text:
    STATE OF CONNECTICUT v. WARD HAMILTON
    (AC 15394)
    Foti, Schaller and Spear, Js.
    Argued April 28
    officially released May 27, 1997

      William W. Fisher, Jr., for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were Kevin Kane, state’s attorney, and Paul Narducci, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal impersonation in violation of General Statutes § 53a-130 (a) (3). He claims that the trial court improperly failed to refer to statutes, other than the one charged, in instructing the jury.

The jury reasonably could have found the following facts. On December 22,1994, the defendant, a protective service trainee at the department of mental health and addiction services of the state of Connecticut, while operating his vehicle on Route 85 in Waterford, observed an automobile occupied by the victims, make an illegal left turn, which forced the defendant to bring his vehicle to a sudden stop. No collision occurred. The defendant then chased the victims onto 1-95 and attempted to stop them by signaling to them to pull over, pointing and blowing his hom. When the victims refused to stop, the defendant leaned toward the passenger window of his vehicle and displayed a black badge case bearing the insignia “Connecticut State Police.” The defendant opened the badge case and displayed a badge. The victims stopped their automobile, and the defendant pulled his private vehicle in front of the victims’ automobile and approached the passenger side. The defendant again opened the badge case and displayed a silver badge. He said, “Connecticut state police. Do you realize that you made an illegal left-hand turn?” He also asked to see a license, registration and insurance card. The defendant is not a member of the Connecticut state police, nor did he have the power of arrest.

The defendant has not properly preserved this claim for appellate review. He neither filed a request to charge nor took an exception to the trial court’s charge as given. Practice Book §§ 852, 4061. The defendant does not seek review under Golding or under the plain error doctrine. He concedes that this issue is not a constitutional claim and does not deal with insufficiency of the evidence. He also admits that the trial court’s instructions on the elements of the crime charged were sufficient under the law. We, therefore, conclude that the defendant’s claim is not reviewable.

The judgment is affirmed.

       General Statutes § 53a-130 (a) provides in relevant part: “A person is guilty of criminal impersonation when he . . . (3) pretends to be a public servant, or wears or displays without authority any uniform or badge by which such public servant is lawfully distinguished, with intent to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense.”

       The defendant cites General Statutes §§ 14-224 (a) and (b) and 14-217.

       Practice Book § 852 provides: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. The exception shall be taken out of the hearing of the jury.”
      Practice Book § 4061 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . .

        State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    ARLINE TUITE ET AL. v. STOP AND SHOP COMPANIES, INC.
    (AC 15117)
    Foti, Lavery and Hennessy, Js.

      Argued January 29
    officially released June 3, 1997

      James G. Geanuracos, with whom was Robyn L. Sondak, for the appellant (defendant).

      Sheila A. Huddleston, with whom, on the brief, were James W. Bergenn, Scott R. Rothstein and Kay K. Tolbert, for the appellees (plaintiffs).
   Opinion

LAVERY, J.

The defendant appeals from the judgment rendered for the plaintiff after a trial by jury in a case involving a fall in a supermarket. The defendant claims that the trial court improperly (1) failed to instruct the jury that the plaintiff was required to prove that the defendant had actual or constructive notice of the specific defect and also had sufficient time to remedy the defect, (2) limited the defendant’s cross-examination of the plaintiffs expert witness, (3) precluded the defendant from questioning the plaintiff about the resolution of a previous action involving the plaintiff, (4) excluded certain documents from a previous action involving the plaintiff, (5) permitted one of the plaintiffs witnesses to render expert testimony as to the plaintiffs economic loss, (6) awarded the plaintiff costs for the testimony of one of its witnesses. We reverse the judgment only as to the bill of costs awarded for the testimony of a real estate appraiser.

The jury could have reasonably found the following facts. On March 13, 1989, the plaintiff Arline Tuite tripped and fell on property owned by Sally Sega and Arthur Sega. The plaintiff commenced an action against the Segas seeking damages for the injuries she sustained, including injuries to her right shoulder. The plaintiff made discovery requests upon the Segas, and also disclosed Steven Schutzer and Bruce Cagenello as her expert witnesses. The plaintiffs action against the Segas was settled prior to trial.

On March 17, 1989, four days after she fell on the Sega property, the plaintiff went to the defendant’s Stop & Shop store in West Hartford to purchase carnations. As the plaintiff was leaving the crowded floral department, she started down an aisle that she had previously used. The plaintiff found that the aisle was blocked by one of the store’s employees who was holding a watering can and standing next to cart of flowers. The plaintiff then walked down a narrower aisle when she encountered a woman who had bent down to look at some flowers. As she passed the woman, the plaintiff looked down and saw that a small area of the floor was covered by water and petals. The plaintiff slipped on the water and fell, landing on her right hip and right arm, injuring herself.

I

The defendant first claims that the trial court improperly failed to instruct the jury that the plaintiff was required to prove that the defendant had actual or constructive notice of the specific defect and that the defendant also had sufficient time to remedy the defect. We disagree.

In the present case, the plaintiff claimed that the defendant breached its duty of care when its employees created the dangerous condition that caused her injury. It is well established that a plaintiff does not have to prove that a defendant had actual or constructive notice of a dangerous condition when the plaintiff claims that the defendant’s employees created the condition. See Fuller v. First National Supermarkets, Inc., 38 Conn. App. 299, 300, 661 A.2d 110 (1995) (holding supermarket caused fall by leaving pricing stickers on floor); Holody v. First National Supermarkets, Inc., 18 Conn. App. 553, 554-55, 559 A.2d 723 (1989) (holding supermarket employees caused plaintiffs injury by stacking cartons in dangerous manner); Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 605, 419 A.2d 339 (1979) (holding construction company had actual notice of dangerous condition that its employees created). In these types of cases, the defendant is deemed to have actual notice of the dangerous condition that its employees created.

In the present case, the trial court’s instruction not only comported to the plaintiffs contention that the petals and water on the floor were caused by the defendant’s employees, but was also supported by ample evidence. The record reflects that there was a store employee watering plants a few feet from the place of the fall, the aisle was very narrow and crowded, the plants were placed directly on the floor with nothing to prevent water from spilling out of the pots and, after the fall, an employee sharply reprimanded the employee who had been tending to the flowers.

The trial court properly instructed the jury when it stated: “Mrs. Tuite’s claims are not based upon the presence of the accumulation of water and petals alone, but upon the dangerous condition created by failing to take the necessary measures to maintain the florist department in a reasonably safe condition by allowing the dangerous condition to occur. This is not a case in which it is claimed that a defective condition existed on the defendant Stop & Shop’s floor that was not of its own making.” Given the plaintiffs theory of liability and the evidence presented at trial, the trial court’s instruction to the jury concerning this issue was proper.

II

The defendant’s second claim is that the trial court improperly precluded the defendant’s cross-examination of Schutzer, one of the plaintiffs expert witnesses.

On direct examination, Schutzer testified that it was his opinion that the fall at Stop & Shop was a substantial contributing factor to the permanent partial disability that the plaintiff sustained. On cross-examination, the plaintiff objected to the defendant’s attempt to impeach Schutzer’s testimony by referring to a response that he had given during a deposition on June 22, 1994. During that deposition, Schutzer was asked whether he could “attribute” or “divide” the causes of the plaintiffs disability. Schutzer responded to the question by stating: “In this type of a situation it’s obviously a subjective call. ... In this type of thing I split it fifty-fifty and, although it’s not mentioned here, I would have said 50 percent attributable to the preexisting condition and 50 percent attributable to acute trauma.” The defendant attempted to use Schutzer’s answer from the deposition to impeach his testimony at trial when he stated that the fall at Stop & Shop was a substantial contributing factor to the plaintiffs injury. After extensive argument, the trial court ruled that this evidence was not admissible because it was not relevant. We agree.

“[Pjroper cross-examination must be relevant to be admissible. Ayers Co. v. Novelty Textile Mills, Inc., 168 Conn. 577, 578, 362 A.2d 969 (1975); Conley v. Board of Education, 143 Conn. 488, 495, 123 A.2d 747 (1956). ‘The trial court has broad discretion to determine the relevancy of evidence, and we will not disturb a trial court’s ruling on the admissibility of evidence in the absence of a clear abuse of discretion. State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990).’ State v. Sauris, 227 Conn. 389, 407, 631 A.2d 289 (1993). This broad discretion extends to the admissibility of expert testimony which the trial court finds is without probative value for the jury. Going v. Pagani, 172 Conn. 29, 35, 372 A.2d 516 (1976).” Skrzypiec v. Noonan, 228 Conn. 1, 21-22, 633 A.2d 716 (1993).

Here, the defendant was confusing the issue of a preexisting disability with the issue of a preexisting condition. A plaintiff who has a dormant, asymptomatic arthritic condition that is subsequently aggravated by an injury caused by the defendant’s negligence is entitled to recover full compensation for the resulting disability, even though her resulting disability is greater than if she had not suffered from the arthritic condition. See Boland v. Vanderbilt, 140 Conn. 520, 524, 102 A.2d 362 (1953); Mourison v. Hansen, 128 Conn. 62, 64-65, 20 A.2d 84 (1941); 2 Restatement (Second) Torts § 461 (1965).

