text:
    BANK OF BOSTON CONNECTICUT v. AVON MEADOW ASSOCIATES ET AL.
    (13326)
    Dupont, C. X, and O’Connell and Heiman, Js.

      Argued September 22, 1995
    decision released March 5, 1996

      Richard, P. Weinstein, with whom, on the brief, was Peter B. Rus tin, for the appellants (defendants).

      Ben M. Krowicki, with whom, on the brief was James 5. Rollins, for the appellee (plaintiff).
   O’CONNELL, J.

The plaintiff brought this action to collect on an unpaid promissory note. The defendants do not contest the award to the plaintiff of $2,205,911.77 on the complaint, but instead challenge the denial of their counterclaim.

The defendants claim that the trial court improperly (1) failed to rule, as a matter of law, that the release that they executed was ineffective as to their counterclaim, (2) instructed the jury on estoppel, and (3) instructed the jury on the effect of an agreement to execute a subsequent release. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendants were financing an office condominium project in Avon through a series of construction mortgage loans from the plaintiff bank. The project, consisting of ten buildings containing four office units each, was being constructed in phases. The present action concerns a promissory note and guarantees dated April 29,1988. On December 18,1989, the plaintiff notified the defendants that it would insist on payment of the note on its May 1, 1990 due date and would thereafter discontinue financing the project.

By letter dated April 30, 1990, the bank formally demanded full payment of the loan by the next day. The defendants lacked personal funds to meet this demand and could not secure alternative financing. On June 7, 1990, the plaintiff sent the defendants a letter requiring the defendants to execute a forbearance agreement no later than June 8,1990. This case focuses on paragraph two of that agreement because the plaintiff claims it is a release and bars the defendants’ counterclaim.

On April 9, 1991, the plaintiff commenced this action to recover the amount due under the note and guarantees. The defendants counterclaimed, inter alia, that the plaintiff breached an oral contract by which the plaintiff agreed to fund the project to completion. The jury returned a verdict in favor of the plaintiff both on its claim and on the defendants’ counterclaim.

Through interrogatories, the jury indicated that it found the existence of an oral contract between the defendants and the plaintiffs to fund the condominium project to completion. Additionally, the jury responded that the bank breached this oral contract and also violated the Connecticut Unfair Trade Practices Act. Notwithstanding these findings, the jury also found that the forbearance agreement constituted a release by the defendants of their counterclaim or found that the defendants were estopped to assert their counterclaim. The defendants filed a timely motion to set aside the verdict, which the trial court denied.

I

The defendants’ counterclaim was based on a theory that the plaintiff was obligated to fund the building project to completion. The plaintiff pleaded the forbearance agreement as a special defense to the counterclaim.

A

The defendants first contend that the trial court should have ruled, as a matter of law, that the release contained in the forbearance agreement was ineffective as to the defendant’s counterclaim, arguing that the terms of the contract are unambiguous. The claim arises from the word “claim” in the second sentence and phrase “claim or counterclaim” in the third sentence. When a contract provision is unambiguous, its interpretation presents an issue of law for determination by the court. Mulligan v. Rioux, 229 Conn. 716, 740, 643 A.2d 1226 (1994). When, however, a contract provision is ambiguous or contract provisions are internally inconsistent, a question of fact is involved. See Dainty Rubbish Services, Inc. v. Beacon Hill Assn., Inc., 32 Conn. App. 530, 533-34, 630 A.2d 115 (1993).

The language of both the second and third sentences is clear. The terms are not subject to alternative interpretations, but rather the terms in the second and third sentences are inconsistent and conflicting. This case therefore calls for the determination of what the parties intended when they entered into the agreement containing inconsistent and conflicting clauses. Id. Questions of the parties’ intent are questions of fact for the fact finder. See, e.g., Levine v. Massey, 232 Conn. 272, 276, 654 A.2d 737 (1995). Accordingly, we conclude that the trial court properly submitted the question to the jury.

B

The defendants next argue that their counterclaim cannot be considered as having been pleaded in defense or diminution of the amounts claimed under the note within the meaning of paragraph two because the counterclaim is much broader in scope than the note that was the subject of the plaintiffs complaint.

The defendants fail to recognize that their counterclaim is actually a setoff of the amount admittedly due under the plaintiffs claim. “In any action brought for the recovery of a debt, if there are mutual debts between the plaintiff . . . and the . . . defendants or any of them, one debt may be set off against the other.” General Statutes § 52-139 (a). The defendants’ argument to this court that their counterclaim is broader than the plaintiffs claim demonstrates that it is properly denominated a setoff instead of only a reduction. “A set-off is made where the defendant has a debt against the plaintiff arising out of a transaction independent of the contract on which the plaintiff sues, and desires to avail himself of that debt, in the existing suit, either to reduce the plaintiffs recovery, or to defeat it altogether, and, as the case may be, to recover a judgment in his own favor for a balance.” (Emphasis added.) Avery v. Brown, 31 Conn. 398, 401 (1863).

The fact that the defendants’ counterclaim in this case might give rise to damages in excess of those due the plaintiff does not bar it from being a setoff. “If it appears upon the trial that the plaintiff is indebted to the defendant, the court shall give judgment for the defendant to recover the balance due of the plaintiff with his costs . . . .” General Statutes § 52-139 (c).

In the present case, the defendants’ counterclaim is for money damages against the identical party that is suing them for money damages. The law of setoff applies to the defendants’ counterclaim and, therefore, the fact that it may be broader than the plaintiffs claim is irrelevant.

II

The defendants next contend that the trial court should not have instructed the jury on the doctrine of estoppel because there was no evidence to support a finding of estoppel by the jury.

The elements of estoppel are (1) the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief, and (2) the other party must change its position in reliance on those facts to its detriment. Lunn v. Tokenek Assn., Inc., 227 Conn. 601, 607, 630 A.2d 1335 (1993). Under Connecticut law, a party is estopped from asserting a claim when the other party reasonably relied on its representations. See, e.g., Katz Realty, Inc. v. Norwalk Fabricators, Inc., 14 Conn. App. 396, 401, 541 A.2d 519 (1988).

The defendants argue that there was no evidence that the plaintiff changed its position in reliance on the defendants’ execution of the forbearance agreement to support the element of reasonable reliance. The record, however, does not support this contention. The bank officer who executed the forbearance agreement testified that the plaintiff would not have entered into the agreement if it did not contain the release language. Additionally, there was testimony to the effect that, as a result of the plaintiffs reliance on the agreement, it neither commenced immediate foreclosure of the mortgage nor took immediate collection action on the note.

We conclude that there was sufficient evidence to support submitting the estoppel issue to the jury.

Ill

In their final claim, the defendants argue that the trial court improperly charged the jury that an agreement to execute a subsequent release is sufficient to release the defendants’ counterclaims where there was no evidence that all material terms of the proposed release were agreed upon among the parties.

Under appropriate circumstances, a promise to execute a release in the future may be enforced as a release regardless of whether a release is in fact actually executed. This general principle is qualified, however, to the extent that if such a contract “is to be specifically enforced, it is necessary that its potential terms be sufficiently definite that the nature and extent of the parties’ obligation can be ascertained.” Ismert & Associates, Inc. v. New England Mutual Life Ins. Co., 801 F.2d 536, 542 (1st Cir. 1986). The defendants contend that because there was no evidence of the terms of the proposed future release, the trial court improperly submitted to the jury the question of whether the language of the forbearance agreement could, under the circumstances of this case, be enforced as a release. The defendant Krass, however, testified on the subject of the release. The record therefore does not support the contention that there was no evidence on the terms of the proposed future release.

We will review a trial court’s legal rulings, such as denial of a request to charge only to the extent of determining if they are legally and logically correct. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Unless the contrary appears in the record, we will presume that the trial court acted properly and considered applicable legal principles. See Rosenblit v. Danaher, 206 Conn. 125, 134, 537 A.2d 145 (1988). More specifically, “[w]e consider whether the instructions are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury. . . . The charge must give the jurors a clear comprehension of the issues presented for their determination under the pleadings and upon the evidence, and must be suited to guide them in the determination of those issues.” (Citations omitted.) Goodmaster v. Houser, 225 Conn. 637, 644-45, 625 A.2d 1366 (1993).

In the present case, the trial court expressly instructed the jury that “if the parties did not agree on all of the terms of the release or contemplated the signing of the formal document as a condition to the effective condition of the release, then the agreement release is not a bar to [the defendants’] counterclaims.” We conclude that there was sufficient evidence to submit the release issue to the jury and that the jury was properly instructed that it must find that the parties had agreed to the terms of the final release.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are (1) Avon Meadow Associates, a general partnership comprised of James G. Sutton, Barrett L. Krass and James J. Heneghan, and (2) Sutton, Krass and Heneghan in their individual capacities because they personally signed a guarantee of payment of the note.

       In response to an interrogatory, the jury found no duress on the defendants in executing the forbearance agreement. The defendants do not challenge this response.

