text:
    STATE OF CONNECTICUT v. GARY RYDER
    (AC 28448)
    Gruendel, Beach and West, Js.

      Argued September 18
    officially released November 18, 2008

      Gary Ryder, pro se, the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Ricki Goldstein, assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

This case arises out of the discovery of a large reptile in the defendant’s home by the Greenwich police during a warrantless search of the premises. The defendant, Gary Ryder, was convicted of illegal possession of a reptile in violation of General Statutes § 26-55 after the trial court denied his motion to dismiss and his motion to suppress evidence obtained as a result of the warrantless search of his home. He appeals from the judgment of conviction, claiming that the court improperly denied those motions. We are, however, unable to ascertain whether this court has subject matter jurisdiction over the appeal and remand the case for further factual findings.

The following procedural history is relevant to the determination of whether we have subject matter jurisdiction. At approximately 4:30 p.m. on August 15, 2004, Greenwich police went to the defendant’s house to investigate a report of a missing adolescent. Receiving no response after ringing the bells at both the locked security gate and the front door, the police entered the defendant’s home through an unlocked back door. Upon reaching the second floor of the home, an officer entered a bathroom and noticed a dark figure in the tub through its frosted glass door. Believing the figure to be the missing minor, he opened the tub door to find, to his “greatest bit of relief, just a crocodile or a large lizard” in the tub. The police continued searching the house for the minor but did not find anyone home.

On September 8, 2004, almost four weeks later, the defendant was arrested on charges of risk of injury to a child in violation of General Statutes § 53-21 and illegal possession of a reptile in violation § 26-55. On March 6, 2006, the defendant moved to suppress the evidence obtained from the search of his home and to dismiss the charges against him. After a three day suppression hearing, the court denied the defendant’s motions. The state entered a nolle prosequi with regard to the charge of risk of injury to a child, and the defendant entered a plea of nolo contendere to the possession of a reptile charge, conditioned on reserving his right to appeal from the court’s ruling on his motions to suppress and to dismiss. The defendant was sentenced to pay a fíne of $35, which he has since done.

On appeal, the defendant contends that the warrantless search of his house violated his right to be free from unreasonable searches and seizures pursuant to the fourth and fourteenth amendments to the federal constitution and article first, § 7, of the Connecticut constitution. The state claims, however, that this court lacks subject matter jurisdiction, arguing that the payment of the defendant’s fine prior to the hearing before this court rendered his appeal moot. We conclude that the record in this case is insufficient for us to determine whether the appeal is moot and remand the case to the trial court for an evidentiary hearing.

“Mootness implicates [a] court’s subject matter jurisdiction and is thus a threshold matter ... to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 125, 836 A.2d 414 (2003).

General Statutes § 54-96a provides: “Any person appealing from the judgment of the Superior Court, adjudging him to pay a fine only, may pay the same at any time before the hearing in the Supreme Court or Appellate Court, without further cost, which payment shall vacate the appeal and restore the judgment.” In State v. Eastman, 92 Conn. App. 261, 884 A.2d 442 (2005), this court applied § 54-96a in a similar factual scenario. In Eastman, “the defendants were charged with violating a town ordinance. After the court denied their motions to dismiss for insufficiency of cause, the defendants entered conditional pleas of nolo contendere, reserving the right to appeal from the court’s denial of their motions to dismiss. The court then fined each of the defendants $50, without costs. During the pendency of their appeal, the defendants voluntarily paid the fines that the court imposed.” Id., 264-65. In applying the statute, we concluded that “the judgments against the defendants have been satisfied, and the substantive issues that they have raised on appeal are moot.” Id., 265.

Notwithstanding the Eastman analysis, the defendant makes two claims, either of which, if accepted, would render the appeal justiciable. First, he argues that the payment of his fine was not voluntary but, rather, resulted from pressure exerted on him by the trial judge and court clerk. Second, he argues that prejudicial collateral consequences resulted from his conviction. We address each in turn.

I

During the defendant’s plea hearing, the court engaged the defendant and his attorney in a prolonged colloquy on the record in which the court indicated that the defendant would retain his right to appeal. During that colloquy, the court assured the defendant that “the effect of this plea is that it preserves your ability to challenge a legal ruling by the court, and you may or may not wish to take an appeal . . . .” The defendant then responded to the court that he did intend to file an appeal. The court later reiterated that the defendant’s appeal rights remained in effect.

The defendant maintains, however, that after the court went off the record, it insisted that he pay his fine immediately and that the court clerk escorted him to do so. In State v. Walczyk, 76 Conn. App. 169, 172-73, 818 A.2d 868 (2003), we held that § 54-96a is inapplicable and the appeal not rendered moot if the fine is paid involuntarily. The facts represented by the defendant on appeal might lead us to conclude that the payment of the fine was not done voluntarily. As an appellate court, however, we are not permitted to find facts; see Solano v. Calegari, 108 Conn. App. 731, 742, 949 A.2d 1257, cert. denied, 289 Conn. 943, 959 A.2d 1010 (2008); and because the defendant claims that this all occurred off the record after judgment was rendered, we cannot determine whether it indeed occurred.

II

We next address the defendant’s assertion that the conviction resulted in prejudicial collateral consequences. Notwithstanding § 54-96a, “a controversy continues to exist, affording the court jurisdiction, if the actual injury suffered by the litigant potentially gives rise to a collateral injury from which the court can grant relief. . . . Such a situation arises when a litigant demonstrates a basis upon which [the court] could conclude that, under the circumstances, prejudicial collateral consequences are reasonably possible as a result of the alleged impropriety challenged on the appeal. . . . Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Eastman, supra, 92 Conn. App. 265.

The defendant asserts that he has, in fact, suffered collateral consequences as a result of his conviction. Specifically, he insists that the search of his home and discovery of the reptile resulted in significant dealings with the department of children and families (department). In his reply brief, the defendant discusses numerous events that have transpired since the search. For example, he claims that his children were temporarily taken away by the department and that he is precluded from adopting or fostering children in the future. The record, however, is devoid of any evidence that would indicate whether these or any other consequences did or will occur and whether they may be cured by a reversal of the conviction. We note in particular that much of the defendant’s interaction with the department began after his arrest but before his conviction in this case, which would seem to indicate that at least some of the consequences resulted from the arrest or charge, rather than the conviction itself. Because, as an appellate body, this court cannot find facts, however; see Solano v. Calegari, supra, 108 Conn. App. 742; we cannot reach any determination regarding collateral consequences on the record as it stands.

We therefore conclude that the record is insufficient for us to determine whether the appeal is moot and remand the case to the trial court pursuant to Practice Book § 60-2 (9) for an evidentiary hearing. This court retains jurisdiction over the case for the purpose of deciding the appeal following the trial court’s factual determinations.

The case is remanded for an evidentiary hearing to be held within forty-five days of the publication of this opinion, and for factual findings as to (1) whether facts came to light after the entry of judgment that would lead this court to conclude that there is a reasonable possibility that the defendant has suffered or will suffer prejudicial collateral consequences as a result of his conviction and (2) whether events occurred off the record that could lead this court to conclude that the payment of the fine was not done voluntarily by the defendant. The defendant shall ensure that the transcript of the evidentiary hearing is filed pursuant to Practice Book § 63-4 (a) (3). The parties may file simultaneous supplemental briefs within forty-five days of the giving of notice of the trial court’s decision. Such supplemental briefs shall be limited to issues of the trial court’s factual findings and of this court’s subject matter jurisdiction over the appeal and shall not exceed fifteen pages in length.

In this opinion the other judges concurred.

       General Statutes § 26-55 provides in relevant part: “No person shall import or introduce into the state, or possess or liberate therein, any live fish, wild bird, wild mammal, reptile, amphibian or invertebrate unless such a person has obtained a permit therefor from the commissioner [of environmental protection]. Any person . . . who violates any provision of this section or any regulation issued by the commissioner as provided in this section shall be guilty of an infraction. . . .”


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    AFSCME, COUNCIL 4, AFL-CIO, LOCAL 1303-194 v. TOWN OF WESTPORT ET AL.
    (AC 28571)
    Bishop, Gruendel and Peters, Js.
    Argued September 23
    officially released November 18, 2008

      J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, for the appellant (plaintiff).

      Mark J. Kovack, for the appellee (named defendant).
   Opinion

PETERS, J.

