Henderson v. State ( 2014 )

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DANIEL HENDERSON ET AL. v. STATE
OF CONNECTICUT ET AL.
(AC 34944)
Bear, Keller and Schaller, Js.*
Argued January 8—officially released July 1, 2014
(Appeal from Superior Court, judicial district of New
Haven, Blue, J. [motion to cite in]; A. Robinson, J.
[motion to dismiss; judgment].)
Daniel Henderson, self-represented, the appellant
(named plaintiff).
Steven R. Strom, assistant attorney general, with
whom were Stephen R. Finucane, certified legal intern,
and, on the brief, George Jepsen, attorney general, for
the appellees (named defendant et al.).
Opinion
KELLER, J. The self-represented plaintiff, Daniel
Henderson, appeals from the judgment of the trial court
dismissing his action against the defendants, the state
of Connecticut and Ilana Cathcart, a senior assistant
state’s attorney.1 The plaintiff commenced the underly-
ing action, which he frames as a breach of contract
claim, seeking declaratory and injunctive relief, includ-
ing, among other things, an order requiring the defen-
dants to allow an ‘‘adult business’’ to operate at an
establishment known as the ‘‘2041 Club’’ in Meriden.
On appeal, the plaintiff claims that the court improperly
concluded that (1) the state is immune from suit on
the basis of the doctrine of sovereign immunity, (2)
Cathcart is immune from suit on the basis of the doc-
trine of absolute prosecutorial immunity, and (3) the
action was barred by the prior pending action doctrine.
The plaintiff also claims that the court erred when it
failed to hold an evidentiary hearing prior to granting
the defendants’ motion to dismiss. The defendants
respond that the court properly dismissed the complaint
and that the plaintiff lacked standing to bring the under-
lying action. We conclude that the entire action is barred
by the doctrine of sovereign immunity and, accordingly,
we affirm the judgment of the court.2
The following facts and procedural history are rele-
vant to this appeal. The plaintiff in this action previously
was a defendant in a nuisance abatement action brought
by the state on April 30, 2009, relating to an adult busi-
ness known as the 2041 Club, of which he was one of
the primary owners and operators. See State v. Hender-
son, 140 Conn. App. 672, 60 A.3d 294 (2013); State v.
Henderson, Superior Court, judicial district of New
Haven at Meriden, Docket No. CV-09-4011479-S (July
30, 2009). In that action, the state alleged that the 2041
Club was being used for illegal activities, including pros-
titution, and that it constituted a public nuisance pursu-
ant to General Statutes § 19a-343. On September 10,
2009, the parties resolved the nuisance abatement
action through a stipulation for judgment, rendered by
the court, B. Fischer, J., in accordance with the parties’
written agreement of that date. The stipulated judgment
permitted the use of the property under certain
stated conditions.
The stipulated judgment provided that ‘‘[t]he business
known as ‘2041 Club’ located at 2041 North Broad
Street, Meriden, Connecticut, shall remain closed and
not reopen for business,’’ and that the plaintiff would
be barred from ‘‘owning, entering onto the subject prop-
erty or operating any business or profiting from any
business in any capacity at 2041 North Broad Street,
Meriden, Connecticut.’’ The stipulated judgment also
provided the terms by which the property could be
conveyed. Specifically, the 2041 Club could be conveyed
either by foreclosure or by warranty deed ‘‘to a good
faith purchaser for value, in an [arm’s-length] transac-
tion, who has been pre-approved by the Division of
Criminal Justice.’’ The future purchaser would be
required to comply with specific restrictions, to be
included in the transferring warranty deed as a restric-
tive covenant, including the prohibition of installing any
partitions that would obstruct visibility into areas where
certain specified acts of ‘‘adult-oriented entertainment’’
were to be performed. The stipulated judgment further
provided that the Superior Court for the judicial district
of New Haven at Meriden ‘‘shall retain jurisdiction of
this matter for the purpose of enforcing the terms of
the Judgment and for addressing any other matters
which may arise related to this action.’’ It also provided
that the parties would ‘‘waive, release, and forever dis-
charge and hold harmless the State of Connecticut and
the Office of the Chief State’s Attorney, or any agents
of the Office of the Chief State’s Attorney, from any
and all civil and criminal liability whatsoever for any
injuries, damages, claims or causes of action whatso-
ever, whether known or unknown, related to the investi-
gation of illegal activities at the [2041 Club], and the
subsequent civil prosecution brought against the
Defendants.’’3
The owners and operators of the 2041 Club, including
the plaintiff in this action, signed the stipulated judg-
ment, as did Cathcart, who signed on behalf of the state.
