author: Landau, J. Foti, J.,

text:
    James Barry v. Posi-Seal International, Inc.
    (12101)
    Foti, Landau and Spear, Js.

      Argued January 12
    decision released September 13, 1994

      Mark R. Kravitz, with whom were Ian E. Bjorkman and, on the brief, Bonnie L. Patten, for the appellantappellee (defendant).

      Harry E. Calmar, with whom, on the brief, were Thomas B. Wilson and Helen Kemp, legal intern, for the appellee-appellant (plaintiff).
   Landau, J.

In this action for wrongful termination of employment, the defendant, Posi-Seal International, Inc. (Posi-Seal), appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, James Barry. The defendant challenges the trial court’s refusal to set aside the verdict on the following bases: (1) that there was insufficient evidence that an employment contract was created between the parties; (2) that, because an employment contract did not exist, the finding of a breach of an implied covenant of good faith and fair dealing was improper; (3) that front pay is not a proper measure of contract damages, and, if it is a proper measure, there was insufficient evidence to support the front pay award; and (4) that there was insufficient evidence to support the award of punitive damages. The plaintiff has filed a cross appeal claiming that the trial court improperly (1) set aside the awards for intentional infliction of emotional distress and negligent misrepresentation, and (2) reduced the punitive damage award.

The jury reasonably could have found the following facts. The plaintiff was employed by the defendant for more than ten years as an assembler of specialty valves. On August 4, 1988, the plaintiff walked by an area where a valve test was being conducted. John Burdick, an inspector for the defendant, was witnessing the test. The plaintiff had firsthand knowledge of the effectiveness of the valve being tested. The plaintiff remarked to Burdick that the valve was “fucking junk” and that he was wasting his time testing it. Only after making his comment did the plaintiff notice that Jim Eckhardt, an inspector representing a Posi-Seal customer, was present. The next day, the plaintiffs employment was terminated because of the disparaging remark he had made about a company made valve in the presence of a customer representative. He received no prior notice of this act, nor was he afforded any other disciplinary measures in accordance with the defendant’s personnel manual.

The plaintiff commenced this action for damages for wrongful termination of employment alleging breach of an implied or express employment contract, breach of implied covenant of good faith and fair dealing, intentional infliction of emotional distress and negligent misrepresentation. At trial, the jury answered several special interrogatories and returned a verdict finding the issues in favor of the plaintiff. The finding that an implied employment contract existed between the parties was based on remarks made by Eugene Bisbee and the express language of the employee manual. Bisbee, the vice president and general manager of Posi-Seal, would walk, on occasion, through the Posi-Seal plant and discuss with employees the financial prospects of the company in an effort to boost morale. Because it was common knowledge that the plant was experiencing severe financial pressures, he tried to dispel the perception that the company was considering closing the plant. On one occasion, the plaintiff inquired as to his job security and Bisbee responded that “if you do your job, you do your work, you’re going to have a job here. If we can make this place run and minimize the money loss — I mean, you do your job, you’re going to have a job here.”

The defendant distributed a personnel policy manual to its employees describing company policy on disciplinary procedures. It states that “[i]t is policy of the Company that any employee who violates any of the rules or procedures of the Company shall be subject to disciplinary action as set forth below.” The manual then sets forth procedures to respond to first, second and third violations by employees of the company rules and regulations.

The jury awarded the plaintiff the following damages: $52,275 back pay; $271,775 future wage loss-impairment of earning capacity; $42,315 infliction of emotional distress and negligent misrepresentation; and $50,000 punitive damages. The defendant moved to set aside the verdict. After a hearing on the motion, the trial court granted the motion to set aside the verdict as to intentional infliction of emotional distress and negligent misrepresentation, and denied it as to the remaining counts. The defendant filed this appeal, and the plaintiff filed a cross appeal.

I

The Defendant’s Appeal

A

The defendant first claims that there was insufficient evidence to support the finding that the parties had an implied agreement whereby the plaintiff’s employment could not be terminated except for cause following appropriate disciplinary procedures. The defendant contends that Bisbee’s statements and the language of the personnel manual do not constitute sufficient evidence to establish an implied agreement between the parties, and thus, the issue should not have been submitted to the jury. The defendant seeks a judgment in its favor on this claim. We are unpersuaded.

“A contract implied in fact, like an express contract, depends on actual agreement. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n.2, 520 A.2d 217 (1987); Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94, 429 A.2d 808 (1980); Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406, 356 A.2d 181 (1974); Corriveau v. Jenkins Bros., 144 Conn. 383, 387, 132 A.2d 67 (1957).” (Internal quotation marks omitted.) Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 111-12, 544 A.2d 170 (1988). Accordingly, to prevail on his wrongful termination claim, “which alleged the existence of an implied agreement between the parties, the plaintiff had the burden of proving by a fair preponderance of the evidence that [the defendant] had agreed, either by words or action or conduct, to undertake [some] form of actual contract commitment to him under which he could not be terminated without just cause [following progressive disciplinary measures]. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 212 n.2; Therrien v. Safeguard Mfg. Co., supra, 94-95.” (Internal quotation marks omitted.) Id., 112.

“In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict. Campbell v. Gould, 194 Conn. 35, 41, 478 A.2d 596 (1984). The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness. Herb v. Kerr, [190 Conn. 136, 139, 459 A.2d 521 (1983)]; Katsetos v. Nolan, [170 Conn. 637, 656, 368 A.2d 172 (1976)]. This is so because [f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury. Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972) . . . . It is the function of this court to determine whether the trial court abused its discretion in denying [a party’s] motion. Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988).

“Absent a statutory warranty or definitive contract language, the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact. As an inference of fact, it is not reversible [error] unless the [trier of fact] could not reasonably have arrived at the conclusion that it reached. Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981). This process of inference is peculiarly a jury function, the raison d’etre of the jury system. Pierce v. Albanese, 144 Conn. 241, 256, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957).” (Internal quotation marks omitted.) Coelho v. Posi-Seal International, Inc., supra, 208 Conn. 112-13.

The defendant contends that the statements Bisbee made to the plaintiff were expressions of expectations about the company’s future, and efforts to boost morale among employees. It claims that the comments were not manifestations of a present intention on the part of the company to undertake contractual obligations to the plaintiff. “Weighing the evidence and judging the credibility of the witnesses is the function of the trier of fact and this court will not usurp that role.” Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981); see Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978). Given the defendant’s financial situation, it was not unreasonable for the jury to conclude that Bisbee’s encouraging comments intended to confer job security in combination with the manual provisions, gave rise to an implied employment contract.

The defendant argues that the provisions of the personnel manual could not form the basis of an implied agreement between the parties because the plaintiff did not rely on the contents of the manual. Our Supreme Court addressed this claim in Coelho v. Posi-Seal International, Inc., supra, 208 Conn. 118. Noting that in Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987), overruled on other grounds in Curry v. Burns, 225 Conn. 782, 626 A.2d 719 (1993), the court had “declared that ‘whether the [employer’s] personnel manual gave rise to an express contract between the parties was a question of fact properly to be determined by the jury,’ without mention of any separate consideration requirement,” the Coehlo court held that no separate consideration, such as reliance, is necessary to support a promise not to discharge without cause. Coehlo v. Posi-Seal International, Inc., supra, 118. “[T]he only consideration needed to sustain such a contract is the employee’s acceptance of employment on such terms.” Id. The defendant’s contention, therefore, is without merit.

We conclude that, under the circumstances of this case, sufficient evidence was adduced at trial from which the jury reasonably could have found that the parties had an implied agreement whereby the plaintiff would not be terminated except for cause after implementing the methods outlined in the personnel manual. Therefore, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion to set aside the verdict in this regard.

B

The defendant argues that the finding as to a breach of an implied covenant of good faith and fair dealing should be reversed because an employment contract did not exist. Our resolution of the defendant’s first claim is dispositive of that argument.

C

The defendant next claims that the trial court improperly instructed the jury on awarding damages for future lost earnings, commonly known as “front pay.” Therefore, the defendant claims, it was incorrect to refuse to set aside the award for future lost earnings. The plaintiff argues that the defendant did not properly preserve this claim in accordance with Practice Book § 315. We disagree with the plaintiff and, thus, will review the merits of the defendant’s claim.

“In order to preserve a claim related to the giving of or failure to give a jury instruction, a party is obligated either to submit a written request to charge covering the matter or to take an exception immediately after the charge is given. See Practice Book § 315.” Mauro v. Yale-New Haven Hospital, 31 Conn. App. 584, 591, 627 A.2d 443 (1993). Our review of the record indicates that the defendant’s request to charge did frame the issue of damages for breach of an employment contract, and can be deemed to have preserved this issue for review because the request, if given, would have cured the defect now claimed in the charge. See Wasfi v. Chaddha, 218 Conn. 200, 214-15, 588 A.2d 204 (1991); Giannitti v. Stamford, 25 Conn. App. 67, 72, 593 A.2d 140, cert. denied, 220 Conn. 918, 597 A.2d 333 (1991). Following the trial court’s charge in which it instructed the jury that it could award front pay, the defendant excepted to the charge to the extent that it conflicted with its own written proposed charge. We therefore conclude that the defendant complied with Practice Book § 315.

