text:
    ISABEL PARASCO v. AETNA CASUALTY AND SURETY COMPANY ET AL.
    (AC 16512)
    Foti, Hennessy and Stoughton, Js.

      Argued February 19
    officially released May 19, 1998

      James T. Scully, with whom, on the brief, was Louis B. Blumenfeld, for the appellants (defendants).

      Joanne Heslin Laverty, for the appellee (plaintiff).
   Opinion

STOUGHTON, J.

This is an appeal by the defendants after a trial in which they admitted liability and the jury awarded $36,397.25 to the plaintiff for personal injuries sustained when she was struck by a motor vehicle. The vehicle was underinsured, and the plaintiff brought this action against her insurance carriers. The trial court concluded that the verdict was inadequate, set aside the verdict and ordered a new trial if the defendants did not agree to an additur of $72,500. The defendants did not agree to the additur and this appeal followed. We reverse the trial court’s additur order and direct a judgment on the verdict.

The following facts are undisputed. On November 9, 1986, the plaintiff was walking from her parked automobile toward the entrance to an East Hartford movie theater when she was struck by a car. An ambulance took her to Hartford Hospital, where she was treated for various injuries and released.

At the trial, the jury heard conflicting testimony concerning the nature, extent and duration of the plaintiffs injuries. The plaintiff offered evidence that she had sustained injuries to her head, neck, hips and right shoulder. She complained of headaches and depression, and claimed a substantial amount in lost earnings. She sought treatment to alleviate her headaches. She received a diagnosis of subacromial bursitis and chronic pain of the right shoulder and residual swelling on the right thigh and hip area. One of her physicians estimated a 5 percent partial impairment of the right shoulder in June, 1995. In July, 1995, another of her physicians evaluated her headaches as a permanent condition and estimated that she was 80 percent disabled by headaches and that the condition resulted from the 1986 accident, which had aggravated an underlying condition. The plaintiff claimed that she was unable to resume her duties at the Aetna Insurance Company after she was injured, although she tried to go back to work in 1987. She obtained part-time work at a bakery but has not worked since 1993. She continued to see various physicians for neck and shoulder pain into 1995.

The jury also heard evidence that the plaintiff did not lose consciousness when she was struck by the car. The defendants called three of the plaintiffs treating physicians as witnesses. An orthopedic surgeon stated that the subacromial bursitis and shoulder pain were not related to the 1986 accident and that there was no objective evidence to support any disability rating of the shoulder. The first neurologist to treat the plaintiff reported that her history showed migraines since age six and that he could not relate the migraine headaches to the head trauma. He also noted a degree of drug dependency that apparently stemmed from medication the plaintiff took to relieve her headaches. Another neurologist, to whom the plaintiff was referred by the orthopedic surgeon, opined that the plaintiff suffered rebound headaches resulting from overmedication and that her migraine headaches, which predated the 1986 accident, were the cause of her depression. The orthopedic surgeon also treated the plaintiff for a neck injury sustained in a motor vehicle accident on January 4, 1992. In addition to medical evidence contradicting many of the plaintiffs claims, the defendants brought before the jury various inconsistencies between her testimony and her earlier statements.

After the jury heard all of the evidence, the court delivered its charge and the plaintiff took no exceptions. The jury asked for and received additional instructions on economic and noneconomic damages. After the jury returned its verdict, the court instructed again on non-economic damages and sent the jury back to reconsider its verdict. The jury reported that it was satisfied with its verdict awarding the plaintiff $33,897.25 in economic damages and $2500 in noneconomic damages for a total verdict of $36,397.25. The trial court concluded that an award of $2500 in noneconomic damages shocks the conscience and that “it is totally inconsistent with the severity of the injuries suffered.” The trial court found that “the plaintiff has proven substantial injuries for which she has been awarded inadequate damages” and that the verdict awarding substantial economic damages but negligible noneconomic damages was inherently ambiguous. The court thereupon granted an additur of $72,500 to the noneconomic damages. The court ordered a new trial in the event that the defendants did not accept the additur.

Undoubtedly, it is the duty of the trial court “to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence.” (Internal quotation marks omitted.) Boyce v. Allstate Ins. Co., 236 Conn. 375, 382, 673 A.2d 77 (1996). Before the verdict may be set aside solely on the ground that damages are inadequate, the parties must be given an opportunity to accept an additur to the verdict of an amount the court deems reasonable. General Statutes § 52-216a.

