text:
    State of Connecticut v. Eric Jones
    (12664)
    Freedman, Schaller and Spear, Js.

      Argued April 25
    decision released September 6, 1994

      Michael A. Fitzpatrick, special public defender, with whom, on the brief, was Jill M. McGoldrick, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, was Mary M. Galvin, state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the second degree in violation of General Statutes § 53a-135 (a) (l), and of conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-48 and 53a-135 (a) (1). The defendant was charged in a substitute information with robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (3). The trial court instructed the jury on these charges, as well as robbery in the second degree and conspiracy to commit robbery in the second degree as lesser included offenses. The jury acquitted the defendant of the charges of robbery in the first degree and conspiracy to commit robbery in the first degree.

The defendant claims that the trial court improperly (1) charged the jury on robbery in the second degree and conspiracy to commit robbery in the second degree as lesser included offenses, (2) failed to charge the jury on robbery in the third degree in violation of General Statutes § 53a-136 and on conspiracy to commit robbery in the third degree in violation of General Statutes §§ 53a-48 and 53a-136, as lesser included offenses, and (3) determined that Wharton’s rule does not bar convictions of both robbery in the second degree and conspiracy to commit robbery in the second degree. We reverse the judgment of the trial court on the first claim.

The jury reasonably could have found the following facts. On the evening of October 30,1991, James Frate met the defendant and Alex Nieves in a parking lot in West Haven and discussed stealing a pocketbook. Frate drove the defendant and Nieves in a white 1988 Chrysler New Yorker to a driveway on Claudia Drive. At approximately 11:30 p.m., the defendant and Nieves left the vehicle, walked up a hill to the nearby Denny’s Restaurant on Saw Mill Road and positioned themselves opposite one another in the parking lot. After about five minutes, the victim exited the restaurant. As she walked to her car, the defendant and Nieves approached her from opposite directions. The defendant pushed the victim to the ground and grabbed her pocketbook. The victim then reentered the restaurant and called the police.

The two men fled and Frate saw them running down the hill. The defendant and Nieves entered the vehicle and told Frate to drive. Charles Hoey, who witnessed the incident from his car as he was stopped at a traffic light near the restaurant, followed the vehicle driven by Frate. Before losing sight of it, Hoey wrote down the license plate number. He later informed the police of that number.

I

The defendant contends that the trial court improperly instructed the jury that robbery in the second degree pursuant to § 53a-135 (a) (1) and conspiracy to commit robbery in the second degree pursuant to §§ 53a-48 and 53a-135 (a) (1) are lesser included offenses of robbery in the first degree pursuant to § 53a-134 (a) (3) and conspiracy to commit robbery in the first degree pursuant to §§ 53a-48 and 53a-134 (a) (3) as set forth in the information. As a result, the defendant alleges that he lacked notice of the second degree charges in violation of the sixth amendment to the United States constitution. Whether robbery in the second degree in violation of § 53a-135 (a) (1) and conspiracy to commit robbery in the second degree in violation of §§ 53a-48 and 53a-135 (a) (1) can be lesser included offenses of robbery in the first degree in violation of § 53a-134 (a) (3) and conspiracy to commit robbery in the first degree in violation of §§ 53a-48 and 53a-134 has not previously been explored by our appellate courts.

“When examining a claim of insufficient notice of a lesser included offense, we are limited to an examination of the charging documents, and do not examine the evidence presented at trial. State v. Jacobowitz, 182 Conn. 585, 593, 438 A.2d 792 (1981); State v. Kitt, [8 Conn. App. 478, 487, 513 A.2d 731 (1986), cert. denied, 202 Conn. 801, 518 A.2d 648 (1987).]” State v. Hudson, 14 Conn. App. 472, 476, 541 A.2d 539 (1988). “ ‘The test for determining whether one crime is a lesser included offense of another crime is whether it is possible to commit the greater offense in the manner described in the information or bill of particulars without having first committed the lesser.’ State v. Hodge, 201 Conn. 379, 385, 517 A.2d 621 (1986); State v. Whistnant, [179 Conn. 576, 584, 427 A.2d 414 (1980)].” State v. Falcon, 26 Conn. App. 259, 264, 600 A.2d 1364, cert. denied, 211 Conn. 911, 602 A.2d 10 (1992). Because no bill of particulars was requested or filed, the inquiry is restricted to the wording of the information. State v. Neve, 174 Conn. 142, 145, 384 A.2d 332 (1977). We review the claims in turn.

A

The pertinent part of the information on robbery in the first degree is as follows: “Eric Jones did commit a Robbery and in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime used and threatened the use of a dangerous instrument, to wit: a knife, in violation of section 53a-134 (a) (3) of the Connecticut General Statutes.” (Emphasis added.) The information basically restates the elements set forth in § 53a-134 (a), which states in part that “in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”

Proof of robbery in the second degree in violation of § 53a-135 (a) (1) likewise requires proof of robbery pursuant to § 53a-133, but also requires that the accused be “aided by another person actually present . . . .” Here, the key issue is whether the defendant could have committed robbery in the first degree in accordance with the language of the information that he “or another participant in the crime used and threatened the use of a dangerous instrument” without also having committed robbery in the second degree in which he was “aided by another person actually present.” (Emphasis added.) We conclude that the defendant did not have to commit robbery in the second degree in violation of § 53a-135 (a) (1) in order to commit robbery in the first degree as set forth in the information.

