author: SCHALLER, J. LAVERY, J.,

text:
    ALAN E. SILVER, P.C. v. HOWARD A. JACOBS ET AL.
    (14614)
    Lavery, Landau and Schaller, Js.
    Argued February 23
    officially released September 17, 1996

      Bruce S. Beck, with whom, on the brief, was Marc P. Mercier, for the appellant (plaintiff).

      Steven D. Ecker, for the appellees (defendants).
   SCHALLER, J.

The plaintiff appeals from the judgment of the trial court granting the defendants’ motion for summary judgment. The plaintiff brought a six count complaint to recover an attorney’s fee from the defendant on the basis of an alleged fee protection agreement. He claims that the trial court improperly concluded that he was not entitled to recover as to (1) the first count sounding in breach of contract, (2) the second count in quantum meruit for services performed, (3) the third count on a theory of unjust enrichment, (4) the fourth count on a theory of tortious breach of contract, (5) the fifth count on a theory of misrepresentation, and (6) the sixth count on a Connecticut Unfair Trade Practices Act (CUTPA) claim. We affirm the judgment of the trial court.

The following facts are undisputed. In June, 1988, Allen Chatt and Gail Chatt retained the plaintiff to represent them concerning their claims for damages arising out of an automobile accident. The Chatts did not enter into a written fee agreement with the plaintiff. Although the plaintiff and the Chatts both claimed that an oral agreement existed, they differed as to its terms. The plaintiff worked on the Chatts’ file for approximately thirteen months. In July, 1989, the Chatts discharged the plaintiff and retained the defendant and his law firm to represent them.

The defendant and the Chatts entered into a written retainer agreement on July 10, 1989. When the defendant requested the Chatts’ file, the plaintiff agreed to surrender it as soon as the defendant complied with Formal Opinion 31 of the Connecticut Bar Association. After the defendant responded by letter stating that “[u]pon the conclusion of the Chatt matter, I will hold in my client's funds account the amount required under your contingency arrangement until its disposition has been determined by agreement or by litigation,” the plaintiff turned over the Chatts’ file. The defendant did not request a copy of a written fee agreement at that time. At the time of the file transfer, the plaintiff had not drafted pleadings or filed a complaint, and had conducted minimal research on the case. The defendant reimbursed the plaintiff at that time for his out-of-pocket costs, $29.20.

In December, 1990, the defendant settled the Chatt case after nine days of trial, resulting in attorney’s fees of $680,000. The formal settlement agreement was executed on January 8, 1991. On January 2, 1991, the plaintiff, who had learned about the settlement from a source other than the defendant, contacted the defendant to inquire about the fee. The defendant requested evidence of the contingency fee agreement between the plaintiff and the Chatts. When no evidence of a written agreement was produced, the defendant refused to pay the plaintiff any portion of the fee and refused to escrow any part of it.

The plaintiff then brought the present action seeking to recover a portion of the attorney’s fee under theories of breach of contract, quantum meruit, unjust enrichment, tortious breach of contract, misrepresentation, and a violation of CUTPA. The defendant moved for summary judgment on all counts, and the plaintiff moved for summary judgment on the first three counts. The trial court granted summary judgment on all counts in favor of the defendant. This appeal followed.

“When reviewing a trial court’s ruling on a motion for summary judgment, we must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 384 .... West Haven v. Hartford Ins. Co., 221 Conn. 149, 155, 602 A.2d 988 (1992).” (Citations omitted; internal quotation marks omitted.) CTB Realty Ventures XXII, Inc. v. Markoski, 33 Conn. App. 388, 391, 636 A.2d 379, cert. granted, 228 Conn. 929, 640 A.2d 115 (1994) (appeal withdrawn July 18, 1994). Because the plaintiff conceded at oral argument that no genuine issues of material fact exist in this case, “[w]e . . . need to determine only whether, on the basis of the uncontroverted facts, the [defendant was] entitled to summary judgment as a matter of law.” Id., 392; see Burns v. Board of Education, 228 Conn. 640, 643 n.2, 638 A.2d 1 (1994).

I

The plaintiff claims that the trial court improperly held that he was not entitled to recover on his breach of contract claim. The trial court concluded that “[t]he defendants’ promise to hold in the client’s fund an amount required by the plaintiffs contingency arrangement was subject to the condition precedent of delivery of that agreement to the defendants.” The court further concluded that “[t]he plaintiffs failure to provide the Chatts with a written contingency agreement, a violation of the provisions of [General Statutes] § 52-251c (a), cannot give rise to a right to performance from the defendants.” Because we agree with the trial court that the plaintiffs violation of § 52-251c (a) precludes his recovery from the defendant, we find no merit in his claim.

There is no dispute that the plaintiff had an oral, rather than written, contingency agreement with the Chatts. The plaintiff challenges the trial court’s determination that this bars his recovery from the defendant. The plaintiff argues that an oral contingency agreement between an attorney and a client is not invalid. The language of § 52-251c (a) clearly requires that all contingency fee agreements be reduced to writing. Beizer v. Goepfert, 28 Conn. App. 693, 705, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615 A.2d 1044, cert. denied, 507 U.S. 973, 113 S. Ct. 1416, 122 L. Ed. 2d 786 (1993). The use of the word “shall” in the statute connotes that the performance of the requirement is mandatory rather than permissive. Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 240, 558 A.2d 986 (1989); Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986).

It is well established that contracts that violate public policy are unenforceable. Konover Development Corp. v. Zeller, 228 Conn. 206, 231, 635 A.2d 798 (1994), citing Smith v. Crockett Co., 85 Conn. 282, 287, 82 A. 569 (1912); McCarthy v. Santangelo, 137 Conn. 410, 412, 78 A.2d 240 (1951). Section 52-251c “was intended to regulate the attorney-client relationship in order to protect plaintiffs from excessive legal fees.” Berry v. Loiseau, 223 Conn. 786, 830 n.22, 614 A.2d 414 (1992). Where a law is passed for the protection of the public, we will not undermine the remedial purposes of the statute by enforcing an oral contract in contravention of the law. See Caulkins v. Petrillo, supra, 200 Conn. 720 (refusing to enforce oral contract by home improvement contractor in violation of General Statutes § 20-429); DiBiase v. Garnsey, 103 Conn. 21, 28, 130 A. 81 (1925) (refusing to enforce oral contract for auto repairs in excess of $50 in violation of § 63 of chapter 400 of the Public Acts of 1921).

The plaintiff argues, as an alternative, that the requirement that a contingency agreement be in writing serves only to protect a client and that the agreement that he seeks to enforce is independent of the oral contingency agreement he had with the Chatts. In other words, the plaintiff asserts that § 52-25lc (a) does not protect the defendant from liability on their separate agreement. The defendant promised the plaintiff that: “Upon the conclusion of the Chatt matter, I will hold in my client’s funds account the amount required under your contingency arrangement . . . .” We agree that the plaintiffs agreement with the defendant is a separate transaction from the plaintiffs agreement with the Chatts. The unenforceability of the oral contingency agreement, however, requires the conclusion that the defendant was not obligated to hold any funds for the plaintiff.

The agreement provides that the defendant was required to hold in his clients’ funds account only the amount that the Chatts were legally obligated to pay the plaintiff pursuant to the oral contingency agreement. Because the defendant was required to hold only those amounts that the Chatts were obligated to pay the plaintiff, and the Chatts were under no legal obligation to pay the plaintiff, the defendant was never contractually bound to hold or pay any amount to the plaintiff. See West Haven v. Hartford Ins. Co., supra, 221 Conn. 164 (because insured was under no legal obligation to pay punitive damages award, insurer never contractually bound to pay that sum on behalf of insured).

II

The plaintiff next claims that the trial court improperly determined that he did not have a right to recover from the defendant in quantum meruit and under the doctrine of unjust enrichment. He argues that it is well established that an attorney may recover the value of his legal services even absent an express agreement. We disagree that the plaintiff may recover under the circumstances of this case.