On appeal, we review the action of the trial court in setting aside the verdict, recognizing that the decision of the trial court is entitled to great weight because it, like the jury, has seen and heard the witnesses. We will not disturb the exercise of that discretion in the absence of clear abuse. See Jacobs v. Goodspeed, 180 Conn. 415, 416, 429 A.2d 915 (1980).

Despite the deference due the action of the trial court, it is a fundamental principle that the parties have “a constitutional right to have factual issues determined by the jury. This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded.” (Internal quotation marks omitted.) Childs v. Bainer, 235 Conn. 107, 112, 663 A.2d 398 (1995). The amount of damages awarded is a matter peculiarly within the province of the jury, as is the credibility of witnesses and the weight to be accorded their testimony. Id.

“The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption.” (Internal quotation marks omitted.) Id., 114.

On issues where the evidence allows room for reasonable differences of opinion among fair-minded people, if the conclusion of the jury is one that reasonably could have been reached, it must stand even though the trial court might have reached a different result. See Jacobs v. Goodspeed, supra, 180 Conn. 417. “A verdict should not be set aside . . . where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.” Salaman v. Waterbury, 44 Conn. App. 211, 214, 687 A.2d 1318, cert. granted on other grounds, 240 Conn. 921, 692 A.2d 816 (1997).

Here, although there was evidence from which the jury might have found that the plaintiff suffered substantial injuries, there was other evidence conflicting with the plaintiffs claims.. The jury was not compelled to accept the plaintiffs claims as to the severity of her injuries, no matter how persuasive that evidence might have seemed to the trial court. The difference between the amounts of the economic and the noneconomic damages awarded creates no inherent ambiguity. A fact finder is not required to award noneconomic damages simply because economic damages are awarded. See Childs v. Bainer, supra, 235 Conn. 121. It is clear that the personal injury claims were seriously disputed, and the jury award for noneconomic damages demonstrates that the jury was not overwhelmingly persuaded by the plaintiffs evidence.

The order of the trial court is reversed and the case is remanded with direction to reinstate the jury’s verdict and to render judgment thereon.

In this opinion the other judges concurred.

       The defendants are Aetna Casualty and Surety Company and the Automobile Insurance Company of Hartford.


source: Caselaw Access Project

author: FREEDMAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DEREK MAIA
    (AC 16931)
    Landau, Schaller and Freedman, Js.
    Argued February 26
    officially released May 19, 1998

      Pamela S. Nagy, assistant public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney, for the appellee (state).
   Opinion

FREEDMAN, J.

The defendant, Derek Maia, appeals from a judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant claims that the trial court improperly (1) charged the jury that intoxication was relevant only to negate the specific intent required for murder and failed to instruct that it could also be affirmative proof of recklessness for the lesser included offenses, (2) shifted and diluted the state’s burden of proof in its charge on intoxication, (3) charged the jury regarding the statutory definition of intent and (4) commented on the defendant’s interest in the outcome of the case. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 29, 1993, a community newspaper association known as Da Ghetto held a fund-raising Halloween party at the Casa Mia restaurant in Waterbury. The purpose of the event was to raise money so that Da Ghetto could purchase a computer. The admission to the party was $5, unless the guest wore a costume, in which case admission was $4. Food and beer were provided to the guests, and a prize was to be awarded for the best costume.

Casa Mia was filled to capacity during the party. The defendant arrived between 11 and 11:30 p.m. Upon his arrival, the defendant complained about having to wait outside for a long time before he was admitted inside. The party had been planned to continue until 2 a.m. on October 30, 1993. At some point, however, Mark Yates, the senior editor of Da Ghetto, announced that the party was ending early because of “inappropriate conduct.” People at the party became upset after that announcement was made.

The defendant angrily confronted Yates about ending the party early and demanded his money back. Yates did not have any small bills and gave the defendant $20. The defendant then had an altercation with Leroy Flint, an employee of Casa Mia and the boyfriend of the restaurant owner, Delores Trudeau, and had further altercations with his brother and his cousin when they tried to calm him, and with Yates’ brother. The defendant, who was described as acting “like a typhoon,” pushed and shoved anyone who was in his path. Trudeau overheard the defendant state that “someone was going to stop breathing.”