It is well established that statutory and common-law principles substantially limit the scope of judicial review of an unrestricted submission of an unresolved question of fact or law to an arbitral panel. General Statutes § 52-418; State v. New England Health Care Employees Union, District 1199, AFL-CIO, 265 Conn. 771, 777-78, 830 A.2d 729 (2003). Accordingly, in labor disputes, judicial review of the propriety of an arbitral award is limited to a determination of whether the arbitral remedies “were consistent with the [collective bargaining] agreement.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 86, 881 A.2d 139 (2005). In this case, the plaintiff union contests the denial of its application to vacate the remedial order of an arbitral panel that overturned a union member’s discharge but ordered his demotion instead of reinstating him to his former position of employment with the defendant town. We affirm the judgment of the trial court.

On March 30,2006, the plaintiff, the American Federation of State, County and Municipal Employees, Council 4, AFL-CIO, Local 1303-194, filed an application to vacate an arbitration award by the defendant state board of mediation and arbitration involving the defendant town of Westport (town). The plaintiff did not contest the authority of the arbitral panel to set aside the town’s termination of the employment of the grievant, Joseph Saviano, and to order that the grievant “shall be restored to employment . . . ,” The plaintiff maintained, however, that the arbitral panel’s further remedial order that the grievant be “demoted and assigned to a position of a nonsupervisory nature” was improper because, in the plaintiffs view, the demotion was inconsistent with the terms of the collective bargaining agreement between the parties, which prescribed a grievance procedure for demotions. The town opposed the plaintiffs application for vacatur. The trial court ruled in favor of the town, and the plaintiff has appealed.

The arbitral panel based its award on the following undisputed findings of fact. For many years, the grievant had been the assistant superintendent of greens for a country club owned and operated by the town. Starting in April, 1999, the course superintendent repeatedly expressed and documented his concerns about the grievanf s behavior. On September 17,2002, the superintendent called a meeting with the grievant and a union representative to discuss the grievanf s alleged use of a racial slur when asked to perform a particular job. During the course of this meeting, the grievant again used the same racial slur. The grievant was first suspended and then discharged from employment. Although the grievant subsequently applied for and currently is receiving retirement benefits, the proper calculation of his benefits depends on the final resolution of his challenge to the validity of his discharge.

The two unrestricted issues submitted to the arbitral panel for its determination were: “Was the grievant discharged for just cause? If not, what shall the remedy be?” The panel’s award was as follows: “The termination is set aside and a suspension without pay substituted therefor. The grievant shall be restored to employment, but demoted and assigned to a position of a nonsupervisory nature.”

The court, after hearing from counsel, denied the plaintiffs application to vacate the arbitration award. It held that the arbitral panel had not exceeded its powers, that it had not been guilty of misconduct and that its award had not violated public policy. It further concluded that the panel’s remedial award was not inconsistent with the terms of the collective bargaining agreement because that agreement reserved to the town the authority to exercise its inherent powers to demote and to transfer town employees.

In its appeal to this court, the plaintiff renews its argument that, by demoting the grievant without compliance with the procedural rules for notice established by the parties’ collective bargaining agreement, the arbitral panel exceeded its authority under § 52-418 (a) (4). According to the plaintiff, the arbitral award must be vacated because it failed to “[draw] its essence from the collective bargaining agreement . . . .” (Internal quotation marks omitted.) Board of Education v. Civil Service Employees Affiliates, Local 760, 88 Conn. App. 559, 570, 870 A.2d 473 (2005).

As the town points out, however, the notice provisions that the plaintiff calls to our attention are not the only provisions in the collective bargaining agreement that the arbitral panel was authorized to take into account. Significantly, the agreement expressly recognizes the town’s residual authority “to direct and control . . . [town] employees” and to manage employee transfers from one position to another.

Furthermore, the plaintiff has advanced no claim that, in this case, a notice to inform the grievant of a possible demotion would have brought to light allegations of misconduct that would have differed from those to which the grievant had been alerted previously in the underlying proceedings with respect to the termination of his employment. The collective bargaining agreement provision for notice on which the plaintiff relies makes no distinction between discharge and other forms of employee discipline. Under these circumstances, the arbitral panel had the authority to decide whether the collective bargaining agreement forbade the imposition of the lesser sanction of demotion without a second disciplinary notice and hearing.

As the appellate decisions of this state have emphasized time and again, an arbitral award resulting from an unrestricted submission must be upheld if the remedy ordered by the arbitral panel “is rationally related to a plausible interpretation of the agreement . . . .” (Internal quotation marks omitted.) Board of Education v. Civil Service Employees Affiliates, Local 760, supra, 88 Conn. App. 570; see also Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, 288 Conn. 223, 230, 951 A.2d 1249 (2008) (“as long as the arbitrator’s remedies were consistent with the agreement they were within the scope of the submission” [internal quotation marks omitted]); Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 99; Cianbro Corp. v. National Eastern Corp., 102 Conn. App. 61, 69, 924 A.2d 160 (2007). We know of nothing in this case law that compels the conclusion that, in crafting a remedy, an arbitral panel must, under all circumstances, defer to the express remedial provisions of the agreement. As in this case, the governing facts brought to light in the arbitration proceedings may demonstrate the relevance of other contractual provisions for which the parties have negotiated fairly and on which they may presently rely.

The judgment is affirmed.

In this opinion the other judges concurred.

       The dissenting member of the arbitral panel voted in favor of upholding the decision of the town to terminate the grievant’s employment.


author: LAVINE, J.

text:
    EMISAEL VASQUEZ v. COMMISSIONER OF CORRECTION
    (AC 28556)
    Flyim, C. J., and Lavine and Pellegrino, Js.

      Argued September 17
    officially released November 18, 2008

      Jodi Zils Gagne, special public defender, for the appellant (petitioner).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva B. Lemczewski, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

LAVINE, J.

The petitioner, Emisael Vasquez, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he was not denied the effective assistance of trial counsel. We affirm the judgment of the habeas court.

The petitioner was convicted of assault in the first degree and violation of probation for stabbing Bobby Johnson during a dice game on July 17, 1999. Johnson claimed that the petitioner was the aggressor, and the petitioner claimed that he acted in self-defense. The petitioner was sentenced to twenty-four years in prison. His conviction was upheld by this court in State v. Vasquez, 80 Conn. App. 907, 838 A.2d 259 (2003), cert. denied, 267 Conn. 917, 841 A.2d 1190 (2004). In his amended petition for a writ of habeas corpus, the petitioner alleged in relevant part that his trial counsel “did not present available information to impeach prosecution witnesses.” At trial, the petitioner claimed that trial counsel rendered ineffective assistance by failing to examine Johnson’s treating physician, Joseph Dineen, with respect to Johnson’s ability to recall facts following the stabbing. Dineen was called to testify at the habeas trial with respect to that issue.

Following the habeas trial, the court found that Johnson’s most relevant testimony at the criminal trial concerned what had transpired during the dice game that led to the stabbing. In that regard, the court found specifically that Johnson’s “testimony is clear. It is concise. It is internally consistent, and there is no indication of any amnesia . . . .” Johnson’s testimony of what happened following the stabbing, when he was in the hospital, however, was vague. Dineen testified at the habeas trial that Johnson could have suffered some sort of amnesia, but Dineen did not testify that amnesia was a certainty. According to Dineen, Johnson suffered some sort of temporary memory loss that improved after his discharge and that was a typical course of recovery. The court concluded that trial counsel’s examination of Dineen arguably was deficient but that the petitioner failed to demonstrate that had trial counsel examined Dineen with regard to Johnson’s alleged memory loss, the outcome of the criminal trial would have been different, because the answer to that question would amount to speculation.

“Whether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. ... As such, that question requires plenary review by [an appellate] court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 576, 941 A.2d 248 (2008).

“To determine whether the petitioner has demonstrated that counsel’s performance was ineffective, we apply the two part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Claims of ineffective assistance during a criminal proceeding must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. ” (Emphasis in original; internal quotation marks omitted.) Jarrett v. Commissioner of Correction, 108 Conn. App. 59, 70, 947 A.2d 395, cert. denied, 288 Conn. 910, 953 A.2d 653 (2008). “A reasonable probability is one which is sufficient to undermine confidence in the result.” Ruffin v. Commissioner of Correction, 106 Conn. App. 396, 399, 943 A.2d 1105, cert. denied, 286 Conn. 922, 949 A.2d 481 (2008).