“[A] quasi . . . contract is not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation, and may not have intended but in fact actually dissented from it. . . . It is based on equitable principles to operate whenever justice requires compensation to be made. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed to examine the circumstances and the conduct of the parties and apply this standard.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Bershtein, Bershtein & Bershtein v. Nemeth, 221 Conn. 236, 242, 603 A.2d 389 (1992).

The trial court determined that the plaintiffs equitable claims “have as its foundation the plaintiffs own violation of the code of ethics. Under such circumstances, enforcement of the plaintiffs claims would appear to undermine judicial integrity. . . . The agreement between the parties, evidenced by their written exchange, failed because of the plaintiffs failure to provide the necessary contingency agreement. That failure belies the claims of unjust enrichment and quantum meruit.” We conclude that the trial court properly granted summary judgment on counts two and three of the plaintiffs complaint.

As we said earlier, § 52-251c protects injured persons from excessive legal fees. Berry v. Loiseau, supra, 223 Conn. 830 n.22. The plaintiff, nevertheless, continues to argue that the public does not require protection when the file has been transferred to another attorney and the plaintiff seeks only to recover from the successor attorney. We disagree. It would be unjust to permit an attorney to avoid this public policy by splitting a fee with a successor attorney. Moreover, by enacting § 52-251c without qualification, the legislature has imposed its view that it is more urgent to protect clients from attorneys than to protect attorneys from successor attorneys. See Barrett Builders v. Miller, 215 Conn. 316, 326-27, 576 A.2d 455 (1990) (holding that § 20-429 protects consumers from unscrupulous contractors). Because the plaintiff in this case has violated § 52-251c, thereby leaving his clients exposed to the possibility of excessive legal fees, the plaintiff may not recover from the successor counsel under equitable principles. See Bershtein, Bershtein & Bershtein v. Nemeth, supra, 221 Conn. 243 (plaintiff attorney did not deliver requested accounting or case file to successor attorney); McCarthy v. Santangelo, 137 Conn. 410, 412, 414, 78 A.2d 240 (1951) (plaintiff attorney denied recovery on quantum meruit where he had agreed to accept one third of award of alimony as compensation).

Ill

The plaintiff claims finally that the trial court improperly granted the defendant’s motion for summary judgment on counts four, five and six of his complaint. In those counts, the plaintiff alleged tortious breach of contract, misrepresentation and a violation of CUTPA, respectively. We conclude that the trial court properly granted summary judgment because each of these claims relies on the plaintiffs oral contingency agreement with the Chatts, which we have concluded is unenforceable.

First, our earlier conclusion that the defendant did not breach his agreement with the plaintiff, but rather that the defendant had no legal obligation because of the unenforceability of the oral contingency agreement, disposes of count four. Second, a claim of misrepresentation requires proof that the plaintiff relied on a false representation that the defendant made as a statement of fact and thereby suffered injury. Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 683, 657 A.2d 1087 (1995); Meyers v. Cornwell Quality Tools, Inc., 41 Conn. App. 19, 27 n.15, 674 A.2d 444 (1996). “ ‘[A] plaintiff who has not suffered damage or injury cannot pursue an action at law or in equity for . . . damages resulting from fraudulent actions.’ ” Rizzo Pool Co. v. Del Grosso, supra, 683, quoting Kilduff v. Adams, Inc., 219 Conn. 314, 329, 593 A.2d 478 (1991). Finally, a claim for recovery of damages under CUTPA requires proof of an ascertainable loss. Conaway v. Prestia, 191 Conn. 484, 493, 464 A.2d 847 (1983). Once again, the plaintiffs own failure to obtain a written contingency agreement with his clients produces the result in this case.

The judgment is affirmed.

In this opinion LANDAU, J., concurred.

LAVERY, J.,

dissenting. I respectfully dissent from part II of the majority opinion. It is undisputed that a trial court may grant a summary judgment where, under applicable principles of substantive law, the moving party is entitled to judgment as a matter of law. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994). The majority, however, cites no substantive applicable law, statutory or common, that compels the conclusion that a violation of § 52-251c is an outright bar to an attorney’s action in quantum meruit against a successor attorney. The majority states that, under equitable quasi-contract principles, it would be “unjust to permit an attorney to avoid th[e] public policy by splitting a fee with a successor attorney.” Such a construction suggests that the majority has adopted a per se rule, foreclosing recovery from a successor attorney under any set of circumstances, as long as the attorney failed to have the client sign a written contract. I believe that the equitable contract principles on which we should focus are those that have traditionally been the basis for an award under the restitutionary theories of quantum meruit and unjust enrichment: only those circumstances that existed between the two pertinent parties, here the plaintiff and the defendant. If the trial court limited its review of this matter to the transaction between the parties, then it would have had to determine whether the defendant benefited from the plaintiffs work product. Such a determination is a question of fact and thus inappropriate for summary judgment. It may be that the trial court, after applying traditional quasi-contract principles, would have concluded that the plaintiff should receive only a minimal amount for his work product, but because the value of an attorney’s services are recoverable under quantum meruit, he should at least be afforded the opportunity to present whatever evidence he has, if any, regarding the value of the services he had conferred upon the defendant.

The majority also states that it is more urgent to protect the public from attorneys than to protect attorneys from successor attorneys. For this proposition, it cites Barrett Builders v. Miller, 215 Conn. 316, 326-27, 576 A.2d 455 (1990). Barrett Builders considered whether a contractor can recover in quantum meruit from a homeowner where the contractor failed to comply with the written contract requirement in General Statutes § 20-429 of the Home Improvement Act. Id., 320. In concluding that the contractor could not recover, the Supreme Court stated that it is more important to protect consumers from unscrupulous contractors than to protect contractors from manipulative consumers. Barrett Builders, therefore, presented a situation where the interests of the plaintiff contractor and the consumer were in direct conflict. That is clearly not the case here. The ability of an attorney to recover from a successor attorney in no way endangers the important public policy of protecting the public from excessive legal fees. The majority fails to explain precisely how its denial of the plaintiffs cause of action is inextricably linked to a furtherance of the public policy, particularly in light of its statement that “the plaintiffs agreement ■with the defendant is a separate transaction from the plaintiffs agreement with the Chatts.” Because the transaction between the plaintiff and the defendant was separate from the transaction between the plaintiff and the Chatts, it should be treated as such.

I would reverse the judgment and remand the matter to the trial court for further proceedings.

       Alan E. Silver, an attorney, is an employee and officer of the plaintiff Alan E. Silver, P.C. We will refer to Silver as the plaintiff for purposes of this opinion.

       The defendants are Howard A. Jacobs and the law firm of Jacobs, Grudberg, Belt & Dow, P.C., of which Jacobs is an employee and officer. We will refer to Jacobs as the defendant for purposes of this opinion.

       See General Statutes §§ 42-110a through 42-110q.

       On July 10, 1989, the defendant sent the plaintiff the following letter: “Allen and Gail Chatt have requested that I take over the case that they have arising out of injuries to Allen Chatt on June 3,1988.1 would appreciate it if you would send over the file. Please let me know what your thoughts are with respect to the amount of work that you have done on the file and the amount you feel you are entitled to in connection with that work.”

