author: PETERS, J.

text:
    NEW ENGLAND CUSTOM CONCRETE, LLC v. MARIA CARBONE ET AL.
    (AC 27706)
    Bishop, Lavine and Peters, Js.

      Argued April 19
    officially released July 24, 2007

      William B. Wynne, with whom, on the brief, was Frank B. Velardi, Jr., for the appellants (defendants).

      Noah J. Schafler, for the appellee (plaintiff).
   Opinion

PETERS, J.

The Home Improvement Act, General Statutes § 20-418, “is a remedial statute that was enacted for the purpose of providing the public with a form of consumer protection against unscrupulous home improvement contractors. . . . The aim of the statute is to promote understanding on the part of consumers with respect to the terms of home improvement contracts and their right to cancel such contracts so as to allow them to make informed decisions when purchasing home improvement services.” (Citation omitted.) Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 231, 720 A.2d 235 (1998). The principal issue in this case is whether, in the absence of a finding of bad faith by the homeowner, a trial court may enforce a home improvement contract that does not contain a cancellation clause in substantial compliance with the requirements of General Statutes § 20-429, the statute. Because we disagree with the court’s resolution of this dispositive issue, we reverse the court’s judgment in favor of the contractor.

In a three count substituted complaint filed December 22, 2004, the plaintiff, New England Custom Concrete, LLC, sought to recover monetary damages and attorney’s fees from the defendants, Maria Carbone and Bing Carbone, because of their failure to make a final payment of $3049 for concrete walkways installed at their residence in Shelton. The defendants denied their liability and, in addition, filed special defenses alleging that the plaintiff had failed to comply with § 20-429 and a counterclaim seeking compensatory damages for common law malfeasance and attorney’s fees pursuant to General Statutes § 42-150bb and statutory damages and attorney’s fees for violation of the Home Improvement Act. General Statutes § 20-427 (c) provides that a violation of the Home Improvement Act constitutes a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. See General Statutes § 42-110g.

After a court trial, the court found in favor of the plaintiff on these issues and rendered a judgment in its favor for $3049 and for attorney’s fees. As a matter of fact, the court found that the plaintiff had performed its contract obligations “in a reasonably workmanlike fashion and in accordance with the conditions specified in the contract.” As a matter of law, the court ruled for the plaintiff both on the defendants’ special defenses and on their counterclaim. With respect to the special defenses, the court summarily concluded that the parties’ contract complied with § 20-429. With respect to the counterclaim, the court held that the defendants were barred from pursuit of a claim for damages because “[t]he defendants] cannot both claim a breach of contract and at the same time claim an invalid contract by way of defense.” The defendants have appealed.

The trial court’s memorandum of decision and the record contain the relevant facts, which are undisputed. On May 5,2004, the plaintiff and the defendants entered into a written contract for the installation of a concrete walkway in the front of the defendants’ house at a cost of $2765. Thereafter, the parties orally agreed to have the plaintiff also construct a walkway at the pool deck in the rear of the residence and, in consequence, agreed to an increase in the contract price to $22,464. The defendants made an initial payment of $915 as specified by the original contract and, after completion of all the work on June 22, 2004, made additional payments totaling $18,500. The defendants declined, however, to make the final payment of $3049, because, in their view, the work performed by the plaintiff was defective. The court resolved this factual dispute about the plaintiffs workmanship in favor of the plaintiff, and the defendants have not challenged the validity of this finding on appeal.

Although the trial court recognized that the defendants had raised a special defense as matter of law under § 20-429, it did not undertake a close analysis of the written contract, which was an exhibit at trial. In a conclusory statement, it simply held that the contract satisfied the requirements of the statute.

Examination of the contract discloses a two page home improvement contract on a standardized form imprinted with the plaintiffs letterhead. The negotiated parts of the contract describe the work to be done as a front walkway at the defendants’ residence, with the requisite specifications for this work, a statement of the contract price and a payment schedule. To reflect the parties’ subsequent decision to expand the work to include the pavement of a walkway at the pool deck, the agreement contains a series of cryptic numerical calculations with a dollar amount. One of the defendants signed the contract initially but neither of them agreed in writing to the revision of the contract price for the added work at the pool. The plaintiff never signed the contract.

The defendants’ appeal challenges the trial court’s interpretation of § 20-429 as it applied to this contract. The defendants maintain that the trial court improperly concluded that (1) the contract between the parties complied with § 20-429 and (2) the defendants’ statutory claim under § 20-429 was, in effect, an election of remedies that precluded their pursuit of their statutory counterclaim under CUTPA, § 42-1 lOg, made applicable to violations of the Home Improvement Act by § 20-427 (c). Both of the issues raised by the defendants concern issues of statutory interpretation and our review of their merits, therefore, is plenary. Crandall v. Gould, 244 Conn. 583, 590, 711 A.2d 682 (1998). Because we agree with the defendants’ interpretation of the applicable statutes, we reverse the judgment of the court.

I

THE HOME IMPROVEMENT ACT

The Home Improvement Act was enacted in 1979; see Public Acts 1979, No. 79-606; “not only to protect homeowners from substandard work but also to ensure that homeowners are able to make an informed choice on a decision that has potentially significant financial consequences.” Barrett Builders v. Miller, 215 Conn. 316, 327, 576 A.2d 455 (1990). Accordingly, § 20-429 (a) (6) expressly invalidates and declares unenforceable a home improvement contract that does not give a homeowner written “notice of the owner’s cancellation rights in accordance with the provisions of [the Home Solicitation Sales Act, General Statutes § 42-134 et seq.[ . . . .” General Statutes § 20-429 (a) (6). Barrett Builders held that, in the absence of a showing of bad faith on the part of the homeowner, a contractor who does not comply substantially with § 20-429 (a) is barred from any monetary recovery, contractual or restitutionary. Barrett Builders v. Miller, supra, 324-25.

In 1993, the legislature revisited § 20-429 by adding subsection (f). See Public Acts 1993, No. 93-215, § 1 (P.A. 93-215). Recognizing that strict enforcement of the Home Improvement Act sometimes leads to harsh results, the new subsection affords access to equitable relief for home improvement contractors who meet some, but not all of the requirements stated in the remainder of the statute. See P.A. 93-215; see also Eco-nomos v. Liljedahl Bros., Inc., 279 Conn. 300, 310, 901 A.2d 1198 (2006) (“[s]ubsection [1] of § 20-429 allows quantum meruit recovery in certain cases of noncompliance with subsection [a]”). Subsection (f) provides: “Nothing in this section shall preclude a contractor who has complied with subdivisions (i), (2), (6), (7) and (8) of subsection (a) of this section from the recovery of payment for work performed based on the reasonable value of services which were requested by the owner, provided the court determines that it would be inequitable to deny such recovery.” (Emphasis added.) General Statutes § 20-429 (f). Significantly, even as amended, § 20-429 does not provide restitutionary relief for a contractor who, like the present plaintiff, seeks enforcement of a home improvement contract that does not contain a starting date, a completion date and a proper notice of cancellation. The legislature’s express failure to give the trial court carte blanche to excuse noncompliance with § 20-429 in its entirety manifests its acquiescence in our strict construction of the statute in these other respects. See Hammond v. Commissioner of Correction, 259 Conn. 855, 874, 792 A.2d 774 (2002); Kondrat v. Brookfield, 97 Conn. App. 31, 42, 902 A.2d 718, cert. denied, 280 Conn. 926, 908 A.2d 1087 (2006).