The defendant eventually left Casa Mia with his friend, Brian Brown. The defendant and Brown drove to the house where Brown’s girlfriend lived. Once there, Brown went inside and the defendant waited in the car. After about five minutes, Brown returned and gave the defendant a bag containing a gun. The defendant and Brown then proceeded back to Casa Mia.

At approximately 1 a.m. on October 30, 1993, Martin Hayre, Michael Millhouse and the victim, Christopher Love, were leaving Casa Mia together. Hayre and the victim walked out of Casa Mia and waited on the curb for Millhouse to come with his car. When Millhouse pulled his car up, the victim opened the front passenger door and Hayre opened the right rear door. As they were getting into the car, the defendant approached, said something to the victim, and then shot the victim in the face. The victim died of a gunshot wound to the head.

At trial, the defendant admitted that he was responsible for the victim’s death. He testified, however, that he did not intend to take the victim’s life. The defendant testified that he had been drinking and had smoked marijuana that night. He testified that he did not leave the gun in the car when he and Brown returned to Casa Mia because he had been in previous arguments at the bar and had been jumped by several people. He testified that he approached the victim and wanted to talk to him about the way the party was ended. At that time, the gun was in the defendant’s shirt pocket, with the handle hanging out. The defendant testified that he heard footsteps behind him and that as he was going to turn around, he was “yanked from the back by [the] hood.” His arm then went up and the gun went off.

The defendant was convicted of murder and sentenced to a term of sixty years imprisonment.

I

The defendant first argues that the trial court improperly instructed the jury regarding intoxication and manslaughter under General Statutes §§ 53a-55 (a) (3) and 53a-56 (a) (1). Specifically, the defendant claims that the court deprived him of due process by limiting the jury’s use of evidence of intoxication to negate the specific intent required for minder and by failing to instruct the jury on intoxication as proof of recklessness.

As an initial matter, we note that the defendant did not file a request to charge on intoxication or on the lesser included offenses and did not object to the court’s instructions. The defendant, nonetheless, argues that this claim is reviewable on appeal pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, alternatively, under the plain error doctrine as set forth in Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5.* **** We disagree.

In State v. Ortiz, 217 Conn. 648, 588 A.2d 127 (1991), the defendant, like the defendant in the present case, was convicted of murder in violation of § 53a-54a (a). On appeal, the defendant claimed, inter alia, that his federal and state constitutional rights had been violated by the trial court’s charge to the jury. Specifically, the defendant took issue with the trial court’s charge that evidence of his intoxication should not be considered in determining whether he had possessed the mental state of recklessness necessary for conviction of the lesser included offenses of manslaughter in either the first or second degree. The defendant sought review of this claim pursuant to Golding or, alternatively, as plain error.

Our Supreme Court declined to afford Golding review to this claim, stating that “[bjecause a lesser included offense instruction is purely a matter of common law, and therefore does not implicate constitutional rights . . . the defendant has failed to satisfy the second condition of Golding.’’’' (Citations omitted.) Id., 659. The Supreme Court likewise concluded that this claim was not reviewable as plain error, stating that “[sjince the jury, having been instructed not to consider lesser included offenses unless it found the defendant not guilty of the greater offense of murder, found the defendant guilty of murder, we cannot say that the instruction challenged by the defendant undermined the fairness of his trial or resulted in a manifest injustice to him.” Id., 660; see also State v. Austin, 244 Conn. 226, 240-41, 710 A.2d 732 (1998).

We conclude, on the basis of State v. Ortiz, supra, 217 Conn. 658-60, that the defendant’s claim is not reviewable pursuant to Golding or the plain error doctrine.

II

The defendant next argues that the trial court improperly instructed the jury in connection with intoxication that the state had the burden of proving “that the defendant was capable of forming the required intent” for murder. According to the defendant, the trial court charged that to negate specific intent, the intoxication evidence must show that the defendant was “incapable” of possessing the required intent, and that this incapacity was the threshold for consideration of intoxication evidence. The defendant argues that this charge imper-missibly shifted and diluted the state’s burden to prove intent beyond a reasonable doubt. We disagree.

We initially note that the defendant did not file a request to charge and did not except to the charge as given. He therefore requests review of this claim pursuant to State v. Golding, supra, 213 Conn. 239-40, and, alternatively, as plain error. This claim is reviewable under Golding “because it alleges that there was a shifting or diminishing of the state’s burden of proof and that there was constitutional error in the instructions on intent, which constitutes a violation of a fundamental constitutional right.” (Internal quotation marks omitted.) State v. Burgos, 37 Conn. App. 404, 416, 656 A.2d 238, cert. denied, 233 Conn. 915, 659 A.2d 186 (1995).

