Traylor v. State

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SYLVESTER TRAYLOR v. STATE
OF CONNECTICUT ET AL.
(SC 19977)
Robinson, C. J., and Palmer, Kahn, Ecker and Stevens, Js.
Syllabus
The plaintiff sought, inter alia, a judgment declaring unconstitutional the
statute (§ 52-190a [a]) that requires a complaint sounding in medical
malpractice to be accompanied by a good faith certificate and a letter
authored by a similar health care provider opining that there appeared
to be evidence of medical negligence. In 2006, following the suicide of
his wife, the plaintiff had brought a medical malpractice action against
his wife’s treating psychiatrist, A, and his employer, C Co., but failed
to append to the complaint the good faith certificate and opinion letter
required by § 52-190a (a). Although the plaintiff subsequently obtained
an opinion letter and amended his complaint, the trial court dismissed
the counts of the amended complaint sounding in medical negligence
on the ground that the original complaint failed to comply with § 52-
190a (a). The trial court subsequently rendered judgment for A and C
Co. on the remaining counts. Thereafter, in 2011, the plaintiff com-
menced two additional actions against A and C Co., their telephone
answering service, T Co., and its owners, and other governmental offi-
cials, employees and entities, among others, in which he challenged the
dismissal of his medical malpractice action. Those actions, both of which
included the claim that § 52-190a is unconstitutional, ultimately were
resolved against the plaintiff. In 2016, the plaintiff, representing himself,
commenced the present action against A, C Co., T Co. and its owners,
the state, the Appellate Court, and five Superior Court judges. Thereafter,
the trial court granted A and C Co.’s motion for summary judgment on
the ground that the claims directed against them were barred by the
doctrine of res judicata, as the plaintiff previously had or could have
raised and litigated those claims in one of the 2011 actions. The trial
court granted the motion to dismiss filed by T Co. and its owners,
concluding that the plaintiff’s claims against them were barred by the
prior pending action doctrine, the plaintiff previously having raised those
claims in one of the 2011 actions. The trial court also granted the motion
to dismiss filed by the state, the Appellate Court and the Superior Court
judges, concluding, inter alia, that the plaintiff’s claims for declaratory
relief were barred by sovereign immunity and collateral estoppel, and
that the claims against the judges were barred by absolute judicial
immunity. Accordingly, the trial court rendered judgment for the defen-
dants, and the plaintiff appealed, claiming that § 52-190a is unconstitu-
tional because it imposes a financial burden and other obstacles on
plaintiffs seeking to bring medical malpractice claims and, therefore,
violated his rights to due process, equal protection, and access to the
courts. Held that this court could not review the plaintiff’s claim that
§ 52-190a is unconstitutional, as the plaintiff failed to address in his
brief to this court any of the issues that provided the basis for the trial
court’s resolution of the plaintiff’s action in favor of the defendants: the
plaintiff’s failure to challenge in his appellate brief the trial court’s
independent, alternative conclusions that the claims against the defen-
dants were barred by, inter alia, res judicata, collateral estoppel, and
the prior pending action doctrine operated as an abandonment of any
challenge to the trial court’s conclusions and thus effectively rendered
the appeal moot because, even if this court were to agree that § 52-190a
is unconstitutional, the trial court’s conclusions would stand; moreover,
the policy of this state’s courts to be solicitous of self-represented liti-
gants could not excuse the plaintiff’s complete failure to challenge in
his brief to this court the trial court’s threshold conclusions.
Argued December 13, 2018—officially released August 27, 2019
Procedural History
Action seeking a judgment declaring, inter alia, that a
certain medical malpractice statute is unconstitutional,
and for other relief, brought to the Superior Court in
the judicial district of Stamford-Norwalk, where the
case was transferred to the judicial district of Danbury
and then to the judicial district of Hartford, Complex
Litigation Docket; thereafter, the court, Moll, J., granted
the motions to dismiss filed by the named defendant
et al. and the motion for summary judgment filed by
defendant Bassam Awwa et al., and rendered judgment
thereon for the defendants, from which the plaintiff
appealed. Affirmed.
Sylvester Traylor, self-represented, the appellant
(plaintiff).
Jane R. Rosenberg, former solicitor general, with
whom, on the brief, was George Jepsen, former attorney
general, for the appellees (named defendant et al.).
William L. Stevens, for the appellees (defendant
Advanced Telemessaging, LLC, et al.)
Donald E. Leone, Jr., with whom, on the brief, was
Anthony D. Sutton, for the appellees (defendant Bas-
sam Awwa et al.)
Opinion
STEVENS, J. This appeal arises from the most recent
in a series of civil actions that the plaintiff, Sylvester
Traylor, has brought in state and federal court relating
to the suicide of his wife, Roberta Mae Traylor
(Roberta). The plaintiff, who is self-represented,
brought the present case against the defendants, who
are (1) the state of Connecticut, numerous current and
former Superior Court judges,1 and the Appellate Court
(state defendants); (2) Roberta’s treating psychiatrist,
Bassam Awwa, and his employer, Connecticut Behav-
ioral Health Associates, P.C. (Awwa defendants); and
(3) Robert Knowles and Neil Knowles, and their busi-
ness, Advanced Telemessaging (Knowles defendants).
The plaintiff now appeals2 from the judgment of the
trial court, Moll, J.,3 rendered in accordance with its
granting of the defendants’ motions to dismiss and for
summary judgment. On appeal, the plaintiff claims that
General Statutes § 52-190a,4 which requires a plaintiff to
append a good faith certificate and supporting opinion
letter to the complaint in cases of medical negligence,
is unconstitutional. Although the plaintiff fully briefed
his attack on the constitutionality of § 52-190a, we can-
not reach the merits of that claim because of his failure
to challenge the trial court’s threshold conclusions that
his claims against all of the defendants are barred by,
inter alia, the doctrines of res judicata and collateral
estoppel. Accordingly, we affirm the judgment of the
trial court.
