author: ALVORD, J.

text:
    RICHARD BUEHLER v. LILACH BUEHLER
    (AC 33356)
    Beach, Alvord and Espinosa, Js.

      Argued May 31
    officially released September 11, 2012

      Campbell D. Barrett, with whom were Jon T. Kukucka, and, on the brief, C. Michael Budlong, for the appellant (plaintiff).

      Charles W. Fleischmann, for the appellee (defendant).
   Opinion

ALVORD, J.

In this domestic relations matter transferred to the Regional Family Trial Docket at Middle-town from the Stamford-Norwalk judicial district, the plaintiff, Richard Buehler, appeals from several post-judgment orders of the trial court rendered in favor of the defendant, Lilach Buehler. Specifically, he claims that the trial court improperly (1) acted without subject matter jurisdiction by entering a postjudgment order awarding the defendant the rental income generated by the former marital residence, (2) found him in contempt of court after he ceased making mortgage payments following the court’s decision to allow the parties to place the marital residence on the rental market, and (3) denied his motion to modify and to order that the former marital residence immediately be placed back on the market. We affirm the decision of the trial court denying the plaintiffs motion to modify, however, we agree with the plaintiff that the trial court acted without subject matter jurisdiction by improperly assigning property postjudgment when it awarded the defendant all of the rental income generated by the marital residence. Therefore, we determine that the court improperly found the plaintiff in contempt with respect to his failure to make monthly mortgage payments because the mortgage was being paid out of the rental income generated by the marital residence. Accordingly, we reverse in part the judgment of the trial court, vacate the arrearage finding of April 7, 2011, and remand the case for a new determination of the arrearage consistent with this opinion.

The following facts, as stated in this court’s decision affirming the judgment of dissolution rendered by the trial court; Buehler v. Buehler, 117 Conn. App. 304, 306-308, 978 A.2d 1141 (2009); are relevant to our disposition of the plaintiffs current, postjudgment appeal. “The parties were married on September 7, 1997, and have three minor children. ... On November 14, 2006, the plaintiff initiated dissolution of marriage proceedings by service of summons and complaint on the defendant. On June 4, 2008, the court, Gordon, J., rendered judgment dissolving the parties’ marriage on the ground that it had broken down irretrievably and that reconciliation was not a possibility. After a lengthy discussion of its factual findings, the court issued the following orders: ‘[T]he defendant wife . . . shall have sole legal and physical custody of the minor children. She shall have sole decision-making power regarding all matters affecting the health, education and welfare of the children, which is to be read broadly .... All parenting time between [the plaintiff] and the children shall be supervised. . . .

“ ‘[The defendant] is awarded $400 per week as child support. . . . [The defendant] is awarded alimony in the amount of $25,000 per year .... [The plaintiff] shall pay approximately $196, or one half, of the COBRA cost for [the defendant’s] health insurance. . . . Until the [marital home] is sold, each of the parties shall be responsible for one half of the mortgage payment, which is to be paid promptly on the first of each month. . . . The court retains jurisdiction regarding the sale of the house. . . .

“ ‘The marital home . . . currently on the market, shall continue on the market. The coordination of the sale, the broker, etc., shall be [the defendant’s] responsibility. Each of the parties is ordered to cooperate regarding the sale of the property and the asking price for the property and to cooperate with the broker. If there is any dispute, [the defendant] can select the broker and set the price after consultation with [the plaintiff]. Until the property is sold, [the defendant] shall have sole possession and exclusive use of the property. Upon the closing, there will be deductions for all of the normal and customary closing costs .... Then, it shall be divided as follows from the joint proceeds: to [the defendant], the first $95,000 to repay the loan which saved the house. Then, to [the defendant], $12,000 to pay off the balance on her car. Then, to [the defendant] an amount equal to the credit card debt which she incurred from the time of the separation to February 27, 2007. Then, the fees for the guardian ad litem and the attorney for the guardian ad litem. These amounts are to be paid off of the top of the proceeds. Then the balance is to be divided between the parties equally. But from [the plaintiffs] side, shall first be subtracted $66,000 to be paid to [the defendant], which represents her share in the funds which he appropriated out of their accounts before filing this action.’ ” (Emphasis in original.) Id.

On June 13, 2008, the defendant filed a motion for contempt arguing that the plaintiff failed to make timely mortgage, alimony and support payments in accordance with the June 4, 2008 order of the court. The court held a hearing on June 24, 2008, and found the plaintiff in wilful contempt of court. The court also passed title in the marital home to the defendant to preserve the asset and to effectuate its sale. Id., 309-10. The plaintiff appealed the court’s orders to this court, however, this court determined that the plaintiff did not appeal timely the issues relating to the sale of the home and dismissed the appeal with regard to those issues. Id., 310-11.

On August 27, 2008, the defendant filed a postjudgment motion for modification with respect to renting the marital residence. In her motion for modification, the defendant alleged the following: “The defendant represents that there has been a significant change in circumstances in that there have been no offers made on the home, the plaintiff has failed and refused to pay his share of the monthly mortgage payments for the months of July and August, 2008, and the September mortgage payment is soon approaching, and that the defendant’s financial situation is deteriorating in that she can no longer afford to pay all of the aforementioned mortgage payments, and will face a foreclosure action once again.

“Wherefore, the defendant moves that the aforementioned order be modified so that the former marital residence may be placed on the market for rent, so that the anticipated monthly rent will be sufficient to pay the monthly mortgage payments, which will alleviate the financial stress and prevent the marital residence from being placed once again into foreclosure, dissipating all of the assets of the defendant.” The court heard the parties on the motion for modification on September 23, 2008, and, at the hearing’s conclusion, the court stated: “The motion for modification regarding the sale is granted.”

On May 3, 2010, the plaintiff filed a motion for modification requesting “[tjhatthe court order [the] defendant to pay [the] plaintiff his equitable one half share of the rental income, retroactive to May 25, 2009, and any deposits or other payments received related to the rental of the marital residence less [the] plaintiffs one half portion of mortgage payments . . . [and] [t]hat the defendant be ordered to place the marital residence back on the market immediately.”

On June 11, 2010, the defendant filed a motion for contempt alleging, inter alia, that the plaintiff failed to: pay one half of the defendant’s expense for COBRA, set up a direct deposit so that payments for the benefit of the children could be made electronically, pay one half of the children’s unreimbursed medical expenses, pay one half of the expenses of the children’s extracurricular activities, provide a copy of his 2006 tax return to the defendant and to pay to the defendant one half of the 2006 tax refund, maintain life insurance with the defendant as the trustee beneficiary and pay in full his one half of the outstanding mortgage payments and taxes.

