author: SHELDON, J.

text:
    KRISTIN WILKINS ET AL. v. CONNECTICUT CHILDBIRTH AND WOMEN’S CENTER ET AL.
    (AC 32172)
    Beach, Bear and Sheldon, Js.

      Argued February 14 —
    officially released May 22, 2012

      Carey B. Reilly, with whom was Cynthia C. Bott, for the appellants (plaintiffs).

      Matthew M. Sconziano, for the appellees (defendants).
   Opinion

SHELDON, J.

In this case, the plaintiff Kristin Wilkins appeals from the judgment of the trial court dismissing her medical malpractice action against the defendants, Connecticut Childbirth & Women’s Center (Connecticut Childbirth) and Women’s Health Associates, P.C. (Women’s Health), on the basis of the plaintiffs failure to comply with the requirements of General Statutes (Rev. to 2007) § 52-190a. The plaintiff claims that because she attached to her complaint a good faith certificate from her attorney, in addition to a letter from a similar health care provider stating the belief that there existed evidence of medical negligence, the court improperly granted the defendants’ motion to dismiss pursuant to § 52-190a (c). We conclude that the opinion letter submitted by the plaintiff was not from a similar health care provider, as defined in General Statutes § 52-184c, and, thus that the plaintiff failed to comply with the requirements of § 52-190a (a). Accordingly, we affirm the judgment of the trial court.

The following factual and procedural history is relevant to the plaintiffs claim on appeal. On June 11,2009, the plaintiff filed this medical malpractice action based on alleged negligence on the part of employees or agents of the defendants during the April 17, 2007 delivery of her child, and, subsequently, at postpartum office visits. The plaintiff alleges in her complaint that Connecticut Childbirth is a medical facility that is staffed by various health care providers, including physicians, nurse midwives, surgeons and nurses, who specialize in providing obstetrical and gynecological care. Women’s Health owned, operated, controlled and/or had a financial interest in Connecticut Childbirth. The plaintiff alleges that Katy Maker, Catherine Parisi and Catherine Gallagher, who are certified nurse midwives, and Carly Detterman, who was a registered nurse and midwife in training at the time treatment was rendered to the plaintiff, were agents or employees of the defendant medical practices who negligently failed to diagnose and to treat a fourth degree tear of the plaintiffs vaginal tissue, perineal skin and anal sphincter at the time of delivery and during postpartum checkups. As a result of that alleged negligence, the plaintiff has allegedly sustained severe and permanent injuries, and consequently, her husband has sustained a loss of her consortium.

With her complaint, the plaintiff submitted a good faith certificate signed by her attorney, who represented therein that he had made a reasonable inquiry into the circumstances of the plaintiffs claims and that, on the basis of that inquiry, he believed in good faith that the defendants and their servants, agents or employees had been negligent in their treatment of the plaintiff. Additionally, the plaintiff submitted a document entitled “Physician’s Opinion Pursuant to [General Statutes §] 52-190a.” The opinion letter was authored by a board certified obstetrician and gynecologist, who opined, in relevant part, that Maker, one of the certified nurse midwives who cared for the plaintiff, “departed from the accepted standard of care when she failed to diagnose and repair the fourth degree tear following delivery of the fetus and at the postpartum visits.” In conclusion, the author of the letter stated: “[I]t is my opinion that there appears to be evidence of medical negligence on the part of . . . Maker and Connecticut Childbirth and Women’s Center.”

On August 6, 2009, the defendants filed a motion to dismiss the plaintiffs action, pursuant to § 52-190a (c), on the ground that the physician opinion letter submitted by the plaintiff failed to satisfy the requirements of § 52-190a (a) because the letter was not authored by a similar health care provider, as defined in § 52-184c (c). Because the care rendered to the plaintiff was provided by certified nurse midwives or, as the allegations pertain to Detterman, by a registered nurse, the defendants argued that the plaintiff was required to submit an opinion letter authored by a certified nurse midwife or a registered nurse in order to satisfy § 52-184c (c). The plaintiff filed an objection, claiming that an obstetrician “is considered to be a ‘similar health care provider’ for purposes of ... § 52-184c (c) when rendering an opinion regarding the standard of care applicable to certified nurse midwives . . . and registered nurses . . . engaged in supervising a patient’s labor and delivery . . . .” The plaintiff also argued that the defendants are institutions to which § 52-184c does not apply, because the definitions of “similar health care provider” set forth therein refer to individuals, not institutions. The court agreed with the defendants, finding that the plaintiffs action was based on the negligence of the individuals who cared for the plaintiff, and the defendants as the employers of those individuals. On that basis, the court concluded that the plaintiff was required, pursuant to §§ 52-190a (a) and 52-184c (c), to submit an opinion letter by an individual who is trained, experienced and certified in nurse midwifery or nursing. Because the plaintiff failed to do so, the court dismissed her action. This appeal followed.

Before addressing the plaintiffs claims on appeal, we address the applicable standard of review, which is well settled. “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a . . . question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Internal quotation marks omitted.) Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 10-11, 12 A.3d 865 (2011).

The plaintiff claims that the court improperly dismissed her complaint on the ground that she did not submit an opinion letter authored by a similar health care provider and the opinion letter that she submitted, which was authored by an obstetrician, was sufficient to meet the requirements of §§ 52-190a (a) and 52-184c. We disagree.

We begin our analysis by setting forth the applicable statutory provisions. Section 52-190a (a) provides in relevant part that before filing a personal injury action against a health care provider, the attorney or party filing the action must make “a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. . . .” Furthermore, the statute requires that to show a good faith belief, the complaint must be accompanied by a written and signed opinion of a similar health care provider, as defined in § 52-184c, stating that there appears to be evidence of medical negligence and including a detailed basis for the formation of that opinion. To determine if an opinion letter meets the requirements of § 52-190a (a), the letter must be read in conjunction with § 52-184c, which defines the term “similar health care provider. ” For health care providers who are board certified or hold themselves out as specialists, such as the certified nurse midwives and registered nurse who treated the plaintiff in this case, § 52-184c (c) defines “similar health care provider” as “one who: (1) [i]s trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty . . . .”

