text:
    MICHAEL BRAHAM v. COMMISSIONER OF CORRECTION
    (AC 31657)
    DiPentima, C. J., and Espinosa and Pellegrino, Js.

      Argued September 15
    officially released November 8, 2011

      Michael Braham, pro se, the appellant (petitioner).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Kelly A. Masi, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The self-represented petitioner, Michael Braham, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) limited the scope of his cross-examination and (2) determined that he received the effective assistance of habeas trial and appellate counsel. We are not persuaded by the petitioner’s claims and, accordingly, affirm the judgment of the habeas court.

“The facts underlying the petitioner’s arrest and subsequent guilty plea are as follows. On June 24, 1996, in the area of 104 Westboume Parkway in Hartford, the petitioner shot and killed Jeffrey Murphy. The petitioner and the victim had attended a cookout that day where the petitioner consumed beer and smoked marijuana. The petitioner and the victim had engaged in an argument that began the previous night over a sale of drugs. The petitioner testified at the habeas trial that he had been angry about the continuing argument with the victim.

“According to the petitioner, the victim threatened that he would see the petitioner when the petitioner did not have his gun. The petitioner interpreted that to mean that he and victim were at war now. He then withdrew his gun and tried to strike the victim with it, but the victim ran away. The petitioner proceeded to fire shots in the direction of the victim. One of the bullets struck the victim and killed him. The victim’s cousin, Troy Murphy, witnessed the shooting and gave a statement to the police. The police seized the petitioner’s shirt, which later tested positive for gunpowder.

“On July 2, 1996, the petitioner was charged with murder in violation of General Statutes § 53a-54a. The state filed a part B information on August 25, 1997, charging the petitioner with commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. Attorney Joseph S. Elder represented the petitioner on all charges. He met with and telephoned the petitioner on numerous occasions during the course of his representation.

“On January 22, 1998, the petitioner entered a guilty plea under the Alford doctrine to the charge of murder. The trial court accepted the plea as knowingly and voluntarily made and sentenced the petitioner to a term of thirty-two years incarceration pursuant to a plea agreement.” (Internal quotation marks omitted.) Braham v. Commissioner of Correction, 72 Conn. App. 1, 2-4, 804 A.2d 951, cert. denied, 262 Conn. 906, 810 A.2d 271 (2002).

Following the first unsuccessful habeas proceeding and appeal, the petitioner filed a second petition for a writ of habeas coipus. In his second revised amended petition, filed on November 17, 2006, the petitioner alleged that he had received ineffective assistance of counsel from his prior habeas trial and appellate counsel, attorney Judith M. Wildfeur. As stated by the second habeas court, “[t]he claim of ineffective assistance of counsel essentially complains that . . . Wildfeur . . . was ineffective in her representation before the initial habeas court and on appeal by not pursuing a claim against the [criminal trial counsel, attorney Joseph S. Elder] that he unduly pressured the petitioner to accept a plea bargain and that he failed to properly advise the petitioner regarding his ‘intoxication defense’ relative to his decision to plead guilty to murder.”

In its memorandum of decision, the court concluded that the petitioner had “enjoyed the representation of a competent counsel and [that] the court has found that his plea of guilty [was] knowing, intelligent and voluntary.” Accordingly, it denied the petition for a writ of habeas corpus. On September 9, 2009, the court granted the petition for certification to appeal from the denial of the petition for a writ of habeas corpus.

I

On appeal, the petitioner first claims that the court improperly restricted his cross-examination of prosecutor Vicki Melchiorre, a witness for the respondent, the commissioner of correction. Specifically, he argues that he improperly was denied the opportunity to question Melchiorre about Elder’s alleged misrepresentation that the petitioner would be eligible for parole after being convicted of murder. He contends that this violated both his constitutional right to cross-examination and our rules of evidence. We decline to review this claim.

The respondent counters that the specific claim raised on appeal was not raised at trial, and therefore we should decline to afford it review. Specifically, the respondent argues: “[T]he record of Melchiorre’s cross-examination reveals that the petitioner neither asked Melchiorre about her failure to correct Elder’s alleged misstatement nor proffered such an inquiry. . . . Instead, the petitioner merely asked Melchiorre whether, at the plea proceeding, she had heard Elder encourage the petitioner to plead guilty. • • • Similarly, the petitioner made no claim below that the court’s ruling prohibiting inquiry as to whether Melchiorre heard Elder encourage the petitioner to plead guilty unduly restricted his cross-examination of Melchiorre as to her steadfast refusal to reduce the murder charge.” (Citations omitted.) We agree with the respondent.

It is well established that this court will not review unpreserved evidentiary claims. See, e.g., State v. Messam, 108 Conn. App. 744, 759-60, 949 A.2d 1246 (2008). As to his claim of a constitutional violation, the petitioner has failed to request review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and therefore we decline to engage in a Golding analysis. See Harris v. Commissioner of Correction, 121 Conn. App. 240, 248 n.3, 994 A.2d 685, cert. denied, 297 Conn. 926, 998 A.2d 1193 (2010). On the basis of this law, we conclude that the petitioner’s claims regarding the cross-examination of Melchiorre are not properly before this court, and we decline to review them.

II

The petitioner next claims that the habeas court improperly determined that he received the effective assistance of his prior habeas trial and appellate counsel. The petitioner presents several arguments regarding the alleged deficiencies in the memorandum of decision. We thoroughly have reviewed this decision. We conclude that the habeas court carefully considered, addressed and resolved the issues set forth in the petition for a writ of habeas corpus. The court properly denied the petition, and we are not persuaded by the petitioner’s claims on appeal.

The judgment is affirmed.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOSE O. GUERRA
    (AC 32686)
    Gruendel, Alvord and Flynn, Js.

      Argued September 21
    officially released November 8, 2011

      A. Manuel Nieves, with whom was Kai W. De Graaf, for the appellant (defendant).

      Emily Graner Sexton, special deputy assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Deborah Mabbett, senior assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Jose O. Guerra, appeals from the judgment of the trial court dismissing his motion to vacate his guilty plea. He claims that the court improperly concluded that it lacked jurisdiction to consider the merits of that motion. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The defendant is a citizen of Guatemala who was involved in a physical altercation outside of a bar in Danbury on August 24, 2002. He thereafter was charged with assault in the first degree in violation of General Statutes § 53a-59 (a) (4). Pursuant to a plea agreement, the defendant on March 17, 2003, pleaded guilty to that count. At that time, the court canvassed the defendant concerning his plea, during which the defendant indicated that he had been provided enough time to talk to his trial counsel about both his case and his decision to accept the plea offer. When asked by the court if he was satisfied with his counsel’s representation in this proceeding, the defendant answered, “Absolutely. Yes.” The court later stated: “You should also be aware of the fact if you’re not a citizen of the United States, conviction of the offenses with which you have been charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization, all pursuant to the laws of the United States of America. Do you understand that?” The defendant responded affirmatively. Following the canvass, the court accepted the plea as “knowingly and voluntarily made with the assistance of competent counsel

The matter was continued to March 27,2003, to afford the victim of the assault the opportunity to review the terms of the plea. At the outset of the proceeding on that date, counsel for the defendant stated to the court: “Your Honor, only just for the record, I would indicate that I’ve spoken to [the defendant]. I’ve gone over with him for the second time any possible immigration problems that he might have. He understands them as it was treated at the canvass . . . .” The court asked the defendant if he wanted to speak, to which the defendant replied, “No, the only thing I got to say is sorry ... for everything.” The court then sentenced the defendant, consistent with the terms of his plea agreement, to five years incarceration, execution suspended, and five years of probation.

More than seven years later, the defendant filed a motion to vacate that plea, arguing that his trial counsel had not explained to him the possible adverse immigration consequences of his plea. On August 24, 2010, the court dismissed the motion for lack of subject matter jurisdiction. From that judgment, the defendant appeals.

The issue before us is whether the court possessed subject matter jurisdiction to consider the defendant’s motion to vacate his plea. Our review thereof is plenary. State v. DeVivo, 106 Conn. App. 641, 644, 942 A.2d 1066 (2008).

It is well established that “the jurisdiction of the sentencing court terminates once a defendant’s sentence has begun, and, therefore, that court may no longer take any action affecting a defendant’s sentence unless it expressly has been authorized to act.” Cobham v. Commissioner of Correction, 258 Conn. 30, 37, 779 A.2d 80 (2001). Likewise, Practice Book § 39-26 provides in relevant part that “[a] defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.” As our Supreme Court recently reiterated, “once a defendant’s sentence is executed, the trial court lacks jurisdiction to entertain any claims regarding the validity of that plea in the absence of a statute or rule of practice to the contrary.” State v. Das, 291 Conn. 356, 368, 968 A.2d 367 (2009).