Neither the city nor any of its representatives was a
signatory to the stipulated judgment. On September 10,
2009, in the presence of the plaintiff, Cathcart thor-
oughly explained the terms of the stipulated judgment
before the trial court. When canvassed by the court,
the plaintiff stated that he had signed the stipulated
judgment, had sufficient time to review it, and fully
understood its terms and conditions. When asked
whether any part of Cathcart’s explanation of the stipu-
lated judgment did not correspond with his understand-
ing of its terms, he replied in the negative. He also
declined the opportunity to ask the court any questions
about the stipulated judgment.
Although the plaintiff’s operative complaint hardly
can be characterized as a model of clarity,4 we accept
the undisputed facts pleaded therein as true.5 The plain-
tiff appears to frame the underlying action as a breach
of contract claim, namely, the defendants’ alleged
breach of the stipulated judgment and of an additional
out-of-court oral agreement he allegedly entered into
with Cathcart and Meriden City Attorney Deborah
Moore. Specifically, the plaintiff appears to allege that
prior to appearing before the court, he and his brother,
David Henderson, met privately with Moore and Cathc-
art. They allegedly represented to the plaintiff that a
prospective purchaser of the property would be permit-
ted to open and operate an adult business at 2041 North
Broad Street in Meriden, subject only to the restrictions
concerning adult oriented entertainment set forth in
the written stipulated judgment, on the condition that
they preapproved the prospective purchaser. In support
of these allegations, the plaintiff submitted the affida-
vits of Donna McManus and Lori Touma. Touma
attested that on September 10, 2009, the day the court
entered the stipulated judgment, she overheard a con-
versation between the plaintiff, his brother and two
unidentified women at a coffee shop at the Meriden
Superior Court. She further attested that the conversa-
tion revolved around the sale of an adult business, and
when the plaintiff asked the women if he could repre-
sent that the property and the adult business were for
sale, one of the women responded, ‘‘yes,’’ so long as
they preapproved the purchaser. McManus similarly
averred to overhearing a conversation in which Moore
stated to the plaintiff that the 2041 Club could be sold
as an adult business on the condition that she preap-
proved the purchaser.
The plaintiff further alleges that, in reliance on the
stipulated judgment, the out-of-court oral agreement,
and his understanding that ‘‘[t]he Agreement was to
insure that ‘2041’ would be sold with its ‘Adult Usage’
and any future owner would maintain that right,’’ he
represented to Jess Daenekindt, a potential buyer and
coplaintiff in this underlying action, that he ‘‘would
maintain full rights to [2041 Club’s] adult usage,’’ includ-
ing the right to operate an adult business ‘‘under its
current zoning classification as a valid ‘non-conforming
adult use.’ ’’ Daenekindt then contacted Moore and
Cathcart, and stated his intent to purchase the property
and operate an adult business at that location. After an
investigation of Daenekindt ‘‘by the City of Meriden
and/or State of Connecticut, he was approved to pur-
chase and open an adult business at ‘2041.’ ’’ The city
then conducted a second investigation of Daenekindt
and, again, approved him to purchase the property.
Thereafter, on October 16, 2009, Daenekindt purchased
the property from the plaintiff under the belief that he
would be permitted to operate an adult business at
the location.
The plaintiff conveyed the property to Daenekindt
by warranty deed, which specified that the property is
subject to ‘‘[a]ny and all provisions of any municipal
ordinance or regulations, and any Federal, State or local
public or private laws, with special reference to the
provisions of any zoning rules and regulations govern-
ing the subject premises.’’ The warranty deed also
included a provision requiring the buyer to comply with
the restrictions relating to certain specified ‘‘adult-ori-
ented entertainment,’’ as required by the stipulated
judgment. The plaintiff alleges that after the sale of the
property, the defendants declared ‘‘2041’s valid non-
conforming adult usage [to be] illegal,’’ despite Moore’s
and Cathcart’s out-of-court oral agreement that a preap-
proved purchaser would be permitted to operate an
adult business on the premises. As a result of this decla-
ration, Daenekindt withheld payment on the sale of the
property and claimed that the plaintiff was liable to
him for damages arising from misrepresentations made
by the plaintiff regarding the legality of the adult usage
of the property.