The record reveals the following facts relevant to the
plaintiff’s claim on appeal,5 as pleaded in his complaint,6
and the complex procedural history of this case. Begin-
ning in 2002, Awwa and his employer, Connecticut
Behavioral Health Associates, P.C., provided psychiat-
ric treatment to Roberta. In 2002, the plaintiff attended
a treatment session with Roberta, at which time Awwa
became aware of her suicidal thoughts. In early 2004,
Awwa prescribed medication for Roberta to treat her
major depressive disorder, despite the existence of
manufacturers’ warnings that (1) the medications
should not be prescribed to anyone with suicidal
thoughts, (2) ‘‘the possibility of a suicide attempt is
inherent in depression and may persist until [a] signifi-
cant remission occurs,’’ and (3) ‘‘[c]lose supervision of
high risk patients should accompany initial drug ther-
apy.’’ Awwa changed Roberta’s medication on several
occasions during the period of time leading up to March
1, 2004. The plaintiff contacted the Awwa defendants
on nine different occasions to inform them that Roberta
was having adverse reactions to the medications that
Awwa had prescribed. Roberta also sent Awwa a letter
dated December 23, 2003, to that effect. Awwa did not
return the plaintiff’s telephone calls or otherwise indi-
cate that he appreciated the danger of the situation. On
March 1, 2004, Roberta tragically committed suicide.
On June 2, 2006, the plaintiff, acting as a self-repre-
sented party, filed a medical malpractice action in New
London Superior Court against the Awwa defendants in
his own name and as administrator of Roberta’s estate,
claiming wrongful death, medical malpractice, loss of
chance, and loss of consortium. See Traylor v. Awwa,
Superior Court, judicial district of New London, Docket
No. CV-XX-XXXXXXX-S (2006 action). At the time the plain-
tiff filed the complaint, he had not attached the certifi-
cate of good faith and written opinion of a similar health
care provider, which are required by § 52-190a. On July
27, 2006, the Awwa defendants moved to dismiss the
2006 action for lack of personal jurisdiction; the trial
court, Hon. D. Michael Hurley, judge trial referee,
denied that motion on December 14, 2006. Subse-
quently, on October 19, 2006, the plaintiff filed a certifi-
cate of good faith and supporting written opinion letter
authored by Howard Zonana, a professor of psychiatry
at Yale University School of Medicine, opining that there
was a good faith basis for the action.
On December 26, 2006, the plaintiff, now represented
by counsel, filed a request to amend the complaint pur-
suant to Practice Book § 10-60. On December 29, 2006,
the Awwa defendants objected to the request, and Judge
Hurley sustained their objection on January 16, 2007.
On January 8, 2007, the Awwa defendants moved to
dismiss the 2006 action, claiming that the complaint as
originally filed lacked the certificate of merit and writ-
ten opinion of a similar health care provider required by
§ 52-190a. Subsequently, on June 1, 2007, Judge Hurley
denied that motion to dismiss and thereafter issued
numerous discovery orders.
The Awwa defendants did not comply with Judge
Hurley’s discovery orders. Eventually, counsel for the
Awwa defendants stated in court that his clients had
destroyed all relevant medical and telephone records
that were within their exclusive possession and control,
despite their knowledge of their obligation to preserve
those records given a pending or impending civil action
dating back to Roberta’s death in March, 2004. Similarly,
the Knowles defendants, acting at the direction of the
Awwa defendants, destroyed relevant records in their
possession. The plaintiff and his expert witnesses never
had an opportunity to examine those records. Subse-
quently, the case was reassigned to Judge Thomas F.
Parker, judge trial referee, who the plaintiff later named
as a defendant in the present case. See footnote 5 of
this opinion.
On July 12, 2010, the plaintiff, represented by counsel,
filed an amended complaint that became the operative
complaint in the 2006 action, adding claims of spoliation
and violations of the Connecticut Unfair Trade Prac-
tices Act (CUTPA), General Statutes § 42-110a et seq.,
arising from the destruction of the records.7 On July
16, 2010, the Awwa defendants moved to dismiss the
amended complaint on the ground that the plaintiff’s
original June 1, 2006 complaint initiating the action
failed to comply with § 52-190a because the required
certificate of good faith and opinion letter had not been
attached. Judge Parker granted the Awwa defendants’
motion, concluding that, although Judge Hurley had
denied an earlier motion to dismiss filed by these defen-
dants, that denial preceded the Appellate Court’s deci-
sions in Rios v. CCMC Corp., 106 Conn. App. 810, 943
A.2d 544 (2008), and Votre v. County Obstetrics & Gyne-
cology Group, P.C., 113 Conn. App. 569, 966 A.2d 813,
cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).8 See
Traylor v. Awwa, Superior Court, judicial district of
New London, Docket No. CV-XX-XXXXXXX-S, 2010 WL
3584285, *3–4 (August 11, 2010). Relying on Rios and
Votre, Judge Parker concluded that the plaintiff’s failure
to obtain and file the written opinion letter required by
§ 52-190a (a) at the initiation of the 2006 action was
not remedied by the eventual filing of Zonana’s letter,
and that Judge Hurley’s ruling to the contrary was incon-
sistent with this appellate precedent. Id., *5.
Judge Parker next determined that Judge Hurley’s
earlier decision was not entitled to preclusive effect
under the doctrines of law of the case or collateral
estoppel. Id., *5–6. Judge Parker then concluded that
other specifications in the complaint against Connecti-
cut Behavioral Health Associates, P.C., were barred by
the statute of limitations in General Statutes § 52-555
(a). Id., *9–10. Accordingly, on August 11, 2010, Judge
Parker rendered judgment dismissing counts one
through six of the complaint in the 2006 action. Id., *10.
