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    ARMAND CUOZZO v. TOWN OF ORANGE
               (SC 19274)
Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa, Robinson and
                           Vertefeuille, Js.
    Argued December 9, 2014—officially released March 3, 2015

Mark A. Perkins, for the appellant (defendant).
Karen E. Souza, for the appellee (plaintiff).
                          Opinion

   ROGERS, C. J. The dispositive issue in this case is
whether the trial court utilized the proper procedure
for deciding a motion to dismiss for lack of subject
matter jurisdiction when a jurisdictional fact is disputed
by the parties. The defendant, the town of Orange,
appeals from the Appellate Court’s judgment reversing
the trial court’s dismissal of the complaint of the plain-
tiff, Armand Cuozzo, for lack of subject matter jurisdic-
tion. See Cuozzo v. Orange, 147 Conn. App. 148, 150, 82
A.3d 647 (2013).The defendant claims that the Appellate
Court improperly reversed the trial court’s judgment
because it lacked subject matter jurisdiction due to the
plaintiff’s failure to provide timely notice of its action
under the municipal highway defect statute, General
Statutes § 13a-149.1 We conclude that a factual dispute
regarding jurisdiction remains unresolved at this stage
of the proceedings, which renders consideration of the
defendant’s argument premature. We therefore affirm
the Appellate Court’s judgment.
   The record reveals the following facts and procedural
history. The plaintiff originally commenced this action
in November, 2011, and thereafter filed an amended
revised complaint dated February 3, 2012. In his com-
plaint, the plaintiff alleged that on July 31, 2008, he
was a business invitee on certain property located at 2
Boston Post Road in Orange. This property, the plaintiff
averred, was owned and ‘‘controlled, maintained, man-
aged, operated and/or supervised by the defendant . . .
its agents, servants and/or employees.’’ The property
abutted Meloy Road, a public highway in Orange, and
was connected to Meloy Road by ‘‘an entrance/exit
driveway which intersected . . . Meloy Road.’’ The
plaintiff alleged that this driveway was also ‘‘controlled,
maintained, managed, operated and/or supervised by
the defendant . . . its agents, servants and/or employ-
ees.’’ The plaintiff alleged further that, as he drove his
car on the entrance/exit driveway, his car ‘‘suddenly
and without warning came into contact’’ with a ‘‘pothole
[that was] approximately two feet in diameter, which
was situated [approximately] three feet . . . from [the
driveway’s intersection] with Meloy Road’’ and that the
pothole constituted a ‘‘defective, dangerous and unsafe
condition,’’ which had existed in the driveway for a
sufficient period of time prior to this event, and that
the defendant should have known of its presence and
fixed it. According to the plaintiff, as a result of hitting
the pothole, he suffered personal injury and damages
that were ‘‘caused by the negligence and carelessness
of the defendant . . . its agents, servants and/or
employees,’’ who, inter alia, ‘‘allowed and permitted the
. . . condition to exist . . . allowed and permitted
individuals to operate motor vehicles upon said drive-
way [knowing] . . . of the existence of [the pothole]
. . . failed to properly inspect [the] property, including
the . . . driveway . . . failed to properly repair and/
or remedy the . . . dangerous and unsafe condition
. . . and failed to [take] reasonable measures . . . to
prevent vehicles from coming into contact with [the
pothole] . . . .’’ The plaintiff sought recovery for his
injuries and damages under General Statutes § 52-557n.2
   The defendant responded by filing a motion to dis-
miss, claiming that the trial court lacked subject matter
jurisdiction over the plaintiff’s claim pursuant to Prac-
tice Book § 10-33.3 Specifically, the defendant alleged
that the plaintiff’s claim involved a public road and thus
fell within the purview of § 13a-149, not § 52-557n. The
defendant contended that, because the plaintiff had
failed to comply with the notice requirement contained
in § 13a-149; see footnote 1 of this opinion; the action
should be dismissed. In support of its motion, the defen-
dant submitted an affidavit from Pat O’Sullivan, its town
clerk. O’Sullivan attested that the defendant did not
receive notice of the plaintiff’s action within the ninety
day period after the plaintiff’s accident. The defendant
also asserted alternatively that the plaintiff’s action was
not timely because it was not brought within the appli-
cable statute of limitations.
