Sequenzia v. Guerrieri Masonry Inc.

• Decision Date: 09 November 2010
• Docket Number: No. 18364.,18364.
• Citation: 298 Conn. 816,9 A.3d 322
• Court: Connecticut Supreme Court
• Parties: John SEQUENZIA et al. v. GUERRIERI MASONRY, INC., et al.

9 A.3d 322

298 Conn. 816

John SEQUENZIA et al.

v.GUERRIERI MASONRY, INC., et al.

No. 18364.

Supreme Court of Connecticut.

Argued Sept. 8, 2010.

Decided Nov. 9, 2010.

Kenneth J. Bartschi, with whom were Brendon P. Levesque, Hartford, and, on the brief, Nathan J. Buchok, certified legal intern, for the appellant (named plaintiff).

William J. Melley III, Hartford, for the appellee (named defendant).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.

NORCOTT, J.

The named plaintiff, John Sequenzia (plaintiff), appeals, following our grant of his petition for certification,¹ from the judgment of the Appellate Court, which reversed the trial court's judgment, rendered after a jury trial, awarding the plaintiff damages in the amount of $591,680.85 on his common-law negligenceclaim against the named defendant, Guerrieri Masonry, Inc. (defendant).²Sequenzia v. Guerrieri Masonry, Inc., 113 Conn.App. 448, 449, 967 A.2d 508 (2009). On appeal, the plaintiff claims that the Appellate Court improperly decided this case based on a claim of instructional impropriety that the defendant had abandoned by failing to raise it on appeal. We agree with the plaintiff and, accordingly, reverse the judgment of the Appellate Court.

The record and the Appellate Court opinion reveal the following relevant facts that the jury reasonably could have found, and procedural history. "The town of Glastonbury contracted with Hodess Building Company (Hodess) to construct an addition to an assisted living building. Hodess, which acted as the general contractorfor the job, entered into a subcontract with the defendant to perform masonry work on the site. On the morning of November 14, 2003, the plaintiff arrived on site to deliver a truckload of bricks. It was a windy day. A Hodess employee pointed to the area where the plaintiff should deliver the bricks, and the plaintiff moved his truck to that area. Shortly thereafter, Corrado Guerrieri, the owner of the defendant, arrived on site and, seeing that there were power lines nearby, suggested that the plaintiff move his truck because it was too close to the power lines. Despite knowing that there was a sign posted on his truck that stated 'look up keep boom 15 feet from power lines,' the plaintiff responded that he could make the delivery from that location. Using a boom attached to the truck, which was operated through a control box, the plaintiff began to remove the pallets of bricks from the truck, but, during the process, the boom came into contact with the power lines, shocking him and causing very serious injuries. Guerrieri immediately grabbed the control box and pulled it from the plaintiff's hand. There was evidence that the plaintiff's injuries were painful, disfiguring and disabling.

"The plaintiff brought this action against Hodess and the defendant. Prior to trial, Hodess and the plaintiff reached a settlement, and the plaintiff withdrew its claims against Hodess. The case between the plaintiff and the defendant proceeded to be tried on a single count of common-law negligence. The court charged the jury on two specifications of negligence, as alleged in the complaint, one of which was a failure to warn.³The jury returned a verdict in favor of the plaintiff, finding the defendant to be 30 percent negligent, Hodess 25 percent negligent and the plaintiff 45 percent negligent. Following the jury's verdict, the defendant renewed its earliermotion for a directed verdict and filed motions for judgment notwithstanding the verdict and for a new trial [posttrial motions], arguing, in part, that the court improperly had charged the jury on the failure to warn specification of common-law negligence and that there was no evidence to support such a charge. The [posttrial] motions were denied." Id., at 449-51, 967 A.2d 508. Although the trial court noted that the failure to warn charge was improper because there was no evidence to support giving that instruction, the court denied the motion for a new trial "since [the failure to warn charge] was not the sole basis of the plaintiff's claim, and the court charged on alternative grounds on which the defendant could be held liable...."