       On August 3, 1989, the plaintiff wrote: “As per our recent conversation concerning the above matter, I will send you the file once you have complied with Formal Opinion 31 of the Connecticut Bar Association, a copy of which I have enclosed . . . .”
      Formal Opinion No. 31 (1978) provided in pertinent part: “We conclude that when a client seeks new counsel and is met with the insistence of initial counsel that an arrangement be made to protect Inis fee and to honor obligations he has made to physicians, the new attorney may not accept the case unless he provides to the initial counsel one of the following:
      “a) An agreement signed by both the initial attorney and the new attorney establishing the method for division of the ultimate fee. As suggested by our Supreme Court this might be through the payment of compensation for the number of hours the initial attorney has spent or perhaps through the proration of the contingency fee between the two lawyers based upon the hours each spends: or
      “b) A letter stating that upon the conclusion of the client’s matter, he will hold in his clients’ funds account the amount required under the initial lawyer’s contingency fee arrangement until its disposition has been determined by agreement, voluntary fee dispute arbitration proceedings, or a court. ...”
      In Bershtein, Bershtein & Bershtein v. Nemeth, 221 Conn. 236, 240-41 n.5, 603 A.2d 389 (1992), our Supreme Court noted: “The Connecticut Bar Association Committee on Professional Ethics, Revised Formal Opinion No. 31 (1988), replaced Formal Opinion No. 31 (1978). The commission explained that it was issuing the revised opinion because of new developments in the law and the adoption of the Model Rules of Professional Conduct in 1983. One important change in the revised opinion is the omission of language from the prior opinion that required successor counsel, when representing the same client on the same matter, to reach an agreement with prior counsel concerning fee reimbursement before accepting the case. The revised opinion is cast, instead, in terms of the discharged lawyer’s duties with respect to the former client’s file.”
      Revised Formal Opinion No. 31 provides in pertinent part: “We hold that a discharged lawyer on a contingency fee violates Rule 1.16 (d) when he retains the file after demand for its surrender if (a) there is an agreement with the client or successor counsel concerning payment of fees and expenses or (b) successor counsel provides the discharged lawyer with a letter that he will hold in his clients’ funds sufficient proceeds from the settlement to pay the discharged lawyer what he would have been entitled to under his contingency fee agreement . . . until the fee dispute is resolved by a court or otherwise.”
      Rule 1.16 (d) of the American Bar Association Model Rules of Professional Conduct (1983) provides in pertinent part: “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as . . . surrendering papers and property to which the client is entitled .... The lawyer may retain papers relating to the client to the extent permitted by other law.”

       On August 4, 1989, the defendant replied: “I have your letter of August 3, 1989.1 wrote you on July 10, 1989 in an attempt to work out the amount you feel you were entitled to in connection with your work on the file. I am enclosing a copy of that letter. I hereby comply with Connecticut Bar Association published Formal Opinion 31 as follows: Upon the conclusion of the Chatt matter, I will hold in my client’s funds account the amount required under your contingency arrangement until its disposition has been determined by agreement or by litigation. I undertake to honor all obligations which you have incurred on behalf of the Chatts to pay physicians’ bills and other case related disbursements, as well as to reimburse you for your out-of-pocket costs. If you send me an itemized copy of your costs, I will send you a check immediately. Please advise as to when we may call for the file.”

       Our resolution of this issue does not require us to comment on the trial court’s conclusion that delivery of the contingency agreement was a condition precedent.

       General Statutes § 52-251c (a) provides in pertinent part: “In any claim or civil action to recover damages resulting from personal injury . . . the attorney and the claimant may provide by contract, which contract shall comply with all applicable provisions of the rales of professional conduct governing attorneys adopted by the judges of the superior court, that the fee for the attorney shall be paid contingent upon, and as a percentage of: (1) Damages awarded and received by the claimant; or (2) settlement amount pursuant to a settlement agreement." (Emphasis added.)

       The plaintiffs reliance on Marcus v. DuPerry, 223 Conn. 484, 611 A.2d 859 (1992), lacks merit. Our Supreme Court specifically noted in that case that the statewide grievance committee had found the contingency agreement to be in compliance with rule 1.5 (c). Id., 490 n.6. The court did not comment on that conclusion. The court also recognized that § 52-251c did not apply in that case because the defendant’s injury predated the effective date of the statute. Id., 489 n.5.

       The plaintiff cites Cole v. Meyers, 128 Conn. 223, 230, 21 A.2d 396 (1941), for this proposition. In that case, the defendants had agreed to pay the plaintiff attorney a fee equal to one third of any savings of taxes obtained by a reduction of assessments plus necessary expenses. Id., 225. Not only does that case involve a factual situation to which § 52-251c would not apply, but it also clearly predated the effective date of the statute. See footnote 9. Likewise, the plaintiffs continued reliance on Marcus v. DuPerry, 223 Conn. 484, 491, 611 A.2d 859 (1992), is inapposite. See footnote 9. The Supreme Court also stated in Marcus v. DuPerry, supra, 491, that there was no claim in the record that the plaintiff was not entitled to recover on equitable grounds.

       This “ ‘requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either damages or equitable relief.’ ” Conaway v. Prestia, supra, 191 Conn. 493, quoting Hinchliffe v. American Motors Corp., 184 Conn. 607, 615, 440 A.2d 810 (1981).

       “The theory of restitution as a basis for recovery encompasses both unjust enrichment and quantum meruit as the terms have been used in Connecticut cases. Broadly speaking, the availability of restitution is dependent upon unjust enrichment, that is, upon a perceived injustice because one party has benefited at the expense of another. . . . ‘The question is: Did he [the party liable], to the detriment of someone else, obtain something of value to which he was not entitled?’ ” (Citations omitted; emphasis added.) Burns v. Koellmer, 11 Conn. App. 375, 384, 527 A.2d 1210 (1987).

        Marcus v. DuPerry, 223 Conn. 484, 491, 611 A.2d 859 (1992).


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    CONNECTICUT NATURAL GAS CORPORATION ET AL. v. DEPARTMENT OF CONSUMER PROTECTION ET AL.
    (15017)
    Dupont, C. J., and Lavery and Hennessy, Js.
    Argued May 29
    officially released September 17, 1996

      John C. Yavis, Jr., with whom were Everett E. Newton and, on the brief, Gale K. Busemeyer, for the appellants (plaintiffs).

      William M. Rubenstein, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (named defendant).

      Peter G. Boucher, for the appellees (defendant Connecticut Heating and Cooling Contractors Association, Inc., et al.).
   HENNESSY, J.

The plaintiffs, Connecticut Natural Gas Corporation and Yankee Gas Services Company (gas companies), appeal from the judgment of the trial court in favor of the defendant department of consumer protection dismissing the plaintiffs’ appeal from the declaratory ruling of the department’s examining boards. The gas companies appealed to the trial court seeking an order overruling the declaratory ruling by the state heating, piping and cooling work examining board and the state plumbing and piping work examining board (boards). The boards (1) ruled that employees of the gas companies who do repair and maintenance work on the consumer side of the gas meter require a license because the work is not a public utility service and because that work is not regulated by the department of public utilities control (DPUC), and (2) found that, pursuant to General Statutes § 20-340 (2), the gas companies’ service employees are not exempt from the licensing requirements of chapter 393 of the General Statutes. The trial court dismissed the gas companies’ appeal and rendered judgment for the defendants. The gas companies appeal from that judgment.

The gas companies set forth two issues on appeal. First, whether, in construing § 20-340 (2) and upholding the declaratory ruling of the administrative boards, the trial court improperly held that repair and maintenance service performed by gas company service employees is not performed “in connection with the rendition of public utility service.” Second, whether the trial court improperly denied the gas companies’ motion to reconsider and to withdraw its decision, which asserted that the administrative agencies’ declaratory ruling operates prospectively only and was mooted by subsequent legislation.

This controversy arose when the Connecticut Fleating and Cooling Contractor’s Association, Inc. (association), filed a petition for declaratory ruling with the department of consumer protection claiming that the gas companies compete unfairly against licensed plumbing and heating contractors. The association requested a ruling that the gas companies and their service employees are subject to the requirements of chapter 393 of the General Statutes, that the employees must possess occupational licenses to conduct service and repair activities on the customer’s side of the gas meter and that the employees do not fall within the exceptions to the licensing requirements set forth in § 20-340 (2). The department referred the petition to the boards. After conducting a joint hearing, the boards held for the association. The gas companies appealed to the Superior Court, which upheld the boards’ ruling, and this appeal followed.