The plaintiff commenced the underlying breach of
contract action through several amended complaints,
the first of which was filed on July 30, 2011, and the
most recent of which was filed on January 12, 2012. In
addition to naming the state as a defendant, the plain-
tiff’s complaint purports to sue Cathcart both individu-
ally and in her official capacity. The plaintiff sought,
among other things, an order requiring the defendants
to allow an adult business to operate at the property
and a declaration that the 2041 Club is ‘‘vested with
a [c]onstitutionally [p]rotected valid non-conforming
[a]dult usage right.’’6 On November 15, 2011, the defen-
dants filed a motion to dismiss the complaint, accompa-
nied by a memorandum of law in support of their
motion. In their motion and supporting memorandum
of law, the defendants argued that the plaintiff lacked
standing to bring the action because the plaintiff, having
conveyed the property by warranty deed to Daenekindt,
had no property interest in the 2041 Club, and because
the express terms of the stipulated agreement deprived
the plaintiff of standing. Additionally, the defendants
argued that both the state and Cathcart, whom they
maintained was being sued only in her official capacity
as a senior assistant state’s attorney, were protected
from suit by the doctrine of sovereign immunity. The
defendants’ final claim was that because the conduct
giving rise to this action was performed by Cathcart in
her official capacity, she was protected from suit under
the doctrine of absolute prosecutorial immunity.
The plaintiff requested an evidentiary hearing on the
motion to dismiss on December 30, 2011. The court,
however, did not rule on the motion, stating that if
‘‘testimony or evidence is required, it will be scheduled
at the hearing . . . .’’
The court held a hearing on the motion to dismiss on
June 27, 2012, where the plaintiff represented himself.7
Following argument, the court granted the defendants’
motion without issuing a memorandum of decision and
without holding an evidentiary hearing. The court’s
written order indicates the basis of its decision: ‘‘The
motion to dismiss of the State of Connecticut and defen-
dant Ilana Cathcart is granted for the following reasons.
First, the State of Connecticut is immune from prosecu-
tion pursuant to the sovereign immunity doctrine. Sec-
ond, defendant Cathcart is entitled to immunity under
the more limited prosecutorial immunity doctrine
because all of her alleged actions arose from her fulfill-
ment of her duty as a State’s Attorney for the State of
Connecticut. Third, the action is barred by the prior
pending action doctrine.’’ On July 25, 2012, pursuant to
Practice Book § 11-11, the plaintiff filed a motion to
reargue, which the court subsequently denied. This
appeal followed.8 Additional facts will be set forth as
necessary.
I
The plaintiff argues that the court improperly dis-
missed his claim for breach of contract against the
defendants on the ground that the state was immune
from suit pursuant to the sovereign immunity doctrine.
We disagree and conclude that both the state and Cathc-
art are entitled to the defense of sovereign immunity.
We begin with the well established standard of
review. ‘‘A motion to dismiss . . . properly attacks the
jurisdiction of the court, essentially asserting that the
plaintiff cannot as a matter of law and fact state a cause
of action that should be heard by the court. . . . A
motion to dismiss tests, inter alia, whether, on the face
of the record, the court is without jurisdiction. . . .
[O]ur review of the trial court’s ultimate legal conclu-
sion and resulting grant of the motion to dismiss will
be de novo.’’ (Internal quotation marks omitted.) State
v. Welwood, 258 Conn. 425, 433, 780 A.2d 924 (2001).
‘‘[T]he doctrine of sovereign immunity implicates sub-
ject matter jurisdiction and is therefore a basis for grant-
ing a motion to dismiss.’’ (Internal quotation marks
omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d
599 (2005).
‘‘We have long recognized the common-law principle
that the state cannot be sued without its consent. . . .
