the shoulder and arm injury he sustained prior to his back injury. The court noted that this action arose from an injury to the plaintiffs back. The court also noted that the plaintiff had litigated the injuries related to his arm and shoulder in a federal civil rights action. See Martin v. Westport, 329 F. Sup. 2d 318 (D. Conn. 2004) (alleging claims arising under title VII of Civil Rights Act of 1964, 42 U.S.C. §§ 1981 and 1983, Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and state statutory and common-law claims). During his deposition, the plaintiff could not recall when Edwards assigned him the tasks of which he complains. The court properly noted that “[t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief.” (Citations omitted; internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn. App. 240, 244-45, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).

The plaintiff also contends that with regard to the medical records submitted by the parties, the court made a decision to believe the evidence submitted by the defendant rather than the plaintiffs evidence. Before beginning our analysis of this contention, it is important to note that in his brief, the plaintiff has failed to distinguish between what he believes to have happened and evidence that supports his version of the events. The defendant, however, has referred us to specific documents and statements in evidence to support its reason for terminating the plaintiffs employment. The plaintiff has failed to draw our attention to facts in a document or testimony that counter the facts relied on by the defendant.

The essence of the plaintiffs claim is that the defendant discriminated against him because he has a 5 percent disability of his back. To support this claim, he relies on the fact that none of the three physicians retained by the defendant to evaluate him stated literally that he is not able to perform the duties of a master mechanic due to his back injury. The plaintiff quoted portions of the reports submitted by the three physicians. Kenneth M. Kramer, an orthopedic surgeon, stated in part in his report of June 22, 2004, that the plaintiff “should be on permanent restrictions with regard to the . . . injury, consisting of a [thirty-five] pound lifting restriction with no repetitive lifting or bending.” The July 7, 2004 report of Eric M. Garver, an orthopedic surgeon, provides in part that the plaintiff “does have a prior history, many years ago, with his right arm as having had an ulnar nerve transposition in the right elbow following a work related injury, however, the [plaintiff] had returned to work. ... At this point it appears that his [low] back is giving him less of a problem.” (Emphasis in original.) The plaintiff quoted from a portion of a report dated July 13, 2004, prepared by a rehabilitation physician, Gary D. Solomon, that “currently, [the plaintiff] states that he is virtually pain free except for occasional recurrences of back pain, usually attributed to cold weather. He currently states that he is [able] to bend, twist, turn and lift without recurrence of pain complaints.” Those quotations, however, do not place the physicians’ conclusions in proper context.

The defendant made the physicians’ complete reports available for the court to review, in addition to reports from Polifroni. On the basis of its review of the medical records, the court found that on May 20, 2004, Polifroni stated that the plaintiff “may have difficulty going back to any job that requires physical activities . . . .” In an August 9, 2004 report, Polifroni stated that the plaintiff “should limit his strenuous activities because of his back.” Kramer stated that the plaintiff “should be on permanent restrictions . . . .” Garver stated that the plaintiff “is able to work light duty. He would be unable to do heavy lifting or repetitively use the right upper extremity.” In his report of July 13, 2004, Solomon stated, in part, that the plaintiff “is not capable of performing full duty work as a master mechanic without restrictions . . . .” The plaintiff has not brought to the attention of the trial court or this court an opinion from any physician that he is capable of performing all of the duties of a master mechanic despite his multiple injuries. There is, therefore, no genuine issue of material fact as to the plaintiffs inability to perform the job for which the defendant had engaged his services.

The plaintiff relies on a handwritten return to work noted signed by Stewart C. Gross, the physician who treated the plaintiff for the shoulder injury he sustained in 1999. On the note, dated “8-8-04,” Gross marked an X in the box next to the language “may return to regular duty work on” and added “10/15/01 & is still in effect as of 8-6-04.” When he was deposed, Gross testified that the plaintiff never told him that he, the plaintiff, had sustained a lower back injury.

On the basis of our review of the court’s memorandum of decision and the documents submitted to the court for its review when considering the defendant’s motion for summary judgment, we conclude that the court did not weigh the evidence but, rather, reviewed it, as it was required to do, in deciding the motion for summary judgment. We also conclude that the court did not improperly find that there is no genuine issue of material fact concerning the lack of a causal connection between the defendant’s having awarded the plaintiff a disability pension and his work-related injury of March 18, 2002, and the exercise of his rights under our workers’ compensation laws. In other words, there is no genuine issue of material fact that the defendant terminated the plaintiffs employment because he could not work as a master mechanic and not for a discriminatory reason. For those reasons, the court properly rendered summary judgment in favor of the defendant on counts one and two of the plaintiff’s complaint.

II

The plaintiff’s third claim is that the court improperly determined that governmental immunity barred his claims of negligent and intentional infliction of emotional distress. This claim lacks merit.

“The general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statutes § 52-557n.” (Internal quotation marks omitted.) Durrant v. Board of Education, 96 Conn. App. 456, 474, 900 A.2d 608 (2006) (Schaller, J., dissenting), rev’d on other grounds, 284 Conn. 91, 931 A.2d 859 (2007). Section 52-557n provides in relevant part: “(a) (1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties ... (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct . . . .”

In ruling on the allegations of negligent and intentional infliction of emotional distress, the court properly concluded that a municipality may not be held hable for the intentional acts of its employees pursuant to § 52-557n (a) (2) (A), including intentional infliction of emotional distress. See Pane v. Danbury, supra, 267 Conn. 684-86.

The court found that the plaintiff had not alleged any statute that would abrogate the defendant’s governmental immunity for negligent infliction of emotional distress. On appeal, the plaintiff argues that he alleges Edwards’ name in his complaint, which is sufficient to invoke General Statutes § 7-465. In support of this contention, the plaintiff relies on Williams v. New Haven, 243 Conn. 763, 707 A.2d 1251 (1998). We disagree that Williams supports the plaintiffs position. In Williams, the plaintiffs brought an action against the city of New Haven but “did not name any agent, employee or officer of the municipality as a defendant . . . .” (Emphasis added.) Id., 765. The plaintiffs also did not allege any statute that abrogates governmental immunity or seek indemnification pursuant to § 7-465. Id., 769. Our Supreme Court held that the plaintiffs could not prevail. Id., 765. On procedural grounds, this case is indistinguishable from Williams, and the court properly granted the motion for summary judgment as to the plaintiffs claims for negligent infliction of emotional distress.

The plaintiff further argues that he alleged a violation of § 31-290a and that the defendant subjected itself to the requirements of our workers’ compensation laws. Our workers’ compensation scheme provides a cause of action against an employer who discriminates against an employee because the employee has filed a workers’ compensation claim. It does not create liability for all torts and does not create a statutory basis for the abrogation of governmental immunity as to other torts. Moreover, during oral argument, counsel for the plaintiff conceded that damages for emotional distress may be alleged in a cause of action brought pursuant § 31-290a. The plaintiffs claims for damages for emotional distress, therefore, were encompassed in counts one and two.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-290a, entitled “Discharge or discrimination prohibited. Right of action,” provides in relevant part: “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.”