A hearing on these motions was held ten months later on April 6 and 7, 2011. In a ruling from the bench, the court granted the defendant’s motion for contempt with regard to the COBRA expenses, the children’s extracurricular activities, the direct deposit account and the mortgage payments, finding an arrearage in the amount of $69,172 plus judgment interest. The court ordered that the plaintiff pay an additional $1660 per month on the arrearage subject to wage withholding. Additionally, the court awarded the defendant $1000 in sanctions due to the plaintiffs failure to appear at a deposition. The court also awarded the defendant $32,197 in attorney’s fees, which would “come off [the plaintiffs] share that is due and payable at the time of the closing [after the sale of the marital residence].” The court denied the plaintiffs May 3, 2010 motion for modification, stating: “When you come into this court and tell me that you are paying one half of the mortgages on the property that’s rented [and] stand ready to contribute, then and only then should you be entitled to share in anything. But certainly, given the fact that you have wilfully not paid it, without any permission from the court, you don’t stand here with (a) clean hands or (b) on equitable grounds, because as I said before, the only reason anybody’s in this pickle is because of your wilful contempt, and I’m not going to allow you to profit by it.” This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first contends that the court improperly acted without subject matter jurisdiction by entering a postjudgment order on April 7, 2011, awarding the defendant the rental income generated by the former marital residence. We agree.

Our Supreme Court recently has restated the well settled rule that “[t]he subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.” (Internal quotation marks omitted.) Keller v. Beckenstein, 305 Conn. 523, 531-32, 46 A.3d 102 (2012). “[B]ecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Lynch v. Lynch, 135 Conn. App. 40, 55, 43 A.3d 667 (2012).

“The court’s judgment in an action for dissolution of a marriage is final and binding upon the parties, where no appeal is taken therefrom, unless and to the extent that statutes, the common law or rules of court permit the setting aside or modification of that judgment. . . . General Statutes § 46b-86 (a) provides in relevant part: Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court .... This section shall not apply to [property] assignments under section 46b-81 .... The statute, therefore, deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party under General Statutes § 46b-81. . . . Although the court has jurisdiction to assign property in connection with § 46b-81, that assignment is not modifiable.” (Citations omitted; emphasis added; internal quotation marks omitted.) Santoro v. Santoro, 70 Conn. App. 212, 216-17, 797 A.2d 592 (2002).

At the time of the judgment of dissolution, the court ordered that the marital residence be sold. By awarding the defendant all of the rental income from the marital residence, on April 7, 2011, the court made an improper postjudgment property assignment in violation of § 46b-86 (a). The defendant argues that, even if there was an improper postjudgment property assignment, the plaintiff did not timely appeal the court’s determination regarding allocation of the rental income. She contends that the court “intended all along that the defendant receive the income” and, therefore, we should consider the date of the court’s ruling allowing the defendant to keep all of the rental income to be September 23, 2008. The defendant draws our attention to the court’s statement at the April 7, 2011 hearing that it had made such a ruling on September 23, 2008.

After careful review of the record, we can find no transcript or memorandum supporting the contention that the court made any such ruling on September 23, 2008. On September 23, 2008, the court simply stated: “The motion for modification regarding the sale is granted.” We therefore consider April 7, 2011, to be the date of the court’s ruling on allocation of the rental income, making the plaintiffs appeal of this issue timely. Accordingly, we reach the merits of this claim and determine that the court acted without authority in assigning the rental income wholly to the defendant and vacate that order. We remand for a hearing regarding the amount of net rental income owed to the plaintiff, taking into account the agreed upon payment of the mortgage, costs, taxes and maintenance of the marital residence, in fight of the dissolution orders regarding this property.

II

The plaintiff next argues that the court improperly found him in contempt of court after he ceased making mortgage payments to the defendant. Specifically, he argues that the court’s decision allowing the defendant to rent the marital property was predicated on the use of the rental income to pay the mortgage. Thus, he argues that the court’s decision, to allow the rental of the marital residence, negated the order that he pay one half of the mortgage. To the extent that the court still required him to pay one half of the monthly mortgage, the plaintiff argues that the court’s order permitting rental of the marital residence was ambiguous and that, therefore, the court improperly held him in contempt for failing to make those payments. We agree with the plaintiff that the court’s order was ambiguous.

“[0]ur analysis of a judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.

“Civil contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts. . . . Whether an order is sufficiently clear and unambiguous is a necessary prerequisite for a finding of contempt because [t]he contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court. . . . One cannot be placed in contempt for failure to read the court’s mind. . . . This is a long-standing tenet of the law of contempt. ... It is also logically sound that a person must not be found in contempt of a court order when ambiguity either renders compliance with the order impossible, because it is not clear enough to put a reasonable person on notice of what is required for compliance, or makes the order susceptible to a court’s arbitrary interpretation of whether a party is in compliance with the order.” (Citations omitted; emphasis in original; internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 693-95, 935 A.2d 1021 (2007).

We first must examine the court’s decision on the modification motion. “The interpretation of a trial court’s judgment presents a question of law over which our review is plenary. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. . . . Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The judgment should admit of a consistent construction as a whole.” (Citation omitted; internal quotation marks omitted.) Sosin v. Sosin, 300 Conn. 205, 217-18, 14 A.3d 307 (2011).

The defendant specifically represented to the court that she would use the rental moneys to pay the mortgage on the marital residence in her motion to modify. Further, she testified: “I’ve been looking to possibly try and rent the house out in order to be able to cover the mortgage payments and I’ve spoken with several brokers who believe that this is a very good idea because the rental market is actually a whole lot better than the sale market right now.” It was on this basis that the plaintiff consented to the defendant’s placing of the marital residence on the rental market at the September 23, 2008 hearing. He further testified that it was his understanding that the net rental income that he collected could be credited against his then owing arrearage.

In granting the motion, the court said: “The motion for modification regarding the sale is granted.” The court never stated that it still required the plaintiff to pay his one half of the monthly mortgage despite the expectation that the entirety of the parties’ mortgage obligation would be satisfied by rental income. Accordingly, the court improperly held the plaintiff in contempt on the grounds that he failed to pay his portion of the mortgage. We therefore vacate the current arrearage order and remand the case to the trial court for a hearing to determine the appropriate arrearage amount and the appropriate amount of attorney’s fees owed by the plaintiff to the defendant with respect to the remaining contempt findings.

III

Finally, the plaintiff claims that the trial court improperly failed to effectuate its original dissolution judgment by denying the plaintiffs motion to modify with respect to his prayer for relief that the court order the marital residence to be sold immediately. We disagree.

We first note that the propriety of the court’s original decision to place the marital residence on the rental market is not before us because the plaintiff did not timely appeal the September 23, 2008 granting of the defendant’s motion to modify. We therefore review the court’s decision denying the plaintiffs motion to modify under the abuse of discretion standard. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... 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. . . . Therefore, to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Internal quotation marks omitted.) Stancuna v. Stancuna, 135 Conn. App. 349, 353, 41 A.3d 1156 (2012).

