author: BEACH, J.

text:
    JOHN A. O’DELL, ADMINISTRATOR (ESTATE OF PATRICK O’DELL) v. KENNETH KOZEE ET AL.
    (AC 31771)
    DiPentima, C. J., and Beach and Bear, Js.

      Argued January 20 —
    officially released May 24, 2011

      Elycia D. Solimene, for the appellants (defendants).

      Ron Murphy, for the appellee (plaintiff).

      Jan C. Trendowski and Mirza Refai Arefin, certified legal intern, filed a brief for the Connecticut Restaurant Association as amicus curiae.

      William M. Bloss and David M. Bernard filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Opinion

BEACH, J.

The defendants, Kenneth Kozee, Lori Bard and L.C.B. Entities, LLC, appeal from the judgment of the trial court, rendered after a jury trial, awarding damages to the plaintiff, John A. O’Dell, administrator of the estate of Patrick O’Dell. On appeal, the defendants claim that the court abused its discretion by (1) granting the plaintiffs motion in limine, (2) failing to instruct the jury regarding visible intoxication, (3) denying their motion to set aside the verdict and for a directed verdict and (4) making various erroneous evidentiary rulings. We agree with the defendants’ third claim and, accordingly, reverse the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to the defendants’ appeal. On September 5, 2006, at approximately 7 p.m., Joel Pracher drove himself and Patrick O’Dell to the Deja Vu Restaurant in Plainville. Pracher and Patrick O’Dell participated in a billiards league, and their team competed at the restaurant every other Tuesday night. On this particular night, Pracher had consumed five beers, two shots of alcohol and one round of blackberry brandy before approximately 11 p.m. Pracher admitted that his consumption of alcohol caused him to become what he considered to be “drunk.” Although Pracher admitted that he was drunk, he was not exhibiting any physical signs that would indicate such. For example, Pracher had no difficulty walking, he was not sliming his speech, nor did he engage in any noticeably loud or boisterous behavior. On at least one occasion, Pracher purchased an alcoholic beverage from a bartender of the restaurant while he was drunk.

At approximately 12:45 a.m., Pracher and Patrick O’Dell left the restaurant. Although Pracher was too intoxicated to remember most of what occurred, he did recall that he was drunk when he left the bar, and he also remembered getting in his vehicle with Patrick O’Dell so he could give him a ride home. Pracher drove in the westbound lane on West Main Street. Approximately two miles from the restaurant, at the intersection of West Main Street and Strong Court, Pracher’s vehicle collided with the left end of a box truck that was parked legally on the north shoulder of the westbound lane on West Main Street. The speed limit on West Main Street was thirty-five miles per hour, and Pracher was estimated to have been traveling at a speed of sixty miles per hour. The passenger side door of Pracher’s vehicle was tom off upon impact, and Patrick O’Dell was ejected from the vehicle and landed in the eastbound lane of West Main Street. A tow track traveling in the eastbound lane of West Main Street drove by almost immediately after the collision had occurred, and although it took evasive action to avoid contact, the truck ran over Patrick O’Dell’s chest. He was rushed to Hartford Hospital, but he died as a result of his injuries. A toxicology report subsequently revealed that Pracher had a blood alcohol content of 0.187 shortly after the accident had occurred.

On June 4, 2007, the plaintiff filed a one count wrongful death claim alleging, inter alia, that the defendants were liable pursuant to the Dram Shop Act, General Statutes § 30-102. The trial commenced on October 28, 2009. On November 6, 2009, the jury returned a verdict in favor of the plaintiff and awarded him $4 million in damages. The defendants filed a motion to reduce the jury verdict to $250,000 pursuant to § 30-102, which the court granted. The defendants also filed a motion to set aside the verdict and for a directed verdict on November 16, 2009, alleging that “[t]here was no evidence produced during the trial to support the verdict as it was rendered by the jury.” The court denied the motion, and this appeal followed.

On appeal, the defendants claim that the court abused its discretion by denying their motion to set aside the verdict and for a directed verdict. Specifically, they argue that no evidence was presented from which the jury reasonably could have concluded that Pracher was “intoxicated,” pursuant to § 30-102 and our Supreme Court’s gloss of the term, at the time the restaurant sold him intoxicating liquor. We agree.

To prevail in an action brought pursuant to § 30-102, a plaintiff must prove that “there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another.” (Emphasis in original; internal quotation marks omitted.) Coble v. Maloney, 34 Conn. App. 655, 662, 643 A.2d 277 (1994). The dispositive question on appeal is whether a plaintiff is required to prove “visible intoxication” in order to satisfy the second element of a cause of action pursuant to § 30-102. The plaintiff argues that he is not required to prove “visible intoxication” because the statute merely requires sale of intoxicating liquor to an “intoxicated” person, not a “visibly intoxicated” person. The plaintiff further argues that our Supreme Court never used the term “visible intoxication” when discussing the elements of a cause of action pursuant to § 30-102. The defendants argue, however, that case law has established that a cause of action brought pursuant to § 30-102 requires some evidence of “visible intoxication.” We agree with the defendants.

The plaintiff is correct in his assertion that § 30-102 does not contain the phrase “visible intoxication.” Our Supreme Court, however, has provided the following definition of “intoxication” as that term is used in § 30-102: “To be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor. Intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies. When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated. He need not be ‘dead-drunk.’ It is enough if by the use of intoxicating liquor he is so affected in his acts or conduct that the public or parties coming in contact with him can readily see and know this is so.” (Emphasis added.) Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985). Although the Court in Sanders did not use the exact term “visible intoxication,” its definition clearly establishes that in order to qualify as intoxicated pursuant to § 30-102, an individual must exhibit some type of physical symptomology in such a way that an observer reasonably could perceive that the individual was indeed under the influence of alcohol to some noticeable extent.

Our Supreme Court subsequently revisited the Sanders definition of intoxication in Wentland v. American Equity Ins. Co., 267 Conn. 592, 840 A.2d 1158 (2004). In Wentland, the Court noted that “the word ‘intoxication’ has various meanings in our law, depending on the context in which it is used.” Id., 603. The court reiterated the Sanders definition of intoxication and stated that the definition “is a plain indication that there may be levels of inebriation that are less severe than intoxication. Indeed, common sense dictates that one’s behavior will be influenced to differing degrees depending on what, and how much, alcoholic liquor one had consumed. Similarly, alcoholic liquor may tend to affect some persons differently than it does others, depending on a number of factors, for instance, a person’s body weight, a person’s tolerance to alcohol, and what other food or beverages, if any, a person has consumed within the same time frame. Thus, under our definition in Sanders, it is possible to be ‘affected to some extent by’ alcoholic liquor, without being ‘intoxicated.’ ” Id., 604-605.

Additionally, this court addressed the issue of intoxication pursuant to § 30-102 in Hayes v. Caspers, Ltd., 90 Conn. App. 781, 881 A.2d 428, cert. denied, 276 Conn. 915, 888 A.2d 84 (2005). In Hayes, “[t]he [trial] court directed a verdict on the plaintiffs dram shop claim because it found that, although [the driver] himself testified that he had been intoxicated on the night in question, the plaintiff presented no evidence that [the driver] was visibly intoxicated.” (Emphasis in original.) Id., 802. We held that, in light of Sanders, the plaintiffs failure to provide any evidence of visible intoxication was “fatal to the plaintiffs claim.” Id. Therefore, on the basis of the case law previously discussed, we conclude that to prove intoxication pursuant to § 30-102, a plaintiff must present evidence showing visible or perceivable intoxication.

The plaintiff maintains, however, that requiring proof of visible or perceivable intoxication to sustain a cause of action under § 30-102 is inconsistent and irreconcilable with Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003). In Craig, our Supreme Court stated that § 30-102 “covers all sales of liquor that result in an intoxicated person causing injury, irrespective of the bar owner’s knowledge or state of mind. The act thereby provides an action in strict liability, both without the burden of proving the element of scienter essential to a negligence action and without the benefit of the broader scope of recovery permitted under such an action.” Id., 328. The plaintiff argues that requiring proof of visible or perceivable intoxication contradicts Craig because the court in that case expressly stated that a plaintiff has no burden to prove that a permittee or bartender knew that the patron was intoxicated. Id. There is no contradiction. In Sanders, the court simply stated that the element of intoxication in § 30-102 requires the exhibition of visible or perceivable symptoms from which an observer could discern that the individual was under the influence of alcohol. Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. 349-50. The court did not hold that a permittee or bartender must know that the individual was exhibiting symptoms of being intoxicated. Under the Sanders definition of intoxication, an establishment would be strictly liable pursuant to § 30-102 if it sold intoxicating liquor to a patron who exhibited perceivable signs of intoxication, even if the permittee or bartender completely was unaware of and had no reason to know of such behavior. Thus, we conclude that the Sanders definition of intoxication is consistent with the fact that a permittee or bartender’s knowledge or state of mind is of no consequence when proving a claim pursuant to § 30-102.

