William Monaco v. Turbomotive, Inc., et al.

The plaintiff, William Monaco,
appeals from the judgment of the trial court in favor
of the defendants, Turbomotive, Inc., and H.R. Solutions,
Inc. (HRS), rendered after a hearing in damages
following the entry of a default against the defendants
for failure to comply with the court's order regarding
discovery. On appeal, the plaintiff claims that the court
improperly concluded that his claim was barred by General
Statutes § 31-130 (i).1 We reverse the judgment of
the trial court.

The following facts and procedural history are necessary
for our resolution of the plaintiff's appeal. William
Young, a mechanical designer, engaged the plaintiff as
his representative in seeking employment. The plaintiff
contacted Turbomotive, Inc., on Young's behalf and
arranged an interview. Thereafter, Young was hired by Turbomotive, Inc., and the plaintiff sent an invoice to
Turbomotive, Inc., in the amount of $9540. When Turbomotive,
Inc., failed to pay the amount due, the plaintiff
commenced this action.

The plaintiff brought a five count complaint against
the defendants. In the first and second counts, the plaintiff
sought damages from Turbomotive, Inc., for breach
of contract. In the third count, the plaintiff alleged that
Turbomotive, Inc., paid the plaintiff's fee to HRS, a
placement agency, thereby unjustly enriching HRS. In
the fourth and fifth counts, the plaintiff alleged that the
defendants conspired to deprive him of his fee, and
that such action constitutes theft and thereby entitled
him to treble damages.

Thereafter, the defendants filed an answer, special
defenses and counterclaims. Turbomotive, Inc., denied
the allegations and any obligation to pay the plaintiff,
and claimed that the plaintiff's claims were barred by
the doctrines of laches and unclean hands, the statute
of limitations and payment to the party with which
Turbomotive, Inc., had contracted, HRS. Turbomotive,
Inc., filed counterclaims alleging vexatious litigation,
tortious interference and unfair trade practices. HRS
filed counterclaims alleging breach of contract, trademark
infringement, unfair trade practices, conversion,
vexatious litigation and tortious interference with business
expectancy.

The plaintiff filed a motion for a default to be entered
against the defendants for failure to comply with discovery.
On August 31, 1999, the court ordered compliance
by October 8, 1999. The defendants having failed to
respond, the court granted the plaintiff's second motion
for default on December 23, 1999.

Pursuant to Practice Book § 17-34 et seq., the defendants
filed a notice of their intent to contradict ‘‘all
proof of damages, the material allegations and subject
matter of the plaintiff's complaint, the right of the plaintiff
to maintain this action and provide evidence of
defenses at any hearing in damages.'' It is well settled
that the entry of default does not preclude the defendant
from raising a defense at the hearing in damages. See
Practice Book § 17-34. If timely written notice is furnished
to the plaintiff, the defendant may offer evidence
contradicting any allegation of the complaint. Id. The
defendant may also challenge the right of the plaintiff
to maintain the action or prove any matter of defense.
Id. ‘‘If the defendant appears in the action and furnishes
the required notice, the subsequent hearing in damages takes on the nature of a supplemental trial involving
the determination of questions of law and fact, and the
determination of the damages to be assessed after such
trial.'' (Internal quotation marks omitted.) DeBlasio v.
Aetna Life & Casualty Co., 186 Conn. 398, 401, 441
A.2d 838 (1982).

In this case, at the hearing in damages, the court
admitted evidence, over the plaintiff's objection, that
the plaintiff was not a licensed employment agent as
required by § 31-130 (i) at the time he rendered services
to Turbomotive, Inc. The court took judicial notice of
§ 31-130 (i), which provides: ‘‘No person shall engage
in the business of procuring or offering to procure
employees for persons seeking the services of employees
or supplying employees to render services where
a fee or other valuable thing is exacted, charged or
received from the employer for procuring or assisting
to procure or supplying such employees unless he registers
with the Labor Commissioner. . . .'' The plaintiff,
thereafter, testified that he was not registered with the
commissioner of the department of labor as required
by the statute, and the court concluded that pursuant
to that statute, the plaintiff could not recover a fee.
The court thereafter rendered judgment in favor of the
defendants on all counts, and the plaintiff appealed.
The plaintiff argues that the court abused its discretion
when it considered evidence of the plaintiff's failure to
comply with § 31-130 (i) at the hearing in damages. We
reverse the judgment on the ground that the plaintiff's
recovery was not barred by § 31-130 (i).

