Heyward v. Judicial Dept. ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
THERESA D. S. HEYWARD ET AL. v. JUDICIAL
DEPARTMENT OF THE STATE
OF CONNECTICUT ET AL.
(AC 36582)
Keller, Prescott and Bishop, Js.
Argued April 15—officially released September 15, 2015
(Appeal from Superior Court, judicial district of
Hartford, Zemetis, J.)
Eddi Z. Zyko, for the appellants (plaintiffs).
Ann E. Lynch, assistant attorney general, with whom,
on the brief, was George Jepsen, attorney general, for
the appellees (defendants).
Opinion
PRESCOTT, J. In this action arising out of alleged
workplace discrimination, the plaintiffs, Theresa D. S.
Heyward and Kevin Heyward,1 appeal from the judg-
ment of the trial court granting a motion to dismiss
certain counts of the complaint against the defendants,
the Judicial Department of the state of Connecticut
(state) and Robert A. Axelrod, chief clerk for the judicial
district of New Haven at Meriden, and transferring
venue for the remainder of the action from the judicial
district of Waterbury to the judicial district of Hartford.
The dispositive issues on appeal are (1) whether the
court’s dismissal of only some of the counts brought
against the state was an appealable final judgment, (2)
whether the trial court properly dismissed all claims
against Axelrod, and (3) whether the trial court’s order
transferring venue was an immediately appealable final
judgment. For the reasons that follow, we conclude
that (1) the judgment dismissing some, but not all, of the
plaintiffs’ counts against the state was not an appealable
final judgment, (2) the plaintiffs have failed to ade-
quately brief and therefore have abandoned their claim
that the court improperly dismissed all claims against
Axelrod,2 and (3) the interlocutory order transferring
venue with respect to the remainder of the action was
not an appealable final judgment. Accordingly, we dis-
miss the appeal except as to that portion challenging
the judgment of dismissal as it relates to the counts
brought against Axelrod, and, as to that portion of the
appeal, we affirm the judgment of the court.
We begin by setting forth the following undisputed
facts and procedural history. Heyward, who is African-
American, was employed as an administrative clerk in
the clerk’s office for the Superior Court in Meriden. At
all relevant times, she was the only nonwhite employee
working in the Meriden clerk’s office.
On July 18, 2012, Heyward filed a complaint with
the Commission on Human Rights and Opportunities
(CHRO), alleging that she had been subjected to harass-
ment, discrimination and denied time off for medical
appointments due to her race and gender, and as retalia-
tion for engaging in protected activities. In her CHRO
complaint, Heyward named the state as the sole respon-
dent. She alleged that her supervisor, Axelrod, had sub-
jected her to a hostile work environment on the basis
of her sex and race, and that, although she had com-
plained to human resources, its investigation uncovered
no discrimination by Axelrod against her. Heyward
claimed that as a result of Axelrod’s discrimination and
the state’s failure to respond, she suffered ‘‘stress and
related harm.’’
On March 7, 2013, Heyward received a release of
jurisdiction letter from the CHRO, authorizing her to
bring an action in the Superior Court for the claims
alleged in her CHRO complaint. On August 8, 2013, the
plaintiffs filed a six count amended complaint against
the defendants. The first five counts were brought by
Heyward against both defendants, and alleged, respec-
tively, creation of a hostile work environment, race
based discrimination, disability discrimination, negli-
gent infliction of emotional distress, and defamation.3
Count six alleged a cause of action for loss of consor-
tium on behalf of Kevin Heyward against each
defendant.
