author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. PAUL J. CABRAL
    (AC 19484)
    Spear, Mihalakos and Flynn, Js.
    Argued April 30
    officially released September 4, 2001

      William S. Palmieri, with whom, on the brief, was Norman A. Pattis, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, was Mary M. Galvin, state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Paul Cabral, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). On appeal, the defendant claims that (1) his due process rights were violated when the prosecutor commented on a missing defense witness without first seeking the trial court’s permission to do so and (2) the trial court improperly refused to grant his motion for a mistrial after the prosecutor argued facts that were not in evidence during her closing argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 21, 1996, Maria Floriano and Elio Floiiano were working in their family liquor store, Corso’s Package Store, assisted by Maria’s sister, Michelina Ferry, and their brother Salvatore Ferry, who is mentally retarded. At 8 p.m., the family began closing the store, and Salvatore Ferry went outside to pull the metal grating down over the windows. When Salvatore Ferry returned, a man carrying a long, silver automatic pistol followed him in. Michelina Ferry informed the man that the store was closed. Instead of leaving, the man raised his gun at them and attempted to pull a stocking down over his face but succeeded only in covering his hair and forehead. As a result, both Maria Floriano and Michelina Ferry were able to see his face clearly. They described the man as being about six feet and two inches in height, with light to medium brown skin and a moustache. They further described him as overweight, weighing at least two hundred and fifty pounds, with a distinctive, atypical round, full face and cheeks. They described the man’s voice as being exceptionally deep and his speaking pattern as unusually slow or sluggish. The man fled the store with about $7000 from the cash register and lottery machine, plus another $200 from Maria Floriano’s purse.

The next day, December 22, 1996, Michelina Ferry was eating at a diner and saw a man she recognized as the one who had robbed the store. She followed him out to the parking lot, noted that he drove off in a red and white pickup truck, and copied down the license plate number. After she gave the plate number to the police, the truck was found to be registered to the defendant. On December 31, 1996, the police interviewed the defendant at his place of work, and they observed that he spoke with a deep voice in a slow and deliberate manner.

On January 7,1997, Michelina Ferry went to the West Haven police station and identified the defendant from a photographic array. On January 8,1997, Maria Floriano identified the defendant from a reconfigured photographic array. Both Maria Floriano and Michelina Ferry also made in-court identifications of the defendant. Maria Floriano saw the defendant in a bank in October, 1997, and about twelve times thereafter. While in the bank, Maria also was able to hear the defendant’s speaking voice.

I

The defendant first claims that his due process rights were violated when the prosecutor commented on a missing defense witness without first seeking the trial court’s permission to do so. We disagree.

The following additional facts and procedural history are necessary to our resolution of this issue. The defendant testified that on the night of the robbery he was attending an Alcoholics Anonymous meeting at Dwight Hall at Yale University. He stated that he had arrived at the meeting at 7:30 p.m., accompanied by Paul Torello. He further testified that Torello no longer resided in the area but had moved to California. The defendant testified that he left the meeting at about 10 p.m. that evening.

The defendant did not call Torello as a witness at trial. In her closing argument, the prosecutor referred to Torello’s absence when she stated in pertinent part: “He [witness Erick Bergquist] also tells us the defendant is there with one other person. We know it can’t be Torello because the defendant tells us Torello was a regular at that meeting. So Bergquist may himself be [there] another night [be] cause he’s got a phantom. He’s got a mystery man whose name we’ve never been given by anybody. . . . The mystery man, we don’t know who that is and that leaves us the defendant and his creation, Paul Torello. Well, ladies and gentlemen, I think even the defense has to give us Paul Torello is not there [be]cause he’s not here and who’s the one person in the world who, if this alibi were true, could say, ‘Gee, the defendant was at the AA meeting?’ Who’s the one person by his testimony? The phantom. And you can’t consider it [be]cause he’s not here.” At the conclusion of the state’s closing argument, the defendant objected and requested a mistrial. The trial court denied the request for a mistrial. The defendant did not ask for a curative instruction.

“Our standard of review of prosecutorial misconduct is well established. In determining whether the defendant was denied a fair trial we must view the prosecutor’s comments in the context of the entire trial. . . . In examining the prosecutor’s argument we must distinguish between those comments whose effects may be removed by appropriate instructions . . . and those which are flagrant and therefore deny the accused a fair trial. . . . The defendant bears the burden of proving that the prosecutor’s statements were improper in that they were prejudicial and deprived him of a fair trial.” (Citations omitted; internal quotation marks omitted.) State v. Brown, 256 Conn. 291, 297-98, 772 A.2d 1107 (2001).

“To prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process. . . . When analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct, one must not focus solely on the conduct of the prosecutor, but instead, the fairness of the trial as a whole should be at the forefront of the inquiry. . . . Further, because the trial court has the best vantage point for assessing the propriety of the remarks in issue, its determination is entitled to deference. For that reason the defendant must prove that the court’s refusal to grant a new trial or give an explicit curative instruction was a clear abuse of discretion.” (Citations omitted.) State v. Alexander, 254 Conn. 290, 303-304, 755 A.2d 868 (2000).

The defendant’s reliance on State v. Daniels, 180 Conn. 101, 429 A.2d813 (1980), is misplaced. In Daniels, our Supreme Court held that “where counsel for either the state or the defendant intends to argue to the jury that an unfavorable inference be drawn from the absence of a witness at trial, an advance ruling from the trial court should be sought and obtained.” Id., 113. In the context of a missing witness, a negative inference is drawn because it is assumed that the witness at issue was not called because his testimony would have been adverse to the defendant. This is not what the prosecutor here was arguing.

The defendant appears to have misunderstood the prosecutor’s actual comments during closing arguments. The defendant claims that the prosecutor characterized Paul Torello as “the phantom” during closing argument. In reality, the prosecutor was referring to a second missing witness, not Torello. The defendant is correct in his claim that the prosecutor commented on Torello’s absence as a witness. The prosecutor’s actions here, however, are similar to those in State v. Clark, 48 Conn. App. 812, 832, 713 A.2d 834, cert, denied, 245 Conn. 921, 717 A.2d 238 (1998), where this court stated that the prosecutor’s remarks concerning a missing witness were “for the purpose of drawing the jury’s attention to the defendant’s credibility” and not for the purpose of asking the jury to draw an adverse inference. The prosecutor’s remarks in Clark were found to be appropriate. The same parallel can be drawn here. After reviewing the record before us, we are satisfied that the prosecutor’s comments, when considered in light of the entire trial, were not flagrantly prejudicial, but were a permissible comment on the credibility of the defendant. We conclude that the court did not abuse its discretion and that the defendant was not denied a fair trial.

II

The defendant next claims that the court improperly refused to grant a mistrial after the prosecutor argued facts not in evidence during her closing arguments. We do not agree.

The following additional facts and procedural history are necessary to our resolution of this claim. During his own testimony at trial, the defendant denied ever having known Salvatore Ferry, either in public school or in the community. The prosecutor commented on those denials during her closing argument when she stated in part: “This was somebody who knew Sal Ferry. This was somebody who had to be in the West Haven schools at the same time as Sal Ferry to know he was no threat. Thirty-six years old. Sal Ferry [is] thirty-four. Right through the West Haven school system.” After the argument, the defendant requested that a curative instruction be given to the jury, arguing that no evidence had been adduced at trial tending to show that the defendant and Salvatore Ferry knew each other. The court refused the defendant’s request.

“We have long recognized the special role played by the state’s attorney in a criminal trial. He is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent. ... By reason of his office, he usually exercises great influence on jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice or resentment. . . . While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.” (Internal quotation marks omitted.) State v. Alexander, supra, 254 Conn. 302.

“Counsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them.” (Emphasis in original; internal quotation marks omitted.) State v. Ross, 18 Conn. App. 423, 432, 558 A.2d 1015 (1989). The following relevant facts were adduced at trial: (1) the defendant was thirty-six years old at the time of trial; (2) Salvatore Ferry was thirty-four years old at the time of trial; (3) both the defendant and Salvatore Ferry grew up in West Haven; (4) the defendant attended the West Haven public schools; (5) Corso’s Package Store was just up the street from the defendant’s home; (6) the defendant was an alcoholic; and (7) the defendant had lived in the vicinity of Corso’s Package Store for ten years. No evidence was adduced at trial showing that Salvatore Ferry and the defendant knew each other. Apparently, the prosecutor’s comments were meant to show that the defendant sent Salvatore Feriy to the rear of the store, unconcerned that he might leave by the back door and call for help because the defendant knew that Salvatore Ferry was mentally slow and therefore not likely to call for the police or other help in the middle of the robbery. This was a tangential issue and harmless in light of other overwhelming evidence of the defendant’s guilt. Maria Floriano and Michelina Feriy clearly saw the defendant’s unusually round face and head and heard his distinctive, slow speech pattern. Michelina Ferry further positively identified him in a restaurant and a photographic array, and both women made in-court identifications. The prosecutor’s remarks here were improper. We conclude, however, that the remarks were harmless and did not cause the defendant substantial prejudice.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 ... he ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, riñe, shotgun, machine gun or other firearm . . . .”
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    THOMAS E. BARTOMELI, SR. v. RAYMOND A. BARTOMELI, JR., ET AL.
    (AC 20083)
    Landau, Spear and Dranginis, Js.
    Argued March 20
    officially released September 4, 2001

      Brendan T. Flynn, with whom was Mark A. Rosenblum, lor the appellants (defendants).

      Ralph C. Crozier, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendants, Raymond A. Bartomeli, Jr. (Raymond), and the Bartomeli Company, Inc. (company), appeal from the judgment rendered in favor of the plaintiff, Thomas E. Bartomeli, Sr. (Thomas), after a trial to the court,. On appeal, the defendants claim that the court improperly (1) concluded that the company was liable in contract, (2) concluded that Raymond had breached a partnership contract and (3) awarded damages. We reverse in part and affirm in part the judgment of the trial court.

The following facts and procedural history are relevant to the issues raised on appeal. Thomas and Raymond are brothers. In 1981, they each worked for different construction companies as equipment operators. Thomas, Raymond and their father decided to start a business delivering cordwood. Later, the business developed into a small construction company, and Thomas decided to leave his employment to join Raymond full-time at the company. In the early 1980s, the brothers each contributed individual assets to the company and worked together to acquire equipment. Thomas considered himself a partner in the company; Raymond often referred to Thomas as his partner. It was the practice of the company to garage the equipment at Thomas’ house. In 1983, the company was incorporated, but Thomas never held any shares in the company. In the late 1980s, the company experienced severe financial difficulties. The secretary of the state stripped the company of its corporate status for failure to file annual reports. Raymond, however, was interested in filing for bankruptcy and managed to have the company’s corporate status reinstated.

On several occasions, Thomas’ careless operation of equipment resulted in loss or damage to the company. Raymond became dissatisfied with Thomas’ work performance and, on January 17, 1991, Thomas was removed as secretary of the corporation. On April 19, 1991, Thomas went to the company office and demanded a blank check from the secretary. Raymond found out about Thomas’ demand and fired him. On April 20,1991, Thomas demanded from Raymond either 50 percent of the company or certain equipment owned by the company. On April 22, 1991, Thomas was removed as vice president of the company. Thomas and Raymond could not reach an agreement as to compensation for Thomas, and thereafter Thomas brought the underlying action.

Thomas’ second amended complaint contained nine counts and alleged, inter aha, that Raymond had breached his contractual promise to make Thomas an equal partner in the company. The defendants filed a two count counterclaim, alleging that the plaintiff (1) converted company equipment, and (2) accord and satisfaction. The case was tried to the court over thirteen days. The court found that Thomas and Raymond were de facto partners, and that Raymond was in breach of their contract. On the basis of its finding, the court concluded that Thomas was entitled to a 50 percent share of the company’s nontangible assets ($250,767) and damages equal to the value of a number of pieces of company equipment ($94,000) for a total damages award of $344,767. The court also concluded that Thomas was liable to the defendants for $8500 in damages resulting from his conversion of company equipment. This appeal followed.

I

The defendants first claim that the court improperly concluded that the company was liable for breach of contract. More specifically, the defendants argue that because the plaintiff did not allege that the company was in breach of contract, the court’s conclusion was improper. We agree.

The following additional facts are relevant for our resolution of the defendants’ claim. In the sixth count of the plaintiffs complaint, the plaintiff incorporated the first twenty-three paragraphs of his first count and then added a paragraph alleging: “The ‘Defendant Bartomeli’ breached his contract, which contract was that the plaintiff and ‘Defendant Bartomeli’ would share equally as partners and shareholders in the [company] and the plaintiff has been harmed by the said defendant’s breach of said contract.” In paragraph two of the sixth count, the plaintiff defined “Defendant Bartomeli” as Raymond. There is no allegation in the plaintiffs breach of contract claim that the company was in breach of the contract.

It is helpful to first set forth our standard of review. “If the factual basis of the court’s decision is challenged, our review includes determining 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, those facts are clearly erroneous. . . . With regard to the trial court’s factual findings, the clearly erroneous standard of review is appropriate. . . . The trial court’s legal conclusions are subject to plenary review. [Wjhere 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 . . . .” (Citations omitted; internal quotation marks omitted.) Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., 59 Conn. App. 194, 199, 756 A.2d 309 (2000).

“Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them. . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise.” (Citation omitted; internal quotation marks omitted.) Moore v. Sergi, 38 Conn. App. 829, 841, 664 A.2d 795 (1995). “The principle that a plaintiff may rely only upon what he has alleged is basic. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.” (Internal quotation marks omitted.) Wright v. Hutt, 50 Conn. App. 439, 449, 718 A.2d 969, cert, denied, 247 Conn. 939, 723 A.2d 320 (1998). “A plaintiff may not allege one cause of action and recover on another. Facts found but not averred cannot be made the basis for a recovery.” (Internal quotation marks omitted.) Moore v. Sergi, supra, 841-42.

Here, the plaintiff did not allege that the company breached a contract with him. Because the plaintiff may rely only on what he has alleged; Wright v. Hutt, supra, 50 Conn. App. 449; he may not recover against the company for breach of contract. Therefore, we conclude that the court improperly held the company liable for breach of contract.

II

The defendants next claim that the court improperly concluded that Raymond was liable to the plaintiff for breach of their partnership contract. More specifically, the defendants argue that because the court found that the company was a corporation, it was legally inconsistent for the court to have also found that between Raymond and Thomas, there was a contract for partnership in the company. We disagree.

The following facts are relevant to our conclusion. In its memorandum of decision, the court found that the company was a corporation. Thomas was not a shareholder in the company. The court found also that Thomas and Raymond both contributed personal assets in the form of equipment to the company and that both guaranteed notes for the purchase of company equipment. In public, Raymond introduced Thomas as his partner. When Raymond “fired” Thomas, the parties attempted to agree on a division of the company assets, indicating that there was more going on than the simple termination of an employer-employee relationship. The court found that Raymond and Thomas were de facto partners in the company, and it concluded that Raymond had breached the partnership contract by denying Thomas his interest in the company.

Although we agree with the defendants’ assertion that the company could not have been both a corporation and a partnership; Karanian v. Maulucci, 185 Conn. 320, 323-24, 440 A.2d 959 (1981); we disagree with their assertion that because the company was not a partnership, there could not have been a partnership contract.