We have never addressed the question of whether front pay is a proper measure of recovery in a wrongful termination action founded on a breach of contract theory. Generally, front pay can be defined as compensation for loss of future earnings. Specifically, the courts commonly define it as “an award for a reasonable future period required for the victim to reestablish her rightful place in the job market.” Goss v. Exxon Office Systems Co., 747 F.2d 885, 889 (3d Cir. 1984).

The courts have found the authority for granting such relief in § 7 (b) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626 (b) (hereinafter the act). The act provides that “ ‘[i]n any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.’ [29 U.S.C. § 626 (b)].” (Emphasis in original.) Equal Employment Opportunity Commission v. Prudential Federal Savings & Loan Assn., 763 F.2d 1166, 1171-72 (10th Cir.), cert. denied, 474 U.S. 946, 106 S. Ct. 312, 88 L. Ed. 2d 289 (1985). “ ‘The manifest purpose of this broad grant of legal and equitable power is to enable the courts to fashion whatever remedy is required to fully compensate an employee for the economic injury sustained by him. The power so granted is sufficient to authorize an award of future loss of earnings in appropriate cases. To deny [authority to grant front pay] would defeat a purpose of the Act to make a victim of discrimination “whole” and to restore him to the economic position he would have occupied but for the unlawful conduct of his employer. To deny such authority would remove a deterrent force against future violations.’ ” Id., 1172, quoting Koyen v. Consolidated Edison Co. of New York, Inc., 560 F. Sup. 1161, 1168 (S.D.N.Y. 1983); see also Maxfield v. Sinclair International, 766 F.2d 788, 795-97 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 106 S. Ct. 796, 88 L. Ed. 2d 773 (1986).

“ ‘Front pay’ is the term given to the remedy created under federal statutory authority to compensate wrongfully discharged employees under the [act]. See Goldstein v. Manhattan Industries, Inc., [758 F.2d 1435 (11th Cir. 1985)]; Davis v. Combustion Engineering, Inc., [742 F.2d 916 (6th Cir. 1984)]. The remedy has not been granted consistently as some federal courts do not permit a discharged employee to recover front pay under any circumstances. See Kolb v. Goldring, Inc., [694 F.2d 869 (1st Cir. 1982)]; Monroe v. Penn-Dixie Cement Corp., [335 F. Sup. 231 (N.D. Ga. 1971)].” Worrell v. Multipress, Inc., 45 Ohio St. 3d 241, 246, 543 N.E.2d 1277 (1989).

Our review of the decisions that have permitted the award of front pay damages indicates that two lines of cases have emerged: (1) cases in which front pay is awarded only in the statutory context, and (2) a small number of cases in which front pay is confused with “benefit of the bargain” in cases involving wrongful termination of employment based on breach of contract.

The first category is illustrated by the availability of front pay as a remedy under the act and its extension by the federal courts to other federal statutes. See, e.g., McNeil v. Economics Laboratory, Inc., 800 F.2d 111 (7th Cir. 1986); Wildman v. Lerner Stores Corp., 771 F.2d 605 (1st Cir. 1985); Equal Employment Opportunity Commission v. Prudential Federal Savings & Loan Assn., supra, 763 F.2d 1166; O’Donnell v. Georgia Osteopathic Hospital, Inc., 748 F.2d 1543 (11th Cir. 1984); Davis v. Combustion Engineering, Inc., supra, 742 F.2d 916; Whittlesey v. Union Carbide Corp., 742 F.2d 724 (2d Cir. 1984); Gibson v. Mohawk Rubber Co., 695 F.2d 1093 (8th Cir. 1982); Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir. 1982); Cancellier v. Federated Department Stores, 672 F.2d 1312 (9th Cir.), cert. denied, 459 U.S. 859, 103 S. Ct. 131, 74 L. Ed. 2d 113 (1982); Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir. 1980). Some courts have extended the same logic to cases involving alleged discriminatory treatment in violation of Title VII of the Civil Rights Act of 1964, § 701 et seq., 42 U.S.C. § 2000e et seq. (Title VII). See, e.g., Equal Employment Opportunity Commission v. Kallir, Philips, Ross, Inc., 420 F. Sup. 919, 926-27 (S.D.N.Y. 1976), aff'd, 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920, 98 S. Ct. 395, 54 L. Ed. 2d 277 (1977); United Steel v. United States Steel Corp., 371 F. Sup. 1045, 1063 (N.D. Ala. 1973). In such cases, the courts have ruled that front pay does not lend itself to a per se rule and should be granted under limited circumstances: (1) in the court’s discretion; (2) in lieu of reinstatement; (3) if not too speculative; and (4) for temporary relief only. See Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1347 (9th Cir. 1987), cert. denied, 484 U.S. 1047, 108 S. Ct. 785, 98 L. Ed. 2d 870 (1988); Whittlesey v. Union Carbide Corp., supra, 742 F.2d 728.

The second category, in which injured parties claiming wrongful termination of employment based on breach of contract have been permitted to recover front pay damages, is best exemplified by two cases. In Wor rell v. Multipress, Inc., supra, 45 Ohio St. 3d 247, the Ohio Supreme Court held that, “as a result of breach of an employment contract where an employee has been wrongfully discharged, front pay, or lost future wages, may be awarded as compensation between the date of discharge and reemployment in a position of equal or similar status.” In its determination to award front pay damages, the court observed that the “defendants do not appeal the appellate court’s decision regarding the validity of the . . . contract of employment.” Id., 243. It then noted that “the usual remedy in breach of contract cases for wrongful discharge is to pay the injured party the difference between any wages due under the contract from the date of discharge until the contract term expires, and that amount is to be reduced by any wages the employee earned in subsequent employment.” Id., 246. The court then vaulted from this premise, grounded in a remedy at law for breach of contract, to a discussion of front pay, an “equitable remedy designed to financially compensate employees . . . [which] enables the court to make the injured party whole, although reinstatement is the preferred remedy.” Id.

The Worrell court’s resolution of this dilemma required some measure of judicial legerdemain. The court, citing a series of decisions, all but one of which are federal court cases involving discriminatory terminations based on federal statutes, stirred an equitable remedy with a legal tenet and turned out a succotash. See id., 246-47. We choose not to adopt the analysis of the Worrell court, which converts a contract benefit of the bargain case into a statutory front pay case.

Similarly, we reject the reasoning of the court in Brown v. Ford, Bacon & Davis, Utah, Inc., 850 F.2d 631 (10th Cir. 1988). In Brown, the plaintiff brought suit against her former employer alleging that she was discharged from her accountant position because of her gender and because of her complaint of discriminatory treatment in violation of Title VII. Id., 632. She further claimed that the defendants breached her contract of employment by failing to comply with termination procedures specified in their personnel manual. Id. The United States District Court for the District of Utah found that the employer had not discharged the employee for discriminatory or retaliatory reasons, but had breached the employment contract. Id., 633. On appeal to the Tenth Circuit Court of Appeals, the employee claimed that the District Court findings on her civil rights claims were clearly erroneous and that damages for her contract claim were not properly calculated. Id., 632. The Court of Appeals upheld the District Court as to the factual findings, but “conclude[d], in light of the peculiarities of this case, damages were improperly calculated”; id.; and remanded the case, stating that “[i]f [the] plaintiff was discharged for cause . . . [the] defendants breached her contract by failing to afford her the ‘progressive discipline’ procedures her contract required as a precondition to discharge for cause. [The] [p]laintiff would then be entitled to her accrued salary for the period between her procedurally defective discharge and the time when her employer ‘substantially complied’ with the required procedures, subject to her duty to properly mitigate.” Id., 633. If the plaintiff was discharged on the basis of unsatisfactory job performance, she would be entitled to “reasonable” front pay because of the employer’s failure to comply with contractually mandated procedures required as a precondition to discharge for cause. Id., 634, citing Piacitelli v. Southern Utah State College, 636 P.2d 1063, 1066 (Utah 1981).

We find that the Brown court, like the court in Worrell, improperly permitted an equitable remedy of front pay damages in a case involving wrongful termination of employment based on breach of contract.

It is important to examine closely what was placed in the agar of the petri dish in which the theory of “front pay” damages germinated and flourished. The act allows a court to grant “legal or equitable relief.” The language oí Equal Employment Opportunity Commission v. Prudential Federal Savings & Loan Assn., supra, 763 F.2d 1171-72, and Maxfield v. Sinclair International, supra, 766 F.2d 795-97, indicates that the equitable remedy of front pay is recognized to serve the remedial legislative intent of the act. Front pay has been identified as an equitable remedy designed to compensate employees financially where reinstatement of the employee would be impracticable or inadequate. In such cases, an award of front pay enables the court to make the victim whole, although reinstatement is the preferred remedy.

“The Act provides legal and equitable remedies to eliminate the unlawful practices and to restore aggrieved persons to the position where they would have been if the illegal discrimination had not occurred. . . . Consistent with the [act’s] purpose of recreating the circumstances that would have existed but for the illegal discrimination, aggrieved persons are not entitled to recover damages for the period beyond which they would have been terminated for a nondiscriminatory reason.” (Citation omitted; emphasis added.) Gibson v. Mohawk Rubber Co., supra, 695 F.2d 1097. “[I]n Loeb [v. Textron, Inc., 600 F.2d 1003, 1023 (1st Cir. 1979)], the Court noted that court-ordered ‘payments in lieu of reinstatement . . . have been relatively small and have been designed to assist [the] plaintiff during the period in which he can be expected to find other employment.’ ” Bailey v. Container Corp. of America, 660 F. Sup. 1048, 1054 (S.D. Ohio 1986).

