author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. ABOKOR GURREH
    (AC 19846)
    Schaller, Spear and Hennessy, Js.
    Argued June, 2
    officially released October 3, 2000

      Brian J. Woolf, with whom was Douglas K. Lindbergh, for the appellant (defendant).

      Joy K. Fausey, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and David, L. Zagaja, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Abokor Gurreh, appeals from the judgments of conviction, rendered after conditional pleas of nolo contendere, of sale of a controlled substance in violation of General Statutes § 21a-277 (b) and attempt to possess a controlled substance with intent to sell in violation of General Statutes §§ 53a-49 and 2 la-277 (b). The defendant claims that the trial court improperly (1) concluded that § 2 la-277 (b) prohibited the possession of khat, a plant material that contains the prohibited controlled substances cathinone and cathine, and (2) concluded that he was afforded constitutionally adequate notice that § 2 la-277 (b) prohibits the possession with intent to sell and or the sale of khat, notwithstanding the fact that § 2 la-243-7 of the Regulations of Connecticut State Agencies does not list khat as a controlled substance and only its chemical constituents, cathinone and cathine, are Usted as such. We affirm the judgments of the trial court.

The foUowing facts are necessary for a resolution of this appeal. The state and the defendant, during oral argument before the trial court, stipulated to the facts contained in the arrest documents. In its articulation, the trial court summarized those facts as follows: “Members of the Hartford pohce department were alerted by an employee of Choice Courier, a courier service, that Choice Courier was in possession of a suspicious package that may contain a controlled substance. The package was addressed to one Far Lyon, 1000 Capitol Avenue, Apt. B-l, Hartford, Conn. Pohce investigation led to the discovery that the package contained 31 pounds of leaves from the Catha edulis plant, known by the police officers to have the street name khat, and, further, that the leaves of this plant were classified as a controlled substance within the state of Connecticut. Additional information received as a result of the investigation revealed that 24 prior deliveries of similar packages had been made by Choice Courier .... Police subsequently delivered the package to the defendant, Abokor Gurreh, who falsely identified himself as the addressee, Far Lyon. The defendant was then charged with violations of § 21a-279 [b] and § 21a-277 (b). On March 26,1999, Choice Courier alerted Hartford Police of yet another package addressed to Far lyon, 1000 Capitol Avenue, Apt. B-l, Hartford, Conn. This package was intercepted and found to contain 40 pounds of Catha edulis plant or khat and the defendant was charged by warrant with violations of the same statutes referenced in the prior incident. The defendant then moved to dismiss the information for both incidents as violative of the defendant’s state and federal constitutional right to due process.” The defendant’s motion to dismiss was denied.

I

The defendant first claims that the legislature should not be deemed to have prohibited the possession with intent to sell, or the attempt to possess with intent to sell, the plant khat because the plant is not listed as a controlled substance in the regulations and only its chemical constituents, cathinone and cathine, are listed as such. Specifically, the defendant claims that we must decide (1) whether the legislature intended to prohibit the possession of the chemicals cathinone and cathine or the possession of all plants that may contain molecules of such chemicals and (2) that, as a matter of statutory construction, khat is not a controlled substance within the meaning of § 21a-277 (b).

We start with our standard of review. “In construing regulations, the general rules of statutory construction apply. Smith v. Zoning Board of Appeals, 227 Conn. 71, 89, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994). Statutory construction is a question of law requiring plenary review. See Lopiano v. Lopiano, 247 Conn. 356, 363, 752 A.2d 1000 (1998), citing Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” (Internal quotation marks omitted.) Hayward v. Hayward, 53 Conn. App. 1, 7, 752 A.2d 1087 (1999).

A

The defendant points out that the regulations, in several instances, individually list both the names of the plants that are considered prohibited controlled substances and the chemical constituents that those plants contain, and, therefore, because khat is not listed, it was not intended to be prohibited. Furthermore, the defendant points to several controlled substances that may be derived from plant or animal sources the possession of which, like khat, he claims, is “obviously” not intended to be prohibited. We disagree.

“When interpreting statutes, we rely on well established principles of statutory construction. [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. ... It is axiomatic, however, that when the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary.” (Citation omitted; internal quotation marks omitted.) Boris v. Garbo Lobster Co., 58 Conn. App. 29, 36, 750 A.2d 1152, cert. denied, 254 Conn. 910, 759 A.2d 504 (2000).

“The purpose of statutory construction is to give effect to the intended purpose of the legislature. . . . If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature’s intent.” (Citations omitted; internal quotation marks omitted.) State v. DeFrancesco, 235 Conn. 426, 435, 668 A.2d 348 (1995).

The defendant’s first argument is that khat is not a controlled substance because it is not specifically enumerated in the relevant statutes or regulations like other plant or plant derived controlled substances such as marijuana and tetrahydrocannabinols. Our Supreme Court has stated that “[u]nless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive.” (Internal quotation marks omitted.) State v. Kish, 186 Conn. 757, 766, 443 A.2d 1274 (1982). Here, however, our legislature has clearly, by its language, indicated an intent to include materials that contain controlled substances.

Reviewing the relevant language of the statutes and regulations under which the defendant was charged, we find the wording to be plain and unambiguous. First, the statute under which the defendant was charged, General Statutes § 2 la-277 (b), provides in relevant part: “Any person who . . . possesses with intent to sell or dispense . . . any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned . . . .” We find no ambiguity in this language, nor does the defendant point to any.

The language contained in § 21a-243-7 (e) of the Regulations of Connecticut State Agencies provides in relevant part that a controlled substance is l‘any material, compound, mixture or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system ... (3) Cathinone . . . .” (Emphasis added.) Clearly, the language “any material” is intended to include those materials that are not specifically listed, but that contain the controlled substances subsequently Usted, in this case, cathinone. The language of § 21a-243-10 (b) of the Regulations of Connecticut State Agencies, which applies to cathine, is nearly identical and, therefore, would operate similarly.

Finally, while the defendant suggests that rye grass, morning glory seeds and poppy seeds may contain molecules of controlled substances, those materials do not “have a tendency to promote abuse or . . . psychological dependence or both,” as required by General Statutes § 21a-243 (c). Furthermore, “[i]t is well established that an appellate court should not ‘enlarge the proper scope of [its] appellate review either by finding facts or by drawing inferences from the facts actually found.’ Mazzone v. Connecticut Transit Co., 240 Conn. 788, 797, 694 A.2d 1230 (1997).” Parkerv. Shaker Real Estate, Inc., 47 Conn. App. 489, 498, 705 A.2d 210 (1998). Because we are not charged with the task of finding facts, we are limited to the record before us. There was no expert testimony before the trial court for our review that might illuminate the assertions made in the defendant’s brief. We conclude, therefore, that the legislature intended to prohibit the possession or sale of khat.

B

The defendant also claims that, as a matter of statutory construction, §§ 21a-243-7 (e) (3) and 21a-243-10 (b) (l) of the Regulations of Connecticut State Agencies do not satisfy the requirements of General Statutes § 21a-243 (c). Therefore, the defendant claims that khat cannot, as a matter of law, be deemed a controlled substance. The defendant essentially argues that the regulations do not specifically “designate” khat as a controlled substance as mandated by § 2 la-243 (c), and, therefore, cathine and cathinone, the two substances found in khat and listed in the regulations, are not themselves “controlled substances” within the meaning of § 21a-243 (c) and the regulations. We do not agree with the defendant’s tortured reading of the statute and relevant regulations.

The plain language of § 21a-243 (c) provides that the commissioner of consumer protection (commissioner) may designate “as a controlled substance a substance or chemical composition containing any quantity of a substance,” in this case, cathinone and cathine. (Emphasis added.) This clause allows for the designation of chemical compositions containing controlled substances, “which [have] been found to have a stimulant . . . effect upon the higher functions of the central nervous system and [which have] a tendency to promote abuse or physiological or psychological dependance or both.” More generally, this clause gives the commissioner the power to designate as “controlled substances,” substances or compositions of substances found to have a stimulant effect upon the central nervous system. In this case, the commissioner found the substances cathinone and cathine to have met this requirement.

Next, § 2 la-243-7 (e) of the Regulations of Connecticut State Agencies provides that a controlled substance is “any material . . . which contains any quantity of [cathinone] having a stimulant effect on the central nervous system . . . .” (Emphasis added.) Clearly, khat is a material that contains a quantity, however small, of cathinone, and is, in fact, used for its stimulant effect. We find no ambiguity in the construction of this regulation

Additionally, § 21a-243-10 (b) of the Regulations of Connecticut State Agencies provides that a controlled substance is “any material . . . which contains any quantity of [cathine] having a stimulant effect on the central nervous system . . . .” Under this definition, khat is clearly a material that contains a quantity, however small, of cathine, and is, in fact, used for its stimulant effect. Again, we find that no ambiguity exists. We therefore conclude that, as a matter of statutoiy construction, khat may be deemed a controlled substance by virtue of its containing the controlled substances cathinone and cathine.