The defendant contends that General Statutes § 54-lj confers jurisdiction on the court to vacate his plea given his claim that trial counsel did not explain to him the possible adverse immigration consequences of his plea. He misconstrues that statute.

Section 54-lj (a) provides that the trial court “shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court first addresses the defendant personally and determines that the defendant fully understands that if the defendant is not a citizen of the United States, conviction of the offense for which the defendant has been charged may have the consequences of deportation or removal from the United States, exclusion from readmission to the United States or denial of naturalization, pursuant to the laws of the United States. If the defendant has not discussed these possible consequences with the defendant’s attorney, the court shall permit the defendant to do so prior to accepting the defendant’s plea.” Only when “the court fails to address the defendant personally and determine that the defendant folly understands the possible consequences of the defendant’s plea, as required in subsection (a) of this section, and the defendant not later than three years after the acceptance of the plea shows that the defendant’s plea and conviction may have one of the enumerated consequences” may the court “vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.” General Statutes § 54-lj (c). That essential prerequisite is lacking in this case, as it is undisputed that the court, in its canvass of the defendant on March 17, 2003, complied with the mandate of § 54-lj (a).

The defendant nevertheless maintains that “although the record demonstrates that the trial court complied with the required § 54-lj statutory warning measures, the law of Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), renders such compliance insufficient as a matter of law.” We find that claim perplexing, as Padilla addressed “whether, as a matter of federal law, [the petitioner’s] counsel had an obligation to advise [the client] that the offense to which he was pleading guilty would result in his removal from this country.” (Emphasis added.) Id., 360. The United States Supreme Court held that the sixth amendment right to competent counsel requires “that counsel must inform her client whether his plea carries a risk of deportation.” Id., 374. Padilla concerns the conduct of counsel and places no obligation on the trial court to so advise a litigant before it. Moreover, Padilla does not confer on our trial courts the authority to grant a postsentencing motion to vacate a plea due to allegedly ineffective assistance of counsel. As this court noted only months ago, “[njothing in the holding of Padilla confers jurisdiction on a state trial court to entertain late motions to open judgments postsentencing or to entertain late motions for relief from judgment. The court merely defined the scope of a substantive constitutional right — the right to effective assistance of counsel.” State v. Alegrand, 130 Conn. App. 662, 668, 23 A.3d 1250 (2011). Under Connecticut law, “[a] claim of ineffective assistance of counsel does not provide a statutory or constitutional basis for the court’s jurisdiction to vacate a plea or a conviction.” Id.

Furthermore, the defendant failed to move to vacate his plea within three years after the acceptance thereof, as plainly and unambiguously required by § 54-lj (c). Rather, he filed that motion more than seven years later. Accordingly, it is barred by the statute of limitations set forth in § 54-lj (c). See State v. Parra, 251 Conn. 617, 620, 741 A.2d 902 (1999); State v. Alegrand, supra, 130 Conn. App. 665 (“recognizing the need to have some finality to criminal judgments, the legislature [in § 54-lj (c)] provided that a defendant may withdraw his plea not later than three years after making it”).

Under our rules of practice and well established law, a defendant may not withdraw his plea after the conclusion of the sentencing proceeding, as “once a defendant’s sentence is executed, the trial court lacks jurisdiction to entertain any claims regarding the validity of that plea in the absence of a statute or rule of practice to the contrary.” State v. Das, supra, 291 Conn. 368; see also Practice Book § 39-26. In light of the foregoing, we conclude that the court properly determined that it lacked jurisdiction to consider the merits of the defendant’s motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       As the court noted in its canvass of the defendant, the crime of assault in the first degree is a class B felony, punishable by a maximum sentence of twenty years incarceration. See General Statutes § § 53a-59 (b) and 53a-35a.

       The defendant has provided no statutory analysis and relies solely on State v. Parra, 251 Conn. 617, 741 A.2d 902 (1999), to support his assertion that the three year statute of limitations set forth in § 54-lj (c) is “merely intended to limit the mandatory reopening to a window of three years . . . not to foreclose reopening of compelling cases which are filed beyond three years after the plea is entered.” (Emphasis in original.) We disagree. The issue in Parra was “whether Public Acts 1997, No. 97-256, § 6 (P.A. 97-256), which amended General Statutes § 54-lj by, inter alia, limiting the time within which a defendant may move to vacate a judgment and withdraw a plea, should be applied retroactively . . . .” State v. Parra, supra, 619-20. The court answered that query in the affirmative. It continued: “[Bjecause the defendant’s motion to vacate the judgment and withdraw his plea was filed six years after the judgment was rendered, his motion is barred by the three year statute of limitations [contained in § 54-lj (c)].” Id., 620. That our Supreme Court neither considered whether the defendant in Parra presented a “compelling case” nor remanded the matter to the trial court for such a determination undermines the defendant’s reliance on that case to support his assertion.


author: BORDEN, J.

text:
    EDMUND H. LOHNES v. HOSPITAL OF SAINT RAPHAEL ET AL.
    (AC 32170)
    Bear, Espinosa and Borden, Js.

      Argued May 23
    officially released November 15, 2011

      Albert J. Oneto TV, with whom, on the brief, was Peter E. Ricciardi, for the appellant (plaintiff).

      Eric J. Stockman, with whom, on the brief, was Vimala B. Ruszkowski, for the appellee (named defendant).

      Frederick J. Trotta, with whom, on the brief, was Janine W. Hodgson, for the appellee (defendant Vinu Verghese).
   Opinion

BORDEN, J.

The plaintiff, Edmund H. Lohnes, appeals from the judgment of the trial court granting the motions to dismiss his complaint filed by the defendants, Vinu Verghese, an emergency room physician, and the Hospital of Saint Raphael (hospital), in connection with medical care rendered by Verghese. The court granted the defendants’ motions to dismiss on the ground that the written opinion accompanying the plaintiffs complaint did not satisfy General Statutes § 52-190a. On appeal, the plaintiff claims that the court improperly: (1) concluded that the plaintiffs expert was not a “similar health care provider” within the meaning of General Statutes §§ 52-190a and 52484c; (2) interpreted §§ 52490a and 52484c in a manner that (a) unreasonably restricted the plaintiffs common-law right to pursue a judicial remedy for medical negligence, in violation of the open courts provision of article first, § 10, of the constitution of Connecticut and (b) resulted in an arbitrary and irrational dismissal of the plaintiffs medical negligence action, without due process of law, in violation of the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut; and (3) dismissed the plaintiffs action on the basis of a perceived circumstantial defect in the plaintiffs pleadings, in violation of General Statutes § 52-123. We disagree with the plaintiff on all of his claims and, therefore, affirm the judgment of the trial court.

The plaintiff brought this action claiming medical malpractice by Verghese and liability of the hospital pursuant to the doctrine of respondeat superior. The defendants each moved to dismiss the complaint. The trial court granted the motions and dismissed the action. This appeal followed.

In his complaint, the plaintiff alleged the following facts, the truth of which we assume for purposes of his appeal. See Gold v. Rowland, 296 Conn. 186, 200-201, 994 A.2d 106 (2010). On June 22, 2007, the plaintiff was admitted to the emergency department at the hospital, complaining of shortness of breath associated with pain and tightness in his chest. Upon being admitted to the hospital, the plaintiff advised the hospital that he had a prior history of nonsteroidal anti-inflammatory drug (NSAID) sensitive asthma, which, in the past, had caused him to suffer shortness of breath, loss of consciousness and vomiting as a result of ingesting the NSAID aspirin. The plaintiff subsequently was put under the care of Verghese for treatment of his pulmonary symptoms. At that time, the plaintiff reiterated to Verghese that he was highly allergic to NSAIDs and, despite having notice of that allergy, Verghese administered several pills to the plaintiff, one of which was the NSAID Motrin. As a result of ingesting the NSAID, the plaintiff required intubation and mechanical ventilation for acute, hypercapnic respiratory failure. Over the next four days, the plaintiff required cardioversion postextubation for atrial fibrillation.

Following that treatment, the plaintiff commenced this medical negligence action against the defendants. In an attempt to comply with §§ 52-190a and 52-184c, the plaintiff attached to his complaint an opinion letter from a pulmonologist from National Jewish Health in Denver, Colorado. The defendants each moved to dismiss on the ground that the author of the plaintiffs opinion letter was not a similar health care provider within the meaning of §§ 52-190a and 52-184c. In response to the plaintiff’s objection to the motions to dismiss, Verghese submitted an affidavit stating: “I am a physician licensed to practice emergency medicine by the [s]tate of Connecticut,” and, “I am Board Certified in Emergency Medicine and have been a Diplómate of the American Board of Emergency Medicine since December of 2005.” Thereafter, the court granted the defendants’ motions to dismiss.