       The court noted that in count one, the plaintiff alleged that the defendant discriminated against him in violation of § 31-290a because he sustained a work-related ir\jury. In count two, the plaintiff alleged that the defendant discriminated against him in violation of § 31-290a because he filed a claim for workers’ compensation benefits. Because the plaintiff failed to demonstrate how the allegations of count one and count two were different, the court analyzed the claims together. The plaintiff has not challenged the court’s decision on that basis. We likewise will consider the allegations in counts one and two together.

       In its memorandum of law in support of its motion for summary judgment, the defendant maintained that it had not terminated the plaintiffs employment. There was no factual dispute, however, that the defendant had awarded the plaintiff a disability pension. “Section 31-290a (a) contains no requirement that any particular word be used in the process of terminating an employee’s employment. Any words or conduct that an employee would reasonably understand to signify that his employment was terminated are sufficient.” Loftus v. Vincent, 49 Conn. App. 66, 69, 713 A.2d 892 (1998). The court concluded that the plaintiff reasonably could have understood that his employment had been terminated. On appeal, the defendant does not challenge the court’s legal conclusion.

       The defendant presented the court with the minutes of its public works pension board meeting of August 10, 2004, that stated in part that the defendant “initiated [the plaintiffs] disability retirement consideration based upon the determination by four (4) physicians that, as a result of his injuries, [the plaintiff] could not perform the duties of Ms position and would not be able to do so in the future. [The] applicable provision of the collective bargaining agreement with [the plaintiffs] umon was Article IX Section 3. INJURY LEAVE TIP TO MAXIMUM RECOVERY.” The board approved “the disability retirement of [the plaintiff] to retire effective September 1, 2004 with a montMy retirement benefit of $2273.82 . . . .”

       In his brief, the plaintiff does no more than claim that the defendant failed to pay him for time worked in August, 2002, Edwards sent him home when the plaintiff had a physician’s note that he could work and the defendant deprived him of certain privileges. The plaintiff, however, has failed to provide any analysis of or evidence to support those claims. Without legal analysis with references to law, we deem the plaintiffs claims abandoned. See Zbras v. St. Vincent’s Medical Center, 91 Conn. App. 289, 295, 880 A.2d 999, cert. denied, 276 Conn. 910, 886 A.2d 424 (2005).

       Edwards’ affidavit set forth the following work-related injuries the plaintiff sustained:
      “6. In 1985, [the plaintiff] sustained a shoulder injury; he required [ten] days to rehabilitate the injury;
      “7. In 1987, [the plaintiff] injured his back; recovery from this back injury required two weeks;
      “8. An injury to [the plaintiffs] shoulder on June 6,1995 required extensive rehabilitation that did not result in a full return to work until February 1996;
      “9. [The plaintiff] filed Workers’ Compensation claims for all these injuries;
      “10. On December 20, 1999, [the plaintiff] injured his wrist while working on a vehicle;
      “11. On January 10,2000 he returned to work under alight duty restriction but continued wrist pain forced him off the job on February 3, 2000;
      “12. [The plaintiff] again underwent extensive therapy and was returned to work for four hours per day for a light duty assignment on August 15,2000;
      “13. [The plaintiff] continued to work half-day/Iight duty until December 21, 2000 when he was forced to discontinue even the light duty assignment due to excessive pain;
      “14. [The plaintiffs] doctorissuedamaximummedical improvement rating effective December 13, 2000;
      “15. Based on this finding, Workers’ Compensation issued apartial Permanent Disability for this wrist injury around this time;
      “16. In mid-February 2001 when the Workers’ Compensation payments were discontinued and the [defendant] discontinued salary to [the plaintiff], he returned to his doctor and was given a release for light duty assignment, [eight] hours per day;
      “17. The [defendant] provided a [ten]-week light duty assignment until May 1, 2001. At this time, [the plaintiffs] treating physician still did not release him for an unrestricted assignment;
      “18. The [defendant] requested that [the plaintiff] undergo three independent physical examinations to see if he could perform the essential functions of his position. These were completed during September 2001 and each identified [the plaintiff] fit for work. The [defendant] further sent [the plaintiff] for a Functional Capacity Examination, which also supported his return to full duty. [The plaintiff] returned to full duty with no restrictions on October 15, 2001;
      “19. [The plaintiff] worked for five months and on March 21, 2002 injured his back while climbing down off of a sweeper;

        “20. Again [the plaintiff] filed a claim for Workers’ Compensation. After seven weeks of therapy and rehabilitation, [the plaintiff] was released for light duty assignments on May 6, 2002 but no light duty assignments were available with the [defendant] until August 21, 2002;
      “21. [The plaintiff] reported to the light duty assignment on September 10, 2002 and on September 12, 2002 reported an aggravation of his prior 1985 shoulder and 2002 back injury and was released from work by his physician, Dr. LaMarca, with acute low back pain.
      “22. [The plaintiff] was again cleared for light duty with restrictions on October 23, 2002 by Dr. Polifroni;
      “23. The [defendant] had no light duty assignments until November 12, 2002;
      “24. [The plaintiff] worked for the next two months (November 12, 2002 through January 28, 2003) on a light duty assignment;
      “25. On January 28, 2003 [the plaintiff] returned to his physician, Dr. Polifroni, and was released from work until further reevaluation;
      “26. On February 11, 2003, [the plaintiff] was again cleared for light duty but no light duty assignment was identified until February 25, 2003;
      “27. For the next five weeks, [the plaintiff] performed his light duty assignments. On April 8, 2003, Dr. Polifroni returned [the plaintiff] to full duty;
      “28. A little more than a month later (May 20, 2003), [the plaintiff] reiryured his shoulder and was released from work until further evaluation;
      “29. On June 2, 2003, Dr. LaMarca cleared [the plaintiff] for a light duty assignment and the [defendant] found an assignment;
      “30. On August 18, 2003 [the plaintiff] aggravated a prior injury and was not capable of work until he was reevaluated on September 29, 2003, at which time he was returned to a light duty assignment. A re-injury of his prior back and shoulder injuries while performing a light duty assignment on October 30,2003 again required Dr. LaMarca to request that [the plaintiff] be given several days off due to the injury;
      “31. On November 17, 2003 Dr. LaMarca again cleared [the plaintiff] for a light duty assignment;
      “32. Based on the fact that [the plaintiff] had re-iiyured his back and shoulder a number of times while on light duty assignments, and the department had provided in excess of 175 days of light duty assignments for him over the past two years, the [defendant] could provide no further light duty assignments for [the plaintiff]. At that time, the [defendant] could not accommodate [the plaintiffs] requirement for a light duty assignment limited to office work within the garage;
      “33. From November 17, 2003 through May 20, 2004, [the plaintiff] was on continued light duty from Dr. LaMarca. The [defendant] had no light duty assignments for [the plaintiff] during this time;
      “34. [The plaintiff] continued to receive Workers’ Compensation benefits during this time;
      “35.1 made the recommendation that [the plaintiff] be given a disability pension based on [the plaintiffs] prior two years of injuries. This recommendation was also based upon the doctor’s reports I had at the time . . . .”