The defendant appealed from the judgment of the trial court to the Appellate Court. Sequenzia v. Guerrieri Masonry, Inc., supra, 113 Conn.App. at 449, 967 A.2d 508. On appeal, the defendant claimed in its brief that the trial court improperly had: (1) admitted into evidence an excerpt of a contract between the defendant and Hodess; (2) concluded that the excerpt created a duty owed by the defendant to the plaintiff; (3) concluded that the defendant owed a duty to the plaintiff to prevent accidents; (4) allowed the plaintiff to benefit from the contract between the defendant and Hodess; and (5) permitted the plaintiff's counsel to argue outside the scope of rebuttal closing argument.

The Appellate Court did not address the defendant's claims raised in its appellate brief but, instead, determined that the dispositive issue was the instructional impropriety claim raised in its posttrial motions. Id. The Appellate Court reversed the judgment of the trial courtand remanded the case for a new trial, concluding that the trial court improperly had denied the defendant's motion for a new trial on the instructional impropriety claim because "it [was] possible that the jury could have based its verdict on a specification of negligence that was not supported by the evidence...." Id., at 456, 967 A.2d 508. This certified appeal followed. See footnote 1 of this opinion.

On appeal, the plaintiff argues that the defendant had abandoned the instructional impropriety claim by failing to raise it on appeal to the Appellate Court and, therefore, that the Appellate Court improperly decided the case based on that claim. In response, the defendant contends that, although it had not raised the issue before the Appellate Court, that court properly exercised its supervisory authority to reach the claim because the parties' posttrial briefing and argument were sufficient to alert the plaintiff to this potential appellate claim, and for public policy reasons. We agree with the plaintiff that the Appellate Court improperly reversed the judgment on this ground and, instead, should have decided the appeal based only on the issues properly brought before it.

"We long have held that, in the absence of a question relating to subject matter jurisdiction, the Appellate Court may not reach out and decide a case before it on a basis that the parties never have raised or briefed.... To do otherwise would deprive the parties of an opportunity to present arguments regarding those issues." (Citations omitted.) Sabrowski v. Sabrowski, 282 Conn. 556, 560, 923 A.2d 686 (2007). In the present case, although the defendant raised the instructional impropriety claim in the trial court; Sequenzia v. Guerrieri Masonry, Inc., supra, 113 Conn.App. at 451, 967 A.2d 508; it concedes that it did not raise this claim in its brief to theAppellate Court. The defendant contends, however, that the Appellate Court has the discretion to decide acase on any basis, regardless of whether that claim was raised by the parties. We conclude that the defendant misconstrues the limits of the Appellate Court's authority. "If the Appellate Court decides to address an issue not previously raised or briefed, it may do so only after requesting supplemental briefs from the parties or allowing argument regarding that issue." State v. Dalzell, 282 Conn. 709, 715, 924 A.2d 809 (2007). Here, it is undisputed that the Appellate Court did not order supplemental briefing or argument on the instructional impropriety claim, which deprived the plaintiff of the opportunity to be heard on this issue before that court.⁴

The defendant seeks to overcome this deficiency by arguing that the parties' posttrial motions and opposition papers filed in the trial court satisfy any applicable briefing requirements. We disagree. The rules of practice require litigants to brief and analyze appellate issues in a clear and specific manner. SeePractice Book §§ 67-4(d) ⁵ and 67-5(d); ⁶ seealso Jackson v. Water Pollution Control Authority, 278 Conn. 692, 711, 900 A.2d 498 (2006) ("[w]e consistently have held that [a]nalysis, rather than mere abstract assertion, isrequired in order to avoid abandoning an issue by failure to brief the issue properly" [internal quotation marks omitted] ). "Those claims of error not briefed are considered abandoned." Czarnecki v. Plastics Liquidating Co., 179 Conn. 261, 262 n. 1, 425 A.2d 1289 (1979); see also, e.g., State v. Saucier, 283 Conn. 207, 223, 926 A.2d 633 (2007). Moreover, reliance on the posttrial motions disregards the reasoned decisions of an appellate attorney regarding which issues to present and how to present them-professional judgments that can have a significant effect on the outcome of a case. See, e.g., R. Stern, Appellate Practice in the United States (2d Ed.1989) § 10.14(b) and (c), pp. 287-93; W. Maltbie, Connecticut Appellate Procedure (2d Ed.1957) §§ 325 through 327. Thus, to presume that posttrial motions necessarily include all arguments required for the proper resolution of an issue on appeal deprives the parties of their right to present and argue that...