       “Debtor and Guarantor jointly and severally acknowledge and affirm the Debt represented by the Note, Mortgage, Guaranty and any other documents executed in connection therewith. Debtor and Guarantor further represent that, as of the date hereof, no defense, setoff or claim exists with respect to Bank, either matured or unmatured, contingent or certain, direct or indirect, which could be raised in defense or in diminution of the amounts claimed under the said Note. Further, Guarantor and Debtor hereby covenant and agree that they will execute such documents as Bank may reasonably request, which documents will serve to forever waive and release any defense, claim or counterclaim by Debtor or Guarantor against Bank for any action occurring prior to the date of this Agreement.”

       Although it seems inconsistent that the jury found either that the forbearance agreement constituted a release or that the defendant was estopped from asserting its counterclaim, the interrogatories to the jury were phrased in this particular manner. We therefore address both alternatives.

       The trial court submitted the following instruction to the jury: “Again, the language, the second sentence about—to the effect that Avon, in effect, covenants that it will execute such documents as the bank may reasonably request which would serve to waive and release any counterclaim by Avon, the question is for you to interpret that the issue is the intention of the parties as manifested by these words. If the parties agree upon all the terms of a release, then the parties are bound by the release even though they conlemplated the signing of the formal document memorialized in that understanding, and the document was not signed. In other words, it is not determinable of the effectiveness of this release that there was a promise to execute a release into the future. If the language I read to you itself constitutes an intention to give a release, the requirement of executing a formal document in and of itself is not required when there is an agreement to give a release. If the parties did not agree on all the terms of the release or contemplated the signing of the formal document as a condition to the effective condition to the release, then the agreement release is not a bar to Avon’s counterclaims.”


source: Caselaw Access Project

author: HEIMAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. VAN SNYDER
    (13785)
    Herman, SchaUer and Hennessy, Js.
    Argued November 2, 1995
    decision released March 12, 1996

      Rita M. Shair, assistant state’s attorney, with whom were John A. Connelly, state’s attorney, Robin Lipsky, assistant state’s attorney, and, on the brief, David J. Sheldon, former deputy assistant state’s attorney, for the appellant (state).

      John M. Gesmonde, for the appellee (defendant).
   HEIMAN, J.

The state appeals from the judgments rendered by the trial court, following the court’s granting of the defendant’s motion to dismiss the informa-tions charging him with five counts of harassment in the second degree in violation of General Statutes § 53a-183 (a) (2). The trial court found that a direct communication from a defendant to a victim is required to establish a violation of § 53a-183 (a) (2), and that, in the present case, the informations failed to allege that the defendant directly communicated with any of the complainants. Accordingly, the trial court dismissed the informations on the ground that they failed to charge an offense constituting harassment in the second degree. The state contends that the trial court’s ruling was improper. The state asserts that in order to establish a violation of § 53a-183 (a) (2), it does not have to prove that the defendant directly communicated with the persons whom the defendant intended to harass, and that, therefore, its informations did not fail to charge an offense. We agree with the state and reverse the judgment of the trial court.

The facts essential to an understanding of our resolution of this appeal are as follows. In April, 1993, Joseph Sullivan, the acting superintendent of public schools in Waterbury, and Charles Joy, the assistant superintendent for instruction, were jointly involved in the suspension of the defendant from duty for one week. The defendant was the principal of Crosby High School.

Commencing in July, 1993, Sullivan, Joy, and Foster Crawford, the assistant superintendent for special education, began receiving by mail magazine subscriptions to which they had not subscribed and packages of merchandise and services that they had not ordered. For example, Joy received dozens of video cassettes, audio discs, rpusic cassettes, and collector plates and cards. Joy estimated that as of October, 1993, he had received over 500 pieces of mail and merchandise valued at approximately $5620.

All three of the victims had been billed for these unsolicited items and had received second and third notices from billing services. In these past due notices, the billing agencies threatened that they would take aggressive collection action if the outstanding bills were not paid. The notices caused the victims to believe that such action would have an adverse effect on their credit standings.

Additionally, Sullivan, Joy and Crawford had spent a considerable amount of time making telephone calls and mailing numerous forms and letters in attempts to cancel unwanted magazine subscriptions, and to stem the tide of unordered and unwanted merchandise and services. Joy changed his telephone number in an effort to stop solicitors from calling at all hours of the day and night.

On September 8, 1993, Joy attended a meeting in the defendant’s office at Crosby High School. Joy wanted to take notes at the meeting and picked up a note pad from the defendant’s desk. Joy noticed that the pad had an imprint of his name and home address. On September 15, 1993, Joy again attended a meeting at Crosby High School and, while he was using the telephone in the defendant’s office, he saw ten or twelve subscription forms protruding from the defendant’s desk drawer.

On September 21, 1993, Joy received a telephone call from a person claiming that Joy was registered for a particular seminar. Joy asked the caller to send him the original registration card and the envelope in which it had been mailed, and the caller did so. When Joy received the registration materials, he compared the handwriting on the materials with the handwriting on certain documents that the defendant had prepared and signed. Joy concluded that the handwriting on the registration materials was very similar to that of the defendant. Joy also recognized that the postage on the registration envelope was from a postage meter at 236 Grand Street, the building where Joy’s office was located.

On October 8,1993, Joy intercepted the mail from the Crosby High School mail bag and noticed a subscription card with his name and address listed as the subscriber. Joy asked a secretary to examine the contents of the mail bag, and the secretary found six pieces of mail similar to the one that Joy had discovered.

The false subscription cards and known samples of the defendant’s handwriting were submitted to the state forensic laboratory for handwriting comparison. The examiner concluded that the cards and the known samples were written by the defendant.

On October 21,1993, pursuant to a warrant, the police searched the defendant’s office at Crosby High School. The items seized included thirty-one assorted mail orders and requests for magazine subscriptions and a box containing over 510 homemade address labels. Among the addresses printed on the labels were those of Joy’s residence, Sullivan’s residence and Crawford’s residence and office. Over 300 of the labels contained the residential address of Guy DiBiasio, a former superintendent of public schools in Waterbury. The police also found three order forms containing the Waterbury address of Robert Rousseau, Karen Rousseau and James Wigglesworth.

During the search, the defendant told the police that he had been subjected to harassment by the school officials who had suspended him, and, that for this reason, he was ordering subscriptions to be sent to the officials. The defendant also stated that he was having problems with a student, and that he had a confrontation with the student’s father. Because the defendant was upset with this student and his father, he began ordering magazine subscriptions to be sent to the student’s home.

Approximately one month after the search of the defendant’s office, Robert Rousseau and Karen Rousseau reported to the police that they had been involved in a verbal confrontation with the defendant and that, thereafter, they had begun to receive numerous items of unsolicited mail. Karen Rousseau stated that the argument with the defendant pertained to Wig-glesworth, her son. According to Karen Rousseau, one unwanted item sent to her home was a giljt allegedly from Joy to Wigglesworth, an item that Joy claims he did not send.

Also subsequent to the search of the defendant’s office, DiBiasio filed a complaint with the police, claiming that he had been receiving hundreds of unsolicited mail subscriptions at his residence. DiBiasio reported that while he was superintendent, he had disciplined the defendant for a violation of school policies.

On the basis of these facts, the defendant was arrested and charged in three informations with a total of five counts of harassment in the second degree in violation of § 53a-183 (a) (2). The informations allege that the defendant, “with intent to harass and annoy” the complainants, “did communicate by mail with other persons to cause numerous pieces of unsolicit[ed] mail and packages to be received by” the complainants “in a manner likely to cause annoyance and alarm.” The defendant filed a motion to dismiss the informations, claiming (1) that the informations were defective because they failed to charge an offense, and (2) that the law defining the offense charged was unconstitutional or otherwise invalid. The defendant based his motion on Practice Book § 814, article first, § 7, of the Connecticut constitution, and the fourth and fourteenth amendments to the constitution of the United States. The trial court granted the defendant’s motion on the ground that the informations failed to charge an offense constituting the conduct proscribed in § 53a-183 (a) (2). The trial court found that in order to establish a violation of § 53a-183 (a) (2), the state must prove that the defendant directly communicated with the person whom he intended to harass, and that the informations charging the defendant with violating § 53a-183 (a) (2) failed to allege such a direct communication. According to the trial court, § 53a-183 (a) (2) “does not encompass within its ambit content-neutral communications made to a party other than the complainant which are not in any way annoying or alarming to such other party. While the defendant’s intention may have been to annoy or harass the complainants and their receipt of numerous unsolicited mail order items was, in all likelihood, annoying and possibly alarming, his alleged actions do not constitute criminal conduct.” Following the trial court’s dismissal of the informations, the state appealed.

On appeal, the state asserts that to establish a violation of § 53a-183 (a) (2), it need not prove that the defendant communicated directly with the persons whom the defendant intended to harass, and that, therefore, its informations did not fail to charge an offense. The defendant disagrees with the state’s position and argues that the statute proscribes a defendant only from engaging in direct communication with a victim in an effort to harass the victim. We agree with the state.

To resolve this appeal, we must determine whether § 53a-183 (a) (2) requires the state to prove that a defendant, with the intent to harass, annoy or alarm another person, directly communicated with that person, or whether the state may also prove a violation of that statute where it demonstrates that a defendant, with the intent to harass, annoy or alarm another person, communicated with a third party. The resolution of this question requires us to engage in statutory construction.