Having concluded that proving intoxication pursuant to § 30-102 requires a plaintiff to offer evidence that tends to establish visible or perceivable intoxication, we now turn to the defendants’ claim that the court abused its discretion by denying their motion to set aside the verdict and for a directed verdict.

“A motion to set aside the verdict should be granted if the jury reasonably and legally could not have reached the determination that [it] did in fact reach. . . . [Put differently], [i]f the jury, without conjecture, could not have found a required element of the cause of action, it cannot withstand a motion to set aside the verdict. . . . Thus, the role of the trial court on a motion to set aside the jury’s verdict is not to sit as [an added] juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did. ... As a corollary, it is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence. . . . The proper appellate standard of review when considering the action of a trial court in granting or denying a motion to set aside a verdict is the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Marciano v. Kraner, 126 Conn. App. 171, 177, 10 A.3d 572, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011).

The plaintiff argues that the court did not abuse its discretion in denying the motion to set aside the verdict and for a directed verdict because sufficient evidence was presented at trial from which the jury reasonably could have concluded that the restaurant sold Pracher intoxicating liquor while he was intoxicated. We conclude that the court abused its discretion in denying the defendants’ motion.

The plaintiff contends that the following evidence was sufficient for the jury to conclude that Pracher was intoxicated: (1) The toxicology report stating that Pracher’s blood alcohol content was 0.187 shortly after the accident had occurred, (2) the testimony of Detective Charles Smedick that the scene of the accident suggested that Pracher’s consumption of alcohol was likely to have been a significant factor causing the collision, (3) Pracher’s own admission that he was intoxicated and (4) the testimony of Scott Stevenson, an acquaintance who was at the restaurant on the night in question, that Pracher must have been intoxicated based on the amount of alcohol he saw Pracher consume. Although this evidence may have tended to prove that Pracher was intoxicated in the colloquial sense of the term, or for the purposes of General Statutes § 14-227a, such evidence was not sufficient to prove that he was intoxicated as specifically defined in Sanders for purposes of § 30-102.

A thorough review of the trial transcripts and the evidence submitted convinces us that no evidence was presented that tended to show that Pracher was exhibiting any visible or perceivable indications that he was intoxicated. Pracher testified that his speech and walking ability were not impaired. He further testified that he did not engage in any noticeably loud or boisterous behavior. The plaintiff did not present any evidence to the contrary. Accordingly, the failure to present evidence that Pracher was visibly or perceivably intoxicated was fatal to the plaintiffs claim. See Hayes v. Caspers, supra, 90 Conn. App. 802. Accordingly, we conclude that the court abused its discretion in denying the defendants’ motion to set aside the jury verdict and for a directed verdict.

The judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       Kenneth Kozee is the permittee of the establishment at issue, the Deja Vu Restaurant. L.C.B. Entities, LLC, is the corporate entity that was doing business as the Deja Vu Restaurant. Lori Bard is the principal member of L.C.B. Entities, LLC.

       Because we conclude that it is necessary to reverse the judgment on the basis of the defendants’ third claim, we do not address their remaining claims. See Peterson v. Woldeyohannes, 111 Conn. App. 784, 789 n.6, 961 A.2d 475 (2008).

       The restaurant sponsored the billiards team to which Pracher and Patrick O’Dell belonged. Kozee allowed their team to play for free and also offered each team member one free drink on the nights when they competed.

       Pracher testified that he had not consumed any alcoholic beverages before arriving at the restaurant. He further testified that he was too intoxicated to remember if he had consumed more alcoholic beverages after 10 to 11 p.m.

       Investigating officers determined that the box truck was parked in a manner such that there was ample room available for vehicles traveling on West Main Street in the westbound lane safely to have gone around the box truck.

       General Statutes § 30-102 provides: “If any person, by such person or such person’s agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of two hundred fifty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of two hundred fifty thousand dollars, to be recovered in an action under this section, provided the aggrieved person or persons shall give written notice to such seller of such person’s or persons’ intention to bring an action under this section. Such notice shall be given (1) within one hundred twenty days of the occurrence of such injury to person or property, or (2) in the case of the death or incapacity of any aggrieved person, within one hundred eighty days of the occurrence of such injury to person or property. Such notice shall specify the time, the date and the person to whom such sale was made, the name and address of the person injured or whose property was damaged, and the time, date and place where the injury to person or property occurred. No action under the provisions of this section shall be brought but within one year from the date of the act or omission complained of. Such injured person shall have no cause of action against such seller for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older.”

       “Visible intoxication” is shorthand for intoxication that is “manifest” or perceivable by the senses of others, and is not necessarily limited strictly to the sense of vision. See, e.g., Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985).

       We note the legislative silence regarding § 30-102, as to the specific issue of visible or perceivable intoxication, following Sanders, Wentland and Hayes. See Craig v. Driscoll, 262 Conn. 312, 327, 813 A.2d 1003 (2003). Nevertheless, we “draw no reliable inferences from the legislature’s failure to respond” to our holding in Hayes. Id.

       General Statutes § 14-227a provides in relevant part: “(a) No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. For the purposes of this section, ‘elevated blood alcohol content’ means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol . . . .”

       The plaintiff specifically emphasizes his contention that the evidence showing that Pracher’s blood alcohol content was 0.187 was sufficient for the jury to conclude that he was intoxicated. In Coble, we determined that the results of blood alcohol tests “are relevant to the determinations of whether an individual is intoxicated pursuant to § 30-102 . . . .” Coble v. Maloney, supra, 34 Conn. App. 666. We also stated, however, that § 30-102 “is not a per se offense that can be proven merely by establishing a blood alcohol level of 0.10 percent or greater at the time the elements of the offense occurred . . . .” Id., 664. Here, the plaintiffs medical expert testified that without knowing the specific times when Pracher consumed the alcohol, he could not opine as to if or when Pracher would have been exhibiting physical signs of intoxication. Therefore, under the facts of this case, the evidence of Pracher’s blood alcohol content was insufficient to establish intoxication pursuant to Sanders.

       On the evidence presented in this case, it may well be true that the unfortunate accident resulted from an impairment caused by the consumption of alcohol. The plaintiff argued that evidence of blood alcohol content is a more reliable means of determining intoxication than casual observation. Regardless of the merits of this argument, we are bound by our Supreme Court’s application of the legislature’s language.

       In a motion for reargument and reconsideration dated June 2, 2011, the plaintiff argues that ordering a new trial is a more appropriate disposition than directing judgment in favor of the defendants. He suggests that his reliance on the court’s ruling on the motion in limine led him not to produce evidence of visible intoxication.
      We disagree. The court’s ruling on the motion in limine, read narrowly, was limited to the permissible scope of the parties’ opening statement. The court indicated that the case would be tried on a strict liability theory, but specifically left open evidentiary questions.
      Additionally, during the course of the argument on the motion to set aside the verdict, the plaintiff argued, consistent with his position on appeal, that evidence of visible intoxication was not required. In fact, he said that he had intended to make that point with this trial. Counsel for the plaintiff stated that he had discussed the issue with his clients prior to trial, and he reported that he had said to his clients, “I’m going to put forth this case without putting on evidence of visible intoxication because I want — and the [clients] agreed — we want a definitive appellate court decision that says you do not have to prove visible intoxication.” It is not disputed that there was no evidence of a manifestation of intoxication presented during trial, and, in light of the actual ruling of the trial court and the intention of counsel, it seems unlikely that the plaintiff knew of evidence of such a manifestation but chose not to offer it into evidence because of the court’s ruling on the motion in limine.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE v. ROBERT M. KARL ET AL.
    (AC 32167)
    Beach, Alvord and Sehaller, Js.

      Argued March 22 —
    officially released May 24, 2011

      Abram Heisler, for the appellants (defendants).

      Elizabeth M. Crowe, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendants, Robert M. Karl and Susan Moore, appeal from the judgment, rendered after a trial to the court, in favor of the plaintiff, U.S. Bank National Association, as trustee. On appeal, the defendants claim that the court improperly denied their motion to dismiss the summary process complaint. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendants’ appeal. The plaintiff took title to 38 Georgetown Road in Weston, by virtue of a certificate of foreclosure dated February 14, 2007. On February 2,2009, a notice to quit was served on the defendants by abode service.