The plaintiff does not dispute the defendants’ claim that the contract between the parties does not comply fully with the requirements of § 20-429. It argues instead that the defendants are precluded from invoking the protection afforded them by the act because (1) the defendants repudiated their contract obligations in bad faith and (2) the agreement between the parties was substantially in compliance with § 20-429. Under the circumstances of this case, we disagree with the plaintiff.

A

The principles governing the plaintiffs claim of bad faith are well established. In Barrett Builders v. Miller, supra, 215 Conn. 328, our Supreme Court stated, in dictum, that a homeowner could not avail himself of the protection afforded to him by § 20-429 if he invoked the statute in bad faith. Our Supreme Court subsequently applied the bad faith exception in Habetz v. Condon, 224 Conn. 231, 618 A.2d 501 (1992), in which it upheld a trial court’s factual finding of bad faith. “The central element giving rise to this exception is the recognition that to allow the homeowner who acted in bad faith to repudiate the contract and hide behind the act would be to allow him to benefit from his own wrong, and indeed encourage him to act thusly. Proof of bad faith therefore serves to preclude the homeowner from hiding behind the protection of the act.” Id., 237. Habetz made it clear, however, that mere disagreement about contract performance does not suffice to establish bad faith. Habetz defined bad faith as involving “actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. . . . Bad faith means more than mere negligence; it involves a dishonest purpose.” (Citation omitted; internal quotation marks omitted.) Id.

“It is the burden of the party asserting the lack of good faith to establish its existence and whether that burden has been satisfied in a particular case is a question of fact.” (Internal quotation marks omitted.) Kronberg Bros., Inc. v. Steele, 72 Conn. App. 53, 63, 804 A.2d 239, cert. denied, 262 Conn. 912, 810 A.2d 277 (2002). In this case, the trial court made no finding of fact with respect to the plaintiffs present claim of bad faith. The defendants dispute the plaintiffs claim that their disagreement with the plaintiff can properly be so characterized. At best, the record demonstrates vigorous disagreement about the quality of the plaintiffs workmanship in performing the contract. It is, therefore, doubtful that the court could have made a finding of bad faith. It is, however, clear that this court cannot make such a finding because appellate courts in this state do not make findings of fact. State v. Pagan, 75 Conn. App. 423, 431, 816 A.2d 635, cert. denied, 265 Conn. 901, 829 A.2d 420 (2003). On this record, the plaintiff has failed to establish the necessary predicate for invoking the bad faith exception to enforcement of the Home Improvement Act.

B

Alternatively, the plaintiff maintains that the court properly rendered a judgment in its behalf because, as a matter of law, its contract was in substantial compliance with the requirements of the Home Improvement Act. It invokes the instruction of our Supreme Court in Wright Bros. Builders, Inc. v. Dowling, supra, 247 Conn. 229, that § 20-429 should not be applied “so as to require perfect, ritualistic compliance as a condition precedent to recovery by a contractor.” We are not persuaded that Wright Bros. Builders, Inc., controls this case.

In Wright Bros. Builders, Inc., our Supreme Court held that a home improvement contractor could enforce a contract that failed to comply with the statute in ways that the court characterized as “minor” and “highly technical . . . .” Id., 232. The court described the defects as follows: “(1) [the contract] did not have the cancellation notice in duplicate so that there would be a tear-off sheet to return if the homeowner decided to cancel the contract and (2) the cancellation notice failed to contain the date of the transaction and the date by which the defendants could cancel the contract on the notice of cancellation.” Id. The court noted that the missing information “easily could have been gleaned from even the most cursory review of the contract.” Id., 233. In no other respect did the contract in that case fail to comply with § 20-429.

The defects in the contract on which the plaintiff relies in this case are of a different order of magnitude. The contract does not contain (1) the plaintiffs signature; see General Statutes § 20-429 (a) (2); (2) the terms of the modified agreement for paving at the pool deck, (3) a starting and a completion date; see General Statutes § 20-429 (a) (7); or (4) a notice of cancellation in accordance with the provision of the Home Solicitation Sales Act. See General Statutes § 20-429 (a) (6). In our view, these departures from the requirements of § 20-429 cannot properly be described as either “minor” or “highly technical.”

In light of this record, it is understandable that, although the plaintiff cites Wright Bros. Builders, Inc., in principle, it does not argue that the case is directly controlling. Instead, the plaintiff argues that it substantially complied with § 20-429 because, as the court found, it had performed its contract obligations “in a reasonably workmanlike fashion and in accordance with the conditions specified in the contract.” For this proposition, the plaintiff relies on this court’s holding in Avon Plumbing & Heating Co. v. Fey, 40 Conn. App. 351, 358, 670 A.2d 1318 (1996), that “[t]he purpose of the Home Improvement Act is to ensure that home improvements are performed by qualified people.”

The plaintiffs reliance on Avon Plumbing & Heating Co. v. Fey, supra, 40 Conn. App. 358, is misplaced. That case involved the applicability of General Statutes § 20-428 (4), which provides an exemption from the writing requirements of the Home Improvement Act for services performed by “any person holding a current professional or occupational license . . . .” (Internal quotation marks omitted.) Id., 353 n.3. The question for the court was whether an exemption that permits licensed plumbers to enforce oral home improvement contracts also permits such an action by a corporation that employs licensed plumbers. Id., 353.

This court’s interpretation of the statutory exemption as including a corporate employer provides no authority for exempting the plaintiff in this case from the writing requirements of § 20-429. If every registered home improvement contractor were deemed to be a person holding a “professional or occupational license,” this limited exception would swallow the rule. The plaintiffs proposed construction of § 20-428 (4) would not only be inconsistent with the principles generally governing remedial statutes; see Fojtik v. Hunter, 265 Conn. 385, 392-93, 828 A.2d 589 (2003); but would also be irreconcilable with § 20-429 (f), which unambiguously provides that failure to comply with subdivisions (6) and (7) of § 20-429 (a) makes a home improvement contract unenforceable.

We have, moreover, decided a case that squarely addresses and refutes the plaintiffs argument of substantial compliance with § 20-429. In Kronberg Bros., Inc. v. Steele, supra, 72 Conn. App. 56, as in this case, a home improvement contractor maintained that its contract substantially complied with all the essential requirements of § 20-429 and that “any deficiencies were merely technical.” We disagreed with that characterization because “the cancellation notice fail[ed] to contain the date of the transaction and the date by which the defendants could cancel the contract, the contract itself lacked a transaction date [and] the contract did not contain the required cancellation notice in immediate proximity to the space reserved in the contract for the signature of the buyer.” Id., 59. By way of comparison,- the only provision in this plaintiffs contract that in any way addresses the defendants’ right to cancel is a single sentence, located in a printed paragraph containing contract provisions limiting the plaintiffs liability, that states: “There will be no deposit refunds after three days of acceptance of contract.” That language is even less compliant with the requirements of the act than the contract language in Kronberg Bros., Inc. The holding in Kronberg Bros., Inc., that the home improvement contract in that case was in material noncompliance with the requirements of § 20-429 requires us to reach the same conclusion here.