“Statutory construction is a question of law and therefore our review is plenary. . . . Ordinarily, if the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.” (Internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 481, 668 A.2d 682 (1995). Thus, we first must consider whether § 53a-183 (a) (2) is plain and unambiguous.

The statutory language applicable to this case is as follows: “A person is guilty of harassment in the second degree when . . . with intent to harass, annoy or alarm another person, he communicates with a person by . . . mail ... in a manner likely to cause annoyance or alarm . . . .” General Statutes § 53a-183 (a) (2). We conclude that this language is not ambiguous and that it applies to a person who, with the intent to harass a victim, communicates with a third party by mail in an effort to cause such harassment.

The legislature decreed in § 53a-183 (a) (2) that a person is guilty of harassment in the second degree when with the requisite intent to harass “another person, he communicates with a person” in a prohibited manner. (Emphasis added.) These words “are to be understood according to the commonly approved usage of the language”; State v. Hufford, 205 Conn. 386, 392, 533 A.2d 866 (1987); and “must be given their plain and ordinary meaning and be interpreted in their natural and usual sense unless the context indicates that a different meaning was intended.” State v. Grant, 33 Conn. App. 133, 140, 634 A.2d 1181 (1993). The language of § 53a-183 (a) (2) plainly states that for a defendant to violate that statute, he must first have the intent to harass, annoy or alarm “another” person, i.e., the intended victim, and, second, he must communicate with “a” person, possibly a third party, in a manner likely to achieve his ends. Thus, a defendant is prohibited from intending to harass “another” person and then acting on his intent by communicating with “a” person. The statute by its terms does not require direct communication with the person who is the target of the harassment, and we will “not by construction read into statutes provisions which are not clearly stated.” (Internal quotation marks omitted.) State v. Johnson, 227 Conn. 534, 542, 630 A.2d 1059 (1993). Were we to countenance an interpretation different from that set forth here, we would render words of the statute mere surplusage because we would fail to recognize the distinction made by the legislature that proscribes someone from having an intent to harass “another” person, but prohibits only that he communicate with “a” person. “No word or phrase in a statute is to be rendered mere surplusage.” Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 16, 615 A.2d 1032 (1992).

On the basis of our interpretation of § 53a-183 (a) (2), we conclude that the trial court improperly interpreted that statute. Contrary to the finding of the trial court, § 53a-183 (a) (2) does not require the state to prove that the defendant engaged in a direct communication with the person whom he intended to harass. Furthermore, having examined the language of the informa-tions filed by the state in light of § 53a-183 (a) (2), we conclude that those informations did not fail to charge the defendant with the offense of harassment in the second degree. The informations alleged that the defendant, with the intent to harass and annoy the complainants, communicated by mail with other persons to cause numerous pieces of unsolicited mail and packages to be received by the complainants, in a manner likely to cause annoyance and alarm.

The judgments are reversed and the case remanded with direction to deny the defendant’s motion to dismiss the counts alleging a violation of § 53a-183 (a) (2) based on the failure to charge an offense and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The state appeals pursuant to General Statutes § 54-96, which provides: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       This is a consolidated appeal.

       The trial court also dismissed the counts of the informations that charged the defendant with violating General Statutes § 53a-182 (a) (2), but no appeal was taken from that action.

       General Statutes § 53a-183 (a) provides in pertinent part: “A person is guilty of harassment in the second degree when ... (2) with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile through connection with a telephone network, or by any other form of written communication, in a manner likely to cause annoyance or alarm . . .

       The operative facts set forth in this opinion come from the applications for arrest warrants that commenced the prosecution of the defendant and that formed the basis of the trial court’s findings of fact and law.

       Some of the informations contain insignificant differences in language in comparison to (he language quoted here.

       While the motion did not refer to Practice Book § 815, it is apparent (hat, the defendant was invoking that provision. Practice Book § 815 provides in relevant part: “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information . . .
      “(2) Defects in the information including failure to charge an offense . . .
      “(8) Claim that the law defining the offense charged is unconstitutional or otherwise invalid . . .

       The trial court did not reach the constitutional issues raised by the defendant. Because the trial court did not reach the constitutional issues, we do not address those issues here.


author: SPEAR, J. LAVERY, J.,

text:
    MICHAEL IOVIENO v. COMMISSIONER OF CORRECTION
    (14077)
    Lavery, Landau and Spear, Js.
    Argued October 30, 1995
    decision released March 12, 1996

      Christopher C. Sheehan, deputy assistant public defender, for the appellant (petitioner).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   SPEAR, J.

The petitioner appeals from the judgment of the habeas court dismissing his second petition for a writ of habeas corpus. He claims that the habeas court improperly required him to demonstrate that he was prejudiced by his counsel’s failure to file in a timely manner a petition for certification to appeal from the judgment dismissing his first habeas corpus petition. We affirm the judgment of the habeas court.

The relevant facts are as follows. The petitioner, Michael Iovieno, was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70, unlawful restraint in the first degree in violation of General Statutes § 53a-95, and three counts of burglary in the second degree in violation of General Statutes § 53a-102. On appeal, this court vacated one of the burglary convictions and remanded the case with direction to render a judgment of acquittal as to that count. We affirmed the remaining convictions. State v. Iovieno, 14 Conn. App. 710, 543 A.2d 766, cert. denied, 209 Conn. 805, 548 A.2d 440 (1988).

Thereafter, the petitioner filed a petition for a writ of habeas corpus claiming that his trial counsel was ineffective by failing to move to suppress evidence wrongfully seized. The habeas court dismissed the habeas petition, finding that trial counsel’s incompetence did not prejudice the petitioner in the manner defined by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The habeas court’s memorandum of decision dismissing the petition was dated February 15, 1991, and was filed on February 22, 1991.

On March 8, 1991, the petitioner’s habeas counsel filed a petition for certification to appeal. This petition was filed four days beyond the time limitation set forth in General Statutes § 52-470 (b). The habeas court concluded that it did not have the discretion to consider a petition that was not timely filed. The Supreme Court, ruling on a writ of error brought by the petitioner, affirmed the habeas court’s decision. Iovieno v. Commissioner of Correction, 222 Conn. 254, 608 A.2d 1174 (1992).

The petitioner filed a second habeas petition claiming that he was denied his right to effective assistance of counsel in his appeal of the dismissal of his first habeas petition. In the second petition, he requested (1) that a wilt of habeas corpus be issued to bring him before this court in order that justice may be done, (2) that the conviction and sentence be vacated and the matter returned to the trial court docket for further proceedings, (3) that his right to appeal from the original habeas court decision be restored provided that a petition for certification be filed within ten days from the date of this decision, and (4) such other relief as deemed equitable and just.

The habeas court, in addressing the merits of the petition, first found that a statutory right to effective assistance of counsel exists in appeals from adverse habeas corpus decisions. The court then found that the conduct of the petitioner’s counsel in failing to file the petition for certification in a timely manner fell below an objective standard of reasonable representation. The court concluded, however, that the petitioner had not proven that such deficient representation had prejudiced him and, therefore, dismissed the petition.

The petitioner claims that his counsel's conduct constituted per se prejudice, and, therefore, he was not required to prove prejudice. In rejecting this claim, the habeas court stated that the petitioner failed to prove that “there exists a reasonable probability that, but for the lack of timely filing, his petition for certification would have been granted.” The habeas court granted a timely filed petition for certification to appeal its decision.

The petitioner asserts that the habeas court had the authority to remedy his counsel’s failure to file apetition for certification to appeal in a timely manner by “starting the time limit anew for the filing of the petition for certification from the first habeas decision.” We disagree, and conclude that because the time limitation contained in § 52-470 (b) implicates subject matter jurisdiction, a habeas court does not have the authority to set a new ten day period for filing a petition for certification to appeal.

The following procedural history is pertinent to this issue. The habeas court, in addressing the petitioner’s second habeas petition, conducted a thorough analysis regarding the petitioner’s ineffective assistance of counsel claim. The court applied the two-prong test enunciated in Strickland v. Washington, supra, 466 U.S. 668. The court found that the petitioner had satisfied the first prong of Strickland by proving that his habeas counsel’s performance fell below an objective standard of reasonableness. In examining the second prong of Strickland, often termed the prejudice prong, the court applied the criteria established in Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), to determine whether the petitioner had proven, by a preponderance of the evidence, that there existed a reasonable probability that the petition for certification for appeal would have been granted. The court concluded that the petitioner did not satisfy this second prong and, thus, dismissed the habeas petition.

While we agree with the habeas court’s ultimate decision to dismiss the petition, we disagree with the court’s reasoning in support of that result. “ ‘Where the . . . court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the . . . court’s action if proper grounds exist to support it.’ ” Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992), quoting Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978). The habeas court’s Lozada analysis implies that the court had subject matter jurisdiction to reinstate the ten day certification period had the court concluded that the petitioner satisfied both prongs of Strickland. Our case law dictates that the failure to file the petition within ten days of the judgment of dismissal deprived the court of subject matter jurisdiction to grant a new ten day period.

