author: ALVORD, J.

text:
    418 MEADOW STREET ASSOCIATES, LLC v. ONE SOLUTION SERVICES, LLC
    (AC 31974)
    Harper, Lavine and Alvord, Js.
    Argued January 6
    officially released April 5, 2011

      David R. Gronbach, for the appellant (defendant).

      Andrew M. McPherson, with whom, on the brief, was William J. Kupinse, Jr., for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant, One Solution Services, LLC, appeals from the trial court’s January 22, 2010 judgment denying its motion to open the default judgment rendered against the defendant, claiming, inter alia, that the court improperly failed to address standing and to determine if it had subject matter jurisdiction. Although we generally defer to the trial court’s discretion in matters of docket management and judicial economy, the unique procedural circumstances and jurisdictional issue presented in this case compel otherwise. Accordingly, we reverse the judgment of the trial court denying the motion to open the judgment and remand the case for further proceedings.

The relevant facts and procedural history are as follows. Barbara Levine and Steven Levine were the original owners of the plaintiff, 418 Meadow Street Associates, LLC, until Steven Levine sold his 50 percent interest to Michael Weinshel and Mark Wynnick, making them joint owners with Barbara Levine. Thus, Wein-shel and Wynnick collectively own 50 percent of the company and Barbara Levine owns the remaining 50 percent.

On September 3, 2008, Weinshel and Wynnick brought this action on behalf of the plaintiff to recover damages from the defendant for breach of their lease agreement. On February 26, 2009, the defendant answered the complaint, denying that it breached the agreement. The defendant pleaded by way of a special defense that the plaintiff brought the action without the proper authority of the plaintiffs members, and, therefore, it lacked standing to maintain the action. The plaintiff generally denied all of the special defenses without responding directly to the issue of standing.

Both parties filed pretrial memoranda during September, 2009. Therein, the defendant, once more, claimed that the plaintiff lacked standing to maintain this action. See footnote 1 of this opinion. The plaintiff, again, did not respond to the standing issue but argued breach of the lease agreement.

On November 3, 2009, the defendant’s attorney moved to withdraw his appearance citing a breakdown in communications, unreasonable financial burden and professional considerations. Pursuant to Practice Book § 3-10, he notified the defendant of his motion to withdraw his appearance. Service of the motion was made on the defendant on November 14, 2009. Permission to withdraw was granted by the court on November 18, 2009.

Two weeks later, on the scheduled trial date, December 2, 2009, Steven Levine addressed the court, identifying himself as “one of the [defendant’s] managing members.” He explained that he had attempted diligently to find a new attorney to no avail and requested a two week continuance to retain counsel. Steven Levine directed the court’s attention to the standing defense, stating, “Judge, there’s standing issues on this,” and “[b]ut there are standing issues . . . .” The plaintiff did not object to Steven Levine addressing the court. The court indicated that the “bottom line” was that Steven Levine arrived without counsel, he was unable to represent the defendant as a self-represented party and thus, in essence, the defendant had failed to appear. The court, therefore, rendered a default judgment against the defendant and held a hearing in damages, with only the plaintiff present, that afternoon. On December 16, 2009, the court awarded the plaintiff total damages in the amount of $66,508.40.

On January 8, 2010, Moynahan & Minnella, LLC, filed an appearance on the defendant’s behalf, accompanied by a motion to “reopen and reargue.” The plaintiff did not file an objection to that motion. The hearing on the motion was scheduled for January 22, 2010. At the commencement of the hearing, the court refused to consider the motion to reargue because the defendant had failed to appear when it had notice that the matter was set for a firm trial date. The court allowed argument on the motion to open. Specifically, the defendant’s new counsel claimed that there were defenses pending that the court should consider.

After argument, the court denied the motion to open the default judgment, referring to the abundance of litigation between the parties. It declined to open the judgment because, inter alia, (1) the parties already had been granted previous scheduling flexibility, (2) the court had “no choice” but to render a default judgment when the defendant arrived at trial without counsel, (3) the court clearly had told the defendant’s original counsel, upon granting the motion to withdraw, that he was to communicate that the trial would not be continued and (4) the defendant had called his new counsel “barely the night before” and, therefore, “just really waited too long.” This appeal followed.

The defendant claims that once an issue of subject matter jurisdiction was raised, the court was bound to address it. We agree. We begin by setting forth the well settled legal principles that govern this appeal. “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. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... 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).

“Once the question of lack of jurisdiction of a court is raised, it must be disposed of no matter in what form it is presented. . . . Whenever a court finds that it has no jurisdiction, it must dismiss the case, without regard to previous rulings. ... In determining whether a court lacks subject matter jurisdiction, the inquiry usually does not extend to the merits of the case. . . . Nevertheless, the court must determine whether it has the power to hear the general class [of cases] to which the proceedings in question belong. . . . Because the elements of subject matter jurisdiction are dependent upon both law and fact ... in some cases it may be necessary to examine the facts of the case to determine if it is within a general class the court has power to hear. ... Further, [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.” (Citations omitted; internal quotation marks omitted.) Equity One, Inc. v. Shivers, 125 Conn. App. 201,204-205, 9 A.3d 379 (2010).

“Additionally, a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Id., 205. When the defendant raised standing, the burden rested with “the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 164, 2 A.3d 873 (2010).

In the present case, the court had been apprised of a subject matter jurisdiction issue multiple times during the pendency of the matter. Prior to the hearing on the motion to open, the defendant brought the standing defense to the attention of the court by (1) pleading it as a special defense and (2) claiming it as an issue in its pretrial memorandum. Then, at the argument on the motion to open the default judgment, the defendant’s counsel again noted that there was a compelling reason to open the matter because there were “defenses that should be heard . . . that were not heard.” Instead of addressing the issue of subject matter jurisdiction, the court’s reasoning for its denial of the motion to open rested primarily on its previous scheduling flexibility and its conclusion that the defendant did not secure new counsel in a timely fashion. The court did not acknowledge the fact that an issue of subject matter jurisdiction had been raised.

We are respectful of the need for the trial court to manage its docket and to move matters to a conclusion, as well as to ensure the presence of counsel for scheduled hearings. Our conclusion is limited to the circumstances presently before us, in which the court failed to acknowledge the jurisdictional issue despite the fact that it was pleaded in the defendant’s special defenses, brought to the court’s attention in the defendant’s pretrial memoranda and then argued once more before the court that the defendant had defenses that needed to be heard. Standing in this case hinges on a determination regarding Weinshel’s and Wynnick’s authority to bring an action on behalf of the plaintiff. Accordingly, we remand the case for further proceedings on the motion to open the default judgment so that the trial court can properly determine whether it has subject matter jurisdiction. Because of our disposition of this claim of error, we need not address the defendant’s other claims.

The denial of the defendant’s motion to open the default judgment is reversed and the case is remanded for further proceedings on that motion.

In this opinion the other judges concurred.

       The defendant’s standing defense rests on the fact that Weinshel and Wynnick were not given permission to bring the action from co-owner Barbara Levine, and, in fact, she expressly disapproved of the legal action. The plaintiffs operating agreement, and our statutes, both require that any action taken on behalf of the plaintiff as a limited liability company must be supported by a vote of the majority in interest of its members. See General Statutes § 34-187 (a).
      General Statutes § 34-187 (b), however, introduces an exception to that rule, providing that a member may be excluded from the vote if that member “has an interest in the outcome of the suit that is adverse to the interest of the limited liability company . . . .” Weinshel and Wynnick filed a general denial to 1he special defenses but never directly pleaded this statutory exception.

       Specifically, Steven Levine stated that (1) he spoke to attorney James Welcome immediately upon the court’s granting of his original counsel’s motion to withdraw; (2) during the two weeks between the granting of the motion to withdraw and the trial date, Steven Levine attempted to facilitate an exchange of his file between his original counsel and Welcome; (3) it was not until December 1, 2009, the day before the trial, that Welcome rejected the defendant’s case; and (4) upon suffering rejection, the defendant immediately contacted Moynahan & Minnella, LLC, in an attempt to secure representation.