The plaintiff contends that an opinion letter by an obstetrician is sufficient to meet the requirements of § 52-190a because obstetricians and nurse midwives both provide obstetrical care to patients and the author of the opinion letter that she submitted has both taught and supervised certified nurse midwives and is familiar with the standard of care required of them. Additionally, the plaintiff argues that, because there is a statutory requirement that nurse midwives work in collaboration with obstetricians; see General Statutes §§ 20-86a and 20-86b; an obstetrician is a similar health care provider who may author a prelitigation opinion letter in an action concerning purported negligence by nurse midwives. The plaintiffs claim in this regard is controlled by Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1. In Bennett, our Supreme Court concluded that, “in cases of specialists, the author of an opinion letter pursuant to § 52-190a (a) must be a similar health care provider as that term is defined by § 52-184c (c), regardless of his or her potential qualifications to testify at trial pursuant to § 52-184c (d).” Id., 21. In other words, one’s familiarity with or knowledge of the relevant standard of care, for purposes of authoring a prelitigation opinion letter, is not a proper consideration in determining the adequacy of that letter if the author does not meet the statutory definition of a “similar health care provider.” Thus, pursuant to Bennett, the plain language of §§ 52-190a (a) and 52-184c (c) dictates that a “similar health care provider” with respect to the plaintiffs health care providers would be one who is trained and experienced in nurse midwifery or nursing and is certified in nurse midwifery or nursing. The author of the opinion letter submitted by the plaintiff is neither.

The plaintiff contends that Bennett does not apply to the facts of this case because the definitions of a “similar health care provider” in § 52-184c, which dictate the parameters for selecting the appropriate author of a prelitigation opinion letter, refer to individuals, not institutions. The plaintiff claims that, because § 52-184c establishes no requirements for filing medical malpractice actions against institutions, the good faith requirement set forth in § 52-190a must be construed broadly in such cases, and, so construed, she claims that that requirement has been met. The plaintiff claims that because the defendant institutions provided obstetrical care and are comprised of medical professionals who render obstetrical care, either a midwife or an obstetrician could properly have authored the required opinion letter.

In Ali v. Community Health Care Plan, Inc., 261 Conn. 143, 144-46, 801 A.2d 775 (2002), the plaintiff filed a medical malpractice action against the defendant health maintenance organization alleging that a nurse midwife employed by the defendant had been negligent in failing to advise her to report to a physician for medical treatment after she told the midwife that she had experienced a vaginal discharge approximately two weeks after undergoing amniocentesis. As a result of that negligence, the plaintiff claimed that she was forced to terminate her pregnancy by inducing labor prematurely, which resulted in the death of her preterm baby. Id., 145. On the basis of such allegations, the trial court determined, and the Supreme Court agreed, that “the plaintiffs theory of the case at the trial court was one of vicarious liability. In other words, under the doctrine of respondeat superior, the defendant could be held liable for the negligent acts of its employee . . . . This was not a case regarding any purported institutional negligence on the part of the defendant . . . Id., 151. On that basis, the court held that it was the actions of the employee that were “relevant to the question of negligence.” Id. The court stated that “§ 52-184c (a) . . . establishes the standard of care to be applied in a medical malpractice case. Section 52-184c (a) provides in relevant part: ‘The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.’ A ‘health care provider’ is a statutorily defined term, meaning ‘any person, corporation, facility or institution licensed by the state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment.’ . . . General Statutes § 52-184b (a).

“Thus, under the statute, the relevant health care provider in the case could have been either the defendant, as the corporate entity providing health care services to the plaintiff, or . . . the individual caregiver [as] an employee of the defendant. Because the plaintiffs case centered upon [the employee’s] decision not to advise the plaintiff to come in for an examination, [the employee] served as the health care provider for purposes of this negligence action and not the defendant.” (Emphasis in original.) Ali v. Community Health Care Plan, Inc., supra, 261 Conn. 152-53.

Here, the opinion letter that the plaintiff submitted focused on the alleged negligence of one of the nurse midwives who treated her and contained no separate opinions as to the alleged negligence of the defendant institutions. Here, then, as in Ali, it is the actions of the individual caregivers — the nurse midwives or the registered nurse — that are relevant to the question of negligence, forming the basis for the inquiry as to whether there was a breach of any duty owed to the plaintiff for which the defendants, as their employer, would be vicariously liable. Because the plaintiff failed to submit an opinion letter authored by an individual who is trained, experienced and certified in nurse midwifery or nursing, the court properly concluded that she failed to meet the requirements of § 52-190a (a).

The judgment is affirmed.

In this opinion the other judges concurred.

       Kristin Wilkins’ husband, Billy Wilkins, filed a claim for loss of consortium. Because his claim is derivative of his wife’s malpractice claims, and, consequently, their claims on appeal are identical, we hereafter, for the sake of clarity, refer in this opinion to Kristin Wilkins as the plaintiff.

       General Statutes (Rev. to 2007) § 52-190a provides: “(a) No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant’s attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. Such written opinion shall not be subject to discovery by any parly except for questioning the validity of the certificate. The claimant or the claimant’s attorney, and any apportionment complainant or apportionment complainant’s attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate. The similar health care provider who provides such written opinion shall not, without a showing of malice, be personally liable for any damages to the defendant health care provider by reason of having provided such written opinion. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines, after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative shall impose upon the person who signed such certificate or a represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant’s attorney or the apportionment complainant’s attorney submitted the certificate.
      “(b) Upon petition to the clerk of the court where the action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by subsection (a) of this section. This period shall be in addition to other tolling periods.
      “(c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.”
      We note that the current revision of § 52-190a includes certain technical changes enacted into law in 2007 through Public Acts 2007, No. 07-65, § 1. Hereinafter, unless otherwise indicated, all references to § 52-190a in this opinion are to the 2007 revision of the statute.

       General Statutes § 52-184c provides: “(a) In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1,1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
      “ (b) If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
      “(c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a ‘similar health care provider’ is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider’.
      “(d) Any health care provider may testify as an expert in any action if he: (1) Is a ‘similar health care provider’ pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within (he five-year period before the incident giving rise to the claim.”

       In her brief to this court, the plaintiff also sought an order allowing her to amend her complaint to cure any alleged defect with the opinion letter. At oral argument before this court, the plaintiff withdrew that request.

       In her complaint, the plaintiff referred to Detterman as a certified nurse midwife. Subsequent to the filing of the complaint, it was discovered that, at the time of treatment, Detterman was not yet a certified nurse midwife. Detterman has since received such certification.

       The plaintiff also claims that because the roles and/or specialties or certifications of various defendant health care providers may not be known when initiating litigation, § 52-190a may be satisfied if a plaintiff submits an opinion letter that meets the requirements of § 52-184c (d), an expert who can testify in court. Because the individuals who allegedly were negligent in the treatment of the plaintiff in the present case were known to the plaintiff, we need not address this hypothetical.

       Subsection (b) of § 52-184c pertains to defendant health care providers who are not board certified or do not hold themselves out as specialists.