Remedies for a breach of contract, on the other hand, do not include equitable relief except in unusual cases. See United States Fidelity & Guaranty Co. v. Metropolitan Property & Liability Ins. Co., 10 Conn. App. 125, 127, 521 A.2d 1048, cert. denied, 203 Conn. 806, 525 A.2d 521 (1987). Moreover, the language of the act defies an award of front pay in wrongful termination cases founded on contract theories in that the conduct of the employer, while wrongful in breaching a contract, is not unlawful. The use of the word “victim” in the definition and purpose of the act indicates that certain employer conduct is illegal. The Gibson court speaks of “the [act’s] purpose of recreating the circumstances that would have existed but for the illegal discrimination . . . .” (Emphasis added.) Gibson v. Mohawk Rubber Co., supra, 695 F.2d 1097.

“ ‘[T]he general rule for the measure of damages in contract is that the award should place the injured party in the same position as he would have been in had the contract been performed . . . .’” (Citation omitted.) Vespoli v. Pagliarulo, 212 Conn. 1, 3, 560 A.2d 980 (1989). When a wrongful termination of a contract is claimed, “the entire damage, both past and prospective, may be recovered in a single action.” Jacobs v. Thomas, 26 Conn. App. 305, 314, 600 A.2d 1378 (1991), cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). The measure of damages is the reasonable compensation for the loss that the plaintiff suffered in being wrongfully deprived of the benefit of the agreement. Maguire v. Kiesel, 86 Conn. 453, 460, 85 A. 689 (1913).

An award of front pay damages cannot be permitted as a proper measure of recovery in a wrongful termination action founded on a contract theory. Such a result would violate principles of contract damages and would defy common sense.

We conclude that front pay is not a proper measure of contract damages, and we reverse the judgment of the trial court and remand the case for a new trial on the plaintiff’s breach of employment contract claim.

D

The defendant’s final claim is that there was insufficient evidence to support the punitive damage award. Because we reverse the judgment of the trial court on the count alleging breach of the employment contract and remand the matter for a new trial, we need not consider this claim.

II

The Plaintiff’s Cross Appeal

A

The plaintiff first claims that the trial court improperly granted the defendant’s motion to set aside the verdict on the counts alleging intentional infliction of emotional distress and negligent misrepresentation. We are unpersuaded.

In considering a motion to set aside a verdict, “the evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable.” (Internal quotation marks omitted.) Frankovitch v. Burton, 185 Conn. 14, 16, 440 A.2d 254 (1981). “[Ljitigants have a constitutional right to have factual issues resolved by the jury. . . . This right encompasses the right to have the jury and not the court decide issues of fact as to which reasonable people may reach different conclusions. . . . Thus, the role of the trial court on a motion to set aside the jury’s verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did.” (Citations omitted; internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 807-808, 614 A.2d 414 (1992).

In order to prevail on a claim of intentional infliction of emotional distress, a plaintiff must establish four elements: “ ‘(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe. Hiers v. Cohen, 31 Conn. Sup. 305, 329 A.2d 609 (1973); 1 Restatement (Second), Torts § 46.’ ” Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986), quoting Murray v. Bridgeport Hospital, 40 Conn. Sup. 56, 62, 480 A.2d 610 (1984).

In granting the defendant’s motion to set aside the verdict on the count alleging intentional infliction of emotional distress, the trial court concluded that there was no evidence from which the jury reasonably could have found that the defendant had intended to inflict emotional distress, or knew or should have known that emotional distress was a likely result of its conduct, or that the plaintiff had sustained severe emotional distress. The plaintiff contends that he presented sufficient evidence to establish each of these elements. We disagree.

Our review of the record indicates that there was insufficient evidence from which the jury reasonably could have reached the verdict that it did. No evidence was presented from which the jury reasonably could have found that the defendant intended to inflict emotional distress, or that the defendant knew or should have known that emotional distress was a likely result of its conduct. Furthermore, no evidence was presented from which the jury reasonably could have found that the plaintiff had sustained severe emotional distress. Thus, we conclude that the trial court did not abuse its discretion in granting the defendant’s motion to set aside the verdict as to the intentional infliction of emotional distress.

“This court has long recognized liability for negligent misrepresentation.” D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 217. “The governing principles are set forth in . . . §552 of the Restatement Second of Torts (1979): ‘One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.’ ” Id., 217-18. “[T]he plaintiff need not prove that the representations made by the [defendant] were promissory. It is sufficient . . . that the representations contained false information.” Id., 218.

In granting the defendant’s motion to set aside the verdict on the count alleging negligent misrepresentation, the trial court concluded that there was no evidence from which the jury reasonably could have found that the defendant had made a representation that was untrue when made or should have been known to be untrue.

The plaintiff contends that he presented sufficient evidence to establish “an employment relationship, that the Defendant failed to exercise reasonable care and thus supplied false information to the Plaintiff which the Plaintiff justifiably relied on to his detriment.” The plaintiff, however, has failed to apprise us of anything in the record, and our search of the record has revealed nothing, to support his contention. No evidence was presented from which the jury reasonably could have found that the defendant had made a representation to the plaintiff that was untrue or should have been known to be untrue. We therefore conclude that the trial court did not abuse its discretion in granting the defendant’s motion to set aside the verdict as to negligent misrepresentation.

B

The plaintiff further claims that the trial court improperly reduced the punitive damage award. Because we reverse the judgment of the trial court on the count alleging breach of the employment contract, we need not consider this claim.

On the defendant’s appeal, the judgment is reversed in part and the case is remanded for a new trial; on the plaintiff’s appeal, the judgment is affirmed.

In this opinion, Spear, J., concurred.

Foti, J.,

dissenting. I cannot agree that either an implied or an express contract of employment existed between the parties. The evidence established, at most, an employment for no fixed duration, terminable at will.

The plaintiff alleged in the first count of his complaint the existence of an express and implied in fact employment agreement that comprised a total employment agreement. The defendant denied these allegations. In support of his claim, the plaintiff presented evidence of an oral statement made by Eugene Bisbee, vice president of the defendant, and general manager of the plant where the plaintiff worked. The plaintiff claims that Bisbee told the plaintiff that “if you do your job . . . you’re going to have a job here.”

The plaintiff also testified that, although he could not recollect when, he had received a copy of the defendant’s personnel manual containing all revisions through December 31,1982, which is five years after he became an employee of the defendant in 1977. The manual expressly stated that it was intended to be simply a guide and a reference.

“It is true that under appropriate circumstances statements in an employee handbook or manual may give rise to an implied contract between an employer and its employee. . . . The mere fact [however,] that the plaintiff believed the guidelines to constitute a contract does not bind [the defendant] without some evidence that it intended to be bound to such a contract.” Christensen v. Bic Corp., 18 Conn. App. 451, 457-58, 558 A.2d 273 (1989). “It is the plaintiffs burden to prove, by a preponderance of the evidence, that the [defendant] had agreed by either words or deeds to recognize and undertake a contractual commitment . . . .” Id., 454. There was no evidence presented that the plaintiff ever relied on the manual. He consulted it only once for the purpose of determining whether the defendant had a policy dealing with bereavement.

I agree that whether an implied contract of employment existed by virtue of the employer’s policies and oral representations is a question of fact for the jury. Statements in an employer’s personnel manual may form the basis of a contract between employer and employee. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 197-99, 520 A.2d 208 (1987), overruled on other grounds in Curry v. Burns, 225 Conn. 782, 626 A.2d 719 (1993). Such a finding, however, may be made only where the traditional contract requirements are met. Sivell v. Conwed Corp., 666 F. Sup. 23, 27 (D. Conn. 1987). Showing that employment was either accepted or continued in reliance on the representation in the manual is such a traditional contract element. See Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 118, 544 A.2d 170 (1988). While there is no requirement that the personnel manual mention any separate consideration; Finley v. Aetna Life & Casualty Co., supra, 199; “[demonstrating that employment was accepted [or continued] in reliance on the representations in the manual is a threshold requirement. [Sivell v. Conwed Corp., supra, 666 F. Sup. 27; Coelho v. PosiSeal International, Inc., supra, 208 Conn. 118].” Cartier v. United States Shoe Corp., United States District Court, District of Connecticut, Docket No. 91CV-00595 (June 24, 1992) (Dorsey, J.). It is axiomatic that reliance requires more than a mere awareness; there must be a conscious dependence on a contractual term — in this case, the representations contained in the manual.

There was absolutely no evidence of the plaintiffs reliance on the defendant’s personnel manual. He had never read it except to see about time off for a death in the family. He did not forgo other job opportunities because of the representations in the manual, nor was he even aware of any “promises” it contained that caused him either to accept or continue his employment. There was no evidence sufficient to constitute a separate consideration for the agreement alleged by the plaintiff, that is, that he relied on the terms of the personnel manual.