       “The authorization to appear [self-represented] is limited to representing one’s own cause, and does notpermit individuals to appear [self-represented] in a representative capacity.” Exspressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn. App. 543, 546, 642 A.2d 62, cert, denied, 230 Conn. 915, 645 A.2d 1018 (1994).

       The defendant did not appeal from the underlying default judgment.

       The defendant’s motion to open the default judgment was filed in a timely fashion pursuant to General Statutes § 52-212 (a), which provides in relevant part: “Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket. . . upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”
      Practice Book § 17-43 (a) employs language similar to § 52-212 (a), and they are applied interchangeably on appeal. See, e.g., Priest v. Edmonds, 295 Conn. 132, 137, 989 A.2d 588 (2010); Langewisch v. New England Residential Services, Inc., 113 Conn. App. 290, 294, 966 A.2d 318 (2009).

       Generally, a motion to dismiss is the proper way to challenge the court’s subject matter jurisdiction. See Practice Book § 10-31.


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JUSTIN CROSS
    (AC 32581)
    Gruendel, Robinson and Borden, Js.

      Argued January 3
    officially released April 5, 2011

      Aaron J. Romano, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, Dennis J. O’Connor, supervisory assistant state’s attorney, and Sandra L. Tullius, former senior assistant state’s attorney, for the appellee (state).
   Opinion

BORDEN, J.

The defendant, Justin Cross, appeals from the denial by the trial court of his motion to correct an illegal sentence imposed eight years ago for his conviction of felony murder in violation General Statutes § 53a-54c. We affirm the judgment of the trial court.

On May 30, 2003, the defendant pleaded guilty to felony murder in violation of § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2). During the plea canvass, the court advised him that the crime of felony murder “carries a maximum sentence of up to life imprisonment, which, in the state of Connecticut, is sixty years, and a mandatory minimum of twenty-five years. Do you understand that?” (Emphasis added.) The defendant answered in the affirmative. On August 29, 2003, in accordance with a plea agreement, the court imposed an effective sentence of twenty-eight years imprisonment. In doing so, the court again advised the defendant that there was a twenty-five year mandatory minimum sentence as part of the twenty-eight year sentence that the court imposed for felony murder. Accordingly, the mittimus notes a twenty-five year mandatory minimum sentence as part of the sentence for felony murder.

In 2009, the defendant filed this motion to correct an illegal sentence, claiming that it was improper for the court to designate any portion of the sentence for felony murder as a mandatory minimum and requesting that the mittimus be amended accordingly. The court denied the motion, and this appeal followed.

The defendant claims that the crime to which he pleaded guilty, namely, felony murder, “does not carry a mandatory minimum sentence.” We disagree.

This claim is controlled by State v. Lopez, 197 Conn. 337, 353-55, 497 A.2d 390 (1985). “The defendant appears to argue that it is unclear whether the legislature intended murder to have a minimum sentence of twenty-five years without suspension. A brief review of our statutory sentencing provisions demonstrates that his argument is without merit. General Statutes § 53a-28 requires that a period of probation or conditional discharge be imposed upon the entire or partial suspension of a sentence. General Statutes § 53a-29 prohibits the imposition of a period of probation or conditional discharge for a class A felony. Under General Statutes § 53a-35a, murder is defined as a class A felony requiring a mandatory minimum sentence of twenty-five years imprisonment. Thus the trial court was correct in its determination that it lacked the authority to suspend a portion of the minimum twenty-five year sentence.” Id. The fact that the defendant pleaded guilty to felony murder rather than murder is of no moment because felony murder is simply one form of the crime of murder. See General Statutes § 53a-54c; State v. Jones, 234 Conn. 324, 364-65, 662 A.2d 1199 (1995) (Borden, J, concurring in part and dissenting).

The judgment is affirmed.

In this opinion the other judges concurred.

       The court first rejected the state’s contention that it lacked subject matter jurisdiction to correct the allegedly illegal sentence. The state does not challenge that ruling in this appeal.


author: PER CURIAM.

text:
    JEFFREY M. SKELLY v. COMMISSIONER OF CORRECTION
    (AC 28349)
    DiPenüma, C. X, and Robinson and Sullivan, Xs.

      Argued January 20
    officially released April 5, 2011

      Jeffrey M. Skelly, pro se, the appellant (petitioner).

      Adam E. Mattei, special deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Jeffrey M. Skelly, appeals following the habeas court’s denial of his petition for certification to appeal from that court’s denial of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly concluded that he had not been subject to double jeopardy in his criminal trial.

Upon careful review of the record and briefs, and in fully considering the oral arguments of the parties, we conclude that the petitioner failed to demonstrate that the court abused its discretion in denying his petition for certification to appeal. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Petty v. Commissioner of Correction, 125 Conn. App. 185, 187, 7 A.3d 411 (2010), cert, denied, 300 Conn. 903, 12 A.3d 573 (2011). The petitioner has not shown that the issues raised on appeal are debatable among jurists of reason, that they could be resolved in a different manner or that they deserve encouragement to proceed further.

The appeal is dismissed.


author: BEACH, J.

text:
    IN RE JOSHUA S.

    (AC 32531)
    Lavine, Beach and Pellegrino, Js.

      Argued February 10
    officially released April 5, 2011

      Thomas B. PurseU, for the appellants (proposed intervenor Daria H. et al.).

      Arthur L. Ledford, for the appellant (respondent mother).

      Tammy Nguyen-O’Dowd, assistant attorney general, with whom, on the brief, were Richard Blumenthal, former attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

      Gloria L. Harris, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

BEACH, J.

The foster parents and would-be interve-nors, John H. and Daria IL, appeal from the trial court’s denial of their motion to intervene into the case when the court was considering transferring guardianship. On appeal, the foster parents claim that the court (1) abused its discretion by denying their motion to intervene in their capacity as foster parents and (2) erred by not conducting a hearing to determine if exceptional circumstances existed such that they would qualify to intervene as next Mends. We conclude that we do not have jurisdiction to entertain the foster parents’ claims, and, thus, dismiss their appeal.

The following facts and procedural history are relevant to our resolution of this appeal. Joshua S. was bom on June 6, 2009, and tested positive for cocaine at delivery. His mother, who admitted to using heroin and cocaine during her pregnancy, also tested positive for cocaine at delivery. She further admitted that she had a long history of substance abuse, mental health problems, prostitution and homelessness. On June 29, 2009, the petitioner, the commissioner of children and families (commissioner), filed a petition alleging that Joshua S. was neglected and also filed a motion for an order of temporary custody. An order for temporary custody was granted on July 2, 2009. Joshua S. was then released from the hospital and immediately placed into the care of the foster parents in July, 2009. On August 5, 2009, the court, Hon. Frederica S. Brenne-man, judge trial referee, determined that Joshua S. was neglected and placed him in the care and custody of the commissioner.

On April 22,2010, counsel for Joshua S. filed a motion to modify the disposition to transfer guardianship of him to his maternal great aunt in Florida. On April 29, 2010, the foster parents filed a motion to intervene. The foster parents also filed an objection to the transfer of guardianship to the maternal great aunt along with a motion to transfer guardianship to themselves. On May 3, 2010, the court, Elgo, J., denied the foster parents’ motion to intervene and granted the motion to transfer guardianship of Joshua S. to his maternal great aunt, with an order of protective supervision. No appeal was filed or other avenue of review sought at that time.