       In his affidavit, Edwards attested to the injuries of the plaintiffs coworkers. Bottone is an equipment operator who had knee surgery on March 27, 1997, as a result of a work-related injury. He was out of work for five weeks and returned without restrictions. Wehmhoff is an equipment, operator who injured his knee on February 10, 1997, and underwent surgery for the same on March 12,1997. Wehmhoff returned to unrestricted work on May 23,1997, fifteen weeks after surgery. Meyers is a building maintenance mechanic. As the result of a back injury, Meyers had a lifting restriction of forty pounds and was accommodated on a light duty assignment covering for a custodian who was ill for a period of ten months.

       In his appellate brief, the plaintiff claims that there is a genuine issue of material fact as to his claim that the defendant assigned him to perform tasks with equipment that would aggravate his injuries. He contends that the acts of the defendant’s agents or employees took place during a critical time “in which the defendant terminated” the plaintiffs employment, yet he provides no date on which the alleged acts took place.

       The statement is taken from the “impression” portion of Polifroni’s progress report of May 20, 2004, which stated in its entirety: “Persistent lumbar sprain. I think at this time his injuries are permanent. I think he may have difficulty going back to any job that requires physical activities though he was doing light work at his previous job without much intervention with his lower back but his injuries at this time are probably permanent and he sustained a lumbar sprain. I do not expect much improvement.”

       Polifroni’s complete August 9, 2004 note states that “[i]n reference to my note of May 20, 2004, I did not state that [the plaintiff] was unable to work. I expressed my thoughts that he should limit his strenuous activities because of his back pain. He is capable of work and has been working this past year.”

       Kramer’s statement came from the portion of his report labeled “review of symptoms,” which stated in part: “My impression is of persistence of the chronic lumbar strain injury sustained in the work incident of 3/18/02, which at this point has indeed clinically plateaued at [maximum medical improvement], with no additional formal treatment measures indicated or anticipated. In accordance with [America Medical Association] [g]uidelines, he has a DRE category 2, 5 [percent] permanent partial impairment on the basis of the chronic lumbar strain, which in medical probability is directly causally related to the work incident of 3/18/02. He should be on permanent restrictions with regard to [this] injury, consisting of a [thirty-five] pound lifting restriction with no repetitive lifting or bending. As a spinal specialist, not caring for shoulder problems, any analogous assessments regarding the shoulder must be deferred to the specialists who are caring for this condition.”

       The entire discussion portion of Garver’s report states: “At this point I believe the patient is able to work light duty. He would be unable to do heavy lifting or repetitively use the right upper extremity. It is certainly reasonable to proceed as Dr. Gross has suggested with carpal tunnel release of the right hand inasmuch as this is a relatively minimal procedure. Whether the patient should have a re-exploration of his right elbow at the same time is an interesting question. On one hand he is certainly having significant difficulty and it is possible this may give him some improvement if there is entrapped scar found at the time of surgery- On the other hand since this has been persistent for a long period of time I am somewhat pessimistic that this will lead to a great deal of improvement at the elbow. The patient is having no active therapy at this time, which I find strange. Certainly the patient should have some range of motion and strengthening for the right upper extremity especially including the shoulder. Therefore, I believe the patient is disabled with respect to his right upper extremity, however, the patient is able to work selected light duty at this time. It is reasonable to proceed with at least a portion of the recommended surgical procedures.”

       The impression portion of Solomon’s independent medical report states in full: “[The plaintiff] presents with a history of multiple injuries to his lower back, right shoulder and right upper extremity following a work related injury which occurred on March 18, 2002 when he slipped on a step while climbing onto a street sweeper.
      “[The plaintiff] further sustained an aggravation of his right upper extremity injuries when he sustained a [second] work related injury while fixing a brake line in 2003.
      “He also presents with evidence of carpal tunnel syndrome, which has been attributed to repetitive trauma from his work as a master mechanic.
      “I have also reviewed the job requirements of a master mechanic as outlined by the Department of Public Works, Equipment Maintenance Division, Town of Westport.
      “It is my opinion that [the plaintiff] is not capable of performing full duty work as a master mechanic without restrictions due to persistent injuries to his right shoulder and right upper extremity which include multiple tendinitis as well as ulnar and median nerve neuropathies. Specifically, [the plaintiff] would have difficulty complying with the job requirements as indicated by the Department of Public Works, which include: ‘Capable of the complete diagnosis, disassembly, overhaul, repair and reassembly of any mechanical, electrical or other breakdown or failure of a motor, truck or piece of construction equipment.
      “Due to the chronicity of [the plaintiffs] injuries, I believe that they are permanent in nature.”

       The plaintiff disclosed Gross as an expert who would testify on his behalf at trial. During his deposition, Gross testified that he did not know that he had been disclosed as an expert. He also testified that his medical specialty is the treatment of hands and arms. He does not treat back injuries. Gross testified that he was not prepared to testify as to the status of the plaintiffs back injury as of August 6, 2004.

       Edwards is not a defendant in this action.


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    PATRICK SOLANO v. SARA CALEGARI
    (AC 28420)
    Flynn, C. J., and DiPentima and Pellegrino, Js.

      Argued April 16
    officially released July 1, 2008

      John Timbers, for the appellant (plaintiff).

      Sara Calegari, pro se, the appellee (defendant).
   Opinion

PELLEGRINO, J.

This is an appeal from the judgment of the trial court rendered after the granting of a motion to dismiss, sustaining a claim that the plaintiff, Patrick Solano, failed to obtain jurisdiction over the pro se defendant, Sara Calegari, pursuant to our long arm statute. See General Statutes § 52-59b. On appeal, the plaintiff claims that the court improperly (1) considered the defendant’s motion to dismiss without first vacating a prior default judgment that had entered against her, (2) concluded that he had failed to prove that the requirements of our long arm statute were satisfied, (3) failed to afford him procedural due process and (4) ruled on the merits of his complaint. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiff filed a three count complaint against his sister, the defendant, seeking to recover moneys that he allegedly had loaned to her and that she had failed to repay (count one), that she had converted to her use (count two) and that she fraudulently had misrepresented that she would repay (count three). On February 27, 2006, the defendant, acting pro se, filed a motion to dismiss, claiming that the court lacked jurisdiction over her person. The plaintiff thereafter filed a motion for default for the defendant’s failure to plead, and the Superior Court clerk’s office, on March 17, 2006, prior to the court’s ruling on the motion to dismiss, entered a judgment of default against the defendant. See Practice Book § 17-32. On March 28, 2006, the defendant filed a second motion to dismiss. The plaintiff subsequently filed a claim for a hearing in damages arising from the default judgment.

On December 11, 2006, the court held a hearing on the defendant’s first motion to dismiss. On the basis of the evidence presented at that hearing, the court concluded that the plaintiff had failed to establish facts necessary to satisfy the statutory requirements necessary for long arm jurisdiction. The court, accordingly, dismissed the complaint. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly considered the motion to dismiss because a default judgment had entered against the defendant. Specifically, the plaintiff argues that the default judgment entered on March 17, 2006, before the defendant filed her March 28, 2006 motion to dismiss, and the court, therefore, could not rule on the motion to dismiss without vacating the default judgment. We are not persuaded.