II

The defendant next claims that the court improperly concluded that he was afforded constitutionally adequate notice that § 2 la-277 (b) prohibits the possession with intent to sell and the sale of khat, notwithstanding the fact that even though the regulations list the prohibited substances cathinone and cathine, which are found in khat, they do not list khat as a controlled substance. He claims that the statute fails to define the offense with sufficient definiteness to enable ordinary people to understand what conduct is prohibited and, therefore, violates the due process clause of the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. We disagree.

Our Supreme court has opined that “[i]n our assessment of whether the statute passes constitutional muster, we proceed from the well recognized jurisprudential principle that [t]he party attacking a validly enacted statute . . . bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality. . . . The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. . . . Thus, [i]n order to surmount a vagueness challenge, a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited. . . .

“Furthermore, [a]s a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue. . . . For statutes that do not implicate the especially sensitive concerns embodied in the first amendment [or other fundamental rights], we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. ... If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” (Citations omitted; internal quotation marks omitted.) State v. Payne, 240 Conn. 766, 777-78, 695 A.2d 525 (1997).

We must now review the facts and circumstances in the present case to determine whether a person of ordinary intelligence would understand that the defendant’s acts were prohibited under § 21a-277 (b). We conclude that a person of ordinary intelligence would know that possession of khat would be in violation of the statute. We first point to our discussion in part I of this opinion, which holds that the statute and relevant regulations are not ambiguous.

The defendant contends that cathinone and cathine are relatively new words, which makes it difficult for him to define them to determine whether khat is a controlled substance. This argument is flawed. First, an ordinary person concerned with determining the legality of a substance he wants to possess might simply start with ascertaining the definition of the substance in a dictionary. A review of the dictionary definition of khat; see footnote 3; reveals that khat is a “habituating stimulant.” This alone would, at the very least, give notice to an ordinary person of the general nature of the material. Furthermore, in this case, the defendant, a native of Somalia, was already aware of the stimulant characteristic of the substance because of its widespread use in that country. Finally, the defendant’s use of an assumed name to accept the very large packages of khat indicated consciousness of guilt. See State v. Edwards, 201 Conn. 125, 152-53, 513 A.2d 669 (1986).

The defendant therefore cannot claim that he was denied adequate notice and fair warning that possession of khat is prohibited because it contains cathine and cathinone. The defendant has not met his heavy burden of proving that § 21a-277 (b) is unconstitutional beyond a reasonable doubt.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (b) provides: "Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       Merriam-Webster’s Collegiate Dictionary (10th Ed. 1995), defines khat as “a shrub (Catha edulis) cultivated in the Middle East and Africa for its leaves and buds that are the source of an habituating stimulant when chewed or used as a tea.”

       The defendant makes the following assertions regarding the listing of controlled substances including plants and their chemical counterparts. “Not only is ‘tetrahydrocannabinols’ listed, but ‘marijuana’ from which it is derived is also listed by name. Not only is ‘psilocin’ listed, but the psilocybin mushroom from which it is derived is also listed. Not only is ‘mescaline’ listed, but the ‘peyote cactus’ from which it is derived is also listed. Not only is ‘opium’ listed, but ‘opium poppy’ and ‘poppy straw’ and ‘concentrate of poppy straw’ are listed. Not only is cocaine prohibited, but ‘coca leaves’ are also specifically prohibited.”

       The defendant asserts that while lysergic acid (LSD) is a controlled substance, rye grass can contain a fungus from which LSD may be derived and it is not listed as a controlled substance. LSD may also be derived from the seeds of the common morning glory plant, yet those seeds are not listed as a controlled substance. Furthermore, he asserts that poppy seeds contain “molecules of opium,” yet they are not listed as a controlled substance. He also lists testosterone, which may be found naturally in animals and humans. Finally, he points out that belladonna alkaloids are controlled substances, but may be found in jimpson weed, which grows wild in hog pens.

       General Statutes § 21a-240 (9) provides: “ ‘Controlled substance’ means a drug, substance, or immediate precursor in schedules I to V, inclusive, of the Connecticut controlled substance scheduling regulations adopted pursuant to section 21a-243.”

       Section 21a-243-7 of the Regulations of Connecticut State Agencies provides in relevant part: “The controlled substances listed in this regulation are included by whatever official, common, usual, chemical, or trade name designation in Schedule I . . . (e) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, and salts of isomers ... (3) Cathinone

       Section 21a-243-10 of the Regulations of Connecticut State Agencies provides in relevant part: “The controlled substances listed in this regulation are included by whatever official, common, usual, chemical, or trade name designation in Schedule IV ... (b) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, and salts of such isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation: (1) Cathine ....’'

       General Statutes § 21a-243 (c) provides in relevant part: “The Commissioner of Consumer Protection acting upon the advice of the Commission of Pharmacy, may by regulation designate, after investigation, as a controlled substance, a substance or chemical composition containing any quantity of a substance which has been found to have a stimulant . . . effect upon the higher functions of the central nervous system and having a tendency to promote abuse or physiological or psychological dependence or both. Such substances are classifiable as amphetamine-type, barbiturate-type, cannabis-type, cocaine-type, hallucinogenic, moiphine-type and other stimulant and depressant substances, and specifically exclude alcohol, caffeine and nicotine. Substances which are designated as controlled substances shall be classified in schedules I to V by regulations adopted pursuant to subsection (a) of this section.”


source: Caselaw Access Project

license: Public Domain

text:
    MARIBEL COLON ET AL. v. BOARD OF EDUCATION OF THE CITY OF NEW HAVEN ET AL.
    (AC 18738)
    Landau, Hennessy and Mihalakos, Js.
    Argued February 29
    officially released October 3, 2000

      William F. Gallagher, with whom, on the brief, were Kurt D. Koehler and Tara Knight, for the appellants (plaintiffs).

      Raymond E. Epps, with whom, on the brief, were Tracey C. Kammerer, Thomas W. Ude, Jr., James S. DelVisco, Audrey C. Kramer and Michael A. Wolaklll, for the appellees (defendants).
   Opinion

HENNESSY, J.

The plaintiffs, Maribel Colon and Maria Garcia, appeal from the judgment of the trial court rendered following the granting of a motion for summary judgment in favor of the defendant board of education of the city of New Haven on the ground that the defendant was immune from liability under the doctrine of governmental immunity. On appeal, the plaintiffs claim that the court improperly determined that (1) the defendant was immune from liability and (2) that an exception to governmental immunity did not apply in this case. We reverse the judgment of the trial court.

The following facts are necessary for our resolution of this appeal. The plaintiffs brought this action for personal injuries sustained by Colon while she attended school in New Haven. The plaintiffs alleged that Colon was in the hallway of the school when she was struck in the head and facial area by a door that was swung open by Geneva Pollack, a teacher at the school.

The first count of the complaint alleged that the defendant was liable for the negligence of its agent, servant or employee, Pollack. The defendant denied the allegations of the complaint and raised special defenses asserting, inter alia, that the plaintiffs’ claims were barred by the doctrine of governmental immunity. The defendant moved for summary judgment on the basis of governmental immunity and the plaintiffs’ failure to bring an action against the teacher. The trial court rejected the defendant’s argument that the plaintiffs’ failure to bring an action against the teacher barred their recovery. The court granted the motion for summary judgment, however, finding that the action of the teacher was discretionaiy and thus that the defendant was immune from liability under the doctrine of governmental immunity unless the action fell within an exception to the rule that a government agency may not be held hable for its discretionary acts. The court then determined that the only exception relevant to this case, the identifiable person-imminent harm exception, did not apply. The plaintiffs appealed from that decision.

“While ‘[ a] municipality itself was generally immune from liability for its tortious acts at common law; Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984) ... its employees faced the same personal tort liability as private individuals.’ Gordon v. Bridgeport Housing Authority, [208 Conn. 161, 165, 544 A.2d 1185 (1988)]. ‘[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. . . . Wright v. Brown, 167 Conn. 464, 471, 356 A.2d 176 [1975].’ Fraser v. Henninger, 173 Conn. 52, 60, 376 A.2d 406 (1977).

“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.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).

“[ T]he ultimate determination of whether qualified immunity applies is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues material to the applicability of the defense . . . [where the] resolution of those factual issues is properly left to the jury.” Mulligan v. Rioux, 229 Conn. 716, 736, 643 A.2d 1226 (1994), on appeal after remand, 38 Conn. App. 546, 662 A.2d 15 (1995).

I

The plaintiffs claim first that the court improperly determined that Pollack’s action in opening the door was discretionary rather than ministerial. We disagree.

“The hallmark of a discretionary act is that it requires the exercise of judgment. On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action. . . . Gordon v. Bridgeport Housing Authority, [supra, 208 Conn. 167-68]; Kolaniak v. Board of Education, 28 Conn. App. 277, 280-81, 610 A.2d 193 (1992). Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder; Gordon v. Bridgeport Housing Authority, supra, 165; there are cases where it is apparent from the complaint. See Evon v. Andrews, supra, [211 Conn. 505-507].” (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000).