The plaintiff commenced this summary process action on February 20, 2009. On April 3, 2009, the defendants filed a motion to dismiss, alleging that the notice to quit was improper for failure to name the landlord or owner of the subject property, thus depriving the court of subject matter jurisdiction. After argument on the motion on April 23, 2009, the court denied the motion to dismiss, finding, inter aha, that the notice to quit statute, General Statutes § 47a-23, expressly permits an owner’s legal representative to provide the notice. The parties proceeded to trial on April 8, 2010, and the court rendered judgment of possession in favor of the plaintiff. This appeal followed.

The defendants’ sole claim on appeal is that the notice to quit was defective for failure to state the name of the owner of the subject property. We disagree.

“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [decision to deny] . . . the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008); see also South Sea Co. v. Global Turbine Component Technologies, LLC, 95 Conn. App. 742, 744, 899 A.2d 642 (2006).

“Before the [trial] court can entertain a summary process action and evict a tenant, the owner of the land must previously have served the tenant with notice to quit. ... As a condition precedent to a summary process action, proper notice to quit [pursuant to § 47a-23] is a jurisdictional necessity. . . . This court’s review of the trial court’s determination as to whether the notice to quit served by the plaintiff effectively conferred subject matter jurisdiction is plenary. . . .

“We further observe that [s]ummary process is a special statutory procedure designed to provide an expeditious remedy. ... It enable [s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms. . . . Summary process statutes secure a prompt hearing and final determination. . . . Therefore, the statutes relating to summary process must be narrowly construed and strictly followed.” (Citations omitted; internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 388, 973 A.2d 1229 (2009).

“The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. ... In seeking to determine [the] meaning [of a statute], General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered.” (Citation omitted; internal quotation marks omitted.) Thomas v. Dept. of Developmental Services, 297 Conn. 391, 399, 999 A.2d 682 (2010).

The defendants acknowledge that it is “undisputed that the landlord’s attorney may sign the notice to quit” but argue that “if an essential purpose of the notice to quit is to apprise the tenant of the information which he needs to defend the eviction then it would make sense that the notice to quit state the identity of the landlord . . . .” We are not persuaded.

The text of § 47a-23 is clear and unambiguous. The legislature used language indicating that notice shall be given by “owner or lessor, or the owner’s or lessor’s legal representative, or the owner’s or lessor’s attomeyat-law, or in-fact.” In fact, three times in this statutory section, the legislature identified “the owner’s or lessor’s legal representative, or the owner’s or lessor’s attomey-at-law, or in-fact” as one category of individuals authorized by the statute to provide notice. The use of the word “or” in § 47a-23, instead of “and,” suggests “in the alternative.” Because the owner and the owner’s legal representative both are included in the specific array of possible individuals who might give notice, we cannot see how the statute as written requires that the notice to quit reflect both the owner’s identity and the identity of the owner’s legal representative, attomeyat-law or attorney-in-fact.

Furthermore, if, in contemplating the content of the notice to quit, the legislature considered the identity of the owner to be necessary, it could have included such requirement in the list of information under § 47a-23 (b) where it provides that “notice shall be in writing substantially in the following form . . . .” It is well settled that “[w]e are not permitted to supply statutory language that the legislature may have chosen to omit.” (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 160, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006). We decline the defendants’ invitation to do so now.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants do not dispute that the notice to quit was properly served. The notice stated: “I hereby terminate your lease and give you notice that you are to move out of the premises you occupy at 38 Georgetown Road, Weston, Connecticut, on or before February 7, 2009, for the following reasons: You originally had the right or privilege to occupy the premises, but such right or privilege has terminated. If you do not move by the date stated above, I may start an eviction action against you. Any payments tendered after service of the Notice to Quit Possession will be accepted for reimbursement of costs and attorney’s fees and for use and occupancy only with reservation to continue with the eviction action. Dated at Farmington . . . January 29, 2009. [Signed.] Renee E. Bishop, Attorney For Owner’. . . .”

       General Statutes § 47a-23 provides in relevant part: “(a) When the owner or lessor, or the owner’s or lessor’s legal representative, or the owner’s or lessor’s attomey-at-law, or in-fact, desires to obtain possession or occupancy of any land or building . . . such owner or lessor, or such owner’s or lessor’s legal representative, or such owner’s or lessor’s attomey-at-law, or in-fact, shall give notice to each lessee or occupant to quit possession or occupancy of such land [or] building ... at least three days . . . before the time specified in the notice for the lessee or occupant to quit possession or occupancy.
      (b) The notice shall be in writing substantially in the following form: ‘I . . . hereby give you notice that you are to quit possession or occupancy of the (land [or] building . . .), now occupied by you at (here insert the address . . .), on or before the (here insert the date) for the following reason (here insert the reason or reasons for the notice to quit possession or occupancy using the statutory language or words of similar import, also the date and place of signing notice). A.B.’ If the owner or lessor, or the owner’s or lessor’s legal representative, attomey-at-law or attorney-in-fact knows of the presence of an occupant but does not know the name of such occupant, the notice for such occupant may be addressed to . . . some other alias which reasonably characterizes the person to be served . . .

       We find persuasive the decision of the Appellate Session of the Superior Court, in which, in a similar factual scenario, the notice to quit was signed by the attorney with no specific indication of the identity of the owner. See Evergreen Corp. v. Brown, 35 Conn. Supp. 549, 550-51, 396 A.2d 146 (1978) (“]t]here is no reason why a notice to quit may not be signed by a duly authorized attorney. Webb v. Ambler, 125 Conn. 543, 553, [7 A.2d 228 (1939)]”).

       Our Supreme Court and this court have likewise construed, in the context of other statutes, the word “or” to be disjunctive, synonymous with “in the alternative.” See, e.g., Giannitti v. Stamford, 25 Conn. App. 67, 75-76, 593 A.2d 140 (declining to “determine that the word ‘or’ in the statute [at issue] should be read in the conjunctive as ‘and’ rather than in the disjunctive . . .”), cert. denied, 218 Conn. 918, 597 A.2d 333 (1991); State v. Breton, 212 Conn. 258, 279, 562 A.2d 1060 (1989) (“[i]t is clear that by the use of the word ‘or,’ the legislature intended the separate terms in [the subsection of the statute at issue] to apply in the alternative”).


text:
    KENNETH BOVE v. HOWARD W. BOVE ET AL.
    (AC 32016)
    Harper, Beach and Schaller, Js.
    Argued February 22 —
    officially released May 24, 2011

      Howard W. Bove, pro se, the appellant (named defendant).

      John K. Harris, Jr., for the appellee (plaintiff).
   Opinion

BEACH, J.

In this partition action, the defendant Howard W. Bove appeals from the judgment of the trial court granting the motion of the plaintiff, Kenneth Bove, to set a new sale date. The defendant raises numerous claims on appeal, including that it was error for a committee sale of real property to occur during an automatic appellate stay. We affirm the judgment of the trial court.

The present appeal is the fifth that the defendant has filed with this court in this matter. See Bove v. Bove, 77 Conn. App. 355, 823 A.2d 383 (2003) (Bove I); Bove v. Bove, 93 Conn. App. 76, 888 A.2d 123, cert. denied, 277 Conn. 919, 895 A.2d 788 (2006) (Bove II); Bove v. Bove, 103 Conn. App. 347, 354, 930 A.2d 712 (2007) (Bove III); Bove v. Bove, 115 Conn. App. 901, 971 A.2d 96 (2009) (Bove TV). The plaintiff, the defendant and Douglas N. Bove are co-owners of a parcel of real estate located in Thompson and another located in Putnam. On October 5, 2000, the plaintiff commenced this action against his brothers, the defendant and Douglas Bove, for partition or sale of the two parcels. The court, Foley, J., rendered judgment ordering a partition by sale of the two parcels. The defendant appealed from the court’s judgment of partition by sale. In Bove I, we reversed the court’s judgment and remanded the case with direction to open the judgment. Bove v. Bove, supra, 77 Conn. App. 366-67.

Thereafter, the trial court, Riley, J., rendered judgment ordering a partition by sale. The defendant appealed, and, in Bove II, we affirmed the judgment and remanded the case for the purpose of setting a new sale date. Bove v. Bove, supra, 93 Conn. App. 87. The trial court again ordered a partition by sale of the two parcels. The committee of sale (committee) filed a motion for approval of the committee sales, which the court, Riley, J., granted. The defendant filed a motion to open and to vacate the judgment of approval, which the court, Hon. RussellF. Potter, Jr., judge trial referee, denied. The defendant appealed, and, in Bove III, we affirmed the judgment of the trial court. Bove v. Bove, supra, 103 Conn. App. 347.