In sum, we conclude that the court improperly decided that the plaintiff was entitled to recover the unpaid final installment of its home improvement contract with the defendants. The plaintiff has not established that the defendants invoked the protection afforded to them by § 20-429 in bad faith. Furthermore, the plaintiff has failed to demonstrate that the provisions of its contract were in substantial compliance with the requirements of the act. The defendants are entitled to judgment in their behalf on the plaintiffs complaint.

II

THE CUTPA COUNTERCLAIM

In the third count of their counterclaim at trial, the defendants alleged that they were entitled to an award of monetary damages because the plaintiffs failure to comply with § 20-429 was an unfair or deceptive act or practice in the conduct of trade or business in violation of General Statutes § 42-110b. As a remedy, they sought compensatory damages, punitive damages and attorney’s fees pursuant to General Statutes § 42-1 lOg.

The trial court held that the defendants were barred from pursuit of this counterclaim because “[t]he defendants] cannot both claim a breach of contract and at the same time claim an invalid contract by way of defense.” We agree with the defendants that, under the circumstances of this case, the court’s ruling was improper and its judgment must be set aside. Pursuant to General Statutes § 20-427 (c), a violation of the Home Improvement Act is automatically a violation of CUTPA. See also A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990). It follows that the defendants’ claim that the plaintiffs contract did not substantially comply with § 20-429 (a) was entirely consistent with their claimed right to recover damages and attorney’s fees under § 42-1 lOg.

It does not follow, however, that the defendants are now entitled to the entry of a monetary judgment in their behalf. Even though § 42-1 lOg (a) authorizes the award of compensatory and punitive damages for a CUTPA violation, the statute is not self-executing. Litigants who seek to recover damages under CUTPA must meet two threshold requirements. First, they must establish that the conduct at issue constitutes an unfair or deceptive trade practice. Second, they must present evidence providing a basis for a court to make a reasonable estimate of the damages that they have suffered. See Reader v. Cassarino, 51 Conn. App. 292, 299, 721 A.2d 911 (1998). There is no automatic entitlement to damages.

In this case, the record establishes no basis for the award of either compensatory or punitive damages. The defendants have not explained how they could be found to have suffered compensatory damages when they have not challenged the validity of the court’s finding that the plaintiff performed its contract obligations in workmanlike fashion. The defendants have not alleged, in their pleadings, that the plaintiff engaged in the kind of egregious misconduct that would justify punitive damages. As our Supreme Court has only recently reminded us, “[p]unitive damages may be awarded only for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others.” (Internal quotation marks omitted.) Lydall v. Ruschmeyer, 282 Conn. 209, 245, 919 A.2d 421 (2007). A contractor’s failure to comply with § 20-429 does not warrant such opprobrium.

The defendants’ entitlement to recover attorney’s fees stands on a different footing. Section § 42-1 lOg (d) provides in relevant part that “[i]n any action brought by a person [pursuant to CUTPA], the court may award . . . costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. ...” Because an award of attorney’s fees under this statute is not a matter of right, we have held that “[w]hether any award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case.” (Internal quotation marks omitted.) LaMontagne v. Musano, Inc., 61 Conn. App. 60, 63-64, 762 A.2d 508 (2000). The defendants are entitled to an opportunity to make their case for attorney’s fees, but this court is not the proper forum for that presentation. We conclude, therefore, that a remand is required to permit them to prove their attorney’s fees.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       General Statutes § 20-429 provides in relevant part: “(a) No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor and the contractor’s registration number, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor, except that the commissioner may, by regulation, dispense with the necessity for complying with the requirement that each change in a home improvement contract shall be in writing and signed by the owner and contractor. . .
      “(e) Each home improvement contract entered into shall be considered a home solicitation sale pursuant to chapter 740 and shall be subject to the requirements of said chapter regardless of the location of the transaction or of the signing of the contract. ...”

       The three count complaint alleged that the plaintiff was entitled to damages for breach of contract, in quantum meruit and for unjust enrichment. The plaintiff sought recovery of $3049 as well as interest and attorney’s fees. In the second count, sounding in quantum meruit, the amount outstanding was listed as $3649. That figure appears to be a typographical error, as the court and the parties used the figure of $3049 in all other references.

       General Statutes § 42-150bb provides in relevant part: “Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorney’s fee of the commercial party to be paid by the consumer, an attorney’s fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease. . .

       General Statutes § 20-427 (c) provides in relevant part: “A violation of any of the provisions of this chapter shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b.”

       General Statutes § 42-1 lOg provides in relevant part: “(a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.
      “(d) In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, cost and reasonable attorney’s fees based on the work reasonably performed by an attorney and not on the amount of recovery. . . .”

       The trial court’s judgment included an order for the payment of attorney’s fees to the plaintiff, in an amount to be determined at a later date. Although attorney’s fees have not yet been assessed, we have subject matter jurisdiction to hear the defendants’ appeal because the court’s judgment on the merits is a final judgment. See Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988).

         In addition to its negotiated terms, the contract also contains a clause in small print that states: “All agreements contingent upon strikes, accidents, weather or delay beyond our control. All work shall include labor, material, equipment and transportation to complete the installation of the job. However, there will be a charge per load for removal of excavated material. The color guide shown representative and approximate, as closely as possible, and cannot guarantee the final appearance to be an exact match. The use of sealer and slight color-drifts in raw material will produce variation of the color. [The plaintiff] highly recommends concrete be sealed every three to five years to maintain its natural beauty. Warranty covered heaving of concrete not the concrete itself or hair line cracking because [the plaintiff] is not the maker of the concrete so therefore is not responsible. [The plaintiff] is not responsible for lawm or driveway damage caused by use or necessary equipment to complete job (ex. concrete truck, work trucks, or machinery). There will be no deposit refunds after three days of acceptance of contract. Failure of payment will result in attorney action, attorney costs, and or lien action will be taken into effect immediately following termination of contract.”

       Indeed, the legislative history is unequivocal in this regard. In response to motions made by Representative William J. Varese and approved unanimously by the House, the statute was amended on the floor to make it clear that a contractor would not be able to recover under quantum meruit if the home improvement contract did not comply with subdivisions (6) and (7) of § 20-429 (a). 36 H.R. Proa, Pt. 16, 1993 Sess., pp. 5604-5605.
      While introducing the original bill, prior to Representative Varese’s amendment, Representative Thomas A. Fox, chairman of the general laws committee, indicated that the bill would “modif[y] the existing law to allow a contractor to recover on a theory of quantum meruit for what is reasonable and fair based upon the work that was done, if in fact, certain requirements but not all that are required, are met.” (Emphasis added.) Id., p. 5603.

       The court, having found that the contract complied with § 20-429, had no occasion to address this issue.

       See footnote 1.

       See Caulkins v. Perillo , 200 Conn. 713, 717, 513 A.2d 43 (1986).

       See footnote 1.

       See footnote 1.

       See footnote 7.

       In this appeal, the defendants have not pursued the first or second counts of the counterclaim that they filed at trial.

       See footnote 4.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MARLENE SCRIVANI ET AL. v. ANDREW VALLOMBROSO
    (AC 26315)
    DiPentima, Harper and Hennessy, Js.
    Submitted May 14
    officially released July 24, 2007

      Campbell D. Barrett, with whom were Janis K. Malee, and, on the brief, C. Michael Budlong and Kevin W. Hadfield, certified legal intern, for the appellant (defendant).