“[Jurisdiction of the subject matter is a question of law and cannot be waived or conferred by consent either in the trial court or here.” (Internal quotation marks omitted.) Serrani v. Board of Ethics, 225 Conn. 305, 308, 622 A.2d 1009 (1993). Moreover, the subject matter jurisdiction of our court is strictly defined by statute. Simms v. Warden, 229 Conn. 178, 181, 640 A.2d 601 (1994); Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 759-60, 628 A.2d 1303 (1993); Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993).

Our conclusion that the ten day time limitation of § 52-470 (b) is jurisdictional has much support. “[T]ime limitations on the right to appeal that are contained in statutes, rather than in provisions of the Practice Book, are subject matter jurisdictional. . . . The rationale for this ... is that our appellate subject matter jurisdiction is created by statute, and we have no power to enlarge or circumscribe it.” (Citations omitted.) Ambroise v. William Raveis Real Estate, Inc., supra 226 Conn. 763. The Supreme Court in Ambroise cites Iovieno v. Commissioner of Correction, supra, 222 Conn. 254, and refers to § 52-470 as one such statute that contains a time limitation that defines the subject matter jurisdiction of the court. Ambroise v. William Raveis Real Estate, Inc., supra, 763.

We note, however, that our Supreme Court in Iovieno did not explicitly state that the untimely petition deprived the habeas court of subject matter jurisdiction, but rather concluded that “the habeas court was correct in concluding that it had no discretion to consider an untimely petition for certification to appeal.” (Emphasis added.) Iovieno v. Commissioner of Correction, supra, 222 Conn. 258. Despite the difference in language, our courts have discerned no practical difference between a court’s having no subject matter jurisdiction and a court’s having no discretion.

In HUD/Barbour-Waverly v. Wilson, 235 Conn. 650, 668 A.2d 1309 (1995), the Supreme Court addressed whether the failure to file an appeal from a judgment of possession in a summary process eviction proceeding within five days as prescribed by General Statutes § 47a-35 deprived the court of subject matter jurisdiction. The court, relying on Ambroise, held that the statutory time limitations implicated subject matter jurisdiction. Id., 656. After citing Iovieno and stating that the “habeas court [has] no discretion to hear untimely appeals”; id., 657; the court concluded that “[t]he absolute nature of the legislative pronouncement regarding the ability to appeal a summary process judgment strongly suggests that compliance with its mandate is a necessary prerequisite to an appellate court’s subject matter jurisdiction.” (Emphasis added.) Id; see also State v. Southard, 191 Conn. 506, 508, 467 A.2d 920 (1983) (“court’s jurisdiction is limited by statute to appeals from final judgments . . . and accordingly we have no discretion to enlarge our jurisdiction in abrogation of the final judgment rule”). This court has similarly discerned no difference between a lack of jurisdiction and a lack of discretion. See Martone v. Martone, 28 Conn. App. 208, 217, 611 A.2d 896, cert. denied, 224 Conn. 909, 617 A.2d 166 (1992) (court had no jurisdiction and, therefore, no discretion to alter prior distribution of assets that had been subject of parties’ stipulation).

We conclude that the late filing of the petition for certification to appeal implicates the subject matter jurisdiction of the habeas court. As such, the habeas court, as a matter of law, did not have the authority to set a new ten day period.

The judgment is affirmed.

In this opinion LANDAU, J., concurred.

LAVERY, J.,

concurring. I agree with the majority that the judgment of the habeas court should be affirmed. I conclude that the habeas court correctly applied the Strickland analysis and would affirm the denial of habeas relief because habeas counsel’s incompetence did not prejudice the petitioner. I disagree with the majority’s conclusion that the habeas court did not have the authority to grant the requested relief and, therefore, write separately.

The petitioner in this case alleges that he is entitled to habeas corpus relief because his attorney failed to file in a timely manner a petition for certification to appeal from the judgment dismissing his first habeas corpus petition. The habeas court denied relief, finding that habeas counsel’s incompetence did not prejudice the petitioner in the manner defined by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The majority does not affirm the judgment of the trial court on the ground that the petitioner failed to prove prejudice under the Strickland analysis. The majority concludes that the late filing of the petition for certification to appeal implicates the subject matter jurisdiction of the habeas court, and, as such, the habeas court did not have the authority to set a new ten day period.

The issue raised by the majority is whether the habeas court, or this court, has the authority to grant the relief sought by the petitioner, namely, a new ten day period in which to file a petition for certification. The majority states that General Statutes § 52-470 (b) precludes this court from granting this relief because the failure to file the petition within ten days of the judgment of dismissal deprived the court of subject matter jurisdiction to grant a new ten day period.

In support of this proposition, the majority relies on Iovieno v. Commissioner of Correction, 222 Conn. 254, 608 A.2d 1174 (1992). In that decision, our Supreme Court held that under § 52-470 (b), a habeas court has no discretion to consider an untimely petition for certification to appeal. That court did not hold that reinstatement of the ten day period was not an available remedy under General Statutes § 52-470 (a) in a subsequent habeas proceeding based on ineffective assistance of habeas counsel. This case, therefore, is not controlled by the Supreme Court’s Iovieno decision. While I recognize that our cases hold that appellate subject matter jurisdiction is created by statute, and this court has no power to enlarge or circumscribe it; Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 763, 828 A.2d 1303 (1993); I disagree with the majority’s conclusion that § 52-470 (b) precludes this court from granting the requested relief because a new ten day period would enlarge appellate jurisdiction.

Under General Statutes § 52-470 (a), the habeas court has power to dispose of the case “as law and justice require.” “In the exercise of its power under § 52-470 to grant such relief ‘as law and justice require,’ the trial court, much like a court of equity, has considerable discretion to frame a remedy, so long as that remedy is commensurate with the scope of the constitutional violations which have been established.” Gaines v. Manson, 194 Conn. 510, 528, 481 A.2d 1084 (1984). For example, in cases in which a habeas court properly determines that a right of appeal required by the federal constitution has been denied, “any rule restricting an appeal merely because of lapse of time necessarily is ineffective to preclude an appeal in accordance with federal constitutional requirements.” Fredericks v. Reincke, 152 Conn. 501, 508, 208 A.2d 756 (1965). I believe that the same reasoning applies in a case involving the denial of the constitutional right to effective assistance of counsel, and mandates a similar conclusion with respect to § 52-470.

I conclude that the habeas court has the authority to grant the requested relief. I would affirm the judgment of the habeas court because it properly applied the Strickland analysis.

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be 1 aken unless the appellant, within ten days after the ease is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.” (Emphasis added.)

       Although the petitioner requested other forms of relief in his habeas corpus petition, the court ruled only on his request for a new ten day period to file a petition for certification to appeal. Because that is the only issue briefed on appeal, we need not decide whether some other relief would be appropriate where a petition for certification to appeal is filed after the expiration of the ten day period.

       Our courts have steadfastly embraced the Strickland analysis. See, e.g., Commissioner of Correction v. Rodriquez, 222 Conn. 469, 477, 610 A.2d 631 (1992); Bunkley v. Commissioner of Correction, 222 Conn. 444, 454-55, 610 A.2d 598 (1992).

       To satisfy the criteria established in Lozada, the habeas petitioner must demonstrate that “the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Lozada v. Deeds, supra, 498 U.S. 432; see also Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

       The concurrence relies on Fredericks v. Reincke, 152 Conn. 501, 508, 208 A.2d 756 (1965), for the proposition that where a right of appeal required by the federal constitution has been denied, “any rule restricting an appeal merely because of lapse of time necessarily is ineffective to preclude an appeal in accordance with federal constitutional requirements.” That case, however, was decided before the ten day time limitation was added to the statute in 1967.

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       General Statutes § 52-470 (a) provides: “The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require.”


author: FOTI, J.

text:
    VICTORIA E. TYC v. JOSEPH W. TYC
    (13968)
    Foü, Lavery and Heiman, Js.

      Argued January 10
    decision released March 12, 1996

      William J. Shea, for the appellant-appellee (defendant).

      Richard B. Grabow, for the appellee-appellant (plaintiff).
   FOTI, J.

The defendant appeals from a judgment of dissolution challenging the trial court’s distribution of marital property. The defendant claims that the trial court improperly awarded the plaintiff a share in his workers’ compensation specific indemnity award as part of the marital estate subj ect to assignment pursuant to General Statutes § 46b-81. In the alternative, the defendant claims that, if the award was proper as part of the marital estate, then the trial court improperly failed to consider the mandatory standards pursuant to § 46b-81 (c). The defendant also claims that if this specific indemnity award is assignable, then only that portion covering the period of the marriage is assignable. By way of cross appeal, the plaintiff claims that the trial court improperly (1) excluded future workers’ compensation benefits from the marital estate and (2) failed to include benefits awarded, but subject to appeal, or failed to award $1 per year periodic alimony in the event the benefits were properly excluded. The plaintiff also claims that the trial court improperly failed to award child support if the specific indemnity award is excludable from the marital estate. We affirm the judgment of the trial court on the appeal, but reverse on the cross appeal.