       General Statutes § 20-86a (1) defines “nurse midwifery” as “the management of women’s health care needs, focusing particularly on family planning and gynecological needs of women, pregnancy, childbirth, the postpartum period and the care of newborns, occurring within a health care team and in collaboration with qualified obstetrician-gynecologists.”
      General Statutes § 20-86b provides in relevant part: “Nurse-midwives shall practice within a health care system and have clinical relationships with obstetrician-gynecologists that provide for consultation, collaborative management or referral, as indicated by the health status of the patient. . . .”

       We note that § 20-86b further provides that “[njurse-midwifery care shall be consistent with the standards of care established by the American College of Nurse-Midwives.”

       The plaintiffs complaint alleges that the defendants “failed to provide certified nurse midwives who possessed the requisite knowledge, skill and experience to adequately and properly care for, treat, diagnose, monitor and supervise the plaintiff,” and that they “failed to promulgate and/or enforce rules, regulations, standards and protocols for the care and treatment of patients such as the plaintiff . . . .”


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    DARLENE L. HOPSON v. DEREK S. HOPSON
    (AC 33438)
    Beach, Sheldon and Flynn, Js.

      Argued February 6 —
    officially released May 22, 2012

      Pamela M. Magnano, with whom, on the brief, was Sandi B. Girolamo, for the appellant (defendant).

      Darlene L. Hopson, pro se, the appellee (plaintiff).
   Opinion

BEACH, J.

The defendant, Derek S. Hopson, appeals from the judgment of the trial court ordering him to reimburse his former wife, the plaintiff, Darlene L. Hop-son, for one half of their son’s college expenses pursuant to their separation agreement, denying his motion for a credit toward these expenses in the amount of child support payments he made after the son entered college and denying his request for attorney’s fees. On appeal, the defendant claims that the court erred in making these determinations. We affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to this appeal. The parties married in 1985 and divorced in 2001. They had two children together during the marriage. The court incorporated the parties’ 2001 separation agreement into its dissolution judgment. The agreement provided, under article III entitled “SUPPORT OF THE MINOR CHILDREN,” that the defendant was to pay weekly child support to the plaintiff and that the parties were to split the cost of the children’s private school tuition and all school activities. The agreement further provided, under article XI entitled “POST MAJORITY ORDERS”: “The [p]laintiff and [defendant agree to set aside a joint college fund for the benefit of the two minor children. The parties further specifically obligate themselves to pay at least one-half of the tuition and room and board at a rate that would be required at a state college or university as of the date of when each of the two minor children are of sufficient age to enter such educational program.” The parties’ youngest child (son) matriculated at Hampton University (university), located in Virginia, in September, 2008, shortly before his sixteenth birthday, and reached the age of eighteen in September, 2010. The court found that the parties did not communicate with each other and their son did not communicate with the defendant. During the son’s first year at the university, the plaintiff, who had temporarily moved to Virginia, served on the university’s faculty, and thus the son received a tuition credit.

The plaintiff filed a motion for contempt claiming that the defendant had breached article XI by failing to make payments toward their son’s college expenses. The defendant filed a motion for an order declaring that his child support obligation had terminated when their son graduated from high school. Alternatively, the defendant requested that the child support payments that he made after the son’s high school graduation be applied retroactively as a credit toward any liability the defendant may have for the son’s college expenses. The defendant also requested reasonable attorney’s fees in connection with the bringing of his motion for order and sanctions against the plaintiff for her failure to notify him of their son’s high school graduation date.

On April 14, 2011, the court denied the plaintiffs motion for contempt for failure to contribute to the son’s college expenses because the court found that the defendant did not know that the son was attending college “until quite recently.” The court further found that the parties did not establish a college fund for their children pursuant to article XI of their agreement. The court found the “defendant hable for one half [of] his son’s cohege expenses, including tuition, room and board, after deductions for financial aid, but not loans, up to the cost of a [University of Connecticut] education during the applicable period, including credit to [the] plaintiff for the tuition that was reimbursed.” The court also ordered the plaintiff to take all necessary steps in order to allow the university to provide the defendant with an official itemized bill outlining their son’s college expenses, so that the appropriate amount of reimbursement could be calculated. The court denied the defendant’s motion for an order awarding him credit toward unpaid college expenses in the amount of the child support payments he had made after the son began college and his request for attorney’s fees. In response to the defendant’s motion for articulation, the court found that “all orders entered are subject to [the] defendant receiving credit for the $2288.66 he already paid.” This appeal followed.

I

The defendant first claims that the court erred in ordering him to reimburse the plaintiff for one half of their son’s first year tuition, including any amount that was credited by the university because of her employment at the university. He argues that, because there were no actual costs incurred by the plaintiff, she would be unjustly enriched by his reimbursement to her. We disagree.

We first set forth the applicable standard of review. “An agreement between divorced parties regarding the postsecondary education of their children that is incorporated into a dissolution decree should be regarded as a contract. ... In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that 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 and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Citation omitted; internal quotation marks omitted.) Bonhotel v. Bonhotel, 64 Conn. App. 561, 566, 781 A.2d 318, cert. denied, 258 Conn. 918, 782 A.2d 1241 (2001).

The defendant argues that nothing in his agreement with the plaintiff “provides that either party will reimburse the other party for any credits he/she receives as a result of employment and/or any other reason” and that the court’s order erroneously changes the unambiguous terms of the agreement. The agreement provides in article XI that “[t]he parties . . . specifically obligate themselves to pay at least one-half of the tuition and room and board at a rate that would be required at a state college or university as of the date of when each of the two minor children are of sufficient age to enter such educational program.” Nothing in these terms precludes the plaintiff from receiving a reimbursement from the defendant for one half of the son’s first year tuition, where the tuition has been satisfied by the plaintiffs efforts. The express language of the agreement clearly states the obligation, and the defendant cannot now successfully claim such an exception. See Bonhotel v. Bonhotel, supra, 64 Conn. App. 566-68 (holding that, pursuant to stipulation that father would pay “fully the room and board of any private schools or undergraduate colleges the parties’ children choose to attend,” father obligated to pay for child’s off campus housing and noting that father could have included limitation in agreement); Legg v. Legg, 44 Conn. App. 303, 307, 688 A.2d 1354 (1997) (holding that, pursuant to stipulation by mother and father that father must pay one half of cost of room and board of their child while child attended college, father obligated to pay one half this cost while child lived at home with mother and noting that father could have included stipulation to contrary). The court specifically found that the university’s tuition credit was a benefit of the plaintiffs employment and that the defendant should reimburse the plaintiff for one half of the tuition, even though it was subject to the credit provided by the university. In fight of the language of the agreement and the testimony of the parties, we do not conclude that the court made an unreasonable determination in this regard.

