Date: 02-17-2014

Case Style: Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc.

Case Number: SC18911

Judge: Palmer

Court: Supreme Court of Connecticut

Plaintiff's Attorney: Daniel J. Klau, with whom, on the brief, was H.
James Pickerstein, for the appellant (plaintiff).

Defendant's Attorney: Mark D. Alexander, with whom, on the brief, was
John M. Tanski, for the appellees (defendants).

Description: This case requires us to determine when
a reviewing court properly may raise and decide an
issue that was not raised by the parties. The plaintiff,
Blumberg Associates Worldwide, Inc., brought this
action against the defendants, Brown and Brown of
Connecticut, Inc. (Brown & Brown), and Brown and
Brown, Inc. (parent company), alleging, inter alia, that
the defendants had breached a contract between the
parties by terminating the contract after the plaintiff
failed to comply with a contract condition due to conduct
by the defendants that prevented compliance by
the plaintiff. After the trial court granted the defendants’
motion for summary judgment and rendered judgment
thereon, the plaintiff appealed to the Appellate Court,
which affirmed the trial court’s judgment. Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., 132 Conn. App. 85, 102, 30 A.3d 38 (2011).
We then granted the plaintiff’s petition for certification
to appeal to this court on the issue of whether the
Appellate Court properly had upheld the trial court’s
decision to grant the defendants’ motion for summary
judgment, albeit on grounds not raised by the defendants.
See Blumberg Associates Worldwide, Inc. v.
Brown & Brown of Connecticut, Inc., 303 Conn. 923,
34 A.3d 395 (2012). The plaintiff contends that (1) the
Appellate Court exceeded its authority by affirming the
trial court’s judgment on the basis of an issue that the
defendants had neither raised in the trial court nor
presented as an alternative ground for affirmance on
appeal, namely, whether the plaintiff’s claim that the
defendants had prevented the plaintiff from complying
with a contract condition failed as a matter of law
because the allegedly hindering conduct occurred
before the contract existed, and (2) if the Appellate
Court properly raised that issue sua sponte, it incorrectly
determined that the plaintiff’s claim failed as a
matter of law.
We conclude, with respect to the propriety of a
reviewing court raising and deciding an issue that the
parties themselves have not raised, that the reviewing
court (1) must do so when that issue implicates the
court’s subject matter jurisdiction, and (2) has the discretion
to do so if (a) exceptional circumstances exist
that would justify review of such an issue if raised by
a party, (b) the parties are given an opportunity to be
heard on the issue, and (c) there is no unfair prejudice
to the party against whom the issue is to be decided.
Because each of these latter three conditions was satisfied
in the present case, we reject the plaintiff’s claim
that the Appellate Court exceeded its authority in
resolving the plaintiff’s appeal on the basis of an issue
that the defendants had not raised. We also conclude
that the Appellate Court properly decided that issue.
Accordingly, we affirm the judgment of the Appellate
Court.
The opinion of the Appellate Court sets forth the
following facts and procedural history. ‘‘Prior to February,
2004, the plaintiff operated as an affiliate of Blumberg
Associates, Inc., a company engaged in the insurance
business in Connecticut and throughout the northeastern
United States. The plaintiff had been created
in 1998 for the purpose of pursuing a business opportunity
as an insurance provider to Subway restaurant
franchisees. During the development of this business
opportunity, Blumberg Associates, Inc., used the plaintiff
for a variety of other purposes, including selling
insurance to customers in other states.
‘‘On or about February 1, 2004, the parent company
purchased Blumberg Associates, Inc., pursuant to an
asset purchase agreement. For the next two months,
Blumberg Associates, Inc., continued to operate out of
its business address at 433 South Main Street in [the
town of] West Hartford. Thereafter, the parent company
transferred all of the assets it had acquired from Blumberg
Associates, Inc., to 375 Willard Avenue in [the
town of] Newington, the business address of Brown &
Brown. The insurance licensing files of the plaintiff
were included among the assets physically transferred
to 375 Willard Avenue.1
‘‘On March 19, 2004, Anne F. Pinto, an employee of
Brown & Brown and former employee of Blumberg
Associates, Inc., submitted, on behalf of Brown &
Brown, an application for an insurance license to the
[state Department of Insurance] (department). Along
with the application, Pinto included a letter that
requested that the department ‘change [its] records to
reflect [the] new address’ and then listed the address
of 375 Willard Avenue in Newington. The letter was
written on stationery with the letterhead of Blumberg
Associates, Inc., and the plaintiff, and it did not identify
specifically whose address should be changed [in] the
department’s records. On June 23, 2004, the department
changed the address in its records for both Blumberg
Associates, Inc., and the plaintiff to 375 Willard Avenue
in Newington [even though the plaintiff’s business
address had not, in fact, changed].2
‘‘Also in June, 2004, the plaintiff sought access to its
licensing files [which] had been physically transferred
to Brown & Brown. Brown & Brown denied having
any licensing files belonging to the plaintiff. [Brown &
Brown] also denied the plaintiff’s request to conduct
an inspection of [Brown & Brown’s] business office to
locate the files.
‘‘In December, 2005, approximately two months prior
to the expiration of the plaintiff’s insurance license, the
department mailed an insurance license renewal form
(renewal notice) to the plaintiff at 375 Willard Avenue in
Newington. According to the records of the department,
the renewal notice subsequently was returned to the
department as unable to forward.3 On January 31, 2006,
the plaintiff’s license expired.’’ (Footnotes altered.)
Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 132 Conn. App.
90–91.
‘‘On July 19, 2006, the plaintiff and the defendants
entered into a written contract entitled the ‘Subway
Program Agreement.’ According to the contract, the
plaintiff made introductions and facilitated communications
that were instrumental in leading to Brown &
Brown being designated as a gold standard insurance
agent by Doctor’s Associates, Inc. As a result of that
designation, Brown & Brown was able to offer certain
insurance services to Subway restaurant [franchisees].
As consideration for the plaintiff’s facilitation services,
Brown & Brown agreed to pay to the plaintiff a percentage
of the commissions and fees that it received from
selling insurance services to Subway restaurant franchisees.
‘‘By letter dated February 26, 2008, the defendants
notified the plaintiff that they were terminating the contract.
The letter stated that Brown & Brown was entitled
to terminate the contract for cause pursuant to § 4 (b)
(i) (B) of the contract upon ‘the loss or suspension of
[the plaintiff’s] resident insurance license in its state of
domicile, if such loss or suspension is not cured within
ninety (90) days of such loss or suspension . . . .’ The
letter went on to state that cause existed to terminate
the contract pursuant to § 4 (b) (i) (B) because the
plaintiff’s license in the state of Connecticut, its domicile,
had been ‘canceled on January 31, 2006,’ and the
‘loss . . . [had] not [been] cured within [ninety] days
of that event.’4
‘‘The plaintiff commenced the present action by way
of a five count complaint filed on October 10, 2008. In
the complaint, the plaintiff alleged: (1) breach of contract
against Brown & Brown in count one; (2) unjust
enrichment against Brown & Brown in count two; (3)
quantum meruit against Brown & Brown in count three;
(4) violation of the Connecticut Unfair Trade Practices
Act, General Statutes § 42-110a et seq., against Brown &
Brown in count four; and (5) breach of guaranty against
the parent company in count five.’’ (Footnotes altered.)
Id., 87–88. With respect to the count alleging breach
of contract, the plaintiff claimed that (1) by failing to
forward the renewal notice to the plaintiff, Brown &
Brown had ‘‘breached the terms of paragraph 10 [of the
contract], ‘[f]urther [a]ssurances’ . . . and caused the
temporary suspension of [the plaintiff’s] license,’’5 (2)
the defendants’ reason for terminating the contract did
not ‘‘constitute a material, actionable breach of the
[contract], and Brown & Brown therefore [had]
breached the [contract],’’ (3) Brown & Brown’s failure
to pay the plaintiff revenues due under the contract
constituted a breach of contract, and (4) Brown &
Brown’s failure to deliver certain financial information
when due constituted a breach of contract.
‘‘On January 22, 2009, the defendants filed a motion
to strike all five counts of the complaint, which the
court granted as to count four . . . but denied as to the
remaining counts.’’6 Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., supra, 132
Conn. App. 88. Thereafter, the defendants filed a motion
for summary judgment on each of the surviving counts
of the complaint. With respect to the plaintiff’s breach
of contract count, the defendants contended, inter alia,
that Brown & Brown’s alleged failure to forward the
renewal notice to the plaintiff could not have resulted
in a breach of the further assurances provision because
it occurred more than eight months before the parties
entered into the contract. In its opposition to the motion
for summary judgment, the plaintiff did not expressly
claim that there was a genuine issue of material fact
as to whether the defendants had breached the further
assurances provision of the contract. Instead, the plaintiff
argued that the defendants had prevented it from
renewing its license, thereby excusing the plaintiff from
satisfying that contract condition under the prevention
doctrine.7 In addition, the plaintiff contended that the
trial court reasonably could conclude that the defendants
had exercised their ‘‘discretion’’ to terminate the
contract in bad faith and that there was a genuine issue
of material fact, namely, whether the termination provision
was enforceable under principles of waiver and
estoppel. In their reply to the plaintiff’s opposition, the
defendants contended, inter alia, that the doctrine of
prevention was inapplicable ‘‘because Brown & Brown
has not brought a breach of contract [claim] that would
require [the plaintiff] to assert such a defense.’’8
In granting the defendants’ motion for summary judgment
on the breach of contract claim, the trial court
rejected (1) the plaintiff’s claim of bad faith because
the plaintiff had not alleged bad faith in its complaint,
(2) the plaintiff’s waiver claim because the contract
required that any waiver must be in writing, and (3) the
plaintiff’s estoppel claim because the plaintiff presented
no evidence that the defendants had done anything to
induce the plaintiff to believe that it was licensed. The
court also rejected the plaintiff’s claim under the prevention
doctrine, reasoning that, because the plaintiff’s
‘‘license status was a matter of public record, as a matter
of law, no conduct by [the defendants] caused [the
plaintiff] not to be able to know the status of its own
license.’’ Finally, the court concluded that Brown &
Brown could not have breached the further assurances
provision of the contract because, even if it failed to
forward the renewal notice to the plaintiff, that conduct
occurred before the parties entered into the contract.9
After the trial court rendered judgment for the defendants,
the plaintiff appealed to the Appellate Court.
See Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 132 Conn. App. 86.
The plaintiff argued, inter alia, that the trial court
‘‘improperly decided that the plaintiff’s claim of prevention
of performance failed as a matter of law because
the court erroneously concluded that the plaintiff was
required to show that Brown & Brown’s actions were
the sole cause of the plaintiff’s failure to maintain its
license.’’ Id., 93. Following oral argument, the Appellate
Court, sua sponte, ordered the parties to submit supplemental
briefs ‘‘addressing [the issue of] whether the
plaintiff’s claim of breach of contract based on Brown &
Brown’s alleged failure to forward the renewal notice
failed as a matter of law because the alleged conduct
occurred prior to the date [on] which the parties entered
into the [contract].’’ Id., 94. In its supplemental brief, the
plaintiff objected to the Appellate Court’s supplemental
briefing order on the ground that the defendants had
‘‘never contended that the [prevention] argument
should fail as a matter of law because it relie[d] on
conduct that predate[d] the parties’ execution of the
[contract]’’ and that the Appellate Court should not
raise arguments that the parties ‘‘did not raise [in the
trial court].’’ Blumberg Associates Worldwide, Inc. v.
Brown & Brown of Connecticut, Inc., Conn. Appellate
Court Records & Briefs, May Term, 2011, Plaintiff’s
Supplemental Brief p. 1. The plaintiff further asserted
that it had ‘‘made a number of strategic decisions in
this case, including the selection of issues on appeal,
in reliance [on] the arguments the defendants did, and
did not, raise [in the trial court]’’; id., pp. 1–2; and, by
way of example, the plaintiff stated that it ‘‘would have
challenged [on appeal] the trial court’s ruling on its
unjust enrichment claim if the defendants had mounted
a legal, as opposed to a factual, challenge to [the plaintiff’s
prevention] argument.’’ Id., p. 2 n.2. Although
unable to point to any authority in support of its position,
the plaintiff also contended that conduct that
occurs before a contract comes into existence can constitute
a hindrance under the prevention doctrine. Id.,
p. 3; see also id., pp. 5–7. The plaintiff further maintained
that the Appellate Court could avoid deciding that issue
because, as the result of the asset purchase agreement
pursuant to which the parent company had purchased
the plaintiff’s affiliate, Blumberg Associates, Inc., there
was a ‘‘contractual relationship’’ between the plaintiff
and the defendants at the time of the alleged hindrance.
Id., pp. 3–4. Finally, the plaintiff claimed that certain
equitable principles warranted the conclusion that it
should be permitted ‘‘to prove its entitlement to relief
at trial even if the court decides that the [prevention]
doctrine does not excuse the temporary lapse of [the
plaintiff’s] insurance license.’’ Id., p. 8. In their supplemental
brief, the defendants again argued, inter alia,
that they could not have breached the further assurances
provision of the contract before the contract
came into existence. Id., Defendants’ Supplemental
Brief pp. 4–5.
Thereafter, the plaintiff filed a motion for permission
to file a reply to the defendants’ supplemental brief in
which it argued that a reply was necessary to correct
‘‘serious errors’’ in the defendants’ brief. Specifically,
the plaintiff contended in the proposed reply brief that it
had ‘‘never argued that the defendants’ [precontractual]
conduct constituted a breach of the contract. The argument
[was] always . . . that such conduct, as an equitable
matter, excused the temporary expiration of [the
plaintiff’s] insurance license.’’ (Emphasis in original.)