It is apparent from the complaint that the plaintiffs have not alleged that Pollack was performing a ministerial duty. There is no allegation that Pollack was required to perform in a proscribed manner and failed to do so. See, e.g., Kolaniak v. Board of Education, supra, 28 Conn. App. 277. In Kolaniak, a student slipped and fell on an icy sidewalk at a public school. This court stated that because the board of education issued a bulletin stating that all maintenance workers had to keep the sidewalks clear of snow and ice, it could not prevail on its claim that the maintenance workers’ failure to clear the sidewalks was a discretionary act. In that case, the defendant asserted that “because [the maintenance workers] had the responsibility of deciding whether there was sufficient accumulation to begin clearing the walkways, they were performing a discretionary function, and that, therefore, the jury should have decided whether the doctrine of governmental immunity applied.” Id., 281. This court concluded, however, that the determination as to when to clear the sidewalks “in accordance with a directive by the poli-cymaking board of education” was not discretionary. Id.

In the present case, there was no directive describing the manner in which Pollack was to open doors. Rather, it appears that it is Pollack’s poor exercise of judgment when opening the door that forms the basis of the plaintiffs’ complaint. Accordingly, we conclude that Pollack’s actions were discretionary in nature.

II

The plaintiffs next claim that the court improperly determined, as a matter of law, that Colon was not an identifiable person subject to imminent harm to as to come within an exception to governmental immunity. We agree.

The defendant contends that General Statutes § 52-557n (a) (2), which provides in relevant part that “[e]xcept 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,” does not contain any exception to governmental immunity for discretionary acts where the failure to act would subject an identifiable person to imminent harm. We do not construe the absence of such reference to mean that this exception to governmental immunity no longer exists. The legislative history of § 52-557n is “worse than murky” and “reflects confusion with respect to precisely what part of the preexisting law was being codified, and what part was being limited.” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 188, 592 A.2d 912 (1991). Because the legislative history is not availing, we must apply the tools of statutory construction. Id., 187.

It is a well established rule of statutory construction that “[a] statute should not be construed as altering the common law rule, farther than the words of the statute import, and should not be construed as making any innovation upon the common law which the statute does not fairly express.” (Internal quotation marks omitted.) State v. Kish, 186 Conn. 757, 764, 443 A.2d 1274 (1982). It is equally well established that “statutes are not readily interpreted as abrogating common-law rights.” (Internal quotation marks omitted.) State v. Nugent, 199 Conn. 537, 548, 508 A.2d 728 (1986). Under the common law, immunity from liability for the performance of discretionary acts is subject to the aforementioned exception “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 . . . .” (Citations omitted.) Evon v. Andrews, supra, 211 Conn. 505. Section 52-557n contains no language evincing a legislative intent to vitiate this exception to governmental immunity for discretionary acts. In the absence of any such language, we do not construe the statute as barring recovery from a political subdivision where this exception applies. We thus conclude that there is no merit to the defendant’s argument.

The identifiable person-imminent harm exception applies “not only to identifiable individuals but also to narrowly defined classes of foreseeable victims.” Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994). “In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim. E.g., Evon v. Andrews, supra, 211 Conn. 507-508.” Burns v. Board of Education, supra, 647. In applying these factors, our Supreme Court has held that school children, who are statutorily required to attend school, are an identifiable class of foreseeable victims. Id., 648-49. The trial court in the present case properly concluded that Colon, who was a student at school, was an identifiable person and within a foreseeable class of victims. The issue, then, is whether the trial court properly determine, as a matter of law, that she was not subject to imminent harm.

In Evon v. Andrews, supra, 211 Conn. 502, the plaintiffs decedent filed an action against the city of Waterbury and its officers claiming that they had been negligent in failing reasonably to inspect and to enforce statutes concerning the maintenance of a multifamily rental unit that the decedent was occupying when it was destroyed by fire. In concluding that the allegations of the complaint did not rise to the level of imminence so as to come within the exception, the court stated that the imminent harm exception for discretionary acts did not apply under those facts because “[t]he risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future. . . . In the present instance, the fire could have occurred at any future time or not at all.” Id., 508.

In Burns v. Board of Education, supra, 228 Conn. 642, the plaintiff school child slipped and fell due to icy conditions in a main accessway of the school campus. In concluding that the school child fell within the identifiable person-imminent harm exception, the court stated that “[ujnlike 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. Further, the potential for harm from a fall on ice was significant and foreseeable.” Burns v. Board of Education, supra, 228 Conn. 650.

Our Supreme Court once again construed the imminent harm exception to governmental immunity in Pur-zycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998). In Purzycki, the plaintiffs sought damages for injuries sustained by the plaintiff second grade student when he was running and was tripped by a fellow student in an unsupervised school hallway during a lunch recess period. Id., 103. The hallway was not monitored, but teachers in the classrooms abutting the hallway were instructed to keep their doors open to hear or see any activity in the hallway. Id., 104. The jury returned a verdict in favor of the plaintiffs, stating in an interrogatory that the defendant had subjected the child to imminent harm. The trial court granted the defendant’s motion to set aside the verdict on the ground that the plaintiffs failed to prove that the plaintiff child was subject to imminent harm. The Supreme Court concluded that there was sufficient evidence from which the jury reasonably could have found that the imminent harm exception applied. The court found that the facts of that case were more analogous to those of Bums rather than Evon. The court stated: “In Bums, it was critical to our conclusion that governmental immunity was not a defense that ‘the danger was limited to the duration of the temporary . . . condition . . . [and that] the potential for harm . . . was significant and foreseeable.’ Burns v. Board of Education, supra, 228 Conn. 650. Similarly, the present case involves a limited time period and limited geographical area, namely, the one-half horn 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. Finally, the risk of harm was significant and foreseeable, as shown by the principal’s testimony ‘that if elementary schoolchildren are not supervised, they tend to run and engage in horseplay that often results in injuries.’ ” Purzycki v. Fairfield, supra, 110.

Finally, in Bonamico v. Middletown, 47 Conn. App. 758, 706 A.2d 1386 (1998), the minor plaintiff was in school when she was injured by a bean pellet that was thrown at her by a student while she was walking down a school corridor. Id., 759. This court originally held that the complaint failed to allege sufficient facts to bring the case within the identifiable person-imminent harm exception to governmental immunity because the plaintiff could have been injured at any time in the future or not at all. Id., 762. The Supreme Court remanded the case to this court for reconsideration in light of Purzycki v. Fairfield, supra, 244 Conn. 191. Bonamico v. Middletown, 244 Conn. 923, 714 A.2d 8 (1998). On remand, this court vacated its previous decision, reasoning that Purzycki controlled and required a result contrary to that previously reached. Bonamico v. Middletown, 49 Conn. App. 605, 606, 713 A.2d 1291 (1998).

The trial court in the present case found that the facts of this case are distinguishable from Purzycki because the plaintiff did not present any evidence to show that she was subject to danger that was limited in duration or that the potential for harm was significant or foreseeable. Accordingly, the court found that the present case was more analogous to Evon v. Andrews, supra, 211 Conn. 501, because the injury could have occurred at any time or not at all. In light of the precedent cited previously, we conclude that Colon was subject to danger that was limited in duration and that the potential for harm was significant and foreseeable. Colon was a student required by statute to be in school. It is alleged that Pollack opened a door in a negligent manner causing Colon, a student, to be injured. The danger presented was limited in duration, as it could happen only when students are in the hallway in a dangerous spot. Moreover, the potential for injury from being hit by an opening door is significant. Accordingly, we conclude that governmental immunity does not apply to the present case because the identifiable person-imminent harm exception is applicable.

The judgment is reversed and the case is remanded for further proceedings on counts one and four on the plaintiffs’ complaint.

In this opinion the other judges concurred.

       The plaintiff Maribel Colon, a minor, brought this action by and through her mother, the plaintiff Maria Garcia. The plaintiff Maria Garcia also alleged a claim for damages against the defendants arising from the minor plaintiffs injuries.

       In addition to the claims against the defendant board of education, the plaintiffs alleged claims against the chairman of the board of education, the superintendent of schools and the city of New Haven. Summary judgment was rendered in favor of those defendants, and the plaintiffs have not alleged any impropriety with the trial court’s judgment as to those defendants. The plaintiffs’ claims on appeal concern only the court’s judgment as to count one of the complaint, which was brought against the board of education. Therefore, in this opinion we refer to the board of educa! ion as the defendant.
      In count four, the plaintiff Maria Garcia alleges a claim for damages for medical expenses incurred in connection with the minor plaintiffs injuries. The court concluded that because the motion for summary judgment was granted in favor of the defendant as to counts one, two and three, summary judgment should be rendered in favor of the defendant as to count four as well. Because we reverse the judgment of the trial court as to count one of the complaint, the court's judgment as to count four is also reversed to the extent that count four depends on the claims in count one.