The parties were married in South America in 1981. Two minor children are the sole issue of the marriage. The marriage broke down primarily because of the excessive drinking and abusive behavior of the defendant. The plaintiffs income was minimal. The defendant suffered heart attacks in 1988 and 1992. The defendant, at the time of the dissolution, claimed that he had no means to support himself. The parties had accumulated no estate, and at the time of the dissolution the defendant had been given a workers’ compensation specific indemnity award for a 40 percent loss of heart muscle due to a work-related heart attack. The award was for 312 weeks at $596.96 per week. The court awarded custody of the two minor children to the plaintiff, and as part of the dissolution decree awarded the plaintiff a 40 percent share in the defendant’s award. The court declined to include in the marital estate any benefits from the workers’ compensation award that might result from an appeal, or for future benefits, concluding that the marital estate had to be determined as of the date of judgment.

THE APPEAL

We agree, as a matter of first impression, that the defendant’s specific indemnity award may properly be included as part of the marital estate and subject to assignment pursuant to § 46b-81. While the parties have proposed different approaches to determine whether all or any of a workers’ compensation award is property subject to a dissolution proceeding, we deem it unnecessary to discuss or to adopt any of the approaches, as we conclude that our statutory scheme is sufficient to permit such a determination.

Section 46b-81 (a) provides in pertinent part that in a dissolution action, the court “may assign to either the husband or wife all or any part of the estate of the other.” The estate, as referred to in the statute, “comprehends the aggregate of the property ... of each.” Schmidt v. Schmidt, 180 Conn. 184, 192, 429 A.2d 470 (1980); see North v. North, 183 Conn. 35, 39, 438 A.2d 807 (1981). The trial court found that the award to the defendant, at that time being held in escrow, was $102,369.76. The language of § 46b-81 is sufficiently broad to authorize the trial court to enter the order it did here, in that the award was part of the “estate” of the defendant and, as such, an asset to which the court could exercise its power of distribution. “A trial court is accorded wide discretion in determining the proper allocation of the assets of the parties in a dissolution proceeding.” Wolf v. Wolf, 39 Conn. App. 162, 164, 664 A.2d 315 (1995). In the exercise of its discretion, the court concluded that to exempt the total award would be unfair. Sitting as a court of equity, the trial court has broad discretion in determining the marital estate and in equitably distributing that property in compliance with § 46b-81. “In fixing the nature and value of the property ... to be assigned, the court . . . shall consider the length of the marriage, the causes for the . . . dissolution . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs . . . and the opportunity of each for future acquisition of capital assets and income. . . .” General Statutes § 46b-81 (c). “This approach to property division is commonly referred to as an ‘all-property’ equitable distribution scheme. ... It does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court’s broad allocative power.” (Citation omitted.) Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995). Our Supreme Court has given a broad interpretation to the term property and has construed it in a manner consistent with the purpose of our equitable distribution statute. Id., 795. We conclude that the trial court properly determined that the specific indemnity workers’ compensation award, as part of the marital estate, could be considered property within the ambit of § 46b-81.

The defendant alleges that the trial court did not consider the mandatory standards set forth in § 46b-81 in assigning a portion of that estate.

While the trial court is required to consider all the enumerated statutory factors, it need not give equal weight to each factor or recite the statutory criteria that it considered or make express findings as to each. Siracusa v. Siracusa, 30 Conn. App. 560, 567, 621 A.2d 309 (1993). Our review of the record reveals that the trial court considered all of the required factors including the length of the marriage, the cause of the breakdown, the parties’ employment history, occupations, income and the opportunity for each to acquire future assets and income. The court also considered the general health and contribution of each to the marital estate. The memorandum of decision reflects a proper consideration and weighing of the factors as set forth in the statute. Miller v. Miller, 22 Conn. App. 310, 314, 577 A.2d 297 (1990).

THE CROSS APPEAL

The plaintiff alleges on her cross appeal that the trial court improperly excluded future workers’ compensation benefits from the marital estate. We agree.

The trial court found that the plaintiff was entitled to a share in the defendant’s estate consisting of the moneys that were being held in escrow, plus the balance due on the specific award. The court awarded the plaintiff 40 percent of both the escrow held and the amount to be received as the balance due. The court noted that the amount of the award was challenged on appeal by the defendant and that “[i]t is speculative as to whether the appeal will be successful. If it is, the award would have to be increased postjudgment and, therefore, will not be considered by the court; for the purpose of the lump sum alimony award, the marital estate being determined as of the date of judgment.”

“The terms ‘estate’ and ‘property,’ as used in the statute, connote presently existing interests. ‘Property’ entails ‘interests that a person has already acquired in specific benefits.’ Board of Regents v. Roth, 408 U.S. 564, 576, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972) . . . .” (Citation omitted.) Rubin v. Rubin, 204 Conn. 224, 230-31, 527 A.2d 1184 (1987). The issue is whether future benefits paid under a claim, filed pursuant to General Statutes § 31-308a, are an existing interest includable as part of the marital estate. We agree they are such an existing interest.

In failing to consider the defendant’s § 31-308a claim as part of the marital estate, the court excluded a significant unliquidated award, the defendant’s recovery for loss of earning capacity. The exclusion of the § 31-308a claim is contrary to the purpose of § 46b-81, which requires an equitable distribution. A claim under § 31-308a is susceptible to valuation and is not a mere expectancy. Expectancy describes the interest of a person who merely foresees that he might receive a future benefit; the defining characteristic of an expectancy is that its holder has no enforceable right to his benefit. Krafick v. Krafick, supra, 234 Conn. 797.

While a claim under § 31-308a is separate and distinct from specific indemnity benefits awarded pursuant to General Statutes § 31-308, and while § 31-308a benefits are not available until specific indemnity benefits are exhausted, such benefits constitute a presently existing interest. We do not agree with the defendant’s argument that “property” entails only interests that a person has already acquired in specific benefits. As our Supreme Court has recently stated in construing § 46b-81, property is defined “as the term ‘commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate. It extends to every species of valuable right and interest, and includes real and personal property, easements, franchises, and incorporeal hereditaments.’ ” Id., 794.

The trial court also excluded from its consideration any benefits awarded or confirmed on appeal as speculative. For the reasons discussed previously, we conclude that such benefits are a presently existing interest subject to distribution. This property interest was not a mere expectancy and should not have been removed from consideration in determining an equitable division.

Because we conclude that the court’s marital property distribution orders were improper in part, it is necessary to remand the case for reconsideration of all the financial matters. The orders are interwoven and constitute a “ ‘carefully crafted mosaic’ ”; Michel v. Michel, 31 Conn. App. 338, 341, 624 A.2d 914 (1993); “[w]hen we disrupt a single tile in this mosaic, we place in doubt the propriety of other financial orders that the trial court may have deemed equitable in relation to the entire distribution scheme.” Wolf v. Wolf, supra, 39 Conn. App. 174.

The judgment is affirmed as to the dissolution of the marriage and the orders granting custody of the minor children and rights of visitation; the judgment is reversed on the cross appeal as to all financial matters and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The award was approximately $183,000.

       The different approaches are termed mechanistic, unitary, analytic and case-by-case.

       Property distributions, unlike alimony awards, cannot be modified to alleviate hardships that may result from enforcement of the original decree. Rubin v. Rubin, 204 Conn. 224, 232, 527 A.2d 1184 (1987).

       General Statutes § 31-308a provides: “(a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the weekly amount which such employee will probably be able to earn thereafter, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner, but in no event shall the duration of such additional compensation exceed the lesser of (1) the duration of the employee’s permanent partial disability benefits, or (2) five hundred twenty weeks. Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.
      “(b) Notwithstanding the provisions of subsection (a) of this section, additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation.”

       At the time of the dissolution proceeding the defendant had not received an award for the statutory benefit under § 31-308a, although the basis for such a claim had been established.


author: LANDAU, J.

text:
    WILLIAM F. DRAPER v. JANE R. DRAPER
    (12963)
    O’Connell, Landau and Spear, Js.
    Argued November 28, 1995
    decision released March 12, 1996

      Gaetano Ferro, for the appellant (defendant).

      C. Ian McLachlan, with whom, on the brief, were William H. Narwold and Laura W. Ray, for the appel-lee (plaintiff).

      Elaine S. Amendola, for the minor children.
   LANDAU, J.

This appeal arises from an action for the dissolution of marriage. On April 12, 1991, the parties stipulated, pursuant to General Statutes § 46b-51, that their marriage had broken down irretrievably and requested a dissolution. The parties submitted a lengthy and comprehensive written separation agreement that covered, inter alia, alimony, child support and counsel fees. On April 12, 1991, the marriage was dissolved and the agreement, which gave the defendant custody of the parties’ two children, was approved as an order of the court.

On October 1, 1991, the defendant began living with a man. They were married on July 4, 1992, thereby terminating the defendant’s alimony in accordance with the separation agreement. On July 15, 1992, the defendant filed a motion for child support, prospective and retroactive to the date of her remarriage. She also filed a motion for counsel fees in connection with a motion filed by the plaintiff on August 5, 1992, seeking sole custody of the parties’ two children. On July 13, 1993, the plaintiff filed a motion that sought a finding that the defendant’s cohabitation began on October 1, 1991, and an order terminating alimony as of that date, rather than the date of the defendant’s remarriage. On July 9, 1993, the parties entered into a written stipulation, which was approved and made a court order on that date, providing that the parties would continue to have joint legal custody of their two children who would then have their principal residence with the plaintiff, subject to specific visitation rights of the defendant.

