Manka v. Walt Disney Co. , 149 Conn. App. 1 ( 2014 )

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CARRIE MANKA v. THE WALT DISNEY COMPANY
(AC 34777)
Alvord, Bear and Harper, Js.
Argued October 15, 2013—officially released March 25, 2014
(Appeal from Superior Court, judicial district of New
Britain, Pittman, J.)
Jennifer B. Levine, with whom was Harvey L.
Levine, for the appellant (plaintiff).
Michael T. McCormack, with whom, on the brief, was
Michael C. Sorensen, for the appellee (defendant).
Opinion
PER CURIAM. This action arises out of an automobile
accident between the plaintiff, Carrie Manka, and a
nonparty, Nicole Briscoe. The plaintiff sought to hold
the defendant, The Walt Disney Company, liable for her
injuries as Briscoe’s employer. The plaintiff appeals
from the judgment of the court granting the defendant’s
motion to dismiss for lack of personal jurisdiction,
arguing that the dismissal was based on factual findings
that were clearly erroneous.1 We affirm the judgment
of the trial court.
The court made the following findings of fact, as
detailed in its memorandum of decision. Keko Media,
Inc. (Keko), entered into a contract with ESPN Produc-
tions, Inc. (ESPN), agreeing that Briscoe would provide
commentary and analysis for ESPN television and radio
programs.2 Pursuant to the contract, ESPN assigned
Briscoe’s appearances and arranged her travel accom-
modations. On December 7, 2008, Briscoe was driving
to ESPN’s Connecticut office when the rental car she
was operating collided with the plaintiff’s vehicle in
Bristol.3
On September 9, 2010, the plaintiff commenced the
present action.4 By way of a timely motion to dismiss,
the defendant argued that the court lacked personal
jurisdiction over it because it is a foreign corporation,
and the plaintiff could not satisfy Connecticut’s long arm
statute, General Statutes § 33-929 (f). The plaintiff, a Con-
necticut resident, conceded that the defendant is a for-
eign corporation, but argued that it was still amenable
to suit pursuant to the long arm statute. In order to decide
the jurisdictional question, the parties were provided
with an opportunity to conduct discovery5 and present
admissible evidence6 to the court at an evidentiary
hearing.7
Pursuant to § 33-929 (f), a Connecticut court has juris-
diction over a foreign corporation, inter alia, ‘‘on any
cause of action arising as follows: (1) [o]ut of any con-
tract made in this state or to be performed in this state
. . . or (4) out of tortious conduct in this state . . . .’’
In support of her claim that the court had personal
jurisdiction over the defendant, the plaintiff argued that
the defendant is a party to the contract between Keko
and ESPN, which required Briscoe to work in Bristol.
This claim is based on language in the contract that
defines ESPN as including ‘‘[ESPN’s] parent, subsidiary,
and affiliated companies.’’ The plaintiff argued that the
defendant is an ‘‘affiliated compan[y]’’ pursuant to the
contract by virtue of the corporate relationship between
ESPN and the defendant, and therefore the defendant
is a party to the contract. Furthermore, the plaintiff
claimed that the accident occurred while Briscoe was
performing the contract. This leads to the conclusion,
according to the plaintiff, that there is jurisdiction based
on a cause of action arising out of a contract to be
performed in the state. The plaintiff also claimed, in
the alternative, that the court had jurisdiction because
the defendant engaged in tortious conduct in the state.
This claim is based on the proposition that Briscoe was
the defendant’s employee at the time of the accident.
The plaintiff reasoned that personal jurisdiction existed
because the defendant is responsible for Briscoe’s
actions as its employee, and therefore the defendant is
liable for a tort committed within the state.
The court concluded that there was no credible evi-
dence submitted in the present action that the defen-
dant conducted business in or entered into a contract
to be performed in Connecticut. With respect to the
relationship between the defendant and ESPN, the
court characterized the evidence submitted as ‘‘unrelia-
ble,’’ consisting of ‘‘a variety of printouts from internet
websites that are otherwise unauthenticated.’’ The
court also concluded that Briscoe was not the defen-
dant’s employee but rather was employed by Keko. On
the basis of these conclusions, the court granted the
defendant’s motion to dismiss. The plaintiff filed a
timely appeal.
The plaintiff argues that the court erred in granting
the defendant’s motion to dismiss because the court
improperly concluded (1) that the defendant was not
a party to the contract between ESPN and Keko, and
(2) that Briscoe was not employed by the defendant.
When a motion to dismiss for lack of personal jurisdic-
tion over a foreign corporation raises issues of fact in
light of the record, the burden is on the plaintiff to
establish that the court has jurisdiction. Cogswell v.
American Transit Ins. Co., 282 Conn. 505, 515, 923
A.2d 638 (2007). ‘‘A motion to dismiss . . . properly
attacks the jurisdiction of the court . . . .’’ (Internal
quotation marks omitted.) Narayan v. Narayan, 305
Conn. 394, 401, 46 A.3d 90 (2012).