The evidence adduced at trial falls within the category of a dormant, asymptomatic preexisting condition. The record reveals that the plaintiff was surprised when Schutzer told her, in March, 1989, that she had arthritis because her shoulder had never been a problem. Schutzer testified that neither the plaintiffs prior medical records nor the initial history she gave indicated that she had had any discomfort or disability because of the arthritis. Furthermore, Schutzer testified that many people have asymptomatic arthritis without being aware of it, and that he could not state whether, without the fall, the plaintiff would have ever suffered any disability from the arthritic condition alone.

In sum, the trial court correctly concluded that this type of testimony would have confused the issue concerning the origin of the plaintiffs injury. Furthermore, the only relevant question regarding causation was whether the fall at Stop & Shop was a substantial contributing factor in the plaintiffs permanent partial disability. Mourison v. Hansen, supra, 128 Conn. 64-65. We, therefore, conclude that the trial court did not abuse its discretion when it did not admit this testimony.

Ill

The defendant’s third claim is that the trial court improperly limited the cross-examination of the plaintiff as to the resolution of her previous action against the Segas. On direct examination, the plaintiff was asked if she “proceeded to trial with the complaint from years earlier against the Segas?” The plaintiff responded “No” to this question. After concluding its recross-examination, the defendant made an offer of proof outside the presence of the jury regarding the plaintiffs settlement in the Sega matter. The defendant contended that the plaintiff had “opened the door” to this issue. The defendant also argued that, if evidence of the settlement was not introduced, the jury would be free to infer that the plaintiff had withdrawn the action against the Segas without receiving compensation. The trial court refused to allow this type of questioning because the defendant had chosen not to object to the initial question as to whether she had proceeded to trial. The trial court, however, did deliver an instruction to the jury regarding the evidentiary significance of the Sega complaint and the Sega interrogatory responses that had been admitted into evidence.

Our Supreme Court has held that otherwise inadmissible evidence can be properly introduced when one party has “opened the door” to such evidence in its own case. Somers v. LeVassuer, 230 Conn. 560, 566, 645 A.2d 993 (1994). The admissibility of this evidence, however, is not an automatic right. “[T]he trial court must consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit [the evidence] ... to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence. Such a decision, of course, rests within the discretion of the trial court.” (Citation omitted; internal quotation marks omitted.) Id. We conclude that the trial court did not abuse its discretion when it did not permit the defendant to conduct further cross-examination of the plaintiff on the issue of the Sega settlement.

IV

The defendant’s fourth claim is that the trial court improperly excluded certain documents from a previous action involving the plaintiff. The trial court permitted the defendant to introduce into evidence the complaint and several interrogatory responses from the plaintiffs action against the Segas. The trial court, however, did not allow the defendant to introduce a settlement letter from the plaintiffs attorney to the Segas’ attorney. The trial court also did not allow the defendant to introduce one interrogatory response and the disclosure of expert witnesses filed by the plaintiff from the action against the Segas.

A

The trial court correctly concluded that the letter was an inadmissible offer of settlement. “It has long been the law that offers relating to compromise are not admissible on the issue of liability. Nearing v. Bridgeport, 137 Conn. 205, 209, 75 A.2d 505 (1950); Stranahan v. East Haddam, 11 Conn. 507, 512-19 (1836); [C.] McCormick, Evidence (2d Ed. [1972]) § 274. So, too, it has long been established that an admission of fact made during negotiations, where the statement was intended to state a fact, is competent evidence. Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 518, 391 A.2d 157 (1978); Hartford Bridge Co. v. Granger, 4 Conn. 142, 148 (1822). . . . ‘Where it is not clear whether the statement is an offer of compromise or an admission of liability [or other fact] and the motive of the declarant is subject to speculation and conjecture, the statement must be excluded.’ [C.] Tait & [J.] LaPlante, Handbook of Conn. Evidence (1976) § 11.5 (d) (2), p. 189.” Simone Corp. v. Connecticut Light & Power Co., 187 Conn. 487, 490, 446 A.2d 1071 (1982). Given the language used by the plaintiffs counsel in the letter, the trial court correctly ruled that the letter was intended for settlement purposes and was not an admission of fact and, therefore, was inadmissible.

B

The trial court allowed the defendant to introduce all but one of the plaintiffs interrogatory responses that were given in the action against the Segas. The excluded response and its related attachments listed the special damages that the plaintiff had alleged in that case. The defendant attempted to introduce this interrogatory response as an admission that the plaintiffs injuries were caused by the earlier fall on the Sega property. At trial, the plaintiff testified that she never saw the interrogatory response. The plaintiff also objected to the admissibility of the response because it was not inconsistent with any other prior statements and the responses were not judicial admissions.

We disagree with the trial court’s exclusion of the response to the interrogatory because it was relevant and inconsistent with the plaintiffs position at trial. “The general rule is that admissions, if relevant and material, made by an attorney incidental to the general authority of the attorney to represent his client in connection with and for the purpose of controlling the matter committed to him, are admissible against the client. Lickteig v. Buckholz, 129 Conn. 399, 401, 402, 28 A.2d 871; 31A C.J.S. 869, Evidence, § 361; 7 Am. Jur. 2d 123, Attorneys at Law, § 122.” Collens v. New Canaan Water Co., 155 Conn. 477, 496, 234 A.2d 825 (1967).

While the trial court should have admitted the interrogatory response, the error was harmless. “We have often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result. . . . Any testimony in a case that tends of itself or in connection with other testimony to influence the result on a fact in issue is material. If the testimony would tend to affect the verdict of the jury, it meets the test of materiality. . . . The determination of that question lies in the record. . . . It is well established that if erroneously admitted evidence is merely cumulative of other evidence presented in the case, its admission does not constitute reversible error.” (Citations omitted; internal quotation marks omitted.) Swenson v. Sawoska, 215 Conn. 148, 153-55, 575 A.2d 206 (1990).

In the present case, the exclusion of one of the plaintiffs interrogatory responses was not material. In addition, the jury had before it a significant amount of evidence regarding the fall on the Sega property and the plaintiffs resulting injuries. The evidence surrounding the plaintiffs previous action against the Segas included the complaint, several of the plaintiffs inteixogatory responses, testimony from the plaintiffs experts and testimony from the plaintiff herself conceming the previous lawsuit. We conclude that any further evidence on this issue would have been cumulative. Our review of the record reveals that the defendant has failed to sustain its burden of showing that the error was harmful.

C

The defendant also contends that the trial court improperly excluded the plaintiffs disclosure of her expert witnesses filed in the action against the Segas. In the documents that were not admitted, the plaintiff disclosed Schutzer and Cagenello as her expert witnesses. The defendant argues that these disclosures should have been admitted as further evidence that the plaintiff had claimed the same injuries and damages in both the Sega action and the Stop & Shop action. It is also the defendant’s contention that the plaintiffs disclosure of its expert witnesses was an admission by a party because it is a prior inconsistent statement. We agree with the defendant.

We disagree with the trial court’s reasoning that by filing these disclosures the plaintiff was only complying with procedural rules in order to preserve her right to call these witnesses at trial. They were admissions. See Collens v. New Canaan Water Co., supra, 155 Conn. 496.

The disclosure of Schutzer as an expert witnesses should be construed as an admission because the expert disclosures were offered as a prior pleading by the plaintiff in which she represented that the trauma from the earlier fall was a contributing factor to the plaintiffs injury. Furthermore, the disclosure of Cagenello as an expert witness should also be construed as an admission because it was the plaintiffs intent to have him testify that it was the fall on the Segas’ property that caused the impairment of her earning capacity.

Nevertheless, given the amount of aforementioned evidence adduced at trial, the admission of the plaintiffs previous disclosure of expert witnesses would have constituted only further cumulative evidence before the jury of the fact that the plaintiff had a previous action against the Segas for a fall that resulted in an injury to her shoulder. Furthermore, both of these witnesses were subject to extensive direct and cross-examination at trial. Applying the same harmless error analysis from the excluded interrogatory response, we conclude that the defendant has failed to sustain its burden of showing that the exclusion of the plaintiffs disclosure of its expert witnesses was harmful.

V

The defendant’s fifth claim is that the trial court improperly admitted the testimony of Cagenello, who offered his expert opinion on the effect of the plaintiffs injury on her income and earning capacity. The defendant claimed that the trial court should not have allowed Cagenello to render his expert opinion because no foundation was laid for it.

Cagenello had been a real estate broker for twenty-five years, held all relevant professional licenses, served as a member of the state’s real estate commission and had hired, trained, and supervised real estate agents for over fifteen years. He had also undertaken an extensive study of the earning performance of 700 sales associates. Cagenello had reviewed hundreds of pages of the plaintiffs testimony taken from the depositions from both the Sega case and the present case. Cagenello had also known the plaintiff on a professional basis and was familiar with her previous earning record.

Cagenello testified that the plaintiff was one of her company’s “top producers.” Cagenello also testified that in his expert opinion the plaintiffs injury had caused her earning capacity to decrease 65 to 70 percent during her first two years subsequent to her injury, 50 percent in the third year and 20 percent in subsequent years. Cagenello also rendered his opinion on the amount of income the plaintiff had lost and would continue to lose until she retired.

“The trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the error is clear and involves a misconception of the law, its ruling will not be disturbed. ... In order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion. . . . Some facts must be shown as the foundation for an expert’s opinion, but there is no rule of law declaring the precise facts which must be proved before such an opinion may be received in evidence.” (Citation omitted; internal quotation marks omitted.) Madison Hills Ltd. Partnership II v. Madison Hills, Inc., 35 Conn. App. 81, 93, 644 A.2d 363, cert. denied, 231 Conn. 913, 648 A.2d 153 (1994).