WMle this court appreciates that three years is a lengthy period of time for the home to be rented under these postjudgment circumstances, “[w]e have recognized that it is within the equitable powers of the trial court to fashion whatever orders [are] required to protect the integrity of [its original] judgment.” (Internal quotation marks omitted.) Roberts v. Roberts, 32 Conn. App. 465, 471, 629 A.2d 1160 (1993). Prior to the court’s granting of the defendant’s August 27, 2008 motion to modify, which allowed the placement of the marital residence on the rental market, the house was at risk of foreclosure due to the fact that the plaintiff failed to pay his portion of the mortgage for the two months prior. In order to preserve the equity in the house, the court allowed the marital residence to be rented so that the mortgage would be paid each month.

We cannot say that the court abused its discretion by denying the plaintiffs May 3, 2010 motion to modify, which requested that the marital residence immediately be placed for sale at that time. The court determined that the only reason the mortgage was being paid was because the house was being rented. The plaintiff presented no evidence to the court that the parties would be able to pay the mortgage without the rental income generated by the marital residence at the time he made his motion to modify. The plaintiff also failed to present evidence that the house simultaneously could be rented and relisted for sale. Finally, the plaintiff provided the court with no information regarding any improvement, since 2008, in the applicable residential sales market. Accordingly, we cannot conclude that the court improperly denied the plaintiffs motion to modify.

The judgment is reversed as to the award of rental income to the defendant from the marital residence; the judgment of contempt is reversed in part as to the plaintiffs failure to pay one half of the mortgage, the current arrearage is vacated, and the case is remanded with direction to determine the proper amount of arrearage and attorney’s fees consistent with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiff also argues that the court abused its discretion by entering remedial orders that consume approximately 95 percent of his gross income. In light of our decision to vacate the arrearage award and remand for recalculation, we need not address this claim.

       There is a mortgage and an equity line of credit on the marital residence. For clarity and convenience, we refer to the mortgage and equity line of credit as the mortgage throughout this opinion.

       See the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. §§ 1161 through 1168.

       The court also heard argument from the parties on two motions for contempt filed by the plaintiff.

       The following colloquy took place on April 7, 2011:
      “[The Plaintiff]: [W]ith all due respect, Your Honor, nobody gave the defendant permission to . . . collect all the rent.
      “The Court: I did. You asked, I did. At the time of the hearing, Mr. Buehler, you made the same request, shouldn’t we split it, and I said no.
      “[The Plaintiff]: I don’t recall that.”

       The following colloquy took place between the plaintiff and his appointed counsel at the September 23, 2008 hearing:
      “[The Plaintiffs Counsel]: Is there a manner in which you could pay this amount to your ex-wife?
      “[The Plaintiff]: Yes.
      “[The Plaintiffs Counsel]: And how would you suggest to pay that?
      “[The Plaintiff]: I would suggest, if need be, it’s my understanding that there is a renter who is available to rent the marital residence and from what I understand, through the testimony of Mrs. Buehler, that the rent received would be somewhere in the neighborhood of $6800. That is significantly more than what’s owed each month on the mortgage payment, therefore leaving a surplus somewhere in the neighborhood of $3000 and I would, I had suggested applying my portion of that surplus towards the arrearage.”
      The plaintiffs counsel also argued later to the court: “I think the rental could be a bonanza for both parties . . .

       We note that our determination, that the court improperly found the plaintiff in contempt regarding his nonpayment of the mortgage, has no bearing on the court’s findings of contempt regarding any other matters.


source: Caselaw Access Project

license: Public Domain

text:
    LOCAL 84, THEATRICAL STAGE EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS AND ALLIED CRAFTS OF THE UNITED STATES, ITS TERRITORIES AND CANADA, AFL-CIO, CLC, ET AL. v. ROBERT FRANCIS ET AL.
    (AC 33291)
    Robinson, Alvord and Mihalakos, Js.

      Argued May 30
    officially released September 11, 2012

      Richard J. Padykula, with whom was Leon M. Rosen-blatt, for the appellants (plaintiffs).

      Michael J. Walsh, for the appellees (defendants).
   Opinion

ALVORD, J.

This action concerns the merger of two union locals within the International Alliance of Theatrical Stage Employees (International). The plaintiff union, Local 84, Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, AFL-CIO, CLC (Local 84), and the plaintiffs Stage Hands Referral Service, LLC, and Charles Buckland and Stella Cerullo, officers of Local 84, appeal from the judgment of the trial court in favor of the defendants Robert Francis, Sheila Harrington-Hughes and Michael Hughes, former officers of Local 538. On appeal, the plaintiffs claim that the trial court improperly (1) determined that they did not have standing to bring a claim for breach of fiduciary duty against Francis, Harrington-Hughes and Hughes for certain actions taken by them during the effectuation of the merger between Locals 84 and 538, (2) determined that Francis and Hughes were not unjustly enriched (3) allowed expert testimony by the vice president of the International, Anthony DePaulo, and (4) determined that Hughes and Francis did not violate the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

The following facts, as found by the court, are relevant to our disposition of this appeal. Both Local 84 and Local 538 represented stage hands who sought employment at various performing arts venues throughout the state. A dispute arose in 2005 regarding each local’s jurisdiction at the Mohegan Sun Casino. Subsequent to that dispute, the International decided to merge Local 538 into Local 84, with Local 84 as the surviving local. Although Local 538 objected to the merger in writing on June 19, 2006, DePaulo informed the board members of Local 538 that the merger already had been approved and that he had been assigned to effectuate it. In a letter dated August 8, 2006, DePaulo stated that certain measures had to be taken in order to finalize the merger, including forwarding all of Local 538’s books and records to the International, transferring Local 538’s assets to Local 84, and transferring members of Local 538 into Local 84.

During the summer of 2006, and prior to the merger, Francis, Hughes and Harrmgton-Hughes continued to preside over meetings of Local 538 and to act on behalf of the local and its members. In August, 2006, Francis, Hughes and Harrmgton-Hughes, as officers of Local 538, voted to make four disbursements from the treasury of Local 538 (four payments). The first payment was a donation of $2000 to the Veterans of Foreign Wars post to thank the post for allowing Local 538 to use its facilities for meetings without cost for the previous ten years. The second payment was a donation of $750 to a sister local in Dallas for its 100th anniversary commemorative booklet. The third payment was a donation of $1000 to a sister local’s memorial fund. Finally, Local 538 disbursed $200 to each of its members as vacation pay in lieu of the annual summer picnic.

On August 30, 2006, Francis, Hughes and Harrington-Hughes met with DePaulo to provide him with all of the materials required to finalize the merger, including a check in the amount of $8667.04, representing the remaining funds in the treasury of Local 638. At the time of the merger, Francis and Hughes dissolved a limited liability company, of which they were members, called Stage Production Services, LLC (Stage Production). Stage Production’s assets, consisting of $16,000, were transferred to a new limited liability company called Crew 538, LLC (Crew 538), of which Francis and Hughes were the only members.