A simple time line of events is dispositive of this issue. On February 27, 2006, the defendant filed a motion to dismiss (first motion). On March 17, 2006, the Superior Court clerk’s office entered a default against the defendant for her failure to plead. The defendant thereafter, on March 28, 2006, filed a second motion to dismiss (second motion), asserting the same grounds for dismissal as stated in her first motion.

The plaintiffs argument is premised entirely on his belief that the court acted on the second motion, which the defendant filed after a default judgment was entered against her. This is not the fact. The record clearly reflects that the court was acting on the first motion, which the defendant had filed prior to the entry of default, rather than the second motion. The plaintiffs claim, therefore, is premised on a misunderstanding of the court’s judgment. Moreover, he has set forth no argument as to whether the court was required to vacate the default judgment prior to ruling on the first motion. Because this issue has not been briefed, we are not obligated to afford it consideration. See West Haven v. Norback, 263 Conn. 155, 177, 819 A.2d 235 (2003). Accordingly, the plaintiffs claim fails.

II

The plaintiff next claims that the court improperly concluded that he had failed to prove that the requirements of our long arm statute were satisfied. Specifically, the plaintiff asserts that the court’s findings showed that the defendant (1) transacted business within this state so as to permit the court to exercise jurisdiction over the breach of contract and conversion counts of his complaint, and (2) committed a tortious act within this state so as to permit the court to exercise jurisdiction, over the fraudulent misrepresentation count of his complaint. We disagree. ■ ■

We note at the outset the scope of our analysis. “When a defendant files a motion to dismiss challenging the court’s jurisdiction, a two part inquiry is required. The trial court must first decide whether the applicable state long-arm statute authorizes the assertion .of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process.” (Internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996). “Only if we find the statute to be applicable do we reach the question whether it would offend due process to assert jurisdiction.” Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 250, 460 A.2d 481 (1983).

Here, the court went no further than the first inquiry; it found that the plaintiff had failed to prove that the requirements of the long arm statute—§ 52-59b, with respect to nonresident individuals—had been satisfied. The court, therefore, did not reach the issue of whether the exercise of personal jurisdiction over the defendant would violate constitutional principles of due process. Because we agree with the court’s determination, we similarly limit our analysis.

The relevant portions of § 52-59b provide that jurisdiction may be exercised over a nonresident individual who “ [transacts any business within the state”; General Statutes § 52-59b (a) (1); or “commits a tortious act within the state . . . .” General Statutes § 52-59b (a) (2). In deciding whether the applicable long arm statute authorizes jurisdiction over the defendant, the court generally is limited to the allegations in the complaint; however, “[w]hen issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).

In the present case, the court held a hearing to determine its jurisdiction. When a hearing is required to determine the court’s personal jurisdiction, we engage in a two part inquiry in reviewing the actions of the trial court. Cf. Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 861 A.2d 1160 (2004) (court engages in two part inquiry when reviewing trial court’s decision on jurisdiction, which involves mixed question of fact and law). “We determine first whether the facts found by the court were clearly erroneous and then conduct a plenary review of the court’s legal conclusions.” (Internal quotation marks omitted.) Id., 92-93. Furthermore, when a challenge to the court’s jurisdiction is raised by a nonresident individual, the plaintiff must bear the burden of proving the court’s jurisdiction. Knipple v. Viking Communications, Ltd., supra, 236 Conn. 607.

In the court’s oral decision on the motion to dismiss, it made numerous findings of fact. The court found that the discussion of a loan and the request for a loan took place in Connecticut. The discussion of the loan included the defendant’s telling the plaintiff that she intended to keep the loaned funds in her bank account and not to withdraw them. The loaned funds subsequently were transferred between brokerage accounts in New York and were not advanced in Connecticut. The defendant thereafter withdrew the loaned funds from a financial institution outside of Connecticut.

On the basis of our review of the evidence, we cannot say that the court’s findings were clearly erroneous. The plaintiff’s testimony provided the necessary foundation for the court’s factual findings. Accordingly, we now conduct a plenary review of the court’s legal conclusions to determine whether the facts found by the court require the conclusion that the plaintiff failed to show that long arm jurisdiction was proper.

A

The plaintiff first claims that long arm jurisdiction exists because the defendant transacted business in this state. See General Statutes § 52-59b (a) (1). Specifically, the plaintiff argues that the court’s findings satisfy the “transacts any business” standard necessary for jurisdiction over his causes of action for breach of contract and conversion. We disagree.

The phrase “transacts any business” has been construed by our Supreme Court to embrace a single purposeful business transaction. Zartolas v. Nisenfeld, 184 Conn. 471, 474, 440 A.2d 179 (1981). In determining whether the defendant’s contacts constitute the transaction of business within this state, “we do not resort to a rigid formula [but] balance considerations of public policy, common sense, and the chronology and geography of the relevant factors.” Id., 477.

In the present case, the court’s findings do not support the conclusion that the defendant transacted business within this state. Although the discussion of the loan and the request for the loan both took place in Connecticut, we cannot say, on the basis of the record before us, that these contacts amounted to a single purposeful business transaction. The nonspecific nature of the court’s findings do not permit us properly to analyze the defendant’s contacts with this state or to balance considerations of public policy, common sense or the chronology and geography of the relevant factors. See, e.g., Ryan v. Cerullo, 282 Conn. 109, 120, 918 A.2d 867 (2007) (New York accountant not subject to jurisdiction in this state under § 52-59b (a) (1) even though he prepared plaintiffs Connecticut tax returns); Rosenblit v. Danaher, 206 Conn. 125, 138, 140-41, 537 A.2d 145 (1988) (Massachusetts attorney not subject to jurisdiction in this state under § 52-59b (a) (1) even though he had business meeting with plaintiff in Connecticut); Green v. Simmons, 100 Conn. App. 600, 607-608, 919 A.2d 482 (2007) (mailing of two letters to Connecticut insufficient); Gaudio v. Gaudio, 23 Conn. App. 287, 299-300, 580 A.2d 1212 (jurisdiction proper when defendant traveled to Connecticut to purchase stock and became sole stockholder of close corporation whose only asset was parcel of commercial real estate in Connecticut), cert. denied, 217 Conn. 803, 584 A.2d 471 (1990); Hart, Nininger & Campbell Associates, Inc. v. Rogers, 16 Conn. App. 619, 625, 548 A.2d 758 (1988) (jurisdiction proper when nonresident defendants came to plaintiffs principal office in Connecticut to negotiate and sign individual employment contracts, came to Connecticut to attend quarterly business meetings pertaining to their employment, kept in telephone contact regularly with plaintiffs Connecticut office, filed weekly activity report sheets documenting business transacted on behalf of Connecticut corporation, sent all business account expenses to Connecticut office for payment, and had payroll checks drawn on Connecticut bank and mailed to defendants from Connecticut address); see also Gerber Trade Finance, Inc. v. Davis, Sita & Co., P.A., 128 F. Sup. 2d 86, 91-92 (D. Conn. 2001) (jurisdiction proper when Maryland defendant performed substantial accounting work while physically in state). Accordingly, absent the necessary factual findings, we cannot say that the defendant transacted any business in this state.