On August 27, 2010, the plaintiff appealed from the
judgment of dismissal to the Appellate Court under
docket number AC 32641; the Appellate Court subse-
quently granted the Awwa defendants’ motion to dis-
miss the appeal for lack of jurisdiction on January 5,
2011.9
In a subsequent memorandum of decision, Judge Par-
ker rendered judgment dismissing the two remaining
counts in the 2006 action, namely, spoliation and
CUTPA violations, concluding that the earlier dismissal
of the underlying medical malpractice claims for failure
to file a good faith certificate and opinion letter meant
that the defendants had rebutted the presumption that
the plaintiff could have prevailed on those claims in
the absence of the acts of spoliation. See Traylor v.
Awwa, Superior Court, judicial district of New London,
Docket No. CV-XX-XXXXXXX-S, 2011 WL 1025029, *9–10
(February 15, 2011). Accordingly, Judge Parker ren-
dered judgment for the defendants in the 2006 action.
Id., *10.
On February 23, 2011, the plaintiff, as a self-repre-
sented party, appealed from that judgment to this court
under docket number SC 18754; that appeal later was
transferred to the Appellate Court pursuant to Practice
Book § 65-4. The Appellate Court docketed the plain-
tiff’s appeal under docket number AC 33038, along with
another appeal, docket number AC 33039, which had
been filed by the plaintiff’s then attorney in this case
on behalf of the estate. The appeal in docket number
AC 33039 subsequently was withdrawn as derivative.
After the plaintiff’s counsel was granted leave to with-
draw from the case on June 30, 2011, the Awwa defen-
dants subsequently moved to dismiss the appeal for
lack of a justiciable controversy between the parties,
on the ground that the plaintiff’s claims were derivative
of those of the estate, with the estate’s appeal having
previously been dismissed.10 The Appellate Court
granted that motion to dismiss on December 16, 2011.
On December 29, 2011, the plaintiff filed a petition for
certification to appeal from that judgment of dismissal,
which this court denied on January 25, 2012. Traylor
v. Awwa, 303 Conn. 931, 36 A.3d 242 (2012).
In 2011, the plaintiff filed a new action in New London
Superior Court against the Awwa and Knowles defen-
dants, their attorneys and insurers, then Attorney Gen-
eral Richard Blumenthal, court officials, and several
New London prosecutors. Traylor v. Awwa, Superior
Court, judicial district of New London, Docket No. CV-
XX-XXXXXXX-S (first 2011 action). The first 2011 action,
which was later removed to federal court, included in
its fifteen count complaint a claim that § 52-190a vio-
lated the state and federal constitutions. See Traylor
v. Awwa, Docket No. 3:11CV00132 (AWT), 2014 WL
555358, *1 (D. Conn. February 10, 2014). In a series of
rulings, the plaintiff’s claims in the first 2011 action,
including his claim challenging the constitutionality of
§ 52-190a, were resolved against him.11
While the first 2011 action was pending, the plaintiff
instituted a second action in 2011, this time in the Hart-
ford judicial district under docket number CV-11-
5035895-S (second 2011 action). The complaint in the
second 2011 action also included the claim that § 52-
190a is unconstitutional, and all of the claims raised in
this complaint were resolved against the plaintiff.12 See
generally Traylor v. Gerratana, 148 Conn. App. 605, 88
A.3d 552, cert. denied, 312 Conn. 901, 91 A.3d 908, and
cert. denied, 312 Conn. 902, 112 A.3d 778, cert. denied,
U.S. , 135 S. Ct. 444, 190 L. Ed. 2d 336 (2014).
The plaintiff filed the present action in April, 2016,
in the Stamford-Norwalk judicial district, seeking
declaratory and injunctive relief, as well as damages in
excess of $15 million. The plaintiff’s lengthy complaint
pleaded claims for relief under six separate counts,
namely (1) violations of his constitutional rights to due
process and equal protection of the laws by the state
defendants in connection with their handling of his
previous actions, (2) fraudulent concealment by the
Awwa and Knowles defendants, (3) spoliation by the
Awwa and Knowles defendants, (4) violation of CUTPA
by Advanced Telemessaging and Connecticut Behav-
ioral Health Associates, P.C., (5) intentional infliction
of emotional distress by the Awwa and Knowles defen-
dants and Judge Parker, and (6) loss of consortium
as to the Awwa and Knowles defendants. The case
subsequently was transferred to the Danbury judicial
district, and later to the Complex Litigation Docket in
the judicial district of Hartford.
After the case was transferred to the Hartford Com-
plex Litigation Docket, the Awwa defendants moved
for summary judgment, and the Knowles defendants
and the state defendants each moved to dismiss the
amended complaint. The plaintiff did not oppose these
motions or appear at the February 6, 2017 hearing on
them.13
With respect to the Awwa defendants’ motion for
summary judgment, the trial court agreed with their
argument that they are entitled to judgment as a matter
of law under the doctrine of res judicata. After compar-
ing the complaints, the trial court concluded that res
judicata barred the plaintiff’s claims of fraudulent con-
cealment, CUTPA violations, and intentional infliction
of emotional distress because they previously had been
raised and litigated to conclusion in the first 2011 action.
The trial court concluded similarly with respect to the
plaintiff’s claim of loss of consortium because he had
an adequate opportunity to raise that claim in the first
2011 action. The trial court further determined that
the plaintiff could have challenged the lower courts’
conclusions on these issues by way of appealing the
first 2011 action. Accordingly, the trial court granted
the Awwa defendants’ motion for summary judgment.
The trial court addressed the state defendants’
motion to dismiss as follows. The trial court first
observed that the plaintiff’s complaint sought no mone-
tary damages against either the state, the Appellate
Court, or any individual state defendant in his or her
official capacity. The court further concluded that any
claim against any state defendant in his or her individual
capacity was, in effect, against the state and, therefore,
barred by sovereign immunity. See, e.g., Spring v. Con-
stantino, 168 Conn. 563, 568–69, 362 A.2d 871 (2012).