      Bradley K. Cooney, for the appellees (plaintiffs).
   Opinion

PER CURIAM.

On October 24, 2006, this court heard oral argument and thereafter issued an opinion setting forth the relevant facts, procedural history and applicable law in this case. See Scrivani v. Vallombroso, 99 Conn. App. 645, 916 A.2d 827, cert. denied, 282 Conn. 904, 920 A.2d 309 (2007). In that opinion, we remanded the case for an articulation as to whether in awarding attorney’s fees and punitive damages under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., the court considered the per se CUTPA violations that were based on violations of the Home Improvement Act, General Statutes § 20-418 et seq., in conjunction with the other CUTPA violations and, if it did, for the court to articulate the basis for its finding that the failure of the defendant, Andrew Vallombroso, to comply with the Home Improvement Act contributed to the harm sustained by the plaintiffs, Marlene Scrivani and Dina Garamella. We retained jurisdiction over the appeal.

The court filed its articulation on April 20, 2007. In its articulation, the court stated that it did not consider the defendant’s failure to comply with the Home Improvement Act as a basis for awarding punitive damages and attorney’s fees, as those per se CUTPA violations were not the proximate cause of the plaintiffs’ harm. As further stated in its articulation, the court based its award of damages on the other CUTPA violations, which included the defendant’s having engaged in “deceptive, unethical and unfair conduct . . . when he falsely represented to the plaintiffs that he and the people he would hire to install the CertainTeed siding were experienced in the installation of that product,” as the defendant “knew that he was not experienced in the installation of that type of siding, and he was aware or should have been aware that the man he hired also was not experienced or qualified.” On the basis of those findings, the court determined that the plaintiffs suffered financial losses in connection with the installation of the siding and were entitled to punitive damages and attorney’s fees.

Because the court did not base its award of punitive damages and attorney’s fees on the per se CUTPA violations that were based on violations of the Home Improvement Act, we conclude that the court did not improperly determine that the defendant violated CUTPA on the basis of violations of the Home Improvement Act that were unrelated to damages.

The judgment as clarified by the trial court’s articulation filed on April 20, 2007, is affirmed.

       General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

       The defendant also claimed that the court improperly concluded that his conduct was sufficiently unfair and deceptive to constitute a violation of CUTPA. We affirmed that portion of the court’s judgment. Scrivani v. Vallombroso, supra, 99 Conn. App. 648-50.


author: SCHALLER, J.

text:
    ANGEL SAMAOYA v. WILLIAM GALLAGHER ET AL.
    (AC 27654)
    Schaller, DiPentima and Harper, Js.

      Submitted on briefs February 9
    officially released July 24, 2007

      William T. Blake, Jr., filed a brief for the appellant (named defendant).

      Richard Blumenthal, attorney general, and Lisa Gut-tenberg Weiss and William J. McCullough, assistant attorneys general, filed a brief for the appellee (defendant second injury fund).
   Opinion

SCHALLER, J.

The principal issue in this appeal is whether the workers’ compensation review board (board) properly affirmed the finding of the workers’ compensation commissioner (commissioner) that the defendant William Gallagher, doing business as Gallagher Construction, was a principal employer obligated to assume liability for compensation due to the plaintiff, Angel Samaoya, pursuant to General Statutes § 31-291. On appeal, the defendant claims that the board improperly (1) affirmed the commissioner’s finding that he was a principal employer of the plaintiff and (2) concluded that the commissioner’s finding was not void for uncertainty. We affirm the decision of the board.

The record reveals the following facts and procedural history. The plaintiff was employed as a house painter by Marino’s Painting. On June 30, 2003, he fell twenty-seven feet from a ladder while working on a house renovation project in New Canaan, suffering compensa-ble injuries to his right foot.

New England Realty Enterprises, LLC (New England Realty), owned the premises at which the renovation work was being performed. Marino’s Painting had been hired by Jeffrey Famham, acting on behalf of New England Realty. The town records of New Canaan listed the defendant’s business, Gallagher Construction, as the general contractor for the renovation project. The plaintiff also observed the defendant giving instructions at the job site concerning the painting work and making payments to Marino’s Painting for work performed on the premises.

Following his injury, the plaintiff filed claims for workers’ compensation benefits against Marino’s Painting who he claimed was Farnham, doing business as New England Realty, and the defendant. Neither Mari-no’s Painting nor the defendant had workers’ compensation insurance coverage on the date of the plaintiffs injury. New England Realty did not defend against the plaintiffs claim.

A formal hearing was held before the commissioner on June 1, 2004. In a finding and award issued on May 24, 2005, the commissioner determined that Marino’s Painting was hired by either Gallagher Construction or by New England Realty through Farnham. The commissioner further found that “(1) the two individuals—[the defendant] and Farnham—either individually or as the principal in their respective entity—procured work to be done on the premises where the [plaintiffs] injury occurred; (2) the work that Marino’s Painting was to do on the premises is part of the trade or business of a subcontractor; and (3) either or both, [the defendant] and Farnham, controlled the premises in their representative or individual capacities.” The commissioner concluded that the defendant, Gallagher Construction, Farnham and New England Realty were all principal employers under § 31-291 and, consequently, liable for all workers’ compensation benefits not paid by Marino’s Painting. The defendant appealed to the board, which affirmed the commissioner’s decision. This appeal followed.

The standard of review in workers’ compensation appeals is well settled. “[W]hen a decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. ... It is the power and the duty of the commissioner, as the trier of fact, to determine the facts. . . . [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses .... The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. . . . Similarly, [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Citations omitted; internal quotation marks omitted.) Brinson v. Finlay Bros. Printing Co., 77 Conn. App. 319, 323-24, 823 A.2d 1223 (2003).

I

The defendant first claims that the board improperly affirmed the commissioner’s finding that he was a principal employer of the plaintiff. The defendant argues that the commissioner’s finding failed to establish conclusively that he had hired Marino’s Painting or that he had controlled the premises at which the painting work was performed, as required for liability to attach under § 31-291.

Pursuant to § 31-291, principal employer liability attaches “[w]hen any principal employer procures any work to be done wholly or in part for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on or about premises under his control . . . .” Section 31-291 involves three main elements: “One, the relation of the principal employer and contractor must exist in work wholly or in part for the former. Two, the work must be in, on or about premises controlled by the principal employer; and three, the work must be a part or process in the trade or business of the principal employer.” (Internal quotation marks omitted.) Hebert v. RWA, Inc., 48 Conn. App. 449, 453, 709 A.2d 1149, cert. denied, 246 Conn. 901, 717 A.2d 239 (1998). In this appeal, we are concerned with whether the defendant procured the work performed by Marino’s Painting and whether he controlled the premises at which the work was performed.