On July 16, 2008, the plaintiffs filed a summons and complaint alleging, inter alia, conversion, unjust enrichment, statutory theft, breach of fiduciary duty and violation of CUTPA. On November 4, 2009, the defendants filed a motion for summary judgment. The court, Hon. Robert Satter, judge trial referee, concluded: “The central issue in the case is when the merger of Local 538 and Local 84 occurred. If the merger occurred after the defendant officers of Local 538 distributed monies to the members of the local and to other entities, then their motion for summary judgment should be granted. . . . [The court] is forced to conclude that a factual issue exists as to when the merger occurred.” The court thus denied the motion for summary judgment with regard to Francis, Hughes, Harrington-Hughes and Stage Production.

During the trial, which took place on October 20 and 21, 2010, the plaintiffs presented the testimony of Francis, Hughes, Harrington-Hughes, Charles Buck-land, the president of Local 84, and William Philbin, the business representative of Local 84. The defendants offered the videotaped deposition of DePaulo. The plaintiffs filed a motion in limine to preclude the deposition testimony. They argued that DePaulo was not qualified as an expert witness because he lacked the appropriate experience in effectuating mergers and that the defendants had not disclosed DePaulo as an expert pursuant to the rules of practice. The court denied the motion in limine.

At trial, the plaintiffs renewed their objection to the showing of the entire deposition. The court overruled the objection, stating: “I’ve noted your objection and I overrule it, I will see the video but I will give you the right to take the transcript and make your objections to any material that you feel is not proper . . . either as irrelevant or as opinion evidence or whatever grounds you feel [are] appropriate.” The defendants’ counsel then noted: “I thought I’d mark the original [deposition] transcript as a full exhibit . . . and then I would mark the DVD as a court exhibit if that’s acceptable to you? . . . [S]ubject to whatever motion [is] made later.” The court responded in the affirmative, and the plaintiffs did not object at that time.

At the close of evidence, the defendants made an oral motion to dismiss all counts of the complaint pursuant to Practice Book § 15-8 on the basis of the plaintiffs’ inability to make out a prima facie case. The plaintiffs argued that to the extent the defendants relied on DePaulo’s testimony in arguing the motion to dismiss, the court should deny the defendants’ motion because DePaulo was not an expert and the defendants improperly offered his deposition as opinion testimony. The plaintiffs, however, offered no specific objections to material in the transcript of the deposition. In an oral ruling, the court granted the defendants’ motion to dismiss the statutory theft and CUTPA counts of the plaintiffs’ complaint. The plaintiffs did not file a motion for articulation regarding the court’s oral ruling. The court allowed the plaintiffs and the defendants to file posttrial briefs on the remaining counts of the complaint. In a memorandum of decision dated March 8,2011, the court rendered judgment for the defendants on all remaining counts. This appeal followed. Additional facts will be set forth as necessary to our disposition of this appeal.

I

The plaintiffs first claim that the trial court improperly determined that Local 538 did not owe or breach a common-law fiduciary duty to Local 84 during the effectuation of the merger between the two locals. The court determined that the plaintiffs did not have standing to bring a claim for breach of fiduciary duty against Francis, Harrington-Hughes and Hughes. We agree with the court that the plaintiffs lacked standing.

“[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) American States Ins. Co. v. Allstate Ins. Co., 94 Conn. App. 79, 83, 891 A.2d 75 (2006), aff'd, 282 Conn. 454, 922 A.2d 1043 (2007).

The trial court’s determination that a plaintiff lacks standing is a conclusion of law over which we exercise plenary review. Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S. Ct. 659, 163 L. Ed. 2d 526 (2005). “We conduct that plenary review, however, in light of the trial court’s findings of fact, which we will not overturn unless they are clearly erroneous. ... 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.” (Citation omitted; internal quotation marks omitted.) Id.

The court determined that the plaintiffs did not have standing to bring a claim for breach of common-law fiduciary duty because it concluded that, while Local 538 and its officers owed a fiduciary duty to the members of Local 538, they did not owe a fiduciary duty to Local 84 or its members. The plaintiffs argued that Francis, Harrington-Hughes and Hughes owed a fiduciary duty to Local 84 because they claimed that the merger between Local 538 and Local 84 occurred on June 9, 2006. They argued that, if the merger took place on June 9, then Local 538’s funds belonged to Local 84 as of that date because Local 538 would no longer have existed independently. Thus, the plaintiffs argued that they had standing to raise a claim of breach of fiduciary duty based on the four payments.

In rejecting the plaintiffs’ claim, the court made a factual finding that the merger between the two locals occurred on August 30, 2006. The following additional facts were found by the court. “Although the International announced the merger on June 9,2006, it assigned Mr. DePaulo to ‘effectuate’ the merger. In his letter to Local 538 of August, 2006, Mr. DePaulo specifically stated that ‘to finalize the merger of Locals 538 and 84,’ books and records of Local 538 had to be forwarded to the International and all assets were to be transferred to Local 84. Those events occurred on August 30, 2006, when the officers of Local 538 met with Mr. DePaulo, gave him the books and records of the Local and a check for the balance of the Local’s account. As a consequence, this court concludes that the merger actually took place on August 30, 2006.”

There is ample evidence to support the court’s finding that the merger took place on August 30, 2006, and we are not left with the firm and definite conviction that a mistake has been committed. The plaintiffs have not demonstrated that the court’s finding is clearly erroneous. On the basis of its finding that the merger did not take place until August 30, 2006, the court found that Local 538 was an autonomous, independent local at the time that each of the four payments were made. Therefore, the plaintiffs had no standing to bring the claim of breach of fiduciary duty as a matter of common law because the plaintiffs had no real interest in the cause of action, or a legal or equitable right, title or interest in the assets of Local 538.

On the basis of its findings, the court determined that the officers of Local 538 owed no fiduciary duty to Local 84 and its members until the date of the merger. The plaintiffs maintain, however, that even if the merger did not occur on June 9, 2006, Francis, Harrington-Hughes, and Hughes entered into a fiduciary relationship with Local 84 and its members as soon as the order for the merger was issued. They claim that once the officers of Local 538 were aware of the impending merger, they had a duty to preserve Local 538’s assets for Local 84’s benefit.

The court did not address this argument directly in its memorandum of decision; however, it unequivocally stated that Francis, Harrington-Hughes, and Hughes owed no fiduciary duty to Local 84 or its members prior to the date of the merger: “[T]he court has determined that the merger occurred on August 30, 2006, [and] the individual defendants owed no fiduciary duty to [Local 84] or its members prior to that date.” The court therefore rejected the plaintiffs’ alternative argument that a duty was owed to the plaintiffs prior to the merger date.