The information states that the defendant or another participant in the crime used and threatened to use a dangerous instrument. The state contends that this language indicates that at least two people were present at the scene and involved in the crime. The state argues that, as a result, robbery in the second degree in violation of § 53a-135 (a) (1) is a lesser included offense of robbery in the first degree in violation of § 53a-134 (a) (3) as set forth in the information. We disagree.

Phrased in the disjunctive, the information and the statute on robbery in the first degree do not require that another person participate in the robbery in all instances. In this information, there is no requirement that another individual even be present at the scene for robbery in the first degree to be established. The defendant himself, without any other participant present, could have committed the robbery and used and threatened to use the knife. The defendant need not have committed robbery in the second degree pursuant to § 53a-135 (a) (1) in order to commit robbery in the first degree as alleged in the information. We conclude that robbery in the second degree pursuant to § 53a-135 (a) (1) is not a lesser included offense of robbery in the first degree pursuant to § 53a-134 (a) (3) as set forth in the information and, therefore, the defendant did not have proper notice of the charges against him.

B

We now analyze the elements of the offenses of conspiracy to commit robbery in the first degree as set forth in the information and conspiracy to commit robbery in the second degree in violation of §§ 53a-48 and 53a-135 (a) (1). “To prove the crime of conspiracy, in violation of § 53a-48, the state must establish beyond a reasonable doubt that an agreement existed between two or more persons to engage in conduct constituting a crime and that subsequent to the agreement one of the conspirators performed an overt act in furtherance of the conspiracy. State v. Rouleau, 204 Conn. 240, 258, 528 A.2d 343 (1987); State v. Estrada, 28 Conn. App. 416, 420, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992). The state is also obligated to prove that the accused intended that conduct constituting a crime be performed. State v. Rouleau, supra [258]; State v. Channer, 28 Conn. App. 161, 168, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992).” State v. Hooks, 30 Conn. App. 232, 241-42, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993).

The pertinent part of the information with regard to conspiracy to commit robbery in the first degree set forth as follows: “Eric Jones did agree with one or more persons to commit a robbery, and in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime used and threatened the use of a dangerous instrument .... OVERT ACT On October 30, 1991 at approximately 11:35 p.m., the said Eric Jones and Alexander Nieves did approach a female in the parking lot of Denny’s. Eric Jones displayed a knife, and pushed the female to the ground. Her pocketbook was then taken from her.” (Emphasis added.)

Although termed “overt act,” there are actually several overt acts alleged. The information not only asserts that the defendant agreed with another person or persons to commit robbery, but also alleges the following as overt acts: (1) Nieves was at the scene of the robbery and took an active role in the commission of the robbery, (2) the defendant displayed a knife, (3) the defendant pushed the victim to the ground, and (4) the victim was robbed of her pocketbook. We conclude that it was possible for the defendant to have committed the crime of conspiracy to commit robbery in the first degree as set forth in the information without also having engaged in conspiracy to commit robbery in the second degree.

“The law on overt act charges was set forth in United States v. Sellers, 603 F.2d 53, 56 (8th Cir. 1979), vacated in part on other grounds, 447 U.S. 932, 100 S. Ct. 3033, 65 L. Ed. 2d 1127 (1980), modified, 628 F.2d 1085 (8th Cir. 1980). Tn a conspiracy prosecution, the government is not limited to proof of only those overt acts charged in the indictment and in fact need not prove every overt act alleged. United States v. Harris, 542 F.2d 1283, 1300 (7th Cir. 1976), cert. denied, 430 U.S. 934, 97 S. Ct. 1558, 51 L. Ed. 2d 779 (1977); United States v. Adamo, 534 F.2d 31, 38 (3rd Cir.), cert. denied, 429 U.S. 841, 97 S. Ct. 116, 50 L. Ed. 2d 110 (1976). In addition, if an alleged overt act has not been proved, its submission to the jury is harmless error when the jury is presented with other overt acts in furtherance of the conspiracy which were sufficiently supported by the evidence. United States v. Bletterman, 279 F.2d 320, 322 (2d Cir. 1960); Giardano v. United States, 251 F.2d 109, 115 (8th Cir.), cert. denied, 356 U.S. 973, 78 S. Ct. 1136, 2 L. Ed. 2d 1147 (1958).’ United States v. Sellers, supra [56].” State v. Boykin, 27 Conn. App. 558, 571-72, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).

As presented in the information, proof of conspiracy to commit robbery in the first degree would not necessarily result in proof of conspiracy to commit robbery in the second degree in violation of § 53a-135 (a) (1). Proof of conspiracy to commit robbery in the first degree could occur if the jury found as an overt act that the defendant displayed a knife. The jury need not determine that another participant was actually present and aided the commission of the crime to find the defendant guilty of conspiracy to commit robbery in the first degree. As a result, the defendant’s sixth amendment rights were violated by the trial court’s charge regarding conspiracy to commit robbery in the second degree.