The committee filed a motion for payment of committee fees and expenses in which it requested, among other things, that the deposits of the successful bidders on the two parcels at the prior sale be forfeited for failure to close on the respective properties in a timely maimer. The court, Booth, J., granted the motion. The plaintiff filed a motion for order asking the trial court to set a new sale date for the Putnam property. The court, Booth, J., granted the motion and set a new sale date of March 29, 2008. On March 27, 2008, the defendant filed his fourth appeal, this time from the court’s granting of the plaintiffs motion for order. On March 28,2008, the committee filed a motion for advice in which it suggested that the March 29,2008 committee sale proceed. The court granted the committee’s motion and ordered that the committee sale proceed on March 29, 2008, because the March 27, 2008 appeal was not timely filed. The partition sale for the Putnam property occurred on March 29, 2008, and the defendant was the highest bidder. The terms of sale required bidders to place a $17,500 deposit. On April 17, 2008, the committee filed a motion for approval of the committee sale. The court, Booth, J., did not act on the motion but, rather, continued it because of the pendency of the appeal in Bove TV. In a per curiam opinion, in Bove TV, we affirmed the judgment and remanded the case to the trial court with direction to set a new sale date. Bove v. Bove, supra, 115 Conn. App. 901. The plaintiff thereafter filed a motion to set a new sale date for the Putnam property of February 27, 2010, which motion the court, Robaina, J., granted. This appeal followed.

I

The defendant appears to claim that the March 29, 2008 committee sale of the Putnam property was conducted in violation of an automatic appellate stay that was created when his March 27, 2008 appeal was filed. Conversely, he appears to request as well that the March 29, 2008 committee sale be approved. We conclude that this issue is moot.

Although the issue of mootness was not raised in the appellee’s brief, we have a duty to consider it sua sponte. “Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties. . . . Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties. . . . [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way.” (Internal quotation marks omitted.) Smith-Lawler v. Lawler, 97 Conn. App. 376,378-79,904 A.2d 1235 (2006). “Mootness implicates this court’s subject matter jurisdiction, raising a question of law over which we exercise plenary review.” RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 680, 899 A.2d 586 (2006).

The rules of practice generally preclude any proceedings in the trial court to enforce or carry out a judgment while an appellate stay is in effect. See Practice Book § 61-11. The March 29, 2008 committee sale was conducted during the automatic appellate stay that was in place as a result of the defendant’s March 27, 2008 appeal. Because the March 29, 2008 committee sale occurred in contravention of Practice Book § 61-11, it has no force or effect. See, e.g., RAL Management, Inc. v. Valley View Associates, supra, 278 Conn. 685 (action in contravention of appellate stay given no effect); Hartford National Bank & Trust Co. v. Tucker, 181 Conn. 296, 298-99, 435 A.2d 350 (public sale of property ordered while proceedings stayed of no force or effect), cert. denied, 499 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980).

Although the committee sale occurred during an appellate stay, the committee sale was not approved by the trial court. The court never acted on the committee’s motion to approve the March 29, 2008 committee sale. “A judicial sale is one made as a result of judicial proceedings by a [committee of sale] legally appointed by the court for the purpose. . . . The court is the vendor, and the [committee of sale] appointed to make the sale is the mere agent of the court. The sale is not absolute until confirmed.” (Internal quotation marks omitted.) Hartford Federal Savings & Loan Assn. v. Tucker, 13 Conn. App. 239, 247 n.3, 536 A.2d 962, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988), citing Raymond v. Gilman, 111 Conn. 605, 613-14, 151 A.2d 248 (1930). “[A] judicial sale becomes complete and creates a legal right to obligations among parties when it is confirmed and ratified by the court.” (Internal quotation marks omitted.) National City Mortgage Co. v. Stoecker, 92 Conn. App. 787, 794, 888 A.2d 95, cert. denied, 277 Conn. 925, 895 A.2d 799 (2006); see also 47 Am. Jur. 2d 498, Judicial Sales § 94 (2006) (highest bid at judicial sale constitutes offer of purchase subject to approval or disapproval by court).

Following Bove TV and its direction to simply set a new sale date, the trial court set a new sale date of February 27, 2010, for the Putnam property. With a new sale date in effect, as directed by this court, the March 29, 2008 committee sale was effectively void. Because the committee sale cannot be confirmed and ratified now, there is no practical relief that we can afford to the defendant.

At oral argument, however, the defendant claimed that relief could be afforded to him by way of the return of a deposit he placed to secure the March 29, 2008 committee sale. The trial court has not ruled on this issue, and the issue of return of the deposit is not precisely the same as approval of the sale. Because this court cannot find facts, we do not reach any determination on the record provided regarding any deposit the defendant may have placed on the Putnam property in connection with the March 29, 2008 committee sale. We leave the resolution of this issue to the trial court upon proper motion, and we express no opinion on the merits of the issue.

II

The defendant raises numerous additional claims. He, however, has failed to cite any case law and offers virtually no analysis to support these claims. Although we are solicitous of pro se litigants, the rules of practice cannot be ignored completely. See Cooke v. Cooke, 99 Conn. App. 347, 352, 913 A.2d 480 (2007). We have considered those claims and conclude that they are inadequately briefed, the record on which to review several of the claims is inadequate and the claims largely are moot. See Smith-Lawler v. Lawler, supra, 97 Conn. App. 378 (not province of appellate courts to decide moot questions); Statewide Grievance Committee v. Rapoport, 119 Conn. App. 269, 280, 987 A.2d 1075 (this court not required to review issues presented through inadequate brief), cert. denied, 297 Conn. 907, 995 A.2d 639 (2010); Miller v. Miller, 124 Conn. App. 36,40,3 A.3d 1018 (2010) (appellant’s burden to provide adequate record for review). No useful purpose is served by farther discussion of those claims.

Ill

The plaintiff requests that we sanction the defendant for filing multiple frivolous appeals to impede the partition process. We note that we have the authority to sanction the defendant for such conduct by, among other things, prohibiting him from filing further appeals without the prior approval of the court. See Practice Book §§ 85-2 and 85-3; see also Mortgage Electronic Registration Systems, Inc., v. Book, 110 Conn. App. 833, 835, 956 A.2d 609 (2008), cert. denied, 290 Conn. 909, 964 A.2d 546 (2009). Because the defendant has raised an issue in this appeal that is not entirely frivolous, we decline, at this time, to sanction him. We note, however, that the “perpetual motion machine” created by appellate stays may be derailed by order of this court or, perhaps, appropriate action of the trial court.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date and for any further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Douglas N. Bove, the parties’ brother and co-owner of the properties at issue, also was named as a defendant in this action. Because Douglas Bove did not participate in this appeal, we refer to Howard Bove as the defendant.

       The filing of the appeal created an automatic appellate stay. See Practice Book § 61-11 (a).

       Practice Book § 61-11 (a) provides in relevant part: “Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to take an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause . . . .”

       The resolution of the deposit and setting of a new sale date are entirely separable issues.

       The defendant also claims that (1) the court erred “when it approved a new hearing to grant more time for the plaintiff to close [on the property], without giving the defendant the opportunity to object, ignoring the appellate stay,” (2) “the committee [was] derelict in its duty, not seeking the court’s approval of the sale when [the fourth] appeal . . . ended,” (3) “the court err[ed] when it did not rule on [the] defendant’s motion for a continuance,” (4) there was a “conspiracy” “[w]hen the sale was ordered, through the apparent misconduct of two judges, and the property was still secured by a deposit” and (5) the court abused its discretion in denying the defendant’s motion for injunctive relief.

       The concerns expressed by the defendant appear largely to be rendered moot by the effect of our order in Bove IV.

       We note that the plaintiff has failed to file a cross appeal raising this matter. See Housing Authority v. Charter Oak Terrace/Rice Heights Health Center, Inc., 82 Conn. App. 18, 19 n.1, 842 A.2d 601 (2004) (declining to review claim not brought in appeal or cross appeal). That notwithstanding, we are permitted to raise the issue of sanctions sua sponte. See Practice Book § 85-3.

       See First Connecticut Capital, LLC v. Homes of Westport LLC, 112 Conn. App. 750, 762, 966 A.2d 239 (2009).


author: LAVINE, J.

text:
    JOSEPH SORACCO ET AL. v. WILLIAMS SCOTSMAN, INC., ET AL.
    (AC 31848) (AC 31850)
    Bishop, Lavine and Peters, Js.

      Argued March 14 —
    officially released May 24, 2011

      Thomas P. O’Dea, Jr., for the appellant in Docket No. AC 31848, appellee in Docket No. AC 31850 (named defendant).