Additionally, the defendant argues that ordering him to reimburse the plaintiff for one half of their son’s first year tuition would result in unjust enrichment, and thus, as a matter of equity, the court erred. Specifically, the defendant argues that, because the plaintiff did not notify the defendant that their son was beginning college, she would be unjustly enriched by his reimbursement to her of one half of the first year tuition. The balancing of equities is a matter that falls within the discretion of the trial court. Kakalik v. Bernardo, 184 Conn. 386, 396, 439 A.2d 1016 (1981). The court concluded that serious communication issues existed between the parties and that these issues were not the fault of either party. The court weighed and balanced the equities, and we do not conclude that its determination was an abuse of discretion.

II

The defendant next argues that the court erred in concluding that he is not entitled to receive a credit toward the son’s college expenses for child support payments he made after the son entered college. Specifically, the defendant argues that because of the failure of the plaintiff to notify him of the change in circumstances, he was never given an opportunity to seek a modification to his child support obligation when the son enrolled in college. We disagree.

As set forth in part I of this opinion, contract interpretation is subject to plenary review by this court, and a separation agreement that is incorporated into a dissolution judgment is regarded as a contract. See Bonhotel v. Bonhotel, supra, 64 Conn. App. 566.

The court correctly determined that the agreement provides for both child support and college expenses. Article III governs support of the minor children and requires weekly child support payments by the defendant to the plaintiff and also includes an agreement between the parties “that they will split the cost of the children’s private school tuition and all school activities.” Article XI explicitly provides that “[t]he [pjlaintiff and [the] [defendant recognize the importance of their children experiencing a four-year college education program” and obligates the parties to split the cost of tuition and room and board up to the cost of a University of Connecticut education. Pursuant to the agreement, child support and college expenses are separate obligations.

The defendant advances the equitable argument that he was prejudiced by the court’s conclusion in light of his inability to file a motion to modify child support when the son began college because he did not know that the son had enrolled in college. We ordinarily review decisions grounded in equity under the abuse of discretion standard. See Kakalik v. Bernardo, supra, 184 Conn. 395. Child support and college expenses are distinct obligations under the agreement, and the court correctly cited General Statutes § 46b-215 (a) (1) as providing for support orders for “a child under the age of eighteen.” The court did not abuse its discretion in balancing the equities. In its memorandum of decision, the court quoted the following language from Sansonenko v. Sansonenko, Superior Court, judicial district of Tolland, Docket No. FA-01-0075249-S (August 26, 2010): “ ‘[I]t is illogical to think that child support ends when college begins.’ ” The court then stated: “The fact that [the] defendant’s son is in college does not mean that he is fully supported through tuition, room and board and the court denies [the] defendant’s request that his child support payments be credited toward his unpaid obligation to pay a portion of his son’s college expenses.” As the court pointed out, its determination did not increase the defendant’s obligation under the agreement and a ruling in his favor would have relieved him of the obligation to pay two years of child support, thus causing the son’s academic advancement to result in a windfall to the defendant. Although the temporal combination of payments may have resulted in temporarily greater payments for the defendant, the total long-term payments are those contemplated by the agreement. Accordingly, we conclude that the court did not abuse its discretion.

Ill

The defendant finally claims that the court erred in declining to award him attorney’s fees because the court failed to consider the “egregious conduct” of the plaintiff in failing to communicate with him about their son’s enrollment in college and failing to provide him with official documentation of their son’s college expenses. We disagree.

It is within the discretion of the court to award, irrespective of financial ability, attorney’s fees when a party has engaged in egregious misconduct during litigation. LaBossiere v. Jones, 117 Conn. App. 211, 213, 979 A.2d 522 (2009). The defendant argues that the “egregious actions by the [p]laintiff prevented the [defendant from seeking relief from [the] [c]ourt from his child support obligation, from making timely payments on his son’s behalf and left him with no choice but to retain counsel to defend the [plaintiffs claims of contempt.” The defendant claims that the present litigation could have been avoided had the plaintiff communicated with him. The court concluded, however, that serious communication issues existed between the parties and did not find fault on the part of either party. Further, in light of our previous conclusions, particularly that the court did not err in denying the defendant’s motion for an order awarding him a credit for his child support payments toward the son’s college expenses, we do not conclude that the court abused its discretion in denying the defendant’s request for attorney’s fees in connection with bringing his motion for order.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also ordered the defendant to pay one half of the college expenses other than tuition.

       It is not entirely clear from the record before us whether the university reimbursed or credited the entire amount of tuition for the first year. Because the actual figures are to be computed later, the present uncertainty is immaterial.

       The plaintiff suggested that she may have accepted less salary in return for the tuition benefit. The court made no finding in that regard. It is indisputable, however, that the plaintiff did move to Virginia for the purpose of looking after her son, who was young for a college student, and that she was able to secure employment at the university.

       The defendant did not argue on appeal that the son is not entitled to any payments for college expenses under article XI of the agreement.

       The defendant relies by analogy on various Superior Court cases, which are not binding on this court, in support of his position. We have carefully reviewed these decisions and conclude that they are either distinguishable or not persuasive.


author: DUPONT, J.

text:
    CECIL YOUNG v. CITY OF BRIDGEPORT
    (AC 33541)
    Lavine, Beach and Dupont, Js.

      Argued March 8 —
    officially released May 22, 2012

      John R. Williams, for the appellant (plaintiff).

      Betsy A. Edwards, associate city attorney, for the appellee (defendant).
   Opinion

DUPONT, J.

The plaintiff, Cecil Young, appeals from the judgment of the trial court rendered in favor of the defendant, the city of Bridgeport. On appeal, the plaintiff claims that the court improperly rendered judgment for the defendant on the basis of its factual finding that the plaintiff was not the defendant’s employee. We agree with the court’s finding that the plaintiff was not the defendant’s employee. We must, however, set aside the judgment for the defendant and remand the case to the trial court with direction to render judgment dismissing the plaintiffs action.

The record reveals the following facts and procedural history. On August 15, 2006, the plaintiff filed a two count complaint against the defendant alleging claims of retaliatory discharge in violation of General Statutes §§ 31-51m and 31-51q. At all times relevant to this action, the plaintiff was an elected city sheriff for the defendant. Although he previously had been employed by the defendant, at various times and in various positions, the plaintiff’s claims in the present action solely concern his position as city sheriff.