It was the plaintiffs’ burden to establish the existence of a fiduciary duty. See Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 41, 761 A.2d 1268 (2000); see also Dunham v. Dunham, 204 Conn. 303, 322, 528 A.2d 1123 (1987) (“[o]nce a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary” [internal quotation marks omitted]), overruled on other grounds by Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996). “It is well settled that a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. . . . Although [our Supreme Court] has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations, we have recognized that not all business relationships implicate the duty of a fiduciary. ... In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary.” (Citations omitted; internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 38.

The plaintiffs argue that Local 538 entered a fiduciary relationship with Local 84 at the time the merger decision was made by the International because Local 538 had superior knowledge of its own financial accounts and a duty not to spend money in those accounts during the interim period between the directive to merge and the actual merger date. The plaintiffs did not provide any relevant authority to the trial court establishing that a fiduciary duty attached prior to the merger date, and they have not provided such authority to this court. Therefore, the plaintiffs failed to establish that a fiduciary relationship existed between the two locals prior to the effectuation of the merger. Accordingly, the court did not improperly determine that the plaintiffs lacked standing to bring a claim for breach of fiduciary duty against Francis, Harrington-Hughes and Hughes.

II

The plaintiffs next claim that the court improperly determined that Francis and Hughes were not unjustly enriched when they transferred assets from Stage Production to Crew 538. We disagree.

We first set forth the applicable legal principles. “[W]herever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract, restitution of the value of what has been given must be allowed. . . . Under such circumstances, the basis of the plaintiffs recovery is the unjust enrichment of the defendant. ... A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Citations omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 451-52, 970 A.2d 592 (2009).

The plaintiffs claim that the assets of Stage Production were actually assets of Local 538 and that, therefore, the assets of Stage Production should have been preserved and provided to Local 84 as a result of the merger. The following additional facts, as found by the court, are relevant to our resolution of this claim. “[Stage Production] was formed by officers of Local 538. As of 2002, the members and owners of [Stage Production] were Hughes and Francis. Neither obtained their positions as members and owners as a result of a vote of the members of the Local, and neither invested any of his own money in [Stage Production]. [Stage Production] operated as follows: Much of the work of the Local was at the University of Rhode Island under a subcontract with a private company called Global Spectrum. Local 538 sent its members to work at Global Spectrum. Global Spectrum paid [Stage Production], which, in tum, paid Local 538 members the union wages and paid an assessment to the Local. The other use of [Stage Production] was as a facade to supply union employees to the Native American casinos. Since those casinos did not recognize labor unions, [Stage Production] provided Local 538 members to work at the casinos, paid the union members their union wages, paid Local 538 the members’ assessments and retained the difference, if any.

“Hughes and Francis dissolved [Stage Production] at the end of 2006 or possibly early 2007 because they had disassociated from [the International]. When they were wrapping up [Stage Production], they found there was money in its account in the amount of $15,000. Hughes and Francis rolled over this money into a new LLC known as [Crew 538].

“All of the time they provided services for [Stage Production], Francis and Hughes were never paid and never received any compensation whatsoever. At the time of the dissolution of [Stage Production], Hughes and Francis were owners of [Stage Production] and considered the net profits realized over the years as their own. No member of Local 538 claimed any right to the $15,000. The union members were paid for their services at the union rate. Local 538 was paid its assessments from those services of the union members. [Stage Production] was a separate entity and the owners . . . were entitled to the monies in its account.

“[The] [p]laintiffs have failed to show why they have any legal right or entitlement to the profits of [Stage Production] at the time [Stage Production] was dissolved.”

We note at the outset that the court did not determine that there was a contractual relationship between the parties. Assuming, arguendo, that such a relationship existed, the plaintiffs cannot prevail on their claim that Francis and Hughes were unjustly enriched as a result of transferring the $15,000 from Stage Production to Crew 538. The court’s determination that Hughes and Francis were not unjustly enriched is based on its factual findings. “The court’s determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings . . . that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 452.

After thoroughly reviewing the record, we conclude that the plaintiffs have not demonstrated that the court’s factual findings with regard to Stage Production are clearly erroneous. The plaintiffs cannot show that Local 538 had any claim to the assets of Stage Production, an independent limited liability company, and, thus, they cannot establish that Local 84 had any resulting claim to those assets. The court properly determined that the forced merger of the two locals did not reach the assets of Stage Production. Accordingly, the court properly rejected the plaintiffs’ claim that Francis and Hughes were unjustly enriched.

m

The plaintiffs next claim that the court improperly allowed and relied on expert testimony by the International’s vice president DePaulo. Specifically, the plaintiffs claim that the defendants never disclosed DePaulo as an expert according to the rules of practice and that he had never effectuated a merger before and, thus, was not qualified to testify as an expert. We decline to review this claim because it was not adequately briefed.

The plaintiffs have failed to comply with Practice Book § 67-4 (d) (3). “When raising evidentiary issues on appeal, all briefs should identify clearly what evidence was excluded or admitted, where the trial counsel objected and preserved his rights and why there was error. . . . The mere assertion in a brief that evidence was improperly excluded, coupled with transcript page references, will not be sufficient. For evidentiary rulings claimed to be improper to be reviewed by this court, they must be set forth in the briefs as required and outlined by the rules of practice.” (Citations omitted; internal quotation marks omitted.) Roberto v. Honeywell, Inc., 43 Conn. App. 161, 163, 681 A.2d 1011, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996). “We need not address the defendant’s claim of evidentiary error as this claim has not been presented in accordance with the requirements of our rules of practice.” Mattie & O’Brien Contracting Co. v. Rizzo Construction Pool Co., 128 Conn. App. 537, 545, 17 A.3d 1083, cert. denied, 302 Conn. 906, 23 A.3d 1247 (2011).

The plaintiffs claim broadly that the court admitted improper opinion and expert testimony by DePaulo, yet they have failed to provide any citations to the specific portions of DePaulo’s testimony that they claim were improperly admitted by the court. They have also failed to provide this court with any specific objections made to the trial court, as invited by that court, regarding those specific portions of testimony. General citations to the transcript are insufficient to meet the requirements of the rules of practice. Accordingly, we do not address this evidentiary claim.

IV

The plaintiffs’ final claim is that the court improperly granted the defendants’ motion to dismiss the count of their complaint alleging that Hughes and Francis violated CUTPA by authorizing the four payments prior to the merger without following a democratic process and moving $15,000 from Stage Production to Crew 538. The plaintiffs did not adequately brief this issue.