The defendants moved to dismiss the amended com-
plaint on August 14, 2013, arguing that the court lacked
subject matter jurisdiction to hear the case for a number
of reasons. With respect to the state, the court granted
the motion to dismiss the counts sounding in negligent
infliction of emotional distress, defamation, and loss of
consortium—counts four, five, and six, respectively—
on the ground that they were barred by sovereign immu-
nity. The court also dismissed counts four, five, and six
against Axelrod on the basis of sovereign immunity,
concluding that Axelrod had been sued in his official
capacity only.4 The court dismissed all the remaining
counts against Axelrod as well as count three alleging
disability discrimination against the state for failure
to exhaust administrative remedies because Heyward
never alleged discrimination on the basis of a disability
in her CHRO complaint and also did not name Axelrod
as a respondent. The court then transferred the
remaining two counts against the state from the judicial
district of Waterbury to the judicial district of Hartford.
This appeal followed.
On April 15, 2015, during oral argument before this
court, we raised sua sponte the issue of whether a
final judgment had been rendered with respect to the
dismissal of certain counts against the state and, thus,
whether this court had subject matter jurisdiction over
that portion of the plaintiffs’ appeal. We ordered the
parties to submit simultaneous supplemental briefs
addressing that issue. Each side filed a supplemental
brief on April 24, 2015.
I
‘‘The lack of final judgment is a threshold question
that implicates the subject matter jurisdiction of this
court. . . . If there is no final judgment, we cannot
reach the merits of the appeal.’’ (Citation omitted.)
Southport Manor Convalescent Center, Inc. v. Kun-
drath, 41 Conn. App. 747, 748, 677 A.2d 977 (1996).
Accordingly, we first address whether the court’s deci-
sion granting the motion to dismiss, from which the
plaintiffs appeal, constitutes a final judgment. We con-
clude that the court’s decision constitutes a final judg-
ment with respect to the dismissal of the action as to
Axelrod, but not with respect to the state.
‘‘The jurisdiction of the appellate courts is restricted
to appeals from judgments that are final. General Stat-
utes §§ 51-197a and 52-263; Practice Book § [61-1]
. . . . The policy concerns underlying the final judg-
ment rule are to discourage piecemeal appeals and to
facilitate the speedy and orderly disposition of cases
at the trial court level. . . . The appellate courts have
a duty to dismiss, even on [their] own initiative, any
appeal that [they lack] jurisdiction to hear.’’ (Internal
quotation marks omitted.) Liberty Mutual Ins. Co. v.
Lone Star Industries, Inc., 290 Conn. 767, 793–94, 967
A.2d 1 (2009).
‘‘A judgment that disposes of only a part of a com-
plaint is not a final judgment . . . unless the partial
judgment disposes of all causes of action against a
particular party or parties; see Practice Book § 61-3; or
if the trial court makes a written determination regard-
ing the significance of the issues resolved by the judg-
ment and the chief justice or chief judge of the court
having appellate jurisdiction concurs. See Practice
Book § 61-4 (a).’’ (Internal quotation marks omitted.)
Tyler v. Tyler, 151 Conn. App. 98, 103, 93 A.3d 1179
(2014).
‘‘Alternatively, the courts may deem interlocutory
orders or rulings to have the attributes of a final judg-
ment if they fit within either of the two prongs of the
test set forth in State v. Curcio, 191 Conn. 27, 31, 463
A.2d 566 (1983). . . . Under Curcio, the landmark case
in the refinement of final judgment jurisprudence . . .
interlocutory orders are immediately appealable if the
order or ruling (1) terminates a separate and distinct
proceeding or (2) so concludes the rights of the parties
that further proceedings cannot affect them.’’ (Citations
omitted; internal quotation marks omitted.) Abreu v.
Leone, 291 Conn. 332, 338–39, 968 A.2d 385 (2009). ‘‘The
first prong of the Curcio test . . . requires that the
order being appealed from be severable from the central
cause of action so that the main action can proceed
independent of the ancillary proceeding. . . . If the
interlocutory ruling is merely a step along the road to
final judgment then it does not satisfy the first prong
of Curcio.’’ (Citations omitted; internal quotation marks
omitted.) Hartford Accident & Indemnity Co. v. Ace
American Reinsurance Co., 279 Conn. 220, 225–26, 901
A.2d 1164 (2006). ‘‘The second prong of the Curcio test
focuses on the nature of the right involved. It requires
the parties seeking to appeal to establish that the trial
court’s order threatens the preservation of a right
already secured to them and that that right will be
irretrievably lost and the [parties] irreparably harmed
unless they may immediately appeal. . . . Thus, a bald
assertion that [the appellant] will be irreparably harmed
if appellate review is delayed until final adjudication
. . . is insufficient to make an otherwise interlocutory
order a final judgment. One must make at least a color-
able claim that some recognized statutory or constitu-
tional right is at risk.’’ (Internal quotation marks
omitted.) Id., 226.
