******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
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 Productions, 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 accommodations. 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 satisfyConnecticut’s long arm

statute,GeneralStatutes§ 33-929(f).Theplaintiff,aConnecticut resident, conceded that the defendant is a foreign corporation, but argued that it was still amenable

tosuitpursuanttothe long armstatute.Inordertodecide

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 jurisdiction over a foreign corporation, inter alia, ‘‘on any

cause of action arising as follows: (1) [o]ut of any contract 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 evidence submitted in the present action that the defendant 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 ‘‘unreliable,’’ consisting of ‘‘a variety of printouts from internet

websites that are otherwise unauthenticated.’’ The

court also concluded that Briscoe was not the defendant’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 jurisdiction 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 decision, 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 factual determinations.’’ (Internal quotation marks

omitted.) Hayes Family Ltd. Partnership v. Glastonbury, 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 relationship 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 commentary and analysis at ESPN’s discretion. This supports 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 granting the defendant’s motion to dismiss for lack of personal jurisdiction. The court’s finding thatthe 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 sustain 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 discretion 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 § 38a271 (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 improperly 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 argument relates to a separate action, to which the defendant is not a party.

Based on a carefulreview 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] . . . .’’ Furthermore, 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).