Henderson v. State

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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.