City sheriff is a municipal office created by the charter of the city of Bridgeport (charter). At each municipal election, six sheriffs are elected to hold their respective offices for a term of two years. The charter confers upon each sheriff the authority to serve summons and process within Bridgeport. Individuals elected to the office of city sheriff do not have any affirmative duties or responsibilities. City sheriffs have no scheduled work hours, nor any designated office space in a city building. A city sheriff may, if he or she so chooses, serve process on behalf of the city, private entities or private individuals.

The plaintiff held the office of city sheriff for approximately eighteen years. For the first eleven years in this office, the plaintiff did not serve process on behalf of the defendant. In 2000, the plaintiff met with an attorney employed by the defendant and reached an informal verbal agreement whereby the plaintiff would serve process on behalf of the defendant. The plaintiff was paid a flat rate for each summons or process served. The plaintiff continued to serve process for private attorneys and other individuals in addition to the defendant. Beginning in April, 2006, the plaintiff was no longer given process to serve on behalf of the defendant.

Count one of the plaintiff’s complaint alleges that the defendant “wrongfully terminated all employment duties given to the [p]laintiff” due to the plaintiff’s reporting of “suspected violations of state laws and regulations and municipal ordinances” and “the unethical practices, mismanagement or abuse of authority by the [defendant,” in violation of § 31-51m. Count two alleges that the defendant’s “termination of [the plaintiffs] employment duties . . . was in retaliation for, or on account of’ his having exercised rights guaranteed him by article first, §§ 4 and 14, of the constitution of Connecticut, in violation of § 31-51q.

A trial to the court was held on May 25, 2011. The plaintiff presented his case-in-chief, which consisted of testimony by the plaintiff and the plaintiffs wife, Patricia Young. The plaintiff testified that he made numerous complaints about the defendant to public bodies, including the state labor board, the state freedom of information commission and the Bridgeport city ethics commission. The plaintiffs complaints alleged suspected violations of state and local laws and regulations including, inter alia, political corruption and public health violations. The plaintiff testified that Russell Liskov, an attorney employed by the defendant, asked him to abandon his claims against the defendant and that, after he refused to abandon his claims, the plaintiff stopped receiving process to serve on behalf of the defendant.

After the plaintiff rested and before the defendant had presented its own evidence, the defendant made an oral motion for a directed verdict. The defendant argued that the plaintiff could not prevail on his statutory claims because his evidence did not establish that he was the defendant’s employee as required by §§ 31-51m and 31-51q. Noting that the applicable statutes do not provide a framework for determining whether an individual qualifies as an “employee,” the court considered the plaintiffs evidence using the common-law right to control test. See, e.g., Rodriguez v. E.D. Construction, Inc., 126 Conn. App. 717, 727-29, 12 A.3d 603, cert. denied, 301 Conn. 904, 17 A.3d 1046 (2011). The court found that the plaintiff was not an employee of the defendant, but was an independent contractor, and so concluded that the plaintiff was not “entitled to the benefit and the protections of the statutes,” §§ 31-51m and 31-51q. The court granted the defendant’s motion for a directed verdict and thereafter rendered judgment in favor of the defendant. The plaintiff has appealed. Additional facts will be set forth as necessary.

It is axiomatic that the function performed by the trial court in issuing its ruling will dictate the scope of our review. State v. Saucier, 283 Conn. 207, 219, 926 A.2d 633 (2007). In the present case, the court’s granting of the defendant’s “motion for a directed verdict” created a veritable procedural abyss. As a preliminary matter, therefore, we find it necessary to clarify the nature of the defendant’s motion.

The present case was tried to the court. There was no jury. Under such circumstances, the defendant’s motion for a directed verdict was procedurally improper. Discover Leasing, Inc. v. Murphy, 33 Conn. App. 303, 306, 635 A.2d 843 (1993) (“[w]here there is no jury, directed verdicts are notrequired or available”); see also Practice Book § 16-37. We note, however, that “a motion is to be decided on the basis of the substance of the relief sought rather than on the form or the label affixed to the motion.It is the substance of a motion, therefore, that governs its outcome, rather than how it is characterized in the title given to it by the movant.” (Citations omitted.) State v. Taylor, 91 Conn. App. 788, 791-92, 882 A.2d 682, cert. denied, 276 Conn. 928, 889 A.2d 819 (2005). Considering the substance of the defendant’s motion, it is apparent that the court ruled on the question of whether the plaintiff lacked standing to maintain his statutory claims.

“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. . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue .... Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.” (Internal quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 411, 35 A.3d 188 (2012). “Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. . . . [I]n cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Internal quotation marks omitted.) Albuquerque v. State Employees Retirement Commission, 124 Conn. App. 866, 873, 10 A.3d 38 (2010), cert. denied, 299 Conn. 924, 11 A.3d 160 (2011).

Sections 31-6lm and 31-51q establish causes of action for retaliatory or wrongful discharge, granting standing to employees who seek redress from employers for conduct enumerated in those sections. Given that an employer-employee relationship is required to establish standing under §§ 31-6 lm and 31-51q; see General Statutes §§ 31-51m (b); 31-51m (a) (2) and (3); 31-51q; a court’s finding that a plaintiff was not a defendant’s employee, if correct, would deprive that plaintiff of standing to maintain those statutory causes of action.

In the present case, the defendant argued that the plaintiff could not maintain his statutory causes of action because his evidence failed to establish that he was the defendant’s employee. The court concluded that the plaintiff was not “entitled to the benefit and the protections of the statutes” because he was not the defendant’s employee. We conclude, therefore, that the court treated the defendant’s “motion for a directed verdict” as a motion to dismiss the plaintiffs action for lack of jurisdiction due to lack of standing, and we treat it as such in our review of the plaintiffs claim on appeal.

The plaintiff claims that the court erred in finding that he was not the defendant’s employee. We disagree.

“The determination of the status of an individual as an independent contractor or an employee is often difficult . . . and, in the absence of controlling circumstances, is a question of fact.” (Internal quotation marks omitted.) Rodriguez v. E.D. Construction, Inc., supra, 126 Conn. App. 727. “Although the determination that a plaintiff lacks standing is a conclusion of law that is subject to plenary review, [w]e conduct that plenary review ... in light of the trial court’s findings of fact, which we will not overturn unless they are clearly erroneous.” (Internal quotation marks omitted.) 418 Meadow Street Associates, LLC v. Clean Air Partners, LLC, 123 Conn. App. 416, 421, 1 A.3d 1194, cert. granted on other grounds, 298 Conn. 932, 5 A.3d 490 (2010).

“A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. . . . The question for this court ... is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Rodriguez v. E.D. Construction, Inc., supra, 126 Conn. App. 727-28.