On July 29, 2010, the foster parents filed a second motion to intervene, along with a motion to open the May 3, 2010 judgment and to modify the disposition to transfer guardianship to themselves. The basis of the second motion to intervene was this court’s decision in In re Yarisha F., 121 Conn. App. 150, 994 A.2d 296 (2010), in which this court held that the trial court erred when it transferred guardianship of the minor child to her great-grandmother in Florida without a supporting interstate compact study report from a suitable authority in that state as required by General Statutes § 17a-175. Id., 155-56. The foster parents claimed that because Joshua S. was transferred to Florida in apparent violation of In re Yarisha F., they should be allowed to intervene and that the May 3, 2010 judgment should be opened. On August 3, 2010, counsel for Joshua S. filed an objection to the foster parents’ motion to intervene and also filed a motion to end the order of protective supervision. Also on August 3,2010, the court, Elgo, J., denied the foster parents’ second motion to intervene and granted the motion to end protective supervision. This appeal followed.

On appeal, the foster parents claim that the court (1) abused its discretion in denying their motion to intervene in their capacity as foster parents and (2) erred by not conducting a hearing to determine whether exceptional circumstances existed such that they appropriately could act as the child’s next friends. The foster parents argue that they should have been allowed to intervene to advance their claim that Joshua S. was transferred to his great aunt in Florida in contravention of § 17a-175. We conclude that the foster parents do not have the party status necessary to invoke our appellate jurisdiction, and, thus, we dismiss their appeal.

“A threshold inquiry of this court upon every appeal presented to it is the question of appellate jurisdiction. . . . It is well established that the subject matter jurisdiction of the Appellate Court ... is governed by [General Statutes] § 52-263 . . . .” (Citation omitted; internal quotation marks omitted.) King v. Sultar, 253 Conn. 429, 434, 754 A.2d 782 (2000). Section 52-263 provides: “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 or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.” (Emphasis added.) Thus, “[o]n its face, [§ 52-263] explicitly sets out three criteria that must be met in order to establish subject matter jurisdiction for appellate review: (1) the appellant must be a party; (2) the appellant must be aggrieved by the trial court’s decision; and (3) the appeal must be taken from a final judgment.” (Emphasis added.) State v. Salmon, 250 Conn. 147, 153, 735 A.2d 333 (1999).

In the present case, both of the foster parents’ motions to intervene were denied; thus, they were never parties to the action. Our Supreme Court has stated, however, that “if a would-be intervenor has a colorable claim to intervention as a matter of right . . . both the final judgment and party status prongs of our test for appellate jurisdiction are satisfied.” (Citation omitted; internal quotation marks omitted.) King v. Sultar, supra, 253 Conn. 436. “A colorable claim is one that is superficially well founded but that may ultimately be deemed invalid . . . .” (Internal quotation marks omitted.) BNY Western Trust v. Roman, 295 Conn. 194, 209, 990 A.2d 853 (2010). We conclude that the foster parents, on the facts of this case, do not have a colorable claim to intervention as a matter of right.

“In order for a proposed intervenor to establish that it is entitled to intervene as a matter of right, the proposed intervenor must satisfy a well established four element conjunctive test: [T]he motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the mov-ant’s interest must be impaired by disposition of the litigation without the movant’s involvement and the movant’s interest must not be represented adequately by any party to the litigation. . . . Failure to meet any one of the four elements, however, will preclude intervention as of right.” (Citations omitted; internal quotation marks omitted.) Id., 205-206. The foster parents fail to satisfy this test because they lack a sufficient direct and substantial interest in the subject matter of the action.

Our Supreme Court has stated that “a person or entity does not have a sufficient interest to qualify for the right to intervene merely because an impending judgment will have some effect on him, her, or it. The judgment to be rendered must affect the proposed intervenor’s direct or personal rights, not those of another.” Horton v. Meskill, 187 Conn. 187, 195, 445 A.2d 579 (1982). Here, the purpose of the proceedings into which the foster parents sought to intervene was to determine the guardianship of Joshua S. after a finding of neglect. Thus, the judgment affected the rights of Joshua S., and perhaps his parents, not the rights of the foster parents. Although the court’s determination regarding the guardianship of Joshua S. likely affected the foster parents emotionally, it did not affect any direct or personal rights held by them as a matter of law.

It is well established that “[f]oster families do not have the same rights as biological families or adoptive families.” (Internal quotation marks omitted.) Hunte v. Blumenthal, 238 Conn. 146, 164, 680 A.2d 1231 (1996). It is unquestioned that “[bjiological and adoptive families have a liberty interest in the integrity of their family unit which is part of the fourteenth amendment’s right to familial privacy.” Nye v. Marcus, 198 Conn. 138, 144, 502 A.2d 869 (1985), superseded by statute on other grounds as stated in Terese B. v. Commissioner of Children & Families, 68 Conn. App. 223, 230 n.10, 789 A.2d 1114 (2002). Foster parents, on the other hand, “do not enjoy a liberty interest in the integrity of their family unit.” (Internal quotation marks omitted.) Hunte v. Blumenthal, supra, 164. Rather, “[t]he rights of foster parents are defined and restricted by statute . . . [and] the expectations and entitlements of foster families can be limited by the state.” (Internal quotation marks omitted.) Id. For example, General Statutes § 52-466 (f) confers standing on foster parents to “make application for a writ of habeas corpus regarding the custody of a child currently or recently in his care . . . .” Additionally, foster parents have a right under General Statutes § 46b-129 (o) to receive notice and be heard in any proceeding concerning their foster child. Although this statute explicitly gives foster parents a right “to be heard” during a proceeding regarding the foster child, neither this statute, nor any other statute, confers on foster parents a right to intervene in a proceeding related to their foster child. The statutory scheme provides to foster parents a limited and narrow set of rights regarding foster children. Such a limited and narrow set of rights is consistent with the premise that “[fjoster parents are entrusted with foster children on a temporary basis only.” Hunte v. Blumenthal, supra, 164. Accordingly, we conclude that the foster parents do not have a colorable claim to intervention as a matter of right, and, thus, they are not “parties” entitled to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       Because the court denied the foster parents’ motion to intervene, it did not consider their other motions.

       General Statutes § 17a-175, article HI (d), which governs the placement of minor children in a home in another state, provides in relevant part: “The child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child.”

       We do not doubt that the foster parents have developed a bond with Joshua S. and that separation is painful. We by no means disparage the salutary role of foster parents in general and, presumably, the role of the foster parents in this case. We are bound, however, by the law.

       General Statutes § 46b-129 (o) provides: “A foster parent, prospective adoptive parent or relative caregiver shall receive notice and have the right to be heard for the purposes of this section in Superior Court in any proceeding concerning a foster child living with such foster parent, prospective adoptive parent or relative caregiver. A foster parent, prospective adoptive parent or relative caregiver who has cared for a child or youth shall have the right to be heard and comment on the best interests of such child or youth in any proceeding under this section which is brought not more than one year after the last day the foster parent, prospective adoptive parent or relative caregiver provided such care.”

       The foster parents indeed were given an opportunity to be heard before the court at the May 3, 2010 hearing.


author: ROBINSON, J.

text:
    FERENCNE OCSAI v. EXIT 88 HOTEL, LLC, ET AL.
    (AC 30847)
    Bishop, Robinson and Dupont, Js.
    Argued October 28, 2010
    officially released April 12, 2011

      Jeffrey O. McDonald, with whom was Louis N. George, for the appellant (third party defendant Hospitality Services Corporation).

      James F. Shields, for the appellees (named defendant et al.).
   Opinion

ROBINSON, J.