‘‘[O]ur review of the court’s ultimate legal conclusion
and resulting grant of the motion to dismiss will be de
novo. . . . Factual findings underlying the court’s deci-
sion, however, will not be disturbed unless they are
clearly erroneous.’’ (Citation omitted; internal quotation
marks omitted.) Hayes Family Ltd. Partnership v.
Glastonbury, 132 Conn. App. 218, 221, 31 A.3d 429(2011). ‘‘A finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.)
Nationwide Mutual Ins. Co. v. Allen, 83 Conn. App.
526, 533, 850 A.2d 1047, cert. denied, 271 Conn. 907,
859 A.2d 562 (2004). ‘‘The applicable standard of review
for the [granting] of a motion to dismiss, therefore,
generally turns on whether the appellant seeks to chal-
lenge the legal conclusions of the trial court or its fac-
tual determinations.’’ (Internal quotation marks
omitted.) Hayes Family Ltd. Partnership v. Glaston-
bury, supra, 221.
The plaintiff argues that the court erred in dismissing
the case because the court improperly concluded that
the defendant was not a party to the contract between
Keko and ESPN. The court found that the present action
‘‘does not derive from any contract that [the defendant]
made in this state or that [the defendant] caused to be
performed in this state.’’ The court also found that,
based on the plaintiff’s evidence, ‘‘the two companies
appear to be linked through a number of intermediary
corporations.’’ The relationship that exists between two
companies is a finding of fact subject to the clearly
erroneous standard of review.8 See Naples v. Keystone
Building & Development Corp., 295 Conn. 214, 234,
990 A.2d 326 (2010) (decision to pierce corporate veil
subject to clearly erroneous standard of review).
Although the court found the companies appeared to be
linked through intermediary corporations, the court’s
finding that there was no direct relationship between
the defendant and ESPN was based on the absence of
credible evidence that such a relationship existed. After
a careful review of the record, we agree with the court’s
characterization of the evidence alleging a direct rela-
tionship as ‘‘unreliable,’’ and we conclude that the
court’s finding was not clearly erroneous. See Herring
v. Daniels, 70 Conn. App. 649, 659–60, 805 A.2d 718(2002) (finding based on absence of evidence not
clearly erroneous).
The plaintiff also claims the court erred in concluding
that Briscoe was not the defendant’s employee. The
conclusion that an individual is an employee is a finding
of fact subject to the clearly erroneous standard of
review. Nationwide Mutual Ins. Co. v. Allen, supra, 83
Conn. App. 533. The distinguishing characteristic of an
employer-employee relationship is ‘‘the right to control
the means and methods used by the worker in the
performance of his or her job.’’ (Internal quotation
marks omitted.) Doe v. Yale University, 252 Conn. 641,
680–81, 748 A.2d 834 (2000). The court found that
Briscoe was Keko’s employee and not employed by the
defendant. This finding was not clearly erroneous. The
agreement between Keko and ESPN states that Keko
will make Briscoe available to ESPN to provide com-
mentary and analysis at ESPN’s discretion. This sup-
ports the finding that Briscoe was Keko’s employee.9
In light of our conclusion that the findings were not
clearly erroneous, we affirm the court’s judgment grant-
ing the defendant’s motion to dismiss for lack of per-
sonal jurisdiction. The court’s finding that the defendant
was not a party to the contract defeats the argument
that the cause of action is based on a contract entered
into or to be performed in this state. Also, the plaintiff’s
claim that the defendant committed a tortious act in
Connecticut through Briscoe is unavailing because the
court’s conclusion that Briscoe was not the defendant’s
employee was not clearly erroneous. See Elliott v.
Waterbury, 245 Conn. 385, 408, 715 A.2d 27 (1998)
(defendant not liable for acts of person not agent or
employee). We conclude that the plaintiff did not sus-
tain her burden of proving that the court had personal
jurisdiction over the defendant pursuant to § 33-929 (f),
and that the court properly granted the motion to
dismiss.10
The judgment is affirmed.
1
The plaintiff also claims that the court erred by failing to pierce the
corporate veil. Because the plaintiff did not argue this theory before the
court, she is precluded from raising it on appeal. Rosenblit v. Laschever,
115 Conn. App. 282, 287 n.4, 972 A.2d 736 (2009).
2
Briscoe is also the president of Keko.
3
The court found that because the defendant was not the owner of the
rental car, the plaintiff could not utilize General Statutes § 52-183, which
establishes in civil actions a presumption that the operator of the vehicle
is the owner’s agent. The plaintiff does not challenge this determination
on appeal.
4
The plaintiff initially commenced an action against Briscoe, the rental
car company, ESPN, and the defendant. The plaintiff failed to properly serve
the defendant in that action, and thereafter initiated the present action.