After the plaintiffs put on their case, the defendants moved to dismiss all counts of the complaint for failure to make a prima facie case pursuant to Practice Book § 15-8. In a brief oral ruling, the court granted the defendants’ motion with regard to the CUTPA count of the plaintiffs’ complaint. In their appellate brief, the plaintiffs do not cite the appropriate standard of our review of a motion to dismiss pursuant to Practice Book § 15-8. They also fail to set forth, for our consideration, any trial evidence supportive of the elements of their CUTPA claim, and, thus, their appellate brief lacks any analysis of the relevant issue on appeal. Therefore, we decline to address the plaintiffs’ final claim. See, e.g., Carabetta v. Carabetta, 133 Conn. App. 732, 737, 38 A.3d 163 (2012) (“[i]nasmuch as the plaintiffs’ briefing of the . . . issue constitutes an abstract assertion completely devoid of citation to legal authority or the appropriate standard of review, we exercise our discretion to decline to review this claim as inadequately briefed” [internal quotation marks omitted]).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs do not appeal from the summary judgment rendered in favor of the defendants Production Services 538, LLC, and Crew 538, LLC, and the judgment rendered in favor of Stage Production Services, LLC.

       The court granted the defendants’ motion for summary judgment as to Stage Production, and Production Services 538, LLC, on October 13, 2010, but during trial on October 20, 2010, reconsidered its decision and denied the summary judgment as to Stage Production.

       DePaulo was not available to testify and was beyond the court’s subpoena power.

       Practice Book § 15-8 provides: “If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”

       In their posttrial briefs, the plaintiffs also claimed a breach of fiduciary duty pursuant to the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 501. They also raise that issue in their appellate brief. We conclude that the court properly determined that the plaintiffs were barred from bringing this claim because they neglected to raise the claim as an allegation in their complaint. “The allegations of a complaint limit the issues to be decided on the trial of a case and are calculated to prevent surprise to opposing parties. . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.” Stamford Landing Condominium Assn., Inc. v. Lennon, 109 Conn. App. 261, 271, 951 A.2d 642, cert. denied, 289 Conn. 938, 958 A.2d 1246 (2008).

       Even if we assume, arguendo, a fiduciary duty attached once Local 538 had knowledge that a merger was to take place, the plaintiffs have failed to show how any of the four payments could be said to be in breach of that duty. The court analyzed each payment and explicitly found that the plaintiffs failed to prove that any of the four payments were improper, and we agree with the court’s analysis.

       Practice Book § 67-4 (d) (3) provides: "When error is claimed in any evidentiary ruling in a court or jury case, the brief or appendix shall include a verbatim statement of the following: the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; and the ruling.”

       The court also determined that the plaintiffs had not made out a prima facie case on the statutory theft count of the complaint. The plaintiffs did not appeal the court’s dismissal of that count.


author: ESPINOSA, J.

text:
    SANDHYA DESMOND v. YALE-NEW HAVEN HOSPITAL, INC., ET AL.
    (AC 33072)
    Gruendel, Lavine and Espinosa, Js.
    Argued January 10
    officially released September 11, 2012

      Eric M. Desmond, for the appellant (plaintiff.

      Andrew A. Cohen, for the appellees (defendants).
   Opinion

ESPINOSA, J.

The plaintiff, Sandhya Desmond, appeals from the judgment of the trial court dismissing her complaint against the defendants, Yale-New Haven Hospital, Inc. (hospital), and Yale-New Haven Health Services, Inc., alleging workers’ compensation fraud; statutory negligence; breach of contract; violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.; and violations of her right to due process under the Connecticut constitution. The plaintiff claims that the court improperly determined that (1) it lacked jurisdiction over her claims because the exclusivity provision of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., barred her from bringing an action in the Superior Court and (2) its decision dismissing her claims did not violate her right to due process under the state constitution. We affirm the judgment of the trial court.

The following undisputed facts are relevant to our consideration of this appeal. At all times relevant to this appeal, the plaintiff was an employee of the hospital. On December 30, 2004, she was injured in the course of her employment. According to the plaintiff, she suffered a spill-related fall while at work and subsequently was diagnosed with bilateral, acute posttraumatic carpal tunnel injuries. Her physicians have advised her that, absent medical treatment, she permanently will be unable to use her hands.

Subsequently, she filed a workers’ compensation claim with regard to her injury, and the defendants accepted the claim. On March 6,2008, she filed a federal action in United States District Court for the District of Connecticut, in which she alleged various claims under state law and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. On March 23, 2009, the District Court granted the defendants’ motion to dismiss as to the plaintiffs state law claims, allowing the action to proceed only on her claim under the Americans with Disabilities Act.

On May 20, 2010, the plaintiff filed in the Superior Court the operative complaint in the present case. The complaint contained ten counts, alleging against each of the defendants workers’ compensation fraud, statutory negligence, breach of contract, unfair and deceptive acts and practices in violation of CUTPA and delay in the delivery of benefits under the act in violation of the plaintiffs state constitutional right to due process. The complaint alleged that the defendants had made various filings with the workers’ compensation commission (commission) in a bad faith and fraudulent attempt to delay treatment. The complaint alleged that these bad faith attempts to delay treatment caused the plaintiffs condition to worsen, as she did not receive necessary treatment.

On June 7, 2010, the defendants filed a motion to dismiss, alleging that the exclusivity provision of the act barred the action and that the plaintiff had failed to exhaust her administrative remedies under the act. The court granted the defendants’ motion to dismiss on December 16, 2010. Relying on our Supreme Court’s decision in DeOliveira v. Liberty Mutual Ins. Co., 273 Conn. 487, 870 A.2d 1066 (2006), the court held that the plaintiffs claims did not allege conduct that was sufficiently egregious to remove the claims from the exclusive jurisdiction of the commission. The plaintiff filed the present appeal on January 20, 2011.

“The standard of review for a court’s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Mayfield v. Goshen Volunteer Fire Co., 301 Conn. 739, 744, 22 A.3d 1251 (2011).

I

First, the plaintiff claims that the court improperly held that it lacked jurisdiction over her claims because the exclusivity provision of the act barred her from bringing an action in the Superior Court. The plaintiff argues that the court erroneously determined that its analysis was controlled by DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn. 487, and, instead, maintains that General Statutes § 31-290c establishes a civil cause of action over which the commission lacks jurisdiction. In the alternative, the plaintiff argues that, if DeOliveira does apply and actions under § 31-290c ordinarily must be brought before the commission, the court improperly held that the present case did not involve egregious conduct that warranted an exception from the general rule of exclusivity. We disagree.

General Statutes § 31-284 (a) lays out the exclusivity provision of the act. It provides in relevant part: “An employer who complies with the requirements of subsection (b) of this section shall not be hable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . but an employer shall secure compensation for his employees as provided under this chapter .... All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees . . . are abolished other than rights and claims given by this chapter . . . .” General Statutes § 31-284 (a).