In the present case, the ruling from which the plain-
tiffs appeal was a partial judgment, because it did not
dispose of the entire complaint. With respect to Axel-
rod, the ruling constitutes a final judgment because it
disposed of all the counts asserted against him. See
Practice Book § 61-3.5 In contrast, the court’s ruling
disposed of only four of the six counts asserted against
the state. Claims one and two against the state were
not dismissed. Accordingly, under our rules of practice,
the plaintiffs could have appealed from the partial judg-
ment rendered in favor of the state only if the trial
court had made a written determination ‘‘that the issues
resolved by the judgment [were] of such significance
to the determination of the outcome of the case that
the delay incident to appeal would be justified’’ and the
chief judge subsequently had concurred. See Practice
Book § 61-4 (a). The trial court did not make such a
written determination in this case.
Further, neither prong of the test set forth in State
v. Curcio, supra, 191 Conn. 31, is satisfied here. First,
the court’s ruling did not terminate a separate and dis-
tinct proceeding but was merely a ‘‘step along the road’’
to a final and complete resolution of the plaintiffs’
action with respect to the state. Second, the plaintiffs
have not advanced any argument that the court’s deci-
sion jeopardizes a presently held statutory or constitu-
tional right absent an immediate appeal. See Sharon
Motor Lodge, Inc. v. Tai, 82 Conn. App. 148, 154, 842
A.2d 1140 (‘‘[t]o succeed under the second prong of
Curcio, the plaintiffs must make at least a colorable
claim that some recognized statutory or constitutional
right is at risk’’ [internal quotation marks omitted]),
cert. denied, 269 Conn. 908, 852 A.2d 738 (2004). Accord-
ingly, we dismiss for lack of subject matter jurisdiction
that portion of the plaintiffs’ appeal challenging the
court’s decision with respect to the state.
II
Having determined that the judgment of dismissal
was a final judgment with respect to the dismissal of
all counts brought against Axelrod, we turn to the plain-
tiffs’ claim that the court improperly granted the defen-
dants’ motion to dismiss those counts. Because the
plaintiffs have failed to adequately brief this claim, we
deem it abandoned and decline to review it.
‘‘[W]e are not required to review claims that are inade-
quately briefed. . . . We consistently have held that
[a]nalysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly. . . . [F]or this court judi-
ciously and efficiently to consider claims of error raised
on appeal . . . the parties must clearly and fully set
forth their arguments in their briefs. We do not reverse
the judgment of a trial court on the basis of challenges
to its rulings that have not been adequately briefed.
. . . The parties may not merely cite a legal principle
without analyzing the relationship between the facts of
the case and the law cited. . . . [A]ssignments of error
which are merely mentioned but not briefed beyond a
statement of the claim will be deemed abandoned and
will not be reviewed by this court.’’ (Internal quotation
marks omitted.) Paoletta v. Anchor Reef Club at Bran-
ford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert.
denied, 298 Conn. 931, 5 A.3d 491 (2010).
The trial court dismissed the three tort counts
brought against Axelrod on the ground that they were
barred by the doctrine of sovereign immunity. It further
dismissed the three discrimination counts on the
ground that Axelrod had not been named as a respon-
dent in Heyward’s CHRO complaint and, therefore, the
plaintiffs had failed to exhaust their administrative rem-
edies. In their brief, the plaintiffs assert that ‘‘Axelrod
can be sued,’’ but do not clearly set forth why they
believe the court’s decision to dismiss all counts against
him was improper. They provide no discussion or legal
analysis addressing either sovereign immunity or the
exhaustion of administrative remedies doctrine.