II

The defendant next contends that the trial court improperly failed to instruct the jury as requested on robbery in the third degree in violation of § 53a-136 and conspiracy to commit robbery in violation of §§ 53a-48 and 53a-136 as lesser included offenses of robbery in the first degree in violation of § 53a-134 (a) (3) and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (3) as set forth in the information. Because we are remanding this case for a new trial and cannot conclude that the issues concerning instructions on robbery in the third degree and conspiracy to commit robbery in the third degree as lesser included offenses will recur on retrial, we need not address them.

Ill

The defendant’s final contention is that Wharton’s rule barred the conviction of the defendant for both robbery in the second degree pursuant to § 53a-135 (a) (1) and conspiracy to commit robbery in the second degree pursuant to §§ 53a-48 and 53a-125 (a) (1). “Wharton’s rule provides that ‘[a]n agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission.’ (Emphasis added.) 1 Wharton, Criminal Law & Procedure (Anderson Ed.) § 89, p. 191; see State v. Acklin, 171 Conn. 105, 117, 368 A.2d 212 (1976).” State v. Baker, 195 Conn. 598, 607, 489 A.2d 1041 (1985); State v. Cavanaugh, 23 Conn. App. 667, 671, 583 A.2d 1311 (1990), cert. denied, 220 Conn. 930, 598 A.2d 100 (1991). Because we are remanding this case for a new trial and cannot conclude that the issues concerning Wharton’s rule will recur on retrial, we need not decide at this time whether Wharton’s rule applies to robbery in the second degree pursuant to § 53a-135 (a) (1) and conspiracy to commit robbery in the second degree pursuant to §§ 53a-48 and 53a-135 (a) (1).

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

In this opinion the other judges concurred.

       General Statutes § 53a-135 provides in pertinent part: “(a) A person is guilty of robbery in the second'degree when he commits robbery as defined in section 53a-133 and (1) he is aided by another person actually present >>
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

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

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”

       General Statutes § 53a-136 provides: “(a) A person is guilty of robbery in the third degree when he commits robbery as defined in section 53a-133.”

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation . . . .” The defendant also claimed that he was not provided with proper notice of the charges against him pursuant to article first, § 8, of the Connecticut constitution. Because the defendant failed to brief or to analyze independently the applicable state constitutional protections, we limit our review to the federal constitutional claim. State v. Zarick, 227 Conn. 207, 226 n.18, 630 A.2d 565, cert. denied, U.S. , 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993); State v. Santiago, 224 Conn. 325, 328 n.4, 618 A.2d 32 (1992); State v. Joly, 219 Conn. 234, 258 n.16, 593 A,2d 96 (1991).

       We note that although we have not previously addressed the issue raised in this appeal, we have considered the relationship of the two statutory provisions in the context of a double jeopardy claim. In State v. Ford, 33 Conn. App. 143, 144-48, 634 A.2d 1188, cert. granted on other grounds, 228 Conn. 918, 636 A.2d 849 (1994), we reviewed whether simultaneous convictions for robbery in the second degree in violation of General Statutes § 53a-135 (a) (1) and robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) constituted double jeopardy. Although the determination of whether two crimes are the same offense for double jeopardy purposes varies somewhat from the inquiry as to whether one crime is a lesser included offense of another, we began our inquiry in Ford as we do in this case, by an examination of the language set forth in the information. In Ford, the pertinent language of the information is as follows: “ ‘the accused committed a robbery and in the course of commission of the crime, he or another participant in the crime used or threatened the use of a dangerous instrument, a knife, in violation of General Statutes § 53a-134 (a) (3)’ ” and “ ‘the accused committed a robbery, and was aided by another person, Michael Jones, actually present, in violation of General Statutes § 53a-135 (a) (1).’ ” (Emphasis in original.) Id., 146-47. This court succinctly held that “[i]t is readily apparent that each count required proof of an element that the other did not. The first degree robbery count required proof that the defendant or another participant in the crime used or threatened the use of a dangerous instrument. The second degree robbery count required proof that the defendant was aided by another person actually present.” Id., 147. This court implicitly concluded, thus, that the phrases “or another participant” and “aided by another person actually present” were not equivalent, and rejected the defendant’s claim of double jeopardy.


source: Caselaw Access Project

author: Foti, J. Landau, J.,

license: Public Domain

text:
    Richard L. Preston v. Phelps Dodge Copper Products Company
    (11818)
    Foti, Landau and Spear, Js.
    Argued January 12
    decision released September 6, 1994

      John W. Powers, with whom were Ronald Lasky, Theodore Stamatakos and, on the brief, Otto P. Witt, for the appellant (defendant).

      Barry J. Ward, with whom, on the brief, was Gilbert Shasha, for the appellee (plaintiff).
   Foti, J.

The defendant appeals from the trial court’s judgment, rendered after the jury verdict in this wrongful discharge action, awarding the plaintiff $246,000 for back pay, future wage loss and impairment of earning capacity, $50,000 for infliction of emotional distress, and $500,000 in punitive damages.