   In response to the defendant’s motion to dismiss, the
plaintiff submitted a memorandum of law in which he
contended that the court did have subject matter juris-
diction. The plaintiff claimed that the driveway itself
was not a public road but rather, a private driveway; and
because § 13a-149 applies only to public thoroughfares,
the statute was inapplicable to his claim. In support of
this memorandum, the plaintiff submitted an affidavit
in which he declared, inter alia, that his accident involv-
ing the pothole occurred on ‘‘[a] private driveway that
exclusively leads to the Wal-Mart Plaza, which includes
Sam’s Club.’’ The plaintiff thus urged the court to deny
the defendant’s motion to dismiss on its merits, claiming
that the action could properly proceed under § 52-557n.
   Thereafter, the defendant filed a reply to the plain-
tiff’s objection to the motion to dismiss. The defendant
alleged that the plaintiff’s claim was subject to § 13a-
149 because the pothole was ‘‘close enough to the travel
portion of the roadway to constitute a highway defect,’’
and that ‘‘[i]f . . . the [defendant] owned the driveway
that intersected with Meloy Road, it is foreseeable that
individuals will use the driveway to access the road.’’ In
the alternative, the defendant alleged that the plaintiff’s
claim was barred under § 52-557n because the defen-
dant’s alleged negligence comprised a discretionary act
to which statutory immunity attached. The defendant
submitted no affidavits or evidence regarding whether
the driveway was one on which the public was invited
or expected to traverse or how close the pothole actu-
ally was to the public road.
  The trial court conducted a hearing on the motion
to dismiss at which it heard argument concerning the
motion but was not presented with evidence other than
from the affidavits that had been submitted. The court
first found that its subject matter jurisdiction was impli-
cated by the plaintiff’s failure to notify the defendant of
his action under § 13a-149 and, therefore, was a proper
subject of a motion to dismiss. The court granted the
defendant’s motion to dismiss, concluding that, ‘‘based
on the plaintiff’s own allegations, the driveway where
the alleged accident occurred was on property owned
by the defendant town, connecting a public road to
another town owned property. Based on these claims,
it is reasonable to anticipate that the public would make
use of the driveway. As a matter of law, therefore, the
facts alleged in the plaintiff’s complaint amount to a
highway defect, and necessarily invoke . . . § 13a-149
as the exclusive remedy. Because the plaintiff failed to
provide proper notice to the defendant within ninety
days of the alleged accident, this court lacks subject
matter jurisdiction over this action.’’4
   The plaintiff appealed to the Appellate Court claiming
that because he did not assert his claim under § 13a-149,
the trial court should not have found that the defendant
could raise its jurisdictional argument regarding § 13a-
149 in a motion to dismiss. Cuozzo v. Orange, supra,
147 Conn. App. 153. The plaintiff further contested the
trial court’s determination that his claim was subject
to § 13a-149 and not § 52-557n because, as he asserted
in his affidavit, his injury occurred on a private driveway
that, although owned and maintained by the defendant,
was not a public road for purposes of the highway
defect statute. Id., 157. The Appellate Court noted that,
while the plaintiff ‘‘[c]ertainly . . . is bound by the
facts alleged in his pleadings concerning the nature of
the area in question . . . [w]here . . . the motion [to
dismiss] is accompanied by supporting affidavits con-
taining undisputed facts, the court may look to their
content for determination of the jurisdictional issue
and need not conclusively presume the validity of the
allegations of the complaint.’’ (Footnote omitted; inter-