In the present case, the trial court did not abuse its discretion when it permitted Cagenello to render his expert opinion on the plaintiffs economic loss. The witness was an expert in the field of real estate and his testimony was founded on his extensive knowledge and experience.

VI

The defendant’s sixth claim is that the trial court improperly awarded the plaintiffs $1500 in costs for the testimony of their expert witness Cagenello. The plaintiffs filed a bill of costs seeking to recover $1000 for preparation and $500 for the testimony time of Cagenello. The plaintiffs sought to recover these costs pursuant to General Statutes § 52-260 (f).

There is no dispute that Cagenello is a licensed real estate appraiser. The defendant, however, argues that this statute should apply only when the real estate appraiser testifies as to the value of real property and not, as in this case, to the value of the earning capacity and lost wages of a real estate agent. This court recently held that “ ‘[c]osts are the creature of statute . . . and, unless the statute clearly provides for them the courts cannot tax them.’ ” Lurie & Associates, Inc. v. Tomik Corp., 37 Conn. App. 865, 866-67, 658 A.2d 146 (1995). In the present case, Cagenello was not testifying in his capacity as a real estate appraiser, as set forth in § 52-260 (f). This statute explicitly sets forth by occupation expert witnesses entitled to receive costs, and while Cagenello is a real estate appraiser his testimony did not concern the valuation of real property. Therefore, we reverse the ruling of the trial court granting $1500 to the plaintiffs for Cagenello’s expert testimony.

The judgment is reversed only as to the $1500 award of costs related to Cagenello and the case is remanded with direction to render judgment as on file except as modified to eliminate that award.

In this opinion the other judges concurred.

       Arline Tuite’s husband, George Tuite, is also a plaintiff in this case. We refer to Arline Tuite as the plaintiff in this opinion.

       Generally, a plaintiff with a preexisting condition who is subsequently injured is entitled to full recovery. A plaintiff who suffers from a preexisting disability that is made worse by an injury, however, can recover only to the extent of the aggravation of the injury. See 2 Restatement (Second), Torts § 433 A, comment e, illustration 8 (1965).

       The trial court’s instruction on this issue was requested by the defendant and was rendered almost verbatim by the trial court, stating: “[I]n this case you’ve heard testimony about a complaint brought by Mrs. Tuite for injuries she claimed to have sustained in a falldown on the Sega property. You’ve also heard testimony about responses made by Mrs. Tuite to interrogatories propounded on her in the Sega lawsuit. These pieces of evidence are evidentiary admissions, not in themselves conclusive, but whose weight is to be determined by you, the jury, in the same way as any other evidence presented.”

         The plaintiffs letter to the Segas’ attorney stated in part: “Any statements in this letter are for settlement purposes only, are not and should not be construed as admissions and are without prejudice to any positions which may be taken in further proceedings."

       The excluded interrogatory stated: “Please list each item of special damage, loss and expense which you claim resulted from the alleged accident . . . .” The plaintiff responded to this request with a seven page chart detailing the date, the amount, and source of each expense that she incurred.

       General Statutes 52-260 (f) provides: “When any practitioner of the healing arts as defined in section 20-1, dentist, registered nurse or licensed practical nurse, as defined in section 20-87a, or real estate appraiser is summoned to give expert testimony in any action or proceeding, the court shall determine a reasonable fee to be paid to the practitioner of the healing arts, dentist, registered nurse or licensed practical nurse, as defined in section 20-87a, or real estate appraiser and taxed as part of the costs in lieu of all other witness fees payable to the practitioner of the healing arts, dentist, registered nurse or licensed practical nurse, as defined in section 20-87a, or real estate appraiser.”


author: STOUGHTON, J.

text:
    ANNE S. WEEKS v. SIDNEY B. KRAMER ET AL.
    (AC 15686)
    Spear, Hennessy and Stoughton, Js.

      Argued March 5
    officially released June 3, 1997

      Christopher J. McCaffrey, with whom, on the brief, was Douglas R. Steinmetz, for the appellant (plaintiff).

      Howard C. Kaplan, with whom was Valerie E. Maze, for the appellees (defendants).
   Opinion

STOUGHTON, J.

The plaintiff appeals from the judgment of the trial court granting the defendants’ motion for summary judgment. On appeal, the plaintiff claims that the trial court improperly found that the restrictive covenant at issue did not run with the land and thus improperly granted the defendants’ motion for summary judgment. We agree with the plaintiff and reverse the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. The plaintiff owns a hilltop lot, designated as lot no. thirteen, which overlooks Long Island Sound. The defendants own a lot designated as lot no. twelve, which is located next to and downhill from the plaintiffs lot. To the south is another lot now or formerly owned by Elizabeth Keith and designated as lot no. fourteen.

All of these lots and several others were once owned by Hudson Nut Products, Inc. (Hudson Nut). The first of these lots to be sold by Hudson Nut was lot no. fourteen. Lot no. fourteen was sold to Keith and the deed contained several restrictions and covenants. Paragraph eight of the Keith deed provided that no trees, shrubs or structures on lot no. fourteen should be greater in height than the first floor of the house to be erected on lot no. thirteen, and that no trees, shrubs or structures on the two lots to the south of lot no. fourteen should exceed the level of the ground floor of the house on lot no. fourteen. Paragraph eleven provided that all of the covenants and restrictions would run with the land except for paragraph eight and part of another paragraph, stating that paragraph eight should run only with lot no. fourteen and the two lots to the south.

When Hudson Nut subsequently sold lots no. twelve and thirteen, the covenants and restrictions from the Keith deed were either copied or incorporated by reference in the later deeds. The reference to specific lots in paragraph eight was eliminated in the subsequent deeds because the references to those lots were inappropriate in the subsequent deeds. Paragraph eleven was also changed by eliminating the provision that paragraph eight was to ran with specific lots. The language in paragraph eleven that ah of the covenants and restrictions were to ran with the land except for paragraph eight and a part of another paragraph was retained. In the later deeds, however, paragraph eight was significantly altered by adding the language “to the grantees, their heirs and assigns.” In the Keith deed, paragraph eight contained no reference to the grantee and the covenant simply referred to the relevant lot numbers. That difference is significant because it demonstrates an intent to have the restrictions of paragraph eight run with the land.

In the trial court, the plaintiff claimed that the covenant restricting vegetation and building height found in paragraph eight of the defendants’ deed ran with the land and thus applied to the defendants for the benefit of the plaintiffs land. Further, the plaintiff claimed that the defendants had improperly allowed trees, shrubs and other vegetation on their land to grow to a height that blocked the plaintiffs view of Long Island Sound and thus violated the restrictive covenant. The trial court found that paragraph eight of the defendants’ deed was not a restrictive covenant running with the land, principally because of the language in paragraph eleven, and granted the defendants’ motion for summary judgment. This appeal followed.

The question of whether a restrictive covenant runs with the land is “resolved by ascertaining the intent of the parties as expressed in the deed. . . . This intent is determined by considering the language and the relevant portions of the deed in light of the then existing situation of the property and the current surrounding circumstances.” (Citations omitted.) Stiefel v. Lindemann, 33 Conn. App. 799, 805-806, 638 A.2d 642, cert. denied, 229 Conn. 914, 642 A.2d 1211 (1984). “The words used by the parties must be accorded their common meaning and usage where they can be sensibly applied to the subject matter of the contract.” (Internal quotation marks omitted.) Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 598, 424 A.2d 277 (1979). “The determination of the intent expressed in a deed presents a question of law.” Stiefel v. Lindemann, supra, 806.

It is well settled that where a restrictive covenant contains words of succession, i.e., “heirs and assigns,” a presumption is created that the parties intended the restrictive covenant to run with the land. See Kelly v. Ivler, 187 Conn. 31, 39-40, 450 A.2d 817 (1982); Pulver v. Mascolo, 155 Conn. 644, 650-51, 237 A.2d 97 (1967); Chappell v. New York, New Haven & Hartford R. Co., 62 Conn. 195, 202-203, 24 A. 997 (1892); Stiefel v. Lindemann, supra, 33 Conn. App. 806.

Although the defendants’ deed may represent an inartful way of accomplishing the purpose of protecting the higher lots’ view from interference by the growth of plant life and structures on the lower lots, we find that this purpose is obvious and clear. The statement in paragraph eleven that other restrictions run with the land is not at all the same as saying that paragraph eight does not run with the land. While more careful draftsmanship would have avoided this problem, the addition of the language “to the grantees, their heirs and assigns” to paragraph eight can have no other purpose than to indicate that this paragraph is indeed intended to run with the land.

Therefore, in light of the surrounding circumstances and the language used in the covenant, we conclude that paragraph eight of the defendants’ deed is a restrictive covenant that was intended to, and does, run with the land.

The judgment is reversed and the case is remanded with direction to deny the motion for summary judgment and for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Paragraph eight of the Keith deed states: “Except for existing trees which may be maintained at their present height, no trees or shrubs shall be maintained nor shall any building be constructed on Lot No. 15 or on Lot No. 18 higher than the present level of the ground floor of the house on Lot No. 14 above described. No tree or building shall be erected or maintained on the above described Lot No. 14 higher than the level of the ground floor of the house to be erected on Lot No. 13, except for existing trees and buildings which may be maintained at their present height.”