The plaintiff, Richard L. Preston, brought an action against his former employer, Phelps Dodge Copper Products Company (Phelps) in a five count complaint that alleged (1) wrongful discharge in violation of public policy, (2) breach of an implied covenant of good faith and fair dealing, (3) breach of an implied employment contract, (4) fraud, and (5) intentional infliction of emotional distress. The trial court granted Phelp’s motion for a directed verdict as to the fourth count, and the jury answered eight separate interrogatories in finding for the plaintiff on all other counts. The jury also found that Phelps’ conduct was “malicious and outrageous” and motivated by bad faith and, accordingly, awarded punitive damages.

The trial court rendered judgment in accordance with the verdict on October 1, 1992. On October 8, 1992, Phelps filed a motion to set aside the verdict and a motion for remittitur. On November 9,1992, the trial court heard arguments and denied the motion to set aside because it was untimely filed. The court also granted, in part, the motion for remittitur. The court found the verdict as to punitive damages to be excessive and ordered that part of the judgment set aside unless within fourteen days the plaintiff filed a remittitur of $347,000 with the court. The plaintiff timely filed the remittitur and the court ordered that judgment be entered for the plaintiff in the amount of $449,000 in damages plus reasonable costs.

Phelps claims on appeal that the trial court improperly (1) instructed the jury and (2) ordered a remittitur for an insufficient sum. Phelps also claims that the evidence was insufficient to sustain the jury’s verdict. We reverse the trial court’s judgment in part.

The jury reasonably could have found the following facts. In December, 1981, Phelps, a company involved in metallurgy, hired the plaintiff as a technician in its quality assurance laboratory. In January, 1988, the plaintiff was assigned additional duties as laboratory safety and maintenance coordinator. On a few occasions, the plaintiff reported unsafe conditions or a breach of safety procedures. He also reported falsification of data as to certain copper “contamination” of production liquids, and an apparent cover-up of a safety breach. On June 15,1989, the plaintiff was discharged because of his persistent complaints about safety. He was called into the office of the personnel manager and told that his job had been eliminated and that he was being laid off. He was offered severance pay of $3400 if he would sign a covenant not to sue. The plaintiff refused to sign the agreement and left the plant.

Following his discharge, the plaintiff became extremely depressed and often sat silently for hours, oblivious to his surroundings. His relationship with his wife and children became strained and distant and he consulted a psychologist. After a year of unemployment and low paying and unsatisfying jobs, he found employment at Olin Metals Research in New Haven. This job involved a daily roundtrip commute of 128 miles compared to six miles to Phelps.

Following the plaintiffs discharge, Phelps discovered an incident of prior misconduct by the plaintiff while he was still employed. In August, 1988, because of his frustration and anger with his employer, the plaintiff had entered the restroom used by the plant manager and the personnel manager and put poison ivy on the toilet seat and stall. The plaintiff then informed three of his friends as to what he had done, warning them not to use the toilet. The plaintiff felt this was his way of getting back at management. As a result, the plant manager, who is highly allergic to poison ivy, developed a severe reaction that took more than two months to cure.

I

There are two threshold matters that we must determine. We must decide whether this appeal is taken from a final judgment and, if so, what is the appropriate standard of review.

The plaintiff argues that Phelps did not appeal from a final judgment because it appealed from the judgment and not the action by the court following the motion for remittitur. Alternatively, he claims that if the judgment was final, then Phelps should not be allowed to obtain review of the action by this court on the motion for remittitur because Phelps failed to amend its appeal to include the postjudgment remittitur order.

“The lack of a final judgment implicates the authority of this court to hear the appeal because it is a jurisdictional defect.” Mac’s Car City, Inc. v. DiLoreto, 33 Conn. App. 131, 132, 634 A.2d 1187 (1993). “Once the question of lack of jurisdiction of a court is raised, it must be disposed of no matter in what form it is presented.” (Internal quotation marks omitted.) Cross v. Hudon, 27 Conn. App. 729, 732, 609 A.2d 1021 (1992).

It is obvious that a final judgment was rendered on October 1, 1992. A judgment rendered following the jury verdict finally resolved the dispute that gave rise to this litigation. The filing of the motion for remittitur by Phelps had no effect on the finality of that judgment. The subsequent granting of that motion did not set aside the previously rendered final judgment and thereby vacate it for appeal purposes. Rather, the court ordered only that the judgment on punitive damages would be set aside if the plaintiff failed to file a remittitur in the amount specified by the court. The judgment itself was not disturbed by the timely filing of the remittitur; the amount of the judgment was merely modified.

We also conclude that Phelps need not have amended its appeal form to include the order granting its motion for remittitur in part and denying it in part. Phelps’ motion for remittitur claimed that the award by the jury was excessive. On appeal, Phelps argues that the amount of the reduction ordered by the trial court in granting the remittitur was not large enough. The claims both raise the same issue: that the amount awarded to the plaintiff was excessive. The claim was properly preserved and raised in the preliminary statement of issues. Phelps is entitled to appellate review.