I

The gas companies claim that in construing General Statutes § 20-340 (2) the trial court improperly held that repair and maintenance service of gas appliances performed by gas company service employees is not performed “in connection with the rendition of public utility service.” In 1965, the General Assembly enacted statewide occupational licensing requirements for persons in a number of trades including those performing service work on gas fired equipment and appliances. The legislation provided the following: “The provisions of this chapter shall not apply to . . . employees of any public service company regulated by the state department of public utility control.” General Statutes (Cum. Sup. 1965) § 20-340, as amended by Public Acts, Spec. Sess., February, 1965, No. 493, § 9. All parties to this action agree, and the trial court concluded, that under that legislation, gas company employees were exempted from the licensing requirements. In 1967, the General Assembly enacted further legislation amending the 1965 statute to limit the exemption to employees of regulated utilities “only if the work performed is in connection with the rendition of public utility service . . . .” Public Acts 1967, No. 789, § 12 (now General Statutes § 20-340). The subject of disagreement among the parties is the interpretation of the wording added to § 20-340 (2) in 1967. The gas companies argue that the legislature added this language to ensure that gas company technicians could not perform maintenance and repair service to gas appliances outside the gas companies’ employment without licensing. They further argue that the 1967 amendment was technical and clarifying and did not introduce a substantive change in the law. The plain meaning of the words, coupled with a reading of the legislative history, they claim, supports the conclusion that the words “in connection with” links gas service work with public utility service, thereby exempting gas service workers from the need to be licensed in accordance with the statute. In addition, the gas companies argue that because they are regulated by the DPUC they are not subject to oversight by the licensing boards of the department of consumer protection. The defendants argue that the maintenance and repair of gas appliances are services not regulated by the DPUC and, therefore, are not “utility services” within the scope of the § 20-340 (2) exemption.

We are not persuaded by the gas companies’ argument that, because the dictionary definition of the words “in connection with” means “touching on,” the repair and maintenance of devices that use gas are exempted because it “touches on” the provision of gas to the customer. The exemption does not apply to all those who serve gas company customers in any manner, but only to those who render public utility service to customers. Our statutes do not define the term “public utility service.” When the legislature has not defined a term, “it is appropriate to look to the common understanding expressed in the law and in dictionaries.” Doe v. Manson, 183 Conn. 183, 186, 438 A.2d 859 (1981). Pursuant to General Statutes § 16-1 (a) (4), a public service company includes gas companies. Subdivision (9) of General Statutes § 16-1 (a) provides that a gas company includes “every corporation . . . maintaining, operating, managing or controlling mains, pipes or other fixtures, in public highways or streets, for the transmission or distribution of gas for sale for heat or power within this state . . . .” It is clear from the definition of a gas company that its function is to transmit and distribute gas. The legislature did not define a gas company as an entity assigned the function of maintaining or repairing gas appliances used by its customers. It is reasonable, therefore, to conclude that the term “public utility service” as used in its statutory sense does not include the repair and maintenance of gas appliances.

We find further support for this conclusion in the wording of § 20-340 (2). In addition to granting an exemption from licensing requirements “if the work performed is in connection with the rendition of public utility service,” § 20-340 (2) also grants an exemption for work performed “in connection with the installation or maintenance of wire or telephone sets for single-line telephone service located inside the premises of a consumer . . . .” It is apparent that the legislature distinguished between the public utility function of telephone companies outside the consumer premises and work performed within the premises. Such an exemption from licensing requirements for telephone company employees was specifically stated in § 20-340 (2). Had the legislature wanted to exempt gas companies, it could have included a similar exemption. See Gay & Lesbian Law Student Assn. v. Board of Trustees, 236 Conn. 453, 476, 673 A.2d 484 (1996). The legislature, however, did not similarly state an exemption for gas company employees for the repair and maintenance of gas appliances.

While it is true that gas companies are regulated by the DPUC, the gas companies’ argument that this regulation places them outside the jurisdiction of the licensing boards of the department of consumer protection does not persuade us. The statutory scheme of § 16-1 (a) (9), which sets forth the functions of a gas company, read together with General Statutes § 16-11, which limits the regulatory authority that the DPUC exercises over utilities to the duties set forth in § 16-1 (a) (9), does not place the repair and maintenance of gas appliances within that which is termed “public utility service.” It is our conclusion that the trial court was correct in its interpretation of General Statutes § 20-340 (2).

We conclude that the statute does not exempt gas company employees from its licensing requirements when they function as repairers and maintainers of gas appliances on the premises of consumers.

II

The gas companies next claim that the trial court improperly denied their motion to reconsider and to withdraw its decision. The motion requested the trial court to withdraw its judgment dismissing the gas companies’ appeal of the ruling that gas company employees who repair and maintain gas appliances are not exempt under § 20-340 (2) from the licensing requirements of chapter 393 of the General Statutes. The gas companies contend that the passage of Public Acts 1995, No. 95-295 (P.A. 95-295), which provides a certification procedure for gas company employees who repair and maintain gas appliances, renders the declaratory ruling and the trial court’s judgment moot.

Public Act 95-295, § 1, became law subsequent to the trial court’s denial of the motion to reconsider and to withdraw its decision and provides in relevant part: “(b) Notwithstanding any provisions of chapter 393 of the general statutes to the contrary, a public service gas technician shall be issued a certificate of registration by the department of consumer protection in lieu of any license which otherwise might be required under said chapter, which shall entitle the holder thereof to perform gas service work only as provided in this section, provided the public service company which employs said public service gas technician certifies to the department of consumer protection that the individual has obtained such training and experience deemed necessary by said public service company to perform gas service work included in such employee’s job functions. ...”

Mootness presents a circumstance wherein the issue before the court has been resolved or has lost its significance because of a change in the condition of affairs between the parties. See 5 Am. Jur. 2d, Appellate Review § 642 (1995). “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 249, 440 A.2d 310 (1982).

In this case, the issue is whether the passage of P.A. 95-295 resulted in the resolution of the issues such that this court cannot grant any practical relief. The public act does not repeal § 20-340. Those who are not exempt from the licensing provisions under § 20-340 (2) continue to need a license, including those who repair and maintain gas appliances. Public Act 95-295 orders the department of consumer protection to issue a certificate of registration only to those employees of the gas companies who repair and maintain appliances and have been trained and certified by the gas companies to perform such work. The certificate of registration is in lieu of the license required by § 20-340. The statute and the public act exist side by side. The passage of P.A. 95-295 does not, therefore, resolve the differences among the parties. Unlicensed gas company employees who performed repair and maintenance work on gas appliances prior to the passage of P.A. 95-295 were not exempt from the licensing requirements of chapter 393.

The association, which initiated the request for the declaratory ruling, has argued that the gas companies competed unfairly against licensed plumbing and heating contractors and that the decision of this court could have a significant bearing on the outcome of future litigation. The gas companies admitted this possibility in their motion to reconsider and to withdraw the decision. Section 20-340 (2) requires that gas company employees not classified as public service gas technicians and not trained and certified in accordance with P.A. 95-295 must be licensed in accordance with chapter 393 if they are to perform repair or maintenance work on gas appliances. To dismiss as moot the trial court’s ruling interpreting § 20-340 (2) could result in arguments again being made that public utility employees axe exempt from the licensing requirements of chapter 393. Allowing the trial court’s interpretation to stand clarifies the meaning of § 20-340 (2). We conclude that the passage of P.A. 95-295 did not result in the trial court’s rulings being rendered moot.

The judgment is affirmed.

In this opinion the other judges concurred.

       The Southern Connecticut Gas Company was a party to the administrative proceedings and the appeal to Superior Court. It is not participating in this appeal.