5
The plaintiff also claims on appeal that the court improperly quashed
her subpoena. During the discovery phase leading up to the evidentiary
hearing, the plaintiff subpoenaed ESPN’s ‘‘keeper of records’’ to produce
certain documents. The defendant filed a motion to quash, which the court
granted in part in an order stating: ‘‘[A]ny future subpoenas duces tecum
served upon [ESPN] . . . similar to those which are subject to the motion
. . . to quash . . . are limited to an itemization of those payments made
by or on behalf of the defendant . . . pursuant to the [agreement between
Keko and ESPN] and the corresponding documentation.’’ The plaintiff served
ESPN with a second subpoena requesting that it produce records at the
evidentiary hearing. At the hearing, the plaintiff argued that the defendant
failed to produce the documents requested. The court concluded that, in
light of the limitations in the previous order, the second subpoena sought
the same materials requested in the previous one. Furthermore, the court
concluded that the defendant had complied with the previous request.
‘‘[T]he granting or denial of a discovery request rests in the sound discre-
tion of the court. . . . [T]hat decision will be reversed only if such an
order constitutes an abuse of discretion. . . . Under the abuse of discretion
standard, we must make every reasonable presumption in favor of the
trial court’s action.’’ (Citation omitted; internal quotation marks omitted.)
Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn. 750, 775,
48 A.3d 16 (2012). ‘‘Because it is the trial court’s function to weigh the
evidence and determine credibility, we give great deference to its findings.’’
(Internal quotation marks omitted.) Murtha v. Hartford, 303 Conn. 1, 13,
35 A.3d 177 (2011). After carefully reviewing the two subpoenas, we conclude
that the court did not abuse its discretion in determining that they requested
the same material. In light of this, and the deference we afford the court’s
credibility determination, the plaintiff’s claim fails.
6
The plaintiff also argues that the court improperly excluded evidence
as to whether the defendant is an ‘‘insurer’’ under General Statutes § 38a-
271 (a). At the evidentiary hearing, the plaintiff presented letters from an
insurance claims administrator to demonstrate that the administrator was
the defendant’s agent. The court sustained the defendant’s hearsay objection
to the evidence. The plaintiff claims that the letters were admissible under
the statement by a party opponent exception to the hearsay rule because
the claims administrator was the defendant’s agent. The determination that
the letters were hearsay is subject to plenary review. State v. Foster, 293
Conn. 327, 334, 997 A.2d 199 (2009). Hearsay is an out-of-court statement
offered to establish the truth of the matter asserted. Conn. Code Evid. § 8-
1 (3). Hearsay evidence is inadmissible, subject to certain exceptions. Conn.
Code Evid. § 8-2. Under the party opponent exception to the hearsay rule,
a party must first offer prima facie evidence of an agency relationship before
the agent’s statement is admissible. Robles v. Lavin, 176 Conn. 281, 284,
407 A.2d 959 (1978). We conclude that the court properly determined that
the letters were hearsay, as they were offered to prove the truth of the
matter asserted therein, namely, that the sender was the third party claims
administrator for the defendant, and there was no other evidence of an
agency relationship.
7
The plaintiff avers that, during the evidentiary hearing, the court improp-
erly declined to rule on her motion to compel. At the hearing, the plaintiff
stated that it was her understanding that the court would hear her motion.
The court instructed the plaintiff that it never issued a notice that it would
hear a motion to compel on that date. The court repeated multiple times
that the purpose of the hearing was to present evidence regarding the
jurisdictional matter, and not to hear the merits of a motion to compel. The
plaintiff did not file any motions during the one month period from the
conclusion of the hearing until the court issued its decision. Furthermore,
the caseflow request upon which the plaintiff relies in support of her argu-
ment relates to a separate action, to which the defendant is not a party.
Based on a careful review of the record, we conclude that there was no error.
8
We note that the court did not specifically interpret the term ‘‘affiliate’’
in the contract. Although the plaintiff sought an articulation from the court,
she did not ask the court to articulate its interpretation of the term ‘‘affiliate.’’
Instead, she claimed: ‘‘[T]he trial court fails to articulate on what basis it
finds that ESPN is not a direct subsidiary of [the defendant] . . . .’’ Further-
more, in her brief on appeal the plaintiff claims that the contract ‘‘expressly
includes [the defendant] as a party . . . .’’ Because the plaintiff has failed
to raise this issue of contract interpretation, we will not address it sua
sponte. See Calcano v. Calcano, 257 Conn. 230, 245, 777 A.2d 633 (2001).
9
For the reasons previously stated with respect to the plaintiff’s claim
that the defendant is ESPN’s ‘‘affiliate,’’ we also conclude that it was not
clearly erroneous for the court to find that the defendant was not Briscoe’s
employer pursuant to the contract.
10
Because we conclude that the plaintiff failed to satisfy § 33-929 (f), there
is no need to engage in a constitutional analysis. Lombard Bros., Inc. v.
General Asset Management Co., 190 Conn. 245, 250, 460 A.2d 481 (1983).