We have also recognized that because the state can act
only through its officers and agents, a suit against a
state officer [or agent] concerning a matter in which
the officer [or agent] represents the state is, in effect,
against the state. . . . Therefore, we have dealt with
such suits as if they were solely against the state and
have referred to the state as the defendant. . . . The
doctrine of sovereign immunity protects the state, not
only from ultimate liability for alleged wrongs, but also
from being required to litigate whether it is so liable.’’
(Citation omitted; internal quotation marks omitted.)
Tuchman v. State, 89 Conn. App. 745, 751, 878 A.2d
384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).
Likewise, ‘‘[t]he doctrine of sovereign immunity pro-
tects state officials and employees from lawsuits
resulting from the performance of their duty.’’ (Internal
quotation marks omitted.) Kenney v. Weaving, 123
Conn. App. 211, 215, 1 A.3d 1083 (2010).
In the present case, the plaintiff, in his complaint,
purports to sue Cathcart both in her official capacity
and in her individual capacity. The defendants, in con-
trast, assert that ‘‘[t]here is no question here that [Cathc-
art] was sued in her official capacity only,’’ and
therefore is immune from suit. ‘‘Whether a particular
action is one against the state is not determined solely
by referring to the parties of record. . . . If the plain-
tiff’s complaint reasonably may be construed to bring
claims against the defendants in their individual capaci-
ties, then sovereign immunity would not bar those
claims. . . . To determine whether an action is against
the state or against a defendant in his individual capac-
ity, we look to the four criteria established by our
Supreme Court in [Somers v. Hill, 143 Conn. 476, 479,
123 A.2d 468 (1956)] and as explained further in Spring
v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975). If
all four criteria are satisfied, the action is deemed to
be against the state and, therefore, is barred. . . . The
criteria are: (1) a state official has been sued; (2) the
suit concerns some matter in which that official repre-
sents the state; (3) the state is the real party against
whom relief is sought; and (4) the judgment, though
nominally against the official, will operate to control the
activities of the state or subject it to liability.’’ (Citations
omitted; internal quotation marks omitted.) Kenney v.
Weaving, supra, 123 Conn. App. 215–16; see also Sullins
v. Rodriguez, 281 Conn. 128, 136, 913 A.2d 415 (2007)
(‘‘test set forth in Spring . . . is an appropriate mecha-
nism . . . to determine the capacity in which the
named defendants are sued in actions asserting viola-
tions of state law’’).
The first criterion is satisfied because Cathcart is a
state official—a fact that is not in dispute. With respect
to the second criterion, the action against the defen-
dants stems from the nuisance abatement action in
which Cathcart represented the state. The plaintiff
alleges, essentially, that Cathcart knew or should have
known that, despite the representations she made to
the plaintiff, a future owner of the 2041 Club would
be precluded from operating an adult business at that
location. It is this alleged misrepresentation, delivered
in the course of her duties as a senior assistant state’s
attorney while negotiating a stipulated judgment to
thwart criminal activity, that lies at the root of the
plaintiff’s claim.9
The third criterion, which is that the state is the real
party in interest, also is satisfied. The damages sought
by the plaintiff are premised entirely on injuries alleged
to have been caused by Cathcart for performing or not
performing acts that are part of her official duties. The
plaintiff sought injunctive relief, having unequivocally
waived any claim to money damages at the hearing on
the motion to dismiss, and, thus, sought only an order
that the defendants permit an adult business to operate
at the premises in question. See footnote 6 of this opin-
ion. We are unaware how Cathcart, in her individual
capacity, could authorize the operation of an adult busi-
ness in light of the zoning regulations of the city, and
accordingly conclude that the state is the real party
against whom relief is sought because the authority
to regulate adult businesses is vested in governmental
entities, not private persons.
Finally, the fourth criterion is met because a judg-
ment against Cathcart, on the basis of allegations in
the complaint, would operate to control the activities
of the state. See Miller v. Egan, 265 Conn. 301, 311, 828
A.2d 549 (2003). Any judgment against the defendants
would impact the manner in which state officials prose-
cute public nuisance actions and negotiate stipulated
judgments.
In sum, because the criteria in Spring are satisfied,
we conclude that the plaintiff alleged claims against
Cathcart only in her official capacity, and the action
against her is, in effect, against the state. This conclu-
sion, however, does not end our inquiry, as it is possible
for the plaintiff to avoid the bar of the doctrine of
sovereign immunity by demonstrating that a recognized
exception to the doctrine applies.