The plaintiff further argued that it initially claimed that
the defendants had breached the further assurances
provision of the contract but that it abandoned that
claim in its opposition to the defendants’ motion for
summary judgment. In opposition to the plaintiff’s
motion for permission to file a reply to the defendants’
supplemental brief, the defendants contended that they
understood the Appellate Court’s order for supplemental
briefing to relate to the plaintiff’s allegation that
Brown & Brown had breached the further assurances
provision of the contract. They further contended that
there was no ‘‘distinction between the breach of an
express contractual provision and conduct that excuses
performance under the doctrine of prevention. Conduct
that legally ‘hinders’ the other party’s performance is
a breach of the contract, and that is why it operates
to excuse performance.’’10 (Emphasis in original.) The
Appellate Court denied the plaintiff’s request to file a
reply to the defendants’ supplemental brief.
The Appellate Court ultimately agreed with the defendants
that conduct that occurred before the existence
of a contract cannot constitute a hindrance to the occurrence
of a contract condition under the doctrine of
prevention because the duty not to hinder is a contractual
duty. See Blumberg Associates Worldwide, Inc. v.
Brown & Brown of Connecticut, Inc., supra, 132 Conn.
App. 95–96; see also id., 96 (‘‘we conclude as a matter
of law that a party seeking to invoke the doctrine of
prevention, a principle of contract law, may not do
so [on the basis of] conduct that occurred before the
existence of the contract’’). After rejecting the plaintiff’s
other claims on appeal;11 see id., 97, 101–102; the Appellate
Court affirmed the judgment of the trial court. Id.,
102. The Appellate Court did not address, however,
the plaintiff’s contention that the court improvidently
raised, and therefore should not consider, the prevention
issue that the court identified in its order for supplemental
briefing.
This certified appeal followed. The plaintiff claims
that (1) the Appellate Court improperly raised the prevention
issue sua sponte in its order for supplemental
briefing, and (2) even if the Appellate Court properly
raised the issue, it incorrectly concluded that the plaintiff
could not prevail on its claim under the prevention
doctrine. The defendants contend that they preserved,
in the trial court, the issue that the Appellate Court
raised in its order for supplemental briefing, and, even
if it did not, the Appellate Court acted within its discretion
to raise the issue sua sponte and properly decided
it.12 We reject the defendants’ claim that they preserved
the issue in the trial court but conclude that the Appellate
Court properly raised the issue sua sponte because
it was justified in doing so on the basis of exceptional
circumstances and, further, that the plaintiff suffered
no cognizable prejudice thereby. We also conclude that
the Appellate Court properly decided the issue.
I
PRESERVATION CLAIM
We first address the plaintiff’s claim that the Appellate
Court improperly ordered, sua sponte, supplemental
briefing on an issue that the defendants had neither
raised before the trial court nor raised as an alternative
ground for affirmance on appeal. The defendants contend,
to the contrary, that the Appellate Court properly
ordered supplemental briefing on the issue because
they had raised the issue in the trial court, and, even
if the issue was not expressly preserved, it was closely
intertwined with the issue that the plaintiff raised on
appeal. In addition, the defendants claim that, even if
the issue that the Appellate Court raised was entirely
distinct, the Appellate Court had the authority to raise
and decide the issue as long as it requested supplemental
briefing thereon. We conclude that the issue was
not preserved in the trial court but that the Appellate
Court properly raised it sua sponte.
A
Preservation of Issue on Which Appellate
Court Ordered Supplemental Briefing
We begin with the question of whether the issue on
which the Appellate Court ordered supplemental briefing
was raised, and thereby preserved, in the trial court,
as ordinarily is required for review of a claim on appeal.
See, e.g., Murphy v. EAPWJP, LLC, 306 Conn. 391, 399,
50 A.3d 316 (2012) (‘‘[i]t is well established that a claim
must be distinctly raised at trial to be preserved for
appeal’’); see also Practice Book § 60-5 (‘‘[t]he court
shall not be bound to consider a claim unless it was
distinctly raised at the trial’’). The defendants note that
the Appellate Court observed in its decision that
‘‘Brown & Brown . . . argued [in the motion for summary
judgment] that its alleged failure to forward the
. . . renewal notice occurred many months before the
parties entered into the contract, and, therefore, such
action could not provide the basis for a breach of the
agreement as alleged in the complaint.’’ Blumberg Associates
Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., supra, 132 Conn. App. 92. The defendants
contend that, because this was the very issue on which
the Appellate Court sought supplemental briefing, that
issue was preserved. Thus, the defendants essentially
claim, as they did in their opposition to the plaintiff’s
motion for permission to file a reply to the defendants’
supplemental brief in the Appellate Court, that there
was no material distinction between the plaintiff’s claim
that the defendants breached the further assurances
provision of the contract, which is the claim that the
defendants addressed in their motion for summary judgment,
and the plaintiff’s claim that the defendants hindered
the plaintiff in its efforts to comply with the
contractual license requirement for purposes of the prevention
doctrine, which is the claim that the plaintiff
raised in its opposition to the motion for summary judgment.
In other words, in the defendants’ view, the further
assurances provision is merely an express
statement of the principles of good faith and fair dealing
that underlie the prevention doctrine—principles that
are implied in every contract—and that the alleged
breach of that provision constituted hindering conduct
under the prevention doctrine.
The plaintiff contends, to the contrary, that its claim
that the defendants were equitably barred by the prevention
doctrine from terminating the contract on the
basis of the plaintiff’s failure to renew its license was
entirely distinct from its claim that the defendants
breached the further assurances provision, which claim
the plaintiff did not press in its opposition to the defendants’
motion for summary judgment. The plaintiff further
contends that the defendants, in their reply to the
plaintiff’s opposition to the motion for summary judgment,
raised no claim that the plaintiff’s claim under the
prevention doctrine failed as a matter of law because of
the timing of the defendants’ alleged conduct, and the
trial court rejected the plaintiff’s claim under the prevention
doctrine solely on the ground that the status
of the plaintiff’s license renewal was a matter of public
record. Accordingly, the plaintiff contends, the claim
that the prevention doctrine does not apply because of
the timing of the defendants’ alleged conduct never was
raised or decided in the trial court.
We agree with the plaintiff. Although the specific
issue on which the Appellate Court ordered supplemental
briefing, namely, ‘‘whether the plaintiff’s claim of
breach of contract based on Brown & Brown’s alleged
failure to forward the renewal notice failed as a matter
of law because the alleged conduct occurred prior to the
date [on] which the parties entered into the [contract]’’;
Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 132 Conn. App. 94;
was raised by the defendants in the trial court, the
defendants raised it in response to the plaintiff’s claim
under the further assurances provision of the contract.
The defendants did not raise the claim in support of
their contention that the plaintiff’s claim under the prevention
doctrine failed as a matter of law, which was
the only ruling by the trial court that the plaintiff challenged
on appeal. Rather, in the defendants’ reply to
the plaintiff’s opposition to the motion for summary
judgment, in which the plaintiff first raised its claim
under the prevention doctrine, the defendants contended
only that the prevention doctrine was inapplicable
because they had not brought a breach of contract
claim against the plaintiff, in response to which the
plaintiff could have asserted the defense of prevention.
Furthermore, the trial court did not suggest in its memorandum
of decision that its reasons for concluding that
there was no genuine issue of material fact as to
whether the defendants breached the further assurances
provision applied equally to the plaintiff’s prevention
claim. Accordingly, we conclude that the issue on
which the Appellate Court sought supplemental briefing
was neither distinctly raised by the defendants nor
directly decided by the trial court.
B
Authority of Appellate Court to Raise
Unpreserved Issue Sua Sponte
Having concluded that the issue on which the Appellate
Court ordered supplemental briefing was not raised
in the trial court, we turn to the plaintiff’s claim that
the Appellate Court improperly raised it sua sponte. In
support of its claim, the plaintiff asserts, first, that a
reviewing court generally should not engage in ‘‘sua
sponte issue generation’’ because it is ‘‘inconsistent
with our adversarial system of justice,’’ in which the
parties decide which issues to litigate and the court
decides those issues. Acknowledging that we have recognized
some limited exceptions to this general rule,13
the plaintiff contends that those exceptions are not
applicable to the present case. The plaintiff also contends
that, to the extent that this court has indicated
that it is appropriate for a reviewing court to raise an
issue sua sponte whenever it wishes, as long as the
court affords the parties an opportunity to brief the
issue, we should disavow any such suggestion. The
plaintiff finally maintains that a reviewing court should
not raise an issue sua sponte when doing so would
result in undue prejudice to a party, and, further, in the
present case, it was improper for the Appellate Court
to raise the issue that it did because the plaintiff was
unfairly prejudiced by the court’s action.
‘‘It is well settled that [o]ur case law and rules of
practice generally limit [an appellate] court’s review
to issues that are distinctly raised at trial.’’ (Internal
quotation marks omitted.) State v. Hampton, 293 Conn.
435, 442, 978 A.2d 1089 (2009); see Practice Book § 60-
5. ‘‘[O]nly in [the] most exceptional circumstances can
and will this court consider a claim, constitutional or
otherwise, that has not been raised and decided in the
trial court.’’ (Internal quotation marks omitted.) PerezDickson
v. Bridgeport, 304 Conn. 483, 498–99, 43 A.3d
69 (2012); accord New Haven v. Bonner, 272 Conn. 489,
498, 863 A.2d 680 (2005). ‘‘The reason for the rule is
obvious: to permit a party to raise a claim on appeal
that has not been raised at trial—after it is too late for
the trial court or the opposing party to address the
claim—would encourage trial by ambuscade, which is
unfair to both the trial court and the opposing party.’’
(Internal quotation marks omitted.) State v. Dalzell,
282 Conn. 709, 720, 924 A.2d 809 (2007). As this court
previously has observed, this rule, as a general matter,
applies equally to alternative grounds for affirmance.
See id., 717, 720; see also Thomas v. West Haven, 249
Conn. 385, 390 n.11, 734 A.2d 535 (1999) (‘‘[t]he appellee’s
right to file a [preliminary statement of the issues
pursuant to Practice Book] § 63-4 [a] [1] . . . has not
eliminated the duty to have raised the issue in the trial
court’’ [internal quotation marks omitted]), cert. denied,
528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000).
We also have recognized, however, that, although a
reviewing court is not bound to consider claims that
were not raised at trial, it has the authority to do so in
its discretion, an authority that is limited neither by
statute nor by procedural rules. See, e.g., Persico v.
Maher, 191 Conn. 384, 403, 465 A.2d 308 (1983) (‘‘[w]hile
we are not bound to consider [unpreserved] claims of
error, and do not ordinarily do so, we have [on] occasion
considered a question which was not so raised, not by
reason of the appellant’s right to have it determined
but because in our opinion in the interest of public
welfare or of justice between individuals it ought to be
done’’ [internal quotation marks omitted]). This
includes the authority to raise unpreserved issues sua
sponte. See, e.g., Reardon v. Windswept Farm, LLC,
280 Conn. 153, 165, 905 A.2d 1156 (2006) (‘‘[t]his court
. . . has the discretion to act, sua sponte, on grounds
not directly raised by the parties’’); State v. Ramos, 261
Conn. 156, 172 n.16, 801 A.2d 788 (2002) (‘‘[i]n certain
instances, dictated by the interests of justice, we may,
sua sponte, exercise our inherent supervisory power to
review an unpreserved claim that has not been [properly]
raised [on appeal]’’); Burton v. Browd, 258 Conn.
566, 569, 783 A.2d 457 (2001) (‘‘[t]he Appellate Court
has judicial discretion to act, sua sponte, on grounds
not directly raised by the parties’’). Our cases have not
always been clear, however, as to what circumstances
will justify review of unpreserved claims raised on
appeal or the scope of the reviewing court’s discretion
to raise unpreserved issues sua sponte. This case provides
us with an opportunity to clarify these issues.
1
Circumstances Under Which Reviewing Court
May Consider Unpreserved Claims
Raised by a Party
In furtherance of that endeavor, we undertake a brief
review of the historical factors and jurisprudential principles
that underlie the treatment of unpreserved claims
by appellate courts. One commentator has argued that
the confusion about the authority of appellate courts
to raise and decide issues sua sponte arose from the
unresolved ‘‘tension between law and equity . . . .’’ B.
Miller, ‘‘Sua Sponte Appellate Rulings: When Courts
Deprive Litigants of an Opportunity to Be Heard,’’ 39
San Diego L. Rev. 1253, 1262 (2002). Historically, the
English courts were divided between courts of law and
courts of equity. See id., 1263. An appeal from the decision
of a court of law was taken by way of a writ of
error, which assigned specific issues on which the trial
court had made an error. Id. Issues not expressly
assigned were waived. Id.; see also R. Martineau, ‘‘Considering
New Issues on Appeal: The General Rule and
the Gorilla Rule,’’ 40 Vand. L. Rev. 1023, 1026–27 (1987)
(‘‘[t]he purpose [of the writ of error] was not to test
whether the proper party had won, but only whether
the judge had made an error’’). ‘‘Unlike the law courts,
equity developed flexible procedures to address the
needs of individual cases. One of those procedures was
the device of rehearing, which allowed the court to
address new facts or law not originally raised by the
parties.’’ B. Miller, supra, 1263; see also R. Martineau,
supra, 1027 (in courts of equity, ‘‘[t]he appellate court
could review the entire case, both law and facts, and
render any type of judgment it thought justice
demanded, without regard to whether the issue [on]
which the appellate court based its judgment had been
presented to the lower court’’). In the United States,
most jurisdictions, including Connecticut and the federal
courts, have merged law and equity courts, and
one set of appellate courts administers both systems.
See B. Miller, supra, 1264. Although most ‘‘appellate
procedures are overtly based on the principles of writ
of error review at common law, rather than the appeal
in equity . . . the historic tensions underlying law and
equity persist . . . and still compete in the workings of
appellate courts.’’14 (Footnotes omitted.) Id. ‘‘Because
judges [continue to] see their role as doing justice in
the tradition of equity (or at least avoiding miscarriages
of justice), courts frequently refuse to apply the waiver
rule15 and instead raise issues sua sponte’’ to avoid an
unjust result. (Footnote added.) Id., 1271; see also Hormel
v. Helvering, 312 U.S. 552, 557, 61 S. Ct. 719, 85 L.