nal quotation marks omitted.) Id., 162–63. The Appellate
Court further clarified that ‘‘[a]lthough common sense
assumptions regarding certain retail outlets might
appear to dictate that the driveway at issue, connecting
a municipal highway to a shopping center on munici-
pally owned property, typically is open for public travel
generally,’’ the court would ‘‘not presume that an area
is a public highway absent a sufficient showing.’’ Id.,
163–64. Thus, it concluded, ‘‘the facts, as alleged in the
complaint and found in the affidavits submitted by the
parties, [were] insufficient to support the necessary
determination that the public would normally or reason-
ably be expected to make use of the entrance/exit drive-
way in the ordinary course of travel.’’ (Internal
quotation marks omitted.) Id., 162. The Appellate Court
reversed the judgment of the trial court on the ground
that ‘‘[t]he facts in the record, viewed in the light most
favorable to the plaintiff, do not support a determina-
tion that the driveway at issue has a public character
such that it falls within the ambit of § 13a-149.’’ Id.,
164. We thereafter granted the defendant’s petition for
certification to appeal limited to the following issue:
‘‘Did the Appellate Court properly determine that the
trial court should not have dismissed the plaintiff’s com-
plaint for lack of subject matter jurisdiction on the
ground that the plaintiff failed to provide timely notice
under . . . § 13a-149?’’ Cuozzo v. Orange, 311 Conn.
914, 84 A.3d 881 (2014).
   We first set forth the applicable standard of review
and general principles of law. ‘‘The standard of review
for a court’s decision on a motion to dismiss [under
Practice Book § 10-30]5 is well settled. A motion to
dismiss tests, inter alia, whether, on the face of the
record, the court is without jurisdiction. . . . [O]ur
review of the court’s ultimate legal conclusion and
resulting [determination] of the motion to dismiss will
be de novo. . . . When a . . . court decides a jurisdic-
tional question raised by a pretrial motion to dismiss,
it must consider the allegations of the complaint in their
most favorable light. . . . In this regard, a court must
take the facts to be those alleged in the complaint,
including those facts necessarily implied from the alle-
gations, construing them in a manner most favorable
to the pleader. . . . The motion to dismiss . . .
admits all facts which are well pleaded, invokes the
existing record and must be decided upon that alone.
. . . In undertaking this review, we are mindful of the
well established notion that, in determining whether a
court has subject matter jurisdiction, every presump-
tion favoring jurisdiction should be indulged.’’ (Foot-
note omitted; internal quotation marks omitted.) Dorry
v. Garden, 313 Conn. 516, 521, 98 A.3d 55 (2014).
   ‘‘Trial courts addressing motions to dismiss for lack
of subject matter jurisdiction pursuant to [Practice
Book § 10-30] may encounter different situations,
depending on the status of the record in the case. . . .
[L]ack of subject matter jurisdiction may be found in
any one of three instances: (1) the complaint alone;
(2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supple-
mented by undisputed facts plus the court’s resolution
of disputed facts.’’ (Footnote omitted; internal quota-
tion marks omitted.) Conboy v. State, 292 Conn. 642,
650–51, 974 A.2d 669 (2009). ‘‘When a trial court decides
a jurisdictional question raised by a pretrial motion to
dismiss on the basis of the complaint alone, it must
consider the allegations of the complaint in their most
favorable light. . . . In this regard, a court must take
the facts to be those alleged in the complaint, including
those facts necessarily implied from the allegations,
construing them in a manner most favorable to the
pleader.’’ (Internal quotation marks omitted.) Dorry v.
Garden, supra, 313 Conn. 522.