Moreover^ to the extent that the court did not make certain findings, the plaintiff sought no articulation of the court’s ruling. See Practice Book § 66-5. “It is a well established principle of appellate procedure that the appellant has the duty of providing this court with a record adequate to afford review. . . . Where the factual or legaLbasis of the trial court’s ruling is unclear, the appellant should seek articulation pursuant to Practice Book § [66-5]. . . . Accordingly, [w]hen the decision of the trial court does not make the factual predicates of its findings clear, we will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 789, 804 A.2d 889 (2002). On the basis of the record before ús, we conclude that the plaintiff failed to prove the statutory elements necessary for personal jurisdiction over the defendant under § 52-59b (a) (1).

B

The plaintiff also claims that long arm jurisdiction exists because the defendant committed a tortious act in this state. See General Statutes § 52-59b (a) (2). Specifically, the plaintiff argues that the record reveals that the defendant made a fraudulent misrepresentation in this state. We disagree.

“The essential elements of a cause of action in [fraudulent misrepresentation] are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon the false representation to his injury.” (Internal quotation marks omitted.) Cadle Co. v. Ginsberg, 70 Conn. App. 748, 769, 802 A.2d 137, cert. denied, 262 Conn. 905, 810 A.2d 271 (2002).

In the present case, the plaintiff argues that his testimony established that the defendant had made a fraudulent misrepresentation while in Connecticut. He asserts that the defendant, while physically in this state, told him that she intended to keep the loaned funds in a bank account and not to withdraw them. He argues that her subsequent withdrawal of the funds proves that her prior representation was fraudulent.

We conclude, however, that although the defendant withdrew the funds after telling the plaintiff that she would not do so, the withdrawal of the funds does not establish that the defendant’s representations were untrue and known to be untrue by her when she made them. As the court noted, the plaintiff presented no evidence showing that the defendant had made any representations while knowing them to be false. The defendant’s withdrawal of the funds only established that she failed to keep a promise not to withdraw the funds, not that she fraudulently had misrepresented her intention at the outset.

Moreover, to the extent that the plaintiff asks us to make factual findings concerning the defendant’s intent, we decline to do so. As an appellate court, we are not permitted to find facts. Zitnay v. Zitnay, 90 Conn. App. 71, 81, 875 A.2d 583, cert. denied, 276 Conn. 918, 888 A.2d 90 (2005). The plaintiff should have sought articulation of the court’s decision pursuant to Practice Book § 66-5. See Berglass v. Berglass, supra, 71 Conn. App. 789. Accordingly, we cannot say that the plaintiff met his burden of showing that the defendant committed a tortious act in this state.

Ill

The plaintiff next claims that the court failed to afford him procedural due process. Specifically, the plaintiff argues that the court improperly expanded the scope of its hearing and denied him the right to present evidence. We decline to review this unpreserved constitutional claim.

“[This] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . . Practice Book § 60-5. ... To allow such a claim to be raised on appeal would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Ingels v. Saldana, 103 Conn. App. 724, 730, 930 A.2d 774 (2007).

The plaintiff argues that the court’s hearing violated his due process rights. Our review of the record, however, reveals that at no point during the hearing did the plaintiff object to the manner in which the hearing was conducted, claim that he was deprived of procedural due process or seek a continuance to permit him additional time to gather evidence pertaining to personal jurisdiction. The plaintiff, therefore, did not raise this claim at trial.

Although we previously have reviewed unpreserved claims of constitutional magnitude, “[i]t is well established . . . that parties must affirmatively seek to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine [embodied in Practice Book § 60-5] and bear the burden of establishing that they are entitled to appellate review of their unpreserved constitutional claims.” (Internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 781, 894 A.2d 963 (2006). Here, the plaintiff has requested neither Golding nor plain error review. We do not engage in Golding or plain error review when it has not been requested by a party. State v. Klinger, 103 Conn. App. 163, 169, 927 A.2d 373 (2007). Accordingly, we decline to review this unpreserved constitutional claim.

IV

The plaintiffs final claim is that the court impermissibly treated the defendant’s motion to dismiss as a motion for summary judgment, thereby improperly ruling on the merits of his fraudulent misrepresentation count. We disagree.

Our review of the record reveals that the court did not improperly rule on the merits of the case but, rather, properly conducted a hearing to determine whether it could exercise personal jurisdiction over the defendant. The plaintiff alleged that the court had jurisdiction over the defendant in regard to his fraudulent misrepresentation count because the defendant committed a tortious act in this state. As previously discussed in part II, the plaintiff bore the burden of establishing that long arm jurisdiction existed. Accordingly, the court necessarily was required to determine whether the plaintiff had presented sufficient evidence of the defendant’s having committed a tortious act in this state to support long arm jurisdiction. The court’s conclusion that the plaintiff failed to meet his burden of proof is not a ruling on the merits of the fraudulent misrepresentation count but, rather, is a ruling that the plaintiff did not present sufficient facts to satisfy the statutory jurisdictional requirements. See Olson v. Accessory Controls & Equipment Corp., 54 Conn. App. 506, 515, 735 A.2d 881 (1999), aff'd, 254 Conn. 145, 757 A.2d 14 (2000). Accordingly, we conclude that the court did not rule on the merits of the case.

The judgment is affirmed.

In this opinion the other judges concurred.

       We are mindful in reaching our decision that the defendant represents herself on appeal. “This court has always been solicitous of the rights of pro se litigants and, like the trial court, will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party. . . . Although we will not entirely disregard our rules of practice, we do give great latitude to pro se litigants in order that justice may both be done and be seen to be done. . . . For justice to be done, however, any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can we disregard completely our rules of practice.” (Citation omitted; internal quotation marks omitted.) Wasilewski v. Machuga, 92 Conn. App. 341, 342, 885 A.2d 216 (2005).

       The plaintiff also claims that the court improperly failed to permit him to introduce evidence pertaining to the merits of his complaint. Because we conclude that the court did not rule on the merits of the plaintiffs complaint, we likewise conclude that the court did not improperly prevent the plaintiff from introducing evidence pertaining to the merits of his complaint.

       The motion to dismiss originally was assigned and heard before Hon. William B. Lewis, judge trial referee, but, because of his untimely death before the matter was abdicated, it was reassigned to the court, Tobin, J.

       The plaintiff has failed to provide this court with a memorandum of decision or a transcript signed by the trial court setting forth the court’s findings of fact and conclusions of law, as required by Practice Book § 64-1. When the record does not contain either a memorandum of decision or a transcribed copy of an oral decision signed by the trial court stating the reasons for its decision, “this court frequently has declined to review the claims on appeal because the appellant has failed to provide the court with an adequate record for review.” Connecticut Light & Power Co. v. Gilmore, 89 Conn. App. 164, 171 n.9, 875 A.2d 546, cert. denied, 275 Conn. 906, 882 A.2d 681 (2005). If there is an unsigned transcript on file in connection with an appeal, the claims of error raised by the plaintiff may be reviewed if this court determines that the transcript adequately reveals the basis of the trial court’s decision. See id. Because we find that the transcript adequately reveals the basis of the court’s decision, we will review the claims of error raised by the plaintiff.