       In count one of the complaint, the plaintiffs alleged that Pollack was negligent in the following ways: “(a) In that she was inattentive in that she did not pay proper attention to the safety of the students, including the minor plaintiff, when she opened the aforementioned door; (Jb) In that she opened the aforementioned door in a quick and abrupt manner, endangering the safety of the students, including the minor plaintiff, who were in the hallway; (c) In that she failed to warn the students in any manner that she was opening a door into a school hallway, when she knew or should have known that opening said door might cause injury or harm to the students including the minor plaintiff; [and] (d) In that she failed to ascertain whether or not students were in the pathway of the door as she opened it, when she knew or should have known that students could be in the hallway at the time.”

       As an alternate ground for affirming the trial court’s judgment, the defendant argues that, as a matter of law, the plaintiffs cannot recover on count one because the only cause of action they pleaded against the defendant was common-law vicarious liability. The defendant maintains that the plaintiffs cannot recover under this theory because the teacher has not been named as a defendant and because the plaintiffs have not alleged a violation of a statute that abrogates governmental immunity.
      The plaintiffs brought this action against the defendant under a theory of vicarious liability, more specifically, the doctrine of respondeat superior. See Daoust v. McWilliams, 49 Conn. App. 715, 730, 716 A.2d 922 (1998). When vicarious liability is alleged, the injured plaintiff may look for reparation from either the agent or the principal. Alvarez v. New Haven Register, Inc., 249 Conn. 709, 720, 735 A.2d 306 (1999). Accordingly, the plaintiffs may be able to recover under a theory of vicarious liability.
      The defendant also argues that the plaintiffs cannot recover because, according to Williams v. New Haven, 243 Conn. 763, 707 A.2d 1251 (1998), governmental immunity is a complete defense to a common-law tort claim, and the plaintiffs did not rely on any statute that limits or abrogates that immunity. The Supreme Court in Williams noted that “throughout the entire course of this litigation, including the allegations of the complaint, the trial and this appeal, the plaintiffs have relied solely on their claim of common-law negligence on the part of the defendant.” Id., 766. In this case, unlike in Williams, the plaintiffs raised General Statutes § 52-557n, which sets forth general principles of municipal liability and immunity, in opposing the defendant’s motion for summary judgment. While the defendant is correct in pointing out that the plaintiffs did not cite § 52-557n in their complaint or amend their complaint to include such statute, the plaintiffs’ failure to do so does not necessarily preclude recovery. Although Practice Book § 10-3 (a) provides that when any claim in a complaint is grounded on a statute, the statute shall be specifically identified by its number, this rule has been construed as directory rather than mandatory. Criscuolo v. Mauro Motors, Inc., 58 Conn. App. 537, 545, 754 A.2d 810 (2000). As long as the defendant is sufficiently apprised of the nature of the action; Goodrich v. Diodato, 48 Conn. App. 436, 443, 710 A.2d 818 (1998); the failure to comply with the directive of Practice Book § 10-3 (a) will not bar recovery. See Criscuolo v. Mauro Motors, Inc., supra, 546-47.


author: PELLEGRINO, J.

text:
    JULIE WAY v. BRYAN WAY
    (AC 17974)
    Schaller, Zarella and Pellegrino, Js.
    Argued May 31
    officially released October 3, 2000

      Stephen E. Reck, for the appellant (plaintiff).

      Raymond L. Baribeault, Jr., with whom, on the brief, was Jeffrey W. Hill, for the appellee (defendant).
   Opinion

PELLEGRINO, J.

In this marriage dissolution action, the plaintiff, Julie Way, appeals from the judgment of the trial court granting the motion of the defendant, Bryan Way, to open and modify the original dissolution decree for the purpose of reducing her household support. On appeal, the plaintiff claims that the court (1) lacked jurisdiction to open and modify the judgment pursuant to General Statutes § 52-212a because the defendant did not file his motion within four months following the date on which the judgment was rendered, (2) even if it had jurisdiction, improperly determined that the award of household support was not legally enforceable and (3) improperly considered the defendant’s pro se status in terminating the award. We conclude that the plaintiff failed to preserve the first claim for appellate review. We agree with her second claim, reverse the judgment of the trial court on that ground and therefore do not reach the third claim.

The relevant facts are as follows. The court dissolved the parties’ marriage on September 25, 1996, after an uncontested hearing in which only the plaintiff was represented by counsel. The final dissolution decree incorporated the terms of a written separation agreement, negotiated by the parties but drafted by the plaintiffs attorney, concerning alimony, disposition of property and the custody, care, education, visitation, maintenance and support of the three minor children. The agreement provided, inter aha, that the plaintiff would receive 80 percent or more of the parties’ assets, including the marital home, that the children would reside with the plaintiff, subject to reasonable visitation by the defendant, and that the defendant would pay to the plaintiff child support in the amount of $345 per week in accordance with state child support guidelines. Paragraph seven of the separation agreement, entitled “Household Support to Wife,” further states that there would be no award of periodic alimony to either party and required the defendant to contribute $260 per week toward the plaintiff’s household expenses for a period of five years. The order was nonmodifiable as to duration or amount, and was nontaxable to the plaintiff and nondeductible by the defendant.

The parties operated under the terms of the judgment until July, 1997, when the defendant was laid off by his employer. His average annual earnings had been $65,000 to $70,000 at the time of the dissolution, but his new job paid $15 hourly, which meant that he earned approximately one-half of his prior income. As a result of his changed employment, the defendant advised the plaintiff that he was reducing his $605 weekly obligation of combined child ($345) and household ($260) support to $376 per week.

In October, 1997, the plaintiff served the defendant with a contempt citation, seeking the difference between the court-ordered $605 weekly financial obligation and the defendant’s weekly payment of $376. The defendant responded by filing a motion for modification in November, 1997, claiming a substantial change of circumstances and questioning the meaning of paragraph seven. In his motion, the defendant claimed that the $260 per week in household support was, in effect, a form of child support and, when considered from that perspective, his weekly support obligation of $605 deviated more than 15 percent above the child support guidelines. He therefore requested that the court (1) clarify that the award of household support was intended to be additional child support, and (2) modify and reduce his financial obligation to a total of $376 per week. Thereafter, a two day hearing was conducted, with both parties testifying as to their respective understandings of paragraph seven.

On December 18, 1997, the court rendered judgment from the bench, granting the defendant’s motion. The court stated that it found the provisions in paragraph seven “contradictory and confusing,” and never before had encountered such provisions in a separation agreement. The court concluded that the disputed household support could not be considered alimony, which the parties had expressly waived, and could not be considered a property settlement, since the dissolution decree had allocated most, if not all, of the parties’ assets to the plaintiff. The court also stated that the pro se defendant might not have understood the meaning of the phrase “nonmodifiable as to duration and amount.” The court further stated that “[t]he transcript of the final hearing revealed ... an inadequate canvass of the defendant and also lax description of the terms of the agreement itself.” The court finally stated that “[t]he agreement ... is void of any section which would indicate that the defendant was given an opportunity to have it reviewed by counsel prior to signing it, which is a provision which I certainly included in any separation agreement I ever drafted with a pro se. . . .

“I think the drafter [plaintiff] will have to bear the burden in this case for not assuring this court; that the defendant understood the implications that the plaintiff would like this court to believe the defendant understood.” The court then determined that paragraph seven, as incorporated into the judgment of dissolution, was not legally enforceable due to its ambiguity, ordered the defendant to pay to the plaintiff an arrearage of $5,476.28 and, with the plaintiffs concurrence, reduced the defendant’s child support obligation to $270 per week. This appeal of the court’s determination that the household support provision was not legally enforceable followed. The plaintiff subsequently requested, and this court ordered, that the trial court articulate its decision to modify the judgment of dissolution.

I

The plaintiff first claims that the court lacked jurisdiction to open and modify the judgment of dissolution because the defendant’s motion was filed more than four months after the decree was entered. Because the defendant failed to raise the issue of timeliness in the trial court, we are not bound to review this claim. See Practice Book § 60-5; Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 170, 745 A.2d 178 (2000). We note, nonetheless, that this argument has no merit.

General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment . . . may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .” (Emphasis added.) See Practice Book § 17-4. Under General Statutes § 46b-86 (a), the trial court retains continuing jurisdiction, except where precluded by the decree, to modify orders concerning alimony or support. Bunche v. Bunche, 180 Conn. 285, 288, 429 A.2d 874 (1980); Croke v. Croke, 4 Conn. App. 663, 664, 496 A.2d 235 (1985). When a decree contains language precluding modification, a trial court, under its continuing jurisdiction, has the power to determine whether the preclusive language in the decree should be enforced. See Amodio v. Amodio, 247 Conn. 724, 730, 724 A.2d 1084 (1999). Accordingly, in this case, because the trial court possessed continuing jurisdiction, the court was not constrained by the four month limit of § 52-212a.