       In addition to the department of consumer protection, the other defendants are the state heating, piping and cooling work examining board, the state plumbing and piping examining board, the Connecticut Heating and Cooling Contractors Association, Inc., and the Connecticut Association of Plumbing, Heating and Cooling Contractors, Inc.

       Both boards are agencies of the department of consumer protection.

       General Statutes § 20-340, entitled “Exemptions from licensing requirements,” provides in relevant part: “The provisions of this chapter shall not apply to . . . (2) employees of any public service company regulated by the state department of public utility control ... if the work performed is in connection with the rendition of public utility service . . . .”

       The trial court considered the argument of the gas companies that the imminent passage of P.A. 95-295 would render the trial court’s judgment moot. The trial court correctly noted that “[t]he prediction of mootness because of hoped for legislative action is not a reason for withdrawing a ruling entered on the current state of the law.”


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. JEFFREY CHACE
    (14640)
    Foti, Lavery and Landau, Js.
    Argued May 30
    officially released September 24, 1996

      Michael A. Fitzpatrick, for the appellant (defendant).

      SusannE. Gill, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda N. Howe, assistant state’s attorney, for the appellee (state).
   LAVERY, J.

The defendant, Jeffrey Chace, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree and assault in the second degree. The jury returned a verdict of guilty of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (3). The trial court directed an acquittal on the assault charge filed under to § 53a-59 (a) (1) and directed a verdict of guilty of the lesser included offense of assault in the second degree under General Statutes § 53a-60 (a) (2). The trial court sentenced the defendant to an effective sentence of twelve years, suspended after five years, followed by a five year probationary period. On appeal, the defendant claims that (1) the constitutional guarantee against double jeopardy precluded the retrial that led to his conviction, (2) his conviction was based on insufficient evidence, and (3) the trial court’s failure to give a jury instruction deprived him of a unanimous verdict. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of July 3, 1991, the defendant approached the Can’t Lose Cafe, a bar in Bridgeport. Upon seeing a fight involving several men, including the victims, taking place outside the bar, the defendant ran to his car to get a knife and returned to the fight. There, the defendant stabbed Sean Langan in the lower back. Sean Langan’s brother, Mark Langan, then chased the defendant down a street. At some point, the defendant stopped running, turned and stabbed Mark Langan twice in the chest.

I

The defendant first claims that his retrial was barred by the double jeopardy clause of the fifth amendment to the United States constitution and by the constitution of Connecticut.

The following procedural history is necessary for the resolution of this claim. A trial on the assault charges began on May 2, 1994. After a jury had been sworn, the state called a witness whose testimony prompted the defendant to move for a mistrial. The trial court granted the motion and, at the retrial, the defendant was convicted of the assault charges. The defendant invokes the principle of double jeopardy for the first time on this appeal.

We conclude that this issue is controlled by our Supreme Court’s decision in State v. Price, 208 Conn. 387, 544 A.2d 184 (1988). In Price, the court determined that where, as in this case, a defendant proceeds to trial, verdict and judgment without raising a double jeopardy claim, such failure is an implied waiver of the defense of double jeopardy. Id., 390. Thus, we need not consider the merits of this claim.

II

The defendant next claims that the state failed to disprove beyond a reasonable doubt that he was acting in self-defense when he stabbed the two victims. He contends that each victim threatened him with a baseball bat immediately before he stabbed them. In reviewing a sufficiency of the evidence claim, “we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Mejia, 233 Conn. 215, 223, 658 A.2d 571 (1995).

A review of the record discloses that the evidence presented at the defendant’s trial was sufficient to support the jury’s finding beyond a reasonable doubt that the defendant was not acting in self-defense when he stabbed the two victims.

Ill

The defendant last asserts that the trial court’s failure to instruct the jury that it had to agree unanimously on which of the alternative ways the state had disproven the defendant’s claim of self-defense deprived the defendant of a unanimous verdict. The defendant reasons that because a unanimous verdict requires “the jurors [to] agree on the factual basis of the offense”; State v. McFadden, 25 Conn. App. 171, 174, 593 A.2d 979, cert. denied, 220 Conn. 906, 593 A.2d 971 (1991); the jurors must also be unanimous on the factual basis for its rejection of a self-defense claim. The defendant concedes that this claim was not properly preserved at trial and seeks review under the Evans-Golding doctrine.

The resolution of this issue is controlled by our Supreme Court’s decision in State v. Bailey, 209 Conn. 322, 551 A.2d 1206 (1988). In Bailey, the court determined that the defendant’s claim of a deprivation of her right to a unanimous verdict on her self-defense claim did not implicate a fundamental constitutional right. Id., 332. Because a defendant’s claim must implicate a fundamental constitutional right in order for us to review the claim under Evans-Golding, we need not address the merits of this issue.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument ... or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . . ”

       General Statutes § 53a-60 (a) provides in pertinent part: “A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person . . .

       See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 70, 327 A.2d 526 (1973).

       Even if we were to review the merits of the defendant’s claim, “[a]s in Bailey, the defendant here is unable to provide us with any authority for the proposition that a unanimity instruction was required as to the factual basis for the jury’s rejection of his self-defense claim . . . .” State v. Diggs, 219 Conn. 295, 302, 592 A.2d 949 (1991).


author: SPEAR, J. LAVERY, J.,

text:
    STATE OF CONNECTICUT v. MICHAEL PIORKOWSKI
    (13537)
    O’Connell, Foti, Lavery, Landau, Heiman, Spear and Hennessy, Js.
    Submitted on briefs May 22
    officially released September 24, 1996

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, was Joseph G. Bruckmann, public defender, for the appellant (defendant).

      Judith M. Rossi, assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and James Bemardi, assistant state’s attorney, for the appellee (state).
   SPEAR, J.

Our Supreme Court, in reversing this court’s decision, has determined that the defendant’s claims on his motion to suppress are reviewable on appeal pursuant to Practice Book § 4003 (b). On remand, the Supreme Court has directed us to determine whether the trial court properly refused to suppress two statements that the defendant gave to police officers.

The defendant asserts that his first statement, given October 21, 1992, should be suppressed pursuant to General Statutes § 54-lc because it was obtained in violation of the prompt arraignment requirements of General Statutes § 54-lg. He claims that his second statement, given October 22, 1992, should be suppressed because it was obtained in the absence of the attorney who had earlier been appointed to represent him, in violation of his right to counsel under article first, § 8, of the constitution of Connecticut. We affirm the judgment of the trial court.

The record discloses the following factual and procedural history. The defendant was arrested on drug charges early in 1992 and thereafter was recruited as a confidential informant by the Norwalk police department. He informed the police that Tim Lee was involved in marijuana trafficking. During the ensuing investigation of Lee, the defendant arranged to purchase marijuana from Lee. That transaction was observed by an officer of the Norwalk police department, but without the knowledge of the police, the defendant had also arranged to sell cocaine to Lee. Some time after that transaction, the defendant killed Lee during an argument over the cocaine sale.

The following facts relating to the defendant’s statements were set out in State v. Piorkowski, 236 Conn. 388, 672 A.2d 921 (1996). “On approximately October 10, 1992, Lee’s body was discovered in New Jersey. In the early morning of October 20, 1992, Norwalk Detective Robert DeLallo learned that Christine Thompson, a friend of Lee, had given New Jersey police a statement implicating the defendant in Lee’s murder. At approximately 7:30 a.m. on October 20, DeLallo and other officers located the defendant in Norwalk and, during a frisk of the defendant for weapons, found drugs and drug paraphernalia on his person. The police arrested the defendant on drug charges, orally advised him of his Miranda rights, and brought him to the Norwalk police station at approximately 8 a.m.