“[T]o form a contract, generally there must be a bargain in which there is a manifestation of mutual assent to the exchange between two or more parties; see Restatement (Second), Contracts §§ 1 (c), 15, 19 (Tent. Dr. 1964); 1 Williston, Contracts (1957) §§ 18,22; see also Hoffman v. Fidelity & Casualty Co., 125 Conn. 440, 444, 6 A.2d 357 (1939); Clark v. Diefendorf 109 Conn. 507, 510, 147 A. 33 (1929). . . . The manifestation of assent may be made wholly or partly by written or spoken words or by other acts or by failure to act.” (Citation omitted; internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 798, 720 A.2d 242 (1998). “[The] agreement must be definite and certain as to its terms and requirements. . . . [It] requires a clear and definite promise. ... A court may, however, enforce an agreement if the missing terms can be ascertained, either from the express terms or by fair implication. . . . Thus, an agreement, previously unenforceable because of its indefiniteness, may become binding if the promise on one side of the agreement is made definite by its complete or partial performance.” (Citations omitted; internal quotation marks omitted.) Geary v. Wentworth Laboratories, Inc., 60 Conn. App. 622, 627-28, 760 A.2d 969 (2000). General Statutes § 34-301 (5), defines partnership as “an association of two or more persons to carry on as co-owners a business for profit . . . .”

On the basis of the court’s findings that both Thomas and Raymond worked for the company, both contributed personal assets in the form of equipment to the company, both guaranteed notes for the purchase of company equipment, and that Raymond introduced Thomas as his partner and denied Thomas his interest in the company, we conclude that the court properly found that Raymond and Thomas were de facto partners, and that Raymond had breached the contract of partnership.

Ill

The defendants claim that the court improperly awarded damages. Specifically, they claim that the court improperly (1) calculated damages and (2) awarded damages for good will without evidence to support the award. We agree with the first of the defendants’ claims and disagree with the second.

The following additional facts are necessary for our resolution of the defendants’ claims. The court found that Thomas was entitled to $94,000 in damages for the company’s tangible assets, a 50 percent interest in the company’s value as an ongoing business and a 50 percent interest of the company’s good will. In computing its award for the company’s value as an ongoing business, the court averaged the company’s net worth of assets over liabilities as shown in its balance sheets from March 31, 1991, and June 30, 1991, for an award of $200,767. The court determined that Thomas’ interest in the company’s good will was $50,000.

“The trial court has broad discretion in determining damages, and we will not overturn its decision unless it is clearly erroneous. . . . [W]here 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, those facts are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 609, 749 A.2d 1219, cert, denied, 254 Conn. 903, 755 A.2d 881 (2000).

A

The defendants claim that after awarding Thomas $94,000 for the tangible assets of the company, the court then improperly included those assets in its calculation of the company’s value as on ongoing business. We agree.

It is clear from the court’s memorandum of decision that it awarded Thomas $94,000 in damages for the value of tangible company assets, and it intended to award him 50 percent of the company’s value as an ongoing business. The balance sheets used by the court to compute the company’s value as an ongoing business do not, however, reflect the fact that the court’s award of damages for tangible assets reduces the value of the company as an ongoing business by $94,000. Therefore, the court’s calculation of the award of damages for the company as an ongoing business is clearly erroneous.

B

The defendants next claim that the court improperly awarded damages for the value of the company’s good will without evidence to support such an award. We decline to review the defendants’ claim.

Although the record is replete with evidence as to the value of the company, the court, in its memorandum of decision, did not explain how it calculated the value of the company’s good will. The defendants did not seek an articulation of the court’s ruling.

Under those circumstances, we are left to speculate as to the basis for the court’s award of damages for good will. “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. ... It is a well established principle of appellate procedure that the appellant has the duty of providing this court with a record adequate to afford review. Practice Book § 61-10; Lombardi v. Lombardi, 55 Conn. App. 117, 118, 737 A.2d 988 (1999), cert, denied, 252 Conn. 943, 747 A.2d 520 (2000). Where the factual or legal basis of the trial court’s ruling is unclear, the appellant should seek articulation pursuant to Practice Book § [66-5], . . . [I]n the absence of a motion for articulation, [we] assume that the trial court acted properly.” (Citations omitted; internal quotation marks omitted.) Fitzgerald v. Fitzgerald, 61 Conn. App. 162, 163-64, 763 A.2d 669 (2000). Here, because there is no articulation of the basis for the court’s ruling, we assume that the trial court acted properly. We therefore decline to review the defendants’ claim.

The judgment is reversed as to the finding that the company was in breach of contract and as to the calculation of damages relative to the defendant company as an ongoing business and the case is remanded with direction to render judgment for the defendant company on the plaintiffs claim for breach of contract and for a recalculation of the award of damages consistent with this opinion.

In this opinion the other judges concurred.

       Thomas and Raymond signed notes jointly to acquire equipment for the company.

       The first count alleged fraud and misrepresentation. The second alleged uqjust enrichment. The third count alleged conversion. The fourth count sought an accounting of the defendants’ business assets. The fifth count sought a constructive trust and division of assets. The sixth count alleged breach of contract. The seventh count alleged that the plaintiff was entitled to compensation on the basis of quantum meruit. The eighth count sought a partition of the defendants’ assets and a dissolution of the company. The ninth count sought an injunction preventing the defendants from disposing of any of the company’s assets. During trial, Thomas withdrew the fourth and ninth counts.

       The court found that because the plaintiff converted company equipment, the company was unable to complete a contract valued at $8500.

       In their brief, the defendants claim that neither Raymond nor the company is liable for breach of contract. Because we already have concluded that the court improperly found the company liable for breach of contract, we analyze the claim only with respect to Raymond.

       In its memorandum of decision, the court did not indicate how it calculated its award for good will.

       We reiterate here that we have concluded that the company is not hable to Thomas for breach of contract. The court, in its memorandum of decision, however, found that the defendants were jointly and severably hable to Thomas for breach of contract. Accordingly, we conclude that Raymond, as the only defendant in breach of the contract of partnership, is hable personally for the entire amount of the court’s damages award.


author: SPEAR, J.

text:
    ROBIN ISAACS v. MARIO OTTAVIANO
    (AC 20161)
    Schaller, Spear and Peters, Js.
    Argued February 27
    officially released September 4, 2001

      Mark F. Kohler, assistant attorney general, with whom, on the brief was Richard Blumenthal, attorney general, for the appellant (intervening plaintiff).

      Cynthia J. Coccomo, for the appellee (defendant).
   Opinion

SPEAR, J.

The sole issue in this appeal is whether the state of Connecticut (state) waives its sovereign immunity and subjects itself to a counterclaim when it intervenes, pursuant to General Statutes § 31-293, in a personal injury action and seeks reimbursement for workers’ compensation benefits that it paid to the plaintiff employee. The state claims that the trial court improperly denied its motion to dismiss the defendant’s counterclaim for indemnification and contribution because the state had not waived sovereign immunity and, therefore, the court lacked subject matter jurisdiction. We agree with the state and, accordingly, reverse the judgment of the trial court.

The plaintiff, Robin Isaacs, a state employee, injured herself in a slip and fall accident on premises leased by the state from the defendant, Mario Ottaviano. The plaintiff sought and was awarded workers’ compensation benefits from the state.

On July 18,1997, the plaintiff commenced a personal injury action against the defendant. Thereafter, the defendant filed a notice of claim with the claims commissioner, pursuant to General Statutes § 4-160 (a), seeking permission to bring an action against the state. The commissioner denied the claim on April 20, 1998. On March 2, 1999, the state filed an intervening complaint in the action, pursuant to § 31-293 (a), seeking reimbursement for all amounts that it had paid and would be obligated to pay to the plaintiff under the Workers’ Compensation Act, General Statutes § 31-275 et seq.

On August 5,1999, the defendant filed a counterclaim for indemnification against the state, alleging that the state had breached its lease with him by failing to keep the premises safe and, therefore, was liable for the plaintiffs injuries. The court denied the state’s motion to dismiss the defendant’s counterclaim, and this appeal followed.