II

The plaintiff next claims that the court improperly terminated the award of household support on the ground that it was not legally enforceable. She contends that paragraph seven clearly and unambiguously provides that the award of household support is “nonmodi-fiable as to duration and amount,” and that agreements precluding modification of alimony and support are permissible under § 46b-86 (a). We agree.

Our analysis begins with a discussion of the appropriate standard of review. In a marriage dissolution action, an agreement of the parties executed at the time of the dissolution and incoiporated into the judgment is a contract of the parties. Amodio v. Amodio, 56 Conn. App. 459, 470, 743 A.2d 1135, cert. granted on other grounds, 253 Conn. 910, 754 A.2d 160 (2000) (appeal withdrawn September 27, 2000). “The construction of a contract to ascertain the intent of the parties presents a question of law when the contract or agreement is unambiguous within the four comers of the instrument. . . . The scope of review in such cases is plenary.” (Citations omitted.) Id.

“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 . . . may at any time thereafter be . . . modified by said court upon a showing of a substantial change in the circumstances of either party . . . .” (Emphasis added.)

We recently considered the nonmodification provision of § 46b-86 (a) in Amodio v. Amodio, supra, 56 Conn. App. 471, and determined that “[sjection 46b-86 (a) clearly permits a dissolution court to make nonmodi-fiable . . . awards. . . . When a provision in a divorce decree that precludes or restricts a later court’s power to modify financial orders is clear and unambiguous . . . that provision will be upheld. ... A party to a contract is entitled to rely on its provisions as the final interpretation of that party’s rights and duties.” (Citations omitted; internal quotation marks omitted.)

In the present case, the nonmodification provision in the order for household support is clear, unambiguous and “within the four comers of the instrument.” Id., 470. We therefore conclude that the provision is enforceable as a matter of law.

The defendant does not address the contractual nature of the nonmodification provision, but chooses to interpret the plaintiffs claim as a challenge to the trial court’s findings of fact, namely, that the order of household support does not fit within the definition of either child support, alimony or an assignment of property and, due to its inherent ambiguity, is not legally enforceable. He contends that appellate review of findings of fact is limited solely to whether the court’s conclusion was reasonable and that the court in the present case reasonably could have reached the conclusion that it did. We are not persuaded.

Even if the defendant were correct in asserting that the plaintiff is challenging the court’s findings of fact as to the nature of the support obligation, the issue is moot because the defendant’s obligation to pay household expenses is legally enforceable regardless of how it is characterized.

We interpreted § 46b-86 (a) as applied to child support orders in Amodio, where the primary issue on appeal was “whether General Statutes § 46b-86 (a) precludes modification of the amount of child support awarded at the time of a judgment of dissolution of marriage in accordance with a written agreement of the parties that precluded such modification, which agreement was incorporated by reference into the judgment of dissolution.” Amodio v. Amodio, supra, 56 Conn. App. 460. There, as here, the support award was substantially more than the amount recommended by the statutory guidelines, and the plaintiff appealed from the trial court’s order of a downward modification. Id., 464.

We determined in Amodio that modification of the child support award was precluded pursuant to § 46b-86 (a) because child support in an amount deemed appropriate was agreed upon by the parties, reduced to writing and approved by the court rendering the judgment of dissolution. Id., 472. The parties’ agreement also clearly and unambiguously precluded a downward modification of the award, despite the fact that the award exceeded the statutory guidelines by more than 15 percent. Id. Moreover, we noted that the defendant did not appeal from the original judgment and stated that the plaintiff was entitled to have the benefit of the bargain that the parties had made. Id., 473. We accordingly concluded that the trial court failed to give effect to the parties’ agreement and improperly reduced the child support order. Id., 472.

Our reasoning in Amodio is applicable here. Even if the award of household support to the plaintiff is considered child support, the defendant’s argument must fail pursuant to § 46b-86 (a) because the parties agreed to the award prior to its inclusion in the judgment of dissolution, and the plain language of paragraph seven clearly and unambiguously states that the award is nonmodifiable as to duration and amount. The fact that the combined award of household and child support exceeds the statutory guidelines for child support is immaterial, as it was in Amodio. Furthermore, the defendant indicated during the original dissolution hearing in 1996 that he understood the agreement, and he never appealed from the original judgment. Other considerations that favor our strict interpretation of the norunodification provision in this case include the plaintiffs agreement to a reduction in the weekly child support payment from $345 to $270 and the fact that the plaintiff waived her right to alimony purportedly because the defendant agreed to provide her with household support.

The defendant argues that the ruling in Amodio is not relevant in the present case because, unlike the situation in Amodio, the court found mutual mistake as to the parties’ understanding of paragraph seven, the language of paragraph seven was ambiguous, the plaintiff did not comply with conditions precedent to the payments, the defendant’s financial circumstances changed substantially to his detriment and the court did not adequately canvass the defendant. We do not agree.

It is true that the parties expressed different interpretations during the December, 1997 hearing as to whether the award of household support should be characterized as alimony or child support. At that time, the court also found that the defendant may have misunderstood the meaning of the term “nonmodifiable as to duration and amount.” It made no similar finding, however, as to the plaintiff. Accordingly, the court did not make a finding of mutual mistake regarding the meaning of the nonmodification provision, as the defendant suggests. In addition, the language of paragraph seven was clear and unambiguous insofar as nonmodifi-cation is concerned. The fact that there may have been unfulfilled conditions precedent to the defendant’s payments, that the defendant’s financial circumstances may have changed or that there may have been an inadequate canvass of the defendant at the hearing prior to the original judgment has no bearing whatsoever on the question, raised here and in Amodio, of whether a clear and unambiguous nonmodification provision in a judgment of dissolution precludes modification of a support order as a matter of law.

Paragraph seven also would be legally enforceable as an award of alimony or property. Section 46b-86 (a) “ ‘clearly permits a trial court to make periodic awards of alimony nonmodifiable’ Wichman v. Wichman, 49 Conn. App. 529, 535, 714 A.2d 1274, cert. denied, 247 Conn. 910, 719 A.2d 906 (1998); lump sum alimony is a final judgment not modifiable by the court even if there is a change in circumstances; Smith v. Smith, 249 Conn. 265, 276, 752 A.2d 1023 (1999); and it is well established that the assignment of property is nonmodifiable. Taylor v. Taylor, 57 Conn. App. 528, 533, 752 A.2d 1113 (2000).

Accordingly, the award of household support is enforceable as a matter of law, regardless of how it may have been characterized by the defendant or the trial court.

Ill

The plaintiff finally claims that the court improperly considered the pro se status of the defendant in terminating the provision for household support. In light of our conclusion in part II of this opinion that paragraph seven is legally enforceable, we need not consider this claim.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The judgment states: “The parties hereto have submitted a written agreement dated September 25, 1996, concerning the custody, care, education, visitation, maintenance, support of their minor children, alimony, and the disposition of their property, which agreement the court finds to be fair and equitable, and which agreement has been approved and made part of the court file.” All provisions in the agreement relating to custody and visitation, child support, health insurance, household support to wife, pension and investments, tax exemptions, life insurance, family residence, bank accounts and cofiege tuition were repeated nearly verbatim in the judgment.

       All future references to paragraph seven are to its terms as incorporated into the judgment of dissolution, unless otherwise noted.
      Paragraph seven states: “Each party waives and relinquishes any claim to periodic alimony from the other.
      “The husband shall contribute the sum of two hundred sixty dollars ($260.00) per week toward the wife’s household expenses for a period of five years.
      “This agreement is made in contemplation of the serious illness of the parties’ minor child and the need for the wife to be available to him, and the impediment, thereafter, to her gainful employment. However, it is expressly agreed that said order of contribution is nonmodifiable as to duration or amount and is nontaxable to the wife, nor deductible by the husband.
      “The payment of household expenses shall not be discharged in bankruptcy, and husband shall reaffirm said indemnification to wife in the event of involuntary discharge.
      “The wife agrees that she shall commence studies toward achieving her master’s degree within a reasonable time after the entry of judgment of the dissolution of marriage and shall continue with those independent studies until the degree is completed.”

       Each party was represented by counsel.

       The plaintiff withdrew her request for a contempt citation at the December 18, 1997 hearing.

       The articulation reflected the previously discussed statements by the court during the December, 1997 hearing.

       The plaintiff incorrectly characterizes the timeliness claim as jurisdictional. In Kim v. Magnotta, 249 Conn. 94, 101, 733 A.2d 809 (1999), our Supreme Court held that the four month limitation imposed by § 52-212a does not implicate the court’s subject, matter jurisdiction. Finding the concept of personal jurisdiction inapplicable as well, the court concluded that “[t]he better construction of the statute is to characterize it as a limitation on the trial court’s general authority to grant relief from a judgment . . . .” Id., 102. Although claims implicating the court’s subject matter jurisdiction may be raised at any time, whether or not raised at trial; Taft v. Wheelabrator

        Putnam, Inc., 55 Conn. App. 359, 362 n.l, 742 A.2d 366 (1999), cert. granted on other grounds, 252 Conn. 918, 919, 744 A.2d 439, 440 (2000); this is not such a claim.