We note that our review of the defendant’s claim is limited by the procedural posture of this case. Because the defendant did not file a motion to correct the factual findings of the commissioner, he is unable to challenge those findings now. See Sellers v. Sellers Garage, Inc., 80 Conn. App. 15, 19, 832 A.2d 679, cert. denied, 267 Conn. 904, 838 A.2d 210 (2003); see also Regs., Conn. State Agencies § 31-301-4. We therefore are limited to determining whether the board’s conclusions on the basis of those facts “result[ed] from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . In other words, [tjhese conclusions must stand unless they could not reasonably or logically be reached on the subordinate facts.” (Internal quotation marks omitted.) Sellers v. Sellers Garage, Inc., supra, 19-20.

A

The defendant contends that the first element of § 31-291 cannot be established absent a factual finding by the commissioner that he hired Marino’s Painting, thereby creating a contractual relationship between him and Marino’s Painting. We are not persuaded.

Contrary to the defendant’s argument, § 31-291 does not require a contractual relationship. Rather, the statute simply requires a “procurement” of work. As stated, to satisfy the first element of the statute, “the relation of the principal employer and contractor must exist in work wholly or in part for the former.” (Internal quotation marks omitted.) Hebert v. RWA, Inc., supra, 48 Conn. App. 453.

In the present case, the commissioner’s factual findings established a relationship of general contractor and subcontractor between the defendant’s business, Gallagher Construction, and Marino’s Painting. First, the commissioner found that the building permit issued by the town of New Canaan listed Gallagher Construction as the general contractor for the renovation proj ect. Further, the commissioner credited the plaintiffs testimony as to the role of Marino’s Painting as a subcontractor, which he was free to do as the sole arbiter of the weight of the evidence and the credibility of witnesses. See Brinson v. Finlay Bros. Printing Co., supra, 77 Conn. App. 323. Specifically, the commissioner found that the plaintiff observed the defendant giving instructions concerning the painting work as well as making payments to Marino’s Painting. The commissioner determined that the plaintiff understood that he was working for Marino’s Painting, which, in turn, was working for a company involving both the defendant and Famham. From this evidence, it reasonably can be inferred that Marino’s Painting performed work in part for the defendant, thereby satisfying the first element of § 31-291.

B

The defendant further contends that the commissioner’s finding failed to establish that he controlled the premises, as required for liability to attach under § 31-291. We disagree.

“The term ‘control’ in [the context of § 31-291] has a specific meaning. It is merely descriptive of the work area and is used instead of such words as ‘owned by him’ or ‘in his possession’ in order to describe the area in a more inclusive fashion. The emphasis is upon limitation of the area within which the accident must happen rather than upon actual control of the implements which caused the accident.” (Internal quotation marks omitted.) Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 73-74, 504 A.2d 1376, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).

In the present case, it reasonably may be inferred from the commissioner’s factual findings that the defendant exercised the requisite control over the area in which the plaintiff was injured to qualify as a principal employer under § 31-291. As previously indicated, the commissioner found that the official town records listed Gallagher Construction as the general contractor. In addition, the commissioner credited the plaintiffs testimony that the defendant gave instructions concerning the painting work.

Accordingly, we conclude that the board properly affirmed the commissioner’s finding that the defendant was a principal employer of the plaintiff.

II

The defendant next claims that the board improperly concluded that the commissioner’s finding was not void for uncertainty. The defendant specifically refers to the commissioner’s factual findings that Marino’s Painting was hired by either the defendant or Famham, acting on behalf of New England Realty, and that either or both the defendant and Famham controlled the premises. The cmx of the defendant’s argument is that the commissioner’s overall finding is void as a result of his alternative factual findings because the issue of liability remained undetermined. We disagree.

The defendant’s argument that the commissioner’s finding is void for uncertainty is unavailing because the commissioner imposed liability on both the defendant and Famham in their individual and representative capacities as principal employers of the plaintiff. Specifically, the commissioner found that “[the defendant], Gallagher Construction . . . Famham and New England Realty . . . are all principal employers . . . liable for all [workers’ compensation] benefits to the extent not paid by Marino’s Painting.”

It is well established that multiple employers can be held liable as principal employers. “[W]henever an injured employee of a subcontractor receives a compen-sable injury he may pursue his remedy against his immediate employer or any one or more principal employers as thus defined, or against all in one proceeding. Where there is an original contractor and a consecutive chain of subcontractors down to the workman receiving a compensable injury, each contractor in such chain and his immediate employer is a principal employer as to the injured workman . . . .” Palumbo v. Fuller Co., 99 Conn. 353, 365, 122 A. 63 (1923).

We conclude that the board properly determined that the commissioner’s finding was not void for uncertainty.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The commissioner found that the defendants William Gallagher, Gallagher Construction, Jeffrey Famham and New England Realty, LLC, were principal employers of the plaintiff and therefore liable for all workers’ compensation benefits not paid by the defendant Marino Painting. Because only William Gallagher appealed to the compensation review board, we refer to him as the defendant.

       The defendant second injury fund is the appellee in this appeal. The defendant did not have workers’ compensation insurance. Pursuant to General Statutes § 31-355 (h), “[w]hen a finding and award of compensation has been made against an uninsured employer who fails to pay it, that compensation shall be paid from the Second Injury Fund . . . .” The plaintiff did not file briefs before the board or this court.

       General Statutes § 31-291, titled “Principal employer, contractor and subcontractor,” provides in relevant part that “[w]hen any principal employer procures any work to be done wholly or in part for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on or about premises under his control, such principal employer shall be liable to pay all compensation under this chapter to the same extent as if the work were done without the intervention of such contractor or subcontractor. . . .”


author: STOUGHTON, J.

text:
    RAL MANAGEMENT, INC. v. VALLEY VIEW ASSOCIATES ET AL.
    (AC 24558)
    Flynn, C. J., and Rogers and Stoughton, Js.

      Argued February 6
    officially released July 24, 2007

      SabatoP. Fiano, for the appellants (named defendant et al.).

      Leonard A. Fasano, for the appellee (plaintiff).
   Opinion

STOUGHTON, J.

This case was remanded to us by our Supreme Court. RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 899 A.2d 586 (2006). The defendants Valley View Associates and Kings Highway Associates appealed from the trial court’s judgment of strict foreclosure rendered on August 4,2003, in favor of the plaintiff, RAL Management, Inc. We dismissed the appeal, concluding that the trial court’s opening of the judgment to set new law days and to revise the amount of the debt, rendered the appeal moot. RAL Management, Inc. v. Valley View Associates, 88 Conn. App. 430, 872 A.2d 462, cert. granted, 274 Conn. 902, 876 A.2d 12 (2005), rev’d, 278 Conn. 672, 899 A.2d 586 (2006). The Supreme Court, after granting certiorari, reversed the judgment and remanded the case to this court for consideration of the merits of the appeal. RAL Management, Inc. v. Valley View Associates, supra, 278 Conn. 692.

On appeal, the defendants claim, in essence, that the mortgage note was improperly reformed and that the amount of the underlying debt was improperly calculated because it was based on an interest rate not in the note and not otherwise supported by the evidence and that the plaintiff was not entitled to foreclosure because the terms of the note violated General Statutes § 37-4 and were unconscionable. We agree that the amount of the debt was improperly calculated and therefore reverse the judgment of the trial court.