General Statutes § 52-163 provides that the courts
shall take judicial notice of the special acts of this state.
Judicial notice can be taken at any stage of the proceedings.
State v. Allen, 205 Conn. 370, 382, 533 A.2d 559
(1987). ‘‘[A] trial court's determination not to take judicial
notice is essentially an evidentiary ruling. . . . Our
role in reviewing evidentiary rulings of the trial court
is settled. The trial court has wide discretion in its
rulings on evidence and its rulings will be reversed only
if the court has abused its discretion or an injustice
appears to have been done.'' (Internal quotation marks
omitted.) Barrese v. DeFillippo, 45 Conn. App. 102, 107,
694 A.2d 797 (1997).

‘‘Statutory construction is a question of law and therefore
our review is plenary. . . . [O]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In seeking to discern that
intent, we look to the words of the statute itself, to the
legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter. . . . As with any issue of statutory
interpretation, our initial guide is the language of the
operative statutory provisions.'' (Internal quotation
marks omitted.) O'Neil v. Honeywell, Inc., 66 Conn.
App. 332, 336, 784 A.2d 428 (2001); see also 1 B.
Holden & J. Daly, Connecticut Evidence (2d Ed. 1988)
§ 50, p. 222.

General Statutes § 31-129 (b) defines ‘‘employment
agency'' as ‘‘includ[ing] the business of procuring or
offering to procure work or employment for persons
seeking employment, or acting as agent for procuring
such work or employment where a fee or other valuable
thing is exacted, charged or received for procuring or
assisting to procure employment, work or a situation
of any kind or for procuring or providing help for any
person . . . .'' Significantly, however, No. 89-128 of the
1989 Public Acts exempts employment agencies from
licensing and regulatory requirements if they receive
their fees from employers rather than employees.

Dorr-Oliver, Inc. v. Webster Computer Corp., 30
Conn. Sup. 544, 300 A.2d 45 (1972), provides further
definition. In Dorr-Oliver, Inc., the plaintiff employer
brought an action to recover moneys that were paid to
the defendant for the procurement of an employee. The
plaintiff claimed that the defendant could not recover
a fee because it was not licensed pursuant to § 31-
130. Relying on cases from other jurisdictions that had
similar statutory schemes, the court held that the defendant
did not fall within the definition of an ‘‘employment
agency'' under the statute because (1) no fee was paid
from the employee to the defendant, (2) procuring
employees was incidental to the defendant's main service
of providing computer systems, (3) the defendant
never solicited the public at large or advertised concerning
employment placement and (4) the policy behind
General Statutes §§ 31-129 to 31-131c is to protect individual
applicants (prospective employees) from unscrupulous
employment agencies. Dorr-Oliver, Inc. v.
Webster Computer Corp., supra, 550–51.

The reasoning of Dorr-Oliver, Inc., although dated,
is consistent with the statutory scheme today. Section
31-130 provides for the licensure of employment agencies
and regulation of the conduct of their businesses.
The legislative history indicates that agencies that collect
their fees from employers do not present the kind
of harm that is presented by agencies that collect their fees from prospective employees.2 The provisions applicable
to licensure, record keeping and scheduling of
fees as well as enforcement penalties, therefore, apply
only to those agencies that must be licensed. Although
subdivision (i) of § 31-130 still requires agencies that
obtain their fees from employers to register with the
labor commissioner and to pay an annual registration
fee of $150, this is the same amount as the licensing
fee and clearly is for the purpose of maintaining state
revenues. See footnote 2. Furthermore, the legislature
has shown that it knows how to draft legislation that
bars recovery of a fee in the context of real estate
commissions; General Statutes § 20-325a; and home
improvement contracts. General Statutes § 20-429. Sections
31-129 to 31-133 do not contain such language.
We will not read into the statute a provision barring
recovery of a fee from an employer. See Giaimo v. New
Haven, 257 Conn. 481, 494, 778 A.2d 33 (2001) (‘‘[w]e
are constrained to read a statute as written . . . and
we may not read into clearly expressed legislation provisions
which do not find expression in its words'' [citation
omitted; internal quotation mark omitted]).

In this case, it appears from the record that the
employee did not pay a fee and the plaintiff did not
solicit the public at large. Thus, under the reasoning of
Dorr-Oliver, Inc., and the plain language of the statute,
we conclude that § 31-130 (i) does not bar the plaintiff's
recovery from the defendants in this case. The evident
purpose of the statutory scheme is to protect prospective
employees, not employers, from the unscrupulous
tactics of employment agencies.

We therefore conclude that in this case, the court
abused its discretion when it took judicial notice of
§ 31-130 (i) at the hearing in damages because the statute
does not bar the plaintiff's recovery.

* * *

Click the case caption above for the full text of the Court's opinion.

The judgment is reversed and the case is remanded
for a new hearing in damages consistent with this
opinion.

Unavailable

Unavailable

None