I

TIMELINESS OF MOTION TO DISMISS

As a threshold matter, we address the issue, raised by the plaintiff in a supplemental authorities letter submitted pursuant to Practice Book § 67-10, that our Supreme Court’s recent decision in Morgan v. Hartford Hospital, 301 Conn. 388, 21 A.3d 451 (2011), is relevant to the outcome of this case. In response, this court ordered the parties to file simultaneous supplemental briefs addressing the following question: “What effect, if any, does the recent decision of the Supreme Court in Morgan v. Hartford Hospital [supra, 388] have on the decision in this appeal?”

The plaintiff claims that the ruling in Morgan is applicable to this appeal and mandates denial of Verghese’s motion to dismiss because he did not file it within thirty days of filing his appearance, pursuant to Practice Book § 10-30. We disagree.

In Morgan, our Supreme Court concluded that “because the written opinion letter of a similar health care provider must be attached to the complaint in proper form, the failure to attach a proper written opinion letter pursuant to § 52-190a constitutes insufficient service of process and, therefore, Practice Book § 10-32 and its corresponding time and waiver rule applies by its very terms. Because we conclude that the absence of a proper written opinion is a matter of form, it implicates personal jurisdiction.” Morgan v. Hartford Hospital, supra, 301 Conn. 402. The court held that the defendants waived their right to challenge the sufficiency of the written opinion letter through a motion to dismiss because they failed to file the motion within the thirty day time period provided by Practice Book § 10-30 and they filed “numerous pleadings before filing their motion to dismiss.” Id., 404. In fact, the motion to dismiss was filed nineteen months after the complaint. Id., 403.

In the present case, the return date on the complaint was September 22, 2009. Verghese filed his appearance on August 31, 2009, twenty-two days before the return date. Furthermore, Verghese filed his motion to dismiss, prior to the filing of any other pleadings, on October 21, 2009, which, as the plaintiff stated in his supplemental brief, was fifty-one days after Verghese filed his appearance.

We recognize that Practice Book § 10-30 states in part: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . .” (Emphasis added.) We note, however, that Practice Book § 10-8 provides in relevant part: “[I]n civil actions, pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days from the return day . . . .” Our rules of practice are designed “to facilitate business and advance justice”; thus, “they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” Practice Book § 1-8. Reading Practice Book §§ 1-8, 10-8 and 10-30 together, therefore, we conclude, that in the present matter, Verghese should not be penalized for filing an appearance prior to the return date, and that in this case, where he did so, the most reasonable way to read these provisions of our rules of practice is to allow thirty days from the return date, not the date of the appearance, to file a motion to dismiss.

Indeed, as Verghese suggests, where a defendant files an early appearance — i.e., before the return date — to credit the plaintiffs literal reading of the rules of practice could encompass a situation where the defendant who files an appearance more than thirty days prior to the return date could be required to file a motion to dismiss even before the case has been officially returned to court. We do not think that our rules of practice require such a bizarre outcome.

These circumstances are different from those in Morgan, in which the plaintiff waited nineteen months to file the motion to dismiss and filed numerous pleadings prior to the motion to dismiss. Thus, in the present case, Verghese had thirty days from September 22,2009, which would have been October 23, 2009, to file his motion to dismiss. Verghese filed his motion to dismiss on October 21, 2009, and therefore his motion was timely.

II

SIMILAR HEALTH CARE PROVIDER

The plaintiff next claims that the court improperly granted the defendants’ motions to dismiss on the ground that his expert opinion letter was not authored by a “similar health care provider” within the meaning of §§ 52-190a and 52-184c. Specifically, the plaintiff claims that the court improperly found that, at the time Verghese treated the plaintiff, he was board certified in emergency medicine as an emergency medicine specialist and that he was acting within the area of emergency medicine when he treated the plaintiff. We disagree.

We first set forth the appropriate standard of review. “[0]ur review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo. . . . Factual findings underlying the court’s decision, however, will not be disturbed unless they are clearly erroneous. . . . The applicable standard of review for the denial of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations.” (Internal quotation marks omitted.) State v. Winter, 117 Conn. App. 493, 500, 979 A.2d 608 (2009), cert. denied, 295 Conn. 922, 991 A.2d 569 (2010).

We now turn to the pertinent language of the relevant statutes. Section 52-190a (a) provides in relevant part that before filing a personal injury action against a health care provider, a potential plaintiff 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 stating that there appears to be evidence of medical negligence and including a detailed basis for the formation of that opinion. Section 52-184c (c) provides in relevant part that “[i]f 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’.” Thus, in this case, in order to satisfy the requirements of §§ 52-190a and 52-184c, the plaintiff was required to have, as the author of his opinion letter, one who was both (1) trained and experienced in emergency medicine and (2) board certified in emergency medicine.

With these principles in mind, we turn to the plaintiffs claim that the court erroneously found that Verghese was board certified in emergency medicine as an emergency medicine specialist. In support of this claim, the plaintiff contends that the affidavit supplied by Verghese is unclear on the issue of whether Verghese was board certified in emergency medicine at the time he treated the plaintiff. We are not persuaded by this cramped and narrow reading of the affidavit. Reading Verghese’s affidavit in a reasonable manner, indeed, in the only common sense manner in which it can be read, clearly supports the court’s finding that Verghese was trained and experienced in emergency medicine, and was board certified in emergency medicine at the time he treated the plaintiff. The affidavit explicitly states that Verghese was board certified in emergency medicine and has been a “Diplómate of the American Board of Emergency Medicine since December of 2005.” It is well established, within the medical profession, that a “diplómate” is a person who has received a diploma and has been certified by a board within the appropriate profession. See Webster’s Third New International Dictionary (2002) p. 638 (defining diplómate as “[o]ne who holds a diploma; esp; a physician certified as qualified generally or as a specialist by an agency recognized as professionally competent to grant such certification” [emphasis in original]); see also Random House Webster’s Unabridged Dictionary (2d Ed. 2001) p. 558 (defining diplómate as “[a] person who has received a diploma, esp; a doctor, engineer, etc., who has been certified as a specialist by a board within the appropriate profession” [emphasis in original]). Accordingly, we conclude that the evidence supports the court’s finding that, when he treated the plaintiff, Verghese was a board certified emergency medicine specialist.

The plaintiff also claims that Verghese was acting outside of his specialty when he treated the plaintiff at the emergency department. Specifically, the plaintiff argues that Verghese was practicing pulmonology, rather than emergency medicine, when he treated the plaintiff. He contends, therefore, that the pulmonologist who provided an opinion letter in support of his medical negligence action qualifies as a similar health care provider under the exception carved out by § 52-184c (c), which states that “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 . . . .” (Internal quotation marks omitted.) We are not persuaded.

At the hearing before the trial court, the plaintiffs counsel conceded that his complaint did not contain an express allegation that Verghese was practicing outside of his field of practice. In light of that concession, the court declined to infer from the plaintiffs “single and fleeting reference to ‘treatment of his pulmonary symptoms’ ” that the complaint contained any specific allegations of negligence based on Verghese’s having acted outside his area of specialty. We agree with this determination.

Moreover, the underlying facts as alleged do not support the plaintiffs claim. It is undisputed that the plaintiff went to the emergency department, not to a pulmonologist, to receive his treatment. He was complaining of shortness of breath and tightness in his chest, and he was treated for those symptoms. Moreover, his claims are founded on the premise that Verghese negligently administered Motrin in contraindication to the plaintiffs warnings; there is nothing in this allegation that, on its face, suggests pulmonology as opposed to emergency treatment. We agree with the trial court that this treatment was not outside the expertise of Verghese. Indeed, as the hospital suggests, in light of the fact that emergency medicine physicians are charged with rendering care to and treating patients with a potentially limitless variety of symptoms or injuries, the plaintiffs argument, namely, that the defendant was acting outside his area of specialty, potentially could yield a situation where no condition or illness would be considered within the scope of emergency medicine. Accordingly, there is no basis for the claim that, in treating the plaintiff for his symptoms in the emergency department of the hospital, Verghese was practicing outside his specialty of emergency medicine.