“The defendant was not presented in court on the drug charges on October 20, but was held in the police department lockup while the police continued to investigate Lee’s murder. At approximately 11 p.m., on October 20, the police secured an arrest warrant charging the defendant with Lee’s murder. At approximately midnight on October 21, [Detective James] Saraceni and Detective Nelson Alicia awakened the defendant in his lockup cell. The defendant indicated that he wanted to talk with Saraceni, after which the detectives took the defendant to an interview room, where Saraceni informed him that the police had an arrest warrant for the defendant on a murder charge. Saraceni told the defendant that he would talk to him only after giving him the Miranda warnings and having him fill out a waiver of rights form. Saraceni read the waiver of rights form to the defendant, who did not sign the form. Sara-ceni then interrogated the defendant in Alicia’s presence. During the interrogation, the defendant spoke freely, giving a detailed statement implicating himself in Lee’s murder.

“The detectives concluded their interrogation of the defendant at approximately 2 a.m. on October 21, 1992. Later that day, approximately twenty-six hours after his arrest on the drug charges, the defendant was arraigned in geographical area number twenty of the Superior Court on both the drug and murder charges; that court had been in session on October 20. A public defender was appointed to represent the defendant on both charges.

“At approximately 10:30 p.m. on October 21, DeLallo and Detective Charles Chrzanowski went to the home of Denise Van Valen, with whom the defendant lived, to ascertain whether she had any information regarding the murder of Lee. While they were in Van Valen’s home, the defendant called her from the Bridgeport correctional center. Van Valen told the defendant that the detectives were there, and asked him if he wanted to talk to DeLallo. The defendant indicated that he did, and she handed the telephone to DeLallo. When the defendant asked DeLallo to come to the jail to speak to him, DeLallo told the defendant that he would try to see him at the jail the next day. When Van Valen visited the defendant at the jail on October 22, she learned that DeLallo had not yet visited the defendant. Later that day Van Valen called DeLallo and asked him why he had not yet visited the defendant.

“Although DeLallo was aware that the defendant was represented by an attorney on the murder charge, no call was placed to the public defender assigned to the defendant’s case. After Van Valen’s call to him on October 22, DeLallo spoke to assistant state’s attorney James Bemardi and state’s attorney’s inspector PM O’Grady, in order to determine whether he could appropriately interview the defendant at the jail. Bemardi and O’Grady advised DeLallo that, if the defendant had initiated the contact with him and had requested to speak with him, it was permissible to interview him regarding the murder charge. Having obtained approval from the state’s attorney’s office, DeLallo and Alicia visited the defendant at the jail on the evening of October 22. Neither the detectives nor the state’s attorney’s office informed the defendant’s counsel of the detectives’ intention to interview the defendant. The detectives read him a Miranda rights and waiver form, which he initialed and signed. They then interviewed him about the Lee murder, and he gave another oral statement.” Id., 393-95.

The defendant moved to suppress the October 21 statement on the grounds that (1) he had not waived his Miranda rights and (2) the statement was the product of a violation of his right to a prompt arraignment, as provided under § 54-lc. In the same motion, the defendant moved to suppress the October 22 statement on the grounds that (1) the statement was the fruit of the illegal October 21 interrogation, and (2) the statement was taken in violation of his right to counsel.

The trial court denied the motion to suppress, concluding that (1) the defendant had knowingly and intelligently waived his Miranda rights prior to making the October 21 statement, (2) the defendant’s arraignment was timely because § 54-lg requires arraignment no later than the next court day following an arrest, (3) the October 22 statement was not invalid because the defendant had validly waived his rights on October 21, and (4) the defendant’s right to counsel pursuant to article first, § 8, of the Connecticut constitution was not violated because that section does not require that counsel be present for a valid postarraignment waiver of the right to counsel.

The defendant entered a conditional plea of nolo contendere to the charge of murder with the agreement of the state and the approval of the court. The defendant expressly conditioned his plea on the right to vacate it if his appeal of the trial court’s denial of the motion to suppress was successful with respect to either or both of the statements.

I

The trial court correctly noted that the defendant’s prompt presentment claim made pursuant to § 54-lg is controlled by three cases. State v. Vollhardt, 157 Conn. 25, 39, 244 A.2d 601 (1968); State v. Darwin, 155 Conn. 124, 133-34, 230 A.2d 573 (1967), rev’d on other grounds, 391 U.S. 346, 88 S. Ct. 1488, 20 L. Ed. 2d 630 (1968); State v. Hardy, 11 Conn. App. 238, 239, 526 A.2d 562 (1987).

In Darwin, the defendant was arrested at about 9:40 a.m. on Friday, December 6,1963. General Statutes § 54-lb provided at that time that any person arrested be “presented before the circuit court session next held in the circuit where the offense is alleged to have been committed.” General Statutes § 54-lc provided at that time that “[a]ny admission, confession or statement, written or oral, obtained from an accused person who has not been so presented to the first session of the [circuit] court . . . shall be inadmissible.” The Circuit Court convened at 10 a.m. on December 6, 1963, but was not in session on Saturday, December 7 or Sunday, December 8. Darwin was presented at the court session on Monday, December 9, 1963. Darwin claimed that because he was arrested at 9:40 a.m. on December 6, the next session of the Circuit Court was convened at 10 a.m. that day. He claimed that because he was not presented on December 6, his statement made between his arrest and his arraignment on December 9 should be suppressed. The Supreme Court affirmed the trial court’s ruling that the “next session” of the Circuit Court meant the regular session next to be held, excluding any session held on the day of the arrest. State v. Darwin, supra, 155 Conn. 134.

In Vollhardt, the defendant did not claim that there was a delay in his presentment to the Circuit Court, but rather that his statements made after his arrest and before arraignment should be suppressed because §§ 54-1b and 54-1c, as then constituted, rendered inadmissible any confession obtained before an accused had been warned of his constitutional rights in court. In rejecting this claim, our Supreme Court stated: “We cannot agree with this construction. The language of the statutes is clear and unambiguous, and, accordingly, their intent is to be determined from the language used. . . . The purpose of the statutes is to ensure that an accused is presented before the session of the Circuit Court next held, which in this case would be the day following his arrest, at which time he must be advised of his rights before he is put to plea.” (Citations omitted; emphasis added.) State v. Vollhardt, supra, 157 Conn. 38-39.

In Hardy, this court affirmed the trial court’s refusal to suppress a statement taken after a defendant’s arrest at 7:11 a.m. on September 19, 1985, and prior to the defendant’s arraignment on the next regularly scheduled court date, September 20, 1985. We stated that “our Supreme Court [in Darwin] rejected a claim of untimely arraignment under circumstances nearly identical to those in this case. See also State v. Vollhardt, [supra, 157 Conn. 39]. The trial court, in refusing to suppress the defendant’s statements, properly applied the holding in Darwin.” State v. Hardy, supra, 11 Conn. App. 239-40.

The defendant, while acknowledging these three cases, argues that the change in § 54-lg from a requirement that an arrested person be “presented before the circuit court session next held” to the present language that an arrested person “shall be promptly presented before the superior court sitting next regularly” vitiates the holdings of Darwin and Vollhardt. (Emphasis added.) He further claims that Hardy should not be deemed authoritative because, although the defendant’s claim was made under the current version of the statute, counsel failed to bring to the court’s attention the change in the language.

We agree with the trial court’s statement that “the defendant loads the term ‘promptly’ with too much freight.” Unlike the decisions in Darwin and Vollhardt, our decision in Hardy came after the legislature added the word “promptly” to the statutoiy provisions in effect at the time of arraignment. In that case, we cited Darwin and Vollhardt and concluded that the addition of the word “promptly” did not diminish or overrule those two decisions. Moreover, although the legislature inserted the word “promptly” in the statute, § 54-lg still requires presentment “before the superior court sitting next regularly for the geographical area where the offense is alleged to have been committed. . . .” (Emphasis added.) The use of the word “promptly,” therefore, does not change the statute’s essential meaning, specifically, that the defendant must be brought before the next session of the court, excluding any session held on the day of his arrest. Accordingly, we conclude that Domain, Vollhardt and Hardy mandate that we affirm the trial court’s denial of the defendant’s motion to suppress on this ground.