We conclude, however, on the basis of our review of the charge as a whole, that it is not reasonably possible that the jury was misled as to the scope of the state’s burden of proof on the element of specific intent and the relationship of intoxication to that burden. The trial court instructed the jury as to the statutory definition of intoxication and then addressed that portion of the statute providing that intoxication is not a defense to a criminal prosecution but may be considered to negate the requirement of intent. General Statutes § 53a-7. The court then charged that “[i]f you find that the defendant was intoxicated at the time of the crime, you may take this fact into consideration in determining whether he was in such a state of intoxication as to be incapable of forming the required specific intent which is a necessary element for the commission of a crime.” The trial court then made further references to the defendant’s “capability” of forming the required intent. See footnote 4. Later, in connection with the court’s charge on the specific elements of the crime charged, the court repeatedly instructed the jury that the state had the burden of proving specific intent beyond a reasonable doubt. See footnote 11. Instructions similar or identical to the charge given have been upheld by our Supreme Court in State v. Austin, supra, 244 Conn. 238-40, State v. Ortiz, supra, 217 Conn. 663, and State v. Stevenson, 198 Conn. 560, 571, 504 A.2d 1029 (1986), and by this court in State v. Burgos, supra, 37 Conn. App. 418, and State v. Fernandez, 27 Conn. App. 73, 85-86, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992).

The defendant has, therefore, failed to satisfy the third prong of Golding and is not entitled to further review of this claim on that basis. Additionally, the defendant has failed to establish how this claim rises to the level of plain error.

Ill

The defendant next argues that the trial court improperly charged the jury regarding intent when it charged, pursuant to General Statutes § 53a-3 (11), that “[a] person acts intentionally with respect to the result or conduct described by a statute defining an offense when his conscious objective is to cause such result or engage in such conduct.” According to the defendant, this charge permitted the jury to return a murder conviction based on a general intent to engage in conduct, rather than the required intent to cause a specific result, namely, death. Although the defendant did not file a request to charge and did not except to the charge as given, he argues that this claim is reviewable pursuant to State v. Golding, supra, 213 Conn. 239-40, and as plain error. We will review this claim because “[a]n improper instruction on an element of an offense . . . is of constitutional dimension.” (Internal quotation marks omitted.) State v. Austin, supra, 244 Conn. 235.

“We first note that [t]he specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim.” (Internal quotation marks omitted.) Id., 235. Although “[w]e agree with the defendant that that portion of § 53a-3 (11) dealing with intent to engage in proscribed conduct is irrelevant to a murder prosecution pursuant to § 53a-54a”; State v. Prioleau, 235 Conn. 274, 322, 664 A.2d 743 (1995); we conclude that the charge read as a whole did not mislead the jury.

The trial court commenced its charge on murder by reading the statutory definition of murder: “A person is guilty of murder when with intent to cause the death of another person, he causes the death of such person . . . .” (Emphasis added.) General Statutes § 53a-54a (a). The trial court then read the statutory definition a second time. In explaining the specific elements of murder, the trial court charged that the state had to prove, beyond a reasonable doubt: “Number one, that the defendant intended to cause the death of another person, in this case, Christopher Love. And number two, that in accordance with that intent, the defendant caused the death of Christopher Love.” (Emphasis added.) The trial court then indicated that it was going to explain what those elements meant in a legal sense. In this regard, the trial court stated: “[T]he first element, which must be proven beyond a reasonable doubt, [is] the element of intent to cause the death of a victim The trial court then instructed, pursuant to § 53a-3 (11), that “[a] person acts intentionally with respect to the result or conduct described by a statute defining an offense when his conscious objective is to cause such result or engage in such conduct.” Several sentences later, the trial court charged: “If you find that the state has proven beyond a reasonable doubt that the defendant had the intent to cause the death of Christopher Love and that having that intention did cause the death of Christopher Love . . . then you will find the defendant guilty of murder and go no further.” (Emphasis added.)