Ill

UNPRESERVED CLAIMS

The three remaining claims raised by the plaintiff on appeal were not raised in the trial court and hence are unpreserved. The plaintiff seeks to prevail pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In Golding, our Supreme Court held that a party can prevail on a claim of constitutional dimension not preserved at trial only if all of the following four conditions are met: (1) the record is adequate to review the claim; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the appellant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. Id. Golding review is applicable in civil as well as criminal cases. Perricone v. Perricone, 292 Conn. 187, 212 n.24, 972 A.2d 666 (2009). We conclude that the plaintiff may not prevail on any of his Golding claims.

A

The plaintiff first claims that the court’s interpretation of § 52-190a unreasonably restricted his common-law right to pursue a judicial remedy for medical negligence, in violation of the open courts provision of article first, § 10, of the constitution of Connecticut. We agree that his claim is subject to review under Golding because it satisfies the first two prongs in that it raises a constitutional claim involving a fundamental right and the record is adequate for review. We conclude, however, that the plaintiffs claim fails to satisfy the third prong of Golding because the alleged constitutional violation does not exist.

Article first, § 10, provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” Article first, § 10, has been viewed as a limitation on the legislature’s ability to abolish common-law and statutory rights that existed in 1818. Golden v. Johnson Memorial Hospital, Inc., 66 Conn. App. 518, 534, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001). “Reasonable conditions on a cause of action do not amount to a violation of the constitution. ... A strict and inflexible interpretation of article first, § 10, could affect the legislature’s ability to pass, enact and repeal laws. Such an encumbrance upon the legislature would freeze common law rights in perpetuity.” (Citation omitted; internal quotation marks omitted.) Sanborn v. Greenwald, 39 Conn. App. 289, 304, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995).

In both Golden and Sanborn, the challenges centered on statutes of limitation, and this court concluded that, although the relevant statutes did limit a common-law right that existed in 1818, they did not restrict or abridge the cause of action because they merely established the time period within which the plaintiff could assert that right. Id., 301; Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn. App. 536.

In the present case, the statute in question does not abolish the ability to bring a medical negligence case. The plaintiff in no way is deprived of his right to legal recourse. He merely is required to document, by means of a letter from a similar health care provider, that there is evidence to support such a claim before bringing suit. There is nothing onerous or insurmountable about this requirement. The common-law right that the plaintiff claims was abridged by the application of § 52-190a is the right to bring a medical negligence action against the defendant. Section 52-190a restricts the right to bring an action for medical negligence only to the extent that it restricts claims that are unsubstantiated and without a good faith basis. Like the statutes of limitation at issue in Sanborn and Golden, § 52-190a is merely a procedural limitation that neither eliminates nor unreasonably burdens the plaintiffs right to legal recourse.

B

The plaintiff next claims that the court’s interpretation of § 52-190a resulted in an arbitrary and irrational dismissal of the plaintiffs medical negligence action, without due process of law, in violation of the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. We again agree that this claim is subject to review because it satisfies the first two prongs of Golding. As with the plaintiffs first claim, however, this claim fails to satisfy the third prong of Golding because the alleged constitutional violation does not exist.

Although the plaintiff does not specify whether his due process claim is procedural or substantive, we construe it as substantive. The analytical framework for reviewing substantive due process claims is well established. In areas of social and economic policy, legislative classifications that are not drawn along suspect lines and that do not burden fundamental rights are reviewed under the deferential rational basis standard. See Keane v. Fischetti, 300 Conn. 395, 406, 13 A.3d 1089 (2011). The plaintiff does not contend that the statute in question burdens any fundamental rights or is drawn along suspect lines. Thus, the appropriate standard of review is rational basis.

We disagree with the plaintiff that there is no rational basis for § 52-190a. “Under rational basis review, the [e]qual [protection [c]lause is satisfied [as] long as there is a plausible policy reason for the classification . . . the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decision maker . . . and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational . . . .” (Internal quotation marks omitted.) Id.; see also Ramos v. Vernon, 254 Conn. 799, 829, 761 A.2d 705 (2000).

Our Supreme Court in Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 12 A.3d 865 (2011), recently considered the purposes underlying § 52-190a and the 2005 amendments to that statute. As discussed in Bennett, the proposes of the original version of § 52-190a were to discourage the filing of baseless lawsuits against health care providers and to prevent meritless medical malpractice actions. Id., 18. The requirement that the initial complaint include an opinion letter from a similar health care provider was added in 2005 “in order to help [e]nsure that there is a reasonable basis for filing a medical malpractice case under the circumstances and . . . eliminate some of the more questionable or meritless cases filed under the present statutory scheme.” (Internal quotation marks omitted.) Id., 20.

Furthermore, the legislative history of the 2005 amendment illustrates that it was targeted at combating the problem that “some attorneys, either intentionally or innocently, were misrepresenting in the certificate of good faith the information that they had obtained from [medical] experts.” (Internal quotation marks omitted.) Id., 19; see also 48 H.R. Proc., Pt. 31, 2005 Sess., p. 9469, remarks of Representative Christel H. Truglia (“good faith requirement[s] [have] done little to address the escalating cost of medical liability insurance because this has not been enforced”). The legislative history also highlights the serious issues facing the state regarding escalating insurance premiums within the state’s medical profession, and their impact on the quality and availability of medical care within the state. See 48 H.R. Proc., supra, p. 9470, remarks of Representative Robert M. Ward (noting that medical malpractice premiums were rising to level that was driving physicians from state). Thus, it is clear that the limitations put on medical malpractice actions by § 52-190a are reasonably related to the legitimate state interest of preventing frivolous or meritless medical malpractice claims.

C

Finally, the plaintiff claims that the court improperly dismissed the action on the basis of a perceived circumstantial defect in the plaintiffs pleadings in violation of § 52-123. The plaintiff cannot prevail on this unpreserved claim because it does not satisfy the second prong of Golding, in that such a claim does not implicate a fundamental constitutional right. State v. Golding, supra, 213 Conn. 240 (“[p]atently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label”). Moreover, the plaintiff has not provided this court with any analysis of the alleged constitutional claim that he has raised, and we will not manufacture such an analysis on his behalf. The plaintiffs only mention of a constitutional right in connection with this particular claim is a brief reference in a footnote.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claimed that the court improperly concluded that the plain language of § 52-190a (c) required the dismissal of the plaintiffs action. The plaintiff abandoned this claim at oral argument in this court, in acknowledgment of our Supreme Court’s ruling in Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 26, 12 A.3d 865 (2011) (§ 52-190a [c] requires dismissal of medical malpractice complaints that are not supported by opinion letters authored by similar health care providers).

       General Statutes § 52-190a (a) provides in relevant part that before filing a personal injury action against a health care provider, a potential plaintiff 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 . . .’’In order to show said good faith, the complaint must be accompanied by a written and signed opinion of a similar health care provider stating that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.
      General Statutes § 52-184c (c) provides in relevant part that “[i]f 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 . . . .”

       Practice Book § 67-10 provides in relevant part: “When pertinent and significant authorities come to the attention of a party after the party’s brief has been filed ... a party may promptly advise the appellate clerk of such supplemental authorities, by letter, with a copy certified to all counsel of record . . . .”

       We note that the challenge in the plaintiffs supplemental brief pertains only to Verghese and not to the hospital. The plaintiff does not contend that the hospital’s motion to dismiss was untimely.

       Practice Book § 63-2 provides in relevant part: “In determining the last day for filing any papers, the last day shall, and the first day shall not, be counted. Time shall be counted by calendar, not working, days. . .

       In the plaintiffs brief, he intimates that the requirements of § 52-190a equate to a heightened pleading standard and require the plaintiff to prove the substance of the action in his pleadings. This argument is misguided, however, because § 52-190a does not require that the plaintiff prove any of the elements of his action, only that he illustrate through the opinion letter that there is a good faith belief that grounds exist for the action.

       As originally enacted, § 52-190a (a) required “the plaintiff in any medical malpractice action to conduct ‘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 [plaintiff]’ and to file a certificate ‘that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant.’ . . . The original statute did not require the plaintiff to obtain the written opinion of a similar health care provider that there appeared to be evidence of medical negligence, but permitted the plaintiff to rely on such an opinion to support his good faith belief.” (Citation omitted.) Dias v. Grady, 292 Conn. 350, 357, 972 A.2d 715 (2009).

       General Statutes § 52-123 provides: “No writ, pleading, judgment or any land of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”


author: ROBINSON, J.

text:
    BLUMBERG ASSOCIATES WORLDWIDE, INC. v. BROWN AND BROWN OF CONNECTICUT, INC., ET AL.
    (AC 32539)
    Bishop, Robinson and Espinosa, Js.