In October, 1993, the trial court, after hearing argument, ruled on the parties’ motions and on two additional motions for counsel fees that had been filed by both counsel for the minor children. The trial court awarded child support to the defendant in the amount of $400 per week, but only for the period from October 1,1991, through August 20,1992; denied the defendant’s request for attorney’s fees; ordered each party to pay one half of the balance due counsel for the minor children; and upon finding that the defendant had commenced “living together” with a man on October 1, 1991, the trial court terminated alimony as of that date.

In her appeal, the defendant claims that the trial court improperly (1) determined child support in that it failed to consider the child support guidelines, failed to calculate the child support payable under the guidelines, and deviated from the guidelines without making the finding required for deviation, (2) granted the plaintiffs motion for a finding regarding cohabitation, and (3) awarded attorney’s fees. We affirm the judgment of the trial court.

I

A

The defendant first claims that the trial court improperly awarded less than the presumptive minimum amount of child support under the guidelines of $504 weekly for the period of October 1, 1991, the date on which the defendant began cohabitation, through August 20, 1992, the date on which the plaintiff was awarded temporary custody. She further argues that the court improperly failed to award current child support for the period after August 20, 1992. Because we conclude that the trial court properly found that this was not a guidelines case, we reject the defendant’s claims.

General Statutes § 46b-215b does not “require the trial courts to apply the Guidelines to all determinations of child support, but creates only a rebuttable presumption as to the amount of child support. It requires only that the trial court consider the Guidelines. Moreover, the Guidelines do not contain provisions for disposable incomes in excess of $750.” (Emphasis in original.) Battersby v. Battersby, 218 Conn. 467, 469-70, 590 A.2d 427 (1991).

The record reveals that the plaintiffs income far exceeded the upper income limit of $1500 in the guidelines. We also note that the defendant agreed with the trial court that this case was not a guidelines case. On July 21, 1993, at the hearing on the motions, the court asked, “Everybody agree it’s not a guidelines case, right?” Counsel for the defendant replied, “We’re way outside the guidelines for any number of reasons.” Nevertheless, the defendant asserts that the trial court should have awarded her the “presumptive minimum” amount of $504 per week based on the upper income limit of $1500 under the guidelines for the period of October 1, 1991, through August 20, 1992. She further claims that the court failed to make a specific finding on the record of the amount of child support required by the guidelines before deciding whether and to what extent, the award should deviate therefrom as mandated by Favrow v. Vargas, 231 Conn. 1, 25-29, 647 A.2d 731 (1994).

We first note that the defendant’s reliance on Favrow is misplaced. Favrow’s requirement that a specific finding of the amount of support required by the child support guidelines must be made on the record was not established until 1994, when that case was decided. The present case preceded Favrow, and we will not apply Favrow retroactively in these circumstances. Moreover, the defendant not only failed to dispute the trial court’s finding that this case was not an appropriate case for the guidelines, she also expressly agreed, on the record, with the trial court. Where the trial court and all the parties agree to try a case on a particular theory or principle of law, we will not permit a party to “ambush” the trial court on appeal. See, e.g., Suffield Bank v. Berman, 228 Conn. 766, 785, 639 A.2d 1033 (1994); State v. Dennison, 220 Conn. 652, 657, 600 A.2d 1343 (1991); State v. King, 216 Conn. 585, 590, 583 A.2d 896 (1990).

B

The defendant further asserts that she was entitled to receive child support for the period after August 20, 1992, despite the fact that as of that date she became the noncustodial parent. She argues that the court improperly failed to award support because the parties had agreed she should receive child support and prior to its ruling, the court had encouraged them to reach a settlement. Because the parties failed to reach a settlement on their own, she continues, the only issue for the court to decide was the amount.

While it is a fundamental policy of our courts to promote settlement by agreement where possible in dissolution cases; Jenks v. Jenks, 34 Conn. App. 462, 468-70, 642 A.2d 31 (1994), rev’d on other grounds, 232 Conn. 750, 657 A.2d 1107 (1995); a trial court’s comments and efforts to promote negotiations are no more binding on the court than they are on the parties. Moreover, the defendant has failed to provide any authority to support her claim that the trial court was mandated to award child support to her as a noncustodial parent.

II

In her second claim, the defendant asserts that the trial court improperly construed the parties’ separation agreement. She claims that she is entitled to alimony from October 1, 1991, through July 4, 1992, because the plaintiff did not file his motion seeking to terminate alimony until after her remarriage. She argues that the court misinterpreted the agreement’s definition of cohabitation because the trial court made cohabitation a condition that automatically terminated alimony despite a provision in the agreement to the contrary. The trial court, she continues, should have taken the definition of cohabitation, as defined by the parties in paragraph 4.10 of the agreement, to mean that alimony will terminate as of the date the Superior Court declares that the parties are “living together.”

“A trial court’s construction of a separation agreement is an issue of fact subject to review under the limited standard of whether it is clearly erroneous. . . . The action of the trial court will not be disturbed unless it abused its legal discretion in making its determination.” (Citation omitted.) Albrecht v. Albrecht, 19 Conn. App. 146, 159, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989). Here, the separation agreement provides for termination of alimony upon death, remarriage, cohabitation or July 31, 2001, “whichever event shall first occur. ” (Emphasis added.) That the parties defined “cohabitation” so as to avoid any ambiguity does not make the termination provision any less enforceable upon a determination by the trial court of cohabitation. Moreover, the fact that the plaintiff was permitted to “seek a modification” to enforce his right to have his alimony obligation terminated does not mean that the separation agreement itself did not provide for termination upon cohabitation.

We conclude that the parties agreed, in the separation agreement, that the trial court would decide whether and when the defendant was “cohabitating”; they also agreed that alimony would terminate automatically when the defendant began cohabitating.

Ill

Finally, the defendant claims that, because the plaintiffs income is substantially larger than hers, the trial court improperly exercised its discretion in denying her motion for counsel fees and ordering both parties to pay one half of the outstanding fees of counsel for the minor children.

“Courts ordinarily award counsel fees in divorce cases so that a party (usually the wife) may not be deprived of her rights because of lack of funds.” (Internal quotation marks omitted.) Febbroriello v. Febbror-iello, 21 Conn. App. 200, 204-205, 572 A.2d 1032 (1990). The trial court’s decision, however, to award such fees is a matter of discretion. Petro v. Petro, 31 Conn. App. 582, 583, 626 A.2d 791 (1993); Febbroriello v. Febbror-iello, supra, 204. Counsel fees are not to be awarded merely because the potential obligor has the financial ability to pay. Koizim v. Koizim, 181 Conn. 492, 500-501, 435 A.2d 1030 (1980). If the trial court determines that “both parties are financially able to pay their own counsel fees, they should be permitted to do so.” Id., 501. Moreover, an award of counsel fees is not justified when the potential obligee has ample liquid funds. Miller v. Miller, 16 Conn. App. 412, 418-19, 547 A.2d 922, cert. denied, 209 Conn. 823, 552 A.2d 430 (1988).

A careful reading of the record clearly shows that the trial court properly exercised its discretion. The trial court specifically found that the defendant “had the ability to pay, and did pay [her counsel] $98,000 and [attorneys for the minor children] $3000.” The court also found that each party had the ability to pay one half of the outstanding fees owed to the children’s counsel. We conclude on the basis of the total financial resources of the parties that the court, in denying the defendant’s request for counsel fees, did not undermine its prior financial orders. Fitzgerald, v. Fitzgerald, 190 Conn. 26, 34, 459 A.2d 498 (1983).

The judgment is affirmed.

In this opinion the other judges concurred.

       The guidelines in effect when the trial court in Battersby made its ruling did not cover weekly incomes in excess of $750. The guidelines have since been updated, effective March 1, 1991, to cover net weekly incomes up to $1500. The 1991 guidelines provide that they do “not apply where the combined net weekly family income exceeds $1,500.”

       Because the parties agreed that this was not a guidelines case, the amount of support under the guidelines was not at issue. It was not necessary, therefore, for the trial court to make a determination of the guidelines support level.

       The separation agreement, provides in pertinent part: “4.1 Commencing as of the first day of April, 1991, the Husband shall pay to the Wife, during his lifetime, until her death, remarriage, cohabitation, as defined herein, or July 31, 2001, whichever event shall first occur, the following sums as alimony ....
      “4.10 . . . The Husband shall be permitted to seek a modification in the event of the cohabitation of the Wife .... For the purposes hereof, cohabitation shall be defined to mean that the Wife has entered into and maintained a relationship including cohabitation with a man under such circumstances and conditions, and over a period of at least three (3) months in any twelve (12) month period, so that the Superior Court of Connecticut concludes that the Wife and Said man are ‘living together’ . . .