       The plaintiff also claims that the defendant’s motion to dismiss failed to comply with the rules of practice and had procedural defects. This claim was not raised at trial. “[A] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one . . . .” (Internal quotation marks omitted.) Ingels v. Saldana, 103 Conn. App. 724, 730, 930 A.2d 774 (2007). “For this court to . . . consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.” (Internal quotation marks omitted.) Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn. App. 663, 680, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005); see also Practice Book § 60-5. Accordingly, we decline to address this claim.

       The judgment file states in relevant part: “This action, by writ and complaint, claiming damages, came to this court on January 31, 2006 and thence to February 27, 2006 when [the] [defendant filed a [m]otion to [djismiss and thence to the present time when the parties appeared and were at issue on the [defendant's [mjotion to [djismiss as on file.”

       The plaintiff does not allege that § 52-59b (a) (2) provided a basis of jurisdiction for the breach of contract or conversion counts. Accordingly, our review is limited to whether the defendant committed the tort of fraudulent misrepresentation while in Connecticut.

       Although we believe that a fair reading of the hearing transcript reveals that the plaintiff did not make any motions at trial relevant to his claim, the record does reveal that the plaintiff asked the court to call an additional witness after the close of evidence, which request the court denied. To the extent that this could be viewed as a motion to open the evidence, the plaintiff does not allege that the court impermissibly denied his motion to open the evidence. See Pagliaro v. Jones, 75 Conn. App. 625, 638-39, 817 A.2d 756 (2003). We therefore decline to review that aspect of the court’s ruling.


author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. ANDRE A. MESSAM
    (AC 28414)
    Flynn, C. J., and Lavine and Pellegrino, Js.

      Argued April 18
    officially released July 1, 2008

      Mary H. Trainer, special public defender, for the appellant (defendant).

      Rocco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen,
      state’s attorney, and Dina Urso, deputy assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Andre A. Messam, appeals from the judgment of conviction, following a jury trial, of one count of possession of narcotics in violation of General Statutes § 21a-279 (a). On appeal, the defendant claims that (1) the court abused its discretion in denying his motion for disclosure of the identity of a confidential informant, (2) the court abused its discretion in denying his motion for a mistrial after a witness commented on uncharged misconduct and (3) his right to a fair trial was prejudiced when one of the state’s witnesses violated the court’s sequestration order. We affirm the judgment of the trial court because we conclude (1) that the defendant’s arrest on a possession of narcotics charge was not directly related to the confidential informant but, rather, it was based on the defendant’s possessing and dropping drugs in front of several police officers immediately prior to the officers’ execution of a warrant to search him, (2) that the brief improper comment by one of the witnesses was invited by the defendant and (3) that the defendant failed to preserve for appellate review his claim that witnesses violated the court’s sequestration order.

The jury reasonably could have found the following facts. Members of the Stamford police department had obtained a search warrant allowing them to search the defendant and 26 Orchard Street. On July 16,2004, prior to executing the search warrant, Officer Steven Murphy observed the defendant leave 26 Orchard Street and walk toward Selleck Street. Murphy notified other officers via his police radio, and the other officers arrived at Selleck Street in their unmarked police vehicle, where they observed the defendant. As the officers, each wearing a “raid jacket” bearing the letters “POLICE,” turned into a driveway on Selleck Street, the defendant noticed them and dropped an item from his right hand. The officers exited the vehicle and approached the defendant. Sergeant James Matheny grabbed the defendant by the right arm, Officer Chris Baker grabbed him by the left arm and Officer Kevin Fitzgibbons picked up the item that the defendant had dropped to the ground. The item was a small plastic bag containing crack cocaine.

The defendant was handcuffed and transported to the Stamford police headquarters, where he was charged with possession of narcotics. The defendant’s first trial ended in a mistrial; his second trial resulted in a conviction. After pleading guilty to a part B information, in which he was charged with being a second time offender, the court sentenced the defendant to a term of three years imprisonment, with three years special parole. This appeal followed.

I

On appeal, the defendant claims that the court abused its discretion in denying his motion for disclosure of the identity of a confidential informant. He argues that he “was entitled to disclosure of the identity of the informant because the informant had knowledge relevant to this defendant’s theory of defense,” which was entrapment. We do not agree.

The following additional facts are relevant to our resolution of the defendant’s claim. The defendant filed a pretrial motion requesting disclosure of the identity of a confidential informant who had participated in two controlled drug buys from the defendant prior to the police obtaining the search warrant. The court conducted an evidentiary hearing on the motion. At the hearing, Baker testified that the confidential informant had contacted him stating that he could purchase drugs from a black male named “Dre.” This confidential informant previously had provided useful information to Baker, leading to numerous drug seizures and arrests. The confidential informant told Baker that he could walk to a house at 26 Orchard Street, whistle, and a man named “Dre” would come out of the house and sell him drugs. Baker and other officers conducted surveillance while the confidential informant made two controlled drug buys from the defendant. After the officers had witnessed these drug purchases, they applied for, and obtained, a search warrant for 26 Orchard Street and for the defendant. At the time the defendant was seized, the officers had not executed the warrant, and the confidential informant was not present. On the basis of this evidence, the court denied the defendant’s motion for disclosure.

“As a threshold matter, we set forth the standard by which an appellate court may review the propriety of a trial court’s decision [regarding a motion for] disclosure. It is a basic tenet of our jurisprudence that we afford deference to the trial court and assess the trial court’s conclusions pursuant to an abuse of discretion standard. . . . [T]he determination of whether an informer’s identity shall be revealed is reviewed as a matter involving the exercise of discretion by the court. ... In determining whether the trial court [has] abused its discretion, this court must make every reasonable presumption in favor of [the correctness of] its action.” (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 254 Conn. 659, 665, 759 A.2d 79 (2000).

“In Roviaro v. United States [353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957)], the United States Supreme Court had occasion to define the nature and scope of the informant’s privilege. What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. . . . The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. . . .

“Roviaro established a test for assessing challenges to the applicability of the informant’s privilege. This test involves the balancing of two competing interests: (1) the preservation of the underlying puipose of the privilege; and (2) the fundamental requirements of fairness. . . . The underlying puipose of the privilege is to protect the public interest in the flow of information to law enforcement officials. The fundamental requirements of fairness comprise the defendant’s right to a fair trial, including the right to obtain information relevant and helpful to a defense. . . . Whether [disclosure is warranted depends] on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. . . .

“Once the state has invoked the privilege, it is then the defendant’s burden to show that the balance of the evidence falls in favor of disclosure. . . . When the defendant demonstrates that disclosure of an informer’s identity, or the contents of his communication, is relevant and helpful to the defense, or is essential to a fair determination of a cause, the government’s privilege must yield. . . . Disclosure is essential to the defense where nondisclosure could hamper the defendant’s right to a fair trial, such as where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence. . . . Specific defenses that may merit disclosure include entrapment, mistaken identity and lack of knowledge. . . . Mere speculation that the informant’s information will be helpful to the defense is not sufficient to mandate disclosure.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Bunker, 89 Conn. App. 605, 625-26, 874 A.2d 301 (2005), appeal dismissed, 280 Conn. 512, 909 A.2d 521 (2006). “Before a court will compel disclosure, the informant typically must be a participant in the alleged crime or an eyewitness thereto. . . . [C]ourts generally agree that if the informant provides information to law enforcement officers without any further involvement, disclosure must yield to the protection of the informant.” (Citations omitted.) State v. Lee, 30 Conn. App. 470, 479, 620 A.2d 1303 (1993), aff'd, 229 Conn. 60, 640 A.2d 553 (1994).