It is well settled that the state is immune from suit unless it waives sovereign immunity by appropriate legislation. Without such a waiver, courts do not have subject matter jurisdiction over a claim against the state. Brennan v. Fairfield, 58 Conn. App. 191, 195, 753 A.2d 396 (2000), rev’d on other grounds, 255 Conn. 693, 768 A.2d 433 (2001). Whether a court has subject matter jurisdiction is a question of law and, therefore, our review is plenary. Id.

The state claims that the statute permitting intervention for reimbursement for the payment of workers’ compensation benefits does not constitute the type of express authorization that signals legislative abrogation of sovereign immunity. The defendant does not claim an express statutory waiver of immunity, but responds that the state waived immunity by its conduct in voluntarily intervening in the litigation. He claims that where the state seeks affirmative relief by way of litigation, it cannot then use sovereign immunity to shield itself from a counterclaim.

Because there is no dispute that there is no statutory waiver of immunity, we must resolve whether the state’s filing of an intervening complaint constituted an implied waiver of immunity, pursuant to the line of cases on which the defendant relies. We conclude that those cases are inapposite in the circumstances here and, therefore, the state did not waive its immunity.

The defendant relies on Lacasse v. Burns, 214 Conn. 464, 572 A.2d 357 (1990), State v. Hartford Accident & Indemnity Co., 136 Conn. 157, 70 A.2d 109 (1949), Reilly v. State, 119 Conn. 217, 175 A. 582 (1934), State v. Kilb urn, 81 Conn. 9, 69 A. 1028 (1908), and State v. Lex Associates, judicial district of Hartford-New Britain at Hartford, Housing Session, Docket No. 4259 (December 4, 1995) (15 Conn. L. Rptr. 611), rev’d in part on other grounds, 248 Conn. 612, 730 A.2d 38 (1999).

In Lacasse, the issue was whether the accidental failure of suit statute applied, where the state had consented to be sued pursuant to General Statutes § 13a-144. The Supreme Court determined that once the state waives its immunity, the procedural statutes and rules of court apply to the state just as they apply to any other litigant. In State v. Hartford Accident & Indemnity Co., supra, 136 Conn. 160 n.1, the state brought the action, but the defendant was authorized by special statute to pursue its counterclaim. The court noted, in dictum, that the authorization was not necessary because the state had brought the action. Id. Whether the state had waived sovereign immunity by instituting an action was not an issue in either Lacasse or Hartford Accident & Indemnity Co. because the state’s immunity had been waived by statute.

In Reilly, Kilburn and Lex Associates, the state had not waived its sovereign immunity, but in each instance the court held that by bringing the action, the state subjected itself to the claims of the defendant. In Reilly, the state made a claim against the trustee of an estate, in Kilbum, the state sought to foreclose a school fund mortgage and in Lex Associates, the state brought an action to enforce a purchase option clause that was contained in a lease between it and the defendant.

Those cases do not avail the defendant because here, the state did not initiate any litigation against the defendant. The employer’s claim is a derivative one that depends on the injured employee recovering against the defendant. See Quire v. Stamford, 231 Conn. 370, 376, 650 A.2d 535 (1994); see also Doucette v. Pomes, 247 Conn. 442,467-69, 724 A.2d 481 (1999). The intervening employer’s complaint “does not enlarge the amount of the recovery. . . . Rather, the employer may only obtain reimbursement for workers’ compensation benefits paid to its employee from any damages recovered by the employee.” Quire v. Stamford, supra, 377.

In the cases relied on by the defendant, the state sought to affirmatively establish the defendant’s liability to the state. The rationale for allowing counterclaims where the state brings such an action is simple fairness. To allow the state to invoke the jurisdiction of the court to seek to establish that a defendant is liable to it and yet allow it to shield itself from a counterclaim by way of sovereign immunity would be patently unfair. That rationale simply does not apply here, where the state’s claim is derivative, does not enlarge the defendant’s liability and does not seek to establish that the defendant is liable to the state. For those reasons, the state did not waive its immunity by inteivening, and the court improperly denied the state’s motion to dismiss.

Moreover, to construe the state’s intervening complaint as a waiver of sovereign immunity would run contrary to one of the “four overlapping principles that inform the rights established by § 31-293 (a).” Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 779, 610 A.2d 1277 (1992). One of those principles is that “the statute protects an employer by allowing the employer to obtain reimbursement for workers’ compensation benefits from a third party tortfeasor, either by becoming an intervening plaintiff in the employee’s cause of action or by bringing a separate action derivative of the employee’s cause of action.” Id. To imply a waiver of sovereign immunity by the state’s intervention would expose the state to a loss of its reimbursement. If the plaintiff were to prevail against the defendant, the state’s recovery from the plaintiffs judgment would be negated if the defendant were successful on the counterclaim.

Finally, the defendant claims that the court’s judgment should be affirmed pursuant to a footnote in Durniak. The Dumiak court held that a third party tortfeasor may not raise the negligence of the plaintiffs employer as a special defense when the employer has intervened in the personal injury action, pursuant to § 31-293 (a), to recover the workers’ compensation benefits paid. In a footnote, the court commented that “[a] different result might follow if the special defense alleged not merely the negligence of the employer but included some other basis for liability such as the existence of an independent relationship between the defendant and the employer.” Id., 782 n.5.

The defendant asserts that his lease with the state created an independent relationship that fits within the Dumiak exception. Even if that is so, the defendant fails to show how the exception abrogates the state’s sovereign immunity. His claim would be viable only if we were to agree that the state had waived its immunity by filing the intervening complaint. Because we have rejected the defendant’s waiver of immunity theory, we need not decide whether the Dumiak exception applies.

The judgment is reversed and the case is remanded with direction to dismiss the defendant’s counterclaim for lack of subject matter jurisdiction.

In this opinion the other judges concurred.

       General Statutes § 31-293 (a) provides in relevant part: “When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer ... a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury; and any employer or the custodian . . . having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If the employee, the employer or the custodian . . . brings an action against such person, he shall immediately notify the others, in writing . . . and the others may join as parties plaintiff in the action within thirty days after such notification, and, if the others fail to join as parties plaintiff, their right of action against such person shall abate. ... If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer . . . shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures .... If 1he damages . . . are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. . . . Notwithstanding the provisions of this subsection, when any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer ... a legal liability to pay damages for the injury and the injured employee has received compensation for the injury from such employer, its workers’ compensation insurance carrier or the Second Injury Fund pursuant to the provisions of this chapter, the employer, insurance carrier or Second Injury Fund shall have a lien upon any judgment received by the employee against the party or any settlement received by the employee from the party, provided the employer, insurance carrier or Second Injury Fund shall give written notice of the lien to the party prior to such judgment or settlement.”

       Our Supreme court held in Shay v. Rossi, 253 Conn. 134, 166-67, 749 A.2d 1147 (2000) (en banc), that the denial of a motion to dismiss that is based on sovereign immunity is an appealable final judgment.

       General Statutes § 4-160 (a) provides: “When the Claims Commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable.”

       The defendant claimed that the state agreed in the lease to provide and pay for janitorial services, rubbish removal and groundskeeping. The defendant sought indemnification for any and all sums resulting from the plaintiff’s suit as well as permission to implead the state and file a third party complaint against the state.

       General Statutes § 13a-144 provides in relevant part: “Any person irvjured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the acjjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. . . .”

       We are not called on to determine whether the state waives immunity if it, rather than its employee, brings the action pursuant to § 31-293 (a).

         The defendant also claims that the judgment should be affirmed because the state had the alternative of placing a lien on any judgment for the plaintiff. He asserts that by intervening, the state became a voluntary litigant, thereby waiving sovereign immunity. That assertion is not supported by any reasoning or authority, and we conclude that it is without merit.