      William F. Gallagher, for the appellees in Docket No. AC 31848, appellants in Docket No. AC 31850 (plaintiffs).

      Ellen M. Aspell, for the appellee in Docket Nos. AC 31848 and 31850 (intervening plaintiff Manafort Brothers, Inc.).
   Opinion

LAVINE, J.

The plaintiffs, Joseph Soracco (Soracco) and his spouse, Cheryl Soracco, and the defendant Williams Scotsman, Inc., appeal from the decision of the trial court, entered in favor of the intervening plaintiff, Manafort Brothers, Inc. (Manafort), denying their joint motion for judgment to enforce a settlement agreement that they reached to resolve the action brought by the plaintiffs against the defendant. On appeal, the plaintiffs and the defendant claim that (1) the denial of their joint motion for judgment is a final judgment that can be immediately appealed and (2) the court improperly denied their joint motion because the settlement agreement was clear and unambiguous. We conclude that the court’s denial of the joint motion for judgment is not a final judgment and, accordingly, dismiss the appeals.

The following facts, many of which were set forth in an earlier appeal filed in this action in Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 971 A.2d 1 (2009), are necessary for the resolution of the plaintiffs’ and the defendant’s claims. “The plaintiffs brought an action against the defendant seeking to recover for injuries that . . . Soracco . . . had sustained on October 16, 2001, as a result of the alleged negligence of the defendant’s agents. Soracco sustained his injuries when he fell from a construction trailer after an employee of the defendant allegedly removed the stairs leading from the trailer door to the ground without ensuring that the trailer was unoccupied. Soracco was an employee of Manafort at the time of the accident and was injured in the course of his employment. Manafort became obligated to and did pay Soracco workers’ compensation benefits as a result of his injuries. Soracco’s claim for damages was brought pursuant to General Statutes § 31-293 and his spouse’s claim for loss of consortium was derivative of his claim.

“Manafort intervened in the plaintiffs’ action, pursuant to ... § 31-293 (a), seeking to recover the workers’ compensation benefits that it had paid and become obligated to pay to Soracco. Manafort also asserted a workers’ compensation lien in this action in the amount of $542,411.69. . . .

“On October 16,2006, with the assistance of the court, Holzberg, J., the parties attempted to mediate the various claims. . . . The parties were unable to reach a settlement during the mediation, and the controversy regarding the legitimate amount of Manafort’s lien never was settled or adjudicated.

“On October 23, 2006, following the unsuccessful mediation attempt, the plaintiffs and the defendant reported to Judge Holzberg that they had reached a settlement agreement. The plaintiffs’ counsel also informed the court that he had provided the defendant with a withdrawal and a formal release from liability. The substance of the settlement agreement was that, in exchange for the withdrawal and release, the defendant would pay the plaintiffs a total sum of $750,000. The plaintiffs’ attorney indicated that each plaintiff would receive one half of that amount in satisfaction of their individual claims. Unsatisfied with this intended apportionment, Manafort requested a hearing to allow the court to determine whether the equal division of the settlement proceeds was reasonable. Apparently seeking the court’s imprimatur for their settlement, the plaintiffs acquiesced to this procedure.

“Judge Holzberg agreed to make a finding regarding whether an equal division of the proceeds between the plaintiffs was reasonable. After considering testimony from [Cheryl Soracco] as well as arguments from the plaintiffs and Manafort regarding the reasonableness of the settlement allocation, Judge Holzberg upheld the equal apportionment of the settlement proceeds between the plaintiffs. Manafort thereafter appealed”; id., 88-90; claiming in part that Judge Holzberg improperly allowed the plaintiffs and the defendant to settle the matter without its consent. Id., 87-88.

Our Supreme Court vacated Judge Holzberg’s order, concluding that “§ 31-293 (a) does not confer standing on an employer seeking to challenge the allocation of the proceeds of a settlement reached between its injured employee and the tortfeasor. Indeed, the statute protects employers from unilateral settlement agreements by preserving their rights in the face of such agreements and by providing that they cannot be bound by them absent their assent. Section 31-293 does not, however, allow an employer to interfere with a settlement reached between its employee and the tortfeasor, nor does it provide courts with the authority to dictate the appropriate terms of such a settlement.” Id., 96-97.

On August 10, 2009, the plaintiffs and the defendant filed a joint motion for judgment based on the settlement agreement. Specifically, they requested that the court render judgment on the settlement agreement allowing each plaintiff to recover $375,000 from the defendant. They also argued that the court had the authority to enforce the agreement as a judgment pursuant to Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993).

On December 14, 2009, the court, Silbert, J., denied the joint motion for judgment. The court concluded: “[0]n closer inspection, the ‘unambiguous agreement’ on which the plaintiffs and the defendant rely is not so unambiguous after all. There is no dispute that the defendant’s understanding and expectation in entering into an agreement to pay $750,000 to settle the claims against it were that it would be released from further liability concerning this incident by all other parties, including Manafort. When it agreed with the plaintiffs that Judge Holzberg could determine the ‘split’ between the plaintiffs, it was with the implicit understanding that whatever Judge Holzberg determined, the defendant was not going to be required to pay any more than it had already offered. By making it clear that it was not committing itself to be bound by Judge Holzberg’s determination, however, Manafort essentially put all parties on notice that it was not part, and would not become part, of any global settlement agreement until and unless it was satisfied with the amount of money that it would recover .... This court finds . . . there is in fact no unambiguous settlement agreement on the part of all the parties to this litigation which the court may enforce in accordance with Audubon Parking Associates Ltd. Partnership . . . .”

The defendant and the plaintiffs filed separate appeals from the court’s decision denying their joint motion for judgment. This court placed the appeals on its own motion calendar to determine whether there was a final judgment and later marked the motion off. On April 14, 2010, however, this court ordered, sua sponte, that the parties “address in their briefs on the merits of the appeals whether the appeals were taken from a final judgment.”

In response to this court’s order, the plaintiffs and the defendant claim that the trial court’s decision denying their joint motion for judgment is a final judgment because the decision threatens the preservation of a right already secured to them and they will be irreparably harmed unless they may immediately appeal. Specifically, the plaintiffs and the defendant claim that they acquired the right to avoid a trial by entering into the settlement agreement and that this right will be irreparably lost once trial begins. We disagree and conclude that the court’s decision denying the joint motion for judgment was not a final judgment.

The subject matter jurisdiction of this court is limited by statute. General Statutes § 52-263 provides in relevant part: “Upon the trial of all matters of fact in any cause or action in the Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court . . . .” (Emphasis added.) “In both criminal and civil cases ... we have determined certain interlocutory orders and rulings of the Superior Court to be final judgments for purposes of appeal. An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

The plaintiffs and the defendant claim that the court’s denial of their joint motion for judgment is a final judgment pursuant to the second prong of Curdo. “[F]or an interlocutory ruling in either a criminal or a civil case to be immediately appealable under the second prong of Curdo, certain conditions must be present. There must be (1) a colorable claim, that is, one that is superficially well founded but that may ultimately be deemed invalid, (2) to a right that has both legal and practical value, (3) that is presently held by virtue of a statute or the state or federal constitution, (4) that is not dependent on the exercise of judicial discretion and (5) that would be irretrievably lost, causing irreparable harm to the appellants without immediate appellate review.” Sharon Motor Lodge, Inc. v. Tai, 82 Conn. App. 148, 158-59, 842 A.2d 1140, cert. denied, 269 Conn. 908, 852 A.2d 738 (2004).

Our resolution of the plaintiffs’ and the defendant’s claims is guided by Sharon Motor Lodge, Inc. In Sharon Motor Lodge, Inc., the plaintiffs appealed the denial of their motion for judgment in which they claimed that they were entitled to judgment due to a mediation that allegedly resulted in a settlement of their underlying case. Id., 149. Specifically, the plaintiffs in Sharon Motor Lodge, Inc., claimed, on the basis of Audubon Parking Associates Ltd. Partnership, an entitlement to avoid trial due to the claimed settlement. Id., 157-58. This court dismissed the appeal in Sharon Motor Lodge, Inc., for lack of a final judgment and recognized that “although parties who have agreed to settlements may have a contractual right not to go to trial, that right is not of a constitutional or statutory nature. When parties agree to settle a case, they are effectively contracting for the right to avoid a trial. The asserted right not to go to trial can appropriately be based on a contract between the parties.” (Emphasis in original; internal quotation marks omitted.) Id., 158. This court went on to conclude that “[t]he plaintiffs’ right to immediate appellate review fails for the reason that it rests on a discretionary action of the trial court . . . and does not involve a right that is presently held.” Id., 159.