       In Amodio, however, an exception stipulated that the nonmodification provision would not apply if there was an increase in the defendant’s gross wages.

       The court asked the defendant during the 1996 hearing prior to the dissolution if he had read the agreement, if he understood the agreement, if he signed the agreement willingly and if he was satisfied with the agreement, to which the defendant responded, “Yes.” The court also asked the defendant if he had any questions of counsel or the court about the agreement, or the effect of the agreement, to which the defendant responded, “No.”

       The plaintiff stated during the December, 1997 hearing: “I agreed to waive the alimony ... in lieu of the household support. ... It was my understanding that if he had to take a lesser job, the child support was modifiable based on the way our agreement was stipulated, and that the household support was an amount that was nonmodifiable . ...” In response to additional questioning, she stated that she agreed to waive the alimony “[o]nly under the condition that it was a nonmodifiable household support, because those were the terms [the defendant] was insistent on in order to make that agreement signable.”


author: MIHALAKOS, J.

text:
    KATHERINE REED, ADMINISTRATRIX (ESTATE OF FREDDIE MONAST) v. COMMERCIAL UNION INSURANCE COMPANY
    (AC 19316)
    Landau, Schaller and Mihalakos, Js.
    Argued May 4
    officially released October 3, 2000

      James B. McCarthy, with whom was Thomas B. McCarthy, for the appellant (plaintiff).

      Lloyd D. Pedersen, with whom, on the brief, was Ann Grunbeck Monaghan, for the appellee (named defendant).

      Karen Katz, with whom was Christopher C. Cobb, for the appellee (defendant Shipsview Corporation).
   Opinion

MIHALAKOS, J.

The plaintiff, Katherine Reed, admin-istratrix of the estate of Freddie Monast, appeals from the judgment of the trial court rendered after it granted the motion by the defendant Commercial Union Insurance Company (Commercial Union) to dismiss her amended complaint on the ground of forum non conve-niens. On appeal, the plaintiff claims that the court abused its discretion in granting the motion to dismiss. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On June 29, 1995, Monast was killed by a truck operated by his fellow employee, the defendant Curtice W. Hathaway, while working for the defendant Shipsview Corporation (Shipsview) on Interstate 691 in Meriden. At the time of the accident, Monast and Hathaway were residents of Massachusetts, and Shipsview had its principal place of business there. Furthermore, at that time, a business automobile insurance policy existed between Ships-view and Commercial Union, which also had its principal place of business in Massachusetts. The insurance policy was negotiated and executed in Massachusetts through a Massachusetts agent. The policy covers thirteen enumerated automobiles owned by Shipsview, all of which were registered in Massachusetts.

On July 31, 1996, the plaintiff instituted a wrongful death action against Hathaway and Shipsview in the Superior Court for the judicial district of New Haven at Meriden. On November 21, 1996, Commercial Union denied coverage for the claims contained in the underlying wrongful death action. On January 23, 1998, Commercial Union notified Shipsview that it would participate in providing a full defense of the plaintiffs action subject to a full reservation of rights, including the right to withdraw its legal representation at any time.

The plaintiff initiated this declaratory judgment action against Commercial Union on April 23,1998. The plaintiff sought a declaration as to whether there was coverage under Commercial Union’s policy with Ships-view for the claims alleged by the plaintiff in the underlying wrongful death action. Commercial Union filed a motion to dismiss this declaratory judgment action, arguing that the plaintiffs failure to name Hathaway and Shipsview as parties deprived the court of subject matter jurisdiction. The plaintiff subsequently filed a motion to cite in Hathaway and Shipsview, which was granted by the court on August 25, 1998. On November 6, 1998, Commercial Union then filed a second motion to dismiss, claiming that Hathaway could not be served and, further, that the court should decline jurisdiction under the doctrine of forum non conveniens. On December 31, 1998, the plaintiff filed a memorandum of law in opposition to the motion to dismiss.

On February 2, 1999, the court granted Commercial Union’s motion to dismiss. The court found that Massachusetts, not Connecticut, is the appropriate forum to hear this action and declined jurisdiction on the basis of forum non conveniens. On February 8, 1999, Commercial Union filed a declaratory judgment action in Barnstable Superior Court in the Commonwealth of Massachusetts, which is pending. This appeal followed.

The plaintiff claims that the court abused its discretion in granting the motion to dismiss. The plaintiff claims that Connecticut, not Massachusetts, is the proper forum for this declaratory judgment action. We agree.

“Appellate review of the trial court’s determination that Connecticut was an inconvenient forum for this . . . litigation must proceed from established principles of law. As a common law matter, the doctrine of forum non conveniens vests discretion in the trial court to decide where trial will best serve the convenience of the parties and the ends of justice. ... In our application of the abuse of discretion standard, we must accept the proposition that simply to disagree with the [trial] court as if the facts had been presented to this court in the first instance cannot be the basis of our decision. . . . Meaningful review, even from this circumscribed perspective, nonetheless encompasses a determination whether the trial court abused its discretion as to either the facts or the law. . . .

“Emphasis on the trial court's discretion does not, however, overshadow the central principle of the forum non conveniens doctrine that unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed. . . . Although it would be inappropriate to invoke rigid rule to govern discretion ... it bears emphasis that invocation of the doctrine of forum non conveniens is a drastic remedy . . . which the trial court must approach with caution and restraint. The trial court does not have unchecked discretion to dismiss cases from a plaintiffs chosen forum simply because another forum, in the court’s view, may be superior to that chosen by the plaintiff. . . . Although a trial court applying the doctrine of forum non conveniens must walk a delicate line to avoid implicitly sanctioning forum-shopping by either litigant at the expense of the other ... it cannot exercise its discretion in order to level the playing field between the parties. The plaintiffs choice of forum, which may well have been chosen precisely because it provides the plaintiff with certain procedural or substantive advantages, should be respected unless equity weighs strongly in favor of the defendant.” (Citations omitted; internal quotation marks omitted.) Picketts v. International Playtex, Inc., 215 Conn. 490, 500-501, 576 A.2d 518 (1990).

The narrow question that the court was asked to decide in this declaratory judgment action was one of law. In essence, the court was asked to review Commercial Union’s policy of insurance. As such, location of witnesses and the convenience of the parties is of minimal consequence in the determination of the narrow issue presented to the court. Given the strong policy our courts have followed regarding a plaintiffs choice of forum and the lack of any factors that would override that policy, we conclude that the court abused its discretion in granting the motion to dismiss on the basis of forum non conveniens.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Shipsview is a Massachusetts corporation doing business in Connecticut. It signed a $3.5 million contract with the state of Connecticut to paint bridges at various locations throughout Connecticut.

       The court, in its ruling on the issue of personal jurisdiction as to the defendant Hathaway, made certain findings of fact, although no evidentiary hearing was held. No counter affidavits were filed by the plaintiff, nor was any motion for articulation ever filed.

       In the prayer for relief in her amended complaint dated August 27, 1998, the plaintiff asked the court, inter alia, for “a declaratory judgment determining that there is coverage under the defendant’s policy with Ships-view ... for the claims the plaintiff asserts ... in Meriden Superior Court against [Hathaway and Shipsview].”


author: O’CONNELL, J. ZARELLA, J.,

text:
    RONALD F. PETRONELLA, COMMISSIONER OF LABOR, EX REL. GLENN MAIORANO ET AL. v. VENTURE PARTNERS, LTD., ET AL.
    (AC 18759)
    Landau, Zarella and O’Connell, Js.
    Argued March 21
    officially released October 3, 2000

      Robert A. Ziegler, with whom, on the brief, were Leslee B. Hill, Laila M. Ghabrial and Edward B. Bradley, for the appellants (defendant Venture Partners, Ltd., et al.).

      Glenn A. Woods, assistant attorney general, with whom were Edward F. Reynolds, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Gary G. Williams, assistant attorney general, for the appellee (plaintiff).
   Opinion

O’CONNELL, J.

The plaintiff, the commissioner of labor, instituted this action on behalf of six individual claimants seeking the recovery of unpaid wages due from the defendants to the claimants pursuant to General Statutes § 31-72. The trial court found in favor of the plaintiff, concluding that the defendants Venture Partners, Ltd., Gary Laskowski and Jonathan Betts were liable for the payment of those unpaid wages. The defendants appeal, claiming that the court improperly (1) determined that the defendants were employers of the wage claimants, (2) determined that Laskowski and Betts were individually liable for the payment of wages and (3) awarded double damages and attorney’s fees. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The defendant Venture Partners, Ltd., (Venture) is a Connecticut corporation engaged in management consulting and investment banking. It assists businesses that have financial or management problems by advising their owners, directors or shareholders on how to solve those problems. The defendant Specialty Publishers, Inc. (Specialty), a company with financial and management problems, sought help from Venture. Specialty and Venture executed a contract (engagement letter) detailing Specialty’s retention of Venture’s services. Pursuant to that contract, Laskowski, the president and treasurer of Venture, and Betts, the vice president and secretary of Venture, arrived at Specialty in September, 1992, and began work toward the end of October, 1992. The plaintiff commenced this action on behalf of the individual claimants in October, 1993, seeking unpaid wages for the period of August, 1992, through October, 1992. The court awarded double damages and attorney’s fees, and the defendants appealed.