   ‘‘In contrast, if the complaint is supplemented by
undisputed facts established by affidavits submitted in
support of the motion to dismiss . . . other types of
undisputed evidence . . . and/or public records of
which judicial notice may be taken . . . the trial court,
in determining the jurisdictional issue, may consider
these supplementary undisputed facts and need not
conclusively presume the validity of the allegations of
the complaint. . . . Rather, those allegations are tem-
pered by the light shed on them by the [supplementary
undisputed facts]. . . . If affidavits and/or other evi-
dence submitted in support of a defendant’s motion to
dismiss conclusively establish that jurisdiction is lack-
ing, and the plaintiff fails to undermine this conclusion
with counteraffidavits . . . or other evidence, the trial
court may dismiss the action without further proceed-
ings. . . . If, however, the defendant submits either no
proof to rebut the plaintiff’s jurisdictional allegations
. . . or only evidence that fails to call those allegations
into question . . . the plaintiff need not supply count-
eraffidavits or other evidence to support the complaint,
but may rest on the jurisdictional allegations therein.
. . .
   ‘‘Finally, where a jurisdictional determination is
dependent on the resolution of a critical factual dispute,
it cannot be decided on a motion to dismiss in the
absence of an evidentiary hearing to establish jurisdic-
tional facts. Gordon v. H.N.S. Management Co., 272
Conn. 81, 92, 861 A.2d 1160 (2004) ([w]hen issues of
fact are necessary to the determination of a court’s
jurisdiction . . . due process requires that a trial-like
hearing be held, in which an opportunity is provided
to present evidence and to cross-examine adverse wit-
nesses . . . ); Schaghticoke Tribal Nation v. Harrison,
264 Conn. 829, 833, 826 A.2d 1102 (2003) (same). Like-
wise, if the question of jurisdiction is intertwined with
the merits of the case, a court cannot resolve the juris-
dictional question without a hearing to evaluate those
merits. Lampasona v. Jacobs, 209 Conn. 724, 728, 553
A.2d 175 (1989) ([i]n some cases . . . it is necessary
to examine the facts of the case to determine whether
it is within a general class that the court has power to
hear), cert. denied, 492 U.S. 919, 109 S. Ct. 3244, 106 L.
Ed. 2d 590 (1989).’’ (Citations omitted; emphasis added;
internal quotation marks omitted.) Dorry v. Garden,
supra, 313 Conn. 522–24. ‘‘When the jurisdictional facts
are intertwined with the merits of the case, the court
may in its discretion choose to postpone resolution of
the jurisdictional question until the parties complete
further discovery or, if necessary, a full trial on the
merits has occurred.’’ Conboy v. State, supra, 292 Conn.
653 n.16. In that situation, ‘‘[a]n evidentiary hearing is
necessary because a court cannot make a critical factual
[jurisdictional] finding based on memoranda and docu-
ments submitted by the parties.’’ (Internal quotation
marks omitted.) Id., 653–54.
   In the present case, the defendant claims that, as a
matter of law, the driveway on which the plaintiff’s
accident occurred involved a public road that the defen-
dant maintained for purposes of § 13a-149 because of
either the driveway’s proximity to Meloy Road or the
likelihood that the driveway would be used to access
Meloy Road. We cannot agree based upon the scant
factual record before us. ‘‘The plain meaning of the
word highway is [a] main road or thoroughfare; hence,
a road or way open to the use of the public. . . . It is
thus that this court has customarily understood the
word. [This court has] stated, for example, that the
essential feature of a highway is that every traveler has
an equal right in it with every other traveler. . . . [T]he
term highway is ordinarily used in contradistinction to
a private way, over which only a limited number of
persons have the right to pass.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
New Haven v. United Illuminating Co., 168 Conn. 478,
485, 362 A.2d 785 (1975).