       Paragraph eleven of the Keith deed states: “The foregoing covenants, except for Paragraph 8 and the exception contained in Paragraph 10, shall be real covenants running with the land and will be binding upon all future owners of property lying on the roadway running to Compo road in a Northerly, Westerly, Northerly again, and Easterly direction to a traffic circle at the end of said road, except that the covenants contained in Paragraph 8 shall be real covenants running only with Lots Nos. 14, 15 and 18 and shall run only with the title to these three (3) lots.”

       Paragraph eight in the subsequent deeds such as the Kramers’ deed states: “Except for existing trees, which may be maintained at their present height, no trees, shrubs or buildings shall be erected or maintained by the Grantees, their heirs and assigns on the land purchased and to be purchased by the Grantees under an existing option, higher than the level of the ground floor of the house to be erected on Lot No. 13.”

       Paragraph eleven in the subsequent deeds such as the Kramers’ deed states: “The foregoing covenants, except for Paragraph 8 and the exception contained in Paragraph 10, shall be real covenants running with the land and will be binding upon all future owners of property lying on the roadway running to Compo Road in a Northerly, Westerly, Northerly again and Easterly direction to a traffic circle at the end of said road.”


author: HEALEY, J.

text:
    SECOND INJURY FUND OF THE STATE TREASURER v. VINCENT LUPACHINO
    (AC 15781)
    Landau, Spear and Healey, Js.

      Argued January 28
    officially released June 3, 1997

      James P. Brennan, for the appellant (defendant).

      Michael J. Giammatleo, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (plaintiff).
   Opinion,

HEALEY, J.

This is an appeal from an order granting a prejudgment remedy to the plaintiff second injury fund of the treasurer of the state of Connecticut (fund) against the defendant, Vincent Lupachino, in a matter involving the Worker’s Compensation Act (act), General Statutes § 31-275 et seq.

On October 10,1988, the defendant sustained a work related injury to his back, which was found compensable pursuant to the act. Since that date, he has been receiving temporary total disability benefits pursuant to General Statutes § 31-307. The fund accepted liability for the defendant’s workers’ compensation benefits on May 8, 1992, pursuant to General Statutes § 31-349 and has paid benefits since that date. On or about May 25, 1995, the fund filed two forms pursuant to General Statutes § 31-296 giving notice that it intended to discontinue or reduce the defendant’s benefits. The basis for this filing was that he (1) was no longer totally disabled and (2) had violated the provisions of General Statutes § 31-290c by perpetrating a fraud on the fund in receiving such benefits. The defendant contested the fund’s position, and the issue of whether to discontinue or reduce his benefits is the subject matter of a pending formal hearing on the workers’ compensation claim.

The fund has instituted a civil action against the defendant for money damages based on a violation of § 31-290c. In addition to criminal sanctions, that statute provides in part: “Such person shall also be liable for treble damages in a civil proceeding under section 52-564. ”

In connection with this civil action, the plaintiff applied for a prejudgment remedy under General Statutes § 52-278c. The defendant filed a motion to dismiss the fund’s application for a prejudgment remedy on the ground that the Superior Court lacked subject matter jurisdiction, claiming that “jurisdiction belongs in the Workers’ Compensation Commission pursuant to Chapter 568 of the Connecticut General Statutes,” the act, and not in the Superior Court. The trial court denied the motion to dismiss and granted the fund a prejudgment remedy in the amount of $80,000. This appeal followed.

There are two issues in this appeal. The first is raised by the fund, which maintains that this court does not have subject matter jurisdiction because the appeal was not timely filed. The second issue, which is raised by the defendant, is whether the Superior Court improperly ordered the prejudgment remedy.

I

We first take up the issue of subject matter jurisdiction of this court. “Lack of subject matter jurisdiction may be raised at any time. Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297, 441 A.2d 183 (1982).” Park City Hospital v. Commission on Hospitals & Health Care, 14 Conn. App. 413, 417, 542 A.2d 326 (1988), aff'd, 210 Conn. 697, 556 A.2d 602 (1989); Romanowski v. Foley, 10 Conn. App. 80, 83, 521 A.2d 601, cert. denied, 204 Conn. 802, 525 A.2d 1352 (1987). “Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 245, 558 A.2d 986 (1989), quoting State v. Malkowski, 189 Conn. 101, 104, 454 A.2d 275 (1983); see Kohn Display & Woodworking Co. v. Paragon Paint & Varnish Corp., 166 Conn. 446, 448-49, 352 A.2d 301 (1974); Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966). The fund claims that this court lacks subject matter jurisdiction because the appeal was not timely filed.

The order granting the fund a prejudgment remedy in the amount of $80,000 on real property of the defendant was issued pursuant to General Statutes § 52-278Í. That statute provides in relevant part: “(a) An order . . . granting ... a prejudgment remedy following a hearing under section 52-278d . . . shall be deemed a final judgment for purposes of appeal, (b) No such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken.”

The basic facts in the record relevant to the timeliness issue are as follows. The order for the prejudgment remedy from which the defendant appeals was signed and dated by the trial judge on February 28,1996. Notice of that action was mailed by the clerk to counsel on Friday, March 8, 1996, the ninth day after February 28, 1996. The defendant filed the appeal on Monday, March 11, 1996, the twelfth day after February 28, 1996. On the record before us, we cannot discern whether the passage of nine days between the signing of the order by the trial judge and the mailing of notice to counsel by the clerk came about because the trial judge did not expeditiously give her order to the clerk or because the clerk did not expeditiously mail notice of that order to counsel.

The fund argues that the judgment was rendered on February 28,1995, when the trial judge signed the order, that the appeal was taken on March 11,1996, and, therefore, the appeal is untimely under § 52-2781 and must be dismissed. Accordingly, it claims that there is no subject matter jurisdiction because § 52-572/ris jurisdictional. See, e.g., Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 762, 628 A.2d 1303 (1993). In arguing that the appeal is untimely, the fund claims that the language of § 52-2781 (b) providing that “[n]o such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken,” mandates that the seven day appeal period is to be reckoned from February 28, 1996. The case law, it maintains, is dispositive. It relies on Ambroise v. William Raveis Real Estate, Inc., supra, 762, HUD/Barbour-Waverly v. Wilson, 235 Conn. 650, 668 A.2d 1309 (1995), and Srager v. Koenig, 36 Conn. App. 469, 651 A.2d 752 (1994), claiming at oral argument that these cases indicate that the appeal period begins on the date the trial judge signed the order. It would appear that the fund claims that General Statutes § 51-53 does not apply to § 52-278/ because the latter statute provides its own appeal period rather than relying on the more general provision for appeal in § 51-53.

The defendant, on the other hand, claims that Ambroise, HUD/Barbour-Waverly and Srager, the same cases relied on by the fund, support his claim that the order was “rendered” under § 52-278/, not when the trial judge signed it, but, rather, when notice of that order was issued by the court clerk. He claims that the record demonstrates that such notice was issued on March 8, 1995, and that his appeal, filed on March 11, 1995, was, therefore, timely as filed within the seven day appeal period. We agree with the defendant that the order was “rendered” under § 52-278/ on March 8, 1995, the date the court clerk mailed notice to counsel, and that the appeal was, therefore, timely filed.

We begin our analysis by examining Ambroise, in which the dispositive issue was whether an appeal from the denial of a prejudgment remedy could be taken after the expiration of the seven day period specified by § 52-278/. Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 757-58. In that case, no reference was made at all to when the trial court’s order was made or even mailed. Informatively, however, the Supreme Court said: “The procedural facts of the plaintiffs’ appeal are undisputed. The parties received notice of the trial court’s decision on January 26,1993. The plaintiffs filed their appeal on February 16,1993.” Id., 759-60. A fair reading of the procedural history of Ambroise strongly suggests that the Supreme Court calculated the appeal period from the date that counsel received notice of the trial court’s decision. It further said that “[b]ecause the jurisdiction of this court is defined by statute . . . non-compliance with § 52-2781 raises a challenge to [our Supreme Court’s] subject matter jurisdiction”; id.; and it dismissed the appeal as untimely. Ambroise does not support the fund’s position.

HUD/Barbour-Waverly, also does not avail the fund. The issue in that case was whether, in an appeal from a judgment of possession in a summary process eviction proceeding, the failure of the defendant to comply with the five day time limit to appeal as specified by General Statutes (Rev. to 1993) § 47a-35 deprived this court of subject matter jurisdiction. After a trial, the trial court rendered a judgment of possession in favor of the plaintiff on August 5, 1993. There is no reference in the court’s opinion in that case to whether the judgment was rendered in open court in the presence of counsel or whether notice was issued by the clerk to counsel on the same day the trial judge signed the order. Within the five day appeal period, the defendant filed a motion in the trial court for an extension of time to file an appeal pursuant to Practice Book § 4040. That motion was granted on August 16, 1993. Later, on August 30, 1993, nineteen days after the expiration of the appeal period set forth in § 47a-35, the defendant appealed to this court, which dismissed the defendant’s appeal. The Supreme Court affirmed our dismissal. In doing so, that court, referring to Ambroise, held that the legislature intended that the five day appeal period prescribed by § 47a-35 implicated subject matter jurisdiction, and that failure to comply with that time requirement deprived this court of jurisdiction to hear and decide the defendant’s appeal. HUD/Barbour-Waverly, unlike the case now before us, was not a case in which the appeal period had purportedly already run when notice of the decision was received by the party seeking to appeal. HUD/Barbour-Waverly does not avail the plaintiff.