Also as a preliminary matter, we must determine the appropriate standard of review. In order to have plenary review on appeal, an appellant must file a timely motion to set aside the verdict. Practice Book § 4185; Small v. South Norwalk Savings Bank, 205 Conn. 751, 758, 535 A.2d 1292 (1988). It has long been our law that unless a motion to set aside a verdict is filed, appellate review is limited “to ascertaining whether there has been ‘plain error.’ ” Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981). Plain error review “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986).” (Internal quotation marks omitted.) Small v. South Norwalk Savings Bank, supra, 759.

A motion to set aside a verdict must be filed with the trial court clerk within five days after the date the verdict is accepted or judgment is rendered. Practice Book § 320. In the present case, the motion to set aside was not filed within the prescribed five day period and, consequently, was denied as untimely. The issues on appeal, therefore, must be tested by the plain error standard.

The plain error standard, however, does not apply to any claim arising from the trial court’s action on the motion for remittitur. Goral v. Kenney, 26 Conn. App. 231, 240, 600 A.2d 1031 (1991). We, therefore, afford plenary review to Phelps’ claims regarding the order of remittitur, and apply a plain error standard to all other issues.

II

Phelps claims that the trial court improperly instructed the jury by refusing to give its requested instruction regarding the after acquired evidence of the plaintiffs misconduct. Phelps argues that the instruction was improper because it may have related to the award of future lost wages, often commonly referred to as “front pay.” Phelps also alleges that the trial court improperly refused to instruct as requested on the definition of “extreme and outrageous” conduct and “severe mental distress.”

A

At trial, Phelps submitted a supplemental requested instruction on future wage loss as follows: “The plaintiff is claiming damages for future loss of income. In his testimony, [the] plaintiff gave his claimed amount of future loss. [The] [p]laintiff assumed that raises and overtime at Phelps Dodge would have remained constant for twenty-three years. As with all aspects of damages, the amount of damages must be reasonable. You are not permitted to award speculative damages, but only those which [the] plaintiff has proved by a preponderance of the evidence. [The] [p]laintiff offered no evidence for loss of fringe benefits, thus no amount should be included for any claimed loss of fringe benefits. Likewise, [the] plaintiff offered no evidence in support of his claimed loss of pension benefits, thus, no amount should be included for any claimed loss of pension benefits.

“In determining the claim for future loss of income, you must consider the likelihood of the plaintiff remaining at Phelps Dodge. In this regard, you may consider the effect that the ‘poison ivy’ incident may have had on the plaintiffs likelihood of remaining employed by Phelps Dodge.”

The court refused to give any portion of the second paragraph of the tendered instruction. Phelps noted its exception and in postjudgment motions again argued that the jury should have been allowed to consider whether the plaintiff had, because of the admitted misconduct, any likelihood of future employment with Phelps.

The issue is whether the jury should have been allowed to consider the plaintiffs misconduct, disco vered by Phelps after his discharge, and to decide whether that misconduct limited any award for breach of contract damages. We conclude that the jury should have been instructed that it could consider the misconduct and that it was plain error for the trial court not to have instructed the jury as requested by Phelps.

The proper role of after acquired evidence as it affects damages for breach of a contract of employment raises an issue of first impression in Connecticut. Public policy would seem to disfavor compensating an employee for the loss of future wages, even though he was wrongfully discharged, when the employer proves by a fair preponderance of the evidence that it subsequently discovered evidence of employee misconduct that would have justified the termination of employment.

In the federal system, as a general rule, after acquired evidence is relevant to the relief due a successful plaintiff in an employment discrimination discharge case. Johnson v. Honeywell Information Systems, 955 F.2d 409 (6th Cir. 1992); Summers v. State Farm Mutual Automobile Ins. Co., 864 F.2d 700 (10th Cir. 1988). If the after acquired evidence, in and of itself, would have caused the employer to discharge the employee, it would be inappropriate to order reinstatement of employment or front pay. Wallace v. Dunn Construction Co., 968 F.2d 1174, 1181 (11th Cir. 1992). “[I]f [an employer] has a legitimate motive that would cause [an employee’s] discharge, then . . . front pay would go beyond making [the employee] whole and would unduly trammel [the employer’s] freedom to lawfully discharge employees. Because [the employee] would no longer be employed at [the employer’s place of business], [he] also would not be entitled to an injunction against further unlawful practices.” Id., 1182.

Applying this analysis to the present case, we conclude that although the poison ivy incident could not have affected the employment relationship at the time of the discharge and, therefore the legality of that discharge, it could have affected the amount of future wages the plaintiff can recover. The prospective remedy of future wage loss, which the parties have labeled front pay, may be partially or totally unattainable, depending on when the after acquired evidence was discovered and how it would have affected the employment relationship. Id., 1181.

The determination of future earnings requires some degree of speculation as to how long the plaintiff would have continued working for Phelps. In order to obtain such prospective relief, it is the plaintiff’s burden to prove, inter alia, that, but for the wrongful discharge, he would still be employed and that he would have remained with his employer for a period of years. If there is evidence presented that the employment might have been terminated legitimately, the trier of fact must determine the likely duration of employment with Phelps in order to award future wage loss.