On the basis of our review of the evidence presented at the habeas trial, particularly Dineen’s testimony, we agree with the court that there is no reasonable probability that the outcome of the criminal trial would have been different had trial counsel examined Dineen with regard to Johnson’s ability to remember the incident and his hospitalization. To conclude that the outcome would have been different would amount to speculation. The transcript reveals that at the habeas trial, the petitioner’s counsel asked Dineen whether it was more likely than not that Johnson “would have suffered some memory issues or amnesia.” Dineen responded: “I believe that because of the low [blood] pressure when he first entered the emergency room [with a reading of] sixty, because of the head injury and because of the medication he received postoperatively, that it’s more likely than not to a reasonable degree of medical certainty that [he was] amnesic for the events of the injury and his care.” The question posed to Dineen, however, was not limited to any specific period of time, particularly his opinion of Johnson’s ability to remember the underlying incident at the time of the petitioner’s criminal trial. Moreover, during the habeas trial, Dineen testified on cross-examination that Johnson’s amnesia “eventually improved after discharge.” Of key importance is the habeas court’s finding that Johnson’s trial testimony about the dice game and stabbing was clear and concise. Johnson’s vague testimony about his hospitalization was unrelated to the crimes with which the petitioner had been charged. For that reason, we conclude that the court properly denied the petition for a writ of habeas corpus.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his statement of the issue in his appellate brief, the petitioner claims that trial counsel failed to impeach the victim, Bobby Johnson. That specific claim is not alleged in the amended petition for a writ of habeas corpus, and the court did not address it. This court does not address claims that were not raised at trial or decided by the habeas court. We therefore decline to review this claim. See Moody v. Commissioner of Correction, 108 Conn. App. 96, 103, 946 A.2d 1268, cert. denied, 288 Conn. 906, 953 A.2d 649 (2008).

       According to Dineen, Johnson was driven by an unknown person to St. Mary’s Hospital in Waterbury. As Johnson walked unattended into the emergency room, he fell and struck his head on the pavement. Johnson had low blood pressure, indicating a diminished flow of blood to his brain. Blood was flowing from Johnson’s ears, indicating intracranial pressure caused by head trauma. Johnson’s more severe injury, however, was a laceration to the right ventricle of his heart. According to Dineen, anterograde and retrograde amnesia could result from head trauma or trauma to other parts of the body that cause loss of blood and blood flow to the brain, and from anesthesia and pain relieving medication. Such memory loss is temporary, and postdischarge, a patient’s memory would improve.

       The medical definition or meaning of amnesia, its implications and whether memory loss was permanent or transient were not entered into evidence.

       During the criminal trial, the petitioner claimed that he had stabbed Johnson in self-defense. Johnson testified that the petitioner was the aggressor. The issue for the jury therefore was one of credibility. Appellate courts do not second-guess the trier of fact with respect to credibility. See Mitchell v. Commissioner of Correction, 109 Conn. App. 758, 763, 953 A.2d 685 (2008). As the habeas court noted, Johnson’s ability to recall his hospitalization was not at issue; the issue was how and why he was stabbed. Members of the jury are permitted to rely on their life experience; common sense is not left at the courthouse door. See State v. Brown, 273 Conn. 330, 343, 869 A.2d 1224 (2005).
      Given Dineen’s testimony as to the seriousness of Johnson’s injuries, the medical treatment Johnson received and the pain relievers administered to him; see footnote 2; members of the jury may have understood full well why Johnson’s testimony about his hospital treatment was vague. Moreover, with respect to credibility, there was evidence before the jury that the petitioner had numerous felony convictions.


author: DiPENTIMA, J.

text:
    ANGELO A. ZIOTAS v. THE REARDON LAW FIRM, P.C.
    (AC 28260)
    Flynn, C. J., and DiPentima and Dupont, Js.

      Argued May 27
    officially released November 25, 2008

      William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellant-appellee (defendant).

      Anthony M. Fitzgerald, for the appellee-appellant (plaintiff).
   Opinion

DiPENTIMA, J.

The defendant, The Reardon Law Firm, P.C., appeals from the judgment of the trial court rendered in favor of the plaintiff, Angelo A. Ziotas, a former associate of the defendant. The defendant claims that the court improperly (1) looked beyond the four comers of a written employment contract between the parties, (2) constmed the written stipulation between the parties and (3) found that the defendant had breached the employment contract. The defendant further claims that the court improperly awarded offer of judgment interest because it had submitted to the plaintiff a conditional acceptance of the plaintiffs offer of judgment. The plaintiff has filed a cross appeal, claiming that the court improperly removed the second count of his third revised complaint, a statutory claim for wrongful withholding of wages. We agree with the plaintiff on all the issues raised and, accordingly, affirm in part and reverse in part the judgment of the trial court.

The defendant is a professional corporation in New London that is engaged in the practice of law. The defendant’s practice is concentrated in the representation of plaintiffs in personal injury cases on a contingent fee basis. Robert I. Reardon is an attorney at law and the president of the defendant law firm, exercising all of the powers customarily exercised by a chairman, president and chief executive officer of a corporation.

The plaintiff has been a member of the Connecticut bar since December 5,1991, and began working for the defendant as an associate on April 1,1992. On February 10, 1993, the plaintiff and Reardon, on behalf of the defendant, executed a written contract setting forth the rights and responsibilities of the parties with respect to the plaintiffs employment. Reardon, on behalf of the defendant, drafted the contract and informed the plaintiff that his continued employment was contingent on his agreeing to its terms. Reardon afforded the plaintiff no opportunity to edit the terms of the contract.

Pursuant to the terms of the contract, the plaintiff was an employee at will of the defendant, subject to termination, with or without cause, at any time. Paragraph three of the contract further provided: “Annual compensation shall be subject to review by the Board of Directors of [the defendant] on the anniversary of employment of [t]he Associate. Compensation shall be based, in part, on the following criteria:

“a. Seniority in The Firm,
“b. Business generation,
“c. Business productivity,
“d. Quality of work/professional ability,
“e. Work profitability,
“f. Participation in professional activities and pro bono work,
“g. Noteworthy outside activities,
“h. Loyalty and commitment to [the defendant].”

The plaintiffs initial base salary was $35,000 per year, and, after his first nine months of employment, he received a bonus of $12,000. From 1993 through 1997, the amount of the plaintiffs base salary and bonuses increased annually. In 1997, the plaintiff received total compensation in the amount of $117,600, which included a base salary of $62,600 and a bonus of $55,000. Reardon alone determined the amounts of the plaintiffs base salary and bonuses from year to year. Bonuses were paid only in December but were not calculated on the basis of any particular percentage of the defendant’s income.

The plaintiff left the defendant’s employ on October 15, 1998, after receiving a total of $55,926.56 in base salary for that year. The plaintiff did not receive a bonus in December, 1998.

The plaintiff commenced the present action in May, 1999, seeking damages for the defendant’s failure to pay him a bonus in 1998. On June 9, 2000, the plaintiff filed a second amended complaint against the defendant, alleging that the defendant’s failure to pay him a bonus in 1998 constituted a breach of the parties’ employment contract. In count two, the plaintiff alleged that the defendant wrongfully had withheld wages in violation of General Statutes § 31-72 by virtue of its failure to pay the bonus.

On October 23,2000, the court, Corradino, J., granted the defendant’s motion to strike the second count of the plaintiffs complaint. The plaintiff unsuccessfully attempted to amend his complaint to include a statutory claim for wrongful withholding of wages. The parties tried the plaintiffs sole remaining count, breach of contract, to the court, Eveleigh, J. By memorandum of decision filed November 7, 2006, the court rendered judgment in favor of the plaintiff and awarded damages in the amount of $50,000 plus offer of judgment interest in the amount of $44,860.27. The defendant appealed, and the plaintiff cross appealed. Additional facts will be set forth as necessary.

DEFENDANT’S APPEAL

I

The defendant first claims that the parties’ written employment contract set forth the parties’ entire agreement, and, therefore, the court, Eveleigh, J., improperly supplemented the writing. Specifically, the defendant argues that it was not obligated by the employment contract to pay the plaintiff a bonus in 1998. We disagree.

With respect to the plaintiffs compensation, the written agreement of the parties states that “[a]nnual compensation shall be subject to review by the Board of Directors of [the defendant] on the anniversary of employment of [t]he Associate” and that compensation shall be based on various criteria. The defendant argues that the term “annual,” as used in the written agreement, qualifies and limits the term “compensation” to include only the plaintiffs base salary and to exclude year-end bonuses. We are not persuaded.

Analysis of the defendant’s claim requires us to construe the language of the written contract to discern whether the writing incorporated the entire agreement of the parties. “[W]hen the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing. After this, to permit oral testimony, or prior or contemporaneous conversations, or circumstances, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme.” (Internal quotation marks omitted.) TIE Communications, Inc. v. Kopp, 218 Conn. 281, 288, 589 A.2d 329 (1991). If the writing is ambiguous or does not set forth the entire agreement, however, the court may look to parol evidence to explain the ambiguity or add a missing term. Id., 288-89.

“The law governing the construction of contracts is well settled. When a party asserts a claim that challenges the . . . construction of a contract, we must first ascertain whether the relevant language in the agreement is ambiguous. ... A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. . . . Accordingly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . . Moreover, in construing contracts, we give effect to all the language included therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous. ... If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . .” (Citation omitted; internal quotation marks omitted.) O’Connor v. Waterbury, 286 Conn. 732, 743-44, 945 A.2d 936 (2008).

We begin our examination of the parties’ written agreement by noting that the plain and ordinary meaning of the term “compensation,” standing alone, is not limited to salary. See Webster’s Third New International Dictionary (defining compensation as “payment for . . . service rendered” and bonus as “money or an equivalent given in addition to the usual compensation” [emphasis added]); Black’s Law Dictionary (7th Ed. 1999) (compensation includes wages, profit sharing, commissions, bonuses and other benefits); Ballentine’s Law Dictionary (3d Ed. 1969) (defining compensation as “a remuneration for services, whether in the form of a fixed salary, fees, commissions or perquisites of whatever character”). The ordinary meaning of the phrase “annual compensation” therefore includes salary, commissions, bonuses and other benefits paid and received over the period of one year. See, e.g., Cosgrove v. Waterbury, 286 Conn. 759, 764 n.7, 945 A.2d 932 (2008) (“annual compensation” includes annual longevity payment); O'Connor v. Waterbury, supra, 286 Conn. 745 n.11 (same).

We now turn to the language of the written agreement. The writing sets forth only the timing and bases for calculating the amount of the plaintiffs annual compensation. The written agreement, however, contains no expression of the parties’ intent as to the timing and form (i.e., salary or bonus) of the payment of his total compensation for the year. Furthermore, the written agreement is silent as to the amount of the plaintiffs total compensation. Because these terms are essential to an employment contract; see Geary v. Wentworth Laboratories, Inc., 60 Conn. App. 622, 628, 760 A.2d 969 (2000); the court properly looked to parol evidence to determine the amount of compensation to which the plaintiff was entitled in 1998 and whether he was entitled to receive part of that compensation in the form of a bonus. The use of such evidence did not vary or contradict the terms set forth in the written agreement and therefore was proper. See TIE Communications, Inc. v. Kopp, supra, 218 Conn. 288-89.

II

The defendant next claims that in construing the language of the parties’ written agreement, the court, Eveleigh, J., misinterpreted a stipulation between the parties. Specifically, it argues that the court improperly found that the parties had stipulated that the meaning of the term “annual compensation,” as used in the contract, included both salary and bonus. The defendant further contends that as a result of the improper reading of the stipulation, the judgment should be reversed. We disagree that the court made such a finding and conclude, therefore, that this claim is without merit.

The following additional facts are relevant to the defendant’s claim. On August 9, 2006, the parties submitted to the court a stipulation of facts, paragraph ten of which states: “A year end bonus is a form of compensation.” The court’s memorandum of decision states that the parties “stipulated that the language used in the contract for the term ‘compensation’ includes both salary and the year-end bonus.”

The stipulation clearly stated that “ ‘[a] year end bonus is a form of compensation.” As with other contract language, “[a written] stipulation . . . must be construed according to the intention of the parties as expressed in the language used in the document itself . . . .” (Internal quotation marks omitted.) Rosenfield v. Metals Selling Corp., 229 Conn. 771, 780, 643 A.2d 1253 (1994). When the language of a stipulation is clear, its interpretation presents a question of law. See id.; see also Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 260, 694 A.2d 1319 (1997).

The defendant’s claim also requires us to construe the court’s memorandum of decision. “The construction of a judgment is a question of law with the determinative factor being the intent of the court as gathered from all parts of the judgment. ... As a general rule, the court should construe [a] judgment as it would construe any document or written contract in evidence before it. . . . Effect must be given to that which is clearly implied as well as to that which is expressed.” (Internal quotation marks omitted.) Moasser v. Becker, 107 Conn. App. 130, 135, 946 A.2d 230 (2008).

Our reading of the court’s memorandum of decision, as well as the entire stipulation, indicates that the court, in substance, did not construe the stipulation in the manner that the defendant claims. On the basis of the stipulation, the court found that the term “compensation” included both salary and the year-end bonus. It further found that the written agreement did not state whether payment of compensation would be in fixed periodic payments, an end of year lump sum or a combination of both methods of payment. Furthermore, as found by the court, the written agreement was silent as to whether an employee was required to be employed with the defendant at the end of the calendar year to receive full compensation. We do not read the court’s decision, however, in the manner advanced by the defendant. Specifically, the court did not find that the term “annual compensation” included both salary and the year-end bonus solely on the basis of the stipulation.

Our reading of the judgment as a whole indicates that the court viewed the stipulation merely as an acknowledgment that the plain meaning of the term “compensation” includes both salary and bonuses, but that the contract was silent as to whether the plaintiff was entitled to either, or both, forms of compensation as part of his “annual compensation.” The court correctly observed that “[t]he contract does not state whether . . . the compensation will be paid by fixed periodic payments, a lump sum year-end payment or both.” In light of our discussion in part I, we conclude that the court’s interpretation of the stipulation was correct in that neither the written agreement nor the stipulation set forth whether the plaintiff was entitled to a prorated bonus in 1998 as part of his “annual compensation” for that year.

Ill

The defendant’s third claim is that even if the court properly construed the parties’ written stipulation and the employment contract, the court improperly found that the defendant had agreed to pay the plaintiff a prorated bonus in 1998. In support of its claim, the defendant argues that (1) there was no evidence of such an agreement and (2) any evidence of such an agreement was insufficient because (a) statements made during the hiring process by Reardon regarding the payment of bonuses were too indefinite to bind the defendant and (b) any such statements made subsequent to the execution of the written agreement merely were gratuitous. We are not persuaded.

The court found that during the hiring process, Rear-don had explained to the plaintiff that the defendant customarily paid its associates substantial bonuses in December of each year but kept associate salaries low to maintain enough working capital to fund cases. Upon receiving an offer of employment from the defendant, the plaintiff attempted to negotiate a $5000 increase in his initial salary. The defendant rejected the plaintiffs request for a higher starting salary but assured him that if he did not receive a $5000 bonus, “he would not be doing well.” The plaintiff, in fact, received $12,000 in the form of a bonus after nine months of employment with the defendant.

Sometime in 1995, the plaintiff and Reardon had a conversation in which Reardon expressed his displeasure with former associates who had left their employment with the defendant shortly after receiving an annual bonus. The plaintiff assured Reardon that when the time came for him to leave, he would not wait to receive a bonus before resigning. Reardon assured the plaintiff that he would receive an appropriate bonus if and when the time came for him to leave the firm if that departure came before he had received a bonus for that year.

In August, 1998, a dispute arose between the plaintiff and Reardon over publicity that the plaintiff had received as the result of his successful handling of a case. At that time, the plaintiff met with Reardon to discuss his separation from the defendant’s employment. Following that meeting, the plaintiff began seeking employment with other law firms. He became skeptical, however, of the defendant’s intention to pay him a bonus if he left prior to December 15, 1998, and sought reassurance from Reardon that the defendant would pay him a bonus. Reardon responded: “You know this has been a very successful year for the firm, and for you, and that you’re going to get a bonus that fairly reflects that.”

As we observed in part I, the parties’ written contract was not a complete manifestation of their agreement. When a writing, on its face, does not set forth the entire agreement of the parties, the court may look to parol evidence to add missing terms. TIE Communications, Inc. v. Kopp, supra, 218 Conn. 288-89. In such circumstances, the parties’ intent is a question of fact, and the trial court examines the evidence adduced at trial to determine that intent. See Rund v. Melillo, 63 Conn. App. 216, 221, 772 A.2d 774 (2001). The factual determination of the parties’ intent “is to be garnered in light of the situation of the parties and the circumstances surrounding the contract, along with the primary purpose of the contract.” (Internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 440, 927 A.2d 843 (2007).

“Questions of fact are subject to the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Hill v. Raffone, 103 Conn. App. 737, 742-43, 930 A.2d 788 (2007). “Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption . . . in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Barber v. Skip Barber Racing School, LLC, 106 Conn. App. 59, 66, 940 A.2d 878 (2008).

Our review of the record reveals adequate support for the court’s findings in the exhibits submitted at trial, the stipulation of facts between the parties and the plaintiffs testimony, which the court credited. In light of the situation of the parties at the time, the court reasonably inferred from the discussions between the plaintiff and Reardon that the February, 1993 agreement contemplated both a salary and a bonus as part of the plaintiffs “annual compensation.” Likewise, Reardon’s subsequent assurances on behalf of the defendant evinced the defendant’s intent that the bonus portion of the “annual compensation” would be prorated.

Furthermore, the evidence demonstrates that the defendant’s promise of a substantial yearly bonus was more than a mere gratuity. That promise was supported by consideration in the form of the plaintiffs acceptance of a lower salary. See 2 A. Corbin, Contracts (Rev. Ed. 1995) § 6.2, p. 214 n.4 (promise to pay bonus may be part of original employment contract when such promise supported by same consideration given for employer’s promise to employ and pay salary). Thus, the defendant’s reliance on Christensen v. Bic Corp., 18 Conn. App. 451, 558 A.2d 273 (1989), is misplaced. Unlike the plaintiff in Christensen, the plaintiff in this case testified that the defendant had promised him that he was entitled to a bonus. See id., 455. Accordingly, the court properly found the existence of an express contract to pay both a salary and a bonus on the basis of mutual promises and relied on custom and usage only to resolve the ambiguity in the written agreement as to the form in which the compensation was to be paid.

The fact that the parties were indefinite as to the amount of the bonus does not render the promise unenforceable. “Under the modem law of contract, if the parties so intend, they may reach a binding agreement even if some of the terms of that agreement are still indefinite.” Willow Funding Co., L.P. v. Grencom Associates, 63 Conn. App. 832, 844, 779 A.2d 174 (2001); see Small Business Transportation, Inc. v. ABC Stores, LLC, 96 Conn. App. 14, 19, 899 A.2d 73 (2006). The court found that the defendant had promised a bonus of at least $5000 if the plaintiff performed well during his first year and that the plaintiff, in fact, received a $12,000 bonus that year. The court further found that the plaintiff had received bonuses in increasing amounts from 1993 through 1997, which reflected “the outstanding performance [that] the plaintiff displayed in many cases.” We conclude on the basis of these facts that the defendant’s promise to pay a “substantial” bonus was not too indefinite to be enforceable. Accordingly, the court’s conclusion, that “the defendant had agreed by either words or deeds, pursuant to the compensation clause in the contract ... to pay a bonus to the plaintiff for that portion of 1998 that the plaintiff was employed by the [defendant],” was not clearly erroneous.

IV

The defendant’s final claim is that the court, Eveleigh, J., improperly awarded offer of judgment interest pursuant to General Statutes (Rev. to 1999) § 52-192a because it had submitted to the plaintiff a conditional acceptance of his offer of judgment. In support of its claim, the defendant invites this court to carve an exception to the mandatory provisions of § 52-192a. It argues that such an exception is merited because its conditional acceptance of the plaintiffs offer of judgment furthered the statute’s purpose of promoting settlement and conserving judicial resources. We decline the invitation.

Our resolution of the defendant’s claim turns on the following additional facts. On August 9, 2000, the plaintiff filed with the court an offer of judgment in the amount of $25,000. The defendant concedes that it never filed an acceptance of the plaintiffs offer of judgment with the court. It alleges, however, that it had communicated to the plaintiff its timely “acceptance” of the plaintiffs offer on the condition that the parties’ settlement remain confidential and that the plaintiff rejected the defendant’s condition.

In rejecting the defendant’s claim, we take note of a basic principle of contract law. “A reply to an offer which purports to accept it but is conditional on the offeror’s assent to terms additional to or different from those offered is not an acceptance but is a counteroffer.” 1 Restatement (Second), Contracts § 59 (1981); see also Cavallo v. Lewis, 1 Conn. App. 519, 520, 473 A.2d 338 (1984) (qualification of or departure from terms of offer invalidates offer unless offeror agrees to qualification or departure). Accordingly, the defendant’s purported “acceptance” was not, in fact, an acceptance but a counteroffer, which the plaintiff apparently rejected.

Moreover, the defendant’s argument ignores both the language of § 52-192a and “the punitive aspect of the statute that effectuates the underlying purpose of the statute and provides the impetus to settle cases.” (Internal quotation marks omitted.) Accettullo v. Worcester Ins. Co., 256 Conn. 667, 672, 775 A.2d 943 (2001). The goals of judicial economy and settlement of disputes are not furthered, and more likely are hindered, when, as here, a defendant fails to “file with the clerk of the court a written acceptance of the offer of judgment” and instead waits until the court renders an unfavorable judgment before informing the court that the parties allegedly had reached a settlement six years earlier. For these reasons, we conclude that the court properly awarded offer of judgment interest in accordance with § 52-192a.

PLAINTIFF’S CROSS APPEAL

V

On cross appeal, the plaintiff claims that the court, Corradino, J., improperly overruled his objection to the defendant’s request to revise the second count of his third amended complaint, thus eliminating the claim for wrongful withholding of wages pursuant to § 31-72. Specifically, he argues that the court improperly concluded that the bonus portion of his compensation, as alleged in his complaint, did not fall within the definition of wages, as that term is used in General Statutes § 31-71a (3). The defendant argues that the plaintiff waived this claim by repleading substantially the same allegations in his third amended complaint as he had alleged in his second amended complaint. We are not persuaded by the defendant’s waiver argument, and we agree with the plaintiff on the merits of his claim.

On June 9,2000, the plaintiff filed his second amended complaint. In count two of that complaint, the plaintiff alleged that by virtue of its failure to pay him a bonus in 1998, the defendant wrongfully had withheld wages from him in violation of § 31-72. On June 20, 2000, the defendant filed a motion to strike count two of the plaintiffs second amended complaint.

On October 23,2000, the court, Corradino, J., granted the defendant’s motion to strike the plaintiffs second count. In its memorandum of decision, the court acknowledged that under certain circumstances, a bonus maybe considered wages under § 31-71a (3). The court emphasized that such circumstances may exist when a bonus is “based on individual production”; see Cook v. Alexander & Alexander of Connecticut, Inc., 40 Conn. Sup. 246, 488 A.2d 1295 (1985); when “a connection [existed] between the additional work performed and the promise of a bonus”; Wuerth v. Schott Electronics, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-91-036406-S (March 13, 1992) (7 C.S.C.R. 456); and when “the bonus was promised if [the plaintiff] accomplished certain objectives of the employer.” See Pelton v. Olin Corp., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-88-0092063-S (July 30, 1991) (6 C.S.C.R. 771). The court determined, however, that the bonus in the present case was not a wage, as defined by § 31-71a. The court reasoned that the allegations described the bonus as a reflection of the success of the firm and a percentage of the defendant’s net income. The court then concluded that the bonus, as alleged in the second count of the second amended complaint, was an arbitrary figure determined by the success or lack of success of all members of the firm, “with no relation to any actual services performed by the plaintiff.”

The plaintiff thereafter repleaded the second count in his third amended complaint filed November 22, 2000. The defendant filed a request to revise the plaintiffs third amended complaint,- to which the plaintiff objected. On January 24, 2001, the court overruled the plaintiffs objection and “deleted” the second count of the plaintiffs third amended complaint. The court held that that count suffered from the same defect as the second count in the second amended complaint in that it “[did] not describe a bonus that accrued as a result of the plaintiff s personal efforts alone . . . .’’(Emphasis added; internal quotation marks omitted.) The plaintiff subsequently filed a fourth amended complaint that reflected the court’s order “deleting” the second count; see Practice Book § 10-37 (b); and proceeded to trial on his sole remaining claim for breach of contract.

A

We first address the defendant’s argument that the plaintiff waived his claim because the allegations in his third amended complaint were not materially different from those in his second amended complaint. “After a court has granted a motion to strike, the plaintiff may either amend his pleading or, on the rendering of judgment, file an appeal. . . . The choices are mutually exclusive [as] [t]he filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the [motion to strike] the original pleading.” (Citation omitted; internal quotation marks omitted.) St. Denis v. de Toledo, 90 Conn. App. 690, 693-94, 879 A.2d 503, cert. denied, 276 Conn. 907, 884 A.2d 1028 (2005).

“When the allegations of an amended complaint appear to be the same in substance as those of an earlier complaint that was stricken, the defendant may challenge the amended complaint by filing a request to revise ... or a second motion to strike. . . . The request to revise is a [request] for an order directing the opposing party to revise his pleading in the manner specified. . . . Although the request to revise may not ordinarily be used to substantively challenge a pleading, it may be used to delete otherwise improper allegations from a complaint. . . . The motion to strike, on the other hand, challenges the legal sufficiency of the pleading by testing whether the complaint states a cause of action on which relief can be granted. . . . Although the pleadings generally serve different functions, either may be used when the amended complaint merely restates the original cause of action that was previously stricken.” (Citations omitted; internal quotation marks omitted.)P&L Properties, Inc. v. Schnip Development Corp., 35 Conn. App. 46, 50, 643 A.2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994).

To determine whether the court properly deleted the second count of the plaintiffs third amended complaint, we compare the second amended complaint with the third amended complaint to determine whether the latter is materially different from the former. See Bross v. Hillside Acres, Inc., 92 Conn. App. 773, 779, 887 A.2d 420 (2006). The interpretation of the pleadings is a question of law, subject to plenary review. Id., 778.

In this case, we decline to apply the waiver rale to the plaintiffs third amended complaint. At the outset, we note that the court’s October 23, 2000 memorandum of decision on the defendant’s initial motion to strike states no authority for the proposition that a bonus must be triggered exclusively by the plaintiffs efforts in order to qualify as wages. The cases cited by the court require only “a connection” between the work performed and the bonus, not an exclusive connection. A comparison of the second and third amended complaints reveals an obvious effort on the part of the plaintiff to allege additional facts that addressed the court’s concern that the bonus had “no relation to any actual services performed by the plaintiff.” The plaintiffs third amended complaint added several new allegations: that bonuses were to be based primarily on each individual attorney’s performance in the calendar year, including that attorney’s fee generation and the quality of that attorney’s work; that from 1992 through 1997 he had received substantial bonuses because of his efforts; that he had played a significant role in the success of several cases that led to the defendant’s extraordinary net income in 1997; and that Reardon had assured him that he would receive the bonus that he had earned by virtue of his performance during 1998.

We conclude, therefore, that the plaintiff alleged facts in his third amended complaint that were materially different from those in his second amended complaint. Accordingly, the plaintiff has not waived his claim with respect to his third amended complaint because he “appears to have made a good faith effort to file [an amended] complaint that states a cause of action.” Parsons v. United Technologies Corp., 243 Conn. 66, 75-76, 700 A.2d 655 (1997).

B

Having concluded that the plaintiffs claim properly is before us, we turn to the merits of his claim to determine whether, in fact, count two of his third amended complaint stated a cause of action under § 31-72. The plaintiff claims that the court, in deleting count two of his third amended complaint, misconstrued the language of § 31-71a (3). We agree.

Before we address the plaintiffs claim, we set forth the applicable standard of review. Our assessment of the legal sufficiency of the plaintiffs third amended complaint requires us also to construe the language of § 31-71a (3). “Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Pritchard v. Pritchard, 103 Conn. App. 276, 283, 928 A.2d 566 (2007).

In this case, the court determined that the plaintiff did not state a cause of action for wrongful withholding of wages under §§ 31-71a (3) and 31-72 because his allegations demonstrated that the 1998 bonus did not “[accrue] as a result of the plaintiffs personal efforts alone . . . .” In reaching this conclusion, the court observed that the complaint alleged that the amount of the bonus was dependent, at least in part, upon the overall success of the defendant. Therefore, the court reasoned, the bonus was not “compensation for labor or services rendered . . . .”

General Statutes § 31-71a (3) defines wages broadly as “compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation . . . .” (Emphasis added.) Subsequent to the court’s January 24, 2001 ruling, our Supreme Court observed in Mytych v. May Dept. Stores Co., 260 Corm. 152, 159, 793 A.2d 1068 (2002), that “the statute lists certain nonexclusive factors that may assist in the computation of an employee’s wage, [but] it fails to set forth a specific formula by which wages must be calculated or determined.” The court later concluded that “the wage statutes, as a whole, do not provide substantive rights regarding how a wage is earned; rather, they provide remedial protections for those cases in which the employer-employee wage agreement is violated.” (Emphasis in original.) Id., 162. Accordingly, whether compensation may be considered a wage and the method for calculating the amount of wages are derivedfrom the employee-employer agreement. See id.

In his third amended complaint, the plaintiff alleged that the parties’ employment contract provided for a bonus “that fairly reflects his contribution to the [defendant’s success].” The plaintiff further alleged that he contributed to the defendant’s success by providing legal services to the defendant’s clients and by generating fees. Given these circumstances, if proven, the bonus alleged by the plaintiff represented “compensation for [his] labor or services.” It is not relevant whether the amount of that bonus was calculated on the basis of the number of hours worked, as a percentage of the defendant’s net income or on some “other basis of calculation,” which may or may not incorporate the efforts of others. The issue instead is whether the terms of the parties’ employment agreement, as alleged in the complaint, vested in the plaintiff a right to compensation in the form of a bonus in exchange for the services that he had provided during the first ten months of 1998. Our Supreme Court has explained that § 31-71a (3) “merely requires that wages be paid as compensation to an employee for services rendered. The determination of the proper amount to be tendered purposely is left vague by reference to ‘or other basis of calculation’ . . . .” (Emphasis added.) Mytych v. May Dept. Stores Co., supra, 260 Conn. 159. It has been stated expressly that statutes do not dictate the manner in which wages are calculated. Id., 161. Instead, courts are to focus on the agreement between the employer and employee. Id., 159. Given the remedial nature of this statute; see id.; the broad statutory definition and judicial interpretation of what constitutes wages, coupled with the allegations contained in the second count of the complaint, we conclude that the plaintiff pleaded a valid cause of action for the wrongful withholding of wages. Under these facts and circumstances, namely, the agreement between the plaintiff and the defendant, the bonus could have been classified as wages for puiposes of § 31-71a (3). Accordingly, we conclude that the court improperly overruled the plaintiffs objection to the defendant’s request to revise count two of his third amended complaint because the plaintiff, in fact, had stated a cause of action under § 31-72 on which relief may be granted.

Our final task is to determine what relief to grant to the plaintiff on remand. The court has made the necessary factual findings to support its conclusion that the defendant withheld compensation that the plaintiff had earned by virtue of the parties’ employment agreement. The court, however, did not address whether the defendant’s breach of the parties’ employment agreement was done arbitrarily, unreasonably or in bad faith. The plaintiff concedes that a finding of bad faith, arbitrariness or unreasonableness must precede a discretionary award of double damages pursuant to § 31-72. The issues of breach and bad faith in this case are not so intertwined as to require the relitigation of the plaintiffs breach of contract cause of action. See Harewood v. Carter, 63 Conn. App. 199, 207, 772 A.2d 764 (2001). Accordingly, we remand the case to the trial court for a hearing only as to the issue of whether the defendant’s breach of the parties’ employment agreement was done arbitrarily, unreasonably or in bad faith. See General Statutes § 52-266.

The judgment is reversed as to the striking of count two of the plaintiffs third revised complaint and the case is remanded for further proceedings consistent with this opinion; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiffs third count asserted a claim to the 1998 bonus under a theory of promissory estoppel. On August 14, 2006, the plaintiff withdrew this count.

       We note that the defendant does not challenge the court’s conclusions with respect to the amount of the compensation or the amount of the damages awarded. We therefore limit our discussion to the issue of whether the employment contract provided for the payment of a prorated bonus to the plaintiff in 1998.

       The defendant argues that because the plaintiffs “annual compensation” was reviewable in April and bonuses were paid in December, the written agreement clearly and unambiguously contemplated that “annual compensation” included only the plaintiffs salary. This argument merely reveals the defendant’s subjective perception of the meaning of that term. The written agreement does not provide that bonuses were paid only in December. Accordingly, the intent of the parties, as to the form of the plaintiffs “annual compensation,” is not clear from the face of the written agreement, and both the parties and the court properly searched beyond the four comers of the writing to ascertain the meaning of that term.

       “By implication, [parol] evidence may still be admissible if relevant (1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in [a] writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud.” (Internal quotation marks omitted.) TIE Communications, Inc. v. Kopp, supra, 218 Conn. 288-89.
      In its memorandum of decision, the court observed that “[p]arol evidence, including relevant statements and the conduct of the parties, are accordingly admissible, whether to resolve an ambiguity or to supplement the writing." (Emphasis added.) We note that such evidence also may have been admitted in the present case to prove a collateral oral agreement that did not vary the terms of the writing. (See discussion in part III regarding Reardon’s promise to pay the plaintiffs bonus in 1998.) In any case, we conclude that the court properly admitted parol evidence.

       The defendant argues that the evidence demonstrated that bonuses were paid only in December to individuals employed by the defendant at the time the bonuses were issued and that the court, therefore, drew the wrong inference from the testimony. Our task, however, is not to determine whether the court could have drawn a different conclusion, but whether the conclusion reached was a reasonable one in light of the evidence adduced. See Barber v. Skip Barber Racing School, LLC, supra, 106 Conn. App. 66. Although the defendant’s past interactions with other associates were indicative of whether the defendant intended to prorate bonuses, the court was free to reject that evidence. See West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 17, 901 A.2d 649 (2006); Mierzejewski v. Brownell, 102 Conn. App. 413, 422, 925 A.2d 1126, cert. denied, 284 Conn. 917, 931 A.2d 936 (2007).

       General Statutes (Rev. to 1999) § 52-192a provides in relevant part: “(a) After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may . . . file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. . . . Within thirty days after being notified of the filing of the ‘offer of judgment’ and prior to the rendering of a verdict by the jury or an award by the court, the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiffs ‘offer of judgment’. Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain specified in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount

       The defendant’s allegation was made known to the trial court for the first time in a posfjudgment motion to set aside the verdict filed November 21, 2006.

       The plaintiff also claims that the court improperly struck count two of his second amended complaint. Because the plaintiff repleaded the stricken count in his third amended complaint, we do not address whether the court properly struck that count from the second amended complaint. See St. Denis v. de Toledo, 90 Conn. App. 690, 693-94, 879 A.2d 503, cert. denied, 276 Conn. 907, 884 A.2d 1028 (2005).

       The relevant paragraphs of count two of the plaintiffs second amended complaint are as follows:
      “6. When the [defendant] hired [the plaintiff], and on several occasions thereafter, Reardon explained to [the plaintiff] that the [defendant’s] policy and practice was to pay to its lawyers, including Reardon, modest salaries in the course of the business year, in order to keep capital available for funding the [defendant’s] cases, and to distribute substantial bonuses at year end, so that an associate lawyer’s overall compensation would be commensurate with ‘the market.’. . .
      “8. Prior to [the plaintiffs promotion to director in 1995], Reardon and [the plaintiff] had several discussions regarding it, in the course of which Reardon restated the [defendant’s] policy and practice concerning salaries and bonuses; and represented that the plaintiffs base salary would be raised to $60,000 per year; and that [the plaintiff] would be paid a bonus at the conclusion of each year during which he was employed. . . .
      “10. In the three years that [the plaintiff] served as a [director, he received year end bonuses of $40,000.00 (1995), $42,500.00 (1996) and $60,000 (1997).
      “11. Reardon represented to [the plaintiff] that his 1997 bonus was approximately 15 [percent] of the [defendant’s] net income for that year. . . . “14. In August of 1998, [the plaintiff] voluntarily determined to leave the [defendant’s employment] and notified the [defendant], through Reardon, of his intention; and Reardon and [the plaintiff] thereafter entered into discussions concerning [the plaintiffs] separation from the [defendant’s employment].
      “15. In the course of these discussions, Reardon, acting on behalf of the [defendant], and [the plaintiff] agreed, among other things that: . . . “d. [The plaintiffs] employment by the [defendant] would terminate when [the plaintiff] succeeded in obtaining [employment with another firm] or on October 1, 1998, which ever occurred sooner;
      “e. The [defendant] would continue to pay [the plaintiff] his regular salary through his date of termination, and would pay him a bonus that would ‘reflect what a successful year [it] has been for [the plaintiff] and the [defendant].’ . . .
      “19. The [defendant] has breached its agreements with [the plaintiff] by failing to pay him a bonus that fairly reflects his contribution to the [defendant’s] highly successful 1998 business year. . . .
      “20. The [defendant] has wrongfully withheld the wages represented by the [plaintiffs] agreed bonus.”

       In addition to repeating the allegations stated in paragraphs one through nineteen of count two of the second amended complaint, count two of the third amended complaint stated:
      “20. During each of [the plaintiffs] years with the [defendant], Reardon represented that bonuses for [associate [ajttomeys and . . . [directors were to be based primarily upon (1) each individual attorney’s performance in the calendar year, including that attorney’s fee generation and the quality of that attorney’s work; and (2) the length of each attorney’s association with the [defendant],
      “21. Reardon represented that the [defendant’s] overall success would also play a role in bonuses; in this regard, he stated that [associates and [directors would benefit if the [defendant] was successful.
      “22. [The plaintiff] received substantial bonuses after each of his years with the [defendant] because of his performance during those years; for example, Reardon represented that [the plaintiffs] first bonus in 1992 of [$12,000] was the largest that the [defendant] had ever paid to a first year [associate and [the plaintiffs] 1997 bonus was equal to his base salary.
      “23. As of 1998, [the plaintiff] had been practicing with the [defendant] longer than any other attorney with the exception of Reardon.
      “24. On information and belief, by August 1998, the [defendant] had experienced the most successful year in its history, with net income as of this date of approximately two million dollars, which constituted a significant increase in the [defendant’s] income as compared with any prior year and approximately four times the [defendant’s] net income for 1997. [T]his extraordinary income was derived primarily from four very large cases that were reduced to settlement . . . during that year.
      “25. [The plaintiff] played a significant role in the [defendant’s] success in these matters. Specifically, [the plaintiff] assisted Reardon in one of these cases; tried another to verdict and successfully defended an appeal from that verdict; and was substantially responsible for the results in the remaining two. In addition, [the plaintiff] materially contributed to the realization of income from other, smaller cases. Given the [defendant’s] criteria for determining bonuses, [the plaintiff] had earned a substantial bonus by virtue of this performance in 1998 as aforesaid. . . . “32. [The plaintiff] would not have resigned from the firm . . . without Reardon’s assurances that [the plaintiff] would receive the bonus that which he had earned by virtue of his performance during 1998.
      “33. Reardon provided such assurances to [the plaintiff] prior to his final departure.
      “34. As [the plaintiff] had earned this bonus by virtue of his performance . . . during the time prior to his departure, the [defendant] has wrongfully withheld the wages represented by [the plaintiffs] agreed bonus.
      “35. As a result of the [defendant’s] violation of [General Statutes] § 31-72, as aforesaid, [the plaintiff] is entitled to an award equal to twice the amount of his bonus, together-with costs and attorney’s fees.”

       We note that the plaintiff, in his objection to the defendant’s request to revise, stated that he “amended his [cjomplaint to allege facts that support the application of [§ 31-71a (3)], under the cases cited by the [c]ourt.” See Cook v. Alexander & Alexander of Connecticut, Inc., supra, 40 Conn. Sup. 246; Wuerth v. Schott Electronics, Inc., supra, Superior Court, Docket No. CV-91-036406-S; Pelton v. Olin Corp., supra, Superior Court, Docket No. CV-88-0092063-S.

       General Statutes § 31-72 provides in relevant part: “When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71Í, inclusive . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court . . . .”

       As we noted previously, the trial court did not have the benefit of the Mytych decision when it issued its ruling.

       Our Supreme Court recently observed that “[although [General Statutes] § 31-72 does not set forth a standard by which to determine whether double damages should be awarded in particular cases, it is well established . . . that it is appropriate for a plaintiff to recover attorney’s fees, and double damages under [§ 31-72], only when the trial court has found that the defendant acted with bad faith, arbitrariness or unreasonableness.” (Internal quotation marks omitted.) State v. Lynch, 287 Conn. 464, 475 n.10, 948 A.2d 1026 (2008).


author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. STEPHEN J. WALTERS
    (AC 28496)
    Flynn, C. J., and Harper and Robinson, Js.

      Argued September 24
    officially released November 25, 2008

      Anthony E. Parent, special public defender, for the appellant (defendant).

      Eileen F. McCarthy, senior assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Colleen P. Zingaro, deputy assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The principal issue to be decided in this case is whether, to obtain a conviction under General Statutes § 14-227a (a) (1), the behavioral portion of the statute prohibiting the operation of a motor vehicle while under the influence of intoxicating liquor or drugs, the state must prove that a defendant driver, after being properly stopped for a motor vehicle infraction, actually had difficulty driving the motor vehicle because of the intoxicating liquor or drugs. We conclude that, in light of the text of the statutory provision and the case law interpreting it, the state is not required to prove that such a defendant was driving improperly. The evidence suffices for a conviction if, at the time of operation, the defendant can be shown to have operated a motor vehicle on a public highway while under the influence of intoxicating liquor or drugs, or both, so that he lacked to an appreciable degree the ability to function properly in relation to the operation of his vehicle.

The defendant, Stephen J. Walters, was tried by a jury and found guilty of operating under the influence in violation of § 14-227a (a) (1) and interfering with an officer in violation of General Statutes § 53a-167a. The defendant also was charged and found guilty in a part B information with being a repeat offender in that he previously had been convicted of operating under the influence. He appeals from the conviction of both offenses.

The following facts could have been found reasonably by the juiy. At approximately 1 a.m. on May 8, 2005, the defendant was driving his vehicle in the northbound lane of Federal Road in Brookfield. Officer Robert Hebert of the Brookfield police department was traveling on the same road, in the same direction, two cars behind the defendant. Hebert observed the defendant’s car moving back and forth within the lane. At one point, the defendant’s car crossed the solid yellow lines in the center of the road. Upon seeing this, Hebert stopped the defendant.

Hebert asked the defendant to produce his license, registration and insurance card. The defendant had his license ready to give to the officer but had difficulty retrieving his registration and insurance information, dropping various papers on his lap and onto the floor of the vehicle. Hebert observed that the defendant’s eyes were red and glossy and that the defendant’s speech was slurred. Hebert further noticed the odor of alcohol emanating from the vehicle. When questioned as to whether he had had anything to drink, the defendant indicated that he had consumed two or three alcoholic beverages approximately one-half hour before being stopped by Hebert. Officer Robert Pennoyer subsequently arrived to assist Hebert.

Hebert administered field sobriety tests to the defendant. The defendant failed both the walk and turn and one leg stand tests, demonstrating a lack of coordination, balance and a failure to follow instructions. Concluding that the defendant was under the influence of alcohol or drugs, Hebert decided to place him under arrest. The defendant, who had been pleasant and cooperative to this point, became agitated and repeatedly resisted Hebert’s and Pennoyer’s efforts to handcuff him. The officers eventually were able to secure and handcuff the defendant and to transport him to the police headquarters. Additional facts will be set forth as necessary.

I

We first address the defendant’s sufficiency claims arising from his conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs. The defendant focuses his arguments on the evidence of his manner of driving and makes various claims that the evidence was insufficient because he had crossed the center line but once, there was no evidence of poor driving, and the state did not show that he had difficulty driving, drove unsafely or caused an accident. We disagree with this reasoning.

“Review of any claim of insufficiency of the evidence introduced to prove a violation of a criminal statute must necessarily begin with the skeletal requirements of what necessary elements the charged statute requires to be proved.” State v. Pommer, 110 Conn. App. 608, 613, 955 A.2d 637 (2008). “Once analysis is complete as to what the particular statute requires to be proved, we then review the evidence in light of those statutory requirements. Our review standard is well settled. In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt . . . .” (Internal quotation marks omitted.) Id.

Our analysis begins with the statute. Section 14-227a (a) provides in pertinent part that “[n]o person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor . . . .” We have interpreted subdivision (1) of subsection (a) of this statute to consist of three elements, namely, (1) operation of a motor vehicle, (2) on a public highway or other designated area, (3) while under the influence of intoxicating liquor or drugs. State v. Gordon, 84 Conn. App. 519, 527, 854 A.2d 74, cert. denied, 271 Conn. 941, 861 A.2d 516 (2004).

The defendant’s arguments focusing on what he claims is evidentiary insufficiency of erratic driving are misplaced. Our law is settled that the necessary element of operation does not even require that a defendant actually be driving the motor vehicle involved. See State v. Haight, 279 Conn. 546, 551, 903 A.2d 217 (2006). It is enough if a driver intentionally does any act or makes use of any mechanical or electrical agency that alone or in sequence will set in motion the motive power of the vehicle; State v. Wiggs, 60 Conn. App. 551, 554, 760 A.2d 148 (2000); and that he does so on a public highway or other designated area while under the influence of intoxicating liquor or drugs so that the driver’s mental processes have become so affected that he lacks, to an appreciable degree, the ability to function properly in relation to the operation of his motor vehicle. See State v. Gordon, supra, 84 Conn. App. 526. It would be incongruous to hold evidence of operation to suffice where a defendant merely places his key into the ignition and does not drive but to require more in cases in which a defendant actually drives on a public highway by engrafting a requirement of erratic or dangerous driving in the state’s burden of proof. The jury had before it evidence that the defendant, and not some other person, was operating a motor vehicle on a public highway after drinking intoxicating beverages that impaired his faculties so that he drove across a highway center line and, after being stopped by the police officer, slurred his speech, did poorly on field sobriety tests, smelled of alcohol, displayed eyes that were red and watery and had difficulty retrieving his registration from his glove compartment. Looking at the evidentiary record in the light most favorably toward sustaining the verdict, as we are required on appeal, we conclude that there was adequate evidence permitting the jury reasonably to conclude that the defendant violated § 14-227a (a) (1).

We already have addressed and rejected the defendant’s arguments that, although he does not challenge the existence of a reasonable and articulable suspicion justifying his stop by the police, only the evidence of his driving should be taken into account at trial and that his manner of operation did not suffice to prove his guilt of driving while under the influence of intoxicating liquor or drugs. We now also reject its implicit corollary, namely, that somehow the police officers’ observations of his poststop conduct, consistent with intoxication, and his failure to perform certain sobriety tests were immaterial. Our criminal jurisprudence has always permitted evidence gathered after the commission of a crime to be used to prove the guilt of an accused when it is probative and not so temporally disconnected from the commission of the offense as to vitiate its materiality and worth in establishing the validity of a given assertion. We cite a few examples that are illustrative, but not exhaustive, of this point: gunpowder residue on a hand or clothing tying a defendant to the firing of a dangerous weapon; see State v. Fuller, 56 Conn. App. 592, 613-17, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000); possession of items taken in an earlier robbery; see State v. Garcia, 37 Conn. App. 619, 625-26, 657 A.2d 691, cert. denied, 234 Conn. 917, 661 A.2d 97 (1995); or burglary. See State v. Correa, 57 Conn. App. 98, 108-11, 748 A.2d 307, cert. denied, 253 Conn. 908, 753 A.2d 941 (2000).

We recognize that when the crime involves intoxication due to alcohol consumption, it is well established that the effects of intoxication may increase or diminish over time, depending on when the alcohol was consumed. However, temporality did not diminish the sufficiency of the evidence of the defendant’s lack of sobriety because the officers’ observations of the defendant’s demeanor, lack of physical coordination and slurred speech occurred immediately after he was stopped. It was, therefore, probative evidence, which the jury was free to accept and which would suffice, when taken with the other evidence and reasonable inferences drawn therefrom, to prove the defendant’s guilt of operating a motor vehicle while under the influence of intoxicating liquor or drugs.

II

We next address the defendant’s challenge to his conviction of interfering with an officer in violation of § 53a-167a. The following additional facts bear on the defendant’s claims. After observing the defendant’s demeanor, slurred speech and failure to perform field sobriety tests adequately, Hebert determined that the defendant was intoxicated and decided to place him under arrest. The defendant became noticeably agitated. He told Hebert and Pennoyer that he was not going to permit himself to be handcuffed. In response to a direct question from Pennoyer, the defendant indicated that he would resist arrest. The defendant also adopted a threatening stance and clenched his fist. Pennoyer grabbed the defendant’s left arm and attempted to apply handcuffs. The defendant straightened his arms, making it difficult to lock the cuffs. Eventually, the officers were able to secure the defendant and place him in a police vehicle for transportation to police headquarters. On appeal, the defendant argues that the evidence adduced at trial was insufficient to support his conviction under § 53a-167a.

Section 53a-167a (a) provides in relevant part that “[a] person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer ... in the performance of such peace officer’s . . . duties.” By using these words, the legislature intended to prohibit conduct that hampers the police in the performance of their duties. State v. Silva, 285 Conn. 447, 455, 939 A.2d 581 (2008). To establish the commission of this crime, the state was required to prove that the defendant obstructed, resisted, hindered or endangered the police officers who were engaged in the performance of their duties and acted with the intent to interfere in the performance of their duties. See State v. Wearing, 98 Conn. App. 350, 355, 908 A.2d 1134 (2006), cert. denied, 281 Conn. 905, 916 A.2d 47 (2007). Little further analysis is necessary. The defendant admitted to the police officers that he would resist. They were entitled to believe him, and the jury was entitled to credit that evidence and the other pertinent evidence of hampering introduced. We therefore conclude that this claim has no merit.

The judgment is affirmed.

In this opinion the other judges concurred.