“The legal incidents of the employer-employee relationship, on the one hand, and the employer-independent contractor relationship, on the other, are well established. . . . [An] independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work. . . . The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work. ... It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.” (Citations omitted; internal quotation marks omitted.) Nationwide Mutual Ins. Co. v. Allen, 83 Conn. App. 526, 534, 850 A.2d 1047, cert. denied, 271 Conn. 907, 859 A.2d 562 (2004).

The plaintiff in the present case was an elected official, one of six sheriffs authorized by the charter to serve summons and process within Bridgeport. We note that, during his term of office, the plaintiff was a person to whom process shall be directed as contemplated by General Statutes § 52-50. The proper method of service for civil process and the duties of persons to whom process shall be directed are outlined in chapter 896 of the General Statutes, §§ 52-45a through 52-72. These sections prescribe the manner and means by which service of civil process is to be accomplished and so dictate the actions that any city sheriff must take to properly serve process. The defendant could not, therefore, dictate or control the method or means of proper service.

The plaintiff testified that no mandatory duties or responsibilities are associated with the office of city sheriff. The plaintiff was not required to serve process for the defendant or for any other individual or entity. Nor did the plaintiff serve process exclusively on behalf of the defendant. During the first eleven years of his office, the plaintiff did not serve any process for the defendant. The plaintiff served process for other individuals while he was engaged by the defendant to serve process and after that engagement had ceased. The defendant did not attempt to remove the plaintiff from his position as city sheriff. The plaintiff remained authorized to serve process on behalf of other entities and individuals after he stopped receiving process to serve on behalf of the defendant.

The plaintiff testified that, when he was engaged to serve process on behalf of the defendant, he would pick up the summons or process from the city attorney’s office and then would be responsible for accomplishing service of that process. The plaintiff had no supervisor. He had no set hours of work. He had no office. The plaintiff did not participate in a pension plan, belong to a union or receive civil service protection. The plaintiff did not receive a stipend, salary or benefits from the defendant. The plaintiff was paid by the defendant on a piecemeal basis, a set amount for each summons or process served on behalf of the defendant.

In light of the foregoing, we conclude that the evidence presented was sufficient to support the court’s finding that the plaintiff was an independent contractor and, thus, not an employee of the defendant. The court’s factual finding is not clearly erroneous. It does, however, deprive the plaintiff of standing to maintain causes of action under §§ 31-51m and 31-51q. We conclude, therefore, that the court should not have rendered judgment for the defendant, but should have dismissed the plaintiffs action for lack of jurisdiction due to lack of standing. See Practice Book § 10-33; Frillici v. Westport, 264 Conn. 266, 280, 823 A.2d 1172 (2003).

The form of the judgment is improper, the judgment is set aside and the case is remanded with direction to dismiss the action.

In this opinion the other judges concurred.

       As discussed in greater detail subsequently in this opinion, the trial court treated the defendant’s motion for a directed verdict as a motion to dismiss. The court properly determined that the plaintiff was not the defendant’s employee, but improperly rendered a judgment in favor of the defendant. The court’s finding that the plaintiff was not the defendant’s employee deprived the plaintiff of standing to maintain his statutory causes of action. Having made a finding that deprived the plaintiff of standing, the court should have dismissed the action for lack of jurisdiction and proceeded no further. 418 Meadow Street Associates, LLC v. Clean Air Partners, LLC, 123 Conn. App. 416, 418 n.4, 1 A.3d 1194, cert. granted on other grounds, 298 Conn. 932, 6 A.3d 490 (2010), citing Frillici v. Westport, 264 Conn. 266, 280, 823 A.2d 1172 (2003); see also Practice Book § 10-33.

       General Statutes § 31-51m provides in relevant part: “(b) No employer shall discharge, discipline or otherwise penalize any employee because the employee . . . reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body . . . .”

       General Statutes § 31-51q provides in relevant part: “Any employer . . . who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge . . . .”

       The constitution of Connecticut, article first, § 4, provides: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”
      The constitution of Connecticut, article first, § 14, provides: “The citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or otherproperpuiposes, bypetition, address or remonstrance.”

       The court stated: “The plain meaning of the statute is not clear, so you would have to go to extratextual sources, in this case, case law. I really think where you end up is on the independent contractor type of law, to be honest with you. ... So, [the plaintiff], I’m going to be honest with you, I mean it’s ... a difficult claim for you because the statutes that are at issue here, the discharge statutes, [§§] 31-51mand31-51q, are — thepersons who are entitled to the benefit and the protections of the statutes are employees and they’re protected against retaliatory or, in essence, unlawful discharge by employers. And I believe that no matter what you say, you— there’s nothing you can do, I don’t think, to change the fact that you’re a publicly elected state marshal who gets work from the city, not as an employee of the city, which you have been before . . . but as an independent contractor, paid on a piecemeal basis [for] your work, and you would receive the work from the city like other independent contractors [that] are hired by the city in various respects. I just don’t think that at trial — I think the evidence is pretty clear, and I think you answered honestly, which you had to, that — that there’s no right of control by the city over your work. [The defendant’s attorney] did ask you a series of questions, and I think the answers establish that the city had no real right to control the means, manner and method of your . . . work. And I don’t think there’s anything you can do to change that. So I do believe that a motion for a directed verdict is in order, and I’m going to grant it. That’s all you can do.”
      The reference by the court to “the statute” refers to § 31-51m (a) (3), which defines “employee” as “any person engaged in service to an employer in a business of his employer.” We agree with the court’s conclusion that it was unable to rely on the language of the statute in determining whether the plaintiff was the defendant’s employee. We note that the legislature, in granting the causes of action to employees as delineated in §§ 31-51m and 31-51q, could have included public officials in its definition of the word “employee” but did not. Instead, it used a general, broad definition of the word, leaving unanswered the question of whether the plaintiff fit within that definition and thereby indicating that his status as an elected public official did not automatically or necessarily make him an employee of the defendant.

       The case originally was claimed for a jury of six. The plaintiff later withdrew the jury claim.

       We note that this type of challenge is raised, properly, in the form of a motion to dismiss. Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009) (“The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Practice Book § 10-31 [a].”); see also Practice Book § 10-33 (“[a]ny claim of lack of jurisdiction over the subject matter cannot be waived; and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action”). Alternately, had the defendant challenged the plaintiffs ability to establish a prima facie case of the alleged statutory violations, such a challenge would properly have been raised in the form of a motion for a judgment of dismissal pursuant to Practice Book § 15-8.

       The plaintiff claims further that the court erred in “placing the burden of proof on the plaintiff’ to establish that he was the defendant’s employee. This claim is without merit. “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).