I

The defendants first claim that the court improperly found that they were employers of the wage claimants.

Before addressing the merits of this claim, we note that the wage claimants sought, and the court awarded, double damages for the period from August, 1992, through October, 1992. The engagement letter relied on by the defendants is dated October 30,1992. The dissent argues, therefore, that the defendants cannot be liable for wages that accrued prior to their involvement with the company. In this regard, we simply note that the court specifically found that the defendants assumed authority and control over Specialty such that they are hable for the payment of those wages, and that the defendants also induced the wage claimants to continue working by promising them that wages for that work also would be paid. The wage claimants therefore continued to work in November and December of 1992, and were paid during that time. The wage claimants, however, never were paid the amounts owed to them for the period between August, 1992, and October, 1992.

The court determined that “[t]he question before the court ... is whether [the defendants] were in a position of control of the company to such an extent that they can be held hable for the payment of unpaid wages.” The court answered that question in the affirmative, concluding that because “Venture Partners, Ltd., as a corporation, had the ultimate authority and control to pay wages, it is hable for the payment of those wages. Further, since Gary Laskowski and Jonathan Betts, as the two executives of Venture, had the ultimate authority and control within the corporation to pay wages, then they as individuals are also hable for the payment of those wages.” The defendants assert that those findings are not supported by the evidence.

We initially note that on appeal it is the function of this court to determine whether the decision of the trial court is clearly erroneous. “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. . . . We cannot retry the facts or pass on 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.” (Internal quotation marks omitted.) United Components, Inc. v. Wdowiak, 239 Conn. 259, 263, 684 A.2d 693 (1996).

Section 31-72 provides that “[w]hen any employer fails to pay an employee wages in accordance with the provisions of sections 31-71ato 31-711, inclusive, or fails to compensate an employee in accordance with section 31-76k . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court . . . .” Section 31-72 also authorizes the labor commissioner to bring an action to collect unpaid wages.

“[ W]hen placed in its statutory context, the term employer as used in § 31-72 encompasses an individual who possesses the ultimate authority and control within a corporate employer to set the hours of employment and pay wages and therefore is the specific or exclusive cause of improperly failing to do so.” Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 462, 704 A.2d 222 (1997). The central question, therefore, is whether the defendants Venture, Laskowski and Betts were in control of the company to such an extent that they can be held liable for the payment of unpaid wages. The court made the following findings to support its conclusion that Venture, Laskowski and Betts possessed such control over Specialty.

“Laskowski and Betts arrived at Specialty Publishers, Inc., in or about early September of 1992, and they began work toward the end of October. Peter Jacquith, who was the sole shareholder of Specialty Publishers, Inc., held a required meeting of the employees in October, at which he introduced Laskowski and Betts as their new managers. The employees were told to report to Laskowski and Betts, and that Laskowski and Betts would handle everything on a day-to-day basis. The employees were told that everything pertaining to the business had to be cleared through said defendants. From the beginning, the employees were told that anything pertaining to the business that the employees conducted for Specialty Publishers . . . would have to be cleared with said defendants because they were managing the company.

“Dennis Flavin as president of Specialty [Publishers, Inc.] had been fired, and Venture, Laskowski and Betts in their new positions managed, directed and ran the daily operations of Specialty Publishers, Inc., with particular emphasis on the financial operations of the company. They had complete dominion over how the moneys at Specialty Publishers, Inc., were to be spent.

“Gary Laskowski and Jonathan Betts in their positions as the officers of Venture Partners, Ltd., controlled and dominated Specialty Publishers, Inc., and in that position of authority at Specialty Publishers, Inc., promised to pay the claimants all wages due them.

“From the beginning of their involvement at the company, Laskowski and Betts assumed authority and control. Their control resulted from their specific, unencumbered dominion and control over how the moneys at Specialty were to be spent. They decided which creditors would be paid and which would not be paid. All decisions concerning the running of the company were made by them. They directed the day-to-day business of the company and decided what the responsibilities of the employees were to be. Prior to his leaving the company, Dennis Flavin, as president of Specialty, had made 95 percent of the decisions concerning the company. After [Flavin’s] removal, Laskow-ski and Betts made 95 percent of the decisions, even to the extent of not allowing employees to open the mail.

“Said defendants terminated the health insurance of the employees, refused to pay the landlord back rent, fired the accountant who had worked for Specialty, hired other accountants, changed the payroll system, and failed to pay back wages of the five claimants. Although they did not pay wages for August, September, and October, they continued to promise the claimants that those wages would be paid in order to induce them to keep working. They did pay them for work they did in November and December, but fired them in December without paying them for the back wages.

“The defendants claim that all decisions were made by Jacquith even though he almost never showed up at the company. The court does not believe that Jacquith controlled the day-to-day operations of the company or made its financial decisions. In fact, the evidence indicates that Jacquith was used as a rubber stamp of whatever Laskowski and Betts decided should be paid.

“Ultimate dominion, authority and control over Specialty Publishers by Gary Laskowski, Jonathan Betts, and Venture Partners was also exhibited in ownership and signatory authority over the bank accounts in which moneys belonging to Specialty Publishers were deposited. Laskowski and Betts possessed sole signatory authority over at least two checking accounts in which moneys from Specialty were paid from and deposited to the accounts of Venture.

“In summary, the court finds that the three defendants namely, Laskowski, Betts, and Venture Partners were in complete control of Specialty, and that they are liable for refusing to pay wages to the claimants, especially in light of their promise to pay those wages to induce the claimants to continue working during the months of November and December.”

In the first issue on appeal, we are asked to decide whether the court properly found that the defendants’ conduct went beyond giving advice and consulting services to Specialty such that the defendants became the wage claimants’ employers. The defendants rely on the letter of engagement in an attempt to establish that at all times they were merely offering advice and guidance in an effort to resolve Specialty’s financial and management problems. The defendants argue that if the court had given more weight to the letter of engagement, it would have found that the defendants were merely consultants and therefore could not have been the wage claimants’ employers. The defendants further argue that the court improperly interpreted the engagement letter. We are not persuaded.

The court considered all of the evidence and determined that the claimants’ testimony was entitled to greater weight than was the engagement letter relied on by the defendants. The wage claimants testified as to the defendants’ day-to-day activities, from which the court properly could find that the defendants were employers and not merely consultants. The defendants argue that the court should not have given weight to the wage claimants’ testimony, however, because they only knew what they observed concerning Specialty’s operation and lacked knowledge of the internal organization and operation of the company. This was a valid subject for cross-examination, but having heard all of the evidence, it was the sole province of the court to determine the credibility of the witnesses and the weight to be given to the evidence. “The trial court, as the finder of fact, is in the best position to assess the credibility of the witnesses testifying before it.” (Internal quotation marks omitted.) Thomsen v. Aqua Massage International, Inc., 51 Conn. App. 201, 206, 721 A.2d 137 (1998), cert. denied, 248 Conn. 902, 732 A.2d 178 (1999). We cannot disturb those findings or the court’s ultimate conclusions unless they are clearly erroneous. See In re Martin K., 56 Conn. App. 10, 11, 741 A.2d 10 (1999).

The engagement letter relied on by the defendants was in evidence, and we have no reason to believe that it was not considered by the court. That court simply did not give it the weight that the defendants would like. Moreover, at best, the engagement letter had little relevance to the issue before the court. The letter-spelled out the expectations of Specialty and Venture as to the part they expected the defendants to play as consultants. The ultimate issue, however, was not what the contractual terms were between Specialty and Venture, but whether the relationship between the defendants and the wage claimants in fact evolved into one of employer and employee. The engagement letter, therefore, would not foreclose the court from concluding that the defendants had gone beyond the original contracted intent and had moved into the position of “employers.”

The court’s findings that the defendants were in charge and had taken over Specialty does not leave us with the firm and definite impression that a mistake has been committed. Cf. Nelson v. Nelson, 13 Conn. App. 355, 359, 536 A.2d 985 (1988). We therefore conclude that the court’s finding that the defendants were employers was not clearly erroneous.

II

The defendants Laskowski and Betts also claim that the court improperly found them individually liable for the unpaid wages. They argue that the evidence does not support piercing Venture’s corporate veil so as to impose individual liability. The fallacy in this argument is that the court did not claim to be piercing the corporate veil, but rather was imposing liability pursuant to Butler v. Hartford Technical Institute, Inc., supra, 243 Conn. 454. In Butler, our Supreme Court concluded “that an individual personally can be hable as an employer pursuant to § 31-72, notwithstanding the fact that a corporation is also an employer of the claimant, if the individual is the ultimate responsible authority to set the hours of employment and to pay wages and is the specific cause of the wage violation.” Id., 463-64.