Further, there appears to be no evidence that the plaintiff commenced his employment other than as an at-will employee. The plaintiff claims that Bisbee’s statement and the personnel manual established job security to such a level that they created an employment contract. I cannot agree, in the circumstances of this case, that contractual liability arose in the form of an employment contract.

There was no evidence on which the jury reasonably could have found an implied employment contract. No evidence was proffered that would take the employment agreement out of the general rule that “contracts of permanent employment, or for an indefinite term are terminable at will.” D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n.1, 520 A.2d 217 (1987); see Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984). I conclude that it was plain error to submit this issue to the jury when, as a matter of law, the evidence was insufficient to support the plaintiffs claim.

The plaintiffs second count alleges a breach of the implied covenant of good faith and fair dealing incidental to the contract. In order to prevail on this claim, the plaintiff, as an at-will employee, must prove that he was terminated for an improper reason and that the impropriety of the reason derives from a violation of an important public policy. Magnan v. Anaconda Industries, Inc., supra, 193 Conn. 572. “In the absence of a public policy violation, there is no breach of the implied covenant of good faith and fair dealing.” Doherty v. Sullivan, 29 Conn. App. 736, 743, 618 A.2d 56 (1992). The plaintiff has neither claimed nor identified a violation of such a public policy contravened by the defendant, but rather argued that he was not an at-will employee. He cannot prevail on this claim.

Since the contract is one of employment at-will, there can be no recovery for prospective damages, referred to by the parties as front pay or future lost wages and benefits, simply because there could be no expectation for future earnings in such a matter. At most, an at-will employee is entitled to wages only through the date of discharge.

The majority has presented a scholarly analysis of front pay and concluded that no such damages should be allowed in contract actions. I cannot agree to that broad conclusion. While such damages may be disallowed in the present case since the plaintiff became fully employed elsewhere, the generalization that under no circumstances may such prospective damages be allowed in a breach of employment contract is unfounded. If, as the majority concludes, a contract of employment rather than an at-will employment existed, then I would disagree that such damages are not allowable general contract damages.

“ ‘As a general rule, contract damages are awarded to place the injured party in the same position as he would have been in had the contract been fully performed.’ ” Fuessenich v. DiNardo, 195 Conn. 144, 153, 487 A.2d 514 (1985). General contract damages are allowable whenever they arise directly from and as a natural consequence of the breach. Kay Petroleum Corp. v. Piergrossi, 137 Conn. 620, 624, 79 A.2d 829 (1951). “Prospective damages are recoverable if they are reasonably certain to occur. Craney v. Donovan, 92 Conn. 236, 245, 102 A. 640 (1917).” Neiditz v. Morton S. Fine & Associates, Inc., 2 Conn. App. 322, 328, 479 A.2d 249 (1984), rev’d in part, 199 Conn. 683, 508 A.2d 438 (1986).

Our Supreme Court has stated that “[t]he normal rule on an employment contract is that when the employee is prevented from fully performing because the employer wrongfully fires him, the employee can recover the wages he would have earned under the contract, minus any wages which he has earned or could have earned elsewhere, and the burden of proof of the latter is on the employer. Carter v. Bartek, 142 Conn. 448, 451-52, 114 A.2d 923 [1955].” (Emphasis added.) Burns v. Gould, 172 Conn. 210, 221, 374 A.2d 193 (1977). Wages one would have earned under the contract are the equivalent of future wage loss, often called front pay. “ ‘The injured party is not precluded from recovery . . . to the extent that he has made reasonable but unsuccessful efforts to avoid loss.’ ” West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 332, 514 A.2d 734 (1986). The plaintiff here has, by obtaining employment elsewhere, either avoided or mitigated the loss. Normally, the determination of the extent of mitigation, if any, as it applies to future wage loss, is made by the finder of fact. No such determination is necessary in the present case as I have concluded that the evidence was insufficient to establish that the plaintiff was anything other than an at-will employee.

Because the plaintiff did not demonstrate the existence of a total employment contract, his remaining claims must also fail. The defendant had no duty to comply with the terms of the personnel manual in regards to the plaintiff’s at-will employment.

I would, therefore, reverse the judgment and remand the case with direction to set aside the verdict and to render judgment in favor of the defendant.

       The defendant also filed a motion for remittitur. The trial court granted this motion and ordered that the plaintiff file a remittitur accepting a reduction of the punitive damage award to $42,017. The plaintiff filed an acceptance of the remittitur.

       “Front pay” has been defined as “an award for a reasonable future period required for the victim to reestablish her rightful place in the job market.” Goss v. Exxon Office Systems Co., 747 F.2d 885, 889 (3d Cir. 1984). “Back pay” is generally defined as the difference between what the plaintiff could have earned had he not been wrongfully terminated and the amount he actually earned “from the date of his termination until the date of the judgment.” Dunlap-McCuller v. Riese Organization, 980 F.2d 153, 159 (2d Cir. 1992).

       Our examination of the record indicates that the defendant submitted a proposed jury charge to the court as to the determination of contract damages. The proposed charge did not provide for front pay because it is the defendant’s position that front pay is not warranted under either the facts or law in this case.

       See Sasser v. Averiit Express, Inc., 839 S.W.2d 422, 433 (Tenn. App. 1992).

       Courts have also permitted front pay recovery in discrimination cases for conduct in violation of Title VII of the Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. See, e.g., Equal Employment Opportunity Commission v. Kallir, Philips, Ross, Inc., 420 F. Sup. 919, 926-27 (S.D.N.Y. 1976), aff'd, 659 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920, 98 S. Ct. 395, 54 L. Ed. 2d 277 (1977); United Steel v. United States Steel Corp., 371 F. Sup. 1045 (N.D. Ala. 1973).

       The remedy of front pay “first appeared in 1973 in a Title VII case, United States v. United States Steel Corp., [supra, 371 F. Sup. 1045].” Sasser v. Averitt Express, Inc., supra, 839 S.W.2d 433 n.10. “It is a special remedy, not necessarily warranted in every case but reserved for only the most egregious circumstances. Lewis v. Federal Prison Industries, Inc., 953 F.2d 1277, 1281 (11th Cir. 1992); Davis v. Combustion Engineering, Inc., [supra, 742 F.2d 923]. It is not intended to be punitive, Hansard v. Pepsi-Cola Metropolitan Bottling Co., [865 F.2d 1461, 1469 (5th Cir. 1989)] or to provide an employee a windfall. Lewis v. Federal Prison Industries, Inc., 953 F.2d 1281.” Sasser v. Averitt Express, Inc., supra, 433.

       The Second Circuit Court of Appeals has stated: “[W]e think that front pay is, in limited circumstances, an appropriate remedy under the [act]. It serves a necessary role in making victims of discrimination whole in cases where the factfinder can reasonably predict that the plaintiff has no reasonable prospect of obtaining comparable alternative employment.” Whittlesey v. Union Carbide Corp., supra, 742 F.2d 729.

       These cases may be called the confused, benefit of the bargain, express contract decisions.

       See Worrell v. Multipress, Inc., supra, 45 Ohio St. 3d 246-47, citing Hansard, v. Pepsi-Cola Metropolitan Bottling Co., supra, 865 F.2d 1461; Cassino v. Reichhold Chemicals, Inc., supra, 817 F.2d 1338; Maxfield v. Sinclair International, supra, 766 F.2d 788; O’Donnell v. Georgia Osteopathic Hospital, Inc., supra, 748 F.2d 1543; Bailey v. Container Corp. of America, 660 F. Sup. 1048 (S.D. Ohio 1986); Snow v. Pillsbury Co., 650 F. Sup. 299 (D. Minn. 1986); Foit v. Suburban Bancorp., 549 F. Sup. 264 (D. Md. 1982); Monroe v. Penn-Dixie Cement Corp., supra, 335 F. Sup. 231; Stark v. Circle K Corp., 230 Mont. 468, 751 P.2d 162 (1988).

       Note that one case cited was not an Age Discrimination Act or Title VII case, but based its award of front pay on a state statute that provided that “ ‘damages may be awarded ... for detriment . . . certain to result in the future.’ ” Stark v. Circle K Corp., 230 Mont. 468, 477, 751 P.2d 162 (1988) (court upheld award of front pay to discharged employee until anticipated retirement, for total of twenty-eight years lost income).

        Brown involved a seemingly inconsistent finding by the District Court that the plaintiff was terminated from employment both for cause and as a result of a reduction in work force. The Court of Appeals found that the evidence supported that conclusion.

        Brown v. Ford, Bacon & Davis, Utah, Inc., supra, 850 F.2d 631, has never been cited by another court in a published decision, although cited in unpublished decisions. Brown is cited in 82 Am. Jur. 2d 956 n.86, Wrongful Discharge § 248 (1992), for the proposition that “employee dismissed ‘for just cause,’ but not in compliance with progressive discipline procedures required by contract, may be entitled to reinstatement for the period of time that it would take to substantially comply with those procedures.” Id., 955. If actual compliance is impracticable, front pay for the period of time that it would have taken substantially to comply with the procedures is appropriate. Id., 955-56.