‘‘Exceptions to [the sovereign immunity] doctrine are
few and narrowly construed under our jurisprudence.
. . . [T]he sovereign immunity enjoyed by the state is
not absolute.’’ (Citation omitted; internal quotation
marks omitted.) Columbia Air Services, Inc. v. Dept.
of Transportation, 293 Conn. 342, 349, 977 A.2d 636(2009). Our Supreme Court has held that a plaintiff
seeking to overcome the presumption of sovereign
immunity must show that ‘‘(1) the legislature, either
expressly or by force of a necessary implication, statu-
torily waived the state’s sovereign immunity . . . or
(2) in an action for declaratory or injunctive relief, the
state officer or officers against whom such relief is
sought acted in excess of statutory authority, or pursu-
ant to an unconstitutional statute.’’ (Citation omitted.)
Miller v. Egan, supra, 265 Conn. 314; see also Doe v.
Heintz, 204 Conn. 17, 31, 526 A.2d 1318 (1987) (‘‘[s]over-
eign immunity does not bar suits against state officials
acting in excess of their statutory authority or pursuant
to an unconstitutional statute’’). The plaintiff does not
argue, nor could he, that the legislature has waived
sovereign immunity so as to permit this action against
the state to proceed. Instead, because the plaintiff seeks
injunctive and declaratory relief—including an order
requiring the defendants to allow an ‘‘adult business’’
to operate at the 2041 Club, and a declaration that the
property is ‘‘vested with a constitutionally protected
valid non-conforming adult usage right’’—we look to the
second recognized exception to sovereign immunity.
‘‘[T]he practical and logical basis of the doctrine [of
sovereign immunity] is today recognized to rest . . .
on the hazard that the subjection of the state and federal
governments to private litigation might constitute a seri-
ous interference with the performance of their func-
tions and with their control over their respective
instrumentalities, funds, and property. . . . [A]dher-
ence to the doctrine of sovereign immunity does not
mean [however] that all suits against government offi-
cers, since they are in effect suits against the govern-
ment, must be barred . . . . In those cases in which
it is alleged that the defendant officer is proceeding
under an unconstitutional statute or in excess of [her]
statutory authority, the interest in the protection of the
plaintiff’s right to be free from the consequences of such
action outweighs the interest served by the sovereign
immunity doctrine. Moreover, the government cannot
justifiably claim interference with its functions when
the acts complained of are unconstitutional or unautho-
rized by statute. On the other hand, where no substantial
claim is made that the defendant officer is acting pursu-
ant to an unconstitutional enactment or in excess of
[her] statutory authority, the purpose of the sovereign
immunity doctrine requires dismissal of the suit for
want of jurisdiction.’’ (Internal quotation marks omit-
ted.) Gold v. Rowland, 296 Conn. 186, 212–13, 994 A.2d
106 (2010).
When asserting a claim that a state officer acted in
excess of his or her statutory authority, ‘‘the [plaintiff]
must do more than allege that the defendants’ conduct
was in excess of their statutory authority; [he] also
must allege or otherwise establish facts that reasonably
support those allegations. . . . In the absence of a
proper factual basis in the complaint to support the
applicability of these exceptions, the granting of a
motion to dismiss on sovereign immunity grounds is
proper.’’ (Citation omitted; internal quotation marks
omitted.) Tuchman v. State, supra, 89 Conn. App. 754.
The plaintiff’s operative complaint is barren of any alle-
gations that the defendants acted in excess of statutory
authority. The plaintiff alleges that the state, through
Cathcart, made representations to him that a preap-
proved future purchaser would be permitted to operate
the 2041 Club as an ‘‘adult business.’’ He further alleges
that after the sale of the property, the state, through
Cathcart, breached this agreement. The plaintiff’s com-
plaint, however, is devoid of any factual allegations that,
if proven, reasonably would support the conclusion that
Cathcart acted in excess of her statutory authority by
failing to authorize the operation of an adult business at
the 2041 Club. Indeed, we are unaware of what statutory
authority would permit Cathcart, in her capacity as
senior assistant state’s attorney, to authorize the opera-
tion of an adult business in light of the zoning regula-
tions of the city.