An examination of Srager v. Koenig, supra, 36 Conn. App. 469, persuades us that that decision also does not support the fund’s claim of untimeliness. Srager was an action instituted to recover damages for breach of contract for the sale of certain real property and other relief. The plaintiffs in Srager had recorded a notice of lis pendens on September 16,1993. Pursuant to General Statutes § 52-325a (c), the defendant moved for a discharge of the notice of lis pendens for lack of probable cause. Significantly, in reciting the procedural history, the court in Srager stated: “The trial court granted the defendant’s motion and notice of the court’s order was issued to the parties on September 14,1994. The plaintiff appealed from the order on September 27, 1994.” Id., 470. On appeal to this court, the defendant sought dismissal of the appeal claiming lack of subject matter jurisdiction because the appeal was filed after the expiration of the seven day appeal period set out in § 52-325c (b). That section provides in relevant part: “No appeal shall be taken from such order except within seven days thereof. . . .” Relying on Ambroise, this court said: “Our review of General Statutes § 52-325c, informed by the Ambroise analysis, leads us to conclude that the failure to appeal within the specified time period deprives this court of subject matter jurisdiction. The language of § 52-325c (b) is clear and is virtually the same as the language of § 52-278Í (b), which the Supreme Court held to impose such a jurisdictional requirement.” Id., 471. After opining that the legislative purpose was advanced by the seven day appeal period, this court concluded by saying: “In this case, the plaintiffs appealed from the discharge of the notice of lis pendens thirteen days after the notice of that order was issued. The court lacks subject matter jurisdiction over this untimely appeal.” Id., 473. In Srager, this court considered that the date on which notice of the court’s order was issued was the date to be used in calculating the start of the seven day appeal period. Srager does not support the fund’s position.

Were we to accept the fund’s interpretation of the seven day appeal period in § 52-278?, the right of appeal in that section would be meaningless in this case. Accepting its interpretation would have draconian effect. For example, were a judge to sign and date a “decision” and hold onto it until the seven day appeal period ran, there could be no appeal from that “decision.” The legislative intent certainly could not have been to provide that the appeal period would have to begin to run before there was a final judgment from which to appeal.

Contrary to the fund’s position, we have determined that our case law actually supports the defendant’s position as to when the appeal period of § 52-278? begins to run. “Our law is clear on this issue. A judgment does not exist as a legal entity until pronounced, expressed, or made known, in some appropriate way. Goldreyer v. Cronan, 76 Conn. 113, 117, 55 A. 594 [1903]. ... A judgment is in fact rendered in a cause tried to the court when the trial judge officially announces his decision orally in open court, or, out of court, signifies orally or in a writing filed with the clerk in his official capacity the decision pronounced by him. Hubbard v. Planning Commission, 151 Conn. 269, 272, 196 A.2d 760 [1963]; Brown v. New Haven Taxicab Co., 93 Conn. 251, 258, 105 A. 706 [1919]; Hull v. Thoms, 82 Conn. 386, 391, 73 A. 793 [1909]; Bulkeley’s Appeal, 76 Conn. 454, 457, 57 A. 112 [1904].” Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 535, 294 A.2d 573 (1972).

The decision in Brown v. New Haven Taxicab Co., supra, 93 Conn. 258, is significant in resolving the timeliness issue in this case by reference to its definition of “rendering a decision.” In Brown, there was no indication in the record as to the date on which the judge’s decision was given to the clerk. In that case our Supreme Court said, “The date placed by the judge upon a paper is by no means determinative of the date when the paper is handed to the clerk, or when, if at all, the ruling contained is announced in open court. In practice such ruling is not ordinarily announced in any other way than by delivery of the writing to the clerk. When so delivered to the clerk or announced in court the judgment is rendered. . . . This pronouncement of the court it is incumbent upon the clerk to forthwith enter. . . . Where there is no other evidence of the date when judgment is rendered than the action of the clerk in notifying counsel, as in this case, it will be presumed that the clerk acted promptly and the date of the notification will be taken to be the date when the judge informed the clerk of his decision.” (Citations omitted; internal quotation marks omitted.) Id.

Moreover, only last year this court said, “ ‘A judgment is in fact rendered in a cause tried to the court when the trial judge officially announces his decision orally in open court, or, out of court, signifies orally or in a writing filed with the clerk in his official capacity the decision pronounced by him. . . . The judgment of a court is not rendered when the judge arrives at his decision in the privacy of his chambers, nor is the date placed on a paper by the judge determinative of the date when the paper is handed to the clerk. Bogaert v. Zoning Board of Appeals, [supra, 162 Conn. 535-36]; Hubbard v. Planning Commission, [supra, 151 Conn. 272]; Brown v. New Haven Taxicab Co., [supra, 93 Conn. 258].’ ” (Citations omitted.) Zoning Commission v. Fairfield Resources Management, Inc., 41 Conn. App. 89, 102, 674 A.2d 1335 (1996).

We conclude that there was no judgment from which an appeal could be taken in this case until the court’s decision granting the prejudgment remedy was delivered to the clerk, which in this case we presume was the same date on which the clerk mailed notice to counsel. The appeal period in this case could not have begun to run until March 8, 1996. The appeal by the defendant to this court was timely filed.

II

The defendant makes several arguments in support of his claim that the trial court improperly failed to dismiss the fund’s application for a prejudgment remedy. He argues that the failure to dismiss was improper because the fund, in seeking a prejudgment remedy, was asking the Superior Court to adjudicate whether he was entitled to workers’ compensation benefits pursuant to § 31-307 (a), a determination that he says the legislature has entrusted solely to the workers’ compensation commission. While not contesting that § 31-290c provides the right to a civil action when an individual fraudulently receives temporary total benefits, he claims that the issue for this court to decide is whether the Superior Court is empowered to determine whether he was entitled to such benefits pursuant to § 31-307 (a) in order to adjudicate fully the fund’s action pursuant to § 31-290c. Contending that the fund’s action is premature, the defendant argues that the fund asks the Superior Court to “modify” and “interpret” his award to such benefits, to “discontinue and/or reduce” them and to order him to “reimburse” the fund for moneys allegedly illegally received, which actions, he claims, would be clearly contrary to such cases as Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 78 A.2d 339 (1951), and Hyatt v. Milford, 26 Conn. App. 194, 600 A.2d 5 (1991), appeal dismissed, 224 Conn. 441, 619 A.2d 450 (1995). While we agree that under a scenario such as that in Czeplicki, the commissioner has authority to act as fact finder, the facts to be found in a “civil proceeding” pursuant to § 31-290c are not within the statutory authority of the commissioner. The defendant further argues that Hyatt applies “perfectly to this cause” where it states: “The doctrine of exhaustion of administrative remedies is designed to prevent piecemeal appeals of a litigant’s claim before an administrative agency.” (Internal quotation marks omitted.) Hyatt v. Milford, supra, 200. Therefore, he claims that the Superior Court, having no jurisdiction at this point, cannot and should not act until the workers’ compensation commission has made its determination, thereby respecting “the delicate balance between administrative agencies and the courts.” In advancing this position, the defendant maintains that a favorable decision by the commissioner, i.e., that he was entitled to temporary total benefits under § 31-307a during the period the fund alleges fraudulent receipt of such benefits by him would bar the fund from proceeding with its civil action pursuant to § 31-290c. This is so, he says, because “the Superior Court could not find that the defendant committed fraud against the fund if the workers’ compensation commissioner finds that he was entitled to benefits during the contested period.” While agreeing with the trial court that the circumstances do not constitute concurrent jurisdiction, he says that “merely because jurisdiction to determine . . . treble damages lies with the Superior Court, it does not follow that the Superior Court has jurisdiction to determine [his] right to temporary total benefits pursuant to General Statutes § 31-307 (a), which it must first do before it can reach the issue of . . . treble damages.” To permit the Superior Court to make such a finding would, he claims, constitute “an impermissible judicial usurpation of the administrative function.”

The fund, on the other hand, claims that it may, under proper statutory construction and available remedies, pursue this civil action independent of any proceedings before the workers’ compensation commissioner. In doing so, it argues that the plain language of § 31-290c enables it to proceed in the Superior Court for money damages and that the prosecution of this civil action does not violate the exclusive remedy doctrine. It maintains also that the substantive and procedural rights of the parties pursuant to § 31-290c can be protected only in the Superior Court. In that context, it points out that under § 31-290c it is necessary for the court, in making an independent determination of the facts in such an action, to do so in the context of the burden of proof required, i.e., that of clear and convincing proof of the actions required to assess treble damages pursuant to § 52-564. Schaffer v. Lindy, 8 Conn. App. 96, 105, 511 A.2d 1022 (1986). The exclusive jurisdiction of this civil proceeding is in the Superior Court and is not subject to the administrative doctrine of the exhaustion of remedies. If it were subject to that doctrine, the fund argues, it could well be precluded from proceeding in the Superior Court, if met by an assertion of the defense of the statute of limitations. We agree with the fund.