The jury heard testimony concerning the plaintiff’s misconduct. The court, therefore, must have found it to be relevant. The weight given to the testimony should have been left to the jury. It was for the jury to determine whether the poison ivy incident was, in fact, employee misconduct, and, if so, whether that misconduct was substantial enough to warrant the plaintiff’s discharge for just cause. It was also the jury’s function to determine when that discharge would have occurred, thereby limiting the plaintiff’s entitlement to future wages.

We have not adhered to the terminology employed by the parties and the trial court, i.e., “front pay” and “back pay,” in dealing with the damages for breach of a contract. This type of action for breach of a contract of employment must be distinguished from termination of employment actions brought pursuant to the Age Discrimination in Employment Act, or under Title VII in the federal court system. We are not bound to use concepts such as front pay or back pay, that are derived from statute, where, as here, no such statute is involved.

The general rule of damages in a breach of contract action is that the award should place the injured party in the same position as he would have been in had the contract been performed. Vespoli v. Pagliarulo, 212 Conn. 1, 3, 560 A.2d 980 (1989); West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 317, 541 A.2d 858 (1988); Danpar Associates v. Somersville Mills Sales Room, Inc., 182 Conn. 444, 446, 438 A.2d 708 (1980). “[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.’ ” West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 319, 514 A.2d 734 (1986), quoting Hadley v. Baxendale, 9 Ex. 341, 354, 156 Eng. Rep. 145 (1854).

When a wrongful termination of a contract is claimed, “the entire damage, both past and prospective, may be recovered in a single action.” Jacobs v. Thomas, 26 Conn. App. 305, 314, 600 A.2d 1378 (1991), cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). The measure of damages is the reasonable compensation for the loss that the plaintiff suffered in being wrongfully deprived of the benefit of the agreement. Maguire v. Kiesel, 86 Conn. 453, 460, 85 A. 689 (1913). Our Supreme Court has stated that “[t]he normal rule on an employment contract is that when the employee is prevented from fully performing because the employer wrongfully fires him, the employee can recover the wages he would have earned under the contract, minus any wages which he has earned or could have earned elsewhere, and the burden of proof of the latter is on the employer. Carter v. Bartek, 142 Conn. 448, 451-52, 114 A.2d 923 [1955].” (Emphasis added.) Burns v. Gould, 172 Conn. 210, 221, 374 A.2d 193 (1977). Wages one “would have earned” under the contract are the equivalent of future wage loss, often called “front pay.”

Because we conclude that the trial court improperly refused to instruct the jury as requested concerning the after acquired evidence of the plaintiffs misconduct, a remand is required for a new trial limited to the issue of determining those damages, if any.

B

Phelps also alleges that the trial court improperly refused to instruct as requested on the definitions of “extreme and outrageous” conduct and “severe mental distress,” in regard to the count alleging infliction of emotional distress.

The court instructed, as relevant to this issue, as follows: “To prove intentional infliction of emotional distress, the plaintiff must prove four things: first, the defendant intended to inflict emotional distress or that the defendant knew or should have known that emotional distress was likely to result from the defendant’s conduct; second, the defendant’s conduct was extreme and outrageous; third, the defendant’s conduct was the cause of the plaintiff’s emotional distress; and finally, the emotional distress sustained by the plaintiff was severe.”

As to the calculation of damages the court instructed: “Intentional infliction of emotional distress is considered a tort claim. If an employer commits a tort, an employee is able to recover damages for any emotional distress he may have suffered. You may award damages in an amount which will reasonably compensate the plaintiff for any loss or harm he has suffered, provided that you find proven by the preponderance of the evidence that such loss or harm was suffered by him and was proximately caused by the defendant’s actions. The amount of such award shall include reasonable compensation for any pain, discomfort, fears, humiliation, anxiety and other emotional loss suffered by the plaintiff.”

“[T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Citations omitted; internal quotation marks omitted.) Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991).

The tort of intentional infliction of emotional distress requires proof of four elements: (1) that the actor intended to inflict emotional distress; or that he or she knew or should have known that emotional distress was a likely result of his or her conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe. Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986).

In the context of the court’s entire charge concerning the intentional infliction of emotional distress, we conclude that the jury was adequately informed as to the correct law and the instruction given was sufficient for guidance to a just determination of the issues presented.

Ill

Phelps next alleges that the trial court’s order of remittitur was insufficient. Phelps asserts that a total reduction of the $500,000 punitive damages award was justified because there was no evidentiary basis to sustain any such award. Phelps acknowledges that the trial court granted its motion for remittitur to “the maximum allowable” in punitive damages under Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 472 A.2d 306 (1984).

“When a verdict is excessive as a matter of law, the amount of the remittitur . . . rests largely within the discretion of the trial court. ‘Its action is entitled to full support unless it abuses its discretion.’ Allen v. Giuliano, 144 Conn. 573, 578, 135 A.2d 904 (1957). ‘In determining whether the trial court abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.’ Brooks v. Singer, 147 Conn. 719, 720, 158 A.2d 745 (I960).” Alfano v. Insurance Center of Torrington, 203 Conn. 607, 614, 525 A.2d 1338 (1987).