      Argued May 23
    officially released November 15, 2011

      Daniel J. Klau, with whom was Harold James Pickerstein, for the appellant (plaintiff).

      John M. Tanski, with whom, on the brief, were William M. Rubenstein, Denise V. Zamore and Mark D. Alexander, for the appellees (defendants).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ROBINSON, J.

The plaintiff, Blumberg Associates Worldwide, Inc., appeals from the summary judgment rendered by the trial court in favor of the defendants, Brown & Brown of Connecticut, Inc. (Brown & Brown), and Brown & Brown, Inc. (parent company). On appeal, the plaintiff claims that (1) summary judgment was improper because there are genuine issues of material fact as to (a) whether certain conduct of Brown & Brown constituted a prevention of performance and (b) whether the defendants waived their right to enforce a provision in the parties’ contract that required any waiver of a provision of the contract to be in writing; (2) the court interpreted the complaint too narrowly and, therefore, improperly declined to consider whether an issue of material fact existed as to whether Brown & Brown had breached the contract in bad faith; and (3) the court abused its discretion in refusing to allow the plaintiff to amend its complaint after the defendants’ motion for summary judgment had been granted. We affirm the judgment of the trial court.

Viewed in the light most favorable to the plaintiff; see, e.g., Martinelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009); the pleadings, affidavits and other proof submitted reveal the following facts and procedural history. On July 19, 2006, the plaintiff and the defendants entered into a written contract entitled the “Subway Program Agreement.” According to the contract, the plaintiff made introductions and facilitated communications that were instrumental in leading to Brown & Brown being designated as a gold standard insurance agent by Doctor’s Associates, Inc. As a result of that designation, Brown & Brown was able to offer certain insurance services to Subway restaurant franchises. As consideration for the plaintiffs facilitation services, Brown & Brown agreed to pay to the plaintiff a percentage of the commissions and fees that it received from selling insurance services to Subway restaurant franchisees.

By letter dated February 26, 2008, the defendants notified the plaintiff that they were terminating the contract. The letter stated that Brown & Brown was entitled to terminate the contract for cause pursuant to § 4 (b) (i) (B) of the contract upon “the loss or suspension of [the plaintiffs] resident insurance license in its state of domicile, if such loss or suspension is not cured within ninety (90) days of such loss or suspension . . . .” The letter went on to state that cause existed to terminate the contract pursuant to § 4 (b) (i) (B) because the plaintiffs license in the state of Connecticut, its domicile, had been “canceled on January 31, 2006,” and the “loss . . . [had] not [been] cured within 90 days of that event.”

The plaintiff commenced the present action by way of a five count complaint filed on October 10, 2008. In the complaint, the plaintiff alleged: (1) breach of contract against Brown & Brown in count one; (2) unjust enrichment against Brown & Brown in count two; (3) quantum meruit against Brown & Brown in count three; (4) violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., against Brown & Brown in count four; and (5) breach of guaranty against the parent company in count five. On January 22, 2009, the defendants filed a motion to strike all five counts of the complaint, which the court granted as to count four, but denied as to the remaining counts.

On January 29, 2010, the defendants filed a motion for summary judgment with respect to counts one, two, three and five of the plaintiffs complaint. The court issued a memorandum of decision granting the motion. After the court issued its decision, the plaintiff filed a motion to open the judgment in order to amend its complaint to include a claim for breach of the implied covenant of good faith and fair dealing (implied covenant), which the court denied. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that summary judgment was improper because there are genuine issues of material fact as to (1) whether certain conduct of Brown & Brown constituted a prevention of performance that excused the plaintiffs failure to maintain its insurance license and (2) whether the defendants waived their right to enforce a provision of the contract that required any waiver of a contract provision to be in writing.

The applicable standard of review is well settled. “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. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts. . . . Our review of the trial court’s decision to grant the [defendants’] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Allstate Life Ins. Co. v. BFA Ltd. Partnership, 287 Conn. 307, 312, 948 A.2d 318 (2008).

A

The plaintiff first contends that there is a genuine issue of material fact as to whether certain conduct of Brown & Brown constituted a prevention of performance. We disagree and conclude that the court properly determined that the plaintiffs reliance on the doctrine of prevention as a defense to summary judgment fails as a matter of law, albeit on a basis different from the one relied on by the trial court.

The following additional facts are relevant to the plaintiffs claim. Prior to February, 2004, the plaintiff operated as an affiliate of Blumberg Associates, Inc., a company engaged in the insurance business in Connecticut and throughout the northeastern United States. The plaintiff had been created in 1998 for the purpose of pursuing a business opportunity as an insurance provider to Subway restaurant franchisees. During the development of this business opportunity, Blumberg Associates, Inc., used the plaintiff for a variety of other purposes, including selling insurance to customers in other states.

On or about February 1, 2004, the parent company purchased Blumberg Associates, Inc., pursuant to an asset purchase agreement. For the next two months, Blumberg Associates, Inc., continued to operate out of its business address at 433 South Main Street in West Hartford. Thereafter, the parent company transferred all of the assets it had acquired from Blumberg Associates, Inc., to 375 Willard Avenue in Newington, the business address of Brown & Brown. The insurance licensing files of the plaintiff were included among the assets physically transferred to 375 Willard Avenue.

On March 19, 2004, Arme F. Pinto, an employee of Brown & Brown and former employee of Blumberg Associates, Inc., submitted, on behalf of Brown & Brown, an application for an insurance license to the insurance department of the state of Connecticut (department). Along with the application, Pinto included a letter that requested that the department “change [their] records to reflect our new address” and then listed the address of 375 Willard Avenue in Newington. The letter was written on stationery with the letterhead of Blumberg Associates, Inc., and the plaintiff, and it did not identify specifically whose address should be changed on the department’s records. On June 23, 2004, the department changed the address in its records for both Blumberg Associates, Inc., and the plaintiff to 375 Willard Avenue in Newington.

Also in June, 2004, the plaintiff sought access to its licensing files that had been physically transferred to Brown & Brown. Brown & Brown denied having any licensing files belonging to the plaintiff. It also denied the plaintiffs request to conduct an inspection of its business office to locate the files.

In December, 2005, approximately two months prior to the expiration of the plaintiffs insurance license, the department mailed an insurance hcense renewal form (renewal notice) to the plaintiff at 375 WiUard Avenue in Newington. According to the records of the department, the renewal notice subsequently was returned to the department as unable to forward. On January 31, 2006, the plaintiffs Ucense expired.

In count one of the complaint, sounding in breach of contract, the plaintiff alleged that by failing to forward the renewal notice to the plaintiff, Brown & Brown breached the terms of paragraph ten of the party’s agreement “and caused the temporary suspension of the [plaintiffs] [license.” The plaintiff also alleged that the defendants breached the contract by terminating the agreement on grounds that did not amount to a material breach by the plaintiff or for cause as defined by the agreement, by failing to pay the plaintiff the agreed upon percentage of the commissions and fees and by failing to deliver related financial statements.

In seeking summary judgment, the defendants argued, inter alia, that the plaintiffs allegations of breach of contract failed as a matter of law because the undisputed facts established that Brown & Brown’s termination of the contract, and, consequently, its refusal to continue to provide financial information and to pay commissions to the plaintiff pursuant to the contract, was done in accordance with the contract’s clear and unambiguous termination clause. In addition to arguing that the plaintiff could present no evidence to support its claim that Brown & Brown had failed to forward the license renewal notice, Brown & Brown also argued that its alleged failure to forward the license renewal notice occurred many months before the parties entered into the contract, and, therefore, such action could not provide the basis for a breach of the agreement as alleged in the complaint.

In opposing the motion for summary judgment, the plaintiff claimed that there was a genuine issue of material fact as to whether the termination provision of the contract was enforceable. Specifically, the plaintiff argued that the court should deny summary judgment “based on the legal principle that if one prevents, hinders or obstructs the occurrence of a contractual condition, the condition is excused.” The plaintiff noted that disputed questions of fact remained as to whether the defendants had changed the plaintiffs business address with the department, deprived the plaintiff of access to its files and failed to forward important mail, including the renewal notice, and whether those actions prevented or hindered the plaintiff in maintaining its insurance license.

In its memorandum of decision, the court concluded that “since [the plaintiffs] license status was a matter of public record, as a matter of law, no conduct by Brown & Brown caused [the plaintiff] not to be able to know the status of its own license.” It was on the basis of that conclusion that the court rejected the plaintiffs prevention claim.