As to the plaintiff’s claims for declaratory and injunc-
tive relief against the state defendants, the trial court
concluded that these claims were barred by sovereign
immunity because the plaintiff failed to allege sufficient
facts showing that he had suffered a substantial viola-
tion of his constitutional rights or that the defendants
had acted in excess of their statutory authority.14 Specif-
ically, the trial court observed that these claims were
identical to those raised by the plaintiff in the second
2011 action, and the trial court relied on the Appellate
Court’s holding in that case that the plaintiff had not
sufficiently pleaded ‘‘a substantial claim that the state
or one of its officers [had] violated [his] constitutional
rights.’’ (Internal quotation marks omitted.) The trial
court reasoned that, in this context, the plaintiff’s claim
for declaratory relief was ‘‘barred on the independent
grounds of sovereign immunity and collateral estoppel.’’
The trial court also concluded that ‘‘the plaintiff [lacked]
standing to challenge the constitutionality of § 52-190a
because he, in fact, obtained the opinion letter required
by the statute.’’ The trial court next determined that
the plaintiff’s claims against the individual judges were
barred by absolute judicial immunity, and that his
claims were nonjusticiable to the extent that they
sought an order to overturn or reverse the decisions of
the Appellate Court or the Superior Court. Accordingly,
the trial court granted the state defendants’ motion
to dismiss.
Finally, the trial court granted the Knowles defen-
dants’ motion to dismiss. The trial court agreed with
their argument that the plaintiff’s spoliation and CUTPA
claims against them were barred by the prior pending
action doctrine because they also were raised in the
first 2011 action. The trial court determined that dis-
missal was warranted given that the actions are ‘‘virtu-
ally alike’’ and that the first 2011 action could have
provided the plaintiff with the same remedy, given that
‘‘the claims in the two actions so obviously overlap that
the plaintiff moved to consolidate the matters.’’
The trial court rendered judgment for all of the defen-
dants in accordance with its decisions on their motions
for summary judgment and dismissal. This appeal
followed.15
On appeal, the plaintiff has filed a brief claiming that
§ 52-190a is unconstitutional because the ‘‘certificate
of merit requirement burdens access to the courts by
imposing an expensive and unnecessary prerequisite to
having one’s day in court.’’ Arguing that access to the
courts is a fundamental right under both the state and
federal constitutions, the plaintiff contends that the cer-
tificate requirement ‘‘creates an improper and often
impossible obstacle to access to the courts,’’ citing
internal pressure from within the medical community
not to support plaintiffs in general, as well as the
expense of obtaining the relevant medical records and
hiring an appropriate expert to review them. In particu-
lar, the plaintiff relies heavily on a line of decisions
from the Oklahoma Supreme Court invalidating various
iterations of that state’s certificate of merit statute. See,
e.g., John v. Saint Francis Hospital, Inc., 405 P.3d 681,
691 (Okla. 2017); Wall v. Marouk, 302 P.3d 775, 778
(Okla. 2013); Zeier v. Zimmer, Inc., 152 P.3d 861, 874
(Okla. 2006). The plaintiff further argues that § 52-190a
violates his right to equal protection under the state
and federal constitutions.
In response, the defendants contend that review of
the merits of the plaintiff’s constitutional claims is pre-
cluded by his failure to brief challenges to the trial
court’s threshold conclusions that his claims in the pres-
ent case are barred by the doctrines of res judicata,
collateral estoppel, and sovereign and judicial immu-
nity, as well as the prior pending action doctrine. The
state defendants further argue that, other than his chal-
lenge to the constitutionality of § 52-190a, the defendant
has abandoned his other constitutional claims against
the state defendants challenging various actions taken
by the courts, and particularly Judge Parker, during the
handling of his cases, both on and off the bench. We
agree with the defendants and conclude that the plain-
tiff’s failure to brief a challenge to the trial court’s con-
clusions in its memoranda of decision abandons any
such challenge to those conclusions, in essence moot-
ing his constitutional attack on § 52-190a.
‘‘We repeatedly have stated that [w]e are not required
to review issues that have been improperly presented
to this court through an inadequate brief. . . . Analy-
sis, rather than mere abstract assertion, is required in
order to avoid abandoning an issue by failure to brief
the issue properly. . . . Where a claim is asserted in
the statement of issues but thereafter receives only
cursory attention in the brief without substantive dis-
cussion or citation of authorities, it is deemed to be
abandoned.’’ (Internal quotation marks omitted.) Con-
necticut Light & Power Co. v. Gilmore, 289 Conn. 88,
124, 956 A.2d 1145 (2008); see id., 124–25 (claim aban-
doned when party ‘‘devotes little more than a page of
her original and reply briefs combined to the discussion
of her claim, limiting her argument to the bare assertion
that she should not be held legally liable for offer of
judgment interest because she was not specifically
named in the offer and no unified offer was made to
all four defendants,’’ and cites one case ‘‘entirely unre-
lated to the issue on appeal’’).
In the present case, the plaintiff’s complete failure
to challenge what the trial court actually decided in its
memoranda of decision operates as an abandonment
of his claims. ‘‘An unmentioned claim is, by definition,
inadequately briefed, and one that is generally . . .
considered abandoned.’’ (Internal quotation marks
omitted.) State v. Saucier, 283 Conn. 207, 223, 926 A.2d
633 (2007). Indeed, when an appellant entirely fails to
challenge the trial court’s conclusions with respect to
the merits of the case, thus leaving them intact despite
the briefing of other issues, the appeal is, in essence,
rendered moot. See, e.g., Hartford v. CBV Parking
Hartford, LLC, 330 Conn. 200, 210, 192 A.3d 406 (2018)
(‘‘[u]ndoubtedly, if there exists an unchallenged, inde-
pendent ground to support a decision, an appeal from
that decision would be moot, as this court could not
afford practical relief even if the appellant were to pre-
vail on the issue raised on appeal’’); Middlebury v. Con-
necticut Siting Council, 326 Conn. 40, 53, 161 A.3d
537 (2017) (declining to review claim that trial court
improperly determined that claims were abandoned by
inadequate briefing because ‘‘the plaintiffs have failed
to challenge the trial court’s alternative conclusions
rejecting the claims on the merits’’); Doe v. Hartford
Roman Catholic Diocesan Corp., 317 Conn. 357, 379
n.23, 119 A.3d 462 (2015) (‘‘where alternative grounds
found by the reviewing court and unchallenged on
appeal would support the trial court’s judgment, inde-
pendent of some challenged ground, the challenged
ground that forms the basis of the appeal is moot
because the court on appeal could grant no practical
relief to the complainant’’ [internal quotation marks
omitted]).