On the basis of this record, we cannot conclude that the trial court abused its discretion by refusing to order the remittitur in a greater amount.

IV

Lastly, Phelps claims that the evidence was insufficient to sustain the jury’s verdict. General Statutes § 52-228b requires a motion to set aside a verdict when the claim on appeal relates to the sufficiency of the evidence; Saporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 361, 603 A.2d 1160 (1992); and, as discussed in part I, that necessarily means a timely filed motion to set aside. Strict compliance with § 52-228b is a prerequisite to plenary review of claims on appeal. Falby v. Zarembski, 221 Conn. 14, 22, 602 A.2d 1 (1992). Phelps’ failure to file a timely motion to set aside a verdict limits our consideration of the issue to plain error. Kelly v. Bonney, 221 Conn. 549, 559, 606 A.2d 693 (1992).

Phelps’ claims of insufficiency of the evidence do not qualify for the exercise of our discretionary authority under the plain error rule. Practice Book § 4185. As previously discussed, review for plain error is reserved for extraordinary situations. See part I. Phelps’ contentions that the evidence could not have allowed a reasonable jury to conclude that its conduct was extreme and outrageous, or that the plaintiff suffered severe emotional distress, are without merit. Our review of the whole record, including the transcript, leads us to conclude that none of Phelps’ claims involving the sufficiency of the evidence satisfies the standard of plain error review.

The judgment is reversed in part and the case is remanded for a new trial limited to the issues involving the determination of the contractual damages, if any.

In this opinion Spear, J., concurred.

Landau, J.,

concurring. I concur with the result reached by the majority. I respectfully disagree, however, with the language of the analysis in part II A of the opinion.

In that section, the majority concludes that the trial court improperly refused to instruct the jury on the issue of after acquired evidence pertaining to the plaintiff’s misconduct. The majority appropriately reaches this conclusion by adopting the reasoning of federal jurisdictions in the relief awarded successful plaintiffs in a succession of cases grounded in employment discrimination discharge cases brought pursuant to statutory entitlement. See Wallace v. Dunn Construction Co., 968 F.2d 1174 (11th Cir. 1992); Johnson v. Honeywell Information Systems, Inc., 955 F.2d 409 (6th Cir. 1992); Summers v. State Farm Mutual Automobile Ins. Co., 864 F.2d 700 (10th Cir. 1988).

While the analogy is appropriate, and thus persuasive, the language employed by the majority creates possible confusion by its use of the terms “future wage loss” and “front pay.” The majority neither acknowledges nor directs attention to the nuda veritas that there is a distinction between the two terms. It correctly states that in an action sounding in common law contract, the measure of damages is reasonable compensation for the loss that the plaintiff suffers in being wrongfully deprived of the benefit of the agreement; Maguire v. Kiesel, 86 Conn. 453, 460, 85 A. 689 (1913); and “the entire damage, both past and prospective, may be recovered in a single action.” Jacobs v. Thomas, 26 Conn. App. 305, 314, 600 A.2d 1378 (1991), cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). Although “front pay” damages are permitted as a federal statutory remedy in an action claiming wrongful discriminatory practices; see 42 U.S.C. § 2000e-5 (g); and maybe allowed in a comparable state action; see General Statutes § 46a-60; State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 559 A.2d 1120 (1989); Civil Service Commission v. Commission on Human Rights & Opportunities, 195 Conn. 226, 487 A.2d 201 (1985); it should be appropriately regarded as just that, a statutory remedy, and not seemingly casually interchanged with “future lost wages,” a common law breach of contract remedy.

The majority’s utilization of the nomenclature “front pay” to indicate recovery for future lost wages in an action based on a claim of wrongful termination alleging a breach of contract, in my judgment, incorrectly implies that we recognize “front pay” damages as a viable remedy in that cause of action.

       This represents a reduction in damages from $500,000 to $153,000.

       There appears to be a typographical error in the judgment file that reads “$499,000 in damages.” The correct figure, mathematically, is $449,000, as noted by the court at the hearing on the remittitur.

       General Statutes § 52-228a provides: “In any jury case where the court orders a decrease in the amount of the judgment or an increase in the amount of the judgment, the party aggrieved by the order of remittitur or additur may appeal as in any civil action. The appeal shall be on the issue of damages only, and judgment shall enter upon the verdict of liability and damages after the issue of damages is decided.”

       Compare Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988) (holding that postjudgment hearing on attorney’s fees did not affect finality of judgment) with Balf Co. v. Spera Construction Co., 222 Conn. 211, 214-15, 608 A.2d 682 (1992) (refusing to extend Paranteau to a supplemental determination of prejudgment interest).

       Phelps argues that since the issues raised by its motion to set aside the verdict and its motion for remittitur are identical, it should be entitled to plenary review of the denial of either motion independently. Phelps does not, however, appeal from the trial court’s denial of its motion to set aside the verdict. Effectively, no valid motion to set aside was filed in this case. Phelps is entitled only to plain error review on those issues.