In the present case, the court made the necessary factual findings to support its conclusion that Laskowski and Betts had the ultimate responsibility to pay the claimants’ wages and that they had failed to pay them. See part I of this opinion. The court properly found that the defendants Laskowski and Betts, together with Venture, the corporate employer, were personally hable.

III

The defendants’ final claim is that the court improperly awarded double damages and attorney’s fees. In this regard, the defendants first argue that the plaintiff failed to prove that the actions of the defendants were arbitrary, unreasonable or done in bad faith. We disagree.

Section 31-72 provides for double damages and attorney’s fees in unpaid wage cases. Our case law holds that “awards for double damages and attorney’s fees are inappropriate in the absence of the trial court’s finding of bad faith, arbitrariness or unreasonableness.” (Internal quotation marks omitted.) Sansone v. Clifford, 219 Conn. 217, 229, 592 A.2d 931 (1991). In the present case, the court found as follows: “[D]ouble damages should be awarded in this case. [The court] finds bad faith, arbitrariness and unreasonableness on the part of the defendants Venture, Laskowski and Betts. The claimants were promised by said defendants that they would be paid their back wages as an inducement to keep them working. Yet, they were fired two months later and not given those back wages. After being fired, they were further told they would be paid if they would sign certain releases. However, to this day they have not been paid.”

There was ample evidence to support the court’s finding, and it is in keeping with the remedial purpose of the wage laws. See Butler v. Hartford Technical Institute, Inc., supra, 243 Conn. 463. In upholding the award of double damages, we also note that the United States Supreme Court has enunciated its strong position on double damages in wage cases. “It constitutes a Congressional recognition that failure to pay the statutory minimum on time may be so detrimental to maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers and to the free flow of commerce, that double payment must be paid in the event of delay in order to insure restoration of the worker to that minimum standard of well-being.” Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 707, 65 S. Ct. 895, 89 L. Ed. 1296 (1945). We therefore conclude that the court did not abuse its discretion in awarding double damages pursuant to § 31-72. See Anderson v. Schieffer, 35 Conn. App. 31, 43, 645 A.2d 549 (1994).

The defendants finally contend that the court’s award of $5000 as attorney’s fees was improper because the court failed to hold a hearing on the subject. We do not agree. The court stated that “the plaintiff is seeking an attorney’s fee in the amount of $5000. The court finds this to be reasonable inasmuch as there were five days of trial.”

In Bizzoco v. Chinitz, 193 Conn. 304, 310, 476 A.2d 572 (1984), our Supreme Court stated that “courts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorney’s fees.” The court in Bizzoco upheld an award of attorney’s fees, noting the trial court’s knowledge that the plaintiffs counsel had taken a lengthy deposition, had engaged in the trial, and had prepared a posttrial brief and was therefore in a position to evaluate the complexity of the issues presented and the skill with which counsel had dealt with those issues. Id., 310-11. In the present case, as in Bizzoco, the court was familiar with counsel’s preparation and presentation of the case. The evidence supports the award of attorney’s fees made by the court.

The judgment is affirmed.

In this opinion LANDAU, J., concurred.

ZARELLA, J.,

dissenting. I respectfully disagree with the majority and, accordingly, I dissent. The central issue in this case is whether the defendants are employers for the purposes of General Statutes § 31-72 and therefore are liable for wages due employees that were earned prior to the defendants’ involvement with the defendant Specialty Publishers, Inc. (Specialty).

The seminal case involving actions commenced pursuant to § 31-72 is Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 704 A.2d 222 (1997). In Butler, our Supreme Court established the test to determine who is an employer for puiposes of the statute. “[ T]he term employer as used in § 31-72 encompasses an individual who possesses the ultimate authority and control within a corporate employer to set the hours of employment and pay wages and therefore is the specific or exclusive cause of improperly failing to do so.” Id., 462. In this case, the trial court found that the defendants had the authority to pay wages and to control the hours of employment. That, however, is only one part of the test.

The plaintiff also has the burden of demonstrating that the persons to be held liable have the ultimate authority and are the “specific or exclusive cause” of improperly failing to pay wages. Id. The undisputed facts in this case are that the wage claims were for the period from August through October, 1992. Thus, the wages were earned prior to the defendants’ execution of a contract with Specialty on October 30, 1992, and prior to beginning their engagement to assist Specialty with its financial and management problems. The employees received their wages for the entire period that the defendants were active in the management of Specialty.

Upon the execution of the contract, the defendants immediately commenced work for Specialty. The defendants discovered the company in such a state of disarray that they were unable to determine the financial status of the business. The defendants immediately hired an outside accountant to help reconstruct the financial records. It was at this point that the defendants learned that back wages were owed to the employees. As of the date that the defendants commenced operating Specialty, the company was insolvent and it never regained solvency. The defendants, who had operational control of an insolvent company for a little more than two months, reasonably cannot be said to be the specific or exclusive cause of failing to pay wages that accrued in the months prior to their involvement with the company.

The majority correctly points out that the trial court is the ultimate assessor of the credibility of witnesses. The majority further points out that the trial court accepted the version of the facts proffered by the plaintiffs rather than that of the defendants, and that those facts were sufficient to support the conclusion that the defendants were employers for the purpose of the statute. I disagree not with the facts, but with the conclusion that they are sufficient to support the finding that the defendants were employers.

The wage claimants’ testimony was limited to their observations during November and December, 1992. Those observations were limited by the very nature of the jobs they held with Specialty. Accepting as true the facts found by the trial court, they are insufficient, in my view, to establish the actual authority of the defendants. The wage claimants testified that they had no knowledge of Specialty’s board of directors’ meetings, the contract between Specialty and the defendants or the letters from the defendants seeking authorization from Specialty’s chief executive officer to make payments. All of this evidence was documentary in nature and was not rebutted or questioned by the plaintiff. Even if the trial court chose to disbelieve the defendants’ testimony, the plaintiff failed to establish the defendants’ actual authority.

It is not the wage claimants’ subjective understanding that is the determining factor as to whether an employer-employee relationship exists. If that were the determinative factor, then the wage claims of various employees would be treated differently on the basis of their individual understandings. Rather, as previously noted, it is a question of whether the defendants had actual authority to determine the hours of employment and to pay wages to the point where they are determined to be the specific or exclusive cause of the wage claimants not being paid. The trial court has, in effect, transferred the burden of proof to the defendants in this case.

For the foregoing reasons, I respectfully disagree with the conclusion of the majority that the defendants were the employers of the wage claimants for purposes of § 31-72. I would reverse the judgment of the trial court.

       The individual claimants are Glenn Maiorano, Vincent PaoliceUi, Nancy P. McCann, James Markland and Sara Miller. The plaintiff also brought this action on behalf of Joseph Joyce, but Joyce did not appear to testify at trial, and the court granted the defendants’ motion for a judgment of dismissal as to his claim.

       General Statutes § 31-72, entitled “Civil action to collect wage claim, fringe benefit claim or arbitration award,” provides: “When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71ato 31-71Í, inclusive, or fails to compensate an employee in accordance with section 31-76k or where an employee or a labor organization representing an employee institutes an action to enforce an arbitration award which requires an employer to make an employee whole or to make payments to an employee welfare fund, such employee or labor organization may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court, and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action. The Labor Commissioner may collect the full amount of any such unpaid wages, payments due to an employee welfare fund or such arbitration award, as well as interest calculated in accordance with the provisions of section 31-265 from the date the wages or payment should have been received, had payment been made in a timely manner. In addition, the Labor Commissioner may bring any legal action necessary to recover twice the full amount of unpaid wages, payments due to an employee welfare fund or arbitration award, and the employer shall be required to pay the costs and such reasonable attorney’s fees as may be allowed by the court. The commissioner shall distribute any wages, arbitration awards or payments due to an employee welfare fund collected pursuant to this section to the appropriate person.”

      The defendants Specialty Publishers, Inc., Peter Jacquith and Dennis Flavin were defaulted, and the court treated the matter as to them as a hearing in damages. Specialty Publishers, Inc., Flavin and Jacquith have not appealed from the court’s judgment. For the purposes of this opinion, we refer to Venture Partners, Ltd., Laskowski and Betts as the defendants.

       In so holding, we emphasize that, we are not adopting a bright line rule with respect to the liability of consultants under § 31-72. Under the facts of this case, however, in which the court specifically found that the defendants had taken over Specialty to such an extent that they possessed the ultimate authority and control over the payment of wages, we cannot say that the court’s decision was clearly erroneous.

       In so holding, we note the defendants’ argument, raised in their reply brief, that the court improperly applied Butler retroactively. “It is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 593 n.26, 657 A.2d 212 (1995). We therefore decline to consider this aspect of the claim.

       See footnote 2.

       The evidence established that the company lost $4 million in the eighteen months prior to October 30, 1992.