       Although not so designated, we treat the defendant’s claim as an alternate ground on which the judgment may be affirmed. Both parties have briefed the issue. See Practice Book § 63-4 (a) (1) (A).


author: SCHALLER, J.

text:
    ROBERT M. CHEVERIE v. ASHCRAFT & GEREL
    (AC 20858)
    Lavery, C. J., and Foti and Schaller, Js.
    Argued May 7
    officially released September 4, 2001

      William J. Sweeney, Jr., with whom, on the brief, was Katarzyna Maluszewski, for the appellant (defendant).

      Joseph D. Garrison, with whom, on the brief, was Monika Lahiri Escoriaza, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Ashcraft & Gerel, appeals from the judgment of the trial court rendered in favor of the plaintiff, Robert M. Cheverie, denying the defendant’s application to vacate an arbitration award. On appeal, the defendant claims that the court improperly (1) failed to utilize a de novo standard of review because its challenge to the award was based on a public policy argument, (2) concluded that the arbitrator did not misapply the law by finding that the plaintiff met his burden of proof in establishing that the parties had entered into a contract and (3) denied the defendant’s motion for reargument. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the appeal. This dispute arises out of an arrangement between the plaintiff, a Connecticut attorney, and the defendant, a law firm based in Washington, D.C., which deals with asbestos litigation. The defendant was interested in hiring the plaintiff to open and to manage a branch office in Hartford to enable the defendant to expand its asbestos litigation practice into Connecticut. The defendant was particularly interested in hiring the plaintiff because of his access to potential asbestos cases through unique business relationships, namely, ones he had developed with union leaders during his five years of working for the National Labor Relations Boar d. In 1985, the defendant hired the plaintiff to operate its Hartford office. Both parties seemed content with the arrangement because, as expected, the plaintiff brought in a substantial number of asbestos cases.

In 1987, however, the plaintiff became dissatisfied with his compensation. He met with Martin E. Gerel, a senior partner of the defendant, to address that problem. The plaintiff informed Gerel that he would leave the firm unless his compensation could be enhanced. As a result, on or about July 16,1987, the parties entered into a written contract, whereby they agreed that the plaintiff would receive a percentage of gross fees for all cases originating from the Hartford office. The contract reads as follows: “It is agreed between Robert Cheverie and Ashcraft and Gerel (hereinafter the Firm) that in consideration of the efforts of Mr. Cheverie on behalf of the Firm, and his continued employment with the Firm, the Firm will pay him on a quarterly basis, a commission on all asbestos cases originating in Connecticut, settled or adjudicated, equal to 10% of the gross fees generated; and in any year in which the gross fees generated during that year exceed $500,000.00, the commission for the amount in excess thereof shall be 12 1/2% of the gross fees generated.”

The defendant honored the contract until December 30, 1991, when it closed the Hartford office. At that time, none of the numerous asbestos cases that the plaintiff had originated had been resolved. The delay, however, did not trouble the parties, as they were aware that asbestos cases typically require a significant amount of time to resolve. Before the Hartford office closed, a partner of the defendant went to the Hartford office to coordinate the closing process and to make individual agreements with the four attorneys there, including the plaintiff. The plaintiff, in meeting with the partner, orally agreed that he would act as local counsel on behalf of the firm even after the Hartford office closed. The partner also assured the plaintiff that the defendant would honor the parties’ previous written contract. Specifically, the partner assured the plaintiff that, regardless of his termination as an employee, he would be paid his percentage of gross fees for the cases that originated from the Hartford office as soon as the cases were resolved. There was no discussion, however, with respect to the plaintiffs continued referral of new cases to the defendant once it closed the Hartford office.

After the defendant closed its Hartford office, the plaintiff opened his own law firm in January, 1992. He remained involved as local counsel on behalf of the defendant.

In December, 1992, the plaintiff developed a new relationship with another asbestos litigation firm, Ferraro & Associates, P.A. (Ferraro). The parties entered into a referral agreement under which the plaintiff would receive one third of fees derived from any matter that he referred to Ferraro. In the early part of 1994, the plaintiff informed the defendant of that arrangement.

Thereafter, while still acting as local counsel on behalf of the defendant, the plaintiff became aware that the defendant had settled several of the asbestos cases that had originated from the Hartford office prior to its closing. When he did not receive his percentage of fees, the plaintiff contacted two partners of the defendant to inquire about the matter. The partners informed him that the defendant had not yet been paid and that, as soon as it was paid, he would be paid. Despite such assurances, the defendant failed to pay the plaintiff his fees. The defendant claimed that it failed to do so because it considered the written contract with the plaintiff to be null and void due to his subsequent referral agreement with Ferraro.

To collect his fees, the plaintiff filed an action against the defendant in the Superior Court for the judicial district of New Britain. He claimed breach of a written contract, breach of an oral contract, unjust enrichment and negligent misrepresentation. The defendant responded that there was no written agreement between the parties and no oral agreement between the parties, and that if there were an enforceable agreement, the plaintiff had breached it. While the matter was pending in court, the plaintiff filed a demand for arbitration in accordance with the parties’ written agreement. Accordingly, the matter was thereafter withdrawn from the court.

Pursuant to the demand for arbitration, hearings were held before an arbitrator. Ultimately, the arbitrator decided the matter in favor of the plaintiff.

The defendant, dissatisfied with the arbitrator’s decision, filed with the court an application to vacate the arbitration award. In its application, the defendant argued that “(1) the arbitrator refused to hear evidence pertinent and material to the controversy, (2) the arbitrator exceeded his power or imperfectly executed his power [thereby] violating the law, and (3) the arbitrator’s decision violated clear public policy. ” The plaintiff, on the other hand, filed a motion to confirm the arbitration award. The court heard arguments on the matter. On May 5, 2000, the court rendered its decision denying the defendant’s application to vacate and granting the plaintiffs motion to confirm. After the court rendered its decision, the defendant filed a motion for reargument, which was denied. This appeal ensued.

I

We first consider the defendant’s claim that the court improperly failed to utilize a de novo standard of review because the challenge to the arbitration award was based on public policy. Specifically, the defendant argued to the court that the enforcement of the employment agreement, on its face, violated the strong public policy underlying rules 1.5, 1.7, 1.8 and 7.3 of the Rules of Professional Conduct. The defendant contends that its mere assertion of a public policy argument required the court to conduct a de novo review of the arbitration award. We disagree.

“The standard of review relative to arbitration awards depends on the nature of the challenge. With a voluntary, unrestricted submission to an arbitrator, as is the case before us, the court may only examine the submission and the award to determine whether the award conforms to the submission. . . . Hartford v. International Assn. of Firefighters, Local 760, 49 Conn. App. 805, 814, 717 A.2d 258, cert, denied, 247 Conn. 920, 722 A.2d 809 (1998). In making such a comparison when the submission is unrestricted, the court will not review the evidence or legal questions involved, but is bound by the arbitrator’s legal and factual determinations. Game-A-Tron Corp. v. Gordon, 2 Conn. App. 692, 695, 483 A.2d 620 (1984).

“Certain conditions do exist, however, under which we conduct a more searching review of arbitral awards. In Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992), our Supreme Court reiterated that there are three grounds for vacating an award when the submission is unrestricted. These grounds arise when the award (1) rules on the constitutionality of a statute, (2) violates clear public policy or (3) contravenes one or more of the statutory proscriptions of General Statutes § 52-418.” State v. AFSCME, Council 4, Local 2663, AFL-CIO, 59 Conn. App. 793, 796, 758 A.2d 387, cert, denied, 255 Conn. 905, 762 A.2d 910 (2000). Because the defendant’s challenge here implicates only the second exception, it will be the focus of our discussion.