The third party defendant, Hospitality Services Corporation (Hospitality), appeals from the summary judgment rendered by the trial court in favor of the third party plaintiff, Exit 88 Hotel, LLC (Exit 88). Hospitality also appeals from the denial of its motion for summary judgment. The issue presented in this appeal is whether the court properly determined that there was no genuine issue of material fact as to whether Hospitality breached the indemnification provision of the service contract between it and Exit 88. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On September 15, 2003, Hospitality entered into a contract with Exit 88 under which Hospitality agreed to provide personnel as requested by Exit 88, in conjunction with Exit 88’s operations at the Mystic Marriott Hotel & Spa located in Groton (Mystic Marriott). Hospitality subcontracted the provision of labor under its contract with Exit 88 to Apollo Commercial Cleaning Services (Apollo). The plaintiff, Ferencne Ocsai, was employed by Apollo. Apollo assigned the plaintiff to perform housekeeping services at the Mystic Marriott. On March 2, 2004, the plaintiff was injured while performing services at the Mystic Marriott. Specifically, she suffered partial amputation of several fingers on her left hand due to the malfunction of a towel folding machine.

On March 10, 2006, the plaintiff filed an eight count complaint against the defendants Exit 88, Exit 88 Offices, LLC, Waterford Hotel Group, Inc., and Sodexho, Inc., alleging, inter alia, negligence and recklessness in connection with the dangerous conditions surrounding the towel folding machine. On December 11, 2006, the defendants moved to implead Hospitality, and, after the court granted their motion, Exit 88 filed a two count third party complaint against Hospitality alleging breach of contract and common-law indemnification in connection with the plaintiffs personal injury claim. Specifically, in the first count, Exit 88 alleged that Hospitality failed to comply with paragraph 12 of the service contract (indemnification provision), which required that Hospitality defend and indemnify Exit 88 against the plaintiffs claim. In the second count, Exit 88 asserted a common-law indemnification claim and alleged that Hospitality was negligent in its inspection of the towel folding machine and its supervision of its employees using the towel folding machine. Thereafter, Exit 88 filed a motion for summary judgment as to the first count of its third party complaint, while Hospitality filed a motion for summary judgment as to both counts.

On December 23, 2008, the court issued a memorandum of decision in which it granted summary judgment in favor of Exit 88 on the first count and in favor of Hospitality on the second count. As to the first count, the court concluded that there was no genuine issue of material fact that Hospitality breached the indemnification provision of the contract. The court’s conclusion rested on its determination that the indemnification provision unambiguously required Hospitality to defend and to indemnify Exit 88 against the plaintiffs claim of injury. As to the second count, the court granted summary judgment in favor of Hospitality, concluding that there was no genuine issue of material fact as to any of the elements of common-law indemnification. Subsequently, Hospitality filed this appeal.

On appeal, Hospitality claims that the court incorrectly determined that the indemnification provision unambiguously required it to defend and to indemnify Exit 88 against the plaintiffs claim of injury. In support of its claim, Hospitality argues that the plain language of the indemnification provision does not require it to defend and to indemnify Exit 88. Hospitality argues, in the alternative, that the indemnification provision is ambiguous, and the matter therefore should be remanded for a trial to determine what the parties intended that provision to mean.

We begin our analysis with the well settled standard of review. “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 the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Plato Associates, LLC v. Environmental Compliance Services, Inc., 298 Conn. 852, 862, 9 A.3d 698 (2010). Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

“Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [T]he trial court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Citations omitted; internal quotation marks omitted.) Fleet Bank, N.A. v. Galluzzo, 33 Conn. App. 662, 666, 637 A.2d 803, cert, denied, 229 Conn. 910, 642 A.2d 1206 (1994). “[I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . There must be a showing that it is quite clear what the truth is, and any real doubt as to the existence of any genuine issue of material fact must be excluded.” (Citation omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 433, 362 A.2d 857 (1975).

“A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties [to a contract] is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . .” (Internal quotation marks omitted.) Neubig v. Luanci Construction, LLC, 124 Conn. App. 425, 432, 4 A.3d 1273 (2010).

“Well established principles guide our analysis in determining whether the language of a contract is ambiguous. [A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. [A]ny ambiguity in a contract must emanate from the language used by the parties.” (Internal quotation marks omitted.) Reid v. Landsberger, 123 Conn. App. 260, 285, 1 A.3d 1149 (Bishop, J., concurring and dissenting), cert, denied, 298 Conn. 933, 10 A.3d 517 (2010). “A word is ambiguous when it is capable of being interpreted by reasonably well informed persons in either of two or more senses. . . . Ambiguous can be defined as unclear or uncertain, or that which is susceptible of more than one interpretation, or understood in more ways than one.” (Internal quotation marks omitted.) Flaherty v. Flaherty, 120 Conn. App. 266, 269, 990 A.2d 1274 (2010). If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous. United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 671, 791 A.2d 546 (2002).

The indemnification provision of the contract provides in relevant part: “[Hospitality] shall, to the fullest extent permitted by law and at its own cost and expense, defend, indemnify and hold [Exit 88], its partners, affiliates, directors, officers, employees, servants, representatives and agents harmless from, and against any and all claims, loss, (including attorneys’ fees, witnesses’ fee and all court cost), damages, expense and liability (including statutory liability), resulting from injury and/ or death of any person or damage to or loss of any property arising out of negligent or wrongful act, error or omission or breach of contract, in connection with the operations of [Hospitality] or its subcontractors. The foregoing indemnity shall include injury or death of any employee of [Hospitality] or subcontractor . . . .” (Emphasis added.)

Initially, we note that the trial court determined that “[the plaintiffs] use of the towel folding machine at Exit 88 was clearly in connection with the operations of the contractor [Hospitality] or its subcontractors [Apollo] . . . .” (Internal quotation marks omitted.) It is unclear, however, whether the plaintiffs use of the towel folding machine was in connection with the operations of Hospitality or Apollo. The contract does not define the term “operations” nor does it clearly indicate the type of work that the term “operations” includes. Furthermore, although the contract provides some indication of what Hospitality’s operations include, albeit unclearly, it provides no indication of what Apollo’s operations include. On the basis of our review of the contract, we conclude that the term “operations” is subject to more than one reasonable interpretation and, therefore, is ambiguous.

The term “operations” reasonably could be interpreted to mean the work performed at the Mystic Marriott by the employees of Hospitality or Apollo, including the plaintiffs use of the towel folding machine. Paragraph 2 of the contract states that “[Hospitality] agrees to complete all work in a good and workman like manner”; paragraph 3 states that “[Hospitality] will have the authority to hire, promote, discharge and supervise the work of its employees, and shall be liable for all employee-related obligations, including workers compensation and unemployment benefit assessments”; and paragraph 4 states that “[Hospitality] shall provide an English speaking interpreter to work with [Exit 88] as needed to assist in the training of the contract employees.”

Alternatively, the meaning of the term “operations” could be limited to the provision of labor by Hospitality or Apollo as requested by Exit 88 and the work done to facilitate the provision of that labor. The recitals in the contract state that Hospitality is “engaged in the business of providing contract labor”; paragraph 2 of the contract states that Hospitality “shall provide personnel as requested by [Exit 88]”; and paragraph 4 states that Exit 88 “shall be responsible for all training and supervision of contract employees . . . .” These provisions suggest that Hospitality’s operations are limited to providing contract labor and do not include performing the work at the Mystic Marriott.

Because the language of the indemnification provision, specifically the term “operations,” is “susceptible to more than one reasonable interpretation”; United Illuminating Co. v. Wisvest-Connecticut, LLC, supra, 259 Conn. 671; the contract is ambiguous. See id. As a result of this ambiguity, the meaning of the term “operations” involves a genuine issue of material fact. The parties are therefore entitled to present evidence in support of their interpretation to a fact finder, and the fact finder will be required to determine, as a factual matter, the meaning of the provision. Without a factual determination of what Hospitality’s or Apollo’s operations include, it is unclear whether the indemnification provision is triggered by the plaintiffs claim of injury. Accordingly, we conclude that the trial court improperly rendered summary judgment in favor of the third party plaintiff, Exit 88.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       “Although the denial of a motion for summary judgment is not a final judgment and thus is not ordinarily appealable . . . the rationale for this rule is not applicable where both sides have filed motions for summary judgment and the court has granted one of them.” (Citations omitted.) CTB Realty Ventures XXII, Inc. v. Markoski, 33 Conn. App. 388, 391 n.3, 636 A.2d 379, cert, granted on other grounds, 228 Conn. 929, 640 A.2d 115 (1994) (appeal withdrawn July 18, 1994). Nevertheless, because we conclude that there is a genuine issue of material fact and, therefore, that summary judgment is improper in this case, we decline to address the court’s decision denying Hospitality’s motion for summary judgment.