Rather, the entirety of their argument with respect
to this claim consists of a quotation to a footnote from
our Supreme Court’s decision in State v. AFSCME,
Council 4, Local 391, 309 Conn. 519, 530 n.8, 69 A.3d
927 (2013). In that case, the sole issue before the court
was whether there was a well-defined and dominant
public policy against sexual harassment in the work-
place, and, if so, whether an arbitrator’s decision to
reduce a termination of employment to a one year sus-
pension without pay violated that policy. The court
concluded that a public policy against sexual harass-
ment in the workplace did exist and, in the footnote
quoted by the plaintiffs, rejected the defendant’s argu-
ment that the policy applied only to employers, not
to employees. The plaintiffs fail to explain what legal
principle they believe can be gleaned from the quoted
language or how it has any applicability to the issues
before us in the present appeal, which do not involve
claims of sexual harassment or an arbitration award.
Because the plaintiffs have failed to adequately brief
any cognizable claim of error regarding the court’s dis-
missal of the counts directed at Axelrod, we deem the
claim abandoned.
III
The plaintiffs’ final claim on appeal is that the trial
court improperly transferred the remaining two counts
of the complaint against the state from the judicial
district of Waterbury to the judicial district of Hartford.
The defendants argue that the court’s order transferring
venue was not a final judgment, but a nonappealable
interlocutory order. We agree with the defendants.
As previously set forth in part I of this opinion, ‘‘[t]his
court’s jurisdiction is limited by statute to appeals from
final judgments; General Statutes §§ 51-197a, 52-263;
and accordingly we have no discretion to enlarge our
jurisdiction in abrogation of the final judgment rule.’’
(Internal quotation marks omitted.) In re Juvenile
Appeal (84-2), 1 Conn. App. 378, 380–81, 472 A.2d 795
(1984). ‘‘Practice Book § 12-1 permits a court to transfer
any matter from one judicial district court location to
another judicial district court location on its own
motion or on the granting of a motion of any of the
parties. Our Supreme Court has held that an order trans-
ferring a case from one court to another generally is
not appealable because the order does not conclude
the rights of the parties. Felletter v. Thompson, 133
Conn. 277, 281, 50 A.2d 81 (1946).’’ (Footnote omitted.)
In re Justin F., 116 Conn. App. 83, 105, 976 A.2d 707,
cert. dismissed, 292 Conn. 913, 973 A.2d 660, cert.
denied, 293 Conn. 914, 978 A.2d 1109 (2009), cert. denied
sub nom. Albright-Lazzari v. Connecticut, 559 U.S. 912,
130 S. Ct. 1298, 175 L. Ed. 2d 1087 (2010).
The court’s transfer order did not dispose of the
underlying action, and, therefore, was interlocutory in
nature. As previously explained, interlocutory orders
are immediately appealable only if the order or ruling
(1) terminates a separate and distinct proceeding, or
(2) so concludes the rights of the parties that further
proceedings cannot affect them. State v. Curcio, supra,
191 Conn. 31. The court’s order was rendered in the
course of the continuing civil litigation and, accordingly,
did not terminate a separate and distinct proceeding.
Further, as this court recognized in In re Justin F.,
supra, 116 Conn. App. 105, an order transferring a case
from one court to another does not, in and of itself,
conclude any recognized right of the parties. The plain-
tiffs, who did not file a reply brief responding to the
defendants’ final judgment argument, have failed to
identify any right irretrievably lost by the change of
venue. Because the court’s transfer order fails to satisfy
either prong of the Curcio test, the order is not immedi-
ately appealable, and we lack jurisdiction to consider
the merits of the plaintiffs’ claim challenging the change
of venue.
The appeal is dismissed except as to those claims
challenging the court’s granting of the motion to dismiss
all counts against Axelrod, and, as to those claims, the
judgment is affirmed.