On appeal, the plaintiff claims that the court improperly decided that the plaintiffs claim of prevention of performance failed as a matter of law because the court erroneously concluded that the plaintiff was required to show that Brown & Brown’s actions were the sole cause of the plaintiffs failure to maintain its license. According to the plaintiff, it was not necessary for it to show that Brown & Brown’s actions had made it impossible for the plaintiff to maintain its license, and whether Brown & Brown’s actions amounted to prevention so as to excuse the lapse of the plaintiffs insurance license and constitute a breach was a question of fact to be decided by a trier of fact. In the plaintiffs view, the court should have denied the motion for summary judgment because a genuine issue of material fact existed as to whether Brown & Brown’s alleged actions amounted to prevention.

Following oral argument of the appeal, this court asked the parties sua sponte to submit simultaneous supplemental briefs addressing whether the plaintiffs claim of breach of contract based on Brown & Brown’s alleged failure to forward the renewal notice failed as a matter of law because the alleged conduct occurred prior to the date upon which the parties entered into the agreement. The plaintiff argued that whether a party can prevent or hinder the occurrence of a contractual condition by conduct occurring prior to the formation of the contract is an issue of first impression that should be resolved in favor of the plaintiff. The plaintiff cited to no case law in support of its contention that actions occurring prior to the formation of a contract can support a claim under the doctrine of prevention, but rather contended that “equitable principles should ultimately govern the disposition of this case.”

The doctrine of prevention is a well recognized principle of contract law. See 2 Restatement (Second), Contracts § 245 (1981); 13 S. Williston, Contracts (4th Ed. Lord 2000) § 39:3, p. 516. Under the doctrine, if a party to a contract “prevents, hinders, or renders impossible the occurrence of a condition precedent to his or her promise to perform, or to the performance of a return promise, [that party] is not relieved of the obligation to perform, and may not legally terminate the contract for nonperformance.” S. Wilhston, supra, § 39:3, pp. 517-18.

Both courts and commentators have noted that the doctrine of prevention is closely related to the implied covenant of good faith and fair dealing. See, e.g., In re Gulf Oil/Cities Service Tender Offer Litigation, 725 F. Sup. 712, 737 n.9 (S.D.N.Y. 1989) (“[t]he implied good faith rule and prevention doctrine are kindred precepts”), citing 3A A. Corbin, Contracts (Kaufman Sup. 1989) § 654D, pp. 931-32; M West, Inc. v. Oak Park Mall, L.L.C., 44 Kan. App. 2d 35, 54, 234 P.3d 833 (2010) (“prevention doctrine is substantially related to the implied covenant of good faith and fair dealing that is implicit in every contract”); 2 Restatement (Second), supra, § 245, comment (a) (“duty of good faith and fair dealing . . . may require . . . refraining from conduct that will prevent or hinder” the occurrence of condition to one’s own performance); 13 S. Williston, supra, § 39:6, pp. 530-31 (“principle of prevention is based on the implied agreement of the parties to a contract to proceed in good faith and ... to refrain from committing any willful act or omission that would interfere with the other party or prevent or make it impossible for the other party to perform”). As with the implied covenant of good faith and fair dealing, the duty imposed by the doctrine of prevention to refrain from actions that would prevent or hinder the performance of another party to the contract logically cannot exist until there is a contractual agreement between the parties.

Our Supreme Court has stated that a party cannot breach the implied covenant of good faith and fair dealing by conduct that occurred prior to the formation of the contract. Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 638, 804 A.2d 180 (2002) (“no claim for breach of the duty of good faith and fair dealing will lie for conduct occurring prior to, or during, the formation of a contract”). Because of the close relation between the doctrine of prevention and the implied covenant of good faith and fair dealing, we see no reason not to apply the same principle to a claim of breach arising under the doctrine of prevention. Accordingly, we conclude as a matter of law that a party seeking to invoke the doctrine of prevention, a principle of contract law, may not do so based on conduct that occurred before the existence of the contract. When a party engages in wrongful acts or omissions prior to entering into a contract or in negotiating a contract, the law provides an injured party with other means for recovering damages, including tort actions based on, inter alia, fraud or unlawful interference with business relations. The plaintiff chose not to raise such claims in its complaint.

In the present case, the plaintiffs claim of prevention of performance was based solely on the allegations that the defendants improperly changed the plaintiffs address with the department and failed to forward the renewal notice, which the plaintiff claimed was in breach of the defendant’s obligations under the contract. The conduct that the plaintiff claimed violates the contract, however, occurred before the parties entered into the contract. Because the parties had not yet entered into the contract at the time that Brown & Brown allegedly changed the plaintiffs address or failed to forward the renewal notice, it cannot be said that Brown & Brown’s conduct violated the doctrine of prevention. The obligation not to hinder the plaintiff in its performance of its contractual obligations did not exist at the time of its alleged actions. Accordingly, we conclude that the plaintiffs claim of prevention of performance fails as a matter of law and that the court properly rendered summary judgment as to that claim.

B

The plaintiff also claims that a genuine issue of material fact exists as to whether the defendants’ conduct amounted to a waiver of their right to enforce a provision in the contract that required any waiver of a provision of the contract to be in writing. In its memorandum of decision, the court declined to consider this issue on the grounds that the plaintiff had raised the issue for the first time during oral argument and had failed to cite any legal authority in support of its contention. Because the trial court properly exercised its discretion not to consider the issue, we decline to review it on appeal. See Alexander v. Tyson, 122 Conn. App. 493, 494 n.1, 999 A.2d 830 (declining to review issues “that were not considered or decided by the trial court”), cert. denied, 298 Conn. 928, 5 A.3d 488 (2010).

II

In rendering summary judgment in favor of the defendants, the court declined to consider whether an issue of material fact existed as to whether the defendants had terminated the contract in bad faith, concluding that the complaint did not allege that the defendants had terminated the contract in bad faith and, therefore, failed to include sufficient factual allegations to state a cause of action for breach of the implied covenant of good faith and fair dealing. The plaintiff claims that the court interpreted the complaint too narrowly, arguing that the allegations in count one, sounding in breach of contract, were sufficient to state a cause of action for breach of the implied covenant. According to the plaintiff, because the implied covenant is included as a term in every contract, a claim of breach of contract necessarily encompasses a claim for breach of the implied covenant. In its view, because it alleged that Brown & Brown had breached the contract, the court should have considered whether an issue of material fact existed as to whether Brown & Brown had terminated the agreement in bad faith, thus breaching the implied covenant and, in turn, the contract. We disagree.

“ [T]he interpretation of pleadings is always a question of law for the court .... Our review of the trial court’s interpretation of the pleadings therefore is plenary. . . . [T]he modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather then narrowly and technically. . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Internal quotation marks omitted.) Peterson v. Ocean Radiology Associates, P.C., 109 Conn. App. 275, 283, 951 A.2d 606 (2008), quoting Boone v. William W. Backus Hospital, 272 Conn. 551, 559-60, 864 A.2d 1 (2005).

Turning to the plaintiffs claim, “[i]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract .... In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party’s discretionary application or interpretation of a contract term.” (Internal quotation marks omitted.) Rafalko v. University of New Haven, 129 Conn. App. 44, 51, 19 A.3d 215 (2011), quoting De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432-33, 849 A.2d 382 (2004).

Although the covenant of good faith and fair dealing is implied in every contract, a plaintiff cannot state a claim for breach of the implied covenant simply by alleging a breach of the contract, in and of itself. See Landry v. Spitz, 102 Conn. App. 34, 43 n.6, 925 A.2d 334 (2007). Instead, to state a legally sufficient claim for breach of the implied covenant sounding in contract, the plaintiff must allege that the defendant acted in bad faith. See, e.g., id.; Miller v. Guimaraes, 78 Conn. App. 760, 773, 829 A.2d 422 (2003). If the plaintiff fails to set forth factual allegations that the defendant acted in bad faith, a claim for breach of the implied covenant will not he. See Keller v. Beckenstein, 117 Conn. App. 550, 564-65, 979 A.2d 1055 (plaintiffs failed to allege claim for breach of implied covenant of good faith and fair dealing where complaint did not set forth factual allegations of fraud, misrepresentation or improper motive on part of defendants), cert. denied, 294 Conn. 913, 983 A.2d 274 (2009); Fidelity Bank v. Krenisky, 72 Conn. App. 700, 719-21, 807 A.2d 968 (counterclaim for breach of implied covenant of good faith and fair dealing legally insufficient where defendants failed to allege factual allegations of bad faith), cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). Therefore, the plaintiffs argument that an allegation of breach of contract, in and of itself, is sufficient to state a claim for breach of the implied covenant is without merit.