II

The defendant claims that article first, § 8, of the Connecticut constitution precludes the admission of his October 22 statement given in the absence of counsel during a police interview that he initiated. He asserts that because he had previously been arraigned on the murder charge and was represented by counsel on that charge, he could not validly waive his right to counsel without the presence of counsel.

We begin our analysis by noting that the defendant does not challenge the trial court’s findings that he initiated the police interview or that he validly waived his Miranda rights. We also note that the trial court found that the defendant had six prior convictions, was an informant and, consequently, was familiar with his rights as a result of these prior involvements.

The defendant claims that the state constitutional right to counsel has significance independent of its sixth amendment federal counterpart. Relying on State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992), the defendant asserts his state constitutional claim using the following tools of analysis: (1) historical background, (2) holdings and dicta of the Supreme and Appellate Courts of Connecticut, (3) decisions of other states, (4) policy and sociological data, and (5) federal precedent. The defendant contends that a proper consideration of the Geisler factors should lead us to adopt, as a matter of state constitutional law, the prophylactic rule set forth in People v. Settles, 46 N.Y.2d 154, 385 N.E.2d 612, 412 N.Y.S.2d 874 (1978). In Settles, the New York Court of Appeals decided that under the state constitution, a proper postindictment waiver of counsel may occur only in the presence of counsel.

We agree with the defendant that Connecticut has a long tradition of supporting the right to counsel in criminal matters. Nevertheless, we conclude that State v. Jones, 205 Conn. 638, 534 A.2d 1199 (1987), precludes us from adopting the per se rule that the defendant advances. Our view of Jones also dispenses with the need to analyze the Geisler factors.

In Jones, the defendant asked a police detective to come to his cell and talk to him, even though the defendant had been arraigned and had a right to counsel. After a valid waiver of his Miranda rights, the defendant gave an incriminating statement to the detective. The trial court admitted the statement into evidence at trial. On appeal, the defendant claimed that his federal and state constitutional rights to counsel were violated by the admission of the statement. Our Supreme Court concluded that the defendant’s federal and state constitutional rights to counsel and to remain silent were not violated when, “after the initiation of adversarial judicial criminal proceedings, a police officer, with the permission of the prosecuting attorney, met with him and interrogated him.” Id., 641-42.

In Jones, the court addressed the defendant’s state constitutional claim. “The defendant also asserts the denial of his state constitutional right to counsel and denies having waived that right. . . . We make only two observations about the defendant’s discussion of the state constitutional issue in his reply brief. First, he seems to claim that we ought to require a higher standard of waiver for Miranda rights than heretofore. Yet, he elucidates no analysis in that regard except to say that ‘[ijdeally,’ waiver should be in the presence of a neutral magistrate or the defendant’s lawyer and that ‘[m]inimally,’ it should be executed unambiguously and preserved on tape, videotape or in writing. We decline to take that step in this case. Second, the circumstances of this case, including the conduct of the defendant and the police, are such that the rights claimed to have been violated were ‘scrupulously honored’ under even a more liberal standard than that required by the United States constitution.” Id., 641-42 n.3.

In deciding People v. Settles, supra, 46 N.Y.2d 164, the New York Court of Appeals noted that “[t]he fact that [the] defendant did not have an attorney appointed at the time the police sought their waiver is a distinction without a difference as far as the right to counsel is concerned. The right to counsel is not dependent upon the speed with which an attorney can be retained nor does it pivot on the length of police delay in arraigning an indigent defendant so that counsel maybe appointed. To ground an indicted defendant’s right to counsel upon such fortuitous criteria is to debase that right into nothing more than a race for the wary. ... Of course, a postindictment defendant may knowingly and intelligently waive his right to counsel at any stage of the judicial proceedings .... But no knowing and intelligent waiver of counsel may be said to have occurred without the essential presence of counsel.” (Citations omitted.)

The defendant asks us to incorporate into our interpretation of article first, § 8, the Settles per se rule that one may not waive counsel without counsel’s presence after the initiation of adversarial judicial proceedings. We conclude that to do so would conflict with the approach of our Supreme Court in State v. Jones, supra, 205 Conn. 638. In Jones, our Supreme Court did not adopt a bright line rule that once the right to counsel attaches, there can be no valid waiver of that right without the presence of counsel. In rejecting the defendant’s claim, the court considered all of the circumstances and concluded that where the defendant, after being arraigned and in the absence of counsel, initiated the police interview, waived his Miranda rights, and gave a statement to a police officer, there was no violation of his state constitutional right to counsel. Id., 641-42 n.3.

The judgment is affirmed.

In this opinion O’CONNELL, FOTI, LANDAU, HET-MAN and HENNESSY, Js., concurred.

LAVERY, J.,

dissenting. I respectfully disagree with part II of the majority opinion in which the majority concludes that State v. Jones, 205 Conn. 638, 534 A.2d 1199 (1987), precludes this court from adopting the holding of the New York Court of Appeals in People v. Settles, 46 N.Y.2d 154, 385 N.E.2d 612, 412 N.Y.S.2d 874 (1978). I would conclude that article first, § 8, of the Connecticut constitution requires that a valid postinfor-mation waiver of the right to counsel may occur only in the presence of counsel.

In Jones, the defendant first raised the state constitutional claim in his reply brief. The defendant elucidated no state constitutional analysis except to say that “ ‘[ijdeally,’ waiver should be in the presence of a neutral magistrate or the defendant’s lawyer and that ‘[m]in-imally,’ it should be executed unambiguously and preserved on tape, videotape or in writing.” State v. Jones, supra, 205 Conn. 641-42 n.3. In the present case, the defendant has provided this court with a detailed state constitutional analysis that addresses each of the tools as outlined in State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992). Our courts have made it abundantly clear that we will decline to review state constitutional claims that are not adequately briefed. State v. Faust, 237 Conn. 454, 465 n.10, 678 A.2d 910 (1996); State v. Van Der Werff, 8 Conn. App. 330, 335 n.3, 515 A.2d 380, cert. denied, 201 Conn. 808, 513 A.2d 154 (1986). I believe that, in light of the full analysis provided by the parties, Jones does not preclude this court from addressing the defendant’s state constitutional claim.

In State v. Stoddard, 206 Conn. 157, 164-66, 537 A.2d 446 (1988), a case involving police interference with counsel’s access to a custodial suspect, our Supreme Court discussed the historical significance of the right to counsel, even before that right attained federal constitutional importance. “When the customary right to counsel was formally incorporated into the Connecticut constitution in 1818, ‘the advice and services of counsel were regarded as crucial to a criminal defendant at any time, especially given the inability of a defendant to testify in Connecticut in 1818.’ State v. Davis, [199 Conn. 88, 99-100, 506 A.2d 86 (1986)]. More contemporary developments suggest that this state’s commitment to securing the right to counsel has not diminished since 1818. Not only was Connecticut ‘the first state to adopt the public defender system’; State v. Hudson, 154 Conn. 631, 635, 228 A.2d 132 (1967); but the right to counsel ‘was secured to criminal defendants in this state long before the mandate of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 [(1962) (holding that the fourteenth amendment incorporated the sixth amendment right to counsel)] . . . .’ Spring v. Constantino, 168 Conn. 563, 566-67 n.2, 362 A.2d 871 (1975). The United States Supreme Court has turned to the historical experience of Connecticut in expanding the right to counsel under the federal constitution. Faretta v. California, 422 U.S. 806, 827, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Powell v. Alabama, [287 U.S. 45, 62-63, 53 S. Ct. 55, 77 L. Ed. 158 (1932)].” State v. Stoddard, supra, 165. “It is clear, from this rich history, that the fundamental right to counsel is elevated to the highest order.” State v. Hamilton, 228 Conn. 234, 260, 636 A.2d 760 (1994) (Berdon, J., dissenting).