       Paragraph 2 of the contract provided in relevant part: “[Hospitality] shall provide personnel as requested by [Exit 88] services, housekeeping services, and utility services as requested by [Exit 88]. [Hospitality] and [Exit 88] agree that [Exit 88] shall provide supplies, uniforms, and name tags to contract employees. [Hospitality] agrees to complete all work in a good and workman like manner. [Hospitality] agrees to provide transportation of contract employees to and from [Exit 88’s] place of business.”

       At all times relevant to this appeal, Exit 88 owned and operated the Mystic Marriott.

       Exit 88 also filed an apportionment complaint against Yankee Equipment Systems, Inc., and Daniels Equipment Company, Inc. Those apportionment defendants are not parties to this appeal.


author: PETERS, J.

text:
    TUXIS OHR’S FUEL, INC. v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 31464)
    DiPentima, C. J., and Bear and Peters, Js.

      Argued December 7, 2010
    officially released April 12, 2011

      Vincent T. McManus, Jr., for the appellant (plaintiff).

      Krista Dotson O’Brien, assistant attorney general, with whom, on the brief, were Richard Blumenthal, former attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (named defendant).
   Opinion

PETERS, J.

Eligibility for unemployment compensation and disqualification for unemployment compensation are both entirely statutory. In this case, an employer challenges the validity of a judgment of the trial court upholding an administrative construction of General Statutes § 31-236 (a) (14), pursuant to which the employer has been held liable for unemployment benefits for an employee truck driver who lost his commercial driver’s license for driving while intoxicated. Relying on prior holdings under a related subsection of § 31-236 (a) and on the statutoiy requirement in subsection (a) (14) that disqualification results from a state or federal alcohol testing program, the trial court dismissed the plaintiffs appeal. We affirm the judgment of the court.

On December 18, 2007, pursuant to General Statutes § 31-249b, the plaintiff, Tuxis Ohr’s Fuel, Inc., filed a timely appeal to the Superior Court to challenge a decision of the employment security board of review (review board) finding that a former employee of the plaintiff was entitled to unemployment benefits. The employee, who worked as a driver for the plaintiff, had his commercial driver’s license suspended as a result of his arrest for driving, on his own time, while intoxicated. Agreeing with the review board’s construction of the relevant statutes, the court dismissed the appeal. The plaintiff has appealed.

The court’s memorandum of decision recites the relevant facts, which are undisputed. Gerald T. Aleksiewicz (employee) had been employed by the plaintiff as a fuel oil delivery truck driver since October 12, 2004. State law requires a person driving that type of vehicle to have a commercial driver’s license. General Statutes § 14-44a. On July 20, 2007, the employee informed the plaintiff that the department of motor vehicles had suspended his commercial driver’s license for one year, effective July 21, 2007, because he had been arrested after an automobile accident that had occurred, off the job, when he was driving his own car. He had registered a blood alcohol level of .216 percent on a Breathalyzer test. State law provides that the holder of a commercial driver’s license will lose his or her license for one year if a blood alcohol test shows a blood alcohol level in excess of .04 percent, when driving a commercial vehicle, or .08 percent when driving any other motor vehicle. General Statutes § 14-44k (c). Although the employee’s misconduct did not occur in the course of his employment, the plaintiff discharged him because he could no longer perform the work that he had been hired to do.

The plaintiff argued at trial, as it had argued unsuccessfully in the underlying administrative proceedings, that in light of the fact that the employee had lost his state commercial driver’s license as a result of his own misbehavior, he was ineligible for unemployment benefits. According to the plaintiff, the employee’s ineligibility is established by § 31-236 (a) (14), because, as the plaintiff construes that provision, the employee had disqualified himself from performing the work for which he had been hired by failing a state alcohol testing program, as manifested by his state mandated license suspension.

The trial court rejected the plaintiffs argument. It noted that the review board, relying on § 31-236 (a) (2) (B), had a well established policy of confining disqualification for unemployment benefits to cases of wilful misconduct in the course of employment. In this case, the employee’s misconduct, although concededly wilful, had not occurred in the course of his employment. The court furthermore agreed with the review board’s construction of § 31-236 (a) (14) to require an employer to establish that its employee “testjed] positive for alcohol as part of a testing program conducted by [kis employer], the plaintiff.” (Emphasis added.) Accordingly, the court dismissed the plaintiff’s appeal.

On appeal to this court, the plaintiff maintains that the court misconstrued § 31-236 (a) (14). In particular, the plaintiff ciiticizes the court’s acquiescence in the review board’s interpolation into the text of § 31-236 (a) (14) of a requirement that an employee be disqualified due to the use of drugs or alcohol as documented by an employer testing program.

It is well established that our review of a question of statutory construction is plenary. Grady v. Somers, 294 Conn. 324, 332, 984 A.2d 684 (2009). The proper construction of § 31-236 (a) (14) is an issue of first impression for the appellate courts of this state.

The text of § 31-236 (a) (14) conditions disqualification for unemployment benefits on an employee’s failure of a drug or alcohol testing program “under state or federal law." (Emphasis added.) We agree with the plaintiff that nothing in this text warns an employer that it may not rely on this subsection unless it has established its own employer “testing program.” As a rale, “a court must construe a statute as written. . . . Courts may not by construction supply omissions . . . or add exceptions merely because it appears that good reasons exist for adding them. . . . The intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say. ... It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature.” (Internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 431-32, 927 A.2d 843 (2007).

Even if the plaintiff has no statutory responsibility to establish its own employee drag or alcohol testing program, it must still establish that its employee should have been found to have been disqualified from driving because of an alcohol testing program under state or federal law. The plaintiff maintains that it met this requirement by presenting undisputed evidence that the employee failed to pass an alcohol test conducted by Meriden police officers in accordance with statewide regulations and that the employee consequently lost his commercial driver’s license pursuant to state law.

The defendant, the administrator of the Unemployment Compensation Act, asks us, however, to uphold the ruling of the court that the review board properly found § 31-236 (a) (14) to be inapplicable under the circumstances of this case. The defendant advances two arguments concerning the meaning of state program in § 31-236 (a) (14). The defendant’s principal argument is that the review board correctly interpreted the statute to disqualify an employee who fails an alcohol test that is required by state law only if that test complied with federal law that establishes testing preconditions, including an employee alcohol testing program, that are set out in extensive federal regulations. Concededly, the plaintiff in this case did not have any employee alcohol testing program and, therefore, did not comply with these requirements of federal law. Alternatively, the defendant maintains that the evidence of record does not support the plaintiffs contention that the employee participated in any state or federal “drug or alcohol testing program.” Although we doubt the validity of the defendant’s first argument, we are persuaded by the second argument.

The defendant has not pointed to any language in the text of § 31-236 (a) (14) that supports an argument for categorical assimilation of federal unemployment insurance law into state unemployment law. On its face, the statute unambiguously assigns consequences adverse to an employee testing positive for drugs or alcohol in accordance with a program under either state or federal law. We note, in addition, that on other occasions in which our legislature has intended to incorporate relevant principles of federal law into our state law, it has done so explicitly. For example, General Statutes § 42-110b, which prohibits unfair trade practices, expressly instructs our courts to be guided by federal decisions under § 5 (a) (1) of the Federal Trade Commission Act, 15 U.S.C. § 45 (a) (1). We are unaware of a similar cross reference in the text of § 31-236 (a) (14).