We acknowledge that the plaintiff is a self-repre-
sented party and that it ‘‘is the established policy of the
Connecticut courts to be solicitous of [self-represented]
litigants and when it does not interfere with the rights
of other parties to construe the rules of practice liberally
in favor of the [self-represented] party. . . . The courts
adhere to this rule to ensure that [self-represented]
litigants receive a full and fair opportunity to be heard,
regardless of their lack of legal education and experi-
ence . . . .
‘‘This rule of construction has limits, however.
Although we allow [self-represented] litigants some lati-
tude, the right of self-representation provides no atten-
dant license not to comply with relevant rules of proce-
dural and substantive law. . . . A . . . court does not
have the discretion to look beyond the pleadings and
trial evidence to decide claims not raised.’’ (Citations
omitted; internal quotation marks omitted.) Oliphant
v. Commissioner of Correction, 274 Conn. 563, 569–70,
877 A.2d 761 (2005); see also Costello v. Goldstein &
Peck, P.C., 321 Conn. 244, 257–58, 137 A.3d 748 (2016)
(‘‘[t]his court has always been solicitous of the rights
of [self-represented] litigants and, like the trial court,
will endeavor to see that such a litigant shall have the
opportunity to have his case fully and fairly heard so
far as such latitude is consistent with the just rights of
any adverse party’’ [internal quotation marks omitted]).
The solicitous treatment we afford a self-represented
party does not allow us to address a claim on his behalf
when he has failed to brief that claim. See, e.g., Deutsche
Bank National Trust Co. v. Pollard, 182 Conn. App.
483, 487, 189 A.3d 1232 (2018) (‘‘Other than a broad
and conclusory claim that the court too narrowly con-
strued the transaction test, the defendant has provided
this court with no argument specific to any count of
his counterclaim; nor has he set forth any reasoning in
support of the notion that his pleadings fall within the
parameters of the transaction test. Although we recog-
nize and adhere to the well-founded policy to accord
leeway to self-represented parties in the appeal process,
our deference is not unlimited; nor is a litigant on appeal
relieved of the obligation to sufficiently articulate a
claim so that it is recognizable to a reviewing court.’’
[Footnote omitted.]); Tonghini v. Tonghini, 152 Conn.
App. 231, 239–40, 98 A.3d 93 (2014) (‘‘declin[ing] to
enter into the statutory thicket of the family support
magistrate laws without any meaningful assistance
from the parties’’ and observing that ‘‘the fact that the
defendant is self-represented cannot excuse or cure
. . . obvious inadequacies in the record’’); In re Nicho-
las B., 135 Conn. App. 381, 384, 41 A.3d 1054 (2012)
(declining to review self-represented respondent’s
claim that his trial counsel rendered ineffective assis-
tance because his ‘‘argument is devoid of any legal
analysis, let alone citation to any authority,’’ and
determining solicitude to self-represented parties was
unwarranted because ‘‘[t]he major deficiencies in the
presentation of this claim, which undeniably interfere
with the petitioners’ right to respond adequately to the
claim, fall well outside of that degree of latitude
afforded self-represented parties’’); but cf. State v.
Brown, 310 Conn. 693, 698 n.4, 80 A.3d 878 (2013) (not-
ing policy of solicitous treatment of self-represented
parties and treating defendant’s motion to correct illegal
sentence filed pursuant to nonexistent ‘‘ ‘Practice Book
Rule § 93-22’ ’’ as properly filed ‘‘pursuant to Practice
Book § 43-22’’).
In the present case, the plaintiff has not addressed
any of the issues, including res judicata, collateral estop-
pel, standing,16 and the prior pending action doctrine,
which provided the dispositive bases for the trial court’s
memoranda of decision.17 The plaintiff’s status as a self-
represented party does not permit us to overlook that
complete omission. Because this omission operates as
an abandonment of any challenge to what the trial court
actually decided in this case,18 we cannot address the
single substantive issue that the plaintiff has raised,
namely, his challenge to the constitutionality of § 52-
190a.19 Accordingly, we are required to affirm the judg-
ment of the trial court.
The judgment is affirmed.
In this opinion the other justices concurred.
1
The plaintiff named the following current and former Superior Court
judges as defendants: James W. Abrams, Emmet L. Cosgrove, Kari A. Dooley,
Thomas F. Parker, and Terence A. Zemetis.
2
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
3
Given the multiplicity of Superior Court judges involved in this case in
both adjudicative and party capacities, for the sake of simplicity, all refer-
ences herein to the trial court are to Judge Moll unless otherwise noted.
4
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 defen-
dant. To show the existence of such good faith, the claimant or the claimant’s
attorney, and any apportionment complainant or the apportionment com-
plainant’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 or the claimant’s attorney, and any apportion-
ment 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 subsec-
tion (a) of this section shall be grounds for the dismissal of the action.’’
5
We note that the vast majority of the allegations in the plaintiff’s 105
page complaint consists of facts supporting his various due process claims
arising from the handling of his first medical malpractice action, with particu-
lar attention to the actions of Judge Thomas F. Parker, judge trial referee,
both on and off the bench, along with the fact that Judge Parker ultimately
was not renominated to his position as a judge trial referee. Because the
plaintiff’s sole claim on appeal concerns the constitutionality of § 52-190a,
which the trial court did not reach, we need not discuss those other allega-
tions in any detail.