Ed. 1037 (1941) (‘‘Rules of practice and procedure are
devised to promote the ends of justice, not to defeat
them. A rigid and undeviating judicially declared practice
under which courts of review would invariably and
under all circumstances decline to consider all questions
which had not previously been specifically urged
would be out of harmony with this policy. Orderly rules
of procedure do not require sacrifice of the rules of
fundamental justice.’’); Persico v. Maher, supra, 191
Conn. 403 (this court will address unpreserved claims
when ‘‘in [its] opinion in the interest of public welfare
or of justice between individuals it ought to be done’’
[internal quotation marks omitted]).
Another commentator has argued that the inconsistent
treatment of unpreserved claims by appellate
courts reflects the tension between the adversarial system
and the inquisitorial system. A. Frost, ‘‘The Limits
of Advocacy,’’ 59 Duke L.J. 447, 458–59 (2009). The
American legal system historically has been ‘‘considered
more adversarial than most, and its basic principle
is that the parties, not the judge, have the major responsibility
for and control over the definition of the dispute.’’
(Internal quotation marks omitted.) Id., 458; see
id., 455 (under adversarial system, ‘‘the parties to litigation,
and not the judge, are responsible for raising the
legal questions that will ultimately be resolved by the
court’’); see also Greenlaw v. United States, 554 U.S.
237, 243, 128 S. Ct. 2559, 171 L. Ed. 2d 399 (2008) (‘‘In
our adversary system, in both civil and criminal cases,
in the first instance and on appeal, we follow the principle
of party presentation. That is, we rely on the parties
to frame the issues for decision and assign to courts the
role of neutral arbiter of matters the parties present.’’);
United States v. Burke, 504 U.S. 229, 246, 112 S. Ct.
1867, 119 L. Ed. 2d 34 (1992) (Scalia, J., concurring in
the judgment) (‘‘[t]he rule that points not argued will
not be considered is more than just a prudential rule
of convenience; its observance, at least in the vast
majority of cases, distinguishes our adversary system
of justice from the inquisitorial one’’). In contrast, in
the inquisitorial system that is prevalent in European
courts, ‘‘judges take the lead in the investigation and
presentation of the case.’’ A. Frost, supra, 449. The
justifications for the adversarial system are ‘‘that selfinterested
adversaries will uncover and present more
useful information and arguments to the decision maker
than would be developed by the judicial officer in an
inquisitorial system’’; A. Milani & M. Smith, ‘‘Playing
God: A Critical Look at Sua Sponte Decisions by Appellate
Courts,’’ 69 Tenn. L. Rev. 245, 282 (2002); ‘‘the
system preserves individual autonomy and dignity by
allowing a person the freedom to make his case to the
court’’; id.; and ‘‘a party who is intimately involved in
the adjudicatory process and feels that he has been
given a fair opportunity to present his case . . . is
likely to accept the results whether favorable or not.’’
(Internal quotation marks omitted.) Id., 283–84; see also
A. Frost, supra, 459 (‘‘[t]he litigants’ control of case
presentation is thought to promote dignitary and participation
values by affirm[ing] human individuality and
showing respect for the opinions of each party, producing
an outcome more satisfying to winners and losers
alike’’ [internal quotation marks omitted]). In addition,
requiring parties to frame the issues ‘‘promotes judicial
economy, efficient resolution of disputes, and finality.’’
A. Frost, supra, 461. Finally, it has been argued that the
adversarial system promotes judicial neutrality and the
‘‘integrity of the adjudicative process itself . . . .’’
(Internal quotation marks omitted.) A. Milani & M.
Smith, supra, 247.16
Regardless of whether the practice of appellate
courts in raising issues sua sponte that have not been
raised in the trial court is analyzed under the law versus
equity model or the adversarial versus inquisitorial system
model, there is widespread agreement that appellate
courts have the authority to engage in this practice.
See United States National Bank of Oregon v. Independent
Ins. Agents of America, Inc., 508 U.S. 439, 446,
113 S. Ct. 2173, 124 L. Ed. 2d 402 (1993) (‘‘when [a case]
is properly before the court, the court is not limited to
the particular legal theories advanced by the parties,
but rather retains the independent power to identify
and apply the proper construction of governing law’’
[internal quotation marks omitted]);17 id., 447 (‘‘a court
may consider an issue antecedent to . . . and ultimately
dispositive of the dispute before it, even an issue
the parties fail to identify and brief’’ [internal quotation
marks omitted]); Singleton v. Wulff, 428 U.S. 106, 121,
96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976) (‘‘The matter of
what questions may be taken up and resolved for the
first time on appeal is one left primarily to the discretion
of the courts of appeals, to be exercised on the facts
of individual cases. [There is] no general rule. Certainly
there are circumstances in which a federal appellate
court is justified in resolving an issue not passed on
below . . . .’’ [Citation omitted.]); Reardon v. Windswept
Farm, LLC, supra, 280 Conn. 165 (‘‘[t]his court
has the discretion to act, sua sponte, on grounds not
directly raised by the parties’’); see also Davis v. United
States, 512 U.S. 452, 464, 114 S. Ct. 2350, 129 L. Ed.
2d 362 (1994) (Scalia, J., concurring) (‘‘the refusal to
consider arguments not raised is a sound prudential
practice, rather than a statutory or constitutional mandate,
and there are times when prudence dictates the
contrary’’).
Under our case law, however, the circumstances that
justify sua sponte review of an unpreserved issue are
far from clear. In an attempt to shed some light on this
question, we first review the circumstances that justify
review of an unpreserved claim that a party has raised.
Our cases have recognized a number of circumstances
in which the reviewing court not only can but is obligated
to exercise its power to review an unpreserved
claim if certain conditions are met. First, this court
repeatedly has held that claims implicating subject matter
jurisdiction may be raised by the parties or by the
court at any time; see, e.g., Ajadi v. Commissioner of
Correction, 280 Conn. 514, 533, 911 A.2d 712 (2006);
and must be resolved once they are raised. See, e.g.,
State v. Richardson, 291 Conn. 426, 429, 969 A.2d 166
(2009) (‘‘once raised, either by a party or by the court
itself, the question [of subject matter jurisdiction] must
be answered before the court may decide the case’’
[internal quotation marks omitted]). Second, a
reviewing court ‘‘may in the interests of justice notice
plain error not brought to the attention of the trial
court.’’ Practice Book § 60-5; see also State v. Sanchez,
308 Conn. 64, 77, 60 A.3d 271 (2013) (‘‘the plain error
doctrine is reserved for truly extraordinary situations
[in which] the existence of the error is so obvious that
it affects the fairness and integrity of and public confidence
in the judicial proceedings’’ [internal quotation
marks omitted]). Indeed, ‘‘our jurisprudence mandates
[review of an unpreserved claim and] reversal when
the reviewing court determines that manifest injustice
has resulted from a trial court’s unpreserved error.’’
(Emphasis in original.) State v. Sanchez, supra, 79.
Finally, this court will review unpreserved constitutional
claims when the conditions set forth in State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
have been met.18
This court also has, on occasion, addressed unpreserved,
nonjurisdictional claims under its supervisory
power without invoking the plain error doctrine or
Golding.19 See, e.g., Perez-Dickson v. Bridgeport, supra,
304 Conn. 500 (court may review unpreserved claim
when ‘‘consideration of the question is in the interest
of public welfare or of justice between the parties’’
[internal quotation marks omitted]). In addition, this
court and the Appellate Court occasionally have
invoked the plain error doctrine to review an unpreserved
claim without expressly finding that ‘‘the error
[was] so obvious that it affect[ed] the fairness and integrity
of and public confidence in the judicial proceedings.’’
20 (Internal quotation marks omitted.) State v.
Myers, 290 Conn. 278, 287–88, 963 A.2d 11 (2009). We
acknowledge that this practice appears to be inconsistent
with the principle that the plain error rule ‘‘is not
. . . a rule of reviewability. It is a rule of reversibility.
That is, it is a doctrine that this court invokes in order
to rectify a trial court ruling that, although either not
properly preserved or never raised at all in the trial
court, nonetheless requires reversal . . . for reasons
of policy.’’ State v. Cobb, 251 Conn. 285, 343 n.34, 743
A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106,
148 L. Ed. 2d 64 (2000). Thus, ‘‘[a]n appellate court
addressing a claim of plain error first must determine
if the error is indeed plain in the sense that it is patent
[or] readily [discernible] on the face of a factually adequate
record, [and] also . . . obvious in the sense of
not debatable.’’ (Internal quotation marks omitted.)
State v. Sanchez, supra, 308 Conn. 77. In addition, ‘‘[a]
party cannot prevail under plain error unless it has
demonstrated that the failure to grant relief will result
in manifest injustice.’’21 (Internal quotation marks omitted.)
Id. As we have indicated, however, in addition to
the authority to review unpreserved claims under the
plain error doctrine and Golding, a reviewing court has
the authority to review such claims under its supervisory
power.22 Accordingly, to the extent that this court
and the Appellate Court may have invoked the plain
error doctrine improperly in cases in which there was
no patently obvious trial court error resulting in manifest
injustice, it does not necessarily follow that review
of the unpreserved claims under the court’s supervisory
power would have been inappropriate in those cases.
Although our cases have not clearly identified the
specific circumstances that will justify the exercise of
our supervisory power to review unpreserved claims
in the absence of plain error or constitutional error, we
glean the following general principles from them. First,
the minimal requirements for review of an unpreserved
claim are that the record must be adequate for review,
such that there is no need for additional trial court
proceedings or factual findings,23 and all parties must
have had an opportunity to be heard on the issue.24 See,
e.g., Vine v. Zoning Board of Appeals, 281 Conn. 553,
568–69, 916 A.2d 5 (2007). In addition, review of an
unpreserved claim generally is inappropriate if it results
in unfair prejudice to any party.25 Prejudice may be
found, for example, when a party demonstrates that it
would have presented additional evidence or that it
otherwise would have proceeded differently if the claim
had been raised at trial. See Perez-Dickson v. Bridgeport,
supra, 304 Conn. 501–505; see also Singleton v.
Wulff, supra, 428 U.S. 120 (rule that claim must be raised
in trial court is ‘‘essential [so] that parties may have
the opportunity to offer all [of] the evidence they believe
[is] relevant to the issues . . . [and so] that litigants
[will] not be surprised on appeal by [a] final decision
. . . of issues [on] which they have had no opportunity
to introduce evidence’’ [internal quotation marks omitted]).
Moreover, because it may be difficult for a party
to prove definitively that it would have proceeded in a
different manner and, as a result, would suffer unfair
prejudice if the reviewing court were to consider the
unpreserved issue, once that party makes a colorable
claim of such prejudice, the burden shifts to the other
party to establish that the first party will not be prejudiced
by the reviewing court’s consideration of the
issue. See Perez-Dixon v. Bridgeport, supra, 501 n.25
(when reviewing court raises issue sua sponte, burden
falls on party favoring reviewing court’s consideration
of that issue to disprove prejudice to party objecting
to such consideration).
We emphasize that, although these conditions are
necessary for the review of unpreserved claims, they
are not alone sufficient.26 Review of an unpreserved
claim may be appropriate, however, when the minimal
requirements for review are met and (1) the party that
did not raise the claim does not object to review;27 see,
e.g., Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., 236
Conn. 863, 868 n.10, 675 A.2d 441 (1996) (reviewing
unpreserved claim ‘‘[b]ecause [the defendant] has not
argued that [the court] should refrain from considering
[it]’’); or (2) the party who raised the unpreserved claim
cannot prevail.28 See, e.g., State v. Gaines, 257 Conn.
695, 713 n.13, 778 A.2d 919 (2001) (reviewing claim
without determining whether it was preserved because
defendant could not prevail on claim). We conclude
that, if either of these additional conditions are met,
the reviewing court has broad discretion to review the
claim or, alternatively, to decline to do so if, for example,
the claim was clearly unpreserved and there are
no specific reasons militating in favor of review, the
unpreserved claim would require an extremely complex,
time-consuming analysis, or the issue was not
well briefed.
As we have indicated, there also are circumstances
that militate in favor of reviewing unpreserved claims
even over the objection of a party. This court has
reviewed unpreserved claims pursuant to its supervisory
power when the claim was of a public character;
Donovan v. Davis, 85 Conn. 394, 399, 82 A. 1025 (1912)
(although claim that trial court improperly had ordered
ballot boxes opened for recount after election for public
office was unpreserved, ‘‘the public character of the
case and the practical importance of the [unpreserved]
question involved lead [the court] to briefly discuss it
[on] the merits’’); when there was an intervening change
in the law; see Reardon v. Windswept Farm, LLC,
supra, 280 Conn. 165 (when there was intervening
change in law, ‘‘the interest in the uniform application
of the plainly governing law warrants . . . consideration
of a claim beyond the narrow issue that was before
the trial court’’); when there was a newly established,
undisputed fact on which both parties relied; see Vine
v. Zoning Board of Appeals, supra, 281 Conn. 568–70
(reviewing unpreserved, alternative ground for affirmance
when undisputed, dispositive fact on which both
parties relied was established after trial court rendered
judgment); when review of the claim would obviate the
need to address a constitutional question; see State
v. Ray, 290 Conn. 602, 608 n.7, 966 A.2d 148 (2009)
(reviewing defendant’s unpreserved, statutory interpretation
claim that was intertwined with defendant’s constitutional
claim when resolution of claim could have
obviated need to review constitutional claim);29 when
the trial court’s evidentiary ruling was correct but for
the wrong reason; State v. Colon, 272 Conn. 106, 187–88,
864 A.2d 666 (2004) (court assumed that trial court was
incorrect in ruling that certain testimony was admissible
on ground that defense counsel had opened door
to its admission and held that it was not error to admit
testimony because it could have been admitted to establish
intent of defendant when he killed victim), cert.
denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116
(2005); and when the claim involves judicial bias. Cameron
v. Cameron, 187 Conn. 163, 168, 444 A.2d 915
(1982) (reviewing claim of judicial bias under plain error
doctrine because judicial bias ‘‘strikes at the very core
of judicial integrity and tends to undermine public confidence
in the established judiciary’’ [internal quotation
marks omitted]).30 This list is not intended to be exhaustive,
and, indeed, it would be impossible to catalogue
all of the circumstances under which review of an
unpreserved claim might be appropriate. It is clear,
however, that these are exceptional cases, in which the
interests of justice, fairness, integrity of the courts and
consistency of the law significantly outweigh the interest
in enforcing procedural rules governing the preservation
of claims.31 Accordingly, we emphasize that a
general statement by a reviewing court that the review
of an unpreserved claim is warranted in the interests
of justice between the parties or because no party will
be prejudiced is not alone sufficient.32 Rather, unless
all parties agree to review of the unpreserved claim or
the party raising the claim cannot prevail, the reviewing
court should provide specific reasons, based on the
exceptional circumstances of the case, to justify a deviation
from the general rule that unpreserved claims will
not be reviewed.