In this opinion the other judges concurred.
1
Theresa Heyward is the primary plaintiff in this action; Kevin Heyward
is a plaintiff solely by virtue of a derivative claim for loss of consortium.
For convenience, we refer to Theresa Heyward individually by her last name
only, and, where necessary, we refer to Kevin Heyward individually by his
full name.
2
The plaintiffs, relying on our Supreme Court’s decision in Conboy v.
State, 292 Conn. 642, 653, 974 A.2d 669 (2009) (‘‘if the question of jurisdiction
is intertwined with the merits of the case, a court cannot resolve the jurisdic-
tional question without a hearing to evaluate those merits’’), also claim on
appeal that the court prematurely decided the motion to dismiss. Conboy,
however, is not applicable to the present case. It is well settled that adjudica-
tion on the merits of a motion to dismiss may be premature if there is an
unresolved dispute over jurisdictional facts. Id. In Conboy, for example,
there was an unresolved factual dispute regarding the motivations underlying
the termination of the plaintiffs’ employment. The Supreme Court held that
‘‘[b]ecause the applicability of the state’s jurisdictional argument turned on
a particular resolution of that factual dispute, the argument was raised
prematurely’’ and an evidentiary hearing to resolve the dispute was necessary
before the court could adjudicate the motion to dismiss. Id., 654. In the
present case, the plaintiffs have not demonstrated the existence of an analo-
gous factual dispute.
The present case is, in fact, much more analogous to Lawrence v. Weiner,
154 Conn. App. 592, 604, 106 A.3d 963, cert. denied, 315 Conn. 925, 109 A.3d
921 (2015), in which the plaintiff also argued that the trial court improperly
had granted a motion to dismiss and ‘‘that an evidentiary hearing remain[ed]
necessary because the question of jurisdiction [was] intertwined with the
merits of his claims.’’ We held that the principle set forth in Conboy v. State,
supra, 292 Conn. 653, ‘‘assumes . . . that the party claiming jurisdiction
has met his or her initial burden of alleging facts that, if true, would establish
the court’s jurisdiction. . . . In the present case, a hearing on the merits
would have been superfluous because the court had already assumed the
plaintiff’s allegations to be true and still concluded that they were insufficient
to establish that the court had jurisdiction over the plaintiff’s claims.’’ (Cita-
tion omitted.) Lawrence v. Weiner, supra, 605.
3
According to the complaint, Axelrod had made or had allowed others
to make several racially charged statements in Heyward’s presence. For
example, Axelrod allegedly told an African-American police officer that he
‘‘must be working hard’’ because he was ‘‘black.’’ Margaret Malia, Heyward’s
coworker, allegedly stated that she ‘‘did not believe in interracial relation-
ships . . . .’’ Heyward was also denied vacation time and medical leave
because of ‘‘operational need,’’ even though Axelrod routinely granted other
employees requests for time off. Axelrod yelled at Heyward in front of
coworkers and members of the public, and interrupted Heyward’s conversa-
tions, both during work and while she was on breaks, to discuss work-related
matters. Heyward felt that Axelrod showed Malia ‘‘preferential treatment’’ at
her expense. Axelrod placed a ‘‘defamatory, accusatory and baseless’’ e-mail
in Heyward’s personnel file. Heyward believed that the state did not do
enough to protect her from the favoritism that Axelrod showed other employ-
ees. Although human resources conducted an investigation into the alleged
discrimination by Axelrod in response to Heyward’s complaints, the investi-
gation failed to discover any discrimination.
4
The court further held that even if Axelrod had been sued in his individual
capacity, he had statutory immunity under General Statutes § 4-165.
5
Practice Book § 61-3 provides in relevant part: ‘‘A judgment disposing
of only a part of a complaint, counterclaim, or cross complaint is a final
judgment if that judgment disposes of all causes of action in that complaint,
counterclaim, or cross complaint brought by or against a particular party
or parties. . . .’’