The relevant facts and the procedural history appear in the prior opinions. The relevant facts may be summarized briefly as follows. The plaintiff acquired a promissory note executed by the defendants in the principal sum of $87,000. The note is secured by a mortgage and provides for an annual interest rate of 6 percent and a default interest rate of 30 percent per month. The plaintiff brought an action to foreclose the mortgage, and on July 9,2001, the defendants were defaulted for failure to plead. On February 27, 2003, the plaintiff filed a motion for judgment of strict foreclosure. On March 19, 2003, the defendants filed an answer and special defenses that essentially were premised on the default interest rate. On May 5, 2003, the court granted the motion for strict foreclosure and found the debt to be $191,167.50 on the basis of an affidavit of debt, which stated that the default interest rate of the promissory note was 30 percent per annum. The defendants moved to reargue and, at the resulting hearing, various matters, including the default interest rate, were discussed. The plaintiffs counsel explained to the court that despite an earlier demand for payment based on an interest rate of 30 percent per month, the drafter of the note had informed him that he had made a scrivener’s error and that the default interest rate should have been 30 percent per annum. Before the court rendered a decision on the motion, the defendants moved to open the judgment. On August 4, 2003, the court granted the motion to open but ordered reentry of the judgment of strict foreclosure, again setting the debt at $191,167.50. On August 20, 2003, the defendants appealed, initiating an automatic stay. The ensuing events, which are set out in the prior opinions, culminated in the remand to this court.

The defendants first claim that the court improperly reformed the note and calculated the amount of the debt. Specifically, the defendants argue that there was no evidence in the record from which the court could have determined that the rate of interest was 30 percent per annum. We agree with the defendants that the amount of the debt was improperly calculated and that it was based on an interest rate that was not stated in the note.

“[A] promissory note is nothing more than a written contract for the payment of money and, as such, contract law applies.” (Internal quotation marks omitted.) SKW Real Estate Ltd. Partnership v. Gallicchio, 49 Conn. App. 563, 574, 716 A.2d 903, cert. denied, 247 Conn. 926, 719 A.2d 1169 (1998). Courts have the equitable authority to reform contracts in some cases to reflect the true intentions of the parties in the case of fraud or other inequitable conduct by one of the parties, mutual mistake, or to correct a scrivener’s error in memorializing the agreement. Greenwich Contracting Co. v. Bonwit Construction Co., 156 Conn. 123, 126, 239 A.2d 519 (1968); Gold v. Connecticut Home Therapeutics, Inc., 37 Conn. App. 852, 855, 658 A.2d 596 (1995). “A court in the exercise of its power to reform a contract must act with the utmost caution and can only grant the relief requested if the prayer for reformation is supported by convincing evidence. ... In the absence of fraud, it must be established that both parties agreed to something different from what is expressed in writing, and the proof on this point should be clear so as to leave no room for doubt.” (Citation omitted.) Greenwich Contracting Co. v. Bonwit Construction Co., supra, 126-27. In the absence of a stipulation between the parties to the note, evidence is required before reformation can be granted. See Traggis v. Shawmut Bank Connecticut, N.A., 72 Conn. App. 251, 259, 805 A.2d 105, cert. denied, 262 Conn. 903, 810 A.2d 270 (2002).

At a hearing conducted on July 3, 2003, the trial court inquired about the plaintiffs assertion that the 30 percent per month interest rate, provided for on the face of the note, should have been 30 percent per annum and that it was a scrivener’s error. Counsel for the defendants disputed the assertion, in part because a demand had been made for payment of a sum, including interest calculated at 30 percent per month. The plaintiff did not offer any proof of its claim other than counsel’s own representations. The record does not reflect that the plaintiffs counsel testified under oath. Thereafter, the court requested briefs on another matter and postponed its judgment as to the true rate of interest. On August 4, 2003, the court heard argument on several issues related to the note, found that there had been a scrivener’s error and reformed the note to reflect an interest rate of 30 percent per annum. The court did not state on the record the evidence on which it had relied in making this finding. The trial court opened an earlier judgment, set new law days and ordered reentry of the judgment. This court, sua sponte, ordered an articulation of the facts and law supporting, among other things, the trial court’s finding that the true rate of interest was 30 percent per annum. In response, the court merely reiterated that after a hearing on the issue, it determined that the true rate was 30 percent per annum.

After reviewing the record, we agree with the defendants that the court had no evidence before it from which it properly could find that there had been a scrivener’s error in the note and that the interest rate should have been 30 percent per annum. Statements and arguments of counsel are not evidence; Travelers Property & Casualty Co. v. Christie, 99 Conn. App. 747, 761, 916 A.2d 114 (2007); and in this case the claim was disputed. We therefore remand the case to the trial court for a determination of what rate of interest, if any, should apply.

The defendants also claim that the mortgage is not a bona fide mortgage because the plaintiff sought to collect interest at the rate of 30 percent per month, on the one hand, as evidenced by a demand letter, while, on the other hand, it asserted that the 30 percent interest rate in the note was a scrivener’s error and should have been 30 percent per annum.

With certain exceptions, General Statutes § 37-4 prohibits the loan of money at a rate of interest greater than 12 percent per annum. One of the exceptions is found in General Statutes § 37-9 (3), which exempts any bona fide mortgage of real property for a sum in excess of $5000. At the hearing held on August 8, 2003, counsel for both parties agreed that the loan that is the subject of this appeal is exempted from the provisions of § 37-4 to the extent that the mortgage is a bona fide mortgage.

The resolution of this claim depends, at least in part, on the determination of whether there was a scrivener’s error, and, if so, what the true rate of interest should be. Therefore, we do not reach the issue of whether the mortgage was a bona fide mortgage under the statute.

The defendants finally claim that, at either rate of interest, the mortgage terms were unconscionable. The court in foreclosure proceedings has discretion on equitable considerations and principles to examine all of the relevant circumstances. Hamm v. Taylor, 180 Conn. 491, 494-97, 429 A.2d 946 (1980). Because a mortgage foreclosure is an equitable proceeding, the court may consider all relevant circumstances to ensure that complete justice is done. Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). In determining the debt, the court should consider all of the equitable defenses raised by the defendants. Because the issue of uncon-scionability also depends, at least in part, on a determination of the true rate of interest, we do not reach this issue.

The judgment is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Also named as defendants in the original complaint were Kersten Rigi and the law firm of Diserio, Martin, O’Connor & Castiglioni, LLP. The complaint as to Rigi was withdrawn on February 27, 2003, and the law firm is not a party to this appeal. In this opinion, we refer to Valley View Associates and Kings Highway Associates as the defendants.

       At oral argument, the defendants conceded that they were defaulted properly and liable on the note. Therefore, we do not need to consider the issue of whether the court should have set aside the default.

       After the defendants appealed from the August 4, 2003 judgment, the court opened the judgment, set new law days and adjusted the debt to include an amount owed by the defendants to the plaintiff pursuant to another promissory note. Our Supreme Court determined that this later action by the court, because it occurred during the automatic appellate stay, was either “a legal nullity or an action in contravention to the appellate stay barring actions to carry out or to enforce the judgment pending appeal.” RAL Management, Inc. v. Valley View Associates, supra, 278 Conn. 685. Therefore, no issues relating to the other note are before us on this appeal.

       The promissory note itself does not appear in the file before us. It is clear from the transcript of the July 3, 2003 hearing that the face of the note provides for a default of payment interest rate of 30 percent per month.