We now consider whether count one of the complaint alleged sufficient factual allegations of bad faith to state a claim for breach of the implied covenant. “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.) Landry v. Spitz, supra, 102 Conn. App. 42-43.

Pursuant to our plenary review of the complaint, we conclude that count one of the complaint failed to allege factual allegations of bad faith. Count one of the complaint, entitled “Breach of Contract As Against Brown & Brown of Connecticut, Inc.,” alleges, inter alia, that Brown & Brown breached the agreement by: (1) terminating the agreement based on grounds that did “not constitute a material, actionable breach of the [agreement”; and (2) terminating the agreement without “ ‘[c]ause’ for termination as defined by the [ajgreement . . . .” The plaintiff, however, failed to set forth any factual allegations that Brown & Brown, in terminating the agreement, committed a fraud, sought to mislead or deceive the plaintiff, acted with an improper motive, or did so with a dishonest purpose. See Rafalko v. University of New Haven, supra, 129 Conn. App. 51. Thus, count one is totally devoid of any factual allegation that Brown & Brown acted in bad faith in terminating the agreement.

For those reasons, we conclude that the court properly declined to consider whether an issue of material fact existed as to whether the defendants had terminated the agreement in bad faith. See DeCorso v. Calderaro, 118 Conn. App. 617, 622, 985 A.2d 349 (2009) (“[t]he applicable rule regarding the material facts to be considered on a motion for summary judgment is that the facts at issue are those alleged in the pleadings” [internal quotation marks omitted]), cert. denied, 295 Conn. 919, 991 A.2d 564 (2010).

Ill

Finally, the plaintiff claims that the court abused its discretion in refusing to allow the plaintiff to amend its complaint after the defendants’ motion for summary judgment had been granted. “A trial court has wide discretion in granting or denying amendments to the pleadings. . . . The trial court’s refusal to allow a belated amendment to a pleading in response to the filing of a motion for summary judgment by the adverse party will be sustained unless there is clear evidence of an abuse of discretion. . . . Where, as here, the motion was filed after the court had already ruled in favor of the defendants] on [their] summary judgment motion, its action was clearly justified.” (Citations omitted; internal quotation marks omitted.) Collum v. Chapin, 40 Conn. App. 449, 453-54, 671 A.2d 1329 (1996); see also Shuster v. Buckley, 5 Conn. App. 473, 479, 500 A.2d 240 (1985). Therefore, we conclude that the trial court did not abuse its discretion in denying the plaintiffs motion to open the judgment to amend the complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       According to the contract, Subway restaurant franchisees are limited to purchasing certain insurance services from gold standard providers only.

       Upon receipt of the letter, the plaintiff took the necessary steps to reinstate its license, and the license was reinstated on May 15, 2008.

       When the plaintiff did not replead, the court rendered judgment in favor of the defendants on count four of the complaint.

       Along with the motion to open, the plaintiff also filed a motion to amend the complaint and a motion to reargue the granting of the defendants’ motion for summary judgment in light of the proposed amendment to the complaint, both of which the court denied. As the plaintiff concedes in its brief to this court, all three motions are “interlocking components of a single motion with a single objective: getting the trial court to consider the merits of [the plaintiffs] argument that the [defendants exercised their discretion to terminate the [contract] in bad faith.” Therefore, for purposes of this appeal, we consider the denial of all three motions.

       Brown & Brown needed the plaintiffs insurance licensing files because some of the insurance accounts that the parent company had acquired from Blumberg were written on the plaintiffs insurance licenses and it could take up to one year to have the accounts transferred to the insurance license of Brown & Brown.

       According to the evidence presented, the business address of the plaintiff at this time was 30 Forest Hills Drive in West Hartford. The plaintiff was unaware that its business address had been changed on the department’s records until after Brown & Brown terminated the contract.

       Sheila Sullivan, a representative of the department, stated that it was customary practice for the department to send a second notification, a notice of nonrenewal, to a licensee after the expiration of its insurance license. She could not say, however, whether a notice of nonrenewal had been sent to the plaintiff following the expiration of its license. She did state that if such a notification had been returned to the department, it would have been recorded in the department’s log book. Sullivan stated that no such entry of return had been made in the present case.

       Paragraph ten of the agreement provides in relevant part: “Each of the parties hereto shall . . . execute and deliver to the other parties such other instruments and documents ... as necessary to carry out, evidence and confirm the intended purposes of this [agreement.”

       Other than its termination of the contract, the only actions of Brown & Brown that the plaintiff specifically alleged in its complaint in support of its breach of contract claim were Brown & Brown’s changing of the plaintiffs address with the department and its failure to forward the plaintiffs insurance license renewal form to the plaintiff. On appeal, however, the plaintiff also claims that there are genuine issues of material fact as to whether Brown & Brown’s actions denying the plaintiff access to the plaintiffs insurance files in Brown & Brown’s possession and failing to forward other notices from the department amounted to prevention. Because the plaintiff did not allege that conduct in support of its breach of contract claim, the issue of whether such conduct amounted to a prevention of performance was not properly before the trial court in its consideration of the motion for summary judgment and will not be considered by this court. See DeCorso v. Calderaro, 118 Conn. App. 617, 622,985 A.2d 349 (2009) (“[t]he applicable rule regarding the material facts to be considered on a motion for summary judgment is that the facts at issue are those alleged in the pleadings” [internal quotation marks omitted]), cert. denied, 295 Conn. 919, 991 A.2d 564 (2010). We limit our consideration to those facts alleged in the complaint.

       Because we determine that Brown & Brown’s actions could not, as a matter of law, support the plaintiffs claim under the doctrine of prevention, it is unnecessary for us to address the plaintiffs claims that the court improperly placed the burden on the plaintiff to show that Brown & Brown’s actions had made it impossible for the plaintiff to maintain its license.

       Paragraph 11 (j) of the contract provides: “This [agreement may not be amended, or any provision waived, except by an instrument in writing signed on behalf of each of the parties.”

       Specifically, the plaintiff relies on paragraphs thirty-seven and thirty-eight of count one of the complaint, which allege: “37. The grounds cited by [the defendants] in the [l]etter as ‘[c]ause’ for terminating the [agreement do not constitute a material, actionable breach of the [agreement, and [the defendants] therefore [have] breached the [agreement.
      “38. The grounds cited by [the defendants] in the [l]etter as ‘[c]ause’ for terminating the [agreement do not constitute ‘[c]ause’ for termination as defined by the [ajgreement, and [the defendants] therefore [have] breached the [agreement.”

       In its brief, the plaintiff arguably raises an alternative claim that count one contained sufficient factual allegations of bad faith, notwithstanding its failure to use the words “bad faith.”


author: ALVORD, J.

text:
    YVONNE WIGHTMAN v. MICHAEL SPOSATO ET AL.
    (AC 31885)
    Gruendel, Alvord and Flynn, Js.

      Argued September 21
    officially released November 15, 2011

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

      Michael G. Rigg, with whom were Donna R. Zito and, on the brief, Stephen V. Manning, for the appellees (defendants).
   Opinion

ALVORD, J.

The plaintiff, Robert C. Ruggiero, Jr., administrator of the estate of Yvonne Wightman, appeals from the judgment of the trial court granting the motion to dismiss filed by the defendants, Michael Sposato, MidState Medical Center, MidState Medical Group, P.C., and MidState Medical Group Walk-in Center. On appeal, the plaintiff claims that the court improperly granted the defendants’ motion to dismiss based on General Statutes § 52-190a because the defendants filed the motion to dismiss out of the order of pleading required by Practice Book § 10-6, thereby waiving then-right to file the motion under Practice Book § 10-7. The plaintiff also claims that the court improperly found that the opinion letter attached to the complaint as required by § 52-190a was not sufficiently detailed and was not authored by a similar health care provider as defined in General Statutes § 52-184c. Because attachment of a good faith opinion letter pursuant to the terms of § 52-190a implicates service of process, and thus triggers personal jurisdiction, we conclude that, pursuant to Practice Book § 10-32, the defendants waived their right to file a motion to dismiss. Accordingly, we reverse the judgment of the trial court and need not address the plaintiffs other claims.

The following facts, as alleged in the complaint, and procedural history are relevant to the disposition of the plaintiffs appeal. The plaintiff, complaining of pain in her left ankle, availed herself of the medical services of MidState Medical Group Walk-in Center. Sposato, a physician’s assistant, examined the plaintiff and diagnosed her with gout, prescribing indomethacin for her condition. Sposato did not order further tests that may have ruled out other possible diagnoses, and he told the plaintiff that it was safe for her to walk on the painful ankle. It was later determined that the plaintiff had actually tom her Achilles tendon and should have avoided walking on the injured ankle. It is alleged that, based on the misdiagnosis and inappropriate treatment recommended by Sposato, the plaintiffs condition became chronic, gave her a limp, and required additional treatment that could have been avoided with early diagnosis.