2
Circumstances Under Which Reviewing Court May
Raise Unpreserved Issue Sua Sponte
Having discussed the circumstances under which
review of an unpreserved claim raised by a party is
appropriate, we next consider the circumstances under
which a reviewing court is justified in raising an unpreserved
issue sua sponte. As we have indicated, the
reviewing court not only can but must address an issue
implicating subject matter jurisdiction whenever it
arises, regardless of how the issue comes to the court’s
attention. With respect to unpreserved issues involving
plain error or constitutional error, our focus has been
on the need to afford parties the opportunity to address
the issue rather than on respect for the autonomy of
the litigants because it is implicit in our jurisprudence
governing plain error and Golding review that, in cases
involving manifest injustice and constitutional error,
respectively, considerations of fairness and justice outweigh
the considerations underlying the general policy
of deference to the adversarial process. Accordingly,
we can perceive no reason why a reviewing court should
be precluded from raising issues involving plain error
or constitutional error sua sponte, as long as the court
provides an opportunity for the parties to be heard by
way of supplemental briefing and the other threshold
conditions for review are satisfied.33
Similarly, we conclude that, with respect to unpreserved
issues that do not involve subject matter jurisdiction,
plain error or constitutional error, if the reviewing
court would have the discretion to review the issue if
raised by a party because important considerations of
justice outweigh the interest in enforcing procedural
rules governing the preservation of claims and adversarial
principles, the court may raise the claim sua sponte,
as long as it provides an opportunity for all parties to
be heard on the issue.34 In other words, if an exceptional
circumstance exists that would justify review of an
unpreserved claim if raised by a party, the reviewing
court may raise the issue sua sponte.35 Of course, as we
have explained in connection with a reviewing court’s
consideration of a claim raised for the first time on
appeal, if a party objecting to the reviewing court’s sua
sponte consideration of the claim can demonstrate that
it would be unfairly prejudiced by such consideration,
it would be inappropriate for the appellate tribunal to
consider such a claim. Furthermore, once the objecting
party makes a colorable showing of unfair prejudice,
the burden shifts to the other party to establish that
the objecting party will suffer no such prejudice.
Although we again underscore that all of the circumstances
in which a reviewing court may raise an issue
sua sponte cannot be catalogued, we also reiterate that
our system is an adversarial one in which the burden
ordinarily is on the parties to frame the issues, and the
presumption is that issues not raised by the parties are
deemed waived.
3
Reviewing Court’s Treatment of Unpreserved,
Alternative Grounds for Affirmance
We next consider how the foregoing principles apply
more specifically to alternative grounds for affirmance.
36 Treatment of such claims depends on three variables:
(1) whether the claim was raised in the trial court;
(2) whether the claim was raised on appeal; and (3)
whether the appellant would be entitled to a directed
judgment if it prevailed on the claim that it raised on
appeal, or whether, instead, there would be further proceedings
in the trial court. We first address cases in
which the appellant, upon prevailing, would be entitled
to a directed judgment, so that there would be no further
trial court proceedings.Weconclude that, in such cases,
the reviewing court may review an unpreserved, alternative
ground for affirmance, or raise the issue sua
sponte, only if the claim merits review under the plain
error doctrine or Golding, or under exceptional circumstances
such as those previously described in this opinion.
In such circumstances, it may be argued that, as
a general matter, the appellee should not be in a better
position because of the trial court’s reversible error on
the issue raised by the appellant on appeal than it would
have been if the trial court correctly had rendered judgment
for the appellant in the first place.37 Moreover, the
interests of judicial economy ordinarily militate against
permitting sua sponte appellate review of an unpreserved
claim by the appellee that would result in a new
trial or some other further proceeding in the trial court.
Those interests are best served, rather, by a general
rule that would result in an end to the litigation by
virtue of a directed judgment in favor of the appellant.
We also address the situation in which the resolution
of the appellant’s claim would result in a directed judgment
in the appellant’s favor, the alternative ground for
affirmance was raised in the trial court, but the appellee
failed to raise the claim on appeal. We conclude that,
when the trial court actually ruled on the alternative
ground in the appellee’s favor, the reviewing court properly
may raise the issue sua sponte. Under such circumstances,
the fact that the appellant failed to appeal from
the ruling on the alternative ground means that that
ruling would stand even if the appellant prevailed on
the claim that it raised, and, therefore, the reviewing
court could not grant effective relief. Thus, the
reviewing court would lack appellate jurisdiction. See
State v. T.D., 286 Conn. 353, 361, 944 A.2d 288 (2008)
(issue on appeal is moot when appellate court cannot
grant relief, and mootness implicates appellate court’s
subject matter jurisdiction). If the trial court did not
rule in the appellee’s favor on the preserved alternative
ground, however, the reviewing court should not raise it
sua sponte in the absence of exceptional circumstances.
With respect to cases in which the reviewing court
would be required to order further proceedings in the
trial court upon deciding the case in the appellant’s
favor, we conclude that the court may consider an
unpreserved, alternative ground for affirmance that was
raised on appeal for reasons of judicial economy,
because the appellee likely would raise the claim on
remand.38 If the unpreserved issue was not raised on
appeal, the reviewing court should raise the issue sua
sponte only if it seems likely that the issue would arise
on remand, even though the appellee has not raised it
on appeal, or if exceptional circumstances exist. If the
issue was preserved in the trial court but was not raised
on appeal, then, for the reasons that we have explained,
the reviewing court may raise it sua sponte if the trial
court ruled on the issue in the appellee’s favor.
4
Application of Principles Governing Treatment
of Unpreserved Claims to the Present Case
With these principles in mind, we address the plaintiff’s
claim in the present case that the Appellate Court
improperly raised, sua sponte, the issue of whether the
plaintiff’s breach of contract claim failed as a matter of
law because the defendants’ alleged conduct occurred
before the parties entered into the contract.
As a preliminary matter, we address the standard of
review. The plaintiff contends that, because the Appellate
Court raised the issue sua sponte, its decision to
review the issue should be reviewed de novo.39 The
defendants contend, to the contrary, that, because the
review of unpreserved claims is within the reviewing
court’s discretion, this court should review the Appellate
Court’s decision for abuse of discretion. In support
of this claim, the defendants rely on this court’s decision
in State v. Myers, supra, 290 Conn. 286, which in turn
relied on Finley v. Aetna Life&Casualty Co., 202 Conn.
190, 520 A.2d 208 (1987), overruled in part on other
grounds by Curry v. Burns, 225 Conn. 782, 626 A.2d
719 (1993), in which the court stated that ‘‘the scope
of [this court’s] review is limited to [a determination
of] whether the Appellate Court abused its discretion
in granting review under the plain error doctrine.’’ Finley
v. Aetna Life & Casualty Co., supra, 196. We note
that, since the parties in the present case filed their
briefs, this court has overruled Finley in determining
that the Appellate Court’s decision to reverse a judgment
under the plain error doctrine is subject to plenary
review. State v. Sanchez, supra, 308 Conn. 80. Nevertheless,
we agree with the defendants that the Appellate
Court’s decision to raise an unpreserved issue sua
sponte in exceptional circumstances is subject to
review for abuse of discretion.
In Sanchez, this court explained that ‘‘the plain error
doctrine is not . . . a rule of reviewability. It is a rule
of reversibility. . . . Indeed . . . our jurisprudence
mandates reversal when the reviewing court determines
that manifest injustice has resulted from a trial
court’s unpreserved error.’’ (Citation omitted; emphasis
in original; internal quotation marks omitted.) Id., 79;
see also State v. Myers, supra, 290 Conn. 288–89 (‘‘an
appellate court addressing an appellant’s plain error
claim must engage in a review of the trial court’s actions
and, upon finding a patent error, determine whether the
grievousness of that error qualifies for the invocation of
the plain error doctrine and the automatic reversal that
accompanies it’’ [emphasis in original]). Thus, if a patent
error has resulted in manifest injustice, the reviewing
court has no choice but to reverse the trial court’s
judgment. Conversely, if there was no patent error or
manifest injustice, the court has no discretion to review
the claim under the plain error doctrine. See State v.
Myers, supra, 289–90; see also State v. Pierce, 269 Conn.
442, 452–53, 849 A.2d 375 (2004) (although trial court’s
failure to comply with rules of practice was improper,
Appellate Court improperly vacated defendant’s sentence
under plain error doctrine because error did not
result in manifest injustice). Moreover, because the trial
court’s error must be patent and the injustice must be
manifest, there is little gray area allowing for the exercise
of judgment with respect to the determination of
whether these standards are satisfied; either they are
satisfied or they are not. Accordingly, we concluded
in Sanchez that, contrary to this court’s statement in
Finley, the plain error doctrine confers no discretion
on the Appellate Court, and that court’s decision to
review a claim under the doctrine is subject to plenary
review. See State v. Sanchez, supra, 308 Conn. 79–80.
In contrast, this court repeatedly has stated that,
when it acts in the exercise of its supervisory power,
it ‘‘has the discretion to act, sua sponte, on grounds not
directly raised by the parties.’’ Reardon v. Windswept
Farm, LLC, supra, 280 Conn. 165; see also Burton v.
Browd, supra, 258 Conn. 569 (‘‘[t]he Appellate Court
has judicial discretion to act, sua sponte, on grounds
not directly raised by the parties’’); State v. Gilnite, 202
Conn. 369, 373, 521 A.2d 547 (1987) (‘‘the Appellate
Court has . . . discretion in addressing claims not
raised by the parties’’). Although, as we have explained
in this opinion, this discretion is not unlimited, and an
unpreserved claim is reviewable only under exceptional
circumstances, a particular claim may fall into a gray
area in which reasonable jurists could disagree as to
whether review is justified. If a claim falls into that gray
area, we will not reverse the Appellate Court’s decision
to raise it sua sponte simply because we might have
reached a different conclusion.
Under the circumstances presented, we cannot conclude
that the Appellate Court abused its discretion in
raising, sua sponte, the issue of whether the plaintiff’s
breach of contract claim failed as a matter of law
because the alleged failure to forward the renewal
notice to the plaintiff occurred before the parties
entered into the contract. The plaintiff notes that the
only claim that the defendants raised in their motion
for summary judgment was that the plaintiff’s claim that
the defendants had breached the further assurances
provisions of the contract failed as a matter of law
because the alleged conduct occurred before the contract
existed. The plaintiff further notes that it abandoned
that theory in its opposition to the defendants’
motion for summary judgment and argued only that the
defendants were barred from terminating the contract
under the prevention doctrine. Although, as previously
discussed, we have regarded the two claims as separate
and distinct for preservation purposes because the parties
and the trial court treated them as separate and
distinct, in light of the marked and obvious similarity
between those theories, the Appellate Court reasonably
could have concluded that the plaintiff’s argument with
respect to the prevention doctrine did not constitute
an abandonment of its claim that the defendants had
breached the further assurances provision but, rather,
constituted an elaboration of that claim.40 Indeed, as
we explain in part II of this opinion, the plaintiff’s claim
that performance of the condition that the plaintiff
maintain its insurance license was excused because the
defendants prevented performance was essentially
equivalent to the claim that the defendants breached
the covenant of good faith and fair dealing by failing
to forward the renewal notice to the plaintiff. In turn, the
further assurances provision essentially incorporated
certain aspects of the covenant of good faith and fair
dealing.
Thus, the Appellate Court reasonably could have concluded
that, even if the plaintiff could prevail on the
claim that it raised on appeal to the Appellate Court—
that is, that the trial court improperly had rejected the
plaintiff’s claim under the prevention doctrine on the
ground that the defendants were not the sole cause of
the suspension of the plaintiff’s insurance license—the
trial court’s conclusion that the plaintiff’s claim under
the further assurances provision failed as a matter of
law because the defendants’ conduct had predated the
formation of the contract applied fully to the plaintiff’s
claim under the prevention doctrine. Accordingly, the
Appellate Court reasonably could have been concerned
that the plaintiff’s claim on appeal was effectively moot,
which would implicate the court’s subject matter jurisdiction.
41 See, e.g., State v. T.D., supra, 286 Conn. 361
(issue on appeal is moot when appellate court cannot
grant relief). Moreover, even if the Appellate Court
understood that the parties and the trial court had
viewed the two issues as distinct, because of the obvious
similarity between those issues, the Appellate Court
reasonably could have expected that, if the plaintiff
prevailed on its claim on appeal, the defendants, upon
remand of the case to the trial court, would raise the
claim that the prevention doctrine did not apply because
the defendants’ conduct occurred before the existence
of the contract.42 As we have indicated, interests of
judicial economy justify appellate review of an unpreserved,
alternative ground for affirmance that likely
would arise when, as in the present case, a decision in
favor of the appellant would result in a remand for a
new trial. Finally, the Appellate Court’s failure to raise
the issue sua sponte could have led to inconsistency
or confusion in the case law.43 See footnote 35 of this
opinion. All of these considerations support the decision
of the Appellate Court to raise the issue that it did
sua sponte.