In the present case, the trial court properly instructed the jury on several occasions that the state was required to prove that the defendant intended to cause the death of Christopher Love. “[I]t strains reason to believe that the jury could have [understood] the challenged instruction as not requiring that the state prove beyond a reasonable doubt that the defendant intended to kill [the victim].” (Internal quotation marks omitted.) State v. Austin, supra, 244 Conn. 237. The defendant, therefore, cannot prevail under the third prong of Golding because he has failed to establish that a constitutional violation clearly exists and that it clearly deprived him of a fair trial. Additionally, the defendant has failed to establish how the trial court’s charge amounted to plain error. We, therefore, decline to review this claim further. See State v. Austin, supra, 244 Conn. 237; State v. Prioleau, supra, 235 Conn. 322; State v. Boles, 223 Conn. 535, 541-43, 613 A.2d 770 (1992); State v. Jaynes, 36 Conn. App. 417, 430-31, 650 A.2d 1261 (1994), cert. denied, 233 Conn. 908, 658 A.2d 980 (1995).

IV

The defendant’s final claim is that the trial court placed undue emphasis on the defendant’s interest in the outcome of the case and thereby “unduly singled out the defendant’s testimony for unfair treatment.” The defendant claims that the charge impinged on his right to present a defense and his right to a fair trial under the fifth and fourteenth amendments to the United States constitution, and article first, §§ 8 and 9, of the Connecticut constitution. The defendant again concedes that he did not object to the charge at the time of trial. He, therefore, seeks review of this claim pursuant to State v. Golding, supra, 213 Conn. 239-40.

“We have treated the basic claim that specific mention of the defendant’s interest infringes upon his right to a fair trial as falling within the claimed deprivation of a fundamental constitutional right . . . [and] [w]e must, therefore, examine the nuances of language, belatedly relied upon by the defendant, only for the purpose of determining whether they are significant enough to have affected the fairness of his trial.” (Internal quotation marks omitted.) State v. Williams, 220 Conn. 385, 396-97, 599 A.2d 1053 (1991), quoting State v. Mack, 197 Conn. 629, 637, 500 A.2d 1303 (1985); State v. Scarpiello, 40 Conn. App. 189, 214, 670 A.2d 856, cert denied, 236 Conn. 921, 674 A.2d 1327 (1996).

The defendant’s assertion that the trial court’s reference to his interest in the outcome of the case “singled out the defendant’s testimony for unfair treatment” is not supported by the record. The trial court specifically instructed the jury that “[i]n weighing the testimony of an accused person you should apply the same principles by which the testimony of other witnesses is tested, and that necessarily involves the consideration of his interest in the outcome of the case.” (Emphasis added.) The trial court further charged that “[a]n accused person having taken the witness stand stands before you, then, just like any other witness, and is entitled to the same consideration and must have his testimony measured in the same way as any other witness, including his interest in the verdict which you’re about to render.” (Emphasis added.)

Thus, “[t]he continual emphasis was that the jury was to evaluate the defendant’s testimony in the same fashion as the testimony of the other witnesses. We have repeatedly approved the use of similar language and we do not find its use here unduly repetitive or transcending the bounds of evenhandedness.” State v. Williams, supra, 220 Conn. 397; State v. Scarpiello, supra, 40 Conn. App. 215. The defendant, therefore, cannot prevail under the third prong of State v. Golding, supra, 213 Conn. 239-40.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . .

       The defendant testified that he did not know where they were going when they left the house where Brown’s girlfriend lived. He testified that they were “just riding and we end up back at the Casa Mia bar.” He further testified that “I was a fool. I was stupid. ... [I did] not know that we were going back to the bar. This was not my car, I was just riding.”

       Several witnesses testified that the defendant said something to the effect of, “Ph.D., where’s your boys at now, where’s your Ph.D. now?” prior to shooting the victim. The victim, who was involved with publishing Da Ghetto, had been working toward his Ph.D. at the University of Rhode Island.