The plaintiffs’ and the defendant’s right to avoid trial in the present case is a contractual right arising from their settlement agreement. As in Sharon Motor Lodge, Inc., the plaintiffs’ and the defendant’s right to avoid trial, therefore, is not a right that “is presently held by virtue of a statute or the state or federal constitution . . . .” Id. We conclude, therefore, that the court’s decision denying the joint motion was not a final judgment pursuant to the second prong of Curdo.

The plaintiffs and the defendant argue that, although a settlement is a creature of contract, our Supreme Court has, in some instances, concluded that a decision denying a party the right to avoid trial is an appealable final judgment. Specifically, they point to our Supreme Court decisions that have concluded that an order denying a defendant’s motion to dismiss following the declaration of a mistrial due to jury deadlock is appealable as a double jeopardy claim; State v. Tate, 256 Conn. 262, 275, 773 A.2d 308 (2001); the denial of a motion for summary judgment based on a claim of collateral estoppel is immediately appealable; Clukey v. Sweeney, 112 Conn. App. 534, 537 n.1, 963 A.2d 711 (2009); and the denial of a motion to dismiss based on a colorable claim of sovereign immunity is a final judgment for purposes of appeal. Shay v. Rossi, 253 Conn. 134, 167, 749 A.2d 1147 (2000), overruled on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003).

This court addressed a similar argument in Sharon Motor Lodge, Inc., and concluded that that case was “unlike the cases involving collateral estoppel ... or cases involving double jeopardy . . . which establish the right not to go to trial at all. The principle of collateral estoppel in civil cases and double jeopardy in criminal cases is analogous because it invokes the right not to go to trial on the merits ever. . . . The plaintiffs in this case, on the basis of Audubon Parking Associates Ltd. Partnership . . . claim entitlement to avoid trial due to a claimed settlement during a mediation session.” (Citations omitted; emphasis added.) Sharon Motor Lodge, Inc. v. Tai, supra, 82 Conn. App. 157-58.

Our case law has also distinguished the denial of a motion for summary judgment based on a claim of collateral estoppel from other rulings. “Under Connecticut law, [t]he denial of a motion for summary judgment ordinarily is an interlocutory ruling and, accordingly, not a final judgment for purposes of appeal. . . . Nevertheless, in Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 544 A.2d 604 (1988), our Supreme Court held that the denial of a claim for collateral estoppel was ripe for immediate appellate review. . . . The court explained that to postpone appellate review and to require further exhaustion of administrative remedies would defeat the very purpose that collateral estoppel is intended to serve. [T]he basic proposition . . . has always been essentially the same: A party should not be allowed to relitigate a matter that it already had opportunity to litigate. . . . [T]he defense of collateral estoppel is a civil law analogue to the criminal law’s defense of double jeopardy, because both invoke the right not to have to go to trial on the merits. Like the case of a denial of a criminal defendant’s colorable double jeopardy claim, where immediate appealability is well established ... [a] judgment denying [a] claim of collateral estoppel is a final judgment.” (Citations omitted; internal quotation marks omitted.) Singhaviroj v. Board of Education, 124 Conn. App. 228, 232, 4 A.3d 851 (2010).

As our Supreme Court concluded, when collateral estoppel is invoked, a party is seeking to prevent relitigation of a matter. This is an entitlement that involves the right to never go to trial on the merits. Collateral estoppel, therefore, invokes a right that is distinguishable from the right held by the plaintiffs and the defendant in the present case. Here, at best, the parties only had a contractual agreement to avoid trial. Unlike the doctrine of collateral estoppel, their contractual right, therefore, is not founded on the judicial precept that once an issue is fully and fairly aired, it should not be subject to relitigation by the same parties.

We further conclude that the court’s decision denying the joint motion for judgment does not satisfy the second prong of Curdo because the plaintiffs’ and the defendant’s right to avoid trial “would [not] be irretrievably lost . . . without immediate appellate review.” Sharon Motor Lodge, Inc. v. Tai, supra, 82 Conn. App. 159. The court stated in its memorandum of decision that “[t]he clerk is directed to schedule a pretrial conference with the [parties] at the earliest practical date to determine whether a settlement is still possible and, if not, to select a firm trial date.” The court also concluded that the plaintiffs and the defendant are still free to settle according to their own agreement but that the case against the defendant by Manafort would continue. The parties, therefore, are still capable of reaching a settlement, which will provide a resolution to this case, in lieu of a trial, without immediate relief from this court.

The appeals are dismissed.

In this opinion the other judges concurred.

       On February 6, 2006, this action was withdrawn as against the defendant E&F/Walsh Building Company, LLC. We therefore refer to Williams Scotsman, Inc., as the defendant in this opinion.

       Because we conclude that the denial of the joint motion for judgment is not a final judgment, we do not address the plaintiffs’ and the defendant’s claim that the court improperly denied their joint motion.

       Manafort agreed to permit Judge Holzberg to find a mutually acceptable resolution, but it also announced that it was not agreeing to be bound by Judge Holzberg’s decision and that it would appeal the decision if it did not find it satisfactory.

       “A hearing pursuant to Audubon Parking Associates Ltd. Partnership ... is conducted to decide whether the terms of a settlement agreement are sufficiently clear and unambiguous so as to be enforceable as a matter of law.” Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 499 n.5, 4 A.3d 288 (2010).

       Only the plaintiffs and Manafort submitted briefs in this appeal. In lieu of filing a separate brief and appendix, the defendant adopted the brief and appendix filed by the plaintiffs.

       We also note that a criminal defendant’s right to be free of double jeopardy is a constitutional right, rather than a contractual right and, therefore, satisfies the second prong of Curdo. See State v. Jutras, 121 Conn. App. 756, 757, 996 A.2d 212, cert. denied, 298 Conn. 917, 4 A.3d 1230 (2010).


author: BISHOP, J.

text:
    LINDA ZANESKI, ADMINISTRATRIX (ESTATE OF MICHAEL P. ZANESKI) v. THIRSTY TURTLE ET AL.
    (AC 31893)
    DiPentima, C. J., and Bishop and Schaller, Js.

      Argued March 15 —
    officially released May 24, 2011

      Donald Gaudreau, for the appellant (plaintiff).

      Jan C. Trendowski, with whom, on the brief, was Mirza Refai Arefin, certified legal intern, for the appellees (defendants).
   Opinion

BISHOP, J.

In this action brought pursuant to General Statutes § 30-102, the Dram Shop Act, the plaintiff, Linda Zaneski, in her capacity of administratrix of the estate of her son, Michael P. Zaneski, appeals from the judgment of the trial court setting aside the jury verdict and directing the jury to render a verdict in favor of the defendants, the Thirsty Turtle, a tavern, Club, LLC, its backer, and Donald G. Kelley, its permittee. On appeal, the plaintiff claims that the court improperly determined that she failed to prove that the defendants sold alcohol to an intoxicated person, namely, Cynthia Caceras, in violation of the Dram Shop Act. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 7:30 p.m. on March 18, 2005, Caceras met friends at the Thirsty Turtle in Stamford. She stayed there until just after midnight. While at the Thirsty Turtle, Caceras consumed between three and four beers. After leaving the Thirsty Turtle, she went to another bar nearby, but she did not further consume any alcohol while there. At approximately 1:45 a.m., after dropping her cousin off at her car, Caceras proceeded onto Interstate 95. When Caceras attempted to cross into the left lane of traffic, she struck a vehicle being operated by Michael Zaneski. Caceras and Michael Zaneski drove to the shoulder of the highway, exited their vehicles and exchanged information. As they were returning to their respective vehicles, a third vehicle struck Caceras’ car, causing it to strike Michael Zaneski and pin him against the guardrail. Michael Zaneski.sustained severe injuries and was pronounced dead at the scene.

Trooper John Jackson of the state police spoke with Caceras at the scene of the accident at approximately 2:15 a.m. Although Jackson did not note anything unusual about Caceras’ behavior at that time, he smelled alcohol on her breath and noted her bloodshot eyes when he later spoke to her at the hospital. Jackson indicated that Caceras had been crying and acknowledged that her crying could have caused or contributed to the redness of her eyes. Pursuant to routine police procedure concerning motor vehicle fatalities, Caceras was administered two tests to determine her blood alcohol content, one at 4:20 a.m. and the other at 5:20 a.m. Both tests indicated a blood alcohol content of 0.14.

At trial, Caceras testified that she had consumed three or four beers during the four to five hour period of time that she was at the Thirsty Turtle and that she had not had anything else to drink that night. She indicated that she did not feel intoxicated at any time during the evening, that she never slurred her speech and that she did not have any difficulty maintaining her balance. She testified that she did not, at any time, exhibit any signs of intoxication. There was no other evidence submitted to the jury regarding the condition or behavior of Caceras during the evening in question.