6
‘‘The standard of review for a court’s decision on a motion to dismiss
[under Practice Book § 10-30] is well settled. A motion to dismiss tests,
inter alia, whether, on the face of the record, the court is without jurisdiction.
. . . [O]ur review of the court’s ultimate legal conclusion and resulting
[determination] of the motion to dismiss will be de novo. . . . When a . . .
court decides a jurisdictional question raised by a pretrial motion to dismiss,
it must consider the allegations of the complaint in their most favorable
light. . . . In this regard, a court must take the facts to be those alleged in
the complaint, including those facts necessarily implied from the allegations,
construing them in a manner most favorable to the pleader. . . . The motion
to dismiss . . . admits all facts which are well pleaded, invokes the existing
record and must be decided upon that alone. . . . In undertaking this
review, we are mindful of the well established notion that, in determining
whether a court has subject matter jurisdiction, every presumption favoring
jurisdiction should be indulged.’’ (Footnote omitted; internal quotation
marks omitted.) Cuozzo v. Orange, 315 Conn. 606, 614, 109 A.3d 903 (2015);
see also Miller’s Pond Co., LLC v. New London, 273 Conn. 786, 789 n.5, 873
A.2d 965 (2005) (noting that motion for summary judgment, which was
treated as ‘‘equivalent of a common-law motion for judgment on the plead-
ings,’’ requires court to ‘‘accept as undisputed the facts pleaded in the com-
plaint’’).
7
We note that, in 2009, the plaintiff also brought a separate mandamus
action in the New London judicial district under docket number CV-09-
4009523-S, challenging an earlier decision of the trial court, Abrams J.,
to open a judgment of default that had been rendered against the Awwa
defendants in the 2006 action on the ground that they had violated discovery
orders previously rendered by Judge Hurley. See Traylor v. State, 128 Conn.
App. 182, 183, 15 A.3d 1173, cert. denied, 301 Conn. 927, 22 A.3d 1276 (2011).
Judge Abrams granted the Awwa defendants’ motion to open because he
had rendered the default judgment without reviewing their properly filed
objection and subsequently determined that they had not violated any discov-
ery orders. Id., 184. Judge Parker subsequently granted the motion to dismiss
the mandamus action ‘‘because the plaintiff did not claim that any of the
discovery orders could not be subject to an appeal once the malpractice
action had concluded.’’ Id., 184–85. The Appellate Court affirmed that judg-
ment denying the writ of mandamus ‘‘because the plaintiff has failed to
demonstrate that there is no other specific adequate remedy available to
review the court’s actions. Moreover, because the actions of the court that
are complained of here may be made an issue in the plaintiff’s appeal from
the final judgment of the medical malpractice action, mandamus is not
warranted.’’ Id., 186.
8
In Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 30–31 n.17, 12
A.3d 865 (2011), this court discussed, but took no position regarding, the
continued viability of the holding in Votre v. County Obstetrics & Gynecology
Group, P.C., supra, 113 Conn. App. 585–86, that the opinion letter require-
ment of § 52-190a (a) cannot be satisfied through an opinion of a similar
health care provider filed with an amended pleading that was not filed at
the commencement of the action.
9
In their motion to dismiss, the Awwa defendants claimed that the Appel-
late Court lacked jurisdiction because there was (1) no appealable final
judgment and (2) no justiciable controversy between the parties to the
appeal. The Appellate Court granted the Awwa defendants’ motion in an
order without an opinion.
10
The Appellate Court granted the attorney’s motion to withdraw, which
was filed in accordance with the plaintiff’s wishes as stated during the
preargument conference, and sua sponte ordered that his appeal as adminis-
trator of the estate would be dismissed unless he obtained new counsel
within thirty days. The plaintiff did not obtain new counsel. The Appellate
Court subsequently dismissed that portion of the appeal on August 2, 2011.
On August 4, 2011, the plaintiff filed a petition for certification from that
portion of the order, which this court dismissed for lack of a final appellate
judgment; see General Statutes § 51-197f; on September 28, 2011. See Traylor
v. Awwa, 302 Conn. 937, 28 A.3d 989 (2011).
11
More specifically, the claims against the state defendants in the first
2011 action were dismissed by the District Court on the ground that the
plaintiff’s complaint failed to state a claim under each count or each count
was barred by sovereign immunity. Traylor v. Awwa, supra, 2014 WL 555358,
*12. The plaintiff appealed from this judgment to the United States Court
of Appeals for the Second Circuit but withdrew that appeal on April 15, 2014.
The District Court also dismissed the plaintiff’s claims in the first 2011
action against the Awwa defendants. The plaintiff also appealed from this
judgment to the Second Circuit, but withdrew that appeal on April 15, 2014.
The District Court denied the motion to dismiss with respect to CUTPA and
spoliation allegations against the Awwa defendants’ insurer and attorney;
see Traylor v. Awwa, 899 F. Supp. 2d 216, 224–27 (D. Conn. 2012); but
subsequently granted a motion for summary judgment filed by these defen-
dants. See Traylor v. Awwa, 88 F. Supp. 3d 102, 109–10 (D. Conn. 2015). The
plaintiff appealed from the granting of that motion for summary judgment
to the Second Circuit; the Second Circuit dismissed that appeal on November
19, 2015.
The District Court remanded the remaining claims against the Knowles
defendants in the first 2011 action to New London Superior Court, where
they were transferred to the Complex Litigation Docket in the judicial district
of Waterbury. The first 2011 action was then transferred again to the Stam-
ford-Norwalk judicial district, where Judge Genuario granted the Knowles
defendants’ motion for summary judgment on October 26, 2016. On June
21, 2017, this court dismissed the plaintiff’s writ of error challenging the
granting of summary judgment in the first 2011 action, and the Appellate
Court subsequently denied the plaintiff’s motion for permission to file a late
appeal from that granting of summary judgment.