A

“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature. United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 (1992). . . . Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 390, 618 A.2d 1340 (1993). It is an axiom of statutory construction that legislative intent is to be determined by an analysis of the language actually used in the legislation. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666, 560 A.2d 975 (1989). . . . [W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). . . . We have previously recognized that our construction of the Workers’ Compensation Act should make every part operative and harmonious with every other part insofar as is possible . . . . Mingachos v. CBS, Inc., 196 Conn. 91, 104, 491 A.2d 368 (1985). In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991). . . . Vallaincourt v. New Britain Machine/Litton, [supra, 390-91].” (Citations omitted; internal quotation marks omitted.) Dos Santos v. F. D. Rich Construction Co., 233 Conn. 14, 20-21, 658 A.2d 83 (1995). “ ‘The construction of a statute depends upon its expressed intent when it is taken as a whole.’ ” State v. Burney, 189 Conn. 321, 326, 455 A.2d 1335 (1983), quoting Dombrowski v. Fafnir Bearing Co., 148 Conn. 87, 90, 167 A.2d 458 (1961). In considering statutory construction, it is prudent to be mindful that, “ ‘[primarily, it is for the legislature, which is the arbiter of public policy, to determine what it shall be.’ ” Local 1303 & Local 1378 v. Freedom of Information Commission, 191 Conn. 173, 179, 463 A.2d 613 (1983), quoting General Motors Corp. v. Mulquin, 134 Conn. 118, 132, 55 A.2d 732 (1947). There can be no question but that “[i]t is the province of the legislative department to define rights and prescribe remedies: of the judicial to construe legislative enactments, determine the rights secured thereby, and apply the remedies prescribed.” Atwood v. Buckingham, 78 Conn. 423, 428, 62 A. 616 (1905); see Wilson v. Security Ins. Group, 199 Conn. 618, 628, 509 A.2d 467 (1986); Genco v. Connecticut Light & Power Co., 7 Conn. App. 164, 174, 508 A.2d 58 (1986). A statute, of course, should not be interpreted to thwart its purpose. Narel v. Liburdi, 185 Conn. 562, 571, 441 A.2d 177 (1981), cert. denied, 456 U.S. 928, 102 S. Ct. 1974, 72 L. Ed. 2d 443 (1982); Kron v. Thelen, 178 Conn. 189, 192, 423 A.2d 857 (1979); Turner v. Scanlon, 146 Conn. 149, 157, 148 A.2d 334 (1959).

The language of § 31-290c (a) is clear and straightforward. It provides that any person or his representative who makes or attempts to make any fraudulent claim or receives benefits under the act is guilty of a class C felony, provided that the elements of this crime as defined in § 31-290c are demonstrated. It also provides that any such person “shall also be liable for treble damages in a civil proceeding under § 52-564.” General Statutes § 31-290c (a). Its purpose is evident upon examination of the statute as a whole.

The fund’s proposed complaint, submitted with its application for a prejudgment remedy, invokes § 31-290c and the relief it prays for is civil. It claims money damages and treble damages pursuant to General Statutes §§ 52-564 and 31-290c. It is appropriate to note that it is agreed, and the trial court so found, that we are not presented with the matter of concurrent jurisdiction.

In that regard, we are aware that “courts and administrative agencies often have concurrent jurisdiction, the common law doctrine of primary jurisdiction is designed to guide a court in determining whether and when it should refrain or postpone the exercise of its own jurisdiction so that an agency may first answer some questions presented. 4 Davis, Administrative Law (1983) § 22:1, p. 81.” (Internal quotation marks omitted.) Cianci v. Connecticut Council, AFSCME, 8 Conn. App. 197, 201 n.3, 512 A.2d 232 (1986). In speaking of concurrent jurisdiction, “[t]ypically, the creation of [an administrative] agency means the addition to the legal system of a new lawmaking and law applying authority, with no explicit subtraction from the previously-existing power of courts. 4 Davis, [supra] § 22:1, p. 81. In such cases, the doctrine of primary jurisdiction dictates that the dispute be directed to the board so as to take advantage of the board’s specialized skills and procedures; Sharkey v. Stamford, 196 Conn. 253, 255-56, 492 A.2d 171 (1985); 4 Davis, supra, 81-82 . . . .” (Internal quotation marks omitted.) Id., 201.

Because the defendant has cast his initial issue in terms of primary jurisdiction, claiming that the Superior Court must stay its hand until the commissioner decides the matter presently before him, we must consider the authority of the workers’ compensation commission as compared with that of the Superior Court in these circumstances.

“Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created.” (Internal quotation marks omitted.) Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 73, 540 A.2d 59 (1988) (Shea, J., concurring), quoting Connecticut State Employees Assn., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 456, 334 A.2d 909 (1973). “Article fifth, § 1 of the Connecticut constitution proclaims that [t]he powers and jurisdiction of the courts shall be defined by law, and General Statutes § 51-164s provides that [t]he superior court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute.” (Internal quotation marks omitted.) State v. Carey, 222 Conn. 299, 305, 610 A.2d 1147 (1992), on appeal after remand, 228 Conn. 487, 636 A.2d 840 (1994). There are courts that have only limited jurisdiction. For example, in Connecticut, “[o]ur courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute. . . . They have jurisdiction only when the facts exist on which the legislature has conditioned the exercise of their power. ...” (Citations omitted.) Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44 (1963). “This concept [of limited jurisdiction], however, is not limited to courts. Administrative agencies are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves. . . .We have recognized that [i]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. . . . It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes expressly grant it that power.” (Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1988); DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, 447, 615 A.2d 1066 (1992); see Lundy Electronics & Systems, Inc. v. Tax Commissioner, 189 Conn. 690, 694, 695, 458 A.2d 387 (1983).

“The Superior Court is a constitutional court of general jurisdiction. ... In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law.” (Citation omitted.) State v. Luzietti, 230 Conn. 427, 431, 646 A.2d 86 (1994). It has “general subject matter jurisdiction.” Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 195, 629 A.2d 1116 (1993).

In enacting § 31-290c and in providing that any person or his representative who was involved with workers’ compensation benefits in a manner interdicted by § 31-290c as set out by its provisions can be liable for damages, the legislature created a new civil proceeding that included the right to recover treble damages after appropriate proof of the elements of this cause of action. The defendant is incorrect when he argues that the Superior Court cannot proceed with its § 31-290c action until the present matter before the commissioner has been fully resolved because that court seeks to adjudicate an issue entrusted solely to the commissioner. He is also incorrect in claiming that that court seeks not only to “modify” and “interpret” his award, but to “discontinue or reduce” it, as well as to have him “reimburse” the fund for moneys he allegedly illegally received. All these alleged actions by the Superior Court, he argues, are in derogation of the commissioner’s authority under the act.

We recognize that the modification of an award is a function of the commissioner, as is the determination of an awar d in the first instance. The commissioner’s authority under § 31-315 or § 31-296, however, is totally different from the new statutorily created cause of action and remedy in the Superior Court created by § 31-290c. “The purpose of the workmen’s compensation law has always been to provide compensation for an injury arising out of and in the course of the employment regardless of fault .... The underlying objective is to provide for the workman and those dependent on him.” (Internal quotation marks omitted.) Cappellino v. Cheshire, 226 Conn. 569, 575, 628 A.2d 595 (1993), quoting Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968); Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 541, 494 A.2d 555 (1985). Section 31-290c is the legislative response to those who have abused or may be abusing the humanitarian purpose of the act by taking advantage of it by fraudulent means. It has ordained accomplishment of this purpose by spelling out the elements of this cause of action and by imposing liability in treble damages in a “civil proceeding” under § 52-564. This “civil proceeding” does not come within the authority of the commissioner. The “civil proceeding” referred to in § 31-290c is a court proceeding.

“It is clear that an award of treble damages is an extraordinary statutory remedy. See Alaimo v. Royer, 188 Conn. 36, 43, 448 A.2d 207 (1982); DeMilo v. West Haven, 189 Conn. 671, 676, 458 A.2d 362 (1983).” Schaffer v. Lindy, supra, 8 Conn. App. 104. “Before treble damages can be imposed, however, the proof must demonstrate a violation of the specific statute authorizing the extraordinary damages.” A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 213, 579 A.2d 69 (1990). When treble damages are sought pursuant to § 52-564, as here, this court has decided that “clear and convincing proof of the actions alleged is required in order to assess treble damages pursuant to § 52-564.” Schaffer v. Lindy, supra, 105. In addition, it is required that in actions seeking to recover double or treble damages under statutes “that the claim for relief shall be specifically based upon the statutory remedy.” Tillinghast v. Leppert, 93 Conn. 247, 250, 105 A. 615 (1919); Dunbar v. Jones, 87 Conn. 253, 257, 87 A. 787 (1913). That was done in this case; there is no relief sought that the commissioner is authorized to order. Finally, the fund’s complaint is clearly based on the statutory cause of action authorizing such extraordinary damages, and not for any other alleged cause of action. DeMilo v. West Haven, supra, 676.

The § 31-290c action instituted by the fund in this case is a statutory cause of action properly brought in the Superior Court. The fund’s claim in its complaint in this case is one at law, it is based on a tort theory and seeks damages. The liability under it is to be determined in a “civil proceeding.” The theory of liability, the extraordinary relief and the forum of a “civil proceeding” and accompanying burden of proof all contribute to demonstrate that it is not within the scope of the commissioner’s authority. It is wholly independent of and outside the statutory authority of the commissioner. The relief it makes available to a successful plaintiff is strictly tailored to the extraordinary remedy it provides. The legislature, from what we have said, intended that the “civil proceeding” together with the relief it allows upon the appropriate proof be solely within the jurisdiction of the Superior Court.

As pointed out, the trial court determined that this is not a case of concurrent jurisdiction and the defendant agrees. “Concurrent jurisdiction” has been said to mean “the jurisdiction of several different tribunals, each authorized to deal with the same subject-matter at the choice of the suitor. Authority shared by two or more legislative, judicial, or administrative officers or bodies to deal with the same subject matter.” Black’s Law Dictionary (6th Ed. 1990); see 20 Am Jur. 2d, Courts § 91. We are not presented with a situation of concurrent jurisdiction here.