       “There may be no position available at the time of judgment or the relationship between the parties may have been so damaged by animosity that reinstatement is impracticable. Whittlesey v. Union Carbide Corp., [supra, 742 F.2d 728], Cancellier v. Federated Department Stores, [supra, 672 F.2d 1319].” Maxfield v. Sinclair International, supra, 766 F.2d 796.

       See Worrell v. Multipress, Inc., supra, 45 Ohio St. 3d 246.

       “[T]he duty to mitigate damages by seeking employment elsewhere significantly limits the amount of front pay available.” Whittlesey v. Union Carbide Corp., supra, 742 F.2d 728; Koyen v. Consolidated Edison Co. of New York, Inc., supra, 560 F. Sup. 1168.

       “We are cognizant of the trend toward remanding a case for a new trial as to liability as well as damages . . . .” Vezina v. Nautilus Pools,

        Inc., 27 Conn. App. 810, 823, 610 A.2d 1312 (1992). “The decision to retain the jury verdict on the issue of liability and order a rehearing to determine only the issue of damages should never be made unless the court can clearly see that this is the way of doing justice in [a] case. (Emphasis added.) . . . As a rule the issues are interwoven and may not be separated without injustice to one of the parties. . . . Therefore, [ajn order restricting the issues [of a new trial] is the exception, not the rule.” (Citations omitted; internal quotation marks omitted.) Fazio v. Brown, 209 Conn. 450, 455, 551 A.2d 1227 (1988).

       The trial court reasoned: “With reference to the intentional infliction of emotional distress, the court doesn’t find sufficient evidence to warrant the jury’s verdict, including for the following reasons: There is no evidence that the defendant intended to inflict emotional distress, or that the defendant knew or should have known that his conduct was likely to result in emotional distress. The evidence indicates that the plaintiff — that the defendant discharged the plaintiff for making an improper statement, and there is no evidence that the defendant intended to cause emotional distress to the plaintiff, or should have known that it was likely to result. Secondly, and probably even more importantly, there is no evidence of severe emotional distress. The plaintiff’s testimony was that the discharge was embarrassing and humiliating is not sufficient to indicate emotional distress — severe emotional distress. Therefore, the motion to set aside the verdict is granted as to the intentional infliction of emotional distress.”

       The trial court reasoned: “With reference to the verdict of the jury on the issue of negligent misrepresentation, again the court does not find sufficient evidence to warrant the jury’s verdict, including for the following reasons: There was no evidence that any statement made by an employee or agent of the defendant upon which the plaintiff relied was untrue when made or should have been known to be untrue. Although the evidence is in dispute, as to the statement at issue made by Mr. Bisbee, with reference to the continued employment of employees of the defendant, even if the plaintiff’s version is correct that Bisbee said, ‘As long as we do the work and we do it right, we will have jobs,’ in the plant. There is no evidence that the statement was untrue when made or Bisbee should have known it was untrue. Therefore, the motion to set aside the verdict as to the negligent misrepresentation count is granted.”

       The plaintiff concedes that this statement alone cannot support a contract, but rather only lends support for the provisions in the personnel manual that allegedly created an implied employment contract.

       I believe the majority misreads Coelho when it concludes that no reliance is required. In Coelho, our Supreme Court examined the issue of whether an implied agreement not to discharge without just cause is unenforceable unless supported by some separate consideration. Our Supreme Court held that: “[W]e adopt the position . . . that the absence of a separate consideration does not inevitably invalidate a contract otherwise expressing an intention that employment not be terminable at will. . . . Accordingly, we need not decide whether the evidence advanced by the plaintiff of reliance on the promises of the defendant was sufficient to constitute a separate consideration for the agreement not to discharge him simply because of some dispute .... This evidence [that the plaintiff had relocated and forgone other job opportunities] fulfilled its function in supporting the plaintiffs version of the terms of the agreement, whether or not it would satisfy the criteria for separate consideration.” (Emphasis added.) Coelho v. Posi-Seal International, Inc., supra, 208 Conn. 118-19.
      In reaching that conclusion, our Supreme Court had already determined that there was sufficient evidence of consideration to find an implied contract of employment between the plaintiff and the defendant. The court merely held that any additional evidence of the specific terms of promises need not rise to the level of separate consideration in order to enforce those promises.
      In the present case, I am persuaded that there was insufficient evidence to find an implied contract of employment.

       The plaintiff points to his affidavit submitted in objection to the defendant’s motion for summary judgment as evidence of his reliance. I note that the affidavit was introduced at trial by the defendant only for the purpose of impeaching the plaintiff, not for substantive purposes. The affidavit could not be relied on by the jury for substantive purposes. See Kelley v. Bonney, 221 Conn. 549, 564-65, 606 A.2d 693 (1992).

       The plaintiff also testified at trial that in his deposition he had indicated that he received the personnel manual only after he had begun his employment with the defendant and that he never read it, but just threw it in his tool box.

       Because I have concluded that no reliance has been demonstrated, I find it unnecessary to determine whether the plaintiff sustained his burden of establishing any enforceable contractual language in the manual. See Carbone v. Atlantic Richfield Co., 204 Conn. 460, 472, 528 A.2d 1137 (1987).

       See Preston v. Phelps Dodge Copper Products Co., 35 Conn. App. 850, 647 A.2d 364 (1994).

       The majority seems to rely on semantics in attempting to distinguish “future wage loss,” wages that would have been earned under an existing contract of employment, from front pay, a remedy designed to compensate employees where reinstatement would be impractical or inadequate. I cannot reconcile this attempt to distinguish the two terms with the majority’s own interchanging of the terms. The majority refers to “future lost earnings, commonly known as ‘front pay.’ ”
      I agree that the term “front pay” is reserved to describe that remedy available under the Age Discrimination in Employment Act and other federal statutes. Absent this distinction, not applicable under the facts of this case, I see no practical difference between the remedies afforded under the two different nomenclature. “Front pay” must refer to prospective wages. Accordingly, because it refers to wages after termination, it can be awarded only under a contract of employment as discussed.
      In addition, I note that while the majority discusses front pay, the jury was instructed on and the special interrogatories referred to future wage loss. After instructing the jurors that they were not permitted to award speculative damages, the court instructed: “In assessing damages for future losses, you must determine what amount, if any, the plaintiff has proved by the preponderance of the evidence he would receive if he continued in the employment of the defendant for the period in the future you determine he would remain in such employment, less any sums the defendant has proved to you by the preponderance of the evidence that the plaintiff will in reasonable probability be able to receive by the exercise of reasonable diligence during such future period.” I point this out not because I find any practical distinction between these terms, but because I believe the majority does so improperly under the circumstances of this case.

       The majority itself cites Jacobs v. Thomas, 26 Conn. App. 305, 314, 600 A.2d 1378 (1991), cert. denied, 221 Conn. 914, 603 A.2d 404 (1992), for the proposition that in contract actions, both past and prospective damages may be recovered. In light of this, I do not understand how the majority reaches the conclusion that the award of front pay, or in this case, future wage loss, “would violate principles of contract damages and would defy common sense.” It would seem a greater violation of common sense to deprive a plaintiff of an available remedy based simply on the nomenclature employed occasionally by the parties.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Haynes Construction Company v. Cascella and Son Construction, Inc.
    (12636)
    Dupont, C. J., and Foti and Spear, Js.
    Submitted on briefs February 28
    decision released July 28, 1994

      Richard K. Mulroney filed a brief for the appellant (defendant).

      Michele C. Lukban filed a brief for the appellee (plaintiff).
   Spear, J.

The defendant subcontractor appeals from the trial court’s judgment vacating a $44,900 arbitration award that was rendered in its favor. The defendant claims that the trial court improperly (1) allowed an amendment to the application to vacate the award without first taking evidence on why the amendment was filed late, (2) found evident partiality in that the attorney-arbitrator failed to disclose fully the extent of his attorney-client relationship with the in-laws of one of the defendant’s principals, and (3) found that the award violated public policy because the defendant failed to pay prevailing wages in a timely manner to his workers in violation of General Statutes § 31-71b (a) and General Statutes (Rev. to 1991) § 31-53 (b). We decline to review the claim that the trial court improperly allowed the amendment. We conclude that,the trial court improperly found evident partiality and that there was no proper basis for vacating the award on the public policy ground.

The plaintiff and the defendant entered into a contract wherein the defendant, a subcontractor, was to render certain construction site services to the plaintiff, a general contractor, for a contract price of $184,200. A contract dispute arose and the parties proceeded to arbitration pursuant to article 6.1 of their contract. The arbitrator awarded the defendant $44,900 on its claim.

The plaintiff filed a timely application to vacate the award pursuant to General Statutes § 52-418 (a), alleging that the award was contrary to public policy because the defendant “failed to pay its employees lawful wages.” On the date scheduled for the hearing on the application, the plaintiff filed an amended application to vacate the award alleging the additional ground of “evident partiality on the part of the arbitrator which was not fully disclosed.” The defendant objected to the amendment claiming that it was not timely. The trial court stated that it would hear evidence on the amended application, reserve decision on the timeliness objection, and allow the parties to file posttrial briefs on all of the issues. Although not ruling directly on the defendant’s timeliness objection, the trial court effectively overruled it by finding evident partiality as a basis for its decision to vacate the award.