       The defendant seeks a determination by this court of whether she was cohabitating within the meaning of General Statutes § 46b-86 (b). We decline to do so because this statute was not incorporated into the parties’ separation agreement and the cases cited by her are, therefore, inapposite.


author: LANDAU, J. FOTI, J.,

text:
    JAMES BARRY v. POSI-SEAL INTERNATIONAL, INC.
    (12101)
    Foti, Landau and Spear, Js.

      Submitted on briefs November 6, 1995
    decision released March 12, 1996

      Mark R. Kravitz and Ian E. Bjorkman filed a brief for the appellant-appellee (defendant).

      Thomas B. Wilson, Harry E. Calmar, Matthew E. Auger, Hinda K. Kimmel and Susan M. Phillips filed a brief for the appellee-appellant (plaintiff).
   LANDAU, J.

This matter is currently before us on remand from our Supreme Court. Barry v. Posi-Seal International, Inc., 235 Conn. 901, 664 A.2d 1124 (1995). In this appeal, the defendant claims that the trial court improperly denied the defendant’s motions for judgment, notwithstanding the verdict, for a new trial and for remittitur in that (1) there was insufficient evidence to support the plaintiffs front pay damage award, and (2) there was insufficient evidence to support the plaintiffs punitive damage award. In the cross appeal, the plaintiff claims that the trial court improperly reduced his punitive damage award.

The relevant facts regarding the plaintiffs employment history at Posi-Seal and events leading to his termination are included in our original opinion. Barry v. Posi-Seal International, Inc., 36 Conn. App. 1, 3, 647 A.2d 1031 (1994), remanded for further consideration, 235 Conn. 901, 664 A.2d 1124 (1995).

I

FRONT PAY AWARD

The defendant claims that there was insufficient evidence adduced at trial to support the front pay damage award. He argues that the evidence failed to establish that the plaintiff had an expectation of future employment at Posi-Seal, and that the plaintiff failed to prove any actual loss of future earnings because he gained comparable employment following his termination, thereby mitigating any actual damages. In the alternative, the defendant argues that if front pay damages did exist, the evidence was insufficient to support the jury’s award of $271,775. He argues that this amount was speculative and excessive because there was little or no evidence to guide the jury in its calculations.

The following additional facts are relevant to this claim. The plaintiff had been employed by the defendant for more than ten years, and was earning an hourly wage of $11.55 when he was terminated. If he had remained employed at Posi-Seal and received all possible raises, he would have been earning an hourly wage of $13.80 at the time of the trial. Although the plaintiff had considerable seniority at Posi-Seal, his continued employment there was uncertain because Posi-Seal reduced its workforce through layoffs after the plaintiff was fired. Following his discharge in August, 1988, the plaintiff worked for a contractor, except for four months, until January, 1991. He then began working at the Electric Boat Division of General Dynamics Corporation (Electric Boat) where he was earning $14.21 per hour at the time of the trial.

“Evidence is sufficient to sustain a verdict where it induces in the mind of the [trier] that it is more probable than otherwise that the fact in issue is true. . . . It is the province of the trier of fact to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. ... In analyzing a sufficiency of the evidence claim, the test that we employ is whether, on the basis of the evidence before the jury, a reasonable and properly motivated jury could return the verdict that it did. ...” (Citations omitted; internal quotation marks omitted.) Baker v. Cordisco, 37 Conn. App. 515, 528, 657 A.2d 230, cert. denied, 232 Conn. 907, 659 A.2d 1207 (1995).

“The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed. ... It has traditionally been held that a party may recover general contract damages for any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself. . . . Thus, [t]he normal rule of 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.” (Citations omitted; internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., supra, 234 Conn. 32-33. Damages for future lost wages “can be awarded in actions for breach of an implied contract of employment, as long as they are limited to a reasonable time and are supported by the evidence.” Id., 33-34.

We have already set out in detail the facts that the jury could reasonably have found. The issue that remains to be determined is whether the jury could reasonably have concluded, on the basis of the evidence before it, that the damage attributed to future wage loss-impairment of earning capacity amounted to $271,775. The plaintiff 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.” Barry v. Posi-Seal International, Inc., supra, 36 Conn. App. 28 (Foti, J., dissenting).

“Assessment of damages is peculiarly within the province of the jury and their determination should be set aside only when the verdict is plainly excessive and exorbitant. . . . The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, mistake or corruption. . . . Evidence offered at trial relevant to damages must be reviewed in the light most favorable to sustaining the verdict. . . . Every reasonable presumption in favor of the correctness of the court’s refusal to set aside the verdict as excessive should be indulged . . . and its ruling will not be disturbed unless there is a clear abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Schnabel v. Tyler, 32 Conn. App. 704, 715-16, 630 A.2d 1361 (1993), aff'd, 230 Conn. 735, 646 A.2d 152 (1994). “The size of the verdict alone does not determine whether it is excessive.” (Internal quotation marks omitted.) Id., 721.

After a thorough review of the record, we conclude that the award is not supported by the evidence and shocks the sense of justice. The jury awarded damages of $271,775 to the plaintiff for future wage loss-impairment of earning capacity despite the fact that the plaintiff called no witness to testify as to the impairment of his earning capacity. To the contrary, the only evidence in the record regarding his earning capacity was that he earned more money per hour working at Electric Boat at the same type of job than he would have earned at Posi-Seal. Although there were rumors of layoffs at Electric Boat, the plaintiff failed to call any witnesses to testify regarding his job security, or any other matter related to his employment there. At both Posi-Seal and Electric Boat, the plaintiff had insurance benefits and received employer contributions into a pension fund, but he did not call any witness to testify as to the comparative value of the medical, dental, life insurance and pension benefits he received at Posi-Seal and at Electric Boat.

The plaintiff testified that compared to Posi-Seal, he was entitled to less vacation time and no sick pay at Electric Boat. He also testified that, at the time of trial, he could not work the day shift at Electric Boat as he had at Posi-Seal. There was no testimony, however, as to the value of such differences. We conclude that the evidence presented was insufficient to support any award of damages for future wage loss-impairment of earning capacity, and the front pay award must, therefore, be set aside.

II

PUNITIVE DAMAGES

The defendant next claims that the trial court improperly failed to grant its motion notwithstanding the verdict as to the punitive damages award. The plaintiff, in his cross appeal, claims that the trial court improperly reduced the punitive damages award on remittitur. The following additional facts are relevant to these claims. The trial court instructed the jury that punitive damages may be awarded only for malicious and outrageous conduct, that is, actions done with a bad motive or reckless indifference to the interest of others. It further instructed the jury that the amount to be awarded as punitive damages, if any, should be reasonable attorney’s fees incurred by the plaintiff. The jury returned a verdict for the plaintiff, awarding him punitive damages of $50,000. After the verdict, the court granted the defendant’s motion for a remittitur, and reduced the punitive damages award to $42,017, an amountthe court found was equal to the plaintiffs attorney’s fees. The plaintiff accepted the remittitur.

We agree with the defendant’s claim that the punitive damages award cannot stand in the absence of a verdict in the plaintiffs favor on a cause of action sounding in tort. “Punitive damages are not ordinarily recoverable for breach of contract. Restatement, 1 Contracts § 342; 5 Corbin, Contracts § 1077; McCormick, Damages § 81. This is so because, as lucidly explained by Professor Corbin in the passage cited, punitive or exemplary damages are assessed by way of punishment, and the motivating basis does not usually arise as a result of the ordinary private contract relationship.” L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 47-48, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986).

In Connecticut, punitive damages are rarely allowed for breach of contract. The single reported case in which an award of punitive damages for breach of contract was upheld is L. F. Pace & Sons, Inc., a case in which the plaintiff was damaged by the defendant’s breach of its implied contract to issue certain surety bonds. Id., 30. In making that decision, we found instructive the California precedent set out in Grand Sheet Metal Products Co. v. Protection Mutual Ins. Co., 34 Conn. Sup. 46, 375 A.2d 428 (1977), another case in which the plaintiff claimed injury due to an insurer’s failure to perform its obligations under a contract.

In both L. F. Pace & Sons, Inc., and Grand Sheet Metal Products Co., the principles articulated in Gruenberg v. Aetna Ins. Co., 9 Cal. 3d 566, 510 P.2d 1032, 108 Cal. Rptr. 480 (1973), were cited as support for the holding that breach of contract founded on tortious contract may allow the award of punitive damages. In the present case, the plaintiff asks us to extend the allowance of punitive damages for tortious breach of contract from the area of insurance to the termination of employment.

The California courts have previously considered this question. In Foley v. Interactive Data Corp., 47 Cal. 3d 654, 765 P.2d 373, 254 Cal. Rptr. 211 (1988), the California Supreme Court overruled a line of California Court of Appeals cases holding that punitive damages could be recovered for a bad faith breach of the implied covenant of good faith and fair dealing in an employment contract. In a detailed and comprehensive analysis, the California Supreme Court reviewed the scholarly commentary on this subject and undertook an examination of policy considerations. It set out the policy considerations behind the allowance of punitive damages for breach of the implied covenant in the insurance context and compared these with the policy considerations that attend the employer-employee relationship. Acknowledging that the insurer and the insured and the employer and the employee enjoy a “special relationship,” the California Supreme Court, largely on the basis of the economic differences between the two relationships, was “not convinced that a ‘special relationship’ analogous to that between insurer and insured should be deemed to exist in the usual employment relationship.” Id., 692. The court, therefore, found that damages allowable for breach of the covenant in insurance contracts were not necessarily appropriate in actions for breach of the covenant in employment termination, and it ultimately concluded that the judicial extension of the proposed tort remedies into the employment context was not warranted in view of the traditional separation of tort and contract and the numerous protections against improper terminations already afforded employees.