B

We turn then to the doctrine of primary jurisdiction. It has been said that that doctrine “applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.” (Emphasis added.) United States v. Western Pacific R. Co., 352 U.S. 59, 63-64, 77 S. Ct. 161, 1 L. Ed. 2d 126 (1956), citing General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433, 60 S. Ct. 325, 84 L. Ed. 361 (1940). “The doctrine of primary jurisdiction is invoked only to determine who will initially decide an issue; 3 Davis, Administrative Law Treatise § 19.01; it cannot operate to divest a court of its ultimate jurisdiction.” State ex rel. Golembeske v. White, 168 Conn. 278, 281, 362 A.2d 1354 (1975). The doctrine of primary jurisdiction is used to fix forum priority when the courts and an administrative agency have concurrent jurisdiction over an issue. Far Eastern Conference v. United States, 342 U.S. 570, 574-75, 72 S. Ct. 492, 96 L. Ed. 576 (1952); Mrs. W. v. Tirozzi, 832 F.2d 748, 759 (2d Cir. 1987). Stated another way, “[t]he threshold issue in determining whether [the] doctrine [of primary jurisdiction] applies is whether both the court and an agency have jurisdiction over the same issue.” Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 59 (2d Cir. 1994).

“Agency and court jurisdiction to resolve disputes and issues frequently overlap, leading to potential conflicts in resolving issues or disputes. Primary jurisdiction is a doctrine used by courts to allocate initial decisionmaking responsibility between agencies and courts where such overlaps and potential for conflicts exist.” 2 K. Davis & R. Pierce, Administrative Law Treatise (3d Ed. 1994) § 14.1, p. 271. Under this view, “[c]ourt jurisdiction is not thereby ousted, but only postponed.” United States v. Philadelphia National Bank, 374 U.S. 321, 353, 83 S. Ct. 1715, 10 L. Ed. 2d 915 (1963).

The doctrine of primary jurisdiction is distinguishable “from the concept of exclusive agency jurisdiction, which refers to matters which an agency alone has the power to adjudicate and of which the court has no jurisdiction.” Mazzola v. Southern New England Telephone Co., 169 Conn. 344, 349, 363 A.2d 170 (1975). Primary jurisdiction does not apply in this case because, as we have demonstrated, the passage of § 31-290c was not intended to, and does not, authorize the commissioner to determine the issue of liability in the “civil proceeding” under that statute or to award relief by way of treble damages. The jurisdiction under § 31-290c resides solely with the Superior Court. “[A] court may not refer a controversy within its jurisdiction to an agency under [the primary jurisdiction] doctrine where the agency itself lacks jurisdiction; the court’s jurisdiction in such cases is exclusive. Collens v. New Canaan Water Co., 155 Conn. 477, 480-81, 234 A.2d 825 [1967]; 73 C.J.S., Public Administrative Bodies and Procedure, § 40.” Id., 349.

C

Davis has said that “[p]rimary jurisdiction is conceptually analogous to exhaustion of administrative remedies. . . . Both are prudential doctrines created by the courts to allocate between courts and agencies the initial responsibility for resolving issues and disputes in a manner that recognizes the differing responsibilities and comparative advantages of agencies and courts.” 2 K. Davis & R. Pierce, supra, § 14.1, pp. 271-72. This court has said that “[i]t is a well settled principle of administrative law that if an adequate adxuinistrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. . . . Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 357, 377 A.2d 1099 (1977).” (Citations omitted.) Silverman v. New Haven, 19 Conn. App. 360, 364-65, 562 A.2 562, cert. denied, 212 Conn. 812, 565 A.2d 537 (1989); Norwich v. Norwalk Wilbert Burial Vault Co., 208 Conn. 1, 4, 544 A.2d 152 (1988); 2 K. Davis & R. Pierce, supra, § § 14.1, 15.1 et seq.; 2 Am. Jur. 2d, Administrative Law § 505 (1994). This doctrine of exhaustion applies, however, when “a claim is cognizable in the first instance by an administrative agency alone.” United States v. Western Pacific R. Co., supra, 352 U.S. 63; Golden Hill Paugussett Tribe of Indians v. Weicker, supra, 39 F.3d 58. The doctrine of exhaustion of administrative remedies is not applicable to the circumstances of this case because the sole jurisdiction under § 31-290c is in the Superior Court.

Contrary to the defendant’s claim, the fund’s § 31-290c action is not premature. The Superior Court has sole jurisdiction of this action and is not required, as the defendant claims, to stay its hand. “Generally, a court with jurisdiction over a case has not only the right, but also the duty, to exercise that jurisdiction, and to render a decision in a case before it.” 20 Am. Jur. 2d, Courts § 61, pp. 377-78 (1995). One court put it this way: “The jurisdiction of the court of the subject matter was invoked by the complaint of the plaintiffs herein. If that complaint stated a cause of action, then and in that event the court acquired jurisdiction and the power and the duty to decide the case. 1 Freeman on Judgments, 5 Ed., § 338; 21 C.J.S. Courts § 33; New River, H. & W. R. Co. v. Honaker, 119 Va. 641, 89 S.E. 960 [1916] . . . Belles v. Miller, 10 Wash. 259, 38 P. 1050 [1894], citing United States v. Arrendondo, 6 Pet. 691, 31 U.S. 691, 8 L. Ed. 547 [1828]; Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13 [1879]; Grignon’s Lessee v. Astor, 2 How. 319, 43 U.S. 319, 11 L. Ed. 283 [1844]; United States v. Maney, C.C.D. Minn., 61 F. 140 [1894].” Buckman v. United Mine Workers of America, 80 Wyo. 199, 210, 339 P.2d 398 (1959).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-296 provides in relevant part: “Voluntary agreements. If an employer and an injured employee, or in case of fatal injury his legal representative or dependent, at a date not earlier than the expiration of the waiting period, reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the iqjury upon which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter in every regard, he shall so approve it. A copy of the agreement, with a statement of the commissioner’s approval thereof, shall be delivered to each of the parties and thereafter it shall be as binding upon both parties as an award by the commissioner. The commissioner’s statement of approval shall also inform the employee or his dependent, as the case may be, of any rights the individual may have to an annual cost-of-living adjustment or to participate in a rehabilitation program under the provisions of this chapter. He shall retain the original agreement, with his approval thereof, in his office and, if an application is made to the superior court for an execution, he shall, upon the request of said court, file in the court a certified copy of the agreement and his statement of approval thereof. Before discontinuing or reducing payment on account of total or partial incapacity under any such agreement, the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments, with the date of such proposed discontinuance or reduction and the reason therefor, and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner. The employee may request a hearing on any such proposed discontinuance or reduction within ten days of receipt of such notice. Any such request for a hearing shall be given priority over requests for hearings on other matters. The commissioner shall not approve any such discontinuance or reduction prior to the expiration of the period for requesting a hearing or the completion of such hearing, whichever is later. In any case where the commissioner finds that an employer has discontinued or reduced any payments made in accordance with this section without the approval of the commissioner, such employer shall be required to pay to the employee the total amount of all payments so discontinued or the total amount by which such payments were reduced, as the case may be, and shall be required to pay interest to the employee, at a rate of one and one-quarter per cent per month or portion thereof, on any payments so discontinued or on the total amount by which such payments were reduced, as the case may be, plus reasonable attorney’s fees incurred by the employee in relation to such discontinuance or reduction. . . .”

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

       An informal hearing was held before the workers’ compensation commissioner concerning the fund’s motion to discontinue or reduce the defendant’s benefits under General Statutes § 31-296. At that hearing the commissioner refused to grant the fund’s motion and scheduled for a full hearing pursuant to General Statutes § 31-300.
      General Statutes § 31-300 provides in relevant part: “Award as judgment. Interest. Attorney’s fee. Procedure on discontinuance or reduction. ... No employer or insurer shall discontinue or reduce payment on account of total or partial incapacity under any such award, if it is claimed by or on behalf of the injured person that his incapacity still continues, unless such employer or insurer notifies the commissioner and the employee of such proposed discontinuance or reduction in the manner prescribed in section 31-296 and the commissioner specifically approves such discontinuance or reduction in writing. The commissioner shall render his decision within fourteen days of receipt of such notice and shall forward to all parties to the claim a copy of his decision not later than seven days after his decision has been rendered. If the decision of the commissioner finds for the employer or insurer, the injured person shall return any wrongful payments received from the day designated by the commissioner as the effective date for the discontinuance or reduction of benefits. Any employee whose benefits for total incapacity are discontinued under the provisions of this section and who is entitled to receive benefits for partial incapacity as a result of an award, shall receive those benefits commencing the day following the designated effective date for the discontinuance of benefits for total incapacity. In any case where the commissioner finds that the employer or insurer has discontinued or reduced any such payment without having given such notice and without the commissioner having approved such discontinuance or reduction in writing, the commissioner shall allow the claimant a reasonable attorney’s fee together with interest at the rate prescribed in section 37-3a on the discontinued or reduced payments.”