The plaintiff claims, however, that it was prejudiced
by the Appellate Court’s consideration of the issue that
it raised sua sponte because, if it had been on notice
of this claim in the trial court, it would have raised
other arguments in support of its claim that it was
entitled to damages from the defendants.44 Specifically,
the plaintiff contends that, if it had had notice, during
the proceedings before the trial court, of the claim that
the Appellate Court raised sua sponte, it (1) would have
presented evidence about the contractual relationship
between the defendants and the plaintiff’s corporate
affiliate, Blumberg Associates, Inc., which would have
aided the plaintiff in demonstrating that the hindering
conduct ‘‘occurred in the context of [contractual] relationships,’’
and (2) it would have ‘‘considered admitting
[Brown & Brown’s] . . . special [defense]’’ that the
contract between the parties was void ab initio because
the plaintiff did not have its insurance license when
the parties executed the contract, thereby allowing the
plaintiff to bring an unjust enrichment claim. In addition,
in its supplemental brief to the Appellate Court,
the plaintiff contended that, even if its claim under the
prevention doctrine failed, it ‘‘still [was] entitled to relief
because it fully performed its obligations under the
[contract] and because allowing the defendants to reap
the benefits of that performance without any further
payment to [the plaintiff] would be manifestly unjust,
especially absent any harm to the defendants from the
lapse of the insurance license.’’ (Emphasis in original.)
Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., Conn. Appellate Court
Records & Briefs, supra, Plaintiff’s Supplemental Brief
p. 7. In its brief to this court, the plaintiff again relies
on the principle that ‘‘[e]quity abhors a forfeiture’’;
(internal quotation marks omitted) Fellows v. Martin,
217 Conn. 57, 65, 584 A.2d 458 (1991); and cites § 229 of
the Restatement (Second) of Contracts, which provides
that, ‘‘[t]o the extent that the non-occurrence of a condition
would cause disproportionate forfeiture, a court
may excuse the non-occurrence of that condition unless
its occurrence was a material part of the agreed
exchange.’’45 2 Restatement (Second), Contracts § 229,
p. 185 (1981).
We are not persuaded by the plaintiff’s arguments.
First, the plaintiff has referred to no authority for the
proposition that the defendants, by engaging in conduct
that hindered the plaintiff’s compliance with some other
contract, could have breached the contract in the present
case. Second, the plaintiff’s representation that it
would have ‘‘considered’’ admitting Brown & Brown’s
defense that the parties’ contract was void ab initio—
as distinguished from a representation that it would
have admitted Brown & Brown’s defense—is inadequate
to establish prejudice.46 Finally, if the plaintiff
believed that it had other, valid contractual and equitable
claims, even if its claim under the prevention doctrine
failed, the time to raise those claims was in its
opposition to the defendants’ motion for summary judgment.
As the plaintiff acknowledges, it raised the claim
under the prevention doctrine for the first time in its
opposition to the motion for summary judgment. If the
defendants had recognized at that time that, as they
now contend, there was no material distinction between
the plaintiff’s claim under the prevention doctrine and
its breach of contract claim predicated on the further
assurances provision, and had responded to the plaintiff’s
claim under the prevention doctrine by raising the
claim that the Appellate Court raised sua sponte, the
plaintiff would not have been entitled at that point in
the proceedings to raise new theories in support of its
claim for damages that it had not raised in its complaint,
or to add new arguments to its opposition to the defendants’
motion for summary judgment.47 Rather, the
plaintiff’s only recourse would have been to attempt to
persuade the court to grant it permission to raise claims
that it had failed to make initially, in a timely manner,
in opposition to the motion for summary judgment. The
mere possibility that the trial court might have granted
the plaintiff such relief is too speculative a basis on
which to rest a claim of unfair prejudice, especially
because the plaintiff has identified no strategic reason
for not having raised those claims earlier. Indeed, the
fact that the trial court denied the plaintiff’s belated
request for permission to raise a claim of bad faith
in opposition to the defendants’ motion for summary
judgment supports this conclusion. Accordingly, we
conclude that the Appellate Court properly raised the
unpreserved issue sua sponte.
II
PREVENTION DOCTRINE CLAIM
We next address the merits of the plaintiff’s contention
that the Appellate Court improperly determined
that the doctrine of prevention cannot be invoked on
the basis of alleged conduct that occurred before the
formation of the contract. We are unpersuaded by the
plaintiff’s claim.48
As we have indicated, under the prevention doctrine,
if a party to a contract ‘‘prevents, hinders, or renders
impossible the occurrence of a condition precedent to
his or her promise to perform, or to the performance
of a return promise, [that party] is not relieved of the
obligation to perform, and may not legally terminate
the contract for nonperformance.’’ (Footnote omitted.)
13 R. Lord, Williston on Contracts (4th Ed. 2000) § 39:3,
pp. 517–18; see also 2 Restatement (Second), supra,
§ 245, p. 258 (‘‘[w]here a party’s breach by non-performance
contributes materially to the non-occurrence of
a condition of one of his duties, the non-occurrence is
excused’’). As these and other authorities have recognized,
the rule that a party may not prevent or hinder
the occurrence of a contract condition is a specific
application of the covenant of good faith and fair dealing
that is implicit in every contract. See, e.g., 2 Restatement
(Second), supra, § 245, comment (a), p. 258 (‘‘[w]here
a duty of one party is subject to the occurrence of a
condition, the additional duty of good faith and fair
dealing imposed on him under § 205 may require some
cooperation on his part, either by refraining from conduct
that will prevent or hinder the occurrence of that
condition or by taking affirmative steps to cause its
occurrence’’); 13 R. Lord, supra, § 39:6, p. 530 (‘‘the
principle of prevention is based on the implied
agreement of the parties to a contract to proceed in
good faith and [to] cooperate in performing the contract
in accordance with its expressed intent’’ [footnote omitted]);
see also Consolidated Edison, Inc. v. Northeast
Utilities, 426 F.3d 524, 529 (2d Cir. 2005) (‘‘the prevention
doctrine, [when] it applies, creates nothing more
than an implied contractual obligation, similar to—and
perhaps rooted in—the implied covenant of good faith
and fair dealing’’ [emphasis in original]); In re Gulf Oil/
Cities Service Tender Offer Litigation, 725 F. Supp.
712, 737 n.9 (S.D.N.Y. 1989) (‘‘[t]he implied good faith
rule and prevention doctrine are kindred precepts’’);
Mitford v. de Lasala, 666 P.2d 1000, 1006 (Alaska 1983)
(‘‘[t]he prevention doctrine is subsumed in [the] duty
[of good faith and fair dealing]’’); M West, Inc. v. Oak
Park Mall, L.L.C., 44 Kan. App. 2d 35, 54, 234 P.3d
833 (2010) (‘‘[t]he prevention doctrine is substantially
related to the implied covenant of good faith and fair
dealing that is implicit in every contract’’). This court
has held that ‘‘no claim for breach of the duty of good
faith and fair dealing will lie for conduct occurring prior
to, or during, the formation of a contract.’’ Macomber
v. Travelers Property & Casualty Corp., 261 Conn. 620,
638, 804 A.2d 180 (2002); see also id. (‘‘The covenant
of good faith and fair dealing presupposes that the terms
and purpose of the contract are agreed [on] by the
parties and that what is in dispute is a party’s discretionary
application or interpretation of a contract term.
. . . In accordance with these authorities, the existence
of a contract between the parties is a necessary antecedent
to any claim of breach of the duty of good faith
and fair dealing.’’ [Citation omitted; emphasis in original;
internal quotation marks omitted.]). Because the
prohibition on hindering conduct arises from the duty
of good faith and fair dealing, we conclude that the
same principle applies to claims under the prevention
doctrine. See Wachtel v. National Railroad Passenger
Corp., Docket No. 11 Civ. 613 (PAC), 2012 U.S. Dist.
LEXIS 11566, *6 (S.D.N.Y. January 30, 2012) (when no
contract existed at time that allegedly hindering conduct
occurred, prevention doctrine did not apply); Sony
Music Entertainment, Inc. v. Werre, 2010 N.Y. Misc.
LEXIS 576, *8 (N.Y. Sup. March 17, 2010) (‘‘[A]t bottom,
the application of [the prevention] doctrine rests on an
implied obligation under the contract not to frustrate
or prevent the performance of the condition precedent.
. . . That general rule, however, applies when there is
a binding contract in effect that contains the condition
precedent . . . .’’ [Citation omitted; internal quotation
marks omitted.]); 2 Restatement (Second), supra, § 245,
comment (a), p. 258 (prevention doctrine ‘‘only applies
. . . where the lack of cooperation constitutes a
breach, either of a duty imposed by the terms of the
agreement itself or of a duty imposed by a term supplied
by the court’’). Accordingly, we conclude that the Appellate
Court correctly determined that the plaintiff’s claim
under the prevention doctrine failed as a matter of
law because the allegedly hindering conduct by the
defendants occurred before the contract existed.
In support of its claim to the contrary, the plaintiff
contends that the prevention doctrine and the implied
covenant of good faith and fair dealing ‘‘are not simply
different labels for the same legal rule’’ but, rather, that
the prevention doctrine is derived from the equitable
rule that ‘‘one should not be able to take advantage of
his or her own wrongful act.’’ 13 R. Lord, supra, § 39:6,
p. 527. The plaintiff further argues that the doctrine is
‘‘analogous to the concept of waiver by estoppel in the
context of excuses for nonperformance of contractual
duties.’’ (Internal quotation marks omitted.) ‘‘An individual
who prevents the occurrence of a condition may
be said to be ‘estopped’ from benefiting from the fact
that the condition precedent to his or her obligation
failed to occur.’’ (Footnote omitted.) 13 R. Lord, supra,
§ 39:7, p. 533. Although we have no quarrel with the
plaintiff’s contentions regarding the derivation of the
prevention doctrine and its similarity to other doctrines,
we do not agree that those considerations demonstrate
that the doctrine itself applies to conduct by a party to
a contract that occurred before the contract existed.
The prevention doctrine applies only to conduct that
was wrongful because it violated a duty created by
contract, not to all wrongful conduct. See, e.g., 2
Restatement (Second), supra, § 245, comment (a), p.
258. As the Appellate Court noted in the present case,
‘‘[w]hen a party engages in wrongful acts or omissions
prior to entering into a contract or in negotiating a
contract, the law provides an injured party with other
means for recovering damages . . . . The plaintiff
chose not to raise such claims in its complaint.’’49
Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., supra, 132 Conn. App. 96.
We also do not agree with the plaintiff’s contention
that the decision of the court in Dohanyos v. Prudential
Ins. Co., 952 F.2d 947 (6th Cir. 1992), should lead us
to conclude that the prevention doctrine applies to precontractual
hindering conduct. The plaintiffs in Dohanyos
were the beneficiaries of their son’s life insurance
policy. Id., 948. Delivery and acceptance of the policy
were express conditions of the contract of insurance. Id.
The defendant insurance company delivered the policy,
which had an effective date of July 1, 1990, to its agent
in late June, 1990, but the agent failed to deliver it to
the insured before the effective date because the agent
was on vacation and did not return until July 3, 1990.
Id., 948–49. The insured was killed in an accident on
July 2, 1990. Id., 949. When the plaintiffs brought an
action against the insurance company seeking benefits
under the policy, the insurance company contended
that there was no contract of insurance because the
policy had not been delivered to the insured or accepted
by him. See id. The United States District Court concluded,
inter alia, that the insurance company had
waived the delivery requirement; id., 950; and that it was
estopped from enforcing the acceptance requirement
because it had prevented compliance with that condition.
Id., 951. The United States Court of Appeals for
the Sixth Circuit agreed, reasoning that, ‘‘[when] a contract
is performable on the occurrence of a future event,
there is an implied agreement that the promisor will
place no obstacle in the way of the happening of such
event, particularly [when] it is dependent in whole or
in part on his own act; and [when] he prevents the
fulfillment of a condition precedent or its performance
by the adverse party, he cannot rely on such condition
to defeat his liability.’’ (Internal quotation marks omitted.)
Id.
The plaintiff in the present case contends that Dohanyos
supports the proposition that the prevention doctrine
applies to conduct that occurred before the formation
of a contract because the contract had not been
formed in that case when the insurance company’s
agent failed to deliver the policy to the insured. It is
unclear, however, whether the court in Dohanyos
understood the conditions of delivery and acceptance
to be conditions precedent to the formation of the
contract or conditions to the performance of the contract.
50 Compare id., 950 (insurance company contended
that no contract was formed because conditions were
not satisfied), with id., 951 (applying case law governing
application of prevention doctrine to conditions precedent
to performance). If they were conditions precedent
to performance, then the contract was in existence
when the insurance company prevented the insured’s
compliance with the conditions. Even if they were conditions
precedent to contract formation, however, we
do not believe that Dohanyos should be extended to
cases in which not even a conditional contract was in
existence at the time of the allegedly hindering conduct.
51 Accordingly, even if we assume that Dohanyos
applies to conditions precedent to contract formation
and was correctly decided, we conclude that it does
not dictate the result sought by the plaintiff in the present
case.52
In summary, we conclude that, although the defendants
did not preserve the claim that the plaintiff’s claim
under the prevention doctrine failed as a matter of
law because the allegedly hindering conduct occurred
before the contract existed, the Appellate Court properly
raised that claim sua sponte. We further conclude
that the Appellate Court properly determined that the
plaintiff’s claim under the prevention doctrine failed as
a matter of law.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* This appeal originally was argued before a panel of this court consisting
of Chief Justice Rogers and Justices Norcott, Palmer, Zarella, Eveleigh and
McDonald. Thereafter, Justice Norcott recused himself and did not participate
in the consideration or decision of the case.