The trial court found that “[wjhile the arbitrator did disclose that he had represented the defendant’s in-laws in a zoning matter, he failed to disclose that this was an ongoing attorney-client relationship at the time of the arbitration.” The trial court concluded that this failure to disclose required that the award be vacated pursuant to § 52-418 because of the arbitrator’s evident partiality.

The trial court also found that the defendant had an agreement with its workers whereby the balance of their wages “would be paid at the completion of the project. Such an agreement constitutes a violation of § 31-53.” The trial court went on to find that § 31-71b, when read together with § 31-53, required the “payment of prevailing wages on a regular pay day.” The court then concluded that because of this agreement the award was in contravention of the public policy expressed in §§ 31-53 and 31-71b and therefore should be vacated.

“ ‘On appeal, the function of this court is limited solely to the determination of whether the factual findings of the trial court are clearly erroneous or whether the decision is otherwise erroneous in law.’ Public Works Supply Co. v. Eveready Machinery Co., 11 Conn. App. 79, 525 A.2d 988 (1987). Determining whether a trial court’s decision is clearly erroneous ‘ “involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous.” ’ Cookson v. Cookson, 201 Conn. 229, 243, 514 A.2d 323 (1986); Berlin v. Commissioner of Revenue Services, 207 Conn. 289, 292-93, 540 A.2d 1051 (1988); Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987).” Patron v. Konover, 35 Conn. App. 504, 508-509, 646 A.2d 901 (1994). We review each of the defendant’s claims in turn.

I

The defendant first claims that the trial court improperly permitted the plaintiff to amend its application to vacate the arbitrator’s award because there was no evidence to allow such an amendment. The defendant asserts that “[i]t was incumbent upon the plaintiff to put witnesses on the stand to establish an evidentiarybase to support [its] right to file a late amendment.”

No authority, statutory or case law, is cited in support of this claim. “We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991); see Practice Book § 4065; Gaynor v. Union Trust Co., 216 Conn. 458, 482, 582 A.2d 190 (1990); Cohen v. Security Title & Guaranty Co., 212 Conn. 436, 436-37 n.1, 562 A.2d 510 (1989). We therefore decline to review this claim.

II

The plaintiff’s amended application to vacate the arbitration award alleged that there was “evident partiality on the part of the arbitrator which was not fully disclosed.” The trial court concluded that there was evident partiality on the basis of its finding that the arbitrator had failed to disclose fully his attorney-client relationship with the in-laws of Todd Cascella, one of the defendant’s principals. Specifically, the court found that the arbitrator had failed to disclose that the attorney-client relationship was ongoing at the time of the arbitration.

The defendant asserts, albeit inartfully, that (1) evident partiality based on the attorney-client relationship was not properly raised as an issue before the trial court and, therefore, the court was precluded from making such a finding, and (2) the evidence does not support a finding of evident partiality. The first claim is dispositive.

The plaintiff’s claim of evident partiality simply asserts a legal conclusion that was delineated for the first time at the hearing on the application to vacate the award. After the plaintiff’s attorney questioned the arbitrator about his disclosure and after the arbitrator stated that he stopped by Todd Cascella’s in-laws’ delicatessen every morning, the trial court interrupted the plaintiffs attorney to ask if the disclosure had been placed on the record. The plaintiff’s attorney responded: “Well first of all, Your Honor, there was, there was no record. What I did, when the disclosure was made by Attorney Ehrsam, I went and consulted with my clients. And I relayed the information that Attorney Ehrsam has just indicated was his relationship with the, Mr. Cascella’s bride’s parents to my clients. Which I understood, and counseled my clients, seemed to be just a normal run of the mill professional relationship. A client coming through the office. And because of other factors we decided that we would waive any potential conflict. The information that Attorney Ehrsam has just provided the court, is in fact the information that we just . . . became apprised of .... That he goes into this place every day. And Your Honor, I think that the significance of that, is that that says to me that now we don’t have a professional relationship, but perhaps a personal one as well. Perhaps a personal relationship that pre-dated the professional relationship and that’s a huge difference, Your Honor. ...” (Emphasis added.)

After more statements about the arbitrator’s daily visits to the delicatessen, the plaintiff’s attorney stated that “I don’t think that any further questions need to be asked. That is specifically the issue. That’s the reason for the amendment. ” (Emphasis added.) On redirect examination, the plaintiff’s attorney asked only four questions, none of which related to the disclosure of the attorney-client relationship between the arbitrator and Todd Cascella’s in-laws. Only one other question regarding disclosure was asked by the plaintiff’s attorney: “So, you did not feel that it would be prudent to disclose that you stop into this delicatessen each morning?” This question was not answered, however, because at this point the court interrupted to inquire whether the attorney-client disclosure had been placed on the record.

An arbitrator has a duty to disclose circumstances arising after an arbitration proceeding begins that might tend to indicate partiality or bias. Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 678 (7th Cir.), cert. denied, 464 U.S. 1009, 104 S. Ct. 529, 78 L. Ed. 2d 711 (1983); Freeport Construction Co. v. Star Forge, Inc., 61 Ill. App. 3d 999, 1005-1006, 378 N.E.2d 558 (1978). In this case, however, any potential conflict arising out of the attorney-client relationship was expressly waived at the arbitration hearing. It is obvious from a review of the transcript of the hearing on the application to vacate that the plaintiff was concerned with a possible previously undisclosed social or personal relationship between the arbitrator and Todd Cascella’s in-laws, not with their attorney-client relationship.

“It is a common rule of pleading that the allegations of a complaint limit the issues to be decided on the trial of a case and are calculated to prevent surprise to opposing parties.” (Internal quotation marks omitted.) New Haven v. Mason, 17 Conn. App. 92, 94-95, 550 A.2d 18 (1988). A party also has a right to fair notice “that a court may render a judgment with respect to a given issue.” Hodge v. Hodge, 178 Conn. 308, 315, 422 A.2d 280 (1979); Winick v. Winick, 153 Conn. 294, 298-99, 216 A.2d 185 (1966). Here, the defendant was faced with a conclusory allegation that did not alert him to any of the plaintiff’s factual claims. Under these circumstances, the defendant was entitled to rely on the statement of the claim placed on the record and the acknowledgment that any claims based on the attorney-client relationship had been waived before the arbitrator.

The rule requiring that claims be raised distinctly and in a timely fashion in the trial court is not only so that the court may give meaningful consideration to the claims but also to prevent counsel from surprising an opponent by interjecting a claim when that opponent no longer is in a position to present evidence against such a claim. Swerdloff v. AEG Design/Build, Inc., 209 Conn. 185, 189, 550 A.2d 306 (1988); see Oak Leaf Marina, Inc. v. Ertel, 23 Conn. App. 91, 95-96, 579 A.2d 568, cert. denied, 216 Conn. 827, 582 A.2d 206 (1990). When the trial court surprises a party by deciding a case on a claim that was not presented to it, that party obviously is no longer in a position to counter the claim. By its ruling, the trial court deprived the defendant of its right to put on evidence regarding the disclosure of the attorney-client relationship by the arbitrator. Our Supreme Court has stated in an action to discharge a mortgage and lis pendens that “the trial court lacked jurisdiction to determine the validity of the [underlying] note on the usury ground because that issue had not been raised in the pleadings.” Gordon v. Tufano, 188 Conn. 477, 482, 450 A.2d 852 (1984). This court has held that “[a] judgment granting a prescriptive easement where none was sought and where no pleading raised any issue other than whether the plaintiff had acquired title by adverse possession cannot survive appeal.” Sanford v. Dimes, 3 Conn. App. 639, 640, 491 A.2d 398 (1985).

At the hearing before the trial court, the plaintiffs counsel expressly disavowed any interest in the professional attorney-client relationship. Most of the arbitrator’s testimony concerned his morning trips to the delicatessen to pick up a newspaper and an occasional cup of coffee to go. This routine was the basis of the plaintiff’s allegation of evident partiality. Given the articulation of this claim by the plaintiff’s attorney, the defendant had no reason to offer evidence on the extent of the disclosure of the arbitrator’s attorney-client relationship with Cascella’s in-laws. As the trial court’s legal conclusion of evident partiality was based on a claim that was not noticed or raised, it cannot stand.

Our conclusion that the trial court improperly based its decision on the finding of a failure to disclose fully the attorney-client relationship makes it unnecessary to address the question of whether that finding was supported by the evidence.

Ill

The plaintiff claimed, and the trial court found, that the arbitrator’s award was in violation of the public policy requiring payment of lawful wages in a timely fashion on this construction project, pursuant to General Statutes § 31-53 and § 31-71b. The trial court ruled that “when viewed together, §§ 31-71[b] and 31-53 require the payment of prevailing wages on a regular pay day. Since the defendant agreed to pay his employees fully only upon completion of the project, the court concludes that General Statutes §§ 31-71[b] and 31-53 have been violated. Accordingly, the arbitration award should be and is vacated because such an award would be in contravention of public policy as expressed in §§ 31-53 and 31-71[b].”