    In the present case, a factual dispute remains as to
whether the driveway is indeed public, thereby invoking
§ 13a-149 and its procedural requirements, or whether
it is a private thoroughfare on which the public is neither
encouraged nor anticipated to traverse; see Kozlowski
v. Commissioner of Transportation, 274 Conn. 497,
505, 876 A.2d 1148 (2005); see also New Haven v. United
Illuminating Co., supra, 168 Conn. 485; in which case
§ 52-557n is the governing statute. This is a critical fact,
the determination of which will resolve the trial court’s
jurisdiction in this case. Additionally, ‘‘[w]hether there
is a defect in such proximity to the highway so as to
be considered in, upon, or near the traveled path of the
highway must be determined on a case-by-case basis
after a proper analysis of its own particular circum-
stances, and is generally a question of fact . . . which
will not be disturbed by this court unless the conclusion
is one which could not be reasonably reached by the
trier.’’ (Internal quotation marks omitted.) Serrano v.
Burns, 248 Conn. 419, 426, 727 A.2d 1276 (1999). In the
absence of these factual findings by the trial court, we
cannot address whether the plaintiff’s claim falls within
the purview of § 13a-149 or § 52-557n. This issue thus
necessitates the trial court to conduct an evidentiary
hearing, or ‘‘to postpone resolution of the jurisdictional
question until the parties complete further discovery
or, if necessary, a full trial on the merits has occurred.’’
Conboy v. State, supra, 292 Conn. 653 n.16. We thus
conclude that the Appellate Court properly reversed
the trial court’s decision to dismiss the plaintiff’s action.
      The judgment of the Appellate Court is affirmed.
      In this opinion the other justices concurred.
  1
    General Statutes § 13a-149 provides in relevant part: ‘‘Any person injured
in person or property by means of a defective road or bridge may recover
damages from the party bound to keep it in repair. . . . No action for any
such injury shall be maintained against any town . . . unless written notice
of such injury and a general description of the same, and of the cause
thereof and of the time and place of its occurrence, shall, within ninety
days thereafter be given to a selectman or the clerk of such town . . . .’’
   This court has long recognized that § 13a-149 applies to publicly traversed
roadways. ‘‘[T]o establish liability [under § 13a-149], the plaintiff ha[s] the
burden of proving (1) the existence of a defect which resulted from the
failure of the defendant to use reasonable care to keep the . . . [highways]
within its control in a reasonably safe condition for public travel; (2) notice,
either actual or constructive, to the defendant of the defect; and (3) the
exercise by him of due care.’’ (Emphasis added; internal quotation marks
omitted.) Steele v. Stonington, 225 Conn. 217, 220–21, 622 A.2d 551 (1993).
This court has never, however, considered whether § 13a-149 applies to
roads that are controlled by a municipality but are restricted to purely
private use. In the present case, the defendant assumes that a publicly owned
road for solely private use is still a public road for purposes of § 13a-149;
nevertheless, the defendant has not asked us to address whether there
should be a distinction between private and public thoroughfares under this
statute, and we need not undertake an analysis to resolve that question.
   2
     General Statutes § 52-557n provides in relevant part: ‘‘(a) (1) Except as
otherwise provided by law, a political subdivision of the state shall be liable
for damages to person or property caused by: (A) The negligent acts or
omissions of such political subdivision or any employee, officer or agent
thereof acting within the scope of his employment or official duties . . .
provided, no cause of action shall be maintained for damages resulting from
injury to any person or property by means of a defective road or bridge
except pursuant to section 13a-149. . . .’’
   3
     Practice Book § 10-33 provides: ‘‘Any claim of lack of jurisdiction over the
subject matter cannot be waived; and whenever it is found after suggestion of
the parties or otherwise that the court lacks jurisdiction of the subject
matter, the judicial authority shall dismiss the action.’’
   4
     The trial court did not address the defendant’s statute of limitations
argument in rendering its judgment dismissing the complaint.
   5
     Practice Book § 10-30 provides in relevant part: ‘‘(a) A motion to dismiss
shall be used to assert: (1) lack of jurisdiction over the subject matter . . . .
   ‘‘(c) This motion shall always be filed with a supporting memorandum of
law and, where appropriate, with supporting affidavits as to facts not appar-
ent on the record.’’