Our Supreme Court in Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., 252 Conn. 416, 747 A.2d 1017 (2000), enunciated the proper standard of review for determining whether an arbitral decision violates a clear public policy. It stated: “Where there is no clearly established public policy against which to measure the propriety of the arbitrator’s award, there is no public policy ground for vacatur. If, on the other hand, it has been determined that an arbitral award does implicate a clearly established public policy, the ultimate question remains as to whether the award itself comports with that policy. We conclude that where a party challenges a consensual arbitral award on the ground that it violates public policy, and where that challenge has a, legitimate, colorable basis, de novo review of the award is appropriate in order to determine whether the award does in fact violate public policy.” (Emphasis added.) Id., 429.

The court, however, feared a considerable increase in such challenges. It therefore cautioned against granting de novo review for a bare public policy claim. The court noted: “We emphasize, however, that a party raising such a challenge to an arbitral award may not succeed in receiving de novo review merely by labeling its challenge as falling within the public policy exception to the normal rule of deference. The substance, not the form, of the challenge will govern. Thus, the court should not afford de novo review of the award without first determining that the challenge truly raises a legitimate and colorable claim of violation of public policy. If it does raise such a claim, de novo review should be afforded. If it does not, however, the normal deferential scope of review should apply.” Id., 429 n.7.

Recently, this court had the opportunity to clarify the standard annunciated in Schoonmaker. In State v. AFSCME, Council 4, Local 2663, AFL-CIO, supra, 59 Conn. App. 797, we held that Schoonmaker “requirefs] a two-step analysis in cases such as this one in which a party raises the issue of a violation of public policy in an arbitral award. First, we must determine whether a clear public policy can be identified. Second, if a clear public policy can be identified, we must then address the ultimate question of whether the award itself conforms with that policy.” Accordingly, we must determine whether each of the defendant’s public policy claims satisfies this two step analysis, thereby warranting de novo review of the arbitration award.

A

The defendant first argues that de novo review of the arbitration award was warranted because enforcement of the employment agreement, on its face, violates the strong public policy underlying rule 1.5 of the Rules of Professional Conduct. We are not persuaded.

The defendant’ claim fails under the first prong of the analysis, as the defendant cannot identify any clear public policy embodied in rule 1.5. “A public policy challenge to an arbitration award is rooted in the principle that the parties cannot expect 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. . . . Accordingly, the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” (Citation omitted; internal quotation marks omitted.) Id., 797-98.

We hold that rule 1.5 of the Rules of Professional Conduct does not meet that demanding standard. Rule 1.5 addresses the reasonableness of attorney’s fees, and there is no doubt that it is an important rule. Nevertheless, we cannot say that it rises to the level of a well defined and dominant public policy. The defendant fails to cite any authority that would lead us to conclude otherwise. Indeed, review of the case law buttresses our conclusion. In Schoonmaker, our Supreme Court noted its position on the issue of whether rule 1.5 embodies a legitimate public policy. When the defendants in that case posited a hypothetical regarding rule 1.5 to illustrate the potential for opening the floodgates of litigation, the court responded in the following manner: “The inquiry into the ‘reasonableness’ of attorney’s fees under rule 1.5, however, although legal in nature, is intensely factual in application and as stated previously, we do not digress from the principle of deference to an arbitrator’s findings of fact. Additionally, it is doubtful that such an issue implicates a legitimate public policy. . . . Consequently, we consider the defendants’ concerns to be unfounded.” (Emphasis added.) Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., supra, 252 Conn. 435 n.12. Although that language is dictum, we view it as illuminating. We conclude that rale 1.5 of the Rules of Professional Conduct does not implicate a legitimate public policy and, therefore, the court properly refused to conduct a de novo review of the arbitration award.

B

The defendant also contends that the court improperly failed to conduct a de novo review of the arbitration award because enforcement of the employment agreement violates the clear public policy embodied in rule 1.7 of the Rules of Professional Conduct. We do not agree.

Even if we assume arguendo that the defendant satisfies the first prong of the Schoonmaker analysis by identifying a clear public policy embodied in rale 1.7, it cannot satisfy the second prong. The defendant must demonstrate under the second prong that the arbitration award itself does not conform with the legitimate public policy. Any bare claim under that prong, however, is not enough to invoke de novo review. Instead, before a court will conduct de novo review, the party alleging a public policy violation must show, at a minimum, that a colorable claim exists. See id., 429 n.7. If the party cannot, then the court is not bound to conduct a de novo review of the arbitration award. The defendant alleges that the award undermines rale 1.7. That rale concerns conflicts of interest that may arise when an attorney represents a client and such representation will be directly adverse to another client. Here, the defendant did not specify how the parties’ conduct violated that rule. Quite the contrary, it merely made bare assertions that rule 1.7 was implicated. The court found, and we agree, that it saw “no facts here of a possible adverse result for any one of the clients here by virtue of the plaintiff representing another.” Under those circumstances, we conclude that the defendant failed to demonstrate that a colorable claim exists with respect to a public policy violation of rule 1.7 of the Rules of Professional Conduct. Accordingly, the court properly refused to conduct a de novo review of the award.

C

The defendant also argues that the court should have conducted a de novo review of the arbitration award because enforcement of the employment agreement contravenes the strong public policy underlying rule 1.8 of the Rules of Professional Conduct. We disagree.

The defendant cannot satisfy the second prong of the Schoonmaker analysis because it fails to demonstrate that the arbitration award itself does not conform with the legitimate public policy, if any, embodied in rule 1.8. We reemphasize that under the second prong, the defendant must, at the very least, make a threshold showing that a colorable claim exists before de novo review is warranted. Pursuant to rule 1.8, an attorney is prohibited from engaging in a variety of transactions that may give rise to a conflict of interest. As the court noted, the only possible relevant portion of that rule is 1.8 (f), which deals with situations in which the attorney receives compensation from one other than his or her client. The defendant, once again, failed to articulate how the employment agreement with the plaintiff implicated that rule. Pursuant to the agreement, the plaintiff was entitled to receive a percentage of the fees derived from the Ghent’s award. We agree with the court’s finding that this arrangement in no way implicates rule 1.8 (f). In light of the defendant’s failure to assert a colorable claim of a public policy violation, we conclude that de novo review of the award was not warranted.

D

The defendant also asserts that a de novo review of the arbitration award was warranted because enforcement of the employment agreement violates the clear public policy embraced in rule 7.3 of the Rules of Professional Conduct. We are unpersuaded.

Because the defendant cannot identify any legitimate public policy embodied in rule 7.3, it fails to satisfy the first prong of the Schoonmaker analysis. We reiterate that “the public policy exception to arbitral authority should be narrowly construed and [a] court’s refusal to enforce an arbitrator’s interpretation of [collective bargaining agreements] is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” (Internal quotation marks omitted.) State v. AFSCME, Council 4, Local 2663, ALL-CIO, supra, 59 Conn. App. 798.

After reviewing rule 7.3 of the Rules of Professional Conduct, we conclude that it fails to satisfy that rigorous standard. Rule 7.3 limits attorneys’ efforts to solicit legal business from nonclients. Although that is an important rule, we cannot discern from it a well defined and dominant public policy. Any connection that the rule may have to a legitimate public policy is, at best, tenuous. We conclude, therefore, that the court was not required to conduct a de novo review of the arbitration award.

II

The defendant also claims that the court improperly concluded that the arbitrator did not misapply the law by finding that the plaintiff met his burden of proof in establishing that the parties had entered into a contract. As such, the defendant argues that the arbitration award should be set aside pursuant to § 52-418 (a) (4), as it manifests an egregious or irrational application of the law. We do not agree.

As previously noted in part I, our standard of review applicable to an arbitration award normally is deferential unless the award “(1) rules on the constitutionality of a statute, (2) violates clear public policy or (3) contravenes one or more of the statutory proscriptions of General Statutes § 52-418.” State v. AFSCME, Council 4, Local 2663, AFL-CIO, supra, 59 Conn. App. 796. The defendant’s claim here solely concerns the latter exception.