In Stoddard, the Supreme Court specifically held that a custodial suspect must be informed promptly of timely efforts by counsel to render pertinent legal assistance. “Armed with that information, the suspect must be permitted to choose whether he wishes to speak with counsel, in which event interrogation must cease, or whether he will forego assistance of counsel, in which event counsel need not be afforded access to the suspect.” State v. Stoddard, supra, 206 Conn. 166-67.

Once the suspect is charged with a crime, however, the character of the police function shifts from investigatory to accusatory. “For this reason, the warnings which are sufficient to comply with the strictures against testimonial compulsion do not satisfy the higher standard with respect to a waiver of the right of counsel. Prior to [the information], there may be valid reasons why an uncounseled suspect might wish to deal with the police. He may nourish the hope, however vain, that he can avoid any legal entanglement by simply clearing up a few loose ends. Alternatively, he may feel that by getting into the good graces of the police as an informer he might be able to avoid [being charged] and trial . . . .” (Citation omitted.) People v. Settles, supra, 46 N.Y.2d 163.

I would conclude that the historical significance of counsel in Connecticut mandates an independent state constitutional doctrine providing that a criminal defendant who has been charged, is in custody, has been arraigned and has been appointed counsel may not waive his right to counsel for purposes of police interrogation unless he does so in the presence of counsel. Although a defendant may knowingly and intelligently waive his right to counsel at any stage of the judicial proceedings, no knowing and intelligent waiver of appointed counsel may be said to have occurred without the essential presence of counsel.

Accordingly, I respectfully dissent.

        State v. Piorkowski, 236 Conn. 388, 672 A.2d 921 (1996).

       Practice Book § 4003 (b) provides in relevant part: “With the approval of the court, after a hearing to consider any objections thereto, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any motion made prior to the close of evidence, which motion must be specified in such written reservation. If the defendant prevails on appeal, the judgment shall be set aside and the defendant shall be allowed to withdraw the conditional plea of . . . nolo contendere after the case has been remanded to the trial court. . . . The court shall not accept a plea of guilty or nolo contendere pursuant to this subsection where the adverse determination of the specified motion would not have a significant impact on the disposition of the case in the trial court. The court shall also decline to accept such a nolo contendere or guilty plea where the record available for review of the ruling upon the specified motion is inadequate for appellate review of the court’s determination thereof.”

       General Statutes § 54-lc provides: “Admissibility of confession. Any admission, confession or statement, written or oral, obtained from an accused person who has not been presented to the first session of the court, or on the day specified for arraignment under the provisions of section 54-lg, or who has not been informed of his rights as provided by section 54-lb or section 54-64b, shall be inadmissible.”

       General Statutes § 54-lg provides in relevant part: “Time of arraignment. Violations of protective orders, (a) Any arrested person who is not released sooner or who is charged with a family violence crime as defined in section 46b-38a shall be promptly presented before the superior court sitting next regularly for the geographical area where the offense is alleged to have been committed. If an arrested person is hospitalized, or has escaped or is otherwise incapacitated, the person shall be presented, if practicable, to the first regular sitting after return to police custody.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The motion printed in the record claims a violation of the sixth amendment to the United States constitution. Apparently, the motion was thereafter amended because the trial court resolved only a Connecticut constitutional claim and, on appeal, the parties argued only the Connecticut constitutional claim.

       The defendant, although disagreeing with the state’s contention that this claim is foreclosed by federal constitutional law, expressly limits his claim to the Connecticut constitution.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall epjoy the right ... to have the assistance of counsel for his defense.”

       We must note that in Jones, the defendant had been appointed counsel, but for bond purposes only.


text:
    PETER DISCUILLO v. STONE AND WEBSTER ET AL.
    (14863)
    Dupont, C. J., and Lavery and Schaller, Js.
    Argued May 2
    officially released September 24, 1996

      Amy M. Stone, with whom were Carolyn P. Kelly and, on the brief, Nathan Julian Shafner, for the appellant (plaintiff).

      Lucas D. Strunk, for the appellee (named defendant et al.).
   LAVERY, J.

The plaintiff appeals from the judgment of the compensation review board (board) dismissing the plaintiffs claim for compensation benefits. On appeal, the plaintiff claims that the board improperly determined that the plaintiff failed to file a notice of claim in a timely manner as required by General Statutes (Rev. to 1981) § 31-294. We affirm the judgment of the board.

The commissioner found the following facts. Prior to November 12,1982, the plaintiff was employed by the defendant, Stone & Webster, as a painter. The plaintiff s responsibilities required him to climb ladders and to work on scaffolding while carrying five gallon buckets of paint and heavy pneumatic grinding equipment. While working, the plaintiff was constantly watched by job supervisors who pressured the plaintiff and his coworkers to get work done within certain time constraints. The plaintiff testified that he was in constant fear of losing his job because of his inability to keep up with the speed at which younger coworkers accomplished the same work.

On November 12, 1982, the plaintiff sustained a heart attack after working the entire day on scaffolding using a heavy grinding machine. The plaintiff has not worked since that date. The plaintiff did not relate the heart attack to job stress until September, 1984, when he read in a newspaper about a similar case. On September 27, 1984, the plaintiff filed a notice of claim that identified his injury as the November 12, 1982 heart attack while in the defendant’s employ. On October 22, 1984, the defendant filed a notice contesting the claim on the grounds that (1) the heart attack did not arise out of the employment and (2) the claim was barred by the § 31-294 time limitations.

On December 13, 1993, the commissioner issued his findings and award. The commissioner found that the heart attack suffered by the plaintiff arose out of the course of his employment with the defendant and was caused by physical and mental stress while on the job, as well as arteriosclerotic heart disease. The commissioner also found that the plaintiff filed the notice of claim within one year of the date on which the plaintiff understood the causal relationship between the heart attack and the job stress. The commissioner concluded that the plaintiffs claim was not time barred under § 31-294.

The board reversed the commissioner’s decision and concluded that the plaintiffs claim is barred by § 31-294. The board held that a heart attack is an accidental injury and not an injury that is the direct result of repetitive trauma and that notice of claim for a heart attack must be filed within one year of the attack to be timely. We agree with the board that the plaintiff has failed to file a notice of claim in a timely manner.

“Our standard of review of the board’s determination is clear. ‘[T]he [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. Although the [board] may take additional material evidence, this is proper only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . .’ Six v. Thomas O’Connor & Co., [235 Conn. 790, 798-99, 669 A.2d 1214 (1996)].” Williams v. Best Cleaners, Inc., 237 Conn. 490, 500-501, 677 A.2d 1356 (1996).

Our Supreme Court has concluded that the one year filing limitation of § 31-294 applies to both repetitive trauma and accidental injury claims. Crochiere v. Board of Education, 227 Conn. 333, 354-55, 630 A.2d 1027 (1993). It is settled law that the date of injury is either the last day of exposure to the work related incidents of repetitive trauma or the date of the accident. Id., 354. The last day of exposure is usually the last date of employment. Id., 353-54; see also Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994). In this case, the plaintiff failed to file a notice of claim within one year from the last date of employment, which was the day that he suffered the heart attack. Whether a heart attack is labeled an accidental injury or an injury resulting from repetitive stress is of no consequence in this case because the one year filing period began running on the last day of the plaintiffs employment. We do not address issues that are irrelevant to the disposition of the appeal. Housing Authority v. Olesen, 31 Conn. App. 359, 361, 624 A.2d 920 (1993). The board, therefore, properly concluded that the plaintiffs claim is barred by § 31-294.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1981) § 31-294 provides in pertinent part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury . . . .”

       The defendants in this case are Stone & Webster, Aetna Casualty and Surety Company and the second injury fund. For purposes of this appeal, we will refer to Stone & Webster as the defendant.