       General Statutes § 52-564provides: “Treble damages for theft. Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

       The proposed complaint in that action stated: “TO THE SHERIFF OF THE COUNTY OF HARTFORD, HIS DEPUTY, OR EITHER CONSTABLE OF THE CITY OF WATERBURY
      “GREETING:
      “BY THE AUTHORITY OF THE STATE OF CONNECTICUT, you are hereby COMMANDED, in accordance with the accompanying order, to attach up to the value of the real property of Vincent A. Lupachino, at 103 Gail Drive, Naugatuck, CT and to summon [him] to appear before the Superior Court for the Judicial District of Waterbury, 300 Grand Street, Waterbury, Connecticut on the day of , 1995 and said appearance to be made by said Vincent A. Lupachino or his attomey(s) by filing a written statement of appearance with the Clerk of said Court on or before the second day following said Return Date, then and there to answer unto the STATE OF CONNECTICUT, acting through Christopher B. Burnham, State Treasurer in a civil action wherein the Plaintiff complains and says:
      “1.) On or about October 10, 1988 the defendant Vincent A. Lupachino sustained an injury to his lower back arising out of and in the course of his employment, giving rise to a workers’ compensation claim being made and accepted under Chapter 568 of the Connecticut General Statutes.
      “2.) As a result of the injury the defendant received disability benefits from his employer or its insurer.
      “3.) In that the defendant had a physical impairment of the lower back which preexisted the injury of October 10, 1988, the employer/insurer gave notice of its intention to transfer administration and liability of the claim to the plaintiff, Second Injury Fund of the State of Connecticut (sometimes hereinafter referred to as the State of Connecticut) pursuant to Conn. Gen. Stat. § 31-349.
      “4.) Based upon all of the facts and circumstances, the Plaintiff agreed to accept transfer of the claim pursuant to Conn. Gen. Stat. § 31-349 as of May 8,1992 and has from that date continued to pay workers’ compensation benefits to the defendant.
      “5.) Among the benefits paid by the plaintiff and accepted by the defendant are payments for temporary total incapacity pursuant to Conn. Gen. Statutes § 31-307.
      “6.) During periods comprising June and July of 1994, December of 1994, January of 1995 and at other diverse times since May 8, 1992, the defendant has had a work capacity and has performed services, including but not limited to physical labor for and on behalf of third parties, while continuing to receive temporary total incapacity payments.
      “7.) To induce the plaintiff to continue to make periodic temporary total incapacity payments the defendant represented to the plaintiff that he continued to lack a work capacity and/or failed to disclose that he was performing services including physical labor, for others.
      “8.) The defendant knew or should have known that the representations were false and/or that his nondisclosure of material facts would deceive the plaintiff.
      “9.) In reliance upon said representations and/or nondisclosure of material facts the plaintiff continued to pay said benefits, and is damaged thereby.
      “10.) The conduct of the defendant as aforesaid is tantamount to the commission of larceny as defined in Conn. Gen. Stat. § 53-119 and ‘stealing’ under Conn. Gen. Stat. § 52-564.
      “11.) Notwithstanding the provisions of Conn. Gen. Stat. § 31-284 (a) this action is authorized under Conn. Gen. Stat. § 31-290c.
      “WHEREFORE, the Plaintiff claims:
      “(a) Money damages;
      “(b) Treble damages pursuant to §§ 52-564 and 31-290c;
      “(c) Any further equitable relief the Court deems just and proper.”

       The issue of the timeliness of filing the appeal in this court was first raised by the fund in its brief in this court. The defendant, in his reply brief, responded and briefed the timeliness issue. That issue was argued before this court during oral argument.

       The record before this court shows the notation “copies mailed to counsel 3-8-96 [initials illegible]” on the copy of the order of 1he trial court, signed and dated February 28, 1996.

       There were twenty-nine days in February, 1996.

       General Statutes § 51-53 provides: “Clerks to give notice of decrees of court, (a) Whenever any court, including a court of probate, or the judge of any such court acting in any matter coming before him as a judge, makes or renders any decision, order, decree, denial or ruling, unless it is made or rendered in the presence of counsel in the matter, the clerk of the court shall immediately notify counsel, in writing, of the decision, order, decree, denial or ruling.
      “(b) The time limited by law for commencing appellate proceedings on the decision, order, decree, denial or ruling shall date from the time when such notice is issued by the clerk.”

       General Statutes (Rev. to 1993) § 47a-35, as it existed at the time oí the action in HUD/Barbour-Waverly v. Wilson, supra, 235 Conn. 650, provided: “Stay of execution. Time to appeal. Execution shall be stayed for five days from the date judgment has been rendered, provided any Sunday or legal holiday intervening shall be excluded in computing such five days, except that in an action for nonpayment of rent, if within five days of the date judgment is rendered the defendant deposits with the clerk of the court the full arrearage then the defendant may apply for a stay of execution in accordance with section 47a-37. Notwithstanding the provisions of said section no such stay may exceed three months in the aggregate. The clerk shall distribute such arrearage to the landlord in accordance with an order of the court. An appeal shall not be taken except within such period. If an appeal is taken within such period, execution shall be stayed until the final determination of the cause, unless it appears to the judge who tried the case that the appeal was taken solely for the purpose of delay or unless the defendant fails to give bond, as provided in section 47a-35a. If execution has not been stayed, as provided in this section, execution may then issue, except as otherwise provided in sections 47a-36 to 47a-41, inclusive.”

       Neither the defendant’s motion for an extension of time nor the trial court’s order granting the defendant’s motion specified the length of time for which the extension was sought or granted. HUD/Barbour-Waverly v. Wilson, supra, 235 Conn. 654-55.

       We note that the Srager court at this point inserted the following footnote: “ ‘The time limited by law for commencing appellate proceedings on the decision, order, decree, denial or ruling shall date from the time when such notice is issued by the clerk.’ ” Srager v. Koenig, supra, 36 Conn. App. 473 n.5, quoting General Statutes § 51-53 (b); see also Practice Book § 398. We need not decide whether § 51-53 applies to § 52-2781 on the timeliness issue.

       At the time of the decision in Brown v. New Haven Taxicab Co., supra, 93 Conn. 251, the following statute was in effect: “Clerks to give notice of decrees of court. Whenever any court, or the judge of any court acting in any matter coming before him as such judge, shall have made or rendered any decision, order, decree, denial or ruling, unless the same shall be made or rendered in the presence of counsel in such matter, the clerk of such court shall forthwith notify said counsel in writing of such decision, order, decree, denial or ruling; and, in case of appellate proceedings thereon, the time limited by law for commencing such proceedings shall date from the time that such notice is issued by such clerk. The provisions of this section shall not apply to courts of probate or judges of probate.” General Statutes (1918 Rev.) § 5535.

       It is apparentfrom § 31-290c (b) that its scope includes not only employers and employees, but also “ [a]ny person . . . who intentionally aids, abets, assists, promotes or facilitates the making of, or the attempt to make” any claim for or receipt of benefits as proscribed by this statute.

       The parties are not in dispute concerning this. What they do dispute is the claim that the court proceeding instituted by the fund against the defendant cannot proceed until the present hearing before the commissioner has been fully resolved. That includes, according to the defendant, the final resolution of any appeal that may be taken from the commissioner’s decision, even if that only comes about by virtue of the ultimate decision of our Supreme Court. This was the defendant’s position in oral argument before us. When his counsel was asked what would occur in the event that the statute of limitations on the fund’s action under § 31-290c had passed, he responded that he believed that that statute would be tolled pending the final resolution of any such appeal from the commissioner’s decision. When asked if he had any authority for that claim he indicated that he did not.
      In any event, “[t]he term ‘proceeding,’ as ordinarily used, is generic in meaning and broad enough to include all methods involving the actions of courts, whether controversies properly termed ‘actions’ or ‘special proceedings,’ as distinguished from them.” State v. Ventola, 122 Conn. 635, 639, 191 A. 726 (1937). “ ‘[Ajction’ is generally defined as a judicial proceeding in which one asserts a right or seeks redress for a wrong.” 1 Am. Jur. 2d, Actions § 4 (1994). “The term ‘proceeding’ is broader than the word ‘action.’ As ordinarily used, it is broad enough to include all methods of invoking the action of courts and is generally applicable to any step taken to obtain the interposition or action of a court.” Id., § 3.

       In reaching this conclusion in Schaffer v. Lindy, supra, 8 Conn. App. 104, this court said the following: “Generally, facts which constitute a crime need not be proven beyond a reasonable doubt if they are at issue in a civil action. 30 Am. Jur. 2d, Evidence § 1169. It is ordinarily sufficient in civil cases to prove the existence of the criminal act by a preponderance of the evidence. Mead v. Husted, 52 Conn. 53, 56 (1884). However, clear and convincing proof is a standard frequently imposed in civil cases where the wisdom of experience has demonstrated the need for greater certainty, as where this high standard is required to sustain claims which have serious consequences or harsh or far-reaching effects on individuals, to prove willful, wrongful and unlawful acts, to justify an exceptional judicial remedy, or to circumvent established legal safeguards .... 32A C.J.S., Evidence § 1023; see e.g., Dacey v. Connecticut Bar Assn., 170 Conn. 520, 368 A.2d 125 (1976).” (Emphasis added.)

       In tliis context, the defendant’s reliance on Hyatt v. Milford, supra, 26 Conn. App. 194, is misplaced.

       There may be certain situations where a court having jurisdiction over a case may in its discretion decline to exercise it as where the doctrine of forum nonconveniens is applicable. See 20 Am. Jur. 2d, Courts § 61 (1995). For the doctrine of forum nonconveniens to be invoked, the existence of another forum is necessary. There is no other available forum in the case before us.