The defendant argues that disclosure was required in this case because it would have assisted with his entrapment defense. He asserts that this case is similar to State v. Hernandez, supra, 254 Conn. 668-69, which he characterizes as a case in which “the court found that the [confidential informant] had knowledge relevant to the defendant’s theory of defense and ruled that disclosure of his identity was required.” The defendant also argues that in Hernandez, “[d]espite the fact that it was not known how the [confidential informant] would testify—i.e., support the defendant’s version of events—the court reasoned that the [confidential informant] had information crucial to key disputed issues as framed by the defendant. Therefore, fairness to the defendant’s defense required disclosure.” The defendant asserts that in the present case, “the [confidential informant] had information relevant to the defendant’s defense of entrapment,” and, therefore, the court abused its discretion in denying the defendant’s motion for disclosure. We do not agree, and we conclude that Hernandez readily is distinguishable from the present case.

In Hernandez, our Supreme Court explained that the testimony of the informant in that case potentially could have established “when the drugs were brought into the defendant’s home, who brought them there, and whether the defendant was present at that time.” Id., 672. The trial court also had made a factual finding that the informant in Hernandez had been in the defendant’s home and had observed what had transpired. Id., 664. In the present case, the confidential informant could not have provided any such testimony. He was not present at the time the defendant dropped the drugs on the ground immediately preceding the defendant’s arrest, nor was there any indication at the hearing on the motion for disclosure that the confidential informant had participated in this event.

In State v. Kiser, 43 Conn. App. 339, 349, 683 A.2d 1021, cert. denied, 239 Conn. 945, 686 A.2d 122 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1478, 137 L. Ed. 2d 690 (1997), as in the present case, there was “no indication that the confidential informants were participants in the crimes with which the defendant was charged.” The informants in Kiser had told the police about narcotics sales. This court stated in that case: “The charges against the defendant did not include the sale of a narcotic or controlled substance but were limited to possession with intent to sell. Moreover, the defendant conceded at trial that the informants were neither witnesses to nor participants in the crimes with which the defendant was charged. Thus, the informants did nothing more than provide the police with information that was included in the application for a search and seizure warrant. It was the evidence that was discovered in the course of the search that gave rise to the defendant’s convictions, not the information used to establish probable cause for the warrant. When the evidence discloses that the informer was merely an informer and nothing more the government is not compelled to disclose his identity.” (Internal quotation marks omitted.) Id.

Similarly, in the present case, the confidential informant provided police with information and participated in two controlled buys that gave the police sufficient probable cause to secure a warrant. Once that warrant was secured, the confidential informant had nothing else to do with the later surveillance of the defendant. Additionally, the police arrested the defendant after they saw him drop an item in response to his realization that the police officers were present. The resulting arrest and possession of narcotics charge were based on the officers’ direct observation of the defendant’s possessing and dropping the drugs and, therefore, were unrelated to the confidential informant or the warrant. The defendant was not arrested or charged with any crime related to the two controlled buys in which the confidential informant participated. When the officers observed the defendant drop drugs on the ground, they had sufficient probable cause to arrest him on the basis of their observations. Because the confidential informant was not there to witness the defendant in possession of the drugs or his dropping the drugs, the court reasonably concluded that the informant would not have had any relevant testimony to offer as to the defendant’s defense. Accordingly, we conclude that the court did not abuse its discretion in denying the defendant’s motion for disclosure.

II

The defendant next claims that the court abused its discretion in denying his motion for a mistrial. He argues that Baker improperly testified during cross-examination by defense counsel about his knowledge that the defendant had engaged in two controlled buys. The state argues that the testimony was invited by defense counsel. We agree with the state.

The following additional facts are relevant to our resolution of the defendant’s claim. During the pretrial motion hearing, defense counsel questioned Baker and Fitzgibbons as to the contents of three police reports. Two of these reports related to the two separate controlled buys in which the defendant had engaged with the confidential informant. The other report related to the execution of the search warrant and the arrest of the defendant. Although the police reports regarding the controlled buys were not the subject of a pretrial motion, it appears that all parties agreed that information about these reports and the controlled buys would not be presented to the jury. The state also acknowledged to the court that it had “cautioned [Baker] that there is nothing to come in about the buys.” Despite this caution, Baker did make reference to the two buys, which the defendant claims deprived him of a fair trial.

During cross-examination, the following colloquy occurred between defense counsel and Baker:

“Q. Let me show this document and ask you if you recognize it.
“A. Sure. Yes, sir. I recognize it.
“Q. Is that a fair and accurate representation of your report and the events that occurred in relation to [the defendant]?
“A. The end of the investigation. Correct.
“Q. Is there another report that you prepared?
“A. Yes.
“Q. Where is that?
“A. I don’t know, sir.
“Q. So, there is another report. Is this the only one you gave to the state’s attorney?
“A. All of the reports were in a file, sir.
“Q. In your file at police headquarters?
“A. In a file that goes to [the police] records division, sir.
“Q. Pardon?
“A. In a file that goes to [the police] records division. I don’t personally give anything to the state’s attorney.
“Q. So, there is another report other than this one?
“A. There [are] two buy reports.
“Q. All right.”

Defense counsel immediately asked the court to excuse the jury, which it did, and defense counsel moved for a mistrial. Defense counsel argued that testimony regarding the controlled buys was not allowed and that a simple yes or no answer had been in order to this question. He further argued that Baker “knew we were talking about just the Selleck Street arrest, and [the questions] had absolutely nothing to do with the search warrant or the buys [that were] incident to that search warrant.” The state argued that the comment was invited by the repeated questions, especially when defense counsel fully knew the contents of the other reports. The court had the court reporter play back the tape of the colloquy between defense counsel and Baker several times, and, after allowing both sides to argue the merits of a mistrial, the court stated the following: “I listened to the tape a few times in order to clear my head [as to] just what the questions were. After . . . Baker discussfed] his report concerning Selleck Street, [defense counsel] asked . . . Baker, first: Is there another report? The answer was: Yes. There was an opportunity there, after the answer was yes, to ask the question about Selleck Street. [However, defense counsel] responded: So, there is another report? . . . Baker got into the colloquy about one in the police file and one that goes to records because he doesn’t give a file directly to the state’s attorney.

“And then [defense counsel] offered a third time, asked: There is—so, there is another, there is another other than this one? And in response to that third prompt as to the other report . . . Baker responded] concerning the buy reports. I think [that] under those circumstances, with the prior knowledge that [defense counsel] had concerning the substance of the other report that concerned the non-Selleck Street matter . . . and with regard to the fact that, with regard to the first question: Is there another report? And . . . Baker’s answer is: Yes. I believe that the response at that point became invited by [defense counsel] to some extent.