Further, the plaintiff’s allegations have not cited any
statutory authority that controls or limits the conduct
which he alleged to have occurred. Nor did the plaintiff
allege that Cathcart was acting pursuant to an unconsti-
tutional statute, or that she failed to act as mandated by
any particular statute. Although the plaintiff’s complaint
appears to make broad allegations that the defendants’
conduct violated his right to due process and equal
protection, guaranteed by, respectively, article first, § 8,
and article first, § 20, as amended by articles five and
twenty-one of the amendments to the constitution of
Connecticut, he failed to allege, either in his complaint
or in his appellate brief, that the defendants acted in
excess of their statutory authority or pursuant to an
unconstitutional statute.
Although in reviewing a motion to dismiss we must
construe the allegations of the complaint in the light
most favorable to the plaintiff, to survive the defense
of sovereign immunity the complaint must nevertheless
allege sufficient facts to support a finding of unconstitu-
tional or extrastatutory state action. ‘‘In the absence of
a proper factual basis in the complaint to support the
applicability of these exceptions, the granting of a
motion to dismiss on sovereign immunity grounds is
proper.’’ (Internal quotation marks omitted.) Columbia
Air Services, Inc. v. Dept. of Transportation, supra,
293 Conn. 350. On the basis of the foregoing, we con-
clude that the plaintiff failed to plead sufficiently that
the state, as represented by Cathcart in her official
capacity, acted in excess of statutory authority or pursu-
ant to an unconstitutional statute. Accordingly, we con-
clude that the court properly granted the defendants’
motion to dismiss on the ground of sovereign immunity.
II
The plaintiff also claims that the court improperly
failed to hold an evidentiary hearing prior to dismissing
the action, thereby denying him due process of law.
This claim is inadequately briefed, and accordingly, we
decline to afford it review.
‘‘Although we are solicitous of the rights of [self-
represented] litigants . . . [s]uch a litigant is bound by
the same rules . . . and procedure as those qualified
to practice law. . . . [W]e are not required to review
claims that are inadequately briefed. . . . We consis-
tently have held that [a]nalysis, rather than mere
abstract assertion, is required in order to avoid aban-
doning an issue by failure to brief the issue properly.
. . . As this court has observed, [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.’’ (Citation omitted;
internal quotation marks omitted.) Lynn v. Lynn, 145
Conn. App. 33, 38, 74 A.3d 506 (2013).
The portion of the plaintiff’s brief devoted to the need
for an evidentiary hearing consists of four sentences,
summarily stating that he was ‘‘entitled to’’ an eviden-
tiary hearing and making the broad assertion that the
court should have permitted him the opportunity to
present witnesses to testify before dismissing his
action. He has not, however, provided any legal analysis
in support of his claim or identified any disputed ques-
tions of fact that could have warranted an evidentiary
hearing before the court’s decision to grant the defen-
dants’ motion to dismiss. See Countrywide Home
Loans Servicing, LP v. Creed, 145 Conn. App. 38, 47,
75 A.3d 38 (‘‘where a jurisdictional determination is not
dependent on the resolution of a meaningful factual
dispute, there is no requirement that the court conduct
a fact-based hearing’’), cert. denied, 310 Conn. 936, 79
A.3d 889 (2013). On the basis of the plaintiff’s inade-
quate briefing of the issue, we deem this claim aban-
doned and decline to afford it review.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Daniel Henderson’s brother, David Henderson, and Jess Daenekindt were
coplaintiffs in the underlying action, but are not parties to this appeal.
Accordingly, all references to the plaintiff throughout this opinion are to
Daniel Henderson. The operative complaint—the third amended complaint
dated January 12, 2012—also named the city of Meriden and City Attorney
Deborah Moore as defendants. The judgment from which the plaintiff appeals
was rendered solely in favor of the state and Cathcart. Because they are
the only defendants involved in this appeal, we therefore refer to them as
the defendants.
2
In light of our dispositive conclusion that the claims against both the
state and Cathcart are barred by the doctrine of sovereign immunity, we
need not address the remaining claims concerning standing, prosecutorial
immunity, or the prior pending action doctrine.
3
The stipulated judgment also included a provision that stated: ‘‘In the
event that a term or terms of this Stipulation conflict with current or future
statutes, ordinances, zoning and licensing laws of the State of Connecticut
and/or the City of Meriden, the conflicting term or terms shall be superseded
by that statute, ordinance, zoning or licensing law.’’ This provision, however,
was crossed out in the signed copy of the stipulated judgment.