Section 31-290c (a) provides: “Any person or his representative who makes or attempts to make any claim for benefits, receives or attempts to receive benefits, prevents or attempts to prevent the receipt of benefits or reduces or attempts to reduce the amount of benefits under this chapter based in whole or in part upon (1) the intentional misrepresentation of any material fact including, but not limited to, the existence, time, date, place, location, circumstances or symptoms of the claimed injury or illness or (2) the intentional nondisclosure of any material fact affecting such claim or the collection of such benefits, shall be guilty of a class C felony if the amount of benefits claimed or received, including but not limited to, the value of medical services, is less than two thousand dollars, or shall be guilty of a class B felony if the amount of such benefits exceeds two thousand dollars. Such person shall also be liable for treble damages in a civil proceeding under section 52-564.” (Emphasis added.)

General Statutes § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages. ” “ [Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119. ... A person commits larceny within the meaning of ... § 53a-119 when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. An owner is defined, for purposes of § 53a-119, as any person who has a right to possession superior to that of a taker, obtainer or withholder. . . . Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant’s conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion.” (Citations omitted; internal quotation marks omitted.) Rana v. Terdjanian, 136 Conn. App. 99, 113-14, 46 A.3d 175 (2012).

Violations of § 31-290c, a criminal statute, may be prosecuted by the state’s attorney, not by private individuals. See General Statutes § 31-290d (a) (“There shall be a workers’ compensation fraud unit within the office of the Chief State’s Attorney in the Division of Criminal Justice. The unit, under the supervision of the Chief State’s Attorney, may, upon receipt of a complaint, at the request of the chairman of the Workers’ Compensation Commission or on its own initiative, investigate cases of alleged fraud involving any claim for benefits, any receipt or payment of benefits, or the insurance or self-insurance of liability under sections 31-275 to 31-355a, inclusive.”). Accordingly, § 31-290c does not afford the plaintiff a private right of action. Rather, § 31-290c confers to the plaintiff the right to bring an action for statutory theft under § 52-564. See Delpier v. Connecticut Interlocal Risk Management Agency, Superior Court, judicial district of Waterbury, Docket No. CV-01-0164366 (November 28, 2001) (31 Conn. L. Rptr. 97) (“[§ 31-290c], on its face, does not provide for a private right of action but rather enables a victim to bring an action under . . . § 52-564, the civil theft statute”).

In Second Injury Fund v. Lupachino, 45 Conn. App. 324, 346, 695 A.2d 1072 (1997), this court held that “[§] 31-290c is the legislative response to those who have abused or may be abusing the humanitarian purpose of the act by taking advantage of it by fraudulent means. It has ordained accomplishment of this purpose by spelling out the elements of this cause of action and by imposing liability in treble damages in a ‘civil proceeding’ under § 52-564.” Concluding that the plaintiff, the second injury fund of the treasurer of the state of Connecticut, properly had alleged a cause of action under § 52-564, this court explained: “When treble damages are sought pursuant to § 52-564, as here, this court has decided that clear and convincing proof of the actions alleged is required in order to assess treble damages pursuant to § 52-564. ... In addition, it is required that in actions seeking to recover double or treble damages under statutes that the claim for relief shall be specifically based upon the statutory remedy. . . . That was done in this case; there is no relief sought that the commissioner is authorized to order. Finally, the fund’s complaint is clearly based on the statutory cause of action authorizing such extraordinary damages, and not for any other alleged cause of action.” (Citations omitted; internal quotation marks omitted.) Id., 347.

In the present case, counts one and two of the complaint each allege in relevant part: “[The defendants] sought, in violation of [General Statutes] § 31-290c et seq., to prevent or attempted to prevent the receipt of benefits, or to reduce or attempted to reduce the amount of benefits, provided to or received by [the plaintiff] under the Act. . . .

“[The defendants] sought a reduction in benefits provided to or received by [the plaintiff] by communicating one or more intentional misrepresentations of material fact or, alternatively, [the defendants] sought a reduction in benefits provided to or received by [the plaintiff] by intentionally failing to disclose or misrepresenting one or more material facts, or, alternatively, [the defendants] sought a reduction in benefits provided to or received by [the plaintiff] by casting [the plaintiff] and her workers’ compensation claim in a false light by making certain misrepresentations ....

“[The defendants] sought to discontinue medical treatment provided to or received by [the plaintiff] by communicating one or more intentional misrepresentations of material fact or, alternatively, [the defendants] sought a reduction in medical treatment provided to or received by [the plaintiff] by intentionally failing to disclose or misrepresenting one or more material facts, or, alternatively, [the defendants] sought a reduction in benefits provided to or received by [the plaintiff] by casting [the plaintiff] and her workers’ compensation claim in a false light by making certain misrepresentations . . . .”

We conclude that the plaintiff did not allege a cause of action for statutory theft under § 52-564. Unlike the complaint in Second Injury Fund, the complaint in the present case neither alleges nor purports to allege any of the elements of statutory theft. We refuse to construe the complaint, which makes no mention of § 52-564 until its prayer for relief, as making a claim of statutory theft. See Boone v. William W. Backus Hospital, 272 Conn. 551, 573 n.12, 864 A.2d 1 (2005) (“[t]he interpretation of pleadings is always a question of law for the court and . . . our interpretation of the pleadings therefore is plenary” [internal quotation marks omitted]). Rather, we construe counts one and two of the complaint, despite their labels to the contrary; Ganim v. Smith & Wesson Corp., 258 Conn. 313, 348, 780 A.2d 98 (2001) (“the labels placed on the allegations by the parties [are] not controlling”); to allege only that the defendants delayed in bad faith the workers’ compensation claims of the plaintiff.

Our Supreme Court concluded in DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn. 501, that “Connecticut does not recognize a cause of action for bad faith processing of a workers’ compensation claim . ...” In reaching this conclusion, our Supreme Court reviewed the contours of the exclusivity provision of the act. Id., 495-501. First, the court recognized that the exclusivity provision was jurisdictional in nature: “The legislature . . . expressly has conferred jurisdiction upon the commission to adjudicate claims related to untimely payment of benefits and has developed a scheme under which remedies may be provided. As a general matter, the commissioners have jurisdiction to hear all claims . . . arising under [the act] . . . .” (Internal quotation marks omitted.) Id., 496-97. The court noted that “in determining whether a cause of action is barred by the exclusivity provision, the appropriate question is whether the act is applicable to the injury at issue.” Id., 498. Ultimately, the court concluded that “we must construe the exclusionary provision’s prohibition on damages actions for injuries ‘arising out of and in the course of . . . employment’ to include injuries arising out of and in the course of the workers’ compensation claims process.” (Emphasis in original.) Id., 504.