12
Specifically, the second 2011 action was instituted against numerous
judges, legislators, and court employees, and the Awwa defendants’ insurer,
challenging rulings in the plaintiff’s other cases as violations of the state
and federal constitutions, along with the constitutionality of § 52-190a. See
generally Traylor v. Gerratana, 148 Conn. App. 605, 88 A.3d 552, cert. denied,
312 Conn. 901, 91 A.3d 908, and cert. denied, 312 Conn. 902, 112 A.3d 778,
cert. denied, U.S. , 135 S. Ct. 444, 190 L. Ed. 2d 336 (2014). The
Appellate Court upheld the dismissal of the second 2011 action on the
ground that it was barred by the doctrines of qualified and absolute judicial
and legislative immunity. Id., 612–15; see id., 615 (concluding that claims
against insurer were abandoned because of inadequate briefing). Particularly
pertinent to the present case, the Appellate Court held that the plaintiff’s
claims in the second 2011 action seeking declaratory and injunctive relief
against the legislative defendants on the ground that § 52-190a is unconstitu-
tional were barred by sovereign immunity because ‘‘[n]one of the claims
raised by the plaintiff allege[s] a substantial claim that clearly demonstrate[s]
an incursion upon [his] constitutionally protected interests.’’ (Internal quota-
tion marks omitted.) Id., 611.
While litigation continued in the first and second 2011 actions, the plaintiff
continued to apply for fee waivers in the New London judicial district to
allow him to reopen the original 2006 action and to file new actions. The
trial court, Cosgrove, J., denied two of these applications pursuant to General
Statutes § 52-259b (c) after a hearing, on the ground that the plaintiff ‘‘has
repeatedly filed actions with respect to the same or similar matters; that
these filings demonstrate an extended pattern of frivolous filings that have
been without merit; that this filing is consistent with the [plaintiff’s] previous
pattern of frivolous filings; and that the granting of the fee waiver would
constitute a flagrant misuse of [J]udicial [B]ranch resources.’’ Traylor v.
Awwa, Superior Court, judicial district of New London, Docket No. CV-06-
5001159-S, 2016 WL 823033, *4 (February 5, 2016). Ultimately, however,
Judge Povadator, sitting in the Stamford-Norwalk judicial district where
this case originally was filed, granted the fee waiver on March 14, 2016,
which allowed the plaintiff to pursue the present action.
13
We note that the plaintiff’s conduct in responding to the motions and
appearing in court was at issue before the trial court. After giving the plaintiff
an additional month of time to file responsive briefs, in addition to a previous
ninety day extension before its assignment to the case, the trial court then
granted the plaintiff an extension of an additional sixty days, ultimately
setting January 23, 2017, as a due date for briefs and February 6, 2017, as
the hearing date. On February 1, 2017, the plaintiff moved for continuance
of a ‘‘ ‘February 23’ status conference’’ on the ground that he needed more
time to prepare and represented therein that he had contacted the defen-
dants’ attorneys regarding his request but they had not responded to him.
The plaintiff also indicated in a separate filing that he required a continuance
because he had vision problems resulting from medication.
Because there was no status conference scheduled for February 23, 2017,
the trial court presumed that the plaintiff sought a continuance of the only
scheduled event, namely, the February 6 hearing. On February 2, 2017, the
trial court issued an order denying a continuance of the February 6 hearing,
but directed the plaintiff to appear at that hearing to argue in support of
his request for more time to respond, and to submit for in camera review
medical documentation supporting his arguments that he ‘‘was physically
unable’’ to participate. On February 3, 2017, the plaintiff obtained his medical
records from a Veterans Affairs (VA) office and then had them sent from
the New London courthouse to a court officer in Hartford via e-mail. The
plaintiff then filed a ‘‘notice of compliance’’ stating that he would not attend
the February 6 hearing, ‘‘claiming for the first time that he was unable to
drive as a result of prescribed medication.’’
At the February 6 hearing before the trial court, the court officer confirmed
on the record that, on the afternoon of February 3, the plaintiff had ‘‘called
him and said that he had driven to a VA office that day to obtain his medical
records and that he had driven to the New London courthouse that day to
have those records e-mailed to [Judge Moll’s] chambers.’’ (Emphasis in
original.) Given that the plaintiff had driven a car that day and his medical
records did not support any claims of vision problems, the trial court found
that the plaintiff was ‘‘flagrantly disregarding the court’s deadlines and the
court’s February 3, 2017 order denying his request to continue the February
6, 2017 hearing. Accordingly, the [trial] court proceeded with the February
6, 2017 hearing, which [the plaintiff] failed to attend.’’ The plaintiff has not
challenged that finding or the denial of additional extensions in this appeal.
See footnote 18 of this opinion.
14
As explained in Columbia Air Services, Inc. v. Dept. of Transportation,
293 Conn. 342, 349, 977 A.2d 636 (2009), this court has recognized three
exceptions to sovereign immunity: ‘‘(1) when the legislature, either expressly
or by force of a necessary implication, statutorily waives the state’s sovereign
immunity . . . (2) when an action seeks declaratory or injunctive relief on
the basis of a substantial claim that the state or one of its officers has
violated the plaintiff’s constitutional rights . . . and (3) when an action
seeks declaratory or injunctive relief on the basis of a substantial allegation
of wrongful conduct to promote an illegal purpose in excess of the officer’s
statutory authority.’’ (Citations omitted; internal quotation marks omitted.)
15
On January 7, 2019, the plaintiff filed a motion asking us to take judicial
notice of certain misrepresentations that he claimed counsel for the state
and the Awwa defendants had made during oral argument in this appeal on
December 13, 2018. By order dated February 27, 2019, we denied this motion.