We find the reasoning in Foley persuasive. In particular, we agree with the California Supreme Court that the role of an employer with respect to its employee differs from the role of a “quasi-public” insurance company with respect to the customer to whom it sells protection from harm. The employer does not sell protection to its employee in the same way that an insurer sells protection. Instead, the financial security sought by an employee from the employer is not so very different from the financial security sought by one who enters into an ordinary commercial contract. Just as breach of an employment contract can have financial significance for an employee, so, too, breach of an ordinary commercial contract can have vital financial significance to the owner of a business that is dependent on a supplier’s goods. We acknowledge that the owner of a business is in a better position than is an employee to bargain each term of the contract, but we cannot say that the difference is so significant that punitive damages should be available as compensation for the breach of one agreement and not for breach of the other.

Furthermore, there is a fundamental distinction between insurance and employment relationships. The interests of the insurer and insured are at odds, payment of a claim benefits the insured and diminishes the resources of the insurer. By contrast, the employer and employee, generally speaking, share the goal of the employer’s retaining in its employ good productive workers. It is not in the employer’s interest to discharge an employee without cause; if the job must be done, the employer still must pay someone to do it. “This is not to say that there may never be a ‘bad motive’ for discharge not otherwise covered by law. Nevertheless, in terms of abstract employment relationships as contrasted with abstract insurance relationships, there is less inherent relevant tension between the interests of employers and employees than exists between that of insurers and insureds. Thus the need to place disincentives on an employer’s conduct in addition to those already imposed by law simply does not rise to the same level as that created by the conflicting interests at stake in the insurance context.” Foley v. Interactive Data Corp., supra, 47 Cal. 3d 693.

Consequently, we hold that, at least where there is no allegation or proof that the termination of employment is violative of an important public policy, punitive damages cannot be recovered on a claim that a termination constituted a breach of the implied covenant of good faith and fair dealing contained in an employment contract.

In light of our holding, there is no need to address the plaintiffs claim that the trial court should not have ordered a remittitur with regard to the punitive damages award.

Finally, the defendant has asked us to reconsider on remand the disposition in our original decision ordering a new trial on both liability and damages. We ordered supplemental briefs from the parties on this issue, and we now conclude that a new trial is not necessary. As we originally noted, generally the issues of liability and damages are so interwoven that they may not be separated without injustice to one of the parties and, therefore, if a remand is ordered, the order restricting the issues to be retried is the exception and not the rule. Fazio v. Brown, 209 Conn. 450, 455, 551 A.2d 1227 (1988). In this case at this juncture, however, we see no reason to order a retrial. The surviving damage award is for back pay only, due to the breach of the implied contract of employment. Neither the defendant nor the plaintiff raised any claim on appeal that the amount awarded for back pay was inappropriate, and there is no evidence in this case that the jury’s award was a compromise verdict; compare Murray v. Krenz, 94 Conn. 503, 508-509, 109 A. 859 (1920); or that the jury was in any way confused over the concepts of liability and damages. Compare Malmberg v. Lopez, 208 Conn. 675, 683, 546 A.2d 264 (1988).

Furthermore, the damage awards that have been set aside, i.e., damages for future lost wages and punitive damages, were clearly separable from the surviving back pay award. The future lost wages award was based on a different time period, and the punitive damages were based on the amount of attorney’s fees. Damage awards that were separable from other damages have been set aside without requiring a new hearing in damages. See, e.g., Kenny v. Civil Service Commission, 197 Conn. 270, 496 A.2d 956 (1985) (back pay award set aside and award for future lost wages reduced; judgment directed in amount of remaining damages); Lembo v. Schlesinger, 15 Conn. App. 150, 543 A.2d 780 (1988) (punitive damage award set aside and judgment directed in amount of compensatory damages only).

Under the circumstances of this case, we do not think further proceedings in the trial court would serve the interests of justice.

The judgment is reversed with respect to the award of damages for future lost wages and the award of punitive damages, and the case is remanded to the trial court with direction to render judgment for the plaintiff in the amount of $52,275.

In this opinion SPEAR, J., concurred.

FOTI, J.,

concurring. I remain persuaded that there was insufficient evidence to find an implied contract of employment. See Barry v. Posi-Seal International, Inc., 36 Conn. App. 1, 22-28, 647 A.2d 1031 (1994) (Foli, J., dissenting), remanded for further consideration, 235 Conn. 901, 664 A.2d 424 (1995). Because this issue was not addressed by our Supreme Court, our majority opinion on this issue remains the law of the case. I, therefore, concur in this decision.

       Petitions for certification were filed by the plaintiff and the defendant and denied on December 12, 1994. Barry v. Posi-Seal International, Inc., 231 Conn. 942, 653 A.2d 822 (1994). After the Supreme Court ruling in Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 33-34, 662 A.2d 89 (1995), holding that loss of future wages, or “front pay,” can be awarded in an action for breach of an employment contract, the court reconsidered and, on July 26, 1995, granted the plaintiffs petition for certification and remanded the matter to this court “for further consideration in light of this court’s decision in Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., [supra, 1].” Barry v. Posi-Seal International, Inc., 235 Conn. 901, 664 A.2d 1124 (1995).

       In light of the Supreme Court’s remand in Torosyan, we do not address the defendant’s claim as to the existence of an employment contract.

       The record is devoid of any testimony concerning the plaintiffs wages during this period of time.

       In his brief, the plaintiff suggests the jury found several facts as to his employment based on the testimony presented to them. A reading of the record fails to show this. Moreover, as to these facts, there is an absence of citations to testimony that would direct us. See Practice Book § 4066 (c).

       Even if we were to find the differences that the plaintiff claims between the two companies’ pension plans could be quantified, he has already received any such differences as part of his back pay award, set out in the jury’s interrogatories. The jury was specifically instructed by the trial court to include in Barry’s back pay award “any future pension loss you may find he has sustained.”
      The jury awarded the plaintiff the following damages: $52,275 back pay, $271,775 future wage loss, $42,315 infliction of emotional distress and negligent misrepresentation, and $50,000 punitive damages.

       The jury returned a verdict in the plaintiffs favor on the counts sounding in intentional infliction of emotional distress and negligent misrepresentation. In our earlier opinion in this case, we held that the trial court correctly set aside the verdict on these counts. Barry v. Posi-Seal International, Inc., supra, 36 Conn App. 1.

       In Grand Sheet Metal Products Co. v. Protection Mutual Ins. Co., supra, 34 Conn. Sup. 46, the Superior Court overruled a demurrer to the plaintiffs cause of action for tortious breach of the covenant of good faith and fair dealing that is implied in an insurance contract. We leave for another day the question of whether a separate cause of action, in tort or in contract, ever lies for the breach of an implied covenant of good faith and fair dealing, absent a claim that the breach constitutes a violation of public policy. Cf. Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984) (at-will employee has cause of action in contract for violation of covenant of good faith and fair dealing when termination claimed to be in violation of public policy). No claim of a violation of public policy was made in the present case.

       We note that the California Supreme Court has recently acknowledged the continued validity of Foley v. Interactive Data Corp., supra, 47 Cal. 3d 654, in Nedlloyd Lines B. V. v. Superior Court, 3 Cal. 4th 459, 485, 834 P.2d 1148, 11 Cal. Rptr. 2d 330 (1992).

       In this state such protections include, among other things, statutory prohibitions against discharge of employees who report an employer’s illegal activities; General Statutes § 31-51m; discharge due to an employee’s exercise of first amendment rights as long as the exercise of the rights does not interfere with the employee’s work; General Statutes § 31-51q; discharge for exercise of rights under the Workers’ Compensation Act; General Statutes § 31-290a; discharge for filing a complaint under the Connecticut Occupational Safety and Health Act; General Statutes § 31-379; and discharge of an employee based on the employee’s status as a member of certain protected classes. General Statutes § 46a-60 et seq.

       See, e.g., the statutes referred to in footnote 9.

       Cf. Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984); Battista v. United Illuminating Co., 10 Conn. App. 486, 523 A.2d 1356, cert. denied, 204 Conn. 803, 525 A.2d 1352 (1987), both cases where the employee, unlike the employee here, was an employee at will.

       We are mindful of the Supreme Court’s decision in Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 222 A.2d 220 (1966). In that case, which did not involve termination of employment, the Supreme Court acknowledged the evolving law of contract damages that allows recovery of punitive damages if the breach of contract has elements that bring it within the field of tort. The Supreme Court did not uphold the damage award in that case, however, and, as discussed in the text, the principles announced in Triangle Sheet Metal Works, Inc., have been followed only in regards to insurance.