Todd Cascella testified that he was the “owner” of the defendant construction company. He further testified that he had an agreement with his employees to pay them a portion of the prevailing wage each week with the balance to be paid when the plaintiff paid the defendant. On the basis of all of the evidence before it, the trial court could reasonably and logically have found that the defendant violated §§ 31-53 and 31-71b. The defendant concedes that there may have been a “technical violation of the statutes,” but argues that vacating the award is inappropriate. We agree because we conclude that the award does not violate public policy.

An arbitration award that violates public policy may be vacated but “only when the award is clearly illegal or clearly violative of a strong public policy.” Garrity v. McCaskey, 223 Conn. 1, 7, 612 A.2d 742 (1992). This is so “[i]n light of the strong public policy that favors arbitration . . . .” Id.; see also Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 339, 555 A.2d 406 (1989). “Parties cannot expect an intervening arbitral award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them.” (Internal quotation marks omitted.) Stamford v. Stamford Police Assn., 14 Conn. App. 257, 259, 540 A.2d 400 (1988).

Arbitration in this case is a result of the contract of the parties. A well recognized principle of contract law is that agreements in violation of public policy will not be enforced by the courts. In Tator v. Valden, 124 Conn. 96, 101, 198 A. 169 (1938), our Supreme Court stated that “[i]t is unquestionably the general rule, upheld by the great weight of authority, that no court will lend its assistance in any way toward carrying out the terms of a contract, the inherent purpose of which is to violate the law. In case any action is brought in which it is necessary to prove the illegal contract in order to maintain the action, courts will not enforce it, nor will they enforce any alleged right directly springing from such contract . . . .” (Emphasis added; internal quotation marks omitted.) See also Connecticut Importing Co. v. Janowitz, 128 Conn. 433, 436, 23 A.2d 514 (1941); State v. Council 4, AFSCME, 27 Conn. App. 635, 640, 608 A.2d 718 (1992).

The contract in this case did not have a violation of the law as its inherent purpose. It was simply a contract by the defendant to render certain subcontracting services to the plaintiff. In fact, the contract contains no mention whatever of payment of the prevailing wages, nor was it necessary to prove the illegal wage payment plan in order to prove the defendant’s claim in the arbitration proceedings. In Burns v. Koellmer, 11 Conn. App. 375, 380, 527 A.2d 1210 (1987), this court rejected a claim that the trial court should not enforce an employment contract between two parties who were cohabiting in an adulterous relationship because such enforcement would violate public policy. We held that “the alleged contract was not made for or about the parties’ living arrangements or sexual behavior. The agreement of the parties as pleaded and proved did not involve prohibited acts.” Id. Although the wage agreement that the defendant had with its workers appears to be illegal and violative of the public policy embodied in §§ 31-53 and 31-71b, the contract between the plaintiff and the defendant did not require any acts prohibited by the prevailing wage statutes.

As the purpose of the contract was legal, enforcing it by way of an arbitration award would not violate public policy. Indeed, failure to enforce the contract would be much more frustrating of public policy. Allowing the plaintiff to escape liability after breaching the contract would mean that it would not be required to produce the very funds that the defendant and its employees relied on for payment of the prevailing wages. Such a result would work an unjustified forfeiture to the defendant and provide a windfall for the plaintiff.

The judgment is reversed and the case is remanded with direction to render judgment denying the application to vacate.

In this opinion the other judges concurred.

       General Statutes § 31-71b (a) provides in pertinent part: “[E]ach employer, by himself, his agent or representative, shall pay weekly all moneys due each employee on a regular pay day . . . .”

       General Statutes (Rev. to 1991) § 31-53 (b) provides in pertinent part: “Any person who knowingly or wilfully employs any mechanic, laborer [or] workman ... of any public works project for or on behalf of the state ... at a rate of wage on an hourly basis which is less than the rate customary or prevailing for the same work in the same trade or occupation in the town in which the public works project is being constructed . . . shall be fined not more than one hundred dollars for each offense.”

       Article 6.1 of the contract provides in pertinent part: “All claims, disputes and matters in question arising out of or relating to this agreement . . . shall be decided by arbitration . . . .”

       General Statutes § 52-418 (a) provides in pertinent part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       The defendant cited no statute or authority in support of its claim, but stated that the amendment was beyond the “thirty day period.” General Statutes § 52-420 (b) provides that no motion to vacate “may be made after thirty days from the notice of the award. ...”

       The defendant’s claim of a “late” amendment does not analyze or implicate the thirty day provision of General Statutes § 52-420 (b). The only analysis offered in its one page argument was that the plaintiff might have known of this partiality claim all along and withheld it as an “ace in the hole” in the event of an adverse arbitration award. This argument is unrelated to whether § 52-420 (b) prohibits the amendment of an application to vacate an arbitration award beyond thirty days from the notice of the award.

       The testimony of the arbitrator, Frederick Ehrsam, was as follows:
      “Q. Okay. And did there come a time when we returned after a June session in September, that you felt that it was necessary to call Attorney Mulroney and myself to your office to make a certain disclosure?
      “A. That is correct.
      “Q. And can you tell the court essentially what that disclosure was?
      “A. I’m not sure. ... I believe there were more, I know there was more than one disclosure.
      “Q. That’s correct.
      “A. I’m not sure which one you’re referring to.
      “Q. I’m referring to the one where we went into your office, you had indicated that you felt it was necessary to call up to Hartford and get some guidance and they had given you some direction.
      “A. Oh. Yes, okay. I was invited to a client’s wedding, a daughter of a client’s wedding. And the daughter was, which I did not know, was engaged prior to the hearings, but was going to marry Mr. Cascella. I disclosed that to the Hartford office. Who advised me that if you and opposing attorney, counsel had no objection, it could proceed. And if there was an objection, that it would be then, the hearing would be terminated and a new arbitrator would be appointed.
      “Q. And Attorney Ehrsam, I’m going to ask if you can search your memory because I assure you I’ve searched mine to try to recall what the nature of the relationship was that led to your being invited to the wedding. In other words, what you had disclosed to myself and opposing counsel that led to your being invited?
      “A. I was an attorney who represented the bride’s parents with a zoning matter. I did not represent them when they purchased the business. I represented the seller, not the buyer. I did not represent the owners of that business at any time other than for the zoning matter. Which was concluded just last week.”

       The court cited and relied on the following portion of General Statutes § 31-53 (á): “The wages paid on an hourly basis to any mechanic, laborer or workman . . . shall be at a rate equal to the rate customary or prevailing for the same work in the same trade or occupation in the town in which such public works project is being constructed.”

       The trial court’s memorandum of decision refers to General Statutes § 31-716. This is obviously a typographical error as there is no such statute and the court quotes the following pertinent language from General Statutes § 31-71b: “(a) Each employer . . . shall pay weekly all moneys due each employee on a regular pay day . . . .”

       See footnote 8.

       General Statutes § 31-53 (a) requires the insertion of a prevailing wage clause in a contract covered by the statute. We do not know why that provision was not inserted into this contract; however, such a clause would not change our reasoning. The principal purpose of the contract was the rendering of certain subcontracting services with the payment of wages being merely incidental to that purpose.

       Connecticut has a remedy against an employer who fails to pay the prevailing wage. General Statutes § 31-71g provides for fines and imprisonment for such violations. General Statutes § 31-72 also provides for civil actions by or on behalf of employees to collect unpaid wages and reasonable attorney’s fees.

       There is no application to confirm the award in the file.


author: Schaller, J.

text:
    State of Connecticut v. Alphonso Vega
    (11796)
    Freedman, Schaller and Spear, Js.
    Argued April 25
    decision released September 13, 1994

      Maurice H. Hartigan III, with whom, on the brief, were Mark R. Carta and Pamela J. Zieky, for the appellant (defendant).

      Nanay L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a) (1), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), and possession of a weapon or dangerous instrument in violation of General Statutes § 53a-174a (a). The defendant claims that the trial court (1) failed to comply with General Statutes § 54-84 (b), which mandates that the court instruct the jury that it draw “no unfavorable inferences” from the defendant’s failure to testify, and (2) improperly instructed the jury, concerning the overt act element of conspiracy, that the court did “believe the state’s evidence does point to the fact that the defendant personally committed the act of attempting to cause serious physical injury to the victim by cutting him in the throat area.” We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was an inmate at the Cheshire correctional center (center) and a member of a gang known as the Latin kings. The victim became an inmate at the center on March 27, 1991, and had previously given a statement to the police implicating certain members of the Latin kings in the crime of which he was convicted. On March 28, 1991, while the victim was eating in the dining hall, one of the Latin kings pointed out the victim to a group of Latin king inmates, including the defendant. The group followed the victim as he left the dining hall. The defendant approached the victim from behind and slashed him in the neck with a weapon created by embedding two razor blades into a plastic toothbrush handle.

At the outset, we note that our Supreme Court has repeatedly held that a claim of noncompliance with § 54-84 (b) is reviewable on appeal even though the defendant, as here, did not submit a request to charge or take an exception to the instruction. State v. Tatem, 194 Conn. 594, 595, 483 A.2d 1087 (1984); see Practice Book § 4185; State v. Yurch, 229 Conn. 516, 521, 641 A.2d 1387 (1994); State v. Townsend, 206 Conn. 621, 625, 539 A.2d 114 (1988).