At the conclusion of evidence, the defendants moved for a directed verdict, on which the court reserved judgment pursuant to Practice Book § 16-37. On April 28, 2009, the jury returned a verdict in favor of the plaintiff in the amount of $1,028,200.31. The defendants thereafter filed motions to set aside the verdict and for a directed verdict. The court granted the defendants’ motions to set aside the verdict pursuant to Practice Book § 16-35 and for a directed verdict, and rendered judgment in favor of the defendants. From that judgment, the plaintiff appeals.

“In reviewing a trial court’s decision to set aside a jury verdict, we must consider the evidence in the light most favorable to the party who succeeded before the jury. . . . While an appellate court must give great weight to a trial court’s decision to set aside a verdict, an appellate court must carefully review the jury’s determinations and evidence, given the constitutional right of litigants to have the issues decided by a jury. Great weight should be given to the action of the trial court and the presumption is that a verdict is set aside only for good and sufficient reason. However, the record must support that presumption and indicate that the verdict demonstrates more than poor judgment on the part of the jury. . . .

“[The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles .... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.” (Citation omitted; internal quotation marks omitted.) Nuzzo v. Nathan, 123 Conn. App. 114, 118-19, 1 A.3d 267 (2010).

Similarly, “[a] trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. ... In reviewing the trial court’s decision [to grant the defendant’s motion for a directed verdict] we must consider the evidence in the light most favorable to the plaintiff. . . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Internal quotation marks omitted.) Fisher v. Big Y Foods, Inc., 298 Conn. 414, 440, 3 A.3d 919 (2010). “A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict.” (Internal quotation marks omitted.) Beale v. Yale-New Haven Hospital, 89 Conn. App. 556, 566, 874 A.2d 259 (2005).

To prevail on a dram shop claim, a plaintiff must prove: “(1) the sale of the alcoholic liquor; (2) that the sale was to an intoxicated person; and (3) that the intoxicated person caused injury to another’s person or property as a result of his or her intoxication.” Craig v. Driscoll, 262 Conn. 312, 328, 813 A.2d 1003 (2003). Proof of sale to an intoxicated person requires proof of “something more than to be merely under the influence of, or affected to some extent by, liquor. Intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies. When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated. He need not be ‘dead-drunk.’ It is enough if by the use of intoxicating liquor he is so affected in his acts or conduct that the public or parties coming in contact with him can readily see and know this is so.” Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985). In Hayes v. Caspers, Ltd,., 90 Conn. App. 781, 881 A.2d 428, cert. denied, 276 Conn. 915, 888 A.2d 84 (2005), a patron of the defendant tavern testified that he had been intoxicated on the night in question, but the plaintiff presented no evidence that the patron was visibly intoxicated while at the tavern. On that basis, this court concluded that the plaintiff failed to meet his burden of proof under Sanders. Id., 802.

Here, the plaintiff argues that Caceras’ erratic operation of her motor vehicle was evidence of her intoxication while at the Thirsty Turtle. The accident, however, occurred approximately two hours after Caceras had left the defendant establishment, rendering the connection between her alleged erratic driving and her condition two hours earlier too tenuous to be probative. Similarly, Jackson’s testimony that he smelled alcohol on Caceras’ breath, that her eyes were bloodshot and that she had a blood alcohol content of 0.14 four to five hours after she left the Thirsty Turtle is not probative of the question of whether Caceras was visibly intoxicated when she was served by the defendants. Indeed, as she must, the plaintiff concedes that there was no evidence before the jury that Caceras was intoxicated while she was at the Thirsty Turtle. The plaintiff argues only that the jury could deduce Caceras’ intoxication while at the Thirsty Turtle from her driving behavior two hours after leaving the defendant establishment and from the results of a blood alcohol analysis taken several hours later. The plaintiffs argument, however, rests on speculation, an inadequate substitute for probative evidence. Because the jury could not reasonably have determined that the defendants served alcohol to an intoxicated person, the court did not abuse its discretion in setting aside the verdict and directing a verdict in favor of the defendants.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 30-102 provides in relevant part: “If any person, by such person or such person’s agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of two hundred fifty thousand dollars ... to be recovered in an action under this section . . . .”

       The verdict was reduced to $250,000 pursuant to the cap imposed by § 30-102.

       There was no expert evidence presented to extrapolate the blood alcohol results back to the time that Caceras was served.


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. ROBERT L. MCMILLION
    (AC 31625)
    Harper, Bear and Pellegrino, Js.
    Argued February 9 —
    officially released May 24, 2011

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

      RoecoA. Chiarenza, deputy assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and James Bemardi, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Robert L. McMillion, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). His sole contention is that the trial court improperly denied his motion to suppress certain incriminatory statements allegedly made without adequate advisement of his Miranda rights. We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. On the evening of September 15, 2007, a verbal altercation transpired between the defendant and the victim, Ivan Flores, outside the Latino Club in Stamford. The altercation culminated with the defendant repeatedly striking the victim in the head with an aluminum baseball bat. Subsequently, the victim was transported to Stamford Hospital, where he was admitted to the intensive care unit and treated for injuries that included, inter alia, lacerations of his head and scalp, fractured bones around his right eye, a fractured skull and both epidural and subdural hematomas, which involve bleeding in the head. At trial, Vanessa M. Brown, an emergency room physician at Stamford Hospital, testified that the victim faced a substantial risk of death as a result of his injuries.

Following the assault, the defendant fled to North Carolina, where he subsequently was apprehended. The defendant waived extradition and was transported back to Connecticut on October 29, 2007, by Sergeant Anthony Lupinacci and Officer Paul Mabey of the Stamford police department. During that trip, the defendant made a number of statements to Lupinacci and Mabey, which he later moved to suppress as violative of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). After a hearing, the court denied that motion. A trial followed, at the conclusion of which the jury found the defendant guilty of assault in the first degree. The court rendered judgment accordingly and thereafter sentenced him to a total effective term of eight years incarceration and five years of special parole. This appeal followed.

At the outset, we note what is not before us. In its oral decision on the motion to suppress, the court found that the defendant was provided warnings pursuant to Miranda v. Arizona, supra, 384 U.S. 478-79. The court expressly credited the testimony of Mabey, who stated at the suppression hearing that after placing the defendant in handcuffs, he informed the defendant that “[h]e has the right to remain silent. Anything he says can and will be used against him in a court of law. He has the right to an attorney. If he cannot afford one, the court will appoint him one. He has the right to stop answering questions at any time. He has the right to invoke his privilege to an attorney at any time. He has the right to not answer specific questions, if he wants to pick and choose the questions he wants to answer .... The Miranda warnings don’t say that, I go above and beyond what the Miranda says and explain it a little bit further and then I asked [the defendant] if he understood [the warnings]. He indicated . . . while I [was] going through them, he [stated] ‘I know them, I know them, I know them.’ I [responded that] I have to do this anyway. So I went through them. He said he understood them and then he waived them and said he wanted to talk to us . . . Although the defendant in his appellate brief opines that “[t]here is little evidence to support the court’s finding in this case that the Miranda warnings were given at all,” he neither has challenged that finding as clearly erroneous nor briefed the issue in any manner. See, e.g., State v. Jones, 99 Conn. App. 196, 202, 912 A.2d 1099 (“well established that analysis, rather than abstract assertion, of claims is a prerequisite to appellate review”), cert. denied, 281 Conn. 927, 918 A.2d 279 (2007); Ramsay v. Camrac, Inc., 96 Conn. App. 190, 198 n.8, 899 A.2d 727 (declining to review claim “buried” in discussion of related issue and not “distinctly raised as a separate point on appeal”), cert, denied, 280 Conn. 910, 908 A.2d 538 (2006). Accordingly, we confine our review to the distinct claim advanced in this appeal.

The defendant’s specific contention is that the Miranda warnings provided were inadequate in that he was not expressly advised of his right to have an attorney present during questioning. His claim presents a question of law over which our review is plenary. See State v. Jones, 281 Conn. 613, 654, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007).

The fifth amendment to the United States constitution affords to each individual the privilege not to be compelled to incriminate oneself. In Miranda, the United States Supreme Court recognized that “the right to have counsel present at the interrogation is indispensable to the protection of the [f]ifth [a]mendment privilege . . . .” Miranda v. Arizona, supra, 384 U.S. 469. That court since has explained that reviewing courts evaluating the adequacy of Miranda warnings “need not examine [them] as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably conve [y] to [a suspect] his rights as required by Miranda.” (Internal quotation marks omitted.) Duckworth v. Eagan, 492 U.S. 195, 203, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989).