       The charter granted the plaintiff authority to serve process within the defendant during his two year term of office, on behalf of any individual or entity.


author: ROBINSON, J.

text:
    PMG LAND ASSOCIATES, L.P. v. HARBOUR LANDING CONDOMINIUM ASSOCIATION, INC., ET AL.
    (AC 31270)
    DiPentima, C. J., and Robinson and Espinosa, Js.

      Argued December 1, 2011 —
    officially released May 22, 2012

      Scott Maser, for the appellant (plaintiff).

      Laura Pascóle Zaino, with whom were Joshua M. Auxier and, on the brief, Thomas P. Lambert and Joseph J. Areata III, for the appellees (defendants).
   Opinion

ROBINSON, J.

The plaintiff, PMG Land Associates, L.P., appeals from the judgment of the trial court granting the motion to dismiss filed by the defendants, Har-bour Landing Condominium Association, Inc. (Harbour Landing), David Potter, Vincent DeLauro and Margareth Butterworth. On appeal, the plaintiff contends that the court improperly granted the defendants’ motion to dismiss as to the third count of its complaint sounding in tortious interference with business expectancies. We reverse in part the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs claim. The plaintiff is a real estate development company that at one time was the developer of the Harbour Landing condominium complex in New Haven. During the construction of the condominiums, various amenities were erected on three parcels of land that adjoined and abutted the Harbor Landing property, which parcels were owned by the plaintiff. The plaintiff put the three parcels of land on the market for sale and declared that the amenities were no longer available for use by the Harbor Landing condominium owners. In response, in 2001, Harbour Landing and its individual condominium owners commenced an action against the plaintiff and its principals, seeking a prescriptive easement over the property, as well as damages for an alleged violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. A notice of lis pendens was recorded on the New Haven land records in connection with the prescriptive easement claim.

In October, 2003, while the prescriptive easement action was still pending, the plaintiff commenced an action against the defendants and numerous condominium owners in which it (1) sought to quiet title to the three parcels of land, (2) alleged slander of title and (3) alleged tortious interference with the plaintiffs business. On April 1,2004, the court issued postcard notices acknowledging that the parties had reported a settlement in both pending actions. At that time, however, the cases had not been withdrawn. The court ordered the parties to file the necessary withdrawals before May 27, 2004, or their cases would be dismissed. Both the prescriptive easement action and the plaintiffs action were dismissed on May 28, 2004, and June 30, 2004, respectively, pursuant to the court’s order.

In November, 2004, the plaintiff commenced a second action against the defendants and numerous condominium owners. The complaint set forth three counts alleging (1) statutory vexatious litigation, (2) common-law vexatious litigation and (3) tortious interference with business expectancies. In July, 2005, the defendants filed a request to revise. The plaintiff objected to some, but not all, of the defendants’ requests. The defendants also issued written interrogatories and requests for production. The court overruled some, but not all, of the defendants’ requests to revise. The plaintiff, however, never revised its complaint, nor fully responded to the defendants’ discovery requests. On January 2, 2007, the court granted the defendants’ motion for a judgment of nonsuit against the plaintiff.

The plaintiff commenced the present action against the defendants on January 30, 2008, more than one year after the dismissal of the prior action. The complaint asserted the same three counts as alleged in the prior action: (1) statutory vexatious litigation, (2) common-law vexatious litigation and (3) tortious interference with business expectancies. On February 20, 2008, the defendants filed a motion to dismiss the plaintiffs complaint. The defendants contended that the plaintiffs claims were barred by the applicable statute of limitations in General Statutes § 52-577 and could not be saved by the accidental failure of suit statute set forth in General Statutes § 52-592 because the plaintiff waited more than one year to bring the new action.

The plaintiff filed an objection to the motion to dismiss on September 19, 2008, seven months after the motion was filed and only three days before oral argument was to occur on the motion. In its objection, the plaintiff argued that a motion to dismiss was not the proper procedural vehicle for adjudication of the applicability of the accidental failure of suit statute. The plaintiff further argued that the third count of the complaint alleging tortious interference with business expectancies fell within the applicable three year statute of limitations because the plaintiff alleged ongoing tortious actions of the defendants in 2005 and 2006. The plaintiff maintained that because the three year statute of limitations had not lapsed, it did not need to rely on the accidental failure of suit statute for count three.

The court issued its memorandum of decision on the defendants’ motion to dismiss on May 28, 2009. The court noted that a determination under § 52-592 is very fact sensitive and should focus on “the type of conduct that occurred, the egregiousness of the conduct, any explanation for the conduct, and prejudice upon the nonmovant.” The court then set forth cases that analyzed whether the particular conduct of counsel was sufficiently egregious so as to prevent the claim from proceeding. Although the court did not analyze specifically the plaintiffs case in comparison to the cases cited, the court granted the motion to dismiss.

The plaintiff filed a motion for reconsideration and reargument on June 22, 2009. The plaintiffs principal argument was that the court failed to address the plaintiffs claim that count three of its complaint was brought within the applicable statute of limitations, thus making any analysis under § 52-592 improper. The court denied the plaintiffs motion on June 24, 2009. The plaintiff appealed on July 14, 2009.

On January 9, 2012, this court ordered the trial court to articulate whether it considered the plaintiffs argument in its objection to the defendants’ motion to dismiss that the statute of limitations had not lapsed as to the tortious interference with business expectancies claim in count three. On February 8, 2012, the trial court issued an articulation, which stated that it had in fact considered and analyzed the plaintiffs statute of limitations argument. The trial court noted that it had rejected the plaintiffs argument because the notice of lis pendens was no longer of any effect as of May 28, 2004, and the plaintiff could have requested that the notice of lis pendens be released after the dismissal of the action.

The plaintiff first contends that the trial court improperly granted the defendants’ motion to dismiss as to the tortious interference with business expectancies claim because it was brought within the applicable three year statute of limitations. The plaintiff argues that the defendants committed acts relevant to this claim throughout 2006 and 2006 and, therefore, that the claim was brought within the applicable statute of limitations. We conclude that the plaintiff sufficiently alleged actions of the defendants that fell within three years of the filing of the complaint so as to allow the plaintiff to proceed with its claim.

We begin by setting forth the relevant standard of review. “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 . . . whether, on the face of the record, the court is without jurisdiction. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [grant] of the motion to dismiss will be de novo.” (Citations omitted; internal quotation marks omitted.) Peruta v. Commissioner of Public Safety, 128 Conn. App. 777, 782-83, 20 A.3d 691, cert. denied, 302 Conn. 919, 28 A.3d 339 (2011).