“I think that [defense counsel] had the opportunity to ask the follow-up question without getting into the response by . . . Baker. So, with a curative instruction, which I’m going to give, I’m going to deny the motion for a mistrial.”

Defense counsel stated for the record that a curative instruction would not be adequate. The court noted the exception and called the jury back in. The court then gave the following instruction to the jury: “[T]he question put to . -. . Baker by [defense counsel] just before I recessed to let you go, concerned a report prepared by.. . . Baker. Other than the report prepared by . . . Baker, concerning the Selleck Street incident, that other report or its subject matter is not evidence in this case. And I instruct you that you are not to consider, in determining the guilt or innocence of the defendant in this case . . . Baker’s answer concerning the subject matter of that other report. You- are only to consider whether or not on the date at issue the defendant possessed narcotics as claimed by the state in this case.” The court also, offered to give an additional curative instruction to the jury during its final charge, but defense counsel asked the court to refrain from doing so.

On appeal, the defendant argues that “[t]here is no doubt that that statement by . . . Baker, whether intentional or not, had a prejudicial effect on the jury and that the court should have granted the motion for a mistrial. ... As a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible.” We agree with the defendant’s statement of the general rule; nevertheless, we conclude that the court did not abuse its discretion in denying the defendant’s motion for a mistrial.

We begin our analysis by setting forth the appropriate standard of review. Although “the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we ar e to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court. . . . Put another way, [o]n appeal, the defendant bears the burden of establishing that there was irreparable prejudice to the defendant’s case such that it denied him a fair trial.” (Citations omitted; internal quotation marks omitted.) State v. Coltherst, 87 Conn. App. 93, 99, 864 A.2d 869, cert. denied, 273 Conn. 919, 871 A.2d 371 (2005).

On appeal, when we are asked to consider whether the court abused its discretion, we must be mindful that “ [discretion involves a choice by a court to do or not to do something that one cannot demand as an absolute right. Courts exercise discretion in cases where impartial minds could hesitate, which exercise usually entails a balancing of the relative gravity of the factors involved. ... An abuse of discretion exists when a court could have chosen different, alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.” (Citation omitted.) In re Shaquanna M., 61 Conn. App. 592, 603, 767 A.2d 155 (2001).

In this case, we conclude that the court did not abuse its discretion in denying the defendant’s motion for a mistrial after finding that defense counsel had invited Baker’s brief remark concerning the “two buy” reports. “Action induced by an appellant cannot ordinarily be a ground of error. . . . When the claimed error is the result of a question posed by the defendant on cross-examination, [s]o long as the answer is clearly responsive to the question asked, the questioner may not later secure a reversal on the basis of any invited error.” (Citations omitted; internal quotation marks omitted.) State v. Harrison, 34 Conn. App. 473, 488, 642 A.2d 36, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994); see also State v. Polanco, 26 Conn. App. 33, 37, 597 A.2d 830, cert. denied, 220 Conn. 926, 598 A.2d 367 (1991). Although the defendant argues that the final question required only a yes or no answer, he had been given a yes answer already on the same question. Despite this, counsel continued to press Baker as to whether there were additional reports, knowing that there were a total of three reports, two of which related to the controlled buys. Counsel’s repeated questions opened the door to Baker’s answer, which was responsive to the question.

Additionally, even though Baker’s answer was invited by defense counsel, the court took action to remedy the situation and to avoid any possible prejudice to the defendant by striking the remark and telling the jury to disregard it. The court also offered to give an additional curative instruction during its final charge to the jury, but defense counsel declined the court’s offer. Absent evidence to the contrary, we presume that the jury followed the court’s limiting instruction. See State v. Nash, 278 Conn. 620, 659, 899 A.2d 1 (2006). “Such curative instructions are entitled to great weight and ordinarily prevent an appellate court from finding that [there was] reversible error.” (Internal quotation marks omitted.) State v. Youdin, 38 Conn. App. 85, 94, 659 A.2d 728, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995).

After reviewing the record, we conclude that Baker’s brief statement, which was invited by defense counsel, did not rise to the level of denying the defendant the right to a fair trial. Furthermore, the defendant has failed to establish that any alleged prejudice that might have resulted from this induced error was not cured by the court’s striking of the testimony and its curative instruction. Accordingly, the court did not abuse its discretion in denying the defendant’s motion for a mistrial.

Ill

The defendant next claims that his right to a fair trial was violated when the court’s sequestration order was not followed by some of the witnesses. He asserts that this claim was preserved by his filing of a postverdict motion for a judgment of acquittal. The state contends that this evidentiary claim was not preserved because (1) the defendant never objected at trial, and his motion for a judgment of acquittal made no mention of the sequestration order, and (2) even if the motion had been brought on this basis, “a motion for a judgment of acquittal following a guilty verdict by the jury is limited to a challenge as to the sufficiency of the evidence of an offense; Practice Book § 42-51; and, therefore, cannot possibly preserve this claim for appeal.” We agree that the defendant offered no objection to this alleged violation, and, therefore, this claim was not preserved.

Rulings related to the violation of a sequestration order are evidentiary in nature. State v. Falby, 187 Conn. 6, 25-28, 444 A.2d 213 (1982). As this court explained in State v. Paris, 63 Conn. App. 284, 775 A.2d 994, cert. denied, 257 Conn. 909, 782 A.2d 135 (2001), when a defendant offers no objection at trial to the admission of allegedly improper evidence, such a claim may not be preserved by the filing of a postverdict motion. Id., 294. We further stated that “this court will refrain from reviewing claims on evidentiary rulings in situations in which counsel has failed to make an objection. . . . We are not persuaded that evidentiary claims, not made at trial, can be preserved for appeal by raising them in a motion for a new trial after a guilty verdict. The problems inherent in allowing counsel to wait until after an adverse verdict to raise such objections to evidence are too obvious to warrant discussion.” (Citations omitted.) Id., 294-95. Accordingly, we conclude that the defendant’s claim is unpreserved and we decline to review it.

Our rule of law has been clear: “In order to preserve an evidentiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted.” (Internal quotation marks omitted.) State v. Cabral, 275 Conn. 514, 530-31, 881 A.2d 247, cert. denied, 546 U.S. 1048, 126 S. Ct. 773, 163 L. Ed. 2d 600 (2005). Having failed to offer an objection at trial, the defendant has not preserved this claim for appellate review.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-15, our entrapment statute, provides: “In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was induced to do so by a public servant, or by a person acting in cooperation with a public servant, for the purpose of institution of criminal prosecution against the defendant, and that the defendant did not contemplate and would not otherwise have engaged in such conduct.”
      We note that in this case, the defendant does not appear to have put forth an entrapment defense. Rather, it appears that his defense was that he was set up or framed and never possessed the drugs. When questioned about this during oral argument before this court, the defendant’s appellate counsel continued to state that the defense was one of entrapment, although she argued that the defendant did not possess the drugs and that he had been set up.

       We note, as well, that the reference to the “two buy reports” did not indicate explicitly that the defendant himself had been involved in two previous illicit drug transations.

       In so concluding, we find it unnecessary to consider whether such a claim ever could be preserved in a motion for a judgment of acquittal.