       The trial court charged the jury in relevant part: “Now, [there has] been some testimony to the effect that the defendant was under the influence of an intoxicant, namely, liquor, marijuana or both, at the time of the alleged acts. The penal code defines intoxication as a substantial disturbance of mental or physical capabilities resulting from the introduction of substances into the body. If you find that the defendant was under the influence of an intoxicant at the time of the alleged act, you must then determine what effect, if any, this voluntary intoxication had on his ability to form the specific intent required to commit the alleged crime.
      “Intoxication shall not be a defense to a criminal charge but in any prosecution for an offense, evidence of an intoxication of the defendant may be offered by the defendant whenever it’s relevant to negate an element of the crime charged. Now, note that intoxication is not a defense to or an excuse for the commission of a crime. It’s only relevant to negate an element of the crime charged, such as intent. If you find that the defendant was intoxicated at the time of the crime, you may take this fact into consideration in determining whether he was in such a state of intoxication as to be incapable of forming the required specific intent, which is a necessary element for the commission of a crime.
      “Now, in this particular case the crime of murder has the element of specific intent, as you’ll see. In other words, this is a legal concept or principle to consider in connection with the charge of murder, as you’ll see. One element of murder is the specific intent to cause someone’s death. I charge you further that if you believe that the defendant, although intoxicated, was still capable of possessing a specific criminal intent, then his responsibility is the same as if he were not intoxicated. You must first decide whether the defendant was intoxicated at the time of the alleged crime and, second, whether he was incapable of possessing an intent to commit the act constituting, in this case, murder. Remember, the defendant does not have to prove that he was intoxicated. The state always has the burden of proving beyond a reasonable doubt that the defendant was capable of forming the required intent. Any degree of intoxication, not merely total intoxication, may be considered in determining whether or not the defendant possessed the requisite intent.”

       The defendant can prevail pursuant to Golding only if “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.

       Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5, provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       In the present case, the trial court similarly instructed the jury as follows: “Bear in mind that you do not go to the lesser included offenses unless and until you unanimously agree that the defendant is not guilty of murder. So that’s the first charge you consider. Unless and until you unanimously agree that the defendant is not guilty of murder, only after that do you go on to the lesser included offenses.”

       In so holding, we note the defendant’s claim that State v. Ortiz, supra, 217 Conn. 648, was wrongfully decided. We further note, however, that “[t]his court will not reexamine or reevaluate Supreme Court precedent. Whether a Supreme Court holding should be reevaluated and possibly discarded is not for this court to decide.” (Internal quotation marks omitted.) State v. Fleming, 36 Conn. App. 556, 573, 651 A.2d 1341, cert. denied, 233 Conn. 913, 659 A.2d 186 (1995). Furthermore, the Supreme Court has recently decided State v. Austin, supra, 244 Conn. 240-41, in which it cites Ortiz for the proposition that the claim made by the defendant is not reviewable pursuant to Golding or as plain error.

       “In reviewing a constitutional challenge to the trial court’s instructions, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. . . . The test is whether the charge as a whole presents the case to the jury so that no irqustice will result.” (Internal quotation marks omitted.) State v. Cartagena, 47 Conn. App. 317, 320, 708 A.2d 964 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998).

       The third prong of Golding requires that “the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .” State v. Golding, supra, 213 Conn. 239-40.

       The trial court charged in relevant part as follows: “Now, the defendant is charged with the crime of murder. A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person. [I’ll] [r]ead it again. With intent to cause the death of another person, he causes the death of such person.
      “For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt. Number one, that the defendant intended to cause the death of another person, in this case, Christopher Love. And number two, that in accordance with that intent, the defendant caused the death of Christopher Love.
      “Now, I’m going to explain what those elements mean in the legal sense. With respect to the first element, which must be proven beyond a reasonable doubt, the element of intent to cause the death of a victim. A person acts intentionally with respect to the result or conduct described by a statute defining an offense when his conscious objective is to cause such result or engage in such conduct. Intent is a mental process. To discern what aperson is thinking, the question of intent may be determined by considering all the facts and circumstances leading up to . . . surrounding and following the events in question. You may consider any statement made, an act done or admitted by the defendant, along with all the other facts and circumstances in evidence, and from those you may infer what his intention was.
      “With respect to intent. There’s no requirement that an intent to do a particular thing must be reached over a long period of time. It may be formed virtually instantaneously. However, to find intent, you must find that the defendant’s mental state had, beyond a reasonable doubt, reached the level of conscious objective that I’ve just described here. Remember, it’s in coryunction with this element of intent that you may consider the issue of intoxication. . . .
      “If you find that the state has proven beyond a reasonable doubt that the defendant had the intent to cause the death of Christopher Love and that having that intention did cause the death of Christopher Love, the defendant did cause his death, then you will find the defendant guilty of murder and go no further.”

       In response to a request from the jury, the trial court later reinstructed the jury regarding the elements of murder. The supplemental charge included the language that the defendant challenges on appeal.