The plaintiff filed her complaint on February 3, 2009, and attached a good faith certificate and an opinion letter from a board certified emergency medicine doctor finding evidence of negligence in the care that she received from the defendants. The authoring doctor had extensive experience as the medical director of the urgent care department of a major neighborhood health center. On February 10, 2009, the defendants filed a motion for extension of time to respond to the complaint, which was granted. On March 17,2009, the defendants filed a twenty-four page request to revise the complaint. On May 18, 2009, the defendants filed a motion to dismiss pursuant to General Statutes § 52-190a. On August 12, 2009, the plaintiff filed a motion to strike the defendants’ motion to dismiss. The plaintiff also filed an objection to the motion to dismiss on August 18, 2009.

A hearing on the motion to dismiss was held on August 17, 2009, during which the plaintiffs counsel argued that the defendants had waived their right to file a motion to dismiss because they had previously filed a request to revise the complaint, rendering their pleadings out of order under Practice Book § 10-6. The plaintiff stressed that it should be a disciplinary dismissal. The defendants argued that the motion to dismiss under § 52-190a is not subject to the order of pleadings rule set out in the rules of practice because this pleading is pursuant to a legislatively enacted remedy and thus supersedes the rules of practice.

In its memorandum of decision dated December 4, 2009, the court granted the defendants’ motion to dismiss. The court held that the defendants did not waive their right to file a motion to dismiss because a dismissal pursuant to § 52-190a (c) is not jurisdictional in nature. The court found that the opinion author was not a similar health care provider under § 52-184c (b). It further concluded that the opinion letter was not sufficiently detailed to comply with the requirements of § 52-190a. This appeal followed.

I

We first address the issue of reviewability. On appeal, the plaintiff argues that we may review her claim, i.e., that § 52-190a opinion letter defects implicate personal jurisdiction, because she distinctly argued before the trial court that Practice Book §§ 10-6 and 10-7 were applicable to the defendants’ motion to dismiss. The plaintiff claims further that her argument on appeal is merely an elaboration of her original argument before the trial court because, by arguing that the rules of practice applied to the motion to dismiss, she implicitly argued that the court’s personal jurisdiction was implicated. The defendants claim that the plaintiff did not raise the issue of personal jurisdiction at trial, but instead argued for a disciplinary dismissal, and, therefore, her personal jurisdiction claim is not reviewable. We agree with the plaintiff.

“The trial court appears to have understood and rejected [the arguments now presented on appeal] .... Under such circumstances, we cannot conclude that the plaintiff has ambushed the trial court by seeking reversal of an issue that he failed to raise at trial. . . . Although we are mindful that the plaintiff did not raise all of the theories that [he now raises on appeal] . . . those theories axe related to a single legal claim. . . . Indeed . . . there is substantial overlap between these theories under the case law. Therefore, the plaintiff has preserved this claim for review.” (Citations omitted.) Rowe v. Superior Court, 289 Conn. 649, 662-63, 960 A.2d 256 (2008); see also State v. Fernando A., 294 Conn. 1, 31 n.26, 981 A.2d 427 (2009).

The plaintiff relied on the rules of practice relating to a motion to dismiss. The underlying claim was one challenging the court’s personal jurisdiction. In response to the plaintiffs arguments regarding the rules of practice, the court specifically addressed the issue of personal jurisdiction in its memorandum of decision granting the defendants’ motion to dismiss, stating: “[a] motion to dismiss based on § 52-190a for failure to attach an opinion from a similar health care provider is not a ground explicitly stated in Practice Book § 10-32, and it is not jurisdictional.” While we appreciate the position of trial court judges and litigants in having to anticipate appellate decisions, there is no “ ‘trial by ambuscade’ ” here; Jones v. Connecticut Children’s Medical Center Faculty Practice Plan, 131 Conn. App. 415, 433, 28 A.3d 347 (2011); and the plaintiffs claim is reviewable.

II

The plaintiff next claims that the court improperly granted the defendants’ motion to dismiss because the defendants filed the motion to dismiss out of the order required by Practice Book § 10-6, thereby waiving their right to file the motion under Practice Book § 10-7. We agree.

Our Supreme Court recently determined that attaching an opinion letter that does not satisfy the requirements of § 52-190a is defective service of process, implicating personal jurisdiction. Morgan v. Hartford Hospital, 301 Conn. 388, 21 A.3d 451 (2011). It held: “[W]e conclude that, because the written opinion letter of a similar health care provider must be attached to the complaint in proper form, the failure to attach a proper written opinion letter pursuant to § 52-190a constitutes insufficient service of process and, therefore, Practice Book § 10-32 and its corresponding time and waiver rule applies by its very terms. Because we conclude that the absence of a proper written opinion letter is a matter of form, it implicates personal jurisdiction. It is in the nature of a pleading that must be attached to the complaint. Thus, we construe the term ‘process’ to include both the summons, the complaint, and any requisite attachments thereto.” Id., 402. Thus, Practice Book § § 10-6 and 10-30 are applicable to defendants seeking to dismiss actions based on a defective opinion letter under § 52-190a. Defendants failing to adhere to the requirements of these sections risk waiver of their right to file a motion to dismiss under Practice Book §§ 10-7 and 10-32. Id., 404.

Pursuant to Morgan, the defendants in the present case waived their right to file a motion to dismiss under Practice Book § 10-7 by filing their pleadings out of the order required by Practice Book § 10-6. The defendants filed a request to revise the complaint on March 17, 2009, two months before they filed their motion to dismiss. The defendants also waived their right to file a motion to dismiss under Morgan by failing to file the motion within thirty days as required by Practice Book §§ 10-32 and 10-30. “The Practice Book requirement that motions to dismiss be filed within thirty days of the filing of an appearance ensures that the parties will have an early resolution of the matter and will not have to expend large sums of money before being informed that the case is deficient, in some aspect, at the nineteenth hour.” Morgan v. Hartford Hospital, supra, 301 Conn. 403-404. The complaint was filed on February 3, 2009, and the motion to dismiss was not filed until May 18, 2009, meaning that more than three months passed between the filing of the complaint and the filing of the motion to dismiss. Accordingly, the defendants waived their right to file a motion to dismiss.

The judgment is reversed and the case is remanded with direction to deny the defendants’ motion to dismiss and for further proceedings according to law.

In this opinion the other judges concurred.

       The decedent, Yvonne Wightman, filed this action, but died after the case had been appealed to this court. The administrator of her estate, Robert C. Ruggiero, Jr., was substituted as the plaintiff. For clarity and convenience, we refer to the decedent as the plaintiff throughout this opinion.

       General Statutes § 52-190a provides in relevant part: “(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 party except for questioning the validity of the certificate. The claimant orthe 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. . . .
      “(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.”

       Practice Book § 10-6 provides in relevant part: “The order of pleading shall be as follows:
      “(1) The plaintiffs complaint.
      “(2) The defendant’s motion to dismiss the complaint.
      “(3) The defendant’s request to revise the complaint.
      “(4) The defendant’s motion to strike the complaint.
      “(5) The defendant’s answer (including any special defenses) to the complaint.
      “(6) The plaintiffs request to revise the defendant’s answer.
      “(7) The plaintiffs motion to strike the defendant’s answer.
      “(8) The plaintiffs reply to any special defenses.”

       Practice Book § 10-7 provides: “In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.”

       Practice Book § 10-32 provides: “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30.”

       Subsequent to the issuance of the trial court’s decision, we decided Wilcox v. Schwartz, 119 Conn. App. 808, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010). On March 29, 2010, the plaintiff filed a motion to open the judgment of dismissal pursuant to Practice Book § 17-4. The trial court scheduled argument on May 10,2010, and heard all parties on the issue of whether the opinion author had provided a sufficiently detailed basis in his letter. In a memorandum of decision dated June 9, 2010, the court denied the plaintiffs motion because it found that the opinion letter failed to address all of the allegations of negligence set forth in the complaint.

       Practice Book § 10-30 provides: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. Except in summary process matters, the motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the judicial authority otherwise directs. Any adverse party may, within ten days of the filing of the motion with the court, file a request for extension of time to respond to the motion. The clerk shall grant the request and cause the motion to appear on the short calendar not less than thirty days from the filing of the request.”