We need not, however, resolve this issue of statutory construction in this case. Even if we were to accept the plaintiffs construction of the statute, the plaintiff cannot prevail because, as the defendant points out, nothing in the administrative record or in the record before the court establishes that as a matter of state law, its employee lost his commercial driver’s license under a state law program. All that the plaintiff has ever submitted on this issue is a recital of the historical facts of the employee’s failure to pass an alcohol test administered by local police and his consequent loss of his state commercial driver’s license. Under these circumstances, it was reasonable for the review board and the court to find that the plaintiff failed, as an evidentiary matter, to prove the existence of a state program that would entitle the plaintiff to relief from the burden of contributing to the funding of its former employee’s unemployment compensation.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-236 provides in relevant part: “(a) An individual shall be ineligible for benefits . . . (14) [i]f the administrator finds that the individual has been discharged or suspended because the individual has been disqualified under state or federal law from performing the work for which such individual was hired as a result of a drug or alcohol testing program mandated by and conducted in accordance with such law

       Aleksiewicz was also named as a defendant but is not involved in this appeal. We therefore refer in this opinion to the administrator of the Unemployment Compensation Act as the defendant.

       Whether the plaintiff had other work for the employee was not at issue in the administrative proceedings or before the trial court.

       General Statutes § 31-236 (a) (2) (B) provides in relevant part that an individual will not be eligible for unemployment benefits “if, in the opinion of the administrator, the individual has been discharged . . . for . . . wilful misconduct in the course of the individual’s employment . . . .”

       The plaintiff did not offer any testimony or evidence to establish that it had such a program.

       At oral argument before this court, the defendant acknowledged that this is the first case in which the review board has addressed the question of what our legislature meant by the phrase “alcohol testing program mandated by and conducted in accordance with such [state or federal] law.” “Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . Cases that present pure questions of law, however, invoke a broader standard of review 1han is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference.” (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 137, 778 A.2d 7 (2001).

       Part 40 of title 49 of the Code of Federal Regulations contains detailed procedures for transportation workplace drug and alcohol testing programs.

       At oral argument, the defendant also cited General Statutes § 31-225a (c) (1) (E), which provides: “If the administrator finds that . . . (ii) an individual was discharged for violating an employer’s drug testing policy, provided the policy has been adopted and applied consistent with sections 31-51t to 31-51aa, inclusive, section 14-261b and any applicable federal law, no benefits paid thereafter to such individual . . . shall be charged to such employer’s account . . . .” It maintained that this statutory reference manifests the legislature’s intent to incorporate state and federal rules governing employer drug testing into § 31-236 (a) (14). For two reasons, we are unpersuaded. As a matter of appellate procedure, we need not consider the merits of an argument first presented at oral argument, because the opposing party has not had a sufficient opportunity to address its merits. As a matter of substance, the defendant’s argument flies in the face of established rules of statutory interpretation. Had the legislature intended to incorporate the same language into § 31-236 (a) (14), it would have done so. The fact that § 31-236 (a) (14) was written more broadly indicates that it should also be interpreted more broadly.

       The legislative history cited in the defendant’s appendix consistently speaks of drug or alcohol tests under either state or federal law without suggesting an equivalence between them. It is doubtful, moreover, whether, in the absence of an allegation of ambiguity in the text of the statute, the statute’s legislative history is properly before us. See General Statutes § 1-2z; Saunders v. Firtel, 293 Conn. 515, 525, 978 A.2d 487 (2009).


author: DUPONT, J.

text:
    BRENNAN ASSOCIATES v. OBGYN SPECIALTY GROUP, P.C., ET AL.
    (AC 31559)
    DiPentima, C. J., and Bishop and Dupont, Js.

      Argued November 29, 2010
    officially released April 12, 2011

      Christopher Rooney, with whom, on the brief, were Anne D. Peterson and Kurtis Z. Piantek, for the appellant-appellee (plaintiff).

      Janine M. Becker, for the appellees-appellants (defendants).
   Opinion

DUPONT, J.

The plaintiff, Brennan Associates, the lessor of certain commercial premises, appeals from the judgment of the trial court rendered in favor of the defendants, OBGYN Specialty Group, P.C. (OBGYN), the original lessee of the plaintiffs property, and Physicians for Women’s Health, LLC (Physicians), the assignee of OBGYN’s lease, in the plaintiffs action arising out of the defendants’ failure to pay rent and other charges allegedly due under the lease. The primary issue to be decided in the plaintiffs appeal is whether the trial court properly concluded that the plaintiffs failure to accept as a tenant a tanning salon proposed by the defendants constituted a failure to mitigate its damages, thereby exonerating the defendants from liability for the remaining sums due under the lease. We hold that the plaintiffs failure to accept the tanning salon did not constitute a failure to mitigate its damages and, thus, did not absolve the defendants of their obligations under the lease. We, therefore, reverse the judgment of the trial court rendered on the plaintiffs complaint.

The defendants filed a cross appeal from the judgment rendered in favor of the plaintiff on the defendants’ counterclaim, in which they alleged that the plaintiff breached its covenant of good faith and fair dealing by unreasonably withholding its consent to the assignment of the lease to the proposed tenant. We affirm the court’s judgment that the defendants failed to prove that the plaintiff breached the covenant of good faith and fair dealing.

The following facts and procedural history are relevant to both the plaintiffs appeal and the defendants’ cross appeal. The plaintiff commenced this action alleging that it sustained damages arising out of the defendants’ failure to pay rent and other charges due pursuant to a commercial lease. See footnote 1 of this opinion. The defendants filed a special defense, claiming that their performance under the lease was discharged by the plaintiffs material breach of the lease because the plaintiff unreasonably withheld its consent to proposed assignments of the lease by the defendants. The defendants also filed a counterclaim seeking monetaiy damages and attorney’s fees and costs, alleging that, by unreasonably withholding its consent to the assignment of the lease, the plaintiff breached its implied covenant of good faith and fair dealing.

Many of the material facts described herein are not disputed by the parties or were found by the trial court. The plaintiff owns Trumbull Center shopping center, located at 970 White Plains Road in Trumbull. The premises at issue are designated as unit 16 in the shopping center. On June 30, 1997, the plaintiff and OBGYN entered into a written lease for a term of five years with a right to renew the lease for an additional five years. Thereafter, the members of the OBGYN corporation became affiliated with Physicians, which is a group of consolidated obstetrical and gynecological practices. The plaintiff consented to the assignment of the lease to the defendant, Physicians, on August 1, 1997. The original lease term commenced on October 1,1997, and terminated at the end of September, 2002. On August 5, 2002, the defendants invoked the option to extend the lease for an additional five year term, and the lease was extended through the end of September, 2007.

In July, 2004, the defendants vacated the premises to move to another, larger premises. The defendants continued to pay rent to the plaintiff until February, 2006. Thereafter, no rental payments were made. On April 10, 2006, the plaintiff served the defendants with a notice to quit and the defendants surrendered possession of the premises to the plaintiff on April 17, 2006. After the defendants vacated the premises in July, 2004, agents acting on behalf of the defendants made efforts to find a replacement tenant for the remainder of the lease term. Paragraph 7 of the lease provides in relevant part that the lessee “will not assign this [l]ease, either in part or whole, nor sublet part of the whole of the premises without the written consent of the [ljessor,” and that such “consent shall not be unreasonably withheld . . . .” The plaintiff claims that the defendants were required to provide a medical use tenant, also pursuant to paragraph 7 of the lease, which provides in relevant part that the lessee shall not “use the [premises] for any purpose other than the operation of a practice of medicine, obstetrics and gynecology ”5

In December, 2005, a proposal concerning the use of the premises as a tanning salon was sent to the plaintiff. The prospective tenant, the tanning salon, proposed to occupy the premises for the balance of the lease under the terms of the defendants’ lease. The tanning salon also requested a three year extension at a negotiated higher monthly rent than provided in the defendants’ lease, with an option to renew the lease for an additional five years. The parties agree that the tanning salon required extra time to recoup the costs of fitting the premises to its purposes. The plaintiff never agreed to the tanning salon’s proposal, but it made a counteroffer to the tanning salon for a five year lease at an increased rental rate. This deal was never consummated, however.