1 ‘‘Brown & Brown needed the plaintiff’s insurance licensing files because
some of the insurance accounts that the parent company had acquired from
Blumberg [Associates, Inc.] were written on the plaintiff’s insurance licenses
and it could take up to one year to have the accounts transferred to the
insurance license of Brown & Brown.’’ Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., supra, 132 Conn. App. 90 n.5.
2 ‘‘According to the evidence presented, the business address of the plaintiff
at this time was 30 Forest Hills Drive in West Hartford. The plaintiff was
unaware that its business address had been changed [in] the department’s
records until after Brown & Brown terminated the contract.’’ Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra,
132 Conn. App. 91 n.6.
3 ‘‘Sheila Sullivan, a representative of the department, stated that it was
customary practice for the department to send a second notification, a
notice of nonrenewal, to a licensee after the expiration of its insurance
license. She could not say, however, whether a notice of nonrenewal had
been sent to the plaintiff following the expiration of its license. She did
state that if such a notification had been returned to the department, it
would have been recorded in the department’s log book. Sullivan stated
that no such entry of return had been made in the present case.’’ Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra,
132 Conn. App. 91 n.7.
4 ‘‘Upon receipt of the letter, the plaintiff took the necessary steps to
reinstate its license, and the license was reinstated on May 15, 2008.’’ Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc.,
supra, 132 Conn. App. 88 n.2.
5 The ‘‘[f]urther [a]ssurances’’ clause of the contract provided that ‘‘[e]ach
of the parties hereto shall cooperate with the others and execute and deliver
to the other parties such other instruments and documents and take such
other actions as may be reasonably requested from time to time by any
other party hereto as necessary to carry out, evidence and confirm the
intended purposes of [the contract].’’ (Internal quotation marks omitted.)
6 ‘‘When the plaintiff did not replead, the court rendered judgment in favor
of the defendants on count four of the complaint.’’ Blumberg Associates
Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 132 Conn.
App. 88 n.3.
7 Under the prevention doctrine, if a party to a contract ‘‘prevents, hinders,
or renders impossible the occurrence of a condition precedent to his or her
promise to perform, or to the performance of a return promise, [that party]
is not relieved of the obligation to perform, and may not legally terminate
the contract for nonperformance.’’ (Footnote omitted.) 13 R. Lord, Williston
on Contracts (4th Ed. 2000) § 39:3, pp. 517–18.
8 In support of their motion for summary judgment as to the counts of the
complaint alleging unjust enrichment and quantum meruit, the defendants
maintained that those counts failed as a matter of law because, inter alia,
they were based ‘‘solely . . . [on] the same subject matter that form[ed]
the basis of [the plaintiff’s] breach of contract claim’’ and that the contract
itself ‘‘set the terms of [the parties’] performance . . . .’’ With respect to
the count alleging that the parent company guaranteed the performance of
Brown & Brown, the parent company asserted that that claim failed because
it was wholly derivative of the plaintiff’s meritless claim against Brown &
Brown.
9 With respect to the remaining counts of the complaint alleging unjust
enrichment, quantum meruit and guaranty, the trial court agreed with the
defendants’ arguments; see footnote 8 of this opinion; and, accordingly,
granted the defendants’ motion for summary judgment as to those counts,
as well.
10 In support of this argument, the defendants relied on comment (a) to
§ 245 of the Restatement (Second) of Contracts, which provides in relevant
part: ‘‘Where a duty of one party is subject to the occurrence of a condition,
the additional duty of good faith and fair dealing . . . may require some
cooperation on his part, either by refraining from conduct that will prevent
or hinder the occurrence of that condition or by taking affirmative steps to
cause its occurrence. Under § 235 (2), non-performance of that duty when
performance is due is a breach. . . . The rule stated in this [s]ection only
applies, however, where the lack of cooperation constitutes a breach, either
of a duty imposed by the terms of the agreement itself or of a duty imposed by
a term supplied by the court.’’ (Citations omitted.) 2 Restatement (Second),
Contracts § 245, comment (a), p. 258 (1981); see also id., § 245, p. 258
(‘‘[w]here a party’s breach by non-performance contributes materially to
the non-occurrence of a condition of one of his duties, the non-occurrence
is excused’’).
11 These other claims, which also pertain to the breach of contract count,
are not at issue in this appeal.
12 The defendants also note that the plaintiff, in its petition for certification
to appeal to this court, presented two questions: (1) whether the Appellate
Court improperly raised the prevention issue sua sponte; and (2) whether
the Appellate Court properly resolved that issue. Upon granting the plaintiff’s
petition for certification, however, we certified one question, namely: ‘‘Did
the Appellate Court properly [uphold] the trial court’s granting of the defendants’
motion for summary judgment?’’ Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., supra, 303 Conn. 923. The
defendants contend that the question that this court certified encompasses
only the second issue raised by the plaintiff in its petition for certification.
We disagree. Rather, we conclude that the certified question is broad enough
to encompass both issues. See, e.g., State v. Ryder, 301 Conn. 810, 820 n.6,
23 A.3d 694 (2011) (broadly worded certified question encompassed claim
that was briefed by appellant and discussed at oral argument before this
court).
13 As we discuss more fully hereinafter, these exceptions include sua
sponte consideration of issues pertaining to subject matter jurisdiction,
constitutional violations and plain error, and matters of overriding public
importance.
14 See R. Martineau, supra, 40 Vand. L. Rev. 1027–28 (‘‘American appellate
procedure followed the writ of error model rather than the appeal in equity’’).
Before the rules of practice were amended in July, 1979, appeals in this
state were brought by way of an assignment of errors. See Practice Book
(1978–1997) § 3031, historical footnotes, p. 333 (‘‘[a]t the time of its repeal
in 1979, [Practice Book §] 3031 [provided] . . . [i]f neither a finding of facts
nor a transcript is needed to present properly the questions raised on appeal,
the appellant shall file an assignment of errors with the appeal’’ [internal
quotation marks omitted]). The rules of practice in effect before July 1,
1979, also provided that ‘‘[t]he [S]upreme [C]ourt shall not be bound to
consider any errors on an appeal unless they are specifically assigned or
claimed,’’ a rule that had been ‘‘substantially unchanged since 1930’’ and
that had been followed as a matter of practice since at least the late nineteenth
century. (Internal quotation marks omitted.) W. Horton & K. Bartschi,
Connecticut Practice Series: Rules of Appellate Procedure (2013–2014 Ed.)
§ 60-5, historical note, p. 27. Thus, rules of appellate procedure in this state
are based generally on the writ of error model.
15 Under this rule, claims not raised in the trial court or briefed on appeal
are deemed waived. See B. Miller, supra, 39 San Diego L. Rev. 1265–66.
16 ‘‘When a court rules on an issue not raised by the parties, it does not
promote respect either for the [c]ourt’s adjudicatory process or for the
stability of its decisions. . . . [A] . . . court [that] remakes disputes
entirely on its own is not likely to be regarded favorably.’’ (Footnotes omitted;
internal quotation marks omitted.) A. Milani & M. Smith, supra, 69 Tenn.
L. Rev. 280; see also id., 280 n.194 (‘‘[The] legitimacy of [judicial review]
could be eroded if judges were perceived as pursuing their own agendas
by seeking out issues to consider. Viewed in this way, the refusal to make
sua sponte consideration a routine practice is an important doctrine of
judicial restraint.’’ [Internal quotation marks omitted.]). But see A. Frost,
supra, 59 Duke L.J. 502–503 (arguing that judicial issue creation does not
jeopardize judicial neutrality).
17 The plaintiff in the present case has not identified, and our research
has not revealed, any reason why the power of federal courts to raise
unpreserved issues sua sponte is broader than the power of state courts.
Indeed, the case and controversy requirement of article three, § 2, of the
United States constitution places limits on the power of federal courts that
do not apply to state courts. Compare United States National Bank of
Oregon v. Independent Ins. Agents of America, Inc., supra, 508 U.S. 446
(intermediate appellate court had power to raise issue sua sponte because
it ‘‘had before it a real case and controversy extending to that issue’’), with
State v. McElveen, 261 Conn. 198, 212, 802 A.2d 74 (2002) (‘‘[U]nlike the
United States constitution, the state constitution does not confine the judicial
power [of this state] to actual cases and controversies. Rather, the jurisdiction
of [the] courts shall be defined by law. Conn. Const., art. V, § 1.’’ [Internal
quotation marks omitted.]). See generally A. Frost, supra, 59 Duke L.J. 460
(in federal courts, rule against judicial issue creation ‘‘has at least a passing
relationship to [the federal constitution’s] case or controversy requirement
[in article third, § 2]’’).
18 Under Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation clearly exists and clearly deprived
the defendant of a fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. . . . The first two Golding requirements
involve whether the claim is reviewable, and the second two involve
whether there was constitutional error requiring a new trial.’’ (Internal quotation
marks omitted.) State v. Roger B., 297 Conn. 607, 613–14, 999 A.2d
752 (2010).
There is authority for the proposition that this court will review unpreserved
constitutional claims only in exceptional circumstances. New Haven
v. Bonner, supra, 272 Conn. 498 (‘‘[o]nly in [the] most exceptional circumstances
can and will this court consider a claim, constitutional or otherwise,
that has not been raised and decided in the trial court’’ [internal quotation
marks omitted]). Our research has revealed no case, however, in which a
reviewing court concluded that the Golding conditions for review were met
but nevertheless declined to review the claim. It is apparent, therefore, that,
if the Golding conditions for review are met, exceptional circumstances
exist, and the court should review the claim.
19 See, e.g., State v. Ray, 290 Conn. 602, 608 n.7, 966 A.2d 148 (2009)
(reviewing defendant’s unpreserved, statutory interpretation claim that was
intertwined with defendant’s constitutional claim when resolution of claim
could have obviated need to review constitutional claim, it would have been
futile for defendant to raise claim in trial court because he was asking this
court to overrule its precedent, record was adequate for review, and state
did not object to review); Vine v. Zoning Board of Appeals, 281 Conn. 553,
568–70, 916 A.2d 5 (2007) (reviewing unpreserved, alternative ground for
affirmance when undisputed, dispositive fact on which both parties relied
was established after trial court rendered judgment, issue involved pure
question of law, record was adequate for review, and issue was fully briefed);
Reardon v. Windswept Farm, LLC, supra, 280 Conn. 165 (when there was
intervening change in law, ‘‘the interest in the uniform application of the
plainly governing law warrant[ed] [the court’s] consideration of a claim
beyond the narrow issue that was before the trial court’’); Joe’s Pizza, Inc.
v. Aetna Life & Casualty Co., 236 Conn. 863, 868 n.10, 675 A.2d 441 (1996)
(‘‘[The] claim [that the plaintiff was not bound by a previous trial court
ruling under the principle of res judicata] was raised for the first time at
oral argument in this court. Because [the defendant] has not argued that
we should refrain from considering the claim, however, we shall address
it.’’); West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn.
498, 507, 636 A.2d 1342 (1994) (reviewing unpreserved, statutory interpretation
claim under ‘‘general power of supervision and control over proceedings
on appeal’’ in light of, inter alia, ‘‘the adequate record . . . and the significance
of the issue to . . . the parties’’); State v. Henning, 220 Conn. 417,
427, 599 A.2d 1065 (1991) (‘‘[Because] the defendant neither requested an
instruction on burglary in the third degree as a lesser included offense of
felony murder nor took an exception to the trial court’s charge, this court
is not bound to review [his] claim. For the purposes of this appeal, however,
[the court] will treat the issue as properly raised below.’’ [Footnote omitted.]);
State v. Badgett, 200 Conn. 412, 432 n.10, 512 A.2d 160 (reviewing
unpreserved, alternative ground for upholding ruling on admissibility of
evidence that was alleged to have been illegally seized because ‘‘[t]his court
is not limited in its disposition of a case to claims raised by the parties and
has frequently acted sua sponte [on] grounds of which the parties were not
previously apprised’’ [internal quotation marks omitted]), cert. denied, 479
U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986); Riccio v. Abate, 176 Conn.
415, 418 n.1, 407 A.2d 1005 (1979) (addressing, sua sponte, unpreserved
issue relating to trial court procedure that did not affect outcome of case
‘‘because of its importance’’); Scott v. General Iron & Welding Co., 171 Conn.
132, 139, 368 A.2d 111 (1976) (reviewing unpreserved claim that trial court
improperly had shifted burden of proof because both parties had briefed
it); Kavanewsky v. Zoning Board of Appeals, 160 Conn. 397, 401, 279 A.2d 567
(1971) (addressing unpreserved claim that defendant’s action was arbitrary,
illegal and in abuse of discretion because, although this court is ‘‘not bound
to consider a matter which is not contained in an assignment of error relating
to overruling claims of law unless it is properly raised . . . [this court has]
on occasion considered a question not so raised, not by reason of the
appellant’s right to have it determined but because . . . in the interest of
public welfare or of justice between the parties it ought to be done’’); State
v. Gelinas, 160 Conn. 366, 367, 279 A.2d 552 (1971) (reviewing unpreserved
evidentiary claim when parties and trial court ‘‘were laboring under the
misapprehension’’ of governing law); Donovan v. Davis, 85 Conn. 394, 399,
82 A. 1025 (1912) (although claim that trial court improperly ordered ballot
boxes opened for recount after election was unpreserved, ‘‘the public character
of the case and the practical importance of the [unpreserved] question
involved lead [the court] to briefly discuss it [on] the merits’’); Wiegand v.
Wiegand, 129 Conn. App. 526, 533, 21 A.3d 489 (2011) (unpreserved claim
of judicial bias did not warrant plain error review, but court reviewed claim
on ground that such claims ‘‘strike at the very core of judicial integrity and
implicate the basic concepts of a fair trial’’); State v. Malave, 47 Conn. App.
597, 605 n.5, 707 A.2d 307 (1998) (addressing unpreserved claim ‘‘that the
trial court violated a supervisory directive of [this] [c]ourt’’), aff’d, 250 Conn.
722, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145
L. Ed. 2d 1099 (2000); see also W. Maltbie, Connecticut Appellate Procedure
(2d Ed. 1957) § 307, pp. 388–90 nn. 1–19 (listing cases in which this court
has reviewed unpreserved claim or claims). This court also occasionally
has reviewed potentially unpreserved claims without deciding whether they
were preserved when the party raising the claim could not prevail. See, e.g.,
State v. Gaines, 257 Conn. 695, 713 n.13, 778 A.2d 919 (2001); State v. Haase,
243 Conn. 324, 338 n.12, 702 A.2d 1187 (1997), cert. denied, 523 U.S. 1111,
118 S. Ct. 1685, 140 L. Ed. 2d 822 (1998); State v. Henning, supra, 427; see also
Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., supra, 868 n.10 (addressing
unpreserved claim without explanation when party raising claim could
not prevail).
20 See, e.g., State v. Velasco, 253 Conn. 210, 218–19 n.9, 751 A.2d 800 (2000)
(invoking plain error doctrine to review unpreserved claim that involved
strictly legal question of statutory interpretation and that required no finding
of facts when both parties had opportunity to present arguments regarding
their proposed statutory interpretation and neither party would be prejudiced
by court’s review of claim); Cameron v. Cameron, 187 Conn. 163,
168, 444 A.2d 915 (1982) (reviewing claim of judicial bias under plain error
doctrine because judicial bias ‘‘strikes at the very core of judicial integrity
and tends to undermine public confidence in the established judiciary’’
[internal quotation marks omitted]); Argentinis v. Fortuna, 134 Conn. App.
538, 539–40, 559, 39 A.3d 1207 (2012) (reviewing unpreserved claim that
trial court’s damages award was improper under plain error doctrine and
reversing award on ground that reviewing court ‘‘may reverse . . . the decision
of the trial court if it determines that the factual findings are clearly
erroneous in view of the evidence and pleadings in the whole record . . .
or that the decision is otherwise erroneous in law’’ [internal quotation marks
omitted]); Jaser v. Jaser, 37 Conn. App. 194, 196–97 n.2, 655 A.2d 790 (1995)
(‘‘these [unpreserved] issues [involving the nonparticipation of counsel for
the children in a custody matter] warrant[ed] plain error review as they
implicate[d] interests of public welfare and fundamental justice between
the parties’’); Madison Hills Ltd. Partnership II v. Madison Hills, Inc., 35
Conn. App. 81, 84, 644 A.2d 363 (‘‘[p]lain error review [was] warranted . . .
because [1] the [unpreserved issue of statutory interpretation involved] . . .
a question of law, [2] neither party [was] prejudiced because the interpretation
of the statutes [did] not require further fact finding by the trial court,
and [3] both parties . . . had an opportunity to present written arguments
regarding the statutes in their supplemental briefs, ordered and submitted
after oral argument’’), cert. denied, 231 Conn. 913, 648 A.2d 153 (1994); In
re Shana M., 26 Conn. App. 414, 416, 600 A.2d 1385 (1992) (reviewing under
plain error doctrine unpreserved claim that trial judge had improper ex
parte communication with counsel ‘‘because [the claim] implicate[d] the
ethical conduct of the trial [judge] and reflect[ed] on the entire process of
justice’’); Golembeski v. Metichewan Grange No. 190, 20 Conn. App. 699,
701, 569 A.2d 1157 (reviewing, under plain error doctrine, unpreserved claim
that trial court improperly directed verdict for defendant attorney, who
allegedly had interfered with plaintiff’s business expectancy by giving advice
to client because ‘‘the claimed error implicate[d] the fairness and integrity
of, and public confidence in, judicial proceedings and attorneys’’), cert.
denied, 214 Conn. 809, 573 A.2d 320 (1990); Daley v. Gaitor, 16 Conn.
App. 379, 383, 547 A.2d 1375 (reviewing unpreserved claim that trial court
improperly directed verdict for defendants because ‘‘standard for . . .
appellate discretion [to review an unpreserved claim under the plain error
doctrine] is whether the issue is of importance to the development of the
law of the state, is vital to the proper resolution of the case, and was
sufficiently presented to the trial court initially, albeit not . . . [properly
preserved], so that appellate consideration of it does not amount to ambuscade
of the trial court’’), cert. denied, 209 Conn. 824, 552 A.2d 430 (1988).
21 See State v. Myers, supra, 290 Conn. 278; State v. Pierce, 269 Conn. 442,
849 A.2d 375 (2004). In Myers, the state appealed to this court from the
judgment of the Appellate Court after that court applied the plain error rule
to review an unpreserved claim that the trial court had failed to comply
with the rules of practice. See State v. Myers, supra, 284–85. The Appellate
Court agreed with the state that the trial court had committed plain error
because that court had failed ‘‘to implement properly the mandatory provisions
of clearly applicable rules of practice.’’ (Internal quotation marks
omitted.) Id., 285. This court concluded that, although the trial court improperly
had failed to comply with the rules of practice, ‘‘the Appellate Court
abused its discretion in vacating the defendant’s sentence [under the plain
error doctrine] because the error . . . did not result in manifest injustice.’’
(Internal quotation marks omitted.) Id., 289–90.
In Pierce, the state appealed to this court from the judgment of the
Appellate Court, claiming, inter alia, that the Appellate Court improperly
had raised, sua sponte, an issue involving statutory interpretation that had
not been raised at trial and that had not been addressed in the parties’
original briefs to the Appellate Court. See State v. Pierce, supra, 269 Conn.
449–53. The Appellate Court concluded that, pursuant to this court’s decision
in State v. Velasco, 253 Conn. 210, 751 A.2d 800 (2000), in which this court
determined that ‘‘plain error review was warranted because [t]he application
and interpretation of [a statute] is strictly a question of law that requires
no finding of facts, the review might result in the reversal of a miscarriage
of justice, is in the interest of public welfare or of justice between the
parties, and neither party is prejudiced by [this court’s] decision to invoke
the doctrine because each was afforded an opportunity to present arguments
regarding the interpretation of [the statute]’’; (internal quotation marks omitted)
State v. Pierce, supra, 450–51; the unpreserved issue was reviewable
under the plain error doctrine. See id., 450. This court concluded that the
Appellate Court improperly had invoked the plain error doctrine because
‘‘[p]lain error requires reversal only in truly extraordinary situations [in
which] the existence of the error is so obvious that it affects the fairness
and integrity of and public confidence in the judicial proceedings’’; (internal
quotation marks omitted) id., 453; and that the issue did not meet that
standard. Id.
22 See State v. Cobb, supra, 251 Conn. 343 n.34 (‘‘[i]n addition [to engaging
in plain error review], we have on occasion employed our supervisory power,
in both capital and noncapital cases, to review unpreserved claims’’); id.,
344 n.34 (‘‘[u]nder [Golding] . . . the plain error doctrine, and our supervisory
power, there is authority capacious enough to rectify any constitutional
or nonconstitutional trial court errors that affect the outcome of a criminal
case, capital or otherwise, and that, under those doctrines, require the
reversal of the judgment’’ [citation omitted]).
23 Any other rule would result in a remand for further proceedings in or
findings by the trial court whenever a claim is raised for the first time on
appeal and the record is inadequate for appellate review of that unpreserved
claim. Under such a methodology, parties routinely would be entitled to
retry cases merely by raising a new claim or claims on appeal. As we
previously have observed, this wholly unworkable approach ‘‘would promote
ceaseless litigation by discouraging parties from raising claims in a timely
manner, thereby seriously undermining the efficient administration of justice.’’
State v. Brunetti, 279 Conn. 39, 55 n.27, 901 A.2d 1 (2006), cert. denied,
549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007).
24 Fundamental fairness dictates that a party must be afforded the opportunity
to address an unpreserved claim on appeal. E.g., A. Milani & M. Smith,
supra, 69 Tenn. L. Rev. 267–69 (arguing that court’s failure to provide opportunity
to respond to unpreserved claims raised by party or by court sua
sponte is inconsistent with principles of due process); see also B. Miller,
supra, 39 San Diego L. Rev. 1288–92. Consequently, ‘‘[w]e have long held
that, in the absence of a question relating to subject matter jurisdiction, the
[reviewing] [c]ourt 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
[unfairly] deprive the parties of an opportunity to present arguments regarding
those issues.’’ (Internal quotation marks omitted.) Sequenzia v. Guerrieri
Masonry, Inc., 298 Conn. 816, 821, 9 A.3d 322 (2010).
25 We recognize that there always will be some form of harm when the
reviewing court decides an appeal on the basis of an issue that was not
raised in the trial court. See R. Martineau, supra, 40 Vand. L. Rev. 1038 (‘‘By
allowing [an] issue to be raised for the first time on appeal, appellate courts
ignore the most obvious prejudice to the appellee: the taking away of a
judgment in the appellee’s favor. Defeat rather than victory is the ultimate
prejudice.’’); id., 1038–39 (‘‘an appellate court ignores a rule long considered
basic to the adversary process in an effort to come to the ‘right’ result when
it decides a case on a legal issue not raised in the trial court’’); cf. id., 1038
(‘‘[f]orcing the appellee to show prejudice from consideration of a new issue
places the appellee in an almost impossible position because it asks the
appellee to speculate on what might have been different had the issue been
raised in the trial court’’). Moreover, deciding the case in such a manner
deprives the losing party of the opportunity, while the case is still pending
in the trial court, to evaluate the issue that was raised sua sponte and
possibly to settle the case at that time, prior to any appeal. In addition,
appellate review of an unpreserved claim could result in wasted effort by
the parties and the trial court, increased work for the reviewing court, and
additional work for the parties and the trial court if the case is remanded
for further proceedings on the basis of the unpreserved claim. See B. Miller,
supra, 39 San Diego L. Rev. 1267. These considerations, however, merely
explain why review of unpreserved claims is disfavored; they have not
operated to categorically bar review of such claims. Indeed, if these considerations
were deemed so compelling as to constitute an absolute bar to a
reviewing court’s consideration of an unpreserved claim, the court never
could raise an issue sua sponte. Accordingly, we conclude that, when considering
whether to review an unpreserved claim, the reviewing court must
weigh these potential harms against the benefits to be gained by reviewing
the claim under specific, exceptional circumstances.
26 For example, with respect to the requirement that parties must be given
an opportunity to brief an issue that the reviewing court has raised sua
sponte, that requirement, which is mandated by principles of fundamental
fairness, does not speak to the unrelated principle of adversarial justice,
pursuant to which the parties, rather than the courts, are responsible for
framing the issues. See, e.g., B. Miller, supra, 39 San Diego L. Rev. 1310
(‘‘[n]otice and an opportunity to be heard before deciding [an issue] sua
sponte does not resolve the question of when a court should raise an issue
sua sponte—it just makes the unequal application of waiver more fair to the
litigants,’’ and courts should adopt consistent rules as to when intervention in
adversary process is appropriate).
27 We recognize that, although this condition eliminates the unfairness to
the opposing party, it does not prevent an ambuscade of the trial court.
Nevertheless, because the trial court hardly can be criticized for not
addressing an issue that was not raised, we conclude that this consideration
should be given relatively little weight under these circumstances.
28 Reviewing an unpreserved claim when the party that raised the claim
cannot prevail is appropriate because it cannot prejudice the opposing party
and such review presumably would provide the party who failed to properly
preserve the claim with a sense of finality that the party would not have if
the court declined to review the claim.
29 See Boynton v. Virginia, 364 U.S. 454, 457, 81 S. Ct. 182, 5 L. Ed. 2d
206 (1960) (addressing statutory claim that was not raised on appeal in
order to avoid deciding constitutional issue); Neese v. Southern Railway
Co., 350 U.S. 77, 78, 76 S. Ct. 131, 100 L. Ed. 60 (1955) (‘‘we follow the
traditional practice of this [c]ourt of refusing to decide constitutional questions
when the record discloses other grounds of decision, whether or not
they have been properly raised . . . by the parties’’).
30 We recognize that, in some of the cases cited in the text of this opinion,
there was no objection to review of the unpreserved claim. We believe,
however, that review would have been appropriate in all of these cases,
even if a party had objected.
31 A number of commentators have remarked on the difficulty of formulating
clear and consistent rules governing appellate review of unpreserved
claims. See, e.g., R. Martineau, supra, 40 Vand. L. Rev. 1057–58 (‘‘Inconsistency
is the hallmark of the various exceptions. For every case that can be
found in which an exception to the general rule [that unpreserved claims
are not reviewed] is allowed, another exists in which the court refused to
permit the exception and enforced the general rule. This is a situation in
which the rule is sometimes honored and sometimes breached, with no
discernible basis for predicting when one or the other will occur.’’); see
also A. Frost, supra, 59 Duke L.J. 469 (‘‘[the] cases carve out important
exceptions to the norm of party presentation, but there has been little
attempt by courts and commentators to articulate a theory of judicial power
that justifies deviation from the norm’’). This difficulty reflects the reality
that the decision to review an unpreserved claim is necessarily case specific,
and it is impossible to anticipate all of the circumstances that may frame
the presentation of an unpreserved claim.
32 See B. Miller, supra, 39 San Diego L. Rev. 1285 (‘‘Courts have decided
cases sua sponte to avoid a ‘miscarriage of justice’ or to prevent a result
‘inconsistent with substantial justice.’ Unfortunately, these phrases are
almost meaningless, because any time the new issue would affect the result,
it could be a miscarriage of justice for the party that lost below not to be
permitted to raise the issue.’’ [Footnote omitted.]); id., 1307 (‘‘[e]ither a
court must limit its use [of the discretion to review newly raised claims] to
the most rare cases or it must recognize that it is either changing its method
of appellate review from the adversary process model to the equity model
or it is allowing its judges to exercise unbridled discretion’’). But see id.,
1307–1308 (arguing that reviewing courts should adopt equity model).
33 We do not suggest, however, that the reviewing court must raise an
issue implicating plain error or constitutional error sua sponte if a party
itself has failed to do so.