In its final charge, the trial court instructed the jury in part that “you, as a jury, may not draw any unfair inferences from [the defendant’s] failure to testify.” (Emphasis added.) Pursuant to § 54-84 (b), “[u]nless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. ” (Emphasis added.) “[N]oncompliance with § 54-84 (b) is plain error because the statute serves to effectuate the fundamental right of a defendant not to testify in his criminal trial. State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985); see State v. Tatem, supra, 194 Conn. 595.” State v. Yurch, supra, 229 Conn. 521; State v. Suplicki, 33 Conn. App. 126, 128-29, 634 A.2d 1179 (1993); but see State v. Reid, 22 Conn. App. 321, 327, 577 A.2d 1073, cert. denied, 216 Conn. 828, 582 A.2d 207 (1990) (departure from language of § 54-84 (b) so minor — substitution of “adverse” for “unfavorable” — that deviation “not improper”).

The state has conceded that the trial court did not comply with the requirements of § 54-84 (b), but argues that, in light of the instructions given to each panel of prospective jurors, the preliminary remarks to the jury upon the completion of jury selection, and the entire final jury charge, the trial court’s failure to comply with § 54-84 (b) was harmless.

“[A]n erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury were misled. State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982). State v. Carrione, [188 Conn. 681, 685, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983)]. . . . [W]hether a charge is possibly misleading depends on the substance rather than the form of what is said. State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982). State v. Tatem, supra, [194 Conn. 599-600]. Furthermore, when a statutory violation implicates the defendant’s constitutional rightfs] . . . it is the state’s burden to prove harmlessness beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Yurch, supra, 229 Conn. 522-23. “In the present context, the state must show that the charge as given conveyed to the jury the substantive meaning of the statutory requirement. State v. Cobb, [199 Conn. 322, 325, 507 A.2d 457 (1986)]; State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (1985).” State v. Townsend, supra, 206 Conn. 626; State v. Miller, 34 Conn. App. 250, 258, 641 A.2d 400, cert. denied, 230 Conn. 902, 644 A.2d 916 (1994).

The defendant argues that the phrase “unfair inference” differs substantially from “unfavorable inference,” and that, as a result, the trial court improperly altered the meaning of the statutorily mandated language by affording the jury the opportunity to draw an unfavorable inference from the defendant’s failure to testify. The word “unfair” is defined as “unjust”; Merriam-Webster’s Collegiate Dictionary (10th Ed.); while “unfavorable” is synonymous with “adverse.” State v. Reid, supra, 22 Conn. App. 327.

“Unfair” and “unfavorable” are not synonyms, and the use of the word “unfair” in place of “unfavorable” conveys a different meaning. The defendant posits, in essence, that the jury reasonably could have been misled to believe that it could draw an unfavorable or adverse inference from his failure to testify if the jury determined that it was fair to draw such an inference in light of the other evidence against him. We agree with the defendant that the use of the word “unfair” imports a meaning different from “unfavorable,” and that the use of the word “unfair” in a given context may result in harmful error.

The state argues, however, that the final charge as a whole, as well as instructions to the prospective jury panel and preliminary instructions to the selected and sworn jurors, rendered harmless the trial court’s improper instruction, and that the trial court did convey the substantive meaning of the statutory requirement. In its instructions to prospective jurors prior to individual voir dire, the trial court correctly explained that selected jurors could draw no unfavorable inference from the defendant’s failure to testify. In its preliminary instructions to the sworn jury, the trial court did not use the exact language of § 54-84 (b), but explained that the defendant had a constitutional right to choose not to take the witness stand or to produce any evidence.

In the final jury charge, the trial court noted several times that the state maintained the burden of proving that the defendant was guilty beyond a reasonable doubt and mentioned that the defendant did not have to produce any evidence. The trial court, however, specifically discussed the defendant’s right not to testify in only the contested portion of the instruction. That section of the instruction provided the following: “Now in this case, the defendant, Mr. Vega, did not testify. And as you have been told, an accused person is under no obligation to become a witness on his own behalf, nor is he obliged to put forth any witnesses on his own behalf. Now, under our law an accused person may testify or not as he sees fit. It is for the state to prove him guilty of the charges beyond a reasonable doubt, and no burden rests upon him in his position as the accused to prove his innocence. Therefore, you, as a jury, may not draw any unfair inferences from his failure to testify. ” (Emphasis added.)

In State v. Yurch, supra, 229 Conn. 521, the trial court improperly instructed the jury that it could draw no unreasonable inference from the defendant’s failure to testify. Our Supreme Court determined that this instruction was harmless in light of the language of the charge immediately following the instruction, where the trial court admonished the jury that “ ‘[y]ou must not permit such a fact to weigh in the slightest degree against the defendant. Nor should it enter your discussions or deliberations. A defendant is not required to establish his innocence. He need not produce any evidence whatsoever if he does not choose to do so. As I have told you already, the burden is on the state to prove a defendant guilty beyond a reasonable doubt. If it fails, a defendant has the right to rely on that failure, and must be of right acquitted.’ ” Id., 524. The court determined that this portion of the charge “served to alert the jury to the fact that it was to draw no inference whatsoever from the defendant’s failure to testify”; (emphasis added) id.; and that, therefore, the improper instruction was harmless.

Here, the trial court’s final instruction failed to convey the substantive meaning of the statute that the jury could draw no unfavorable inferences from the defendant’s failure to testify. The instruction suggested that the jury could draw a fair or just, although unfavorable or adverse, inference from the defendant’s failure to testify. Although the trial court instructed prospective jurors that they could draw no unfavorable inference from the defendant’s failure to testify, at least one week elapsed between such instructions and the court’s final charge. See State v. Walker, 33 Conn. App. 763, 770-71, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1207 (1994); State v. Kelly, 23 Conn. App. 160, 170, 580 A.2d 520 (1990), cert. denied, 216 Conn. 831, 583 A.2d 130, cert. denied, 449 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991) (remarks to prospective jurors “were temporally unconnected to the court’s final charge and were totally subsumed by the final charge”). Further, we note that “[wjhen preliminary instructions are given, they ‘do not supersede those given after evidence and arguments under our practice.’ [State v. Woolcock, 201 Conn. 605, 623, 518 A.2d 1377 (1986).]” State v. Lewis, 220 Conn. 602, 614, 600 A.2d 1330 (1991); see also State v. Walker, supra, 770; State v. Kelly, supra, 170.

In its final instruction, the trial court charged that the state had the burden of proof and that the defendant did not have to produce any evidence on his behalf. The trial court, however, specifically discussed the defendant’s failure to testify only in the context of the improper portion of the instruction. There, the trial court’s statement that the jury could draw “no unfair inference” together with the language immediately preceding and succeeding that phrase did not preclude the jury from drawing inferences regarding the defendant’s failure to testify. See State v. Yurch, supra, 229 Conn. 523-24; see also State v. Marra, supra, 195 Conn. 443. The trial court, thus, did not convey that the jury could not consider the defendant’s silence in its deliberations, and left open the reasonable possibility that the jury would misconstrue the charge and assume that it could draw an inference from the defendant’s failure to testify. On the basis of the language employed by the trial court, we conclude that there is a reasonable possibility that the jury was misled to understand the charge to allow it to draw a fair, although unfavorable, inference from the defendant’s failure to testify. See State v. Suplicki, supra, 33 Conn. App. 127-29. The state has not maintained its burden of establishing harmlessness.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . ."

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

       General Statutes § 53a-174a (a) provides: “A person is guilty of possession of a weapon or dangerous instrument in a correctional institution when, being an inmate of such institution, he knowingly makes, conveys from place to place or has in his possession or under his control any firearm, weapon, dangerous instrument, explosive, or any other substance or thing designed to kill, injure or disable.”

       General Statutes § 54-84 provides: “(a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

       “The defendant’s right not to testify is rooted in the privilege against self-incrimination under both the federal and the state constitutions. ‘ “The fifth amendment to the United States constitution provides that no person ‘shall be compelled in any criminal case to be a witness against himself.’ That provision acts as a restraint upon the individual states as well as the federal government under the fourteenth amendment to the United States constitution. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1963). Article first, § 8, of the Connecticut constitution affords criminal defendants a similar protection in language at least as broad as its federal counterpart. That section, which sets forth the rights of accused persons in criminal prosecutions, provides that ‘[n]o person shall be compelled to give evidence against himself ....’” State v. Cohane, 193 Conn. 474, 482, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984).’ State v. Sinclair, supra, 197 Conn. 583 n.10.” State v. Yurch, supra, 229 Conn. 521-22 n.5.

       We note that the state cites to Webster’s Third New International Dictionary, which lists “unfavorable” as an alternate definition, following primary and secondary definitions, for “unfair.” This definition, however, is qualified by the italicized phrase “of the wind,” which suggests a specialized meaning of the word in a specific context. We do not find the state’s argument that the listing of “unfavorable” as an alternate, specialized definition of “unfair” renders the words so close in meaning as to mitigate any possible harmfulness of the trial court’s improper instruction.

       Because we reverse the judgment on this ground, we need not reach the defendant’s second claim regarding the trial court’s instructions on the overt act element of conspiracy, as we cannot state that it is likely to recur upon retrial.