16
Although the plaintiff does not address the issue of standing, we note—
sua sponte, because it implicates our subject matter jurisdiction; see, e.g.,
Fairfield Merrittview Ltd. Partnership v. Norwalk, 320 Conn. 535, 548, 133
A.3d 140 (2016)—that the trial court concluded that the plaintiff lacked
standing because he had failed to allege a substantial claim that the opinion
letter requirement of § 52-190a was an incursion on his constitutionally
protected interests. In so concluding, the trial court relied upon the Appellate
Court’s decision in Traylor v. Gerratana, supra, 148 Conn. App. 605, in
which the Appellate Court simply concluded that the plaintiff’s amended
complaint in that action had made ‘‘only conclusory allegations that § 52-
190a violated his constitutional rights to equal access to court, separation
of powers, equal protection, due process, and a trial by jury. None of the
claims raised by the plaintiff alleges a substantial claim that clearly demon-
strate[s] an incursion upon [his] constitutionally protected interests.’’ (Inter-
nal quotation marks omitted.) Id., 611. We disagree with the trial court’s
reliance on this reasoning as applied to the present case. Having reviewed
the operative complaint in this case, we conclude that the allegations in the
plaintiff’s complaint, taken as true—and particularly the allegation that § 52-
190a creates an ‘‘economic barrier’’ to access to the courts, given that ‘‘[t]he
average burden of cost for the prelitigation certificate of merit is $10,000
to $20,000,’’ with a disproportionate effect on African American litigants
like the plaintiff—are sufficiently specific allegations of economic injury to
demonstrate an incursion upon constitutionally protected interests. See,
e.g., Allco Finance Ltd. v. Klee, 861 F.3d 82, 95 (2d Cir. 2017) (allegation that
state’s request for proposal charged unlawful fees was injury ‘‘sufficiently
‘concrete’ and ‘particularized’ to qualify as injur[y]-in-fact’’), cert. denied,
U.S. , 138 S. Ct. 926, 200 L. Ed. 2d 203 (2018); E.M. v. Dept. of Education,
758 F.3d 442, 459 (2d Cir. 2014) (parent had standing to bring claim under
Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., when
she became ‘‘subject to a contractual obligation to pay [private school]
tuition . . . and . . . incurred that obligation as a direct result of the
[d]epartment’s alleged failure to provide her child a [free and adequate
public education]’’). Given the significant expense allegedly incurred by the
plaintiff, and the fact that his failure to obtain the letter at the outset of the
2006 action led to its dismissal, we also disagree with the trial court’s
conclusion that ‘‘the plaintiff lacks standing to challenge the constitutionality
of § 52-190a because he, in fact, obtained the opinion letter required by the
statute.’’ Nevertheless, the plaintiff’s failure to challenge the state defen-
dants’ other grounds for dismissal renders this standing conclusion harmless
error not requiring reversal.
We further note that, because the plaintiff’s standing to challenge the
constitutionality of § 52-190a emanates from his interests in the claims relat-
ing to the 2006 action, his opportunity to assert this constitutional challenge
was in the lengthy proceedings before the trial court in the 2006 action and
during the subsequent appeals. ‘‘[I]t is well settled that [f]inal judgments
are . . . presumptively valid . . . and collateral attacks on their validity
are disfavored. . . . The reason for the rule against collateral attack is well
stated in these words: The law aims to invest judicial transactions with the
utmost permanency consistent with justice. . . . Public policy requires that
a term be put to litigation and that judgments, as solemn records upon
which valuable rights rest, should not lightly be disturbed or overthrown.
. . . [T]he law has established appropriate proceedings to which a judgment
party may always resort when he deems himself wronged by the court’s
decision. . . . If he omits or neglects to test the soundness of the judgment
by these or other direct methods available for that purpose, he is in no
position to urge its defective or erroneous character when it is pleaded or
produced in evidence against him in subsequent proceedings.’’ (Citation
omitted; internal quotation marks omitted.) Sousa v. Sousa, 322 Conn. 757,
771, 143 A.3d 578 (2016).
Put differently, under the circumstances presented in this case, any claims
by the plaintiff that § 52-190a should not be applied to him because of its
unconstitutionality were matters required to be asserted in the action in
which the decision to apply the statute to him was made, and any challenges
to the decision applying the statute to him were matters subject to direct
appeal. ‘‘[I]t is now well settled that, [u]nless a litigant can show an absence
of subject matter jurisdiction that makes the prior judgment of a tribunal
entirely invalid, he or she must resort to direct proceedings to correct
perceived wrongs . . . . A collateral attack on a judgment is a procedurally
impermissible substitute for an appeal.’’ (Emphasis in original; internal quo-
tation marks omitted.) Id., 771–72; see also, e.g., In re Shamika F., 256
Conn. 383, 406–407, 773 A.2d 347 (2001).
17
We acknowledge that the plaintiff touched on issues of standing, collat-
eral estoppel, and res judicata briefly during the principal and rebuttal
portions of his oral argument before this court. Raising a claim at oral
argument is not, however, a substitute for adequately briefing that claim.
See, e.g., Studer v. Studer, 320 Conn. 483, 493 n.11, 131 A.3d 240 (2016)
(‘‘[i]t is well settled that claims on appeal must be adequately briefed, and
cannot be raised for the first time at oral argument before the reviewing
court’’ [internal quotation marks omitted]).
18
We note that the plaintiff’s appeal form specifies both ‘‘[f]inal judgment’’
and ‘‘the decision regarding [the plaintiff’s] motion for an extension of time
due to illness’’; see footnote 13 of this opinion; as the challenged actions
of the trial court. The plaintiff has not, however, addressed the denial of
his requested extensions of time in his brief. Accordingly, we deem any
challenges to that discretionary decision similarly abandoned.
19
We note that the Appellate Court has previously rejected a similar
constitutional challenge to the good faith certificate requirement of § 52-
190a under the open courts provision of the state constitution; see Conn.
Const. art. I, § 10; and the due process clauses of the federal and state
constitutions. See Lohnes v. Hospital of Saint Raphael, 132 Conn. App. 68,
81–84, 31 A.3d 810 (2011), cert. denied, 303 Conn. 921, 34 A.3d 397 (2012).