Pursuant to DeOliveira, the plaintiffs claims alleging a bad faith delay in processing her workers’ compensation claims fall within the exclusive jurisdiction of the commission. In DeOliveira, our Supreme Court clearly stated that the exclusionary provision removed from the jurisdiction of the court any damages action for an injury arising out of the workers’ compensation claims process. Id. Applying the rule articulated in DeOliveira to the facts of this case, it is clear that the plaintiffs claimed injuries, allegedly caused by the defendants’ bad faith delays in medical treatment, arose out of and in the course of the workers’ compensation claims process. Therefore, we conclude that the plaintiffs alleged injuries fall within the jurisdiction of the commission and that, accordingly, the court properly granted the defendants’ motion to dismiss.

We are not persuaded by the plaintiffs argument that, even if DeOliveira applies, the trial court improperly held that the present case did not involve egregious conduct that warranted an exception from the general rule of exclusivity. In DeOliveira, the court noted that “there could be an instance in which an insurer’s conduct related to the processing of a claim, separate and apart from nonpayment, might be so egregious that the insurer no longer could be deemed to be acting as an agent of the employer and, thus, a claim arising from such conduct would not fall within the scope of the act. Some other jurisdictions have recognized such a limitation. See, e.g., Unruh v. Truck Ins. Exchange, 7 Cal. 3d 616, 620-21, 498 P.2d 1063, 102 Cal. Rptr. 815 (1972) (insurer’s agent misrepresented identity to claimant, caused her to become emotionally involved with him and induced her to engage in unusual activities beyond her normal physical capabilities while another person filmed her, resulting in aggravation of her physical injury and physical and mental breakdown requiring hospitalization upon claimant discovering deceit); Young v. Hartford Accident & Indemnity Co., 303 Md. 182, 193, 492 A.2d 1270 (1985) (plaintiff who suffered emotional trauma after being assaulted at work alleged that carrier, in attempt to reduce its monetary exposure, insisted on psychiatric examination with deliberate intent that plaintiff either commit suicide or drop her claim, and plaintiff thereafter attempted suicide).” (Emphasis in original.) DeOliveira v. Liberty Mutual Ins. Co., supra, 273 Conn. 507.

In the present case, even if we afford the plaintiffs allegations their most damaging interpretation, the defendants’ conduct was not on the level of egregious behavior that the court in DeOliveira recognized could provide an exception to the exclusivity provision. Rather, the plaintiffs allegations of bad faith processing of her claim by the defendants are the kind of assertions that routinely are made in workers’ compensation cases, and, in fact, closely resemble the claims made by the plaintiff in DeOliveira. The plaintiff in DeOliveira claimed that he suffered from depression due in part to the nonpayment of benefits and the way that his employer responded to his workers’ compensation claim. Id., 491-92. The plaintiffs physicians determined that, as a result of this depression, he was totally disabled. Id., 491. In the present case, the plaintiff similarly alleges that the defendants’ mishandling of her workers’ compensation claim has caused her further injury. This is not the kind of egregious conduct present in Unruh and Young, cited by the court in DeOliveira as examples of cases involving conduct that could warrant an exception from the exclusivity provision. Accordingly, we agree with the court that the plaintiffs claim properly is within the jurisdiction of the commission.

n

Next, the plaintiff claims that the court improperly determined that its decision dismissing her claims did not violate her right to due process under the Connecticut constitution. She argues that the act is premised on the belief that compromising plaintiffs’ rights to bring actions in tort is justifiable only to the extent that it provides them with an efficient system for compensation. In support of this point, she cites to the decision of this court in Martinez v. Southington Metal Fabricating Co., 101 Conn. App. 796, 800, 924 A.2d 150, cert. denied, 284 Conn. 930, 934 A.2d 246 (2007), in which this court stated that “our case law on workers’ compensation exclusivity reflects the proposition that these statutes compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” (Internal quotation marks omitted.) She maintains that, in the present case, the act is unable to provide “ ‘relatively quick and certain compensation’ ” and, accordingly, it is not a reasonable alternative to the enforcement of her constitutional rights. This claim is without merit.

In Mello v. Big Y Foods, Inc., 265 Conn. 21, 34-35, 826 A.2d 1117 (2003), our Supreme Court held that the exclusivity provision of the act did not violate a plaintiffs right to due process under the Connecticut constitution by preventing a plaintiff from bringing a negligence action against her employer for injuries suffered in the course of her employment. First, the court noted that article first, § 10, of the constitution of Connecticut “restricts the power of the legislature to abolish a legal right existing at common law prior to 1818 without also establishing a reasonable alternative to the enforcement of that right.” (Internal quotation marks omitted.) Id., 32. Additionally, the court explained that “in determining whether an alternative is reasonable, a court need only consider the aggregated benefits of the legislative alternative and assess whether those aggregated benefits reasonably approximate the rights formerly available under the common law.” Id., 32-33. On the facts of that case, the court concluded that “the act’s rights and remedies provide a reasonable alternative to the plaintiffs common-law right to bring a negligence action for damages resulting from her [injury].” Id., 34.

In the present case, the plaintiff has not availed herself of the various remedies available to her within the workers’ compensation framework. See General Statutes § 31-297. She admits that she has not requested a hearing before the commission to consider her claim that the defendants unreasonably have delayed providing her certain medical treatment. Therefore, at this stage, it is pure speculation that the commission would not quickly resolve these claims. The plaintiff has not demonstrated that the workers’ compensation framework is an inadequate alternative to the enforcement of her rights, and the court properly did not find a violation of her state constitutional right to due process.

The judgment is affirmed.

In this opinion the other judges concurred.

       Additionally, the plaintiff claims that the court improperly determined that the doctrine of exhaustion of administrative remedies precluded her from bringing her action in the Superior Court. We need not reach this argument, however, because we conclude that the court properly dismissed the action upon its determination that the exclusivity provision of the act barred the plaintiffs claims. See part I of this opinion.

       Since Second Injury Fund, our Supreme Court has held that the appropriate standard of proof in actions for treble damages under § 52-564 is that of a preponderance of the evidence. Stuart v. Stuart, 297 Conn. 26, 52-53, 996 A.2d 259 (2010).

       Count one is directed against the hospital, and count two is directed against Yale-New Haven Health Services, Inc. The two counts are identical in all other respects.

       Article first, § 10, of the constitution of Connecticut provides: “All courts shall be open, and every person, for an iqjury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

       Additionally, the plaintiff contends that the act deprives her of her right to a jury trial in violation of article first, § 19, of the constitution of Connecticut. The plaintiff did not raise this claim at trial and has not requested any extraordinary level of review. “[This] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. ... To allow such a claim to be raised on appeal would be nothing more than a trial by ambuscade of the trial judge.” (Citation omitted; internal quotation marks omitted.) Solano v. Calegari, 108 Conn. App. 731, 742, 949 A.2d 1257, cert. denied, 289 Conn. 943, 959 A.2d 1010 (2008). Accordingly, we decline to review this claim.