4
For example, the complaint contains a ‘‘First Cause of Action,’’ apparently
directed against all of the defendants, and a ‘‘Second Cause of Action,’’
apparently directed solely against Cathcart. The ‘‘First Cause of Action’’
alleges violations of due process, equal protection, and ‘‘DEPRIVATION and/
or INJURY done to each separate Plaintiff, in their person, property, and
or property rights . . . .’’ It then, under the subtitle ‘‘torts,’’ lists the follow-
ing counts: (1) breach of contract; (2) breach of fiduciary duty; (3) legal
malpractice; (4) illegal confiscation of property; (5) intentional infliction of
emotional distress; (6) negligent infliction of emotional distress; (7) inten-
tional interference with a beneficial contractual relationship; (8) negligent
interference with a beneficial contractual relationship; (9) fraudulent misrep-
resentation; (10) intentional concealment of facts; and (11) violation of equal
rights and privileges pursuant to General Statutes § 52-571a. The ‘‘Second
Cause of Action’’ alleges that Cathcart is liable to him because she ‘‘violate[d]
clearly established statutory, Common-Law, and/or Constitutional Rights,’’
including those set forth in the ‘‘First Cause of Action.’’
5
‘‘Because we review the trial court’s decision to grant a motion to dismiss,
we take the facts to be those alleged in the complaint, including those facts
necessarily implied from the allegations, construing them in a manner most
favorable to the pleader. . . . [A] motion to dismiss admits all facts well
pleaded and invokes any record that accompanies the motion, including
supporting affidavits that contain undisputed facts.’’ (Citation omitted; inter-
nal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 108–109, 967
A.2d 495 (2009).
6
Originally, the plaintiff also sought money damages. He unequivocally
waived any such claim, however, at the hearing on the motion to dismiss.
7
Although not raised in the motion to dismiss, the assistant attorney
general argued at the hearing that the court lacked jurisdiction over the
state due to improper service of process because the plaintiff, having only
served Cathcart at the Office of the Chief State’s Attorney in Rocky Hill,
failed to comply with the requirements of General Statutes § 52-64. The
court did not rule on this issue and it is not at issue on appeal.
Additionally, the issue of whether the plaintiff’s action was barred by the
prior pending action doctrine was addressed at the hearing on the motion
to dismiss, although it was not raised in the defendants’ memorandum of
law. At the hearing, the plaintiff himself first raised the prior pending action
doctrine in reference to an action in the judicial district of New Haven at
Meriden. In that action, the plaintiff had filed a motion to enforce the
stipulated judgment against the city. See State v. Henderson, supra, 140
Conn. App. 675–76. On July 14, 2011, the court denied the motion without
a written decision, noting only that the plaintiff ‘‘had no standing to pursue
such a motion . . . .’’ Id., 675. The plaintiff subsequently appealed to this
court, but at the time of the hearing on the defendants’ motion to dismiss,
this court had not yet rendered a decision on the appeal. This court ultimately
upheld the denial of the motion, noting that ‘‘[t]he record does not substanti-
ate the defendant’s present allegation that the city was in any way bound
by the terms of the stipulated judgment between the state and [Daniel
Henderson and David Henderson].’’ Id. This court also noted that the city
did not formally appear at the hearing at which the stipulated judgment
was entered, there was no reference to the city in the transcript of that
hearing, and the judge at the hearing ‘‘meticulously canvassed the parties
that had agreed to be bound by the stipulated judgment,’’ but never canvassed
the city. Id., 676.
8
The plaintiff withdrew the remaining action against the city and Moore
on March 11, 2013.
9
The plaintiff, in passing, argues that the actual breach of the stipulated
judgment and out-of-court oral agreement occurred several months after
the close of the nuisance abatement proceedings and the alleged breach
was not related to a pending action. As such, he maintains that Cathcart
acted beyond the scope of her official duties and, consequently, she was
not acting on behalf of the state. This argument is limited to two sentences
in his brief, unaccompanied by citation to relevant authority, analysis, or
requisite findings in the record, as the court never was asked to make any
such findings.