       General Statutes § 37-4 provides in relevant part: “No person and no firm or corporation or agent thereof . . . shall . . . directly or indirectly, loan money to any person and, directly or indirectly, charge, demand, accept or make any agreement to receive therefor interest at a rate greater than twelve per cent per annum.”

       General Statutes § 37-9 provides in relevant part: “The provisions of [section] 37-4 . . . shall not affect ... (3) any bona fide mortgage of real property for a sum in excess of five thousand dollars . . . .”


author: PELLEGRINO, J.

text:
    HEATHER O. BOSCO v. DANIEL B. REGAN ET AL.
    (AC 27808)
    Flynn, C. J., and Harper and Pellegrino, Js.
    Argued April 24
    officially released July 24, 2007

      Robert L. Chase, for the appellant (defendant Melissa’s Cafe, LLC).

      William F. Beckert, Jr., with whom, on the brief, was Christopher M. Reeves, for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendant Melissa’s Cafe, LLC, appeals from the judgment of the trial court, rendered after the jury verdict in favor of the plaintiff, Heather O. Bosco, in a negligence action arising out of an altercation that took place in the defendant’s bar in Naugatuck. On appeal, the defendant claims that the court improperly (1) concluded that count three of the plaintiffs amended complaint was not barred by the statute of limitations and (2) denied its motion to set aside the jury verdict. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our discussion of the defendant’s appeal. The plaintiff served a five count complaint dated April 11, 2002 (original complaint) against Daniel B. Regan, the sole member and employee of the defendant, and Lynn Dunn, seeking damages in connection with the injuries the plaintiff sustained two years earlier on April 20, 2000, as a result of being struck in the face with a broken bottle or glass object by Dunn, another patron of the defendant’s bar. Counts one, two and three of the original complaint alleged negligence, gross negligence, and reckless and wanton conduct on the part of the defendant and Regan, respectively. In each of these three counts, the plaintiff specifically alleged that the defendant and Regan “failed to monitor the actions of patrons in the bar or to have adequate safety precautions in effect at the bar in order to protect the patrons therein.” In light of the Connecticut legislature’s enactment of Public Acts 2003, No. 03-91 (P.A. 03-91), on October 14, 2005, the defendant and Regan filed a motion for permission to file a motion for summary judgment with regard to counts one and two of the original complaint on the ground that P.A. 03-91 barred any cause of action against a seller of alcoholic liquor that sounded in negligence. The court, Agati, J., granted the motion for permission on January 9, 2006, and the defendant and Regan filed a motion for summary judgment on January 23, 2006.

On the same day as Judge Agati’s ruling, the plaintiff sought leave to amend the original complaint in accordance with Practice Book § 10-60. In the amended complaint, the plaintiff added a new count three, concerning the negligent supervision of the bar by the defendant and Regan. This new count alleged, inter alia: “The injuries and losses suffered by the plaintiff were caused by the negligence and carelessness of the [defendant and Regan] in that they failed to adequately monitor the actions of its patron . . . Dunn when they knew or should have known that she was becoming loud, belligerent, and/or violent ... in that they failed to remove . . . Dunn from the premises when they should have done so under the circumstances ... in that they failed to provide adequate staff and/or security to ensure the safety and well-being of their customers, patrons and business invitees ... in that they failed to supervise an unruly and dangerous patron within said establishment . . . The court, Brunetti, J., overruled the defendant’s subsequent objection to the plaintiffs amended complaint on February 6, 2006.

In its memorandum of decision filed March 1, 2006, Judge Brunetti granted the defendant’s motion for summary judgment as to counts one and two of the amended complaint after concluding that these counts sounded in common-law negligence in the furnishing of alcohol to an intoxicated adult patron and that P.A. 03-91, therefore, barred such claims. Judge Brunetti denied the defendant’s motion for summary judgment as to count three, the negligent supervision count, after concluding that there was a genuine issue of material fact as to whether the defendant and Regan breached a duty owed to a patron in the bar.

On March 10, 2006, the defendant and Regan requested that the plaintiff revise counts three and four of her amended complaint. In response to the defendant’s request, the plaintiff filed a revised complaint on April 13, 2006 (revised complaint). The revised complaint removed all claims against Regan in his individual capacity but retained all claims against him as an agent or employee of the defendant. The defendant and Regan then filed an answer to the revised complaint and asserted, as a special defense, that the plaintiffs negligent supervision claims in count three were barred by the statute of limitations embodied in General Statutes § 52-584.

Before the trial commenced, Dunn and the plaintiff entered into a stipulated judgment in favor of the plaintiff in the amount of $200,000 on May 9, 2006. The following day, the plaintiff filed a second revised complaint, removing Dunn as a defendant, as her lawsuit against Dunn had been settled. At the close of the plaintiffs case, the defendant moved for a directed verdict, arguing that (1) the statute of limitations barred count three of the amended complaint and that (2) the plaintiff did not satisfy her burden of proof with regard to the lack of adequate safety precautions on the defendant’s premises. The plaintiff also moved for a directed verdict, arguing that (1) the statute of limitations is not an applicable defense because count three of the amended complaint did not raise a new cause of action, and that (2) the defendant and Regan were responsible for the plaintiffs injuries. The court, Gallagher, J., denied the defendant’s motion for a directed verdict on both counts and granted the plaintiffs motion for a directed verdict as to the statute of limitations.

On May 11, 2006, the plaintiff revised her complaint a third time during trial, to amend the negligent supervision claims in count three. These claims, however, remained substantially the same as those found in count three of the amended complaint. After the trial, the jury returned a verdict in favor of the plaintiff in the amount of $265,891.21. On May 18, 2006, the defendant filed a motion to set aside the verdict, to which the plaintiff filed an objection. Judge Gallagher denied the defendant’s motion, sustained the plaintiffs objection and rendered judgment in favor of the plaintiff in accordance with the jury verdict. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant argues that the court improperly rejected its special defense that the plaintiffs allegations of negligent supervision raised a new cause of action that was time barred by the applicable statute of limitations. See General Statutes § 52-584. We disagree.

“Our standard of review of the . . . claim is well defined. A trial court’s ruling on a motion of a party to amend its complaint will be disturbed only on the showing of a clear abuse of discretion. . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court. [An appellate] court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. ... It is the [defendant’s] burden ... to demonstrate that the trial court clearly abused its discretion.” (Internal quotation marks omitted.) Franc v. Bethel Holding Co., 73 Conn. App. 114, 132, 807 A.2d 519, cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002) (appeal withdrawn October 21, 2003).

A

The defendant argues that in adding allegations of negligent supervision to the amended complaint, the plaintiff improperly was raising a new cause of action. In an amended complaint, “[i]t is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated. ... A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. ... A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action.” (Citation omitted; internal quotation marks omitted.) Id., 132-33.

We think that count three of the amended complaint stemmed from the same factual situation as the plaintiffs earlier claims in her original complaint, i.e., failing to monitor the bar’s patrons or to have adequate safety precautions in place, and amplifies those claims only as to the egregiousness of the defendant’s actions. The only difference between the claim as alleged in the original complaint that was filed in 2002 and the amended complaint that was filed several months before trial, is that in the amended complaint, the claim was categorized as a separate count, with its own subject heading. The defendant cannot argue that on the basis of these structural alterations in the amended complaint, the plaintiff raised a new cause of action. We conclude, therefore, that the court did not abuse its discretion in permitting the plaintiff to file the amended complaint.

