BLUMBERG ASSOCIATES WORLDWIDE, INC. v. BROWN AND BROWN OF CONNECTICUT, INC., ET AL.
(SC 18911)
Supreme Court of Connecticut
Argued March 13, 2013—officially released February 18, 2014
Rogers, C. J., and Palmer, Zarella, Eveleigh and McDonald, Js.*
Daniel J.
Mark D. Alexander, with whom, on the brief, was John M. Tanski, for the appellees (defendants).
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Opinion
PALMER, J. 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
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
“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
“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
After the trial court rendered judgment for the defen-dants, 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;
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
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 plain-tiff 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
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
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
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 pre-vention 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
“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
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
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 adversarial 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 self interested 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 (“[the 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
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
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
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
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
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 adversar-ial 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
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. We conclude 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,
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.
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
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, 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.
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 addi-tion, 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
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.)
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.”
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
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.