34 A fortiori, a reviewing court may raise an issue sua sponte that was
raised in the trial court but has not been raised on appeal if the interests
of justice outweigh the interest in enforcing the procedural rules governing
review of unpreserved claims.
The plaintiff in the present case notes that a number of this court’s recent
decisions have implied that the sole condition for the reviewing court to
raise a new issue sua sponte pursuant to its supervisory power is that the
court must provide an opportunity for the parties to brief the issue. See
Sequenzia v. Guerrieri Masonry, Inc., 298 Conn. 816, 821–22 and n.4, 9
A.3d 322 (2010) (rejecting defendant’s argument that Appellate Court properly
raised issue that had not been raised on appeal pursuant to plain error
doctrine because Appellate Court had not invoked that doctrine and, in any
event, issue had been raised in trial court, and concluding that Appellate
Court improperly decided case on basis of issue not properly raised on
appeal without requesting supplemental briefing); State v. Dalzell, supra,
282 Conn. 715 (Appellate Court improperly decided case on basis of issue
that had been raised in trial court but not on appeal without requesting
supplement briefing on issue). We agree with the plaintiff that a reviewing
court should raise an issue sua sponte only in exceptional cases; see B.
Miller, supra, 39 San Diego L. Rev. 1310 (affording parties opportunity to
brief issue raised by reviewing court sua sponte renders process more fair
to litigants but does not resolve issue of whether it is appropriate, in light
of our adversarial system, to decide issues not raised by parties); and we
disavow Sequenzia and Dalzell to the extent that they are inconsistent with
this principle. We reject the plaintiff’s contention, however, that exceptional
circumstances exist only when the claim implicates subject matter jurisdiction,
plain error, constitutional error or a matter of public character.
35 In addition to the exceptional circumstances, previously described in
this opinion, that may justify review of an unpreserved claim raised by a
party, this court occasionally has raised an issue sua sponte when the parties
have misconstrued or overlooked the applicable law and the failure to raise
the issue would result in the creation of unsound or questionable precedent
or an inconsistency in the law. See, e.g., State v. Helmedach, 306 Conn. 61,
77, 48 A.3d 664 (2012) (when defendant claimed on appeal that trial court
improperly had instructed jury on duress defense, evidence showed that
duress had occurred after defendant engaged in criminal conduct, and law
was clear that duress that occurs after criminal conduct cannot provide
basis for defense, court, sua sponte, ordered supplemental briefing on issue
of whether duress defense applied under circumstances of case); see also
A. Frost, supra, 59 Duke L.J. 509 (‘‘the rationale for issue creation is at its
most powerful when the parties, either intentionally or by mistake, misrepresent
the law and ask the court to decide the case on those grounds’’). Unless,
however, the new issue is so closely intertwined with the issue raised on
appeal that the reviewing court cannot avoid addressing it, as it was in
Helmedach, the reviewing court ordinarily can avoid creating bad precedent
when the parties have failed to identify an issue or misconstrued the law
by deciding the issue ‘‘in accordance with the parties’ view of the law, but
. . . not[ing] that the parties had failed to raise key issues that might have
produced a different holding,’’ thereby signaling ‘‘to future litigants to be
sure to argue the point.’’ A. Frost, supra, 473; see also id., 509 (‘‘a court has
no reason to raise issues that are tangential to or distinct from the claims
that the parties have asked the court to decide, because in these cases its
opinion will not mislead others or create flawed precedent’’).
36 As we have indicated, this court previously has held that, as with unpreserved
claims raised on appeal, an appellate court should review unpreserved,
alternative grounds for affirmance only in exceptional circumstances.
E.g., Perez-Dickson v. Bridgeport, supra, 304 Conn. 498–99. It has
been argued, however, that appellate courts should treat unpreserved, alternative
grounds for affirmance more leniently than unpreserved claims seeking
to reverse the trial court’s judgment in the interests of judicial economy
and preserving the finality of judgments. See id., 538–40 (Palmer, J., concurring);
see also B. Miller, supra, 39 San Diego L. Rev. 1284 (‘‘[c]ourts are
more likely to raise an issue sua sponte to affirm the judgment below,
[rather] than to reverse it’’). Because this court never has directly addressed
the issue of whether unpreserved, alternative grounds for affirmance should
be treated the same as unpreserved claims on appeal, we take this opportunity
to do so.
37 The following hypothetical example illustrates this point. Party A prevails
against party B in the trial court but only because of an erroneous
ruling by the court. Party B then appeals from the trial court’s judgment,
challenging that ruling. If, however, the trial court’s ruling had been correct,
party B would have prevailed, and party A would have been required to
appeal. As the appellant in such circumstances, party A generally would
not be permitted to raise an alternative ground for reversing the judgment
of the trial court. In fact, though, party A prevailed in the trial court due to
that court’s erroneous ruling. If party A, as the prevailing party in the trial
court, were to be permitted to raise that same alternative ground on appeal—
under that scenario, party A’s alternative ground would have been asserted
for the purpose of affirming the trial court’s judgment—party A would be
in a better position than it would have been in if the trial court had ruled,
correctly, in party B’s favor. This is so because, as we previously indicated,
party A, as the party appealing, ordinarily would not be permitted to raise
an alternative ground for reversal. We do acknowledge, however, that party
A might have proposed the alternative ground in the trial court if, contrary
to what actually occurred, the trial court correctly had rejected the ground
on which party A relied in that court to support its claim. We note, finally,
that, if party A had raised the alternative ground for affirmance in the trial
court but failed to raise it on appeal, the principle that claims not raised
on appeal are waived would operate to bar a court from reviewing such an
issue sua sponte in the absence of exceptional circumstances.
38 Of course, the record must be adequate for review, and all parties must
be provided with an opportunity to address the unpreserved issue.
39 The plaintiff cites no authority for this proposition.
40 In fact, in its opinion, the Appellate Court treated the claims as interchangeable.
Blumberg Associates Worldwide, Inc. v. Brown & Brown of
Connecticut, Inc., supra, 132 Conn. App. 94 n.9 (‘‘[b]ecause the plaintiff did
not allege [certain] conduct [by the defendants] in support of its breach of
contract claim, the issue of whether such conduct amounted to a prevention
of performance was not properly before the trial court’’). Moreover, the
wording of the Appellate Court’s order for supplemental briefing, in which
it requested that the parties address the issue of ‘‘whether the plaintiff’s
claim of breach of contract based on Brown & Brown’s alleged failure to
forward the renewal notice failed as a matter of law because the alleged
conduct occurred prior to the date [on] which the parties entered into the
[contract],’’ supports the conclusion that the Appellate Court assumed that
the plaintiff’s claims under the further assurances provision and under the
prevention doctrine were essentially identical, even though the parties and
the trial court appear to have treated the claims as distinct.
41 In other words, the Appellate Court reasonably could have concluded
that, even if it agreed with the plaintiff that its claim under the prevention
doctrine was not barred because the defendants had not been the sole cause
of its failure to renew its insurance license, the claim still would have been
barred on the alternative ground that the trial court already had concluded
that conduct occurring before the parties entered into the contract cannot
constitute a breach of contract. Accordingly, the Appellate Court could grant
no practical relief.
42 As the defendants maintain, they could have—and undoubtedly would
have—asserted that argument, either in a renewed motion for summary
judgment or at the close of the plaintiff’s trial evidence, in support of a claim
that the plaintiff had failed as a matter of law to establish the applicability of
the prevention doctrine. The plaintiff contends, however, that, because the
Appellate Court improperly raised the issue sua sponte, the defendants
would be prohibited from raising the claim on remand. On the contrary, as
we have explained, because the claim arguably implicated the Appellate
Court’s jurisdiction, the court properly raised it. In any event, the plaintiff
has provided no authority for the proposition that a defendant should be
barred from raising a valid, legal defense merely because the court had
alerted the defendant about that defense.
43 Specifically, it would be inconsistent to conclude that the plaintiff’s claim
under the further assurances provision was barred because the defendants’
alleged conduct occurred before the existence of the contract, and to conclude,
at the same time, that the plaintiff’s extremely similar claim under
the prevention doctrine was not barred. The plaintiff suggests that, even if
the parties and the trial court mistakenly believed that the plaintiff’s claim
under the prevention doctrine was separate and distinct from its claim under
the further assurances provision—as we conclude they did—the Appellate
Court was barred from bringing that fact to the attention of the parties. We
disagree. Although it may be improper for the reviewing court to raise an
issue sua sponte when the parties’ misunderstanding of the law relates to
an issue that is tangential to or distinct from the claim that was raised on
appeal, we have concluded that a reviewing court may raise the issue when
the misunderstanding is intertwined with the claim that was raised on appeal
and could lead to problematic or inconsistent precedent. See footnote 35
of this opinion. It is evident that the plaintiff’s initial claim under the further
assurances provision and its claim under the prevention doctrine were
closely intertwined because they both are based on the principle of contract
law that neither party to a contract will interfere with the performance of
the other party. See part II of this opinion.
44 We note, preliminarily, that the plaintiff could not have been prejudiced
by the Appellate Court’s decision to raise and decide the issue on which it
ordered supplemental briefing if the trial court properly had determined
that the plaintiff could not prevail on its contract claim unless the defendants
had made it impossible for the plaintiff to comply with the contractual
requirement that it maintain its license. We need not address that issue,
however, in light of our conclusion that the plaintiff was not unfairly prejudiced
by the Appellate Court’s consideration of the issue that it raised
sua sponte.
45 The plaintiff alleged in its complaint that ‘‘[t]he grounds cited by [the
defendants] . . . as ‘[c]ause’ for terminating the [contract did] not constitute
a material, actionable breach of the [contract], and Brown & Brown
therefore [had] breached the [contract].’’ Although this allegation effectively
raised a disproportionate forfeiture claim pursuant to § 229 of the
Restatement (Second) of Contracts, in its opposition to the defendants’
motion for summary judgment, the plaintiff relied exclusively on the arguments
that the defendants had acted in bad faith, that their termination of
the contract was barred by principles of waiver and estoppel, and that
termination was barred by the prevention doctrine, and the plaintiff merely
made a passing reference to ‘‘policies against forfeiture’’ in support of these
other claims. (Internal quotation marks omitted.) Thus, in light of the course
of the litigation culminating in the defendants’ motion for summary judgment,
the plaintiff elected not to pursue its disproportionate forfeiture claim,
which would not have required it to prove that the defendants were the cause
of its failure to satisfy the condition that it maintain its insurance license.
46 In addition, the plaintiff never raised this claim of prejudice in the
Appellate Court, and, therefore, the Appellate Court had no opportunity to
consider it in evaluating the plaintiff’s contention that the court should not
decide the issue on which it had ordered supplemental briefing. The only
alleged prejudice that the plaintiff identified in the Appellate Court was that
it would have appealed from the trial court’s decision to grant summary
judgment on its unjust enrichment count ‘‘if the defendants had mounted
a legal, as opposed to a factual, challenge to [the plaintiff’s] hindrance
argument,’’ a claim that the plaintiff has not renewed in this court. Furthermore,
the defendants elected not to pursue the defenses that the plaintiff
asserts it might have admitted.
47 Even if the plaintiff were correct that its claim under the prevention
doctrine was a new and distinct claim, the defendants reasonably could
have argued that the plaintiff was not entitled to raise an entirely new theory
of contractual liability in an opposition to a motion for summary judgment.
48 We note, preliminarily, that the issue of whether conduct that occurrs
before a contract is entered into can provide the basis for a claim under
the prevention doctrine is a question of law subject to plenary review. See,
e.g., Alstom Power, Inc. v. Balcke-Durr, Inc., 269 Conn. 599, 609, 849 A.2d
804 (2004) (‘‘a rule of substantive contract law . . . involves a question of
law to which we afford plenary review’’ [internal quotation marks omitted]).
49 We express no opinion as to whether the defendants in the present case
engaged in conduct that was wrongful, in and of itself, or what the proper
cause of action would have been if they did. We conclude only that the
prevention doctrine does not apply to their conduct because it occurred
before the contract existed.
50 See M West, Inc. v. Oak Park Mall, L.L.C., supra, 44 Kan. App. 2d 47
(‘‘Conditions precedent to performance under an existing contract arise
from the terms of a valid contract and define an event that must occur before
a right or obligation matures under the contract. In contrast, conditions
precedent to the formation of a contract involve issues of offer and acceptance
which precede and determine the formation of a contract.’’); id. (‘‘most
conditions precedent are conditions precedent to performance under an
existing contract rather than conditions precedent to formation of a contract’’
[emphasis in original]); id., 48 (‘‘[w]hether conditions are considered
prerequisites to formation of a contract or prerequisites to an obligation to
perform under an existing agreement is controlled by the intent of the
parties’’).
51 Moreover, a number of courts have concluded that, contrary to the
court’s decision in Dohanyos, the prevention doctrine does not apply when
the formation of a contract is conditioned on an event and a party to the
inchoate contract prevents the event from occurring. See, e.g., Wachtel v.
National Railroad Passenger Corp., supra, 2012 U.S. Dist. LEXIS 11566, *5
(when no contract exists until condition precedent to formation occurs,
and party to contract prevents condition from occurring, prevention doctrine
does not apply); Sony Music Entertainment, Inc. v. Werre, supra, 2010 N.Y.
Misc. LEXIS 576, *8 (same).
52 The plaintiff contends for the first time in its reply brief that the Appellate
Court improperly determined that it could not prevail on its claim that the
defendants had terminated the contract in bad faith because it did not allege
bad faith in its complaint. It is well established, however, that this court
will not review claims that are raised for the first time in a reply brief. See,
e.g., State v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997) (‘‘the function
of the appellant’s reply brief is to respond to the arguments and authority
presented in the appellee’s brief, [and] that function does not include raising
an entirely new claim of error’’ [internal quotation marks omitted]). Accordingly,
we deem this claim to have been waived.

Outcome: The judgment of the Appellate Court is affirmed.

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