Regarding the plaintiffs duty to mitigate its damages, the court found that the plaintiff made “acceptable and reasonable” efforts per industry standards to advertise the premises after April, 2006, when it regained possession of the premises but that its refusal to accept the tanning salon’s proposal on or around December, 2005, “stopped the liability of the defendants” as of February, 2006. Specifically, the court stated: “The fact that the [tanning salon] proposal also included a request for [an] additional three years seemed reasonable given the unique circumstances of the premises, especially since the tenant was also willing to pay the higher rate requested by the plaintiff for the additional time. . . . [D]ue to the infighting of the [plaintiff] partnership, it took months before a response was given and even then, it came in the form of a counteroffer. If [the plaintiff] had accepted the proposal in reasonable time and fashion, they would have been in the same position as if the contract had been performed by [the defendants].” Accordingly, the court concluded, the defendants owed no money to the plaintiff after February, 2006. From this decision, the plaintiff appealed.

The court also concluded that the plaintiff had no sinister motive or design to mislead or deceive the defendants and, accordingly, held that the defendants failed to prove their counterclaim alleging a breach of the implied covenant of good faith and fair dealing. From this decision, the defendants filed a cross appeal.

I

The first questions we must resolve are (1) whether the plaintiff had an obligation to mitigate its damages and, if so, (2) when did that obligation arise. The plaintiff argues that its duty to mitigate its damages did not arise until it sought to terminate the defendants’ tenancy in April, 2006, and that, because the court found its mitigation efforts after that date were reasonable, it is entitled to recover damages for the defendants’ contractual breach. The trial court refused to accept the plaintiffs mitigation argument in light of its conclusion that the plaintiffs failure to accept the tanning salon as a tenant in December, 2005, “stopped the liability of the defendants.” We agree with the plaintiff.

“An appellate court’s review of a trial court decision is circumscribed by the appropriate standard of review. As we have often stated: The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. ... It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... On appeal, we do not retry the facts or pass on the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) Powers v. Olson, 252 Conn. 98, 104-105, 742 A.2d 799 (2000).

Connecticut law is clear that “[i]n an action for rent due, a lessor of commercial property is generally under no obligation to mitigate his damages after the lessee fails to pay rent. White v. Miller, 111 Conn. 53, 58, 149 A. 237 (1930). Such an obligation arises only if the lessor manifests an intent to terminate the tenancy either by taking an unequivocal act showing this intent or by bringing an action for damages based on the tenant’s breach of contract. Sagamore Corp. v. Willcutt, 120 Conn. 315, 318, 180 A. 464 (1935).” Dewart Building Partnership v. Union Trust Co., 4 Conn. App. 683, 687, 496 A.2d 241 (1985). In other words, “[w]hen the lessee breaches a lease for commercial property, the lessor has two options: (1) to terminate the tenancy; or (2) to refuse to accept the surrender. . . . Where the landlord elects to continue the tenancy, he may sue to recover the rent due under the terms of the lease. Under this course of action, the landlord is under no duty to mitigate damages. . . . When the landlord elects to terminate the tenancy, however, the action is one for breach of contract . . . and, when the tenancy is terminated, the landlord is obliged to mitigate his damages.” (Citations omitted; internal quotation marks omitted.) K&R Realty Associates v. Gagnon, 33 Conn. App. 815, 819, 639 A.2d 524 (1994).

“The duty to mitigate damages [does] not require the plaintiff [landlord] to sacrifice any substantial right of its own ... or to exalt the interests of the tenant above its own. ... It [is] required to make reasonable efforts to minimize damages. What constitutes a reasonable effort under the circumstances of a particular case is a question of fact for the trier. . . . [T]he general rule for the measure of damages in contract is that the award should place the injured party in the same position as he would have been in had the contract been performed . . . .” (Citations omitted.) Danpar Associates v. Som-ersville Mills Sales Room, Inc., 182 Conn. 444, 446, 438 A.2d 708 (1980).

In the present case, it is undisputed that the defendants paid rent until February, 2006, and thereafter ceased paying rent. The plaintiff served a notice to quit the premises in April, 2006. Service of the notice to quit manifested the plaintiffs intent to terminate the defendants’ tenancy. See St. Paul’s Flax Hill Co-Operative v. Johnson, 124 Conn. App. 728, 735, 6 A.3d 1168 (2010), cert, denied, 300 Conn. 906,12 A.3d 1002 (2011). In April, 2006, the defendants surrendered possession of the premises to the plaintiff. As a consequence, the defendants were no longer obligated to make monthly rental payments. Instead, because the plaintiff instituted an action for breach of contract, the remaining rental payments due under the lease could be used as part of the calculation of the damages that the plaintiff sustained. See Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., 18 Conn. App. 384, 389-90, 558 A.2d 265 (1989).

The plaintiff, having elected to terminate the tenancy, was obligated to mitigate its damages after April, 2006. The court found that after April, 2006, the plaintiff made “acceptable and reasonable” efforts per industry standards to mitigate its damages by advertising the premises. Nonetheless, the trial court further concluded that the plaintiffs failure to accept the tanning salon as a tenant in December, 2005, “stopped the liability of the defendants” for rent as of February, 2006. The court also concluded that, had the plaintiff accepted the tanning salon proposal “in reasonable time and fashion, [it] would have been in the same position as if the contract had been performed by [the defendants].” The question thus becomes whether, despite having fulfilled its obligation to mitigate its damages through its advertising efforts, the plaintiff breached its obligation on another ground, namely, by its rejection of the tanning salon as a tenant. The plaintiff argues that the tanning salon proposal was for neither an assignment nor a sublease and that its failure to accept the tanning salon proposal did not constitute a breach of its obligation to mitigate its damages. We agree with the plaintiff.

Our Supreme Court has recognized that “despite a landlord’s theoretical right to refuse consent to an assignment, its duty to mitigate damages operated as a practical constraint on its exercise of such a right. Danpar Associates v. Somersville Mills Sales Room, Inc., supra, [182 Conn.] 446-47.” Warner v. Konover, 210 Conn. 150, 154, 553 A.2d 1138 (1989). In Danpar Associates v. Somersville Mills Sales Room, Inc., supra, 447, the trial court concluded that it was unreasonable for the landlord to reject a potential assignment that would have placed it in “statu[s] quo ante.” Specifically, the landlord was unwilling to extend the renewal option contained in the original tenant’s lease to the prospective assignee, and the prospective assignee refused to rent the premises without the renewal option. Id., 445. Our Supreme Court agreed with the trial court, reasoning that “in assessing the reasonableness of the landlord’s efforts to mitigate damages the trier may consider whether the landlord was justified in refusing to rent the demised premises to a prospective tenant who was otherwise satisfactory and who would have put him in at least as good a position as if the original contract had been fully performed.” Id., 446. The holding in Danpar Associates has “the practical effect of limiting the landlord’s right to refuse an assignment . . . .” (Emphasis added.) Id., 447. The distinction between the present case and Danpar Associates lies in the fact that the tanning salon proposal at issue was not one for an assignment or sublease; rather, it was for a modification of the lease terms and an extension of its duration.