“[A]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418 (a) (4) because the arbitrator has exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. We emphasize, however, that the manifest disregard of the law ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator’s extraordinary lack of fidelity to established legal principles.

“So delimited, the principle of vacating an award because of a manifest disregard of the law is an important safeguard of the integrity of alternate dispute resolution mechanisms. Judicial approval of arbitration decisions that so egregiously depart from established law that they border on the irrational would undermine society’s confidence in the legitimacy of the arbitration process. . . . Furthermore, although the discretion conferred on the arbitrator by the contracting parties is exceedingly broad, modem contract principles of good faith and fair dealing recognize that even contractual discretion must be exercised for purposes reasonably within the contemplation of the contracting parties. . . .

“In Garrity, we adopted the test enunciated by the United States Court of Appeals for the Second Circuit in interpreting the federal equivalent of § 52-418 (a) (4). . . . The test consists of the following three elements, all of which must be satisfied in order for a court to vacate an arbitration award on the ground that the arbitration panel manifestly disregarded the law: (1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the arbitration panel appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable.” (Internal quotation marks omitted.) Preston v. State, Division of Criminal Justice, 60 Conn. App. 853, 862-63, 761 A.2d 778 (2000), cert, denied, 255 Conn. 936, 767 A.2d 1212 (2001).

In the present case, the defendant cannot satisfy the first element, as it fails to demonstrate any obvious error in the application of the law regarding contract formation. The plaintiff, according to the defendant, failed to demonstrate a meeting of the minds between the parties. The defendant correctly notes that “the burden rested on the plaintiff to prove a meeting of the minds to establish [his] version of the claimed contract.” Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970). It failed to acknowledge, however, that the issue of contract formation is a question of fact. “The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence. ... To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. ... To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties.” (Internal quotation marks omitted.) Richter v. Danbury Hospital, 60 Conn. App. 280, 288, 759 A.2d 106 (2000). Because the defendant’s claim involves a finding of fact, we must “adhere to the longstanding principle that findings of fact are ordinarily left undisturbed upon judicial review.” Schoonmaker v. Cummings & Lockwood of Connecticut, P. C., supra, 252 Conn. 432 & n.8. Accordingly, the court correctly refused, as do we, to substitute its judgment regarding the facts for that of the arbitrator. We conclude, therefore, that the court properly concluded that the arbitrator did not misapply the law by finding that the plaintiff met his burden of proof in establishing that the parties had entered into a contract.

Ill

We next consider the defendant’s claim that the trial court improperly denied its motion for reargument. That claim is without merit.

We stress that “[o]ur . . . review regarding challenges to a trial court’s ruling on such a motion is [an] abuse of discretion [standard].” Taylor v. Taylor, 57 Conn. App. 528, 534, 752 A.2d 1113 (2000). In its motion, the defendant sought reargument because Schoonmaker v. Cummings & Lockwood of Connecticut, P.C., supra, 252 Conn. 416, had been released after the court’s hearing. The defendant argues that such authority would have altered the court’s conclusion on the public policy issue. We disagree. Because we concluded in part I that the Schoonmaker criteria were not satisfied, we cannot conclude that the court abused its discretion in denying the motion for reargument. Other than Schoonmaker, the defendant failed to provide the court with any authority that would warrant a change in its decision. We conclude, under those circumstances, that the court did not abuse its discretion in denying the defendant’s motion for reargument.

The judgment is affirmed.

In this opinion the other judges concurred.

       The submission to arbitration was voluntary and unrestricted. According to both parties, the arbitrator was to decide whether there was a valid contract between the parties, if it had been breached by the defendant and, if so, what damages were due.

       The only relevant portion is rule 1.5 (e), which deals with the division of fees between attorneys. That section provides: “A division of fee between lawyers who are not in the same firm may be made only if:
      “(1) The client is advised of the compensation sharing agreement and of the participation of all the lawyers involved, and does not object; and
      “(2) The total fee is reasonable.”

       We emphasize that we make no determination as to whether rule 1.7 embodies a legitímate public policy and leave that issue for another day.

       Rule 1.7 of the Rules of Professional Conduct provides: “Conflict of Interest: General Rule
      “(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
      “(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
      “(2) Each client consents after consultation.
      “(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
      “(1) The lawyer reasonably believes the representation will not be adversely affected; and
      “(2) The client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.”

       We need not decide whether the defendant satisfied the first prong of the Schoonmaker analysis by identifying a clear public policy embodied in rule 1.8. Assuming that it did so, the defendant would nevertheless fail the second prong of that analysis.

       Rule 1.8 (f) of the Rules of Professional Conduct provides: “A lawyer shall not accept compensation for representing a client from one other than the client unless:
      “(1) The client consents after consultation;
      “(2) There is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
      “(3) Information relating to representation of a client is protected as required by Rule 1.6.”

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects ... (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.”


text:
    KATHLEEN IPACS v. DAVID CRANFORD ET AL.
    (AC 20370)
    Schaller, Spear and Hennessy, Js.
    Argued April 3
    officially released September 4, 2001

      Daniel Owen Dietchweiler, with whom, on the brief, was Steven Jay Monn, for the appellants (defendants).

      Kathryn Calibey, with whom was John J. Houlihan, Jr., for the appellee (plaintiff).
   Opinion

SPEAR, J.

In this personal injury action, the defendants, David Cranford and the Salvation Army, appeal from the judgment, rendered after a jury trial, in favor of the plaintiff, Kathleen Ipacs. The defendants claim that the trial court improperly (1) denied their posttrial motion challenging the verdict as against the weight of the evidence, and (2) failed to instruct the jury on the plaintiffs duties and responsibilities as an operator of a bicycle on a public highway. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 19, 1996, the piaintiff was riding her bicycle in a northerly direction in the southbound lane of North Quaker Lane in West Hartford. At the intersection of North Quaker Lane and Asylum Avenue, the plaintiff made a left hand turn from the center of North Quaker Lane onto Asylum Avenue. After making the turn, the plaintiff traveled west against traffic in the right hand lane on Asylum Avenue. Although the plaintiff saw Cranford’s minivan in the right lane on Asylum Avenue, she did not believe that she was in danger. The defendant, who was traveling at a high rate of speed, struck the plaintiff and caused her to suffer multiple injuries. The jury returned a verdict for the plaintiff and awarded $769,000 in economic damages and $540,000 in noneconomic damages for a total damages award of $1,309,000.

After the verdict, the defendants filed a motion in arrest of judgment, to set aside the verdict, for judgment notwithstanding the verdict, for a remittitur, for a new trial and for a reduction in the verdict due to collateral source payments. Thereafter, the court granted the defendants’ motion for a remittitur in the amount of $649,040.31, finding that the economic damages portion of the verdict was excessive. The court also deducted collateral source payments in an amount that the parties agreed on and thereafter rendered judgment for the plaintiff in the amount of $449,567.39. The defendants’ other motions directed to the verdict were denied, and this appeal followed.

I

We first address the defendants’ claim that the verdict was against the weight of the evidence. In their principal brief, the defendants claim that the verdict is so unwarranted that it “shocks the sense of justice, compelling the conclusion that the jury was influenced by mistake.” We disagree.

In reviewing a court’s refusal to set aside a verdict, we apply an abuse of discretion standard. Opotzner v. Bass, 63 Conn. App. 555, 569, 777 A.2d 718, cert, denied, 257 Conn. 910, 782 A.2d 134 (2001). The evidence is viewed in a light most favorable to the prevailing party and to sustaining the verdict. Id. We accord great weight to the court’s decision and indulge every reasonable presumption in favor of its correctness. Gombos v. Aranoff, 53 Conn. App. 347, 350-51, 730 A.2d 98 (1999). We must determine whether the jury reasonably could have concluded, on the basis of the evidence and reasonable inferences drawn from that evidence, that the verdict in favor of the plaintiff was proper. Purzycki v. Fairfield, 244 Conn. 101, 106-107, 708 A.2d 937 (1998).