We conclude that the warnings that Mabey provided to the defendant reasonably conveyed those rights. Although Mabey did not expressly advise the defendant of his right to have an attorney present during questioning, the court found that Mabey did inform him that he has the right to an attorney and that he has the right to invoke his privilege to an attorney at any time. In that respect, this case resembles Florida v. Powell, 559 U.S. 50, 130 S. Ct. 1195, 175 L. Ed. 2d 1009 (2010). At issue in Powell was “whether advice that a suspect has ‘the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,’ and that he can invoke this right ‘at any time . . . during th[e] interview,’ satisfies Miranda.” Id., 53. In answering that query in the affirmative, the court stated that “[t]he first statement communicated that [the defendant] could consult with a lawyer before answering any particular question, and the second statement confirmed that he could exercise that right while the interrogation was underway. In combination, the two warnings reasonably conveyed [his] right to have an attorney present, not only at the outset of interrogation, but at all times.” Id., 62. Thus, the court concluded that “[although the warnings were not the clearest possible formulation of Miranda's right-to-counsel advisement, they were sufficiently comprehensive and comprehensible when given a commonsense reading.” Id., 63.

A commonsense reading of Mabey’s warnings to the defendant in the present case persuades us that they “communicated the same essential message” as that required by Miranda. Id., 64. After first advising the defendant of his right to an attorney, Mabey then informed him of both his “right to stop answering questions at any time” and his “right to invoke the privilege of an attorney at any time.” In tandem, those warnings reasonably conveyed to the defendant his right to have an attorney present at any time during the interrogation.

In addition, we are mindful that the court, in its oral decision, found that the defendant had “been arrested on at least twelve prior occasions,” that he “is very sophisticated, very intelligent and seems to understand a great deal [about] the legal process” and that “[the defendant] is ... a seasoned individual who understands what Miranda rights are about.” The defendant does not contest those findings on appeal. Likewise, the court had before it evidence that the defendant articulated his familiarity with his Miranda rights at the time of his October 29, 2007 arrest. At the suppression hearing, Mabey testified that as he advised the defendant of those rights, the defendant stated, “ T know them, I know them, I know them’ and T know my rights inside and out.’ ” The court found Mabey’s testimony to be credible, as was its exclusive prerogative. See States. Santiago, 245 Conn. 301, 318, 715 A.2d 1 (1998). Furthermore, contrary to his contention on appeal, the defendant admitted in his suppression testimony that, as a general matter, he was aware of his right to have counsel present during questioning. When specifically asked if he was aware of his right to have counsel present in the automobile during the October 29, 2007 trip from North Carolina to Connecticut, the defendant testified, “Oh yes, exactly.” The foregoing informs our analysis of whether a constitutional violation has occurred.

Miranda warnings are prophylactic measures designed to guard against infringement of the privilege against seh-incrimination. Miranda v. Arizona, supra, 384 U.S. 467. At the same time, they “were not intended to create a constitutional straitjacket”; (internal quotation marks omitted) Michigan v. Tucker, 417 U.S. 433, 444, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974); nor do they require “a ritualistic recital of meaningless words.” People v. Prim, 53 Ill. 2d 62, 67, 289 N.E.2d 601 (1972), cert. denied, 412 U.S. 918, 93 S. Ct. 2731, 37 L. Ed. 2d 144 (1973). As the United States Court of Appeals for the Second Circuit has recognized, “Miranda warnings are prophylactic only; they are not constitutional rights in themselves. . . . The reading of (or failure to read) Miranda warnings only has a presumptive effect on whether or not an individual’s [f]ifth [a]mendment rights may have been violated.” (Internal quotation marks omitted.) Deshawn E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998). The essential purpose of Miranda warnings “is to provide a criminal suspect with the informed choice either to exercise his [f]ifth and [s]ixth [ajmendment rights or to waive them.” United States v. Yousef, 327 F.3d 56, 144 (2d Cir.), cert. denied, 540 U.S. 933, 124 S. Ct. 353, 157 L. Ed. 2d 241 (2003); see also Young v. Walls, 311 F.3d 846, 850 (7th Cir. 2002) (purpose of Miranda warnings is “to protect the suspect’s privilege against compulsory self-incrimination”); United States v. Frazier, 476 F.2d 891, 900 (D.C. Cir. 1973) (purpose of Miranda warnings “is to convey information to the suspect”). In the present case, that aim was met. Accordingly, we conclude that the court properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


author: PER CURIAM.

text:
    CITIBANK (SOUTH DAKOTA), N.A. v. BEVERLY J. EVVARD
    (AC 31995)
    DiPentima, C. J., and Bishop and Gruendel, Js.
    Argued March 21-
    officially released May 24, 2011

      Beverly J. Eward, pro se, the appellant (defendant).

      Julie B. Solomon, for the appellee (plaintiff).
   Opinion

PER CURIAM.

This case arises from an action brought by the plaintiff, Citibank (South Dakota), N.A., for recovery of credit card debt owed by the defendant, Beverly J. Eward. The defendant appeals from the judgment rendered by the trial court following the granting of the plaintiffs motion for summary judgment. On appeal, she claims that the plaintiff lacked standing to maintain the action and, therefore, that the trial court lacked subject matter jurisdiction over the case. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our disposition of this appeal. On April 7, 2008, the plaintiff filed a complaint sounding in account stated for $7676.87 of unpaid credit card debt. The pro se defendant filed an answer and asserted seven special defenses, including that the plaintiff lacked standing to maintain the action because the plaintiff was not certified to transact business in Connecticut. The plaintiff subsequently filed a motion for summary judgment. Without addressing the issue of standing, the court granted the plaintiffs motion on January 14, 2010, and rendered judgment in favor of the plaintiff in the amount of $7676.87 plus interest in the amount of $1520.66. This appeal followed.

The defendant’s sole claim on appeal is that the plaintiff, as a foreign corporation not registered to conduct business in Connecticut, is barred by General Statutes § 33-921 (a) from maintaining this action. “If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause.” (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009). “We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 532-33, 911 A.2d 712 (2006).

The plaintiff admits that it is a foreign corporation and that it has not registered to conduct business in Connecticut. It contends, however, that it is not barred from maintaining this action because its activities fall under the exemption provided by statute for interstate commerce. General Statutes § 33-920 (a) provides in relevant part that “[a] foreign corporation, other than an insurance, surety or indemnity company, may not transact business in this state until it obtains a certificate of authority from the Secretary of the State. ...” Section 33-920 (b) (11), however, provides that “transacting business in interstate commerce” does not constitute “transacting business” within the meaning of § 33-920 (a). As claimed by the defendant and acknowledged by the plaintiff, there is nothing in the record to indicate that the plaintiff or any subsidiary of the plaintiff maintains a physical presence or employees in this state. The plaintiff avers, however, that it is a national bank that operates through interstate commerce, offering credit cards nationwide from outside the state of Connecticut, and that Connecticut courts have exercised subject matter jurisdiction over similar actions maintained by the plaintiff on multiple occasions. See, e.g., Citibank (South Dakota), N.A. v. Manger, 105 Conn. App. 764, 939 A.2d 629 (2008); Citibank (South Dakota), N.A. v. Gifesman, 63 Conn. App. 188, 773 A.2d 993 (2001). On the basis of the pleadings and the application of § 33-920 (b) (11), we conclude that the plaintiff does not lack standing under § 33-921 (a) to maintain the present action.

The judgment is affirmed.

       Although during oral argument before this court the parties also debated whether the trial court properly disregarded an affidavit of the defendant when it ruled on the plaintiffs motion for summary judgment, the defendant did not raise that issue in her principal brief, and, therefore, we do not address it. See Breen v. Judge, 124 Conn. App. 147, 155 n.4,4 A.3d 326 (2010).

       The theory of account stated is described as follows: “The delivery by the [creditor] to the [debtor] of each statement of the latter’s account, with the [documentation] upon which the charges against [the debtor’s account] were based, [is] a rendition of the account so that retention thereof for an unreasonable time constitute [s] an account stated which is prima facie evidence of the correctness of the account.” General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 56, 160 A. 296 (1932).

       General Statutes § 33-921 (a) provides: “Aforeign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.”

       It is disappointing that the plaintiff did not cite the relevant statute either in its brief in support of its motion for summary judgment or in its appellate brief. In fact, at no point prior to oral argument before this court did it cite any legal authority in regard to its standing to bring this action. Nevertheless, because the defendant has raised the issue of the plaintiffs standing, implicating the trial court’s subject matter jurisdiction, our independent review of the relevant statutory authority persuades us that the plaintiff does have standing to bring this action in Connecticut.