“The question of whether a party’s claim is barred by the statute of limitations is a question of law, which this court reviews de novo.” (Internal quotation marks omitted.) Certain Underwriters at Lloyd’s, London v. Cooperman, 289 Conn. 383, 407-408, 957 A.2d 836 (2008). The plaintiffs claim is governed by the tort statute of limitations set forth in § 52-577, which provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” “This court has determined that [§] 52-577 is an occurrence statute, meaning that the time period within which a plaintiff must commence an action begins to run at the moment the act or omission complained of occurs.” (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn. App. 436, 444, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).

Reading the complaint in the light most favorable to the plaintiff, we conclude that the plaintiff has set forth allegations that, if taken as true, are sufficient to allow the plaintiff to proceed on its tortious interference with business expectancies claim in count three. While the plaintiff does not provide any dates in its complaint that would fall within the three year statute of limitations, it does allege that, although the court dismissed the defendants’ prescriptive easement action on May 28, 2004, the defendants “failed to remove the remaining lis pendens on [the plaintiffs] property for a significant period of time, interfering with their ultimate sale to The Christopher Companies, Ltd.” In its objection to the defendants’ motion to dismiss, the plaintiff asserts that the notice of lis pendens was not removed until June 6, 2005. If the failure to remove the notice of lis pendens amounts to a tortious interference with the plaintiffs business expectancies, the claim would fall within the three year statute of limitations.

The court noted in its articulation that the plaintiff had a statutory avenue available to have the notice of lis pendens removed when the defendants’ case was dismissed, and therefore the notice of lis pendens did not constitute an interference after May 28, 2004. Although this may be true, the fact that the plaintiff could have asked for the notice of lis pendens to be removed does not necessarily demonstrate that the plaintiff is precluded from claiming that its continued presence tortiously interfered with the plaintiffs business expectancies. Whether the statutory avenues available to the plaintiff to remove the notice of lis pendens precluded it from asserting that the defendants tor-tiously interfered with the plaintiffs business expectancies is an issue that is more appropriately addressed in a motion for summary judgment, not in a motion to dismiss. We therefore conclude that the court erred in dismissing the third count of the plaintiffs complaint.

The judgment is reversed only as to count three of the plaintiffs complaint alleging tortious interference with business expectancies and the case is remanded for further proceedings on that count consistent with this opinion; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Potter, DeLauro and Butterworth are members of Harbour Landing’s board of directors.

       Because we conclude that the court erred in granting the defendants’ motion to dismiss as to the third count of the plaintiffs complaint, we need not reach the merits of the plaintiffs second claim, namely, that the court erred in denying the plaintiffs motion for reconsideration and reargument.

       General Statues § 52-592 (a) provides: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

       The plaintiff conceded in its objection to the defendants’ motion to dismiss as well as at oral argument on the motion to dismiss that the first two counts, with the exception of those claims brought against Potter, were not brought within the one year required under the savings statute and also were not brought within the three year statute of limitations and therefore were time barred.

       The plaintiff filed a motion for articulation with respect to the court’s decision on the motion to dismiss on August 18, 2009. The court, however, did not rule on the motion for articulation, and the plaintiffs counsel did not move to compel the court to issue a ruling. Over one year later, on October 20, 2010, this court sua sponte ordered the court to act on the pending motion for articulation. The court denied the motion on November 5, 2010. On November 22, 2010, the plaintiff filed a motion for review. On December 15, 2010, this court granted the plaintiffs motion for review but denied the relief requested. Upon review of the merits of the appeal, we revisited our earlier decision to deny the plaintiffs motion for review. See State v. Holloway, 22 Conn. App. 265, 276, 577 A.2d 1064, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990).

       We note that our resolution of this case does not address the strength of the plaintiffs case or whether the case has merit. We simply conclude that the plaintiffs allegations allow the case to proceed as to count three.

       We note that generally, a motion to dismiss is not the appropriate procedural instrument by which to assert that an action is not saved by § 52-592. See LaBow v. LaBow, 85 Conn. App. 746, 750, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005). Our Supreme Court has stated, however, that a court may consider such an assertion in a motion to dismiss if the plaintiff has not objected to the use of the motion to dismiss. See Capers v. Lee, 239 Conn. 265, 269-70 n.9, 684 A.2d 696 (1996); see also LaBow v. LaBow, supra, 750. In the present case, the defendants filed a motion to dismiss the plaintiffs complaint, on the basis of their assertion that § 52-592 could not save the plaintiffs action. Seven months after the motion to dismiss was filed, and only three days before oral argument, the plaintiff filed an objection to the defendants’ motion, in which it argued that a motion to dismiss should not be used to assert that the accidental failure of suit statute did not apply. In its memorandum of decision, the court noted that the plaintiff objected to the use of the motion to dismiss, however, the court also noted that the plaintiff never objected to the use of the motion to dismiss in two prior court appearances, and the plaintiff filed its objection three days before oral argument, in contravention of Practice Book § 10-31 (b). On the basis of our reading of the court’s memorandum of decision, the court considered the plaintiffs objection to the use of the motion as untimely and therefore proceeded in rendering its decision on the defendants’ motion to dismiss.

       We note that the plaintiffs counsel attached two e-mail correspondences between herself the defendants’ counsel from May and August, 2005, to the plaintiffs objection to the defendants’ motion to dismiss. The first e-mail attached as exhibit B stated in relevant part: “Members of Harbour Landing continue to interfere with the development process making demands on the zoning board to obtain approval including — parking spots which they lost in the prescriptive easement case, and sharing expenses for the utilities on the common areas which is not an obligation under the easement. Harbour Landing turned down $750,000 from the developer toward its deferred expenses, it turned down forming one master association to share expenses — it continues to interfere with unreasonable demands — without legal foundation.” The second e-mail attached as exhibit C stated that Potter and DeLauro are “holding up approvals so that they can obtain view corridors that affect essentially only their units . . . .” The use of counsel’s own e-mail correspondences, which were not verified by an attached affidavit, in support of the plaintiffs objection to the motion to dismiss is troubling. See Rockwell v. Quintner, 96 Conn App. 221, 234 n.10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006) (petition filed by attorney in opposition to motion for summary judgment not considered because attorney did not make representations under oath, nor did he attest therein that he had personal knowledge as to representations made, or that he was competent to testify as to such matters pursuant to Practice Book § 17-46); Farrell v. Farrell, 182 Conn. 34, 37 n.2, 438 A.2d 415 (1980) (“[a]n attorney should not ordinarily become a witness on behalf of his client”). Because we conclude that the allegations concerning the notice of lis pendens were sufficient to allow the plaintiff to proceed on its tortious interference with business expectancies claim, we will not address whether the e-mail correspondences attached to the plaintiffs objection should have been considered by the trial comt.