       Front pay simply extends, for purposes of recovery under statutes prohibiting certain types of wrongful discharge, an employee’s earnings estimates into the future. See, e.g., State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 478, 559 A.2d 1120 (1989); Civil Service Commission v. Commission on Human Rights & Opportunities, 195 Conn. 226, 230, 487 A.2d 201 (1985). It involves proof of at least the following elements: (1) remaining work life; (2) future increases in compensation on which pension benefits are based; (3) age at which retirement will occur; (4) life expectancy after retirement; and (5) discount rate to convert the stream of benefits to a present value lump sum. See Buckley v. Reynolds Metals Co., 690 F. Sup. 211, 218-21 (S.D.N.Y. 1988).

       The court instructed the jury that it could award damages to the plaintiff in the form of back pay, interest, future wage losses, and future loss of earning capacity for harm sustained by the plaintiff as a result of any wrongful termination. In particular, the court instructed with regard to future losses: “Now, in assessing damages for future losses, you must determine what amount, if any, the plaintiff has proved by the preponderance of the evidence he would receive if he continued in the employment of the defendant for the period in the future you determine he would remain in such employment less any sums that the plaintiff will, in reasonable probability, be able to receive by the exercise of reasonable diligence during such future period.” The court gave no instruction as to what effect the poison ivy incident could have on damages.

       “Ordinarily the reversal of a jury verdict requires a new trial of all the issues in the case. ‘Where the error as to one issue ... is separable from the general issues, the new trial may be limited to the error found, provided that such qualification or limitation does not work injustice to the other issues or the case as a whole.’ Murray v. Krenz, 94 Conn. 503, 507, 109 A. 859 (1920).” DeLaurentis v. New Haven, 220 Conn. 225, 268, 597 A.2d 807 (1991). The lack of instruction on after acquired evidence affects only the jury’s determination of the length of time the plaintiff might have remained in the defendant’s employment and, in consequence, the determination of damages for future losses. Accordingly, we conclude that no injustice will be done because the issues are not “inextricably interwoven.” We, therefore, remand this case for a determination of the appropriate measure of damages only. See, e.g., Vezina v. Nautilus Pools, Inc., 27 Conn. App. 810, 823-24, 610 A.2d 1312 (1992).

       The request to charge, as relevant, reads as follows: “ ‘Extreme and outrageous conduct’ is defined as conduct that is heartless, flagrant and beyond all bounds usually tolerated by decent society. It is not enough for the plaintiff to prove that Phelps Dodge subjected him to indignities, annoyances or petty oppressions, nor is it sufficient for the plaintiff to demonstrate that Phelps Dodge’s behavior resulted in hurt feelings. The plaintiff can only prevail on this claim if he can prove that Phelps Dodge engaged in conduct that was so outrageous in character and so extreme in degree as to exceed all possible bounds of decency and be considered atrocious and utterly intolerable in a civilized community. . . .
      “If the plaintiff is able to demonstrate that Phelps Dodge engaged in extreme and outrageous conduct, he still must establish that he suffered severe emotional distress. Severe emotional distress, for the purposes of this instruction, means emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it. The intensity and duration of the alleged distress and whether the plaintiff required medical treatment are factors which you should consider in determining whether the plaintiff has proved that he suffered severe emotional distress.” (Citations omitted.)
      No specific exception or argument was made following the charge given on this point. The record reflects that Phelps’ counsel stated after the initial charge: “It is my understanding that if we submitted them [requests to charge] and you didn’t give them, we have an automatic exception?” The court responded: “You may have an exception. Anything I didn’t give, you may have an exception.” In addition, in passing, the defense counsel noted, “With respect to the punitive damages instruction, again, it’s the same problem I have with the instruction on intentional infliction of emotional harm. The punitive instruction says ‘outrageous conduct’ and the Court has not defined outrageous conduct for the jury. . . .” Following a request from the jury, the court reread its charge dealing with the claim of intentional infliction of emotional distress. Phelps’ counsel, when asked if there were “[a]ny exceptions on the reread,” replied: “No, Your Honor, no exception.”

       Phelps’ motion for remittitur also claimed that the award for back pay and future pay was excessive. The record indicates that following the trial court’s action in granting the motion for remittitur as discussed, the defendant inquired: “It is my understanding that you are going to deny the remittitur with respect to the excessiveness of the back pay and future pay.” The court responded: “That’s a jury issue and there was evidence which the jury chose to believe. Again, not that the court would have accepted the evidence. The court doesn’t sit as a seventh juror. But, the jury chose to accept the evidence that [was presented] to them. They could make the award. I could say for the record that I am surprised, but, I wasn’t shocked. I was surprised, but, not shocked.”
      We find it unnecessary to address this issue because of our remand discussed in part II.

       General Statutes § 52-228b provides: “No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

       Phelps also claims that the evidence was insufficient to support the jury’s award. We need not address this claim. See part I.


author: Per Curiam.

text:
    John F. Ferraro v. Linda D. Ferraro
    (12015)
    Lave by, Landau and Spear, Js.
    Argued January 12
    decision released August 2, 1994

      Francis C. Vignati, Jr., for the appellant (defendant).

      Gerald L. Garlick, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.