B

The defendant also argues that the court improperly rejected its special defense that the plaintiffs allegations of negligent supervision were time barred. We disagree.

“Amendments relate back to the date of the original complaint unless they allege a new cause of action. . . . Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . . .” (Citations omitted; internal quotation marks omitted.) Id., 136.

On the basis of our conclusion that the plaintiffs amended complaint did not raise a new cause of action, but rather amplified the allegations in her original complaint, we conclude that the allegations in the amended complaint related back to the earlier complaint and thus were not time barred. Accordingly, we affirm the judgment of the trial court.

II

The defendant’s second claim is that its motion to set aside the jury verdict was improperly denied by the court because the plaintiff failed to prove that her injuries were proximately caused by the defendant. Specifically, the defendant argues that it was the plaintiffs burden to show that the lack of security personnel at the defendant’s bar caused the plaintiffs injuries. We are not persuaded.

“[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict . . . [is] the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. ... A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” (Internal quotation marks omitted.) Tornaquindici v. Keggi, 94 Conn. App. 828, 833-34, 894 A.2d 1019 (2006).

The record contains ample support for the jury’s findings that the defendant was negligent and that this negligence proximately caused the plaintiffs injuries. During the trial, Regan testified that he had fifteen years of experience working in different bars and that over the course of his career, he worked as a bar manager and bartender. He testified that it is the responsibility of a bar owner to provide a safe environment for its patrons and that he was “familiar with warning signs of when someone’s behavior might suggest that they . . . may be looking to provoke an altercation . . . .’’Regan also testified that in the past, he has asked patrons to leave the bar, depending on what he had observed from their behavior, and that on the night of the incident in question he had asked Dunn to leave the bar because “she was becoming somewhat loud and belligerent.” He further testified that after he asked Dunn to leave, he went away to clean the dart room area of the bar and that when he returned, Dunn and the plaintiff were having a discussion about directions to a particular bar or pizza place. Eventually, the plaintiff told Dunn to “back off and leave her alone,” at which point Dunn got up, “took a pint beer glass that she was holding in her hand and struck [the plaintiff], causing the glass to break in [the plaintiffs] face.”

Although Regan had asked Dunn to leave the bar prior to the incident, he did not take any steps to enforce this request; he testified that he did not “personally escort Dunn from the premises.” He further testified that although the defendant often hired security personnel, such as doormen, to ensure the safety of bar patrons on the defendant’s busier nights, there were no other bartenders, bouncers or barbacks working on the night in question, as it was one of the bar’s “slower” nights. Finally, Regan testified that from the time he told Dunn to leave, until the time the incident occurred, ten minutes may have passed.

It is clear from our review of the record that to Regan, some type of altercation was foreseeable between the plaintiff and Dunn, because he had asked Dunn to leave the bar. Regan, however, did nothing to enforce his initial request that Dunn leave the bar, and he testified that ten minutes may have passed, from the time he asked Dunn to leave, to the time the incident occurred. Regan’s act of leaving Dunn alone with the plaintiff, rather than separating them or physically escorting Dunn from the premises, may have enabled the situation to escalate, resulting in Dunn’s tortious conduct.

The jury found that there was sufficient evidence to establish that the defendant’s conduct was the proximate cause of the plaintiffs injuries. We note that “ [i]t is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict .... In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable. ... In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it.” (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006). In the present case, there was evidence from which the jury could infer that at the time the incident occurred, Regan, as an agent or employee of the defendant, was negligent in supervising the premises and that on the basis of that negligence, the plaintiff sustained injuries. Accordingly, we conclude that the court did not abuse its discretion by denying the defendant’s motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as defendants were Daniel B. Regan, the sole member and employee of Melissa’s Cafe, LLC, and Lynn Dunn, a patron at Melissa’s Cafe, LLC, on the night of the incident at issue. Prior to trial, the action was withdrawn as against Regan, and Dunn entered into a stipulated judgment in favor of the plaintiff, Heather O. Bosco. We therefore refer in this opinion to Melissa’s Cafe, LLC, as the defendant.

       Counts four and five of the original complaint alleged that Dunn negligently and intentionally caused the plaintiffs injuries.

       Public Act 03-91 provides in relevant part: “If any person . . . sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured .... Such injured person shall have no cause of action against such seller for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older.” (Emphasis added.) Public Act 03-91 has been codified as General Statutes § 30-102.

       The motion, as filed, sought summary judgment only as to counts one and two of the original complaint. The accompanying memorandum of law in support of this motion, however, indicates that summary judgment was sought as to counts one, two and three of the original complaint. In its memorandum of decision, the court, Brunetti, J., addressed the motion for summary judgment as to counts one, two and three of the plaintiffs amended complaint.

       Because of the new count three, count four became the reckless and wanton conduct claim against the defendant and Regan, and counts five and six concerned Dunn’s alleged negligent and intentional conduct.

       Although the defendant and Regan asserted that the plaintiffs negligent supervision claim was also time barred under General Statutes § 52-577, we note that a negligent supervision claim is a negligence action that is governed by General Statutes § 52-584. See Ahern v. Kappalumakkel, 97 Conn. App. 189, 192 n.3, 903 A.2d 266 (2006). General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained . . . .”

       The second revised complaint also removed count four, concerning the defendant’s alleged recklessness.

       As a threshold matter, we first consider the plaintiffs argument that the defendant did not adequately preserve this claim for review. Specifically, she argues that the defendant should have filed an appeal after the court overruled its objection to the plaintiffs amended complaint. We disagree.
      We note that review of interlocutory rulings must ordinarily await an appeal from a final judgment. See Blue Cross/Blue Shield of Connecticut, Inc. v. Gurski, 49 Conn. App. 731, 734, 715 A.2d 819, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998). In this case, the defendant properly awaited the rendering of final judgment on the jury’s verdict before appealing, and its statute of limitations claim, therefore, is properly before this court.

       In its brief, the defendant mentioned that it sought to depose the plaintiff again after the amended complaint was filed in an effort to explore the plaintiffs negligent supervision claim properly. The plaintiff, however, filed a motion for a protective order, which was granted by Judge Brunetti on April 10, 2006. The defendant argued that it was prejudiced by the court’s ruling in that “[t]his [negligent supervision] allegation presented new discovery issues which should have been explored, without adequate time for such exploration. . . . That motion [for a protective order] was granted by the court . . . thus foreclosing any meaningful discovery by the defendant into the issues raised by the new allegations in the amended complaint.” (Citation omitted.)
      Having already concluded, however, that the negligent supervision count was not a new cause of action because the substance of this claim was present in the plaintiffs original complaint, we further conclude that the defendant had ample time to conduct discovery on this issue, as it should have been aware of this claim for four years, and that its argument, therefore, has no merit.

       Ronald Hunt, a sergeant with the Naugatuck police department, who was off duty and in the bar on the night in question, also testified that Dunn was loud and belligerent before the assault took place, as he saw her yelling at the plaintiff.

       The plaintiff testified, however, that there was another bartender working that night, Regan’s mother. Dunn also testified that there was at least one other bartender working that night but that she could not remember what he or she looked like or how many other bartenders were present that evening.