“A court is empowered to set aside a jury verdict when, in the court’s opinion, the verdict is contrary to the law or unsupported by the evidence. ... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.” (Citation omitted; internal quotation marks omitted.) PAR Painting, Inc. v. Greenhorne & O’Mara, Inc., 61 Conn. App. 317, 322, 763 A.2d 1078, cert, denied, 255 Conn. 951, 770 A.2d 31 (2001).

The defendants assert that the verdict was improper for two reasons. First, they claim that the plaintiffs violation of several statutes constituted negligence per se, making her negligent conduct more than 50 percent responsible for causing the accident. Second, the defendants argue that the verdict must have been based on a mistake because the jury originally failed to award economic damages, mistakenly believing that the court would make the award, and then awarded $769,000 in economic damages, when the actual, maximum economic damages was $119,959.69.

We conclude that there was sufficient evidence to support the verdict and, thus, it does not shock the sense of justice. The jury heard testimony that Cranford’s vehicle was traveling at a high rate of speed close to the curb, that he saw the plaintiff turn onto Asylum Avenue into his travel lane and that he had sufficient time to avoid the accident. There was expert testimony to the effect that if the plaintiff were believed, she was traveling slowly, and Cranford had sufficient time to stop if he had reacted and applied his brakes. It is the jury’s function, not ours, to pass on the credibility of witnesses and the weight to be given to the evidence. Tryon v. North Branford, 58 Conn. App. 702, 716, 755 A.2d 317 (2000). The jury had sufficient evidence before it to have concluded that Cranford’s negligence was 85 percent responsible for the accident and resulting injuries.

The defendants next argue that the excessive award of economic damages shows that the jury was confused and mistaken, and, therefore, the entire verdict is tainted. We are unpersuaded.

The defendants cite no authority in support of their claim that because a remittitur was ordered, the verdict necessarily was tainted and should be set aside. Adoption of that proposition would effectively eliminate the procedural mechanism of a remittitur because whenever a court deemed a verdict excessive, it would have to set aside the verdict rather than order a remittitur. Such a procedure would be contrary to General Statutes § 52-228b, which precludes a court from setting aside a verdict as excessive without giving the prevailing party an opportunity to accept a remittitur. That argument is without merit.

II

The defendants next claim that the court committed plain error by failing to instruct the jury pursuant to statute that the plaintiff, when riding a bicycle on the public highway, had the same duties and responsibilities as the operator of a motor vehicle. Specifically, the defendants claim that the court should have instructed the jury, pursuant to General Statutes § 14-286a (a), that “[e]very person riding a bicycle . . . upon the traveled portion of a highway shall ... be subject to all of the duties applicable to the driver of any vehicle . . . .” We disagree.

The defendants request plain error review of their claim. Pursuant to Practice Book § 60-5, “[t]he [appellate] court may reverse or modify the decision of the trial court if it determines . . . that the decision is otherwise erroneous in law. The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” “Plain error is restricted to extraordinary situations where the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” Herrera v. Madrak, 58 Conn. App. 320, 325, 752 A.2d 1161 (2000).

“A charge that demonstrates that the trial court has overlooked the applicable statute justifies consideration as plain error. . . . We will consider, under [Practice Book § 60-5], a claim that the defendant was prejudiced by the trial court’s failure to instruct the jury on a statute he contends is mandatory. The defendant cannot prevail under [Practice Book § 60-5], however, unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Citations omitted; internal quotation marks omitted.) State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995). We now must examine the entire charge to determine whether the defendants have carried their burden.

“[J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict. . . . We must review the charge as a whole to determine whether it was correct in law and sufficiently guided the jury on the issues presented at trial. . . .

“Our standard of review on this [nonconstitutional] claim is whether it is reasonably probable that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the juiy in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Internal quotation marks omitted.) Marshall v. O’Keefe, 55 Conn. App. 801, 804-805, 740 A.2d 909 (1999), cert, denied, 252 Conn. 918, 744 A.2d 438 (2000).

In its instructions, the court made clear to the jury that the plaintiff was under a duty to use reasonable care and that her conduct was to be judged “in light of all the relevant facts she perceived or should have perceived in the exercise of reasonable care.” The court also charged the jury, at the defendants’ request, on every statutory violation that the plaintiff allegedly had committed: Failure to signal a left hand turn in violation of General Statutes § 14-286c; failure to make her turn as close as practicable to the curb or edge of the highway on the far side of the intersection in violation of General Statutes § 14-244; failure to operate her bicycle as near to the right side of the roadway as practicable in violation of General Statutes § 14-286b; and failure to stop at a stop sign in violation of General Statutes § 14-301 (c).

We conclude that the defendants’ case was fairly put before the jury with respect to their claims that the plaintiff was responsible for the accident through her own negligence in violation of applicable statutes. Because the court charged on all of the statutes that the plaintiff allegedly violated and also instructed the jury on the plaintiffs responsibility to use reasonable care, failure to specifically instruct on § 14-286a was not “so clear and so harmful”; State v. Day, supra, 233 Conn. 849; as to constitute manifest injustice.

The judgment is affirmed.

In this opinion the other judges concurred.

       Cranford was operating a minivan owned by the Salvation Army.

       The jury found that the plaintiff was 15 percent negligent and the defendant 85 percent negligent.

       All of those motions challenged the verdict on the same grounds.

       In their brief, the defendants claim that the plaintiff committed the following violations of law: “(1) passed on the left side of a vehicle in front of her stopped at an intersection in violation of General Statutes § 14-232; (2) proceeded in the lane of opposing traffic on North Quaker Lane in violation of General Statutes § 14-230; (3) failed to stop at the intersection in violation of General Statutes § 14-301; (4) turned left at the intersection without proper indication in violation of General Statutes § 14-244; and (5) proceeded onto Asylum Avenue in the lane of opposing traffic in violation of General Statutes § 14-230.”

       General Statutes § 52-228b provides in relevant part: “No verdict in any civil action involving a claim for money damages may be set aside . . . solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. ...”

       The court’s jury instructions on the plaintiffs responsibilities also included the following: “The plaintiff was under a duty to [exercise] the same care to avoid suffering any injury as that what was found with the defendant, that is the care which [an] ordinary prudent person would use under the circumstances. The plaintiffs conduct is to be judged in light of all the relevant facts she perceived or should have perceived in the exercise of reasonable care.
      “General Statutes §§ 14-286c and 14-244 provide in part [that] each person riding a bicycle on the traveled portion of a highway and intending to make a left turn after giving a hand signal by extending the left hand and arm horizontally with forefinger pointed may approach as close as practicable to the right hand curb or edge of the highway, proceed across the intersecting roadway and make such turn as close as practicable to the curb or edge of the highway on the far side of the intersection.
      “If you find the plaintiff failed in any one of these statutes, you must find that she was negligent.
      “General Statutes § 14-286b (a) provides in part that ‘every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable . . . .’
      “If you find that the plaintiff has failed to ride her bicycle as near to the right side of Asylum as practicable, then she is negligent.
      “General Statutes § 14-301 (c) . . . provides in part that a driver of a bicycle ‘shall stop in obedience to a stop sign at such clearly marked stop line or lines as may be established by the traffic authority having jurisdiction . . . and shall yield the right-of-way to vehicles’ which are not obligated to stop or approaching so closely as to constitute an immediate hazard.’
      “If you find that the plaintiff failed to stop at the stop sign or clearly marked stop line at the end of North Quaker Lane or failed to yield the right-of-way to approaching vehicles that were within the intersection or approaching so closely as to constitute an immediate hazard, then she was negligent.”