       The trial court charged as follows: “Now, the testimony of the defendant. Now, the accused in this case took the stand and testified. In weighing the testimony of an accused person you should apply the same principles by which the testimony of other witnesses is tested, and that necessarily involves the consideration of his interest in the outcome of the case. You may consider the importance to him [of] the outcome of the trial. An accused person having taken the witness stand stands before you, then, just like any other witness, and is entitled to the same consideration and must have his testimony measured in the same way as any other witness, including his interest in the verdict which you’re about to render.”

       The defendant additionally claims that the trial court’s undue emphasis on 1he defendant's testimony effectively endorsed the state’s comments during closing arguments that the defendant’s story was simply “nonsense.” The defendant’s brief, however, does not contain a claim for prosecutorial misconduct based on improper remarks made by counsel during closing arguments. We will, therefore, consider this claim abandoned. See State v. Rodriguez, 44 Conn. App. 818, 823, 692 A.2d 846, cert. denied, 242 Conn. 902, 697 A.2d 363 (1997) (appellate claims inadequately briefed deemed abandoned).


author: DUPONT, J.

text:
    AMICA MUTUAL INSURANCE COMPANY v. DONNA WOODS ET AL.
    (AC 17150)
    Lavery, Spear and Dupont, Js.
    Argued February 26
    officially released May 19, 1998

      Samuel B. Feldman, for the appellant (plaintiff).

      Robert M. Fitzgerald, for the appellees (defendants).
   Opinion

DUPONT, J.

The plaintiff appeals from the judgment for the defendants rendered by the trial court in accordance with the report of an attorney trial referee. The attorney trial referee determined that the plaintiff insurance company was not entitled to recover reparations benefits paid to or for the benefit of the defendant Donna Woods, an insured of the plaintiff, and recommended judgment for the defendants.

The dispositive issue in this appeal is whether the plaintiffs right to reimbursement for basic reparations benefits paid to the defendant insured was extinguished upon the passage of No. 93-297 of the 1993 Public Acts (P.A. 93-297), 3****which repealed, in its entirety, General Statutes § 38a-369. The plaintiff claims that its right was not extinguished, that the trial court’s application of P.A. 93-297 to the parties’ insurance contract violated the contract clause of the United States constitution and that P.A. 93-297 is unconstitutional. We affirm the judgment of the trial court.

The plaintiff objected to the report of the attorney trial referee on the ground that the ruling “as to the applicable law, how the law applies to the facts as stipulated [was] erroneous.” The trial court accepted the report and rendered judgment for the defendant, but did not write a memorandum of decision.* ** At the time the attorney trial referee heard the case, a stipulation of facts had previously been executed by the parties.* * No evidence was admitted and no oral argument was sought before the attorney trial referee. The attorney trial referee recommended judgment for the defendants solely on the law as he applied it to the stipulated facts. The parties stipulated to the facts, which were recited in the report of the attorney trial referee.

“1. On or about July 4, 1994, the defendant, Donna Woods was an insured of the plaintiff, pursuant to a policy of automobile insurance ....

“2. Said policy of automobile insurance was issued on November 15, 1993 and was in effect for a period of one year through November 15, 1994.

“3. On July 4, 1994 the defendant Donna Woods was injured in an automobile accident.

“4. On or after July 4, 1994, the plaintiff paid to or for the benefit of the defendant Donna Woods certain funds for medical costs and other benefits pursuant to the basic reparations benefits portion of her policy of insurance.

“5. The total amount paid by the plaintiff to the defendant Donna Woods was $ 5,000.00.

“6. Thereafter the defendant Donna Woods reached a settlement with a third party tortfeasor.

“7. The policy of insurance . . . contains a provision . . . entitled ‘Our Right to Recover Payment.’ This provision gives the plaintiff the right to be subrogated to its insured’s rights to recover on a claim against a third person, and obligates the insured to hold in trust the proceeds of the recovery and to reimburse the plaintiff to the extent of its payment.

“8. The policy of insurance . . . also contains a provision under the section entitled ‘Reparations Benefits Coverage-Connecticut Section IV Part F.-General Provisions’ which states A. The following is added to the Our Right to Recover Payment provisions: OUR RIGHT TO RECOVER PAYMENT Our rights are subject to any applicable limitations stated in the Connecticut Insurance Law.”

Each party also filed a trial brief setting forth their claims of law. The plaintiff claimed in its trial brief that it had a right to recover two thirds of the $5000 reparations benefits paid to Woods based on the provisions of § 38a-369 because, although P.A. 93-297 repealed § 38a-369 effective January 1,1994, the legislation could not retroