source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    KEVIN F. MACMILLAN ET AL. v. HARRISON SCOTT HIGGINS ET AL.
    (AC 22390)
    Lavery, C. J., and Schaller and Hennessy, Js.
    Argued January 9
    officially released April 15, 2003

      Kevin F. MacMillan, pro se, the appellant-appellee (named plaintiff).

      Eric D. Grayson, for the appellees-cross appellants (named defendant et al.).
   Opinion

LAVERY, C. J.

The plaintiff Kevin F. MacMillan appeals, and the defendants Harrison Scott Higgins and Linda Park Higgins cross appeal, from the judgment of the trial court, adopting the findings and recommendations of the attorney trial referee (referee) in this action to foreclose a mechanic’s lien. The plaintiff claims that the court improperly accepted the findings of the referee (1) that the defendants did not act in bad faith during their dealings with the plaintiff and (2) that the contract between the parties was not in practical compliance with General Statutes § 20-418 et seq., the Home Improvement Act (act). The plaintiff also argues, contrary to the recommendation of the referee, that our legislature did not intend to provide to the defendants, whose agent drafted the contract, the protection of the act. In their cross appeal, the defendants challenge the findings and recommendations of the referee that they (1) did not overpay the plaintiff, (2) were not entitled to an award for costs to complete the contract and (3) were not entitled to an award of attorney’s fees and punitive damages under General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA). We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. In December, 1991, the defendants solicited the plaintiff, a New Hampshire general contractor, for a construction job. The defendants hired the plaintiff to perform certain improvements to their home in Greenwich. On February 21, 1992, the parties entered into a written contract. The plaintiff had started work on the defendants’ house on January 20,1992, and hired various subcontractors. Difficulties at the construction site occurred, and the plaintiff, under protest, prepared various change orders and performed additional work, for which he received additional compensation. The relationship between the parties continued to deteriorate and on August 7, 1992, the plaintiffs employment was terminated by the defendants.

The plaintiff filed an action against the defendants, alleging that he was owed $45,214.12 for work completed pursuant to the contract. The plaintiff also sought to foreclose on a mechanic’s lien that had been placed on the defendants’ property. The defendants filed an answer, denying the plaintiffs claims, alleged several special defenses and filed a counterclaim alleging that the plaintiff was paid for work that he did not complete and that he violated CUTPA.

The matter was referred to the referee pursuant to General Statutes (Rev. to 1991) § 52-434 (a) and Practice Book § 19-2. The referee heard evidence on June 10 and 11, 1998, at which time the parties stipulated that the plaintiffs work on the defendants’ home was controlled by the act. Additionally, they agreed that the contract did not conform to the act’s mandatory requirements, as set forth in General Statutes § 20-249 (a). Specifically, the contract did not contain a notice of the defendants’ three day cancellation right, as required by the act.* Finally, the parties agreed that the plaintiff could not prevail on his claims absent a finding that the defendants acted in bad faith.

After hearing evidence, the referee issued a report on November 24, 1998, finding that the defendants did not act in bad faith. The court filed its memorandum of decision on September 7, 1999. Prior to accepting the report, it remanded the matter to the referee with instructions to consider three issues. First, the referee was instructed to consider whether Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 720 A.2d 235 (1998), in which our Supreme Court held that practical and not perfect compliance was all that was required under the act, applied to the facts of the present case. Second, the court requested that the referee determine the significance, if any, of the fact that the contract was not prepared by the plaintiff, but by the defendants and their agents. Third, the referee was asked to determine the significance, if any, of the fact that the defendants and their attorney were familiar and experienced with the provisions of the act, as demonstrated by their involvement in Meadows v. Higgins, 249 Conn. 155, 733 A.2d 172 (1999). In addition to addressing those issues, the referee also was also instructed to complete the trial regarding the defendants’ counterclaim.

On April 28, 2000, the referee issued a report addressing the three issues raised by the court. Initially, he concluded that although Wright Bros. Builders, Inc. v. Dowling, supra, 247 Conn. 218, was applicable to the present case, because of the parties’ stipulation that the contract did not conform to the requirements of the act, the only issue was whether the defendants had acted in bad faith. The referee then stated that although he had considered the fact that the defendants and their agents had prepared the contract, and that the preparation by the defendants’ attorney “fell far short in terms of quality,” he did not conclude that the preparation “was done intentionally and in bad faith.” In addressing the third question, the referee considered the fact that the defendants and their attorney were “experienced, knowledgeable, and competent in dealing with matters involving [the act],” as demonstrated by their participation in the Meadows case. ” The referee concluded, however, that he was unable to make a factual determination that the defendants’ attorney intentionally had prepared the contract to deceive the plaintiff or had acted fraudulently or in bad faith.

The referee then heard evidence on the defendants’ counterclaim. The defendants alleged that they were entitled to a return of the money that they had paid to the plaintiff for work that was not completed, as well as compensation for additional funds in the amount of $164,350 that they had expended to complete the work on the house. Additionally, the defendants alleged that the plaintiff had violated CUTPA and that they were, therefore, entitled to an award of attorney’s fees and punitive damages. On February 1, 2000, the referee issued a supplemental report detailing his findings of fact and recommendations with respect to the defendants’ counterclaim. He found that the defendants did not overpay the plaintiff and that they were not entitled to compensation for the $164,350 they spent to complete the construction on their house. Additionally, the referee concluded that the defendants did not suffer an ascertainable loss of money as specified by CUTPA, and, therefore, declined to award attorney’s fees or punitive damages.

The court then issued a supplemental memorandum of decision on August 28,2001. After reviewing the three reports submitted by the referee, the court adopted the referee’s findings and recommendation, and rendered judgment in favor of the defendants with respect to the complaint and in favor of the plaintiff as to the defendants’ counterclaim. This appeal and cross appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff raises three claims on appeal. Specifically, he argues that the court improperly accepted the finding of the referee (1) that there was no bad faith on the part of the defendants in their dealings with him and (2) that the contract was not in practical compliance with the act. The plaintiff also argues, contrary to the recommendation of the referee, that our legislature did not intend to provide to the defendants, whose agent drafted the contract, the protection of the act. We disagree.

At the outset, we set forth the standard of review with respect to the factual findings and recommendations made by a referee. “A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. . . . This court has articulated that attorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. . . .

“The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous. . . . [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses. ... 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.” (Citations omitted; internal quotation marks omitted.) Elgar v. Elgar, 238 Conn. 839, 848-49, 679 A.2d 937 (1996); Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn. App. 342, 345, 805 A.2d 735, cert. denied, 262 Conn. 992, 812 A.2d 864 (2002).

“Although it is true that when the trial court reviews the attorney trial referee’s report the trial court may not retry the case and pass on the credibility of the witnesses, the trial court must review the referee’s entire report to determine whether the recommendations contained in it are supported by findings of fact in the report. It is also true that the trial court cannot accept an attorney trial referee’s report containing legal conclusions for which there are no subordinate facts. ... If the attorney referee’s ruling was not legally and logically correct, the trial court may reject the report.” (Citation omitted; internal quotation marks omitted.) Killion v. Davis, 257 Conn. 98, 102-103, 776 A.2d 456 (2001). With those principles in mind, we now address the plaintiffs claims.

A

The plaintiff first claims that the court improperly accepted the factual finding of the referee that the defendants did not act in bad faith. Specifically, the plaintiff argues that the existence of bad faith was demonstrated by evidence that the defendants had forced him to sign a new contract in February, 1992, which included additional requirements, after he had begun work in January, 1992, and by evidence that the defendants’ attorney, who was experienced with the mandatory requirements of the act, had drafted the contract and that the defendants previously had attempted to use the act to deny payment to a contractor in Meadows v. Higgins, supra, 249 Conn. 155.

Our Supreme Court, in inteipreting the act, has established the general rule that a contractor who fails to comply with the act is prohibited from recovery under either a breach of contract claim or quasi-contractual methods of recovery, such as unjust enrichment or quantum meruit. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 350, 576 A.2d 149 (1990); A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 340, 576 A.2d 464 (1990); Barrett Builders v. Miller, 215 Conn. 316, 322-23, 576 A.2d 455 (1990). The court, however, in Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992), held that “[p]roof of bad faith . . . serves to preclude the homeowner from hiding behind the protection of the act.” The court also stated that the existence of bad faith is a question of fact. Id., 237 n.11. “Bad faith in general implies both 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., 237.

In his report, the referee noted that the contract drafted by the defendants’ attorney “fell far short in terms of quality, but . . . [he could not conclude that] it was done intentionally and in bad faith.” The referee stated that he could not find that the defendants’ attorney had drafted the contract to “trick the plaintiff or participate in any fraud or bad faith activity in connection with this matter.” In its memorandum of decision, the court stated that “[t]he plaintiff presented a plausible argument by bringing to light that [the] defendants and their former attorney, described by the . . . referee as knowledgeable about [the act], prepared the contract and had both been involved in Meadows v. Higgins, supra, 249 Conn. 155. If left to its own devices, the court might well find grounds for the bad faith exception. However, this issue must be seen in the context of the attorney trial referee program where a court does not have a free hand to substitute its judgment as to the facts for the judgment of the referee.” (Emphasis added.)

The question before this court is not whether, if faced with the same set of facts, we would reach the same finding as did the referee, but whether the referee’s finding of an absence of bad faith was clearly erroneous. Under the limited scope of review that we are afforded, we cannot say that the finding was clearly erroneous.

In his report dated November 24, 1998, the referee stated that he reviewed the evidence presented and observed the demeanor of the witnesses. He concluded that he could not make a factual determination that the defendants had acted in bad faith, even though there was evidence of negligence, carelessness and practices that did not conform to business standards. The referee opined that under the facts and circumstances, to make a finding of bad faith, the plaintiff was required to prove that the defendants had acted with “a dishonest purpose and intended to mislead or deceive the plaintiff.” He was unable to make such a finding. The referee also reviewed all the evidence on the issue of bad faith after the court had remanded the matter to him with instructions to address the three questions raised by the court. In his report, dated April 26, 2000, the referee again concluded that he could not make the factual determination that the defendants had acted in bad faith.

We also note that the fact that the defendants, through their agent, drafted the contract does not mandate a finding of bad faith. In Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 243, 618 A.2d 506 (1992), the agents of the homeowners drafted the contract that failed to contain the cancellation clause required by the act. Our Supreme Court, in affirming the trial court’s rendering of summary judgment, stated that the “fact that the [homeowners] had their architect and New York attorneys draft the contract does not in and of itself indicate bad faith on the part of the defendants. ... At most, the New York attorneys were negligent in failing to consult Connecticut law and to include the required clause in the contract. An honest mistake does not rise to the level of bad faith.” Id., 248-49.

The plaintiff further argues that the bad faith was demonstrated by the fact that the defendants forced him to sign a new contract after he had started work on their home. Our review of the record reveals that the defendants did not sign the January, 1992 form. Moreover, there was testimony from William Philips, the attorney who drafted the contract, that the January, 1992 document simply was a draft used to complete the contract and establish the terms.

We also note that the court instructed the referee specifically to consider the issue and significance, if any, of the fact that the defendants and their agents had demonstrated, through their involvement with the case of Meadows v. Higgins, supra, 249 Conn. 155, knowledge and familiarity with the provisions of the act. In responding to that instruction, the referee concluded that he could not make a finding that the defendants’ attorney, the drafter of the contract, intentionally had prepared it to deceive the plaintiff or had acted fraudulently or in bad faith.

Our review of the record convinces us that the finding of fact made by the referee, i.e., that the plaintiff failed to prove that the defendants had acted in bad faith, was supported by the subordinate facts and was legally and logically correct. Accordingly, it was not clearly erroneous for the court to accept the referee’s finding.

B

The plaintiffs second argument is that the court improperly accepted the referee’s finding that the contract was not in practical compliance with the act. In support of his argument, the plaintiff relies on Wright Bros. Builders, Inc. v. Dowling, supra, 247 Conn. 218. As stated in part I A, we review that argument under the clearly erroneous standard of review.

In Wright Bros. Builders, Inc., our Supreme Court held that letter perfect compliance with the provisions of the act is not required and that minor technical deviations from the act will not bar the contractor from recovery. Id., 231. The present case, however, is readily distinguishable.

We note that the parties stipulated to the fact that the contract did not comply with provisions of the act. The parties further stipulated that the sole issue before the referee with respect to the plaintiffs claim was whether the defendants had acted in bad faith. Moreover, the facts in the present case are readily distinguishable from those found in Wright Bros. Builders, Inc. v. Dowling, supra, 247 Conn. 218. In Wright Bros. Builders, Inc., our Supreme Court held that the deviations from the act were highly technical in nature, and consisted of the absence of the cancellation notice in duplicate and the failure to enter certain dates on the cancellation notice that easily could be obtained from a brief review of the contract. Id., 232-33. Those deviations, furthermore, did not deprive the homeowners of notice of their cancellation rights and, therefore, the purpose of the act was achieved, despite the minor deviations.

By contrast, in the present case there was no cancellation provision. There was the complete absence of one of the explicit requirements of the act. Because the defendants received no notice of their cancellation rights, the purpose of the act cannot be said to have been furthered. Accordingly, we conclude that the court properly accepted the referee’s finding that the contract was not in compliance with the act.

C

The plaintiff finally argues, contrary to the recommendation of the referee, that our legislature did not intend to provide to the defendants, whose agents drafted the contract, the protection of the act. According to the plaintiff, it was, therefore, improper for the court to accept the recommendation.

Prior to addressing the plaintiffs claim, we set forth the applicable standard of review. The plaintiff raises a question of statutory construction. “Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Jones v. Kramer, 72 Conn. App. 789, 792, 806 A.2d 606, cert. granted in part, 262 Conn. 914, 811 A.2d 1291 (2002); see also State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003) (en banc).

Our Supreme Court, in Barrett Builders v. Miller, supra, 215 Conn. 316, noted the potential results that could occur with strict enforcement of the act. “We recognize that our decision may lead to a harsh result where a contractor in good faith but in ignorance of the law performs valuable home improvements without complying with [the act]. We are unpersuaded that this deficiency in the statute is within our power to remedy. Clearly, the legislature is entitled, in the first instance, to impose the burden of compliance with the statute on the professional, the contractor, rather than on the nonprofessional, the consumer. Viewing the continued incidence of complaints about home improvement contractors, the legislature could legitimately view as more urgent the need to protect consumers from unscrupulous contractors than the need to protect innocent contractors from manipulative consumers.” Id., 326-27. The court also stated that “[t]he legislature, having responded to the plight of consumers overborne by high pressure home improvement salesmanship, ought nonetheless to contemplate the possibility that some inexperienced contractors may encounter homeowners who use [the act] as a sword rather than as a shield. . . . This court cannot, however, supply these forms of recovery absent authorization from the legislature.” (Citation omitted.) Id., 328-29.

It is clear that the burden to ensure compliance with the act is on the contractor. See Wright Bros. Builders, Inc. v. Dowling, supra, 247 Conn. 228. Moreover, in the present case, there was an absence of a factual finding of bad faith on the part of the defendants and a stipulation that the contract between the parties was governed by the act. Accordingly, we conclude that the court properly accepted the referee’s recommendation that the defendants were entitled to the protections afforded by the act.

II

In their cross appeal, the defendants claim that the court improperly accepted the findings of the referee that they (1) did not overpay the plaintiff, (2) were not entitled to an award of costs to complete the contract, and (3) were not entitled to an award of attorney’s fees and punitive damages as a result of the plaintiffs violation of CUTPA. As stated in parts I A and B, we examine the referee’s findings of fact under the clearly erroneous standard of review. We will address each of the defendants’ claims in turn.

A

The defendants first claim that the court improperly accepted the referee’s finding that they did not overpay the plaintiff. Specifically, the defendants contend that the plaintiff was paid for 91 percent of the total value of the contract when only 79 percent of project was completed, resulting in an overpayment of $32,548. We disagree.

The referee found that the total contract price, including the various change orders, was $277,938. At the time his employment was terminated, the plaintiff had been directly paid $225,243, and the subcontractors that he had hired had been paid $45,998, for a total of $271,241.

The defendants argue that the referee improperly included $45,998 that was paid directly to the subcontractors when calculating the amount of work done on the contract by the plaintiff. They also cite the testimony of Bruce Simon, the replacement contractor, that only 79 percent of the work was done when he replaced the plaintiff in August, 1992. The defendants also claim that the plaintiff himself testified that the project was only 75 percent complete when his employment was terminated.

We are unpersuaded by the defendants’ claims that the plaintiff was overpaid. Initially, we note that the plaintiff testified that he had hired the various subcontractors to complete the contract he had with the defendants. The referee, therefore, had evidence to conclude that the $45,998 paid directly to the subcontractors by the defendants was, in fact, for the completion of the contract between the plaintiff and the defendants.

Additionally, our review of Simon’s testimony indicates that his statement was made while being shown an “Application and Certification for Payment” that was dated June 10,1992, which indicated that 79 percent of the contract was completed. Moreover, the defendants acknowledged that figure by paying the amount due on June 12, 1992, and did not question the accuracy of the document.

We also note that the plaintiffs statement that he completed 75 percent of the contract, when considered with the entirety of his testimony, reveals that he was testifying about a period of time prior to the termination of his employment. He stated that after working for six and one-half months, he had finished 75 percent of the contract. The plaintiff previously had testified that he started working in January, 1992. The referee, therefore, heard evidence that the plaintiffs work on the contract was 75 percent done at a time prior to the termination of his employment and that he then completed additional work until he was replaced by Simon.

Evidence existed to support the determination that the plaintiff was not overpaid, and we are not left with the firm conviction that an error has been made. We conclude, therefore, that it was not clearly erroneous for the court to accept the referee’s findings and recommendations that the defendants did not overpay the plaintiff.

B

The defendants next claim that the court improperly accepted the findings and recommendations that they were not entitled to damages to complete the contract. Specifically, the defendants claim that they expended an additional $164,350 to complete the contract work.

The defendants introduced into evidence a list of payments made to subcontractors from August 21 until November 20, 1992, totaling $186,548.38. The defendants claim that Simon was able to identify certain payments as work completed outside of the scope of the contract between the plaintiff and the defendants. Subtracting those payments, the defendants claim that the remaining $164,350 was paid for work done to complete the contract. Simon, however, was unable to identify which payments, if any, were made to complete the contract work.

In light of the finding that the plaintiff was not overpaid, as well as the testimony of Simon and the absence of any invoices to match the list of payments, it was not clearly erroneous for the referee to find that the expenditure of the $164,350 was not necessary for the completion of the contract.

C

The defendants’ last claim is that it was improper for the court to accept the finding of the referee that they were not entitled to an award of attorney’s fees and punitive damages as a result of the plaintiffs CUTPA violation. Specifically, the defendants claim that they are entitled to an award of attorney’s fees and costs in the amount of $49,981 and leave to file a motion for additional fees and costs incurred since October 3,2000. They also sought punitive damages in the amount of $500,000.

The defendants argue, and we agree, that the plaintiffs failure to comply with the act was a per se violation of CUTPA. See General Statutes § 20-427 (c); A. Secondino & Son, Inc. v. LoRicco, supra, 215 Conn. 343; Kronberg Bros., Inc. v. Steele, 72 Conn. App. 53, 61, 804 A.2d 239, cert. denied, 262 Conn. 912, 810 A.2d 277 (2002). To recover damages under CUTPA, however, the defendant must prove more than a violation of the statute. “A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he [or she] must establish that the conduct at issue constitutes an unfair or deceptive trade practice. . . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered.” (Internal quotation marks omitted.) Reader v. Cassarino, 51 Conn. App. 292, 299, 721 A.2d 911 (1998); see also General Statutes § 42-110g.

In the present case, the referee found that the defendants did not suffer an ascertainable loss. In parts II B and C, we upheld the court’s acceptance of the referee’s findings that the defendants did not oveipay the plaintiff and that the defendants were not obligated to expend the amount claimed to finish the project. There is, therefore, no ascertainable loss shown by the defendants. Consequently, they are precluded from recovery under CUTPA. Accordingly, we conclude that it was not clearly erroneous for the court to accept the finding that the defendants were not entitled to an award of attorney’s fees or punitive damages.

The judgment is affirmed.

In this opinion the other judges concurred.

       MacMillan Associates, the other plaintiff, was the business name sometimes used by Kevin F. MacMillan. In this opinion, when we refer to the plaintiff, it is to Kevin F. MacMillan. We note that the plaintiff was represented by counsel until July 27, 1998, when the trial court granted a motion to withdraw filed by the plaintiffs attorney. The plaintiff proceeded pro se during the remainder of the proceedings.

       In the complaint, the plaintiff named Harrison Scott Higgins, Linda Park Higgins and Michael Meadow, doing business as Paper Pro, as defendants. Michael Meadow, doing business as Paper Pro, was defaulted for failing to plead and is not a party to this appeal. We therefore refer in this opinion to the Higginses as the defendants.

       The parties used the 1987 edition of the American Institute of Architects form contract entitled “Standard Form of Agreement Between Owner and Contractor.” The contract adopted by reference the 1987 edition of the form entitled “General Conditions of the Contract for Construction.”

       The defendants gave the plaintiff a draft of the contract, dated January 16, 1992. It was not signed by the defendants.

       Section 7.2.1 of the general conditions of the contract states: “A Change Order is a written instrument prepared by the Architect and signed by the Owner, Contractor, and Architect stating their agreement upon all of the following: .1 a change in the work; .2 the amount of the adjustment in the Contract Sum, if any; and .3 the extent of the adjustment in the Contract Time, if any.”

       A bond was substituted for the mechanic’s lien in July, 1998.

       General Statutes (Rev. to 1991) § 52-434 (a) (4) provides in relevant part: “In addition to the judge trial referees who are appointed pursuant to subdivision (1), (2) or (3) of this subsection, the chief justice may appoint, from qualified members of the bar of the state, who are electors and residents of this state, as many state referees as he may from time to time deem advisable or necessary. ...”

       Practice Book § 19-2 provides: “The court or any judge thereof may send to a committee for a finding of facts any case wherein the parties are not, as a matter of right, entitled to a jury trial. A committee shall not be appointed without the consent of all parties appearing, unless the court, after a hearing upon motion for appointment of a committee, is of the opinion that the questions involved are such as clearly ought to be sent to a committee.”

       On June 11, 1998, the following colloquy occurred between the referee and the parties:
      “[Referee]: Do I understand, then, that there is a stipulation in effect that paragraph six, which says, contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740 [of the General Statutes, the Home Solicitation Sales Act, General Statutes § 42-134a et seq.], that there is no such notice of cancellation rights?
      “[Plaintiffs Counsel]: That’s correct.
      “[Referee]: And you both agree that that’s right?
      “[Defendants' Counsel]: I definitely agree.”

       General Statutes § 20-429 (a) provides in relevant part: “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, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740 [General Statutes § 42-135a], (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. . . .”

       General Statutes § 42-135a provides in relevant part: “No agreement of the buyer in a home solicitation sale shall be effective if it is not signed and dated by the buyer or if the seller shall:
      “(1) Fail to furnish the buyer with a fully completed receipt or copy of all contracts and documents pertaining to such sale at the time of its execution, which contract shall be in the same language as that principally used in the oral sales presentation and which shall show the date of the transaction and shall contain the name and address of the seller, and in immediate proximity to the space reserved in the contract for the signature of the buyer, or on the front page of the receipt if a contract is not used, and in boldface type of a minimum size of ten points, a statement in substantially the following form: YOU, THE BUYER, MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT.”

       The following colloquy occurred between the referee and counsel:
      “[Referee]: If there’s no finding of bad faith, that’s the other thing, but that’s dispositive of [the plaintiffs] claim. Am I right about that?
      “[Plaintiffs Counsel]: Yeah. If there is bad faith shown, then he’s got a claim.
      “[Defendant’s Counsel]: If there’s no bad faith, it’s dispositive.
      “[Plaintiffs Counsel]: Yes.”

       The plaintiff filed a motion to correct the report of the referee and an exception to the referee’s report. The referee reviewed both motions and affirmed his findings.

       The plaintiff, on May 14, 2000, filed an objection to the referee’s report. The referee reviewed the motion and affirmed his findings.

       “[A] formal agreement or stipulation of fact fairly entered into is controlling on the parties and the court is bound to enforce it.” Highgate Condominium Assn. v. Watertown Fire District, 210 Conn. 6, 19 n.6, 553 A.2d 1126 (1989).

       The following colloquy occurred between the referee and Simon:
      “[Referee]: Well, now, you’ve told me what, as best you can recall, what was not part of the contract. That doesn’t mean that the items that you didn’t talk about are part of the contract. Right?
      “[The Witness]: That’s correct.
      “[Referee]: What you’re saying is that they could have been part of the contract or maybe they weren’t part of the contract.
      “[The Witness]: That’s correct.”

       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.”


text:
    PERRY LEWIS, TRUSTEE, ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF RIDGEFIELD
    (AC 23043)
    Lavery, C. X, and Schaller and Peters, Js.
    Argued February 11
    officially released April 15, 2003

      Thomas W. Beecher, for the appellant (defendant).

      Robert A. Fuller, for the appellees (plaintiffs).
   Opinion

LAVERY, C. J.

The defendant planning and zoning commission of the town of Ridgefield (commission) appeals from the judgment of the trial court sustaining the plaintiffs’ administrative appeal from the commission’s decision to amend the subdivision regulations and master plan of the code of ordinances of the town of Ridgefield on the ground that the commission exceeded its statutory authority. On appeal, the commission claims that the court improperly sustained the plaintiffs’ appeal because General Statutes § 8-25 grants it the authority to enact the challenged subdivision regulations. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for the resolution of the commission’s appeal. The commission sought to address the creation of building lots that had severe topographic limitations and were located in environmentally sensitive areas. In furtherance of that goal, the commission proposed amendments to both the zoning ordinances and the subdivision regulations. On June 2,1998, a public hearing was held to discuss the proposed amendments. During the hearing, concerns were raised about the effect of the zoning amendments on lots already in existence. On the basis of those concerns, the commission made a decision not to pursue the amendments to the zoning ordinances.

On September 8, 1998, the commission adopted two amendments to the subdivision regulations concerning lot area calculations. Section 2-31 expanded the definition of “lot area,” whereas the amendment to § 4-39 added a new description of the method for calculating lot area. The amendments altered the lot area calculation by excluding land underneath lakes and ponds, and including only 20 percent of land having slopes of 25 percent or greater. At the time of trial, there existed 4121 acres of subdividable land. Of that land, the plaintiffs collectively owned 277 acres that would be affected by the subdivision amendments. The parties agreed that the commission adhered to the statutory requirements and published notice of the decision.

The plaintiffs appealed to the court, claiming that the commission had acted illegally, arbitrarily and in abuse of its discretion by (1) exceeding its authority as a planning commission in passing amendments that contravene existing zoning ordinances concerning minimum lot size, (2) enacting regulations that are discriminatory and deny the plaintiffs equal protection of the laws, (3) unnecessarily excluding land and increasing lot size requirements when the zoning ordinances and the Public Health Code already govern that subject matter and (4) amending the regulations despite the absence of substantial evidence in the record. The court, Radcliffe, J., dismissed the plaintiffs’ appeal for lack of aggrievement. On appeal, we determined that the plaintiffs were aggrieved, and, therefore, reversed the judgment and remanded the case for further proceedings. Lewis v. Planning & Zoning Commission, 62 Conn. App. 284,298, 771 A.2d 167 (2001). On remand, the court, Holden, J., concluded that the commission had acted beyond the scope of its statutory authority in amending the subdivision regulations, and, therefore, sustained the plaintiffs’ appeal. This appeal followed.

The commission claims that § 8-25 grants a planning commission the authority to enact the challenged subdivision regulations. Specifically, the commission argues that the amendments were adopted to protect the public health and safety by excluding bodies of water and steep sloped areas from inclusion in lot area calculations to avoid and to minimize the negative effects that development near or on those areas would have on the land. The court found, however, that the commission exceeded its statutory authority. “When . . . the trial court draws conclusions of law, [the scope of our appellate] review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Pinchbeck v. Planning & Zoning Commission, 69 Conn. App. 796, 801, 796 A.2d 1208, cert. denied, 261 Conn. 928, 806 A.2d 1065 (2002).

The commission, in this case, operates as both a planning and a zoning commission. See General Statutes § 8-4a. “Its duties in each category are separate yet related. As a planning commission its duty is to prepare and adopt a plan of development for the town based on studies of physical, social, economic and governmental conditions and trends, and the plan should be designed to promote the co-ordinated development of the town and the general welfare and prosperity of its people. . . . Such a plan is controlling only as to municipal improvements and the regulation of subdivisions of land. . . . Zoning, on the other hand, is concerned with the use of property. . . . The zoning commission is authorized to adopt regulations governing the use of property, and they should be made in accordance with a comprehensive plan for the most appropriate use of land throughout the town.” (Citations omitted.) Purtill v. Town Plan & Zoning Commission, 146 Conn. 570, 571-72, 153 A.2d 441 (1959). “[T]he legislature has determined that a zoning authority is properly concerned with the use of land, whereas the duties of a planning commission are directed primarily toward municipal development.” Cristofaro v. Burlington, 217 Conn. 103, 106-107, 584 A.2d 1168 (1991).

Subdivision regulation is a function of the planning commission. See Krawski v. Planning & Zoning Commission, 21 Conn. App. 667, 670, 575 A.2d 1036, cert. denied, 215 Conn. 814, 576 A.2d 543 (1990). Section 8-25 provides the planning commission with the authority to establish subdivision regulations. “The enabling statute for the planning commission, however, does not permit what amounts to de facto amendment of zoning ordinances. A planning commission has no power to make, amend or repeal existing zoning regulations or zone boundaries.” (Internal quotation marks omitted.) Cristofaro v. Burlington, supra, 217 Conn. 107. Pursuant to General Statutes § 8-2, the zoning commission has the authority to regulate minimum lot size. Acting under that authority, the commission established the various zoning districts under article III, § 302, of the code of zoning ordinances. Article IV of the code of zoning ordinances specifies the minimum lot size for the respective zoning districts.

Here, the amendments are at variance with the existing zoning ordinances governing minimum lot size. The amendments effectively increase the minimum lot size requirements for subdividable land that has lakes, ponds or slopes of 25 percent or more. “[T]he effect of the amendments upon property not yet subdivided is to require individual lots to have an area greater than the two acres required by the zoning regulations if ponds, lakes or slopes meeting the criteria are included within a proposed lot. ... In this way, the number of subdivision lots created from an undeveloped parcel is reduced.” (Internal quotation marks omitted.) Lewis v. Planning & Zoning Commission, supra, 62 Conn. App. 286. The planning commission, however, cannot enact a subdivision regulation that effectively amends or alters a zoning ordinance because the planning commission would be exceeding its statutory mandate. Cristofaro v. Burlington, supra, 217 Conn. 107.

Because the subdivision regulations effectively alter and amend zoning ordinances governing minimum lot size, the planning commission impermissibly encroached on the authority of the zoning commission granted to it pursuant to § 8-2, and, therefore exceeded its statutory authority under § 8-25. See Smith v. Zoning Board, of Appeals, 227 Conn. 71, 98, 629 A.2d 1089 (1993) (“[i]f the commission enacts subdivision regulations that exclusively concern zoning power, or if the subdivision regulations directly conflict, with a zoning power . . . the subdivision regulation [is] invalid”), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994); Cristofaro v. Burlington, supra, 217 Conn. 107 (planning commission imposition of larger minimum lot size requirement than that established under zoning ordinances is improper).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Perry Lewis, individually and as trustee of the Basha Szymanska Trust, Basha Szymanska, individually and as trustee of the Basha Szymanska Trust, and the Downington Manufacturing Company.

       The commission sought to amend § 301 of the zoning ordinances by adding the following language to the definition of the term “lot area”: “In calculating the minimum required lot area, land covered by open water including ponds, lakes, rivers and streams shall be excluded, and not more than twenty percent (20%) of land area having slopes of twenty-five percent (25%) or greater as measured in two-foot contour mapping shall be included.”
      The commission also sought to amend § 301 of the zoning ordinances by adding the following language to the definition of the term “lot coverage”: “In calculating lot coverage and the area of the lot, land covered by open water including ponds, lakes, rivers and streams shall be excluded, and not more than twenty percent (20%) of land area having slopes of twenty-five percent (25%) or greater as measured in two-foot contour mapping shall be included.”
      Furthermore, the commission proposed adding in its entirety § 305.09 to the zoning ordinances, which stated: “Lot area. In calculating the minimum required lot area, land covered by open water including ponds, lakes, rivers and streams shall be excluded, and not more than twenty percent (20%) of land area having slopes of twenty-five percent (25%) or greater as measured in two-foot contour mapping shall be included.”

       The public expressed concern that the amendments to the zoning ordinances would render existing land nonconforming.

       If the commission had adopted the amendments to the zoning ordinances, those amendments would have been valid. Harris v. Zoning Commission, 259 Conn. 402, 788 A.2d 1239 (2002). The commission, however, decided to only pursue amendments to the subdivision regulations.

       Section 2-31 was amended by the following language: “Lot area. The total horizontal area of the lot lying within the lot lines, provided that no area of land lying within any street line shall be deemed a portion of any lot area. In calculating the minimum required lot area, ponds and lakes shall be excluded. In addition, not more than twenty percent (20%) of land area having slopes of twenty-five percent (25%) or greater as measured in ten-foot contour mapping and consisting of contiguous areas totaling three-thousand (3,000) square feet or more, shall be included.”

       Section 4-39 was amended by the following language: “Lot area calculations. In calculating the minimum required lot area, the area of ponds and lakes shall be excluded. In addition, not more than twenty percent (20%) of land area having slopes of twenty-five percent (25%) or greater as measured in ten-foot contour mapping and consisting of contiguous areas totaling three-thousand (3,000) square feet or more, shall be included.”

       The commission cites to the language in General Statutes § 8-25 (a), which provides in relevant part: “Such regulations shall provide that the land to be subdivided shall be of such character that it can be used for building purposes without danger to health or the public safety, that proper provision shall be made for water, sewerage and drainage, including the upgrading of any downstream ditch, culvert or other drainage structure which, through the introduction of additional drainage due to such subdivision, becomes undersized and creates the potential for flooding on a state highway, and, in areas contiguous to brooks, rivers or other bodies of water subject to flooding, including tidal flooding, that proper provision shall be made for protective flood control measures and that the proposed streets are in harmony with existing or proposed principal thoroughfares shown in the plan of conservation and development as described in section 8-23, especially in regard to safe intersections with such thoroughfares, and so arranged and of such width, as to provide an adequate and convenient system for present and prospective traffic needs. . . .”

       “It has been said that the whole field of subdivision regulation is peculiarly a creature of legislation. It is therefore imperative that before subdivision regulations may be made operative, the necessary statutory authorization of such regulation must exist. ... In other words, in order to determine whether the regulation in question was within the authority of the commission to enact, we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment.” (Internal quotation marks omitted.) Smith v. Zoning Board of Appeals, 227 Conn. 71, 81, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994).

       General Statutes § 8-2 (a) provides in relevant part: “The zoning commission ... is authorized to regulate ... the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes .... Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of the land. . . . Such regulations shall be made in accordance with a comprehensive plan and in adopting such regulations the commission shall consider the plan of conservation and development prepared under section 8-23. . . .”

       The plaintiffs, in their complaint, alleged that their property was located in the RAA, or two acre, zone. Article III, § 302 (2), of the code of zoning ordinances establishes the RAA zone. Article IV, § 402 (C) (1), requires a two acre minimum lot for property in an RAA zone. Specifically, that section states: “No residence or other structure shall be erected, reconstructed or altered upon or moved to any lot which shall be less than two (2) acres in area.” The court, however, did not make an express factual finding that the plaintiffs’ property was located in the RAA zone.


text:
    GLENN MOZELESKI v. FRANK THOMAS, JR., ET AL.
    (AC 22558)
    Lavery, C. J., and Flynn and West, Js.
    Argued January 6
    officially released April 15, 2003

      Jeffrey D. Cedarfield, for the appellant (plaintiff).

      Peter J. Ponziani, with whom, on the brief, was Timothy S. Jajliardo, for the appellee (named defendant).

      Andrew J. O’Keefe, with whom were Joseph M. Busher, Jr., and, on the brief, Peter K. O’Keefe, for the appellee (defendant Robert Hall).
   Opinion

LAVERY, C. J.

In this negligence action, the plaintiff, Glenn Mozeleski, appeals from the summary judgment rendered by the trial court in favor of the defendants, Robert Hall and Frank Thomas. On appeal, the plaintiff claims that the court improperly determined, as a matter of law, that neither defendant owed a legal duty to the plaintiff because a genuine issue of material fact existed as to whether either defendant controlled the premises on which the plaintiff was injured. We affirm the judgment of the trial court.

The pleadings, affidavits and other documentary information presented to the court reveal the following facts. The plaintiff claims that on July 29, 1996, while performing masonry work at a residential construction site, he suffered serious physical injuries as a result of his falling approximately thirty feet off scaffolding owned by Thomas. At that time, Hall was the owner of the premises at 410 East Wakefield Boulevard in Winsted, and Thomas was an independent contractor hired by Hall to perform carpentry work on the residence that was being constructed on the premises.

On the weekend prior to the accident, while neither defendant was present at the work site, the plaintiff and his employee, Michael Lynehan, erected Thomas’ scaffolding to complete the masonry work on a chimney and fireplace that Hall had hired the plaintiff to build. The scaffolding is erected by stacking “stages” or sections on top of each other. When stacked properly, the stages form a ladder on one side of the scaffolding that is used to climb up and down the structure. The plaintiff and Lynehan stacked an upper stage backward, thereby creating a hole in the ladder. The plaintiff alleges that he was injured when he fell through that hole.

On December 3, 1999, the plaintiff filed a four count amended complaint against the defendants, alleging negligence and violation of the federal Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq. On January 29, 2001, the court, on a motion to strike filed by Hall, ruled that “OSHA violations may be evidence of a standard of care, but do not establish a separate cause of action.” Thereafter, both defendants filed a motion for summary judgment on the remaining counts on the ground that they did not owe a legal duty of care to the plaintiff. On September 12, 2001, the court granted both motions for summary judgment and rendered judgment for the defendants. This appeal followed. Additional facts will be set forth as necessary.

Initially, we set forth the applicable standard of review. “The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 558-59, 783 A.2d 993 (2001).

“It is not enough ... for the opposing party merely to assert the existence of such a disputed issue.” (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002). “The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.” (Internal quotation marks omitted.) Pion v. Southern New England Telephone Co., 44 Conn. App. 657, 663, 691 A.2d 1107 (1997). “If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof.” (Internal quotation marks omitted.) 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 569, 636 A.2d 1377 (1994). When a party files a motion for summary judgment “and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant’s] affidavits and other proof.” Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).

Finally, “[t]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.” Pion v. Southern New England Telephone Co., supra, 44 Conn. App. 660. “If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.” (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 567, 707 A.2d 15 (1998). “Because the trial court rendered judgment for the [defendants] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Massad v. Eastern Connecticut Cable Television, Inc., 70 Conn. App. 635, 638, 801 A.2d 813, cert. denied, 261 Conn. 926, 806 A.2d 1060 (2002).

I

The plaintiff first claims that the court improperly determined, as a matter of law, that Hall did not owe a legal duty to the plaintiff because a genuine issue of material fact existed as to whether Hall controlled the premises on which the plaintiff was injured. Specifically, he argues that Hall, as the owner of the premises, owed the plaintiff, an independent contractor, a legal duty to ensure the safety of the work site, including the scaffolding, because Hall retained control over the premises.

“[A]n independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.” (Internal quotation marks omitted.) Darling v. Burrone Bros., Inc., 162 Conn. 187, 195, 292 A.2d 912 (1972). “The general rule is that where the owner of premises employs an independent contractor to perform work on them, the contractor, and not the owner, is liable for any losses resulting from negligence in the performance of the work. . . . The basic premise is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor.” (Citations omitted.) Id., 196. “The explanation for [this rule] most commonly given is that, since the [owner] has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor’s own enterprise, and [the contractor], rather than the [owner], is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it. 2 Restatement (Second), [Torts] § 409, comment (b) [p. 370 (1965)].” (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 262 Conn. 372, 379-80, 815 A.2d 82 (2003).

Exceptions to that rule arise when “the employer retains control of the premises or supervises the work of the contractor, or where the work to be performed by the contractor is inherently dangerous, or where the employer has a nondelegable duty to take safety precautions imposed by statute or regulation . . . .” Ray v. Schneider, 16 Conn. App. 660, 664, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988).

In the present case, Hall submitted an affidavit in support of his motion for summary judgment in which he stated, inter alia, that (1) the plaintiff controlled the means and methods of his own work, (2) Hall did not represent himself to the plaintiff as a “masonry supervisor,” (3) Hall did not own or erect the scaffolding, (4) Hall was not present when the plaintiff erected the scaffolding and (5) the plaintiff did not ask Hall to provide scaffolding, a fall arrest system or guardrails. Those facts are undisputed and establish that at the time of the incident, the plaintiff was acting as an independent contractor and that Hall did not exercise control over the offending area where the plaintiff was injured, namely, the scaffolding.

The plaintiff did not file a counteraffidavit or any other supporting documents to contradict Hall’s affidavit. “The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.” (Internal quotation marks omitted.) Pion v. Southern New England Telephone Co., supra, 44 Conn. App. 663. “Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue.” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969). Although the plaintiff claims that Hall retained control over the construction site, the mere fact that Hall observed the progress of the work is not sufficient to establish control. The owner may exercise a limited degree of control or give the contractor instructions on minor details without destroying the independent character of the contractor. See Darling v. Burrone Bros., Inc., supra, 162 Conn. 193-95; Welz v. Manzillo, 113 Conn. 674, 679-80,155 A. 841 (1931); 2 Restatement (Second), supra, § 414, comment (c), p. 388.

Moreover, it is undisputed that the plaintiff fell off the scaffolding and was injured because he himself constructed it incorrectly. Although the exceptions to the general rule of nonliability of an owner of premises for the torts of its independent contractor inure to the benefit of innocent third parties, those exceptions do not inure to the benefit of an independent contractor, such as the plaintiff, who is injured primarily because of his negligence or the negligence of those he employed. See, e.g., Pelletier v. Sordoni/Skanska Construction Co., supra, 262 Conn. 380-84; Ray v. Schneider, supra, 16 Conn. App. 663-65; 2 Restatement (Second), supra, §§ 409, 414 and 422.

We conclude that the court properly granted Hall’s motion for summary judgment because Hall did not owe a legal duty to the plaintiff at the time of the alleged injury, and, therefore, Hall was entitled to judgment as a matter of law.

II

The plaintiff also claims that the court improperly determined, as a matter of law, that Thomas did not owe a legal duty to the plaintiff because a genuine issue of material fact existed as to whether Thomas controlled the premises on which the plaintiff was injured. Specifically, he argues that Thomas was the general contractor at the work site and owed the plaintiff a legal duty to ensure the safety of the work site, including the scaffolding, because Thomas controlled the premises.

The legal responsibility for maintaining premises in a reasonably safe condition depends on who has possession and control of those premises. LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). “The word control has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee.” (Internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn. App. 427, 432, 755 A.2d 219 (2000). “Where the evidence is such that the minds of fair and reasonable persons could reach but one conclusion as to the identity of the person exercising control, the question is one for the court . . . .” Darling v. Burrone Bros., Inc., supra, 162 Conn. 192.

In the present case, Thomas submitted an affidavit in support of his motion for summary judgment in which he stated that he was not the general contractor at the work site and had no control over the plaintiff or any of the other contractors or their work. The plaintiff neither filed a counteraffidavit nor any other supporting documents to contradict Thomas’ affidavit. Although it is undisputed that the scaffolding belonged to Thomas, it also is undisputed that the plaintiff and his employee erected the scaffolding and utilized it while Thomas was not present on the premises. Because the plaintiff did not provide any evidence to counter Thomas’ affidavit in which he stated that he did not possess and control the premises or the scaffolding at the time of the incident, the plaintiffs claim must fail. See Fernandez v. Estate of Ayers, 56 Conn. App. 332, 335-36, 742 A.2d 836 (2000).

We conclude that the court properly granted Thomas’ motion for summary judgment because Thomas did not owe a legal duty to the plaintiff at the time of his alleged injury, and, therefore, Thomas was entitled to judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       Thomas gave the plaintiff permission to use his scaffolding.

       We note that the plaintiffs status as an independent contractor is reinforced by the plaintiffs answers to interrogatories in which he claims that he was self-employed at the time of the incident.