A lessee cannot convey to a potential subtenant or assignee more than it possesses. See Powers v. Olson, supra, 252 Conn. 110 (“[i]t is fundamental that a grantor cannot effectively convey a greater title than he possesses” [internal quotation marks omitted]); South Norwalk Lodge v. Palco Hats, Inc., 140 Conn. 370, 374-75, 100 A.2d 735 (1953) (“a tenant cannot be presumed to have granted a larger estate than he himself has”). “The basic distinction between an assignment and a sublease is that by the former, the lessee conveys his whole interest in the unexpired term, leaving no reversion in himself; the latter transfers only a part of the leased premises for a period less than the original term.” Rocklen, Inc. v. Radulesco, 10 Conn. App. 271, 274, 522 A.2d 846 (1987); see also 49 Am. Jur. 2d, Landlord and Tenant § 918 (2006); 52 C.J.S., Landlord and Tenant § 42 (2003). In either case, what the original lessee conveys is all or part of the lessee’s interest in an existing lease. See Rocklen, Inc. v. Radulesco, supra, 274. Accordingly, an arrangement that substantially modifies the terms of the existing lease cannot be characterized as either an assignment or a sublease.

In the present case, the tanning salon proposed to occupy the premises for the balance of the defendants’ lease term for the rental amount contained therein but requested a three year extension at a higher negotiated rental amount and an option to renew the lease for an additional five years. The proposed lease would have materially modified the original lease because it would have extended the term for the proposed tenant for, potentially, another eight years. Because it proposed terms that lengthened the term of the landlord’s commitment to the proposed tenant, the tanning salon proposal cannot be characterized as either an assignment or a sublease. Rather, it was a proposal for a new lease, to which the plaintiff responded with a counteroffer that ultimately was rejected. Because the tanning salon proposal was not one for an assignment or sublease, the plaintiff was entitled to negotiate with the tanning salon, or any other prospective tenant, as part of its efforts to mitigate its damages. See Danpar Associates v. Somersville Mills Sales Room, Inc., supra, 182 Conn. 447 (noting that landlord need not accept prospective tenant proffered by current tenant but rather could “relet the premises to a tenant of its own choice at a rent greater than that which the proffered tenant was willing to pay”). Thus, any counteroffer proposed by the plaintiff to the tanning salon was not a waiver of the use restriction because it would require a totally new lease rather than a sublease or an assignment. See footnote 5 of this opinion. Moreover, the court found that, although the plaintiffs delay in responding to the tanning salon proposal was a result of its own internal conflicts, the plaintiff did not act in bad faith in that it had no sinister motive or design to deceive or mislead the defendants by failing to accept the tanning salon proposal.

We conclude that the trial court improperly held that the defendants’ liability under the lease was discharged as of February, 2006, because the plaintiff did not accept the tanning salon proposal in December, 2005. The court reasoned that the plaintiff could have accepted the proposal in December, 2005, and been made whole by a tenant willing to sublet the premises at an increased rental for the balance of the defendants’ lease, which would have stopped the liability of the defendants. The flaw in the reasoning of the court is that the proposal was not one for an assignment or sublease but one for a new lease. It was not unreasonable for the plaintiff to assess the economic desirability of a longer term lease and conclude that, although the plaintiff might be mitigating the defendants’ liability for rent if it agreed to that lease, the plaintiff might be forgoing an economic opportunity of its own due to a partial sale of the shopping center or future profitability of other leases in the shopping center. We reverse the judgment of the trial court on the complaint, remand the case with direction to render judgment in favor of the plaintiff and order further proceedings to determine the amount of the plaintiffs damages.

II

In their cross appeal, the defendants claim that the trial court improperly concluded that they failed to prove that the plaintiff breached its implied covenant of good faith and fair dealing. The defendants alleged in their counterclaim that, pursuant to the lease, the lessee had the right to sublet the premises, upon the consent of the lessor, which consent shall not be unreasonably withheld, and alleged further that the lessor failed to give reasonable consideration to proposed subleases.

“The relevant legal principles are well established. [I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship. ... To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a [party] allegedly impedes the [other party’s] right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith. . . .

“Bad faith has been defined in our jurisprudence in various ways. Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. . . . Bad faith means more than mere negligence; it involves a dishonest purpose. . . . [B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain . . . .” (Citation omitted; internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn. App. 550, 563-64, 979 A.2d 1055, cert, denied, 294 Conn. 913, 983 A.2d 274 (2009).

Because the plaintiff was not presented with a proposal for an assignment or sublease, the requirement under the lease that the landlord could not unreasonably withhold its consent to a proposed sublease or assignment was not implicated. Moreover, our review of the record reveals that there was ample evidence to support the trial court’s conclusion that the plaintiff had no sinister motive or design to mislead or deceive the defendants in refusing to accept the proposed tenant, and, thus, the defendants failed to prove that the plaintiff acted in bad faith. Accordingly, we affirm the judgment of the trial court with regard to the defendants’ counterclaim.

The judgment in favor of the defendants on the plaintiffs complaint is reversed and the case is remanded with direction to render judgment for the plaintiff on the complaint and for further proceedings to determine the amount of damages due to the plaintiff by the defendants. The judgment on the defendants’ counterclaim is affirmed.

In this opinion the other judges concurred.

       The plaintiff filed a three count complaint on August 30, 2006. In the first count, the plaintiff alleged that the defendants breached their lease by their nonpayment of rent and sought as damages the amount of rent due for the period of February, 2006, through August, 2006. In the second count, the plaintiff alleged that the defendants were liable for the remaining sums that would have been due under the lease through the end of the lease term, September, 2006, through September, 2007. In the third count, the plaintiff sought to recover its expenses for its unsuccessful attempts to relet the premises.

       The plaintiff denied the special defense and denied the material allegations in the counterclaim on the ground that the right to sublet as outlined in paragraph 7 of the lease was limited by the use restriction contained in that same paragraph.

       The matter was tried to the court over the course of three days in February and March, 2009, and the court issued a memorandum of decision on September 14, 2009.

       The plaintiffs consent to the assignment states in relevant part that “[OBGYN] desires to convey to [Physicians] and [Physicians] desires to acquire from [OBGYN] all of [OBGYN’s] right, title and interest in and to the [lease] Agreement. . . . [The plaintiff] hereby consents pursuant to the Agreement to such assignment of the Agreement by [OBGYN] to [Physicians].” Pursuant to the terms of the lease, OBGYN remained liable for its obligations under the lease after the assignment to Physicians.

       The plaintiff also relies on portions of paragraphs 8 and 24 of the lease to support its position that the use restriction necessarily devolves to potential sublessees and assignees. Paragraph 8 states in relevant part that “if the [l]essee shall assign or underlet the whole or any part of [the] [pjremises, except as herein set forth, or use the premises for any other purpose than that specifically authorized . . . then this [l]ease shall . . . expire and terminate, and the [ljessor may, at any time thereafter” reenter the premises and recover possession. Paragraph 24 contains the general statement that the “covenants and agreements contained in the foregoing [l]ease are binding upon the parties hereto and their respective heirs, executors, successors, legal representatives and assigns.”
      The court held that the defendants’ use of the premises was restricted to the practice of medicine but that the restriction did not apply to any potential sublessee or assignee that the defendants may propose. Therefore, “any tenant, regardless of the type of business, would have been able to sublet the premises under the language of the lease.” The court also stated that “the evidence supports 1hat any restriction by [the plaintiff] was imposed after the defendants vacated the premises only as a loyalty factor to the other tenants of the shopping center.”
      On appeal, the plaintiff claims that this holding was in error. The defendants claim that the fact that the plaintiff made a counteroffer to a tanning salon, which was not a medical use tenant, is evidence that, if the use restriction did apply to potential tenants, the plaintiff waived the restriction.

       The record indicates that the defendants brought to the plaintiff a prior written proposal for a lease regarding a potential subtenant, a nail salon, in November, 2004. The court credited the testimony of the defendants’ real estate agent, who was told by one of the plaintiffs partners that no tenant for a sublease would be considered if the tenant was a restaurant, nail salon, liquor store or barbershop.

       We need not decide if the plaintiffs rejection of the proposed lessee rested on a violation of the use restriction in the original lease because we conclude that it was not unreasonable for the plaintiff to withhold its consent to an arrangement that was a new lease.