       Thomas’ affidavit states in relevant part:
      “1.1 introduced the plaintiff to the defendant, Robert Hall.
      “2.1 was not a general contractor for any work performed [at the worksite], "3.1 did not hire [the] plaintiff or contract with [the] plaintiff to perform work on the job.
      “4. I did not hire any subcontractors for work on the job.
      “5.1 did not determine [the] plaintiffs wage or salary or pay [the] plaintiff for his [work.]
      “6. I did not coordinate the work of any contractors.
      “7. I did not oversee or supervise any of [the] plaintiffs work.
      “8.1 did not supply the masonry materials [to the plaintiff].
      “9.1 did not have the authority to accept or reject [the] plaintiffs work.
      “10. The plaintiff erected the scaffolding on a weekend while to my knowledge no one else was present.
      “11. Fall arrest systems can be purchased independently and need not be purchased with scaffolding.
      “12.1 was not aware that [the] plaintiff was not utilizing a fall arrest system.
      “13. [The] plaintiff did not request a fall arrest system [from Thomas].”

       We agree with the court’s finding that “the fact that Thomas may have given the plaintiff permission to use the scaffolding [was] not a material fact of consequence to this motion.”


author: SCHALLER, J.

text:
    JANE DOE v. BOARD OF EDUCATION OF THE CITY OF NEW HAVEN
    (AC 22689)
    Foti, Schaller and Mihalakos, Js.
    Argued December 4, 2002
    officially released April 15, 2003

      Norman A. Pattis, for the appellant (plaintiff).

      Audrey C. Kramer, assistant corporation counsel, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Jane Doe, appeals from the judgment of the trial court rendered subsequent to its granting of the motion to strike filed by the defendant, the board of education of the city of New Haven. On appeal, the plaintiff claims that the court improperly granted the motion to strike, which alleged that the action is barred by the doctrine of governmental immunity. We affirm the judgment of the trial court.

The plaintiff filed a two count substitute complaint on May 11, 2001. In count one of the substitute complaint, the plaintiff alleges the following facts. On April 15, 1998, the plaintiff was a twelve year old student at a school operated by the defendant. On that day, the plaintiff traveled to her home room to get her lunch money. While in the room, she was accosted and sexually assaulted by three male students. None of the students involved, including the plaintiff, had a pass to be present in the halls or in that room. The plaintiff managed to fight her way free of her attackers. School officials later found the plaintiff wandering the hallways without her shoes on.

The plaintiff alleges that the defendant failed to provide a safe and secure educational environment for students. Specifically, the plaintiff alleges that the defendant did not provide an adequate number of hall monitors, did not implement a system for ensuring that students were not roaming the halls unsupervised and did not take steps to provide for adequate supervision of students known to have disciplinary problems or to secure vacant rooms so that they could not be used for unlawful purposes. She also asserts that General Statutes § 52-557n (a) establishes a statutory basis for her claim.

The defendant filed a motion to strike the substitute complaint in its entirety. Specifically, the defendant sought to strike the first count of the substitute complaint on the ground that the plaintiff had alleged discretionary acts that are subject to governmental immunity. The court concluded that the facts alleged in the complaint established that the defendant was entitled to governmental immunity and, accordingly, granted the motion to strike. The defendant subsequently filed a motion for judgment on the stricken complaint, which the court granted on November 5, 2001. The plaintiff now appeals from that judgment as to the first count.

On appeal, the plaintiff claims that the court improperly granted the motion to strike as to count one of the substitute complaint. Specifically, the plaintiff argues that governmental immunity is inapplicable because the facts alleged in the complaint are sufficient to establish that it was apparent to the defendant that its failure to act would be likely to subject students to imminent harm. We are not persuaded.

We begin our analysis by setting forth the applicable standard of review. “A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 629, 804 A.2d 180 (2002). “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).

“While [a] municipality itself was generally immune from liability for its tortious acts at common law . . . its employees faced the same personal tort liability as private individuals. ... [A] municipal employee [however,] has a qualified immunity in the performance of a governmental duty, but he may be hable if he misperforms a ministerial act, as opposed to a discretionary act. . . .

“The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.” (Citations omitted; internal quotation marks omitted.) Colon v. Board of Education, 60 Conn. App. 178, 180-81, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000).

The plaintiff does not dispute that the duty allegedly breached in the present case, namely, the duty of the defendant to supervise students, is a discretionary, governmental duty. She claims, however, that this case falls under the first enumerated exception to governmental immunity because the facts alleged in the complaint are sufficient to establish that it was apparent to the defendant that its failure to supervise students adequately would be likely to subject them to imminent harm. Resolution of that claim requires us to review the contours of the exception as defined by the applicable case law.

Our Supreme Court has construed the identifiable person-imminent harm exception “to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims. . . . Moreover, [the court has] established specifically that schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims.” (Citation omitted; internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 108-109, 708 A.2d 937 (1998). We therefore must determine whether the facts alleged are sufficient to establish that it was apparent to the defendant that its failure to provide adequate supervision would be likely to subject schoolchildren to imminent harm. See id., 109; Colon v. Board of Education, supra, 60 Conn. App. 185.

The identifiable person-imminent harm exception to governmental immunity was recognized in Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979). In Sestito, the defendant police officer was on duty when he saw a group of men, including the plaintiffs decedent, arguing, scuffling and throwing punches in a parking lot adjacent to a bar. Id., 523. After hearing gunshots, he attempted to call the police station for instructions, but did not intervene in the altercation, although he could have driven unimpeded into the parking lot. Id. Instead, he waited until the plaintiffs decedent was shot, at which time he drove into the parking lot and arrested the assailant. Id. The trial court directed a verdict in favor of the defendant on the basis of governmental immunity. Id., 522. On appeal, the Supreme Court reversed the judgment. Id., 529. Explaining its holding in Sestito in a subsequent case, the court stated: “Resolving conflicting testimony on the issue of imminence of harm in favor of the plaintiff, we held that the case should then have been submitted to the jury.” Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982).

Nevertheless, “[t]he [identifiable person-imminent harm] exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state.” (Internal quotation marks omitted.) Tryon v. North Branford, 58 Conn. App. 702, 710, 755 A.2d 317 (2000). Our Supreme Court emphasized the limited nature of the concept of imminent harm in Shore v. Stonington, supra, 187 Conn. 147, and in Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989). In Shore, the undisputed facts revealed that a police officer stopped an intoxicated driver for speeding and crossing the center line of the highway. Shore v. Stonington, supra, 150-51. The officer gave the driver a warning and allowed him to proceed on his way. Id., 150. Later that night, the driver struck and killed another motorist. Id., 151. The Supreme Court affirmed the summary judgment in favor of the defendant municipality because, as a matter of law, the officer had no reason to know that his failure to arrest the driver would subject an identifiable person to imminent harm. Id., 156-57. As the court stated: “The adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society.” Id., 157.

In Evon v. Andrews, supra, 211 Conn. 502, the plaintiffs’ decedents were killed by a fire in the apartment building in which they resided. The plaintiffs brought an action against the municipality and its agents for failing to enforce various statutes, regulations and codes governing the maintenance of rental dwellings. Id. The trial court granted the defendants’ motion to strike the complaint and rendered judgment in favor of the defendants. Id., 502-504. Affirming the judgment, the Supreme Court addressed the applicability of the identifiable person-imminent harm exception, stating: “The gravamen of the plaintiffs’ allegations is that the defendants had not done enough to prevent the occurrence of a fire. The risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future. . . . [T]he plaintiffs’ decedents were not subject to ‘imminent harm.’ This is clearly not the situation in which a police officer stood by and watched a public brawl that resulted in a person being shot. See Sestito v. Groton, supra [178 Conn. 523]. The present allegations do not even rise to the level of the imminence we rejected in Shore v. Stonington, supra [187 Conn. 147], in which a police officer permitted a drunk driver to continue on his way, resulting in the death of the plaintiffs decedent. In the present instance, the fire could have occurred at any future time or not at all. We cannot accept the proposition that the plaintiffs’ decedents in this case were readily identifiable victims subject to imminent harm.” Evon v. Andrews, supra, 507-508.

More recently, our courts have applied the identifiable person-imminent harm exception in a series of cases involving injuries to schoolchildren. See Purzycki v. Fairfield, supra, 244 Conn. 101; Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994); Colon v. Board of Education, supra, 60 Conn. App. 178. In each of those cases, the identifiable person-imminent harm exception was applicable because the dangerous condition was sufficiently limited both in duration and in geography to make it apparent to the defendants that schoolchildren were subject to imminent harm. In Bums, the plaintiff schoolchild slipped and fell on an icy courtyard in a main accessway of the school campus. Burns v. Board of Education, supra, 642. The court stated: “Unlike the incident in Evon v. Andrews, supra, 211 Conn. 501, this accident could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in this particularly ‘treacherous’ area of the campus.” Burns v. Board of Education, supra, 650.

In Purzycki, the plaintiff schoolchild was injured when another student tripped him in an unmonitored school hallway. Purzycki v. Fairfield, supra, 244 Conn. 104. The court determined that the case was “more analogous to Bums than ... to Evon. . . . [T]he present case involves a limited time period and limited geographical area, namely, the one-half hour interval when second grade students were dismissed from the lunchroom to traverse an unsupervised hallway on their way to recess. Also, it involves a temporary condition, in that the principal testified that every other aspect of the lunch period involved supervision.” (Citation omitted.) Id., 109-10. Accordingly, the Purzycki court held that the facts were sufficient to bring the case within the identifiable person-imminent harm exception to governmental immunity. Id., 110.

In the present case, by contrast, the plaintiffs have not alleged facts showing that the danger to students was limited in duration and geography. As previously stated, the plaintiff alleges that the defendant was negligent in failing to provide an adequate number of hall monitors, in failing to implement a system for ensuring that students were not roaming the halls unsupervised, and in neglecting to provide for adequate supervision of students known to have disciplinary problems or to secure vacant rooms so that they could not be used for unlawful purposes. She alleges that the defendant’s failure to act created a situation in which she was able to be in an unsupervised vacant classroom with other students, thus creating the opportunity for her to be assaulted. Unlike the factual situations in Bums and Purzycki, the alleged danger in the present case was not limited to a particular area of the school and a particular time period. Although the danger in Bums was confined to the duration of an icy condition in a particularly treacherous location on campus, and the danger in Purzycki was confined to a particular hallway in which the defendants knew that students were permitted to travel unmonitored for a one-half horn" period each day, the harm in the present case potentially could have occurred any time that students traveled without permission to any unsupervised areas of the school. Under the facts alleged, therefore, it would not have been apparent to the defendant that its discretionary policy decisions subjected students to imminent harm.

Because the facts alleged by the plaintiff are insufficient to establish that it was apparent to the defendant that its failure to act would be likely to subject students to imminent harm, the defendant is immune from liability for its discretionary acts. Consequently, the court properly granted the defendant’s motion to strike.

The judgment is affirmed.

In this opinion the other judges concurred.

       Jane Doe is a pseudonym given to the minor plaintiff to protect her privacy.

       On appeal, the plaintiff does not challenge the judgment on the second count of the substitute complaint.

       The plaintiff also alleges that “[u]pon information and belief,” one of her attackers had previously touched other students inappropriately. The plaintiff does not allege, however, that the defendant or its agents had been put on notice that any such conduct had occurred.

       General Statutes § 52-557n (a) provides in relevant part: “(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties .... (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by ... (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”

       The plaintiff did not file a memorandum of law in opposition to the defendant’s motion to strike the substitute complaint. As the court noted in its memorandum of decision, Practice Book § 155, now § 10-42, previously provided that a party who failed to file such a memorandum “shall be deemed by the court to have consented to the granting of the motion.” (Internal quotation marks omitted.) Hughes v. Bemer, 200 Conn. 400, 402, 510 A.2d 992 (1986), quoting Practice Book § 155, now § 10-42. That language was subsequently removed from Practice Book § 10-42. Because we affirm the judgment on the merits of the motion to strike and because the plaintiff’s failure to file a memorandum of law has not been raised as an alternative ground for affirmance, we have no occasion to consider whether such failure remains a sufficient basis for granting a motion to strike.

       We are mindful of our Supreme Court’s statement that “governmental immunity must be raised as a special defense in the defendant’s pleadings. . . . Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50].” (Citation omitted; internal quotation marks omitted.) Westport Taxi Service, Inc. v. Westport Transit District, 235 Corn. 1, 24, 664 A.2d 719 (1995). Thus, a motion to strike ordinarily is an improper method for raising a claim of governmental immunity. We have recognized, however, that where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike. Brown v. Branford, 12 Conn. App. 106, 111 n.3, 529 A.2d 743 (1987); Trzaska v. Hartford, 12 Conn. Sup. 301, 302 (1943).
      In the present case, the plaintiff does not challenge the court’s conclusion that the duty to supervise schoolchildren is a discretionary governmental function. The plaintiff claims only that there is an applicable exception to governmental immunity. We recognize that a plaintiff ordinarily should have the opportunity to plead facts, by way of a reply to the answer, establishing matters in avoidance of a special defense. See Practice Book § 10-57. In the present case, the plaintiff has not objected to the defendant’s use of a motion to strike for adjudication of the applicability of the exception to governmental immunity. The plaintiff also has not argued that she needs an opportunity to plead additional facts. On the contrary, she maintains that the facts set forth in the complaint are sufficient to establish the applicability of the identifiable person-imminent harm exception. Under those circumstances, we permit deviation from the ordinary procedure. See Forbes v. Ballaro, 31 Conn. App. 235, 239-40, 624 A.2d 389 (1993).

       At oral argument, the plaintiff suggested that the alleged danger was limited in duration because it existed only during school hours. We reject that argument because it is inconsistent with the opinions in Bums and Purzycki. As previously stated, the court in Bums relied on the fact that the danger was limited to the duration of the icy condition, and the court in Purzycki relied on the fact that the danger was limited to a single half-hour period each day. Reliance on those facts would have been unnecessary if, as the plaintiff argues, the confinement of the dangerous condition to school hours were a sufficient durational limitation to bring the cases within the identifiable person-imminent harm exception.

       The plaintiff also argues that the court should have denied the motion to strike because the defendant is “liable for the tortious or criminal acts of others under General Statutes § 52-557n.” We do not consider that argument because it relies on a theory of vicarious liability not pleaded in the operative complaint. In that respect, the present case is distinguishable from Colon v. Board of Education, supra, 60 Conn. App. 178, in which the defendant board of education was sued under a theory of vicarious liability for injuries suffered when a teacher struck the plaintiff schoolchild in the face with a door. Id., 179, 188 n.4. We concluded that the identifiable person-imminent harm exception applied and that the court therefore improperly rendered summary judgment for the defendant on the ground of governmental immunity. In reaching that conclusion, we emphasized that the circumstances would have made it apparent to the teacher that her failure to exercise due care would subject students to imminent harm because injury “could happen only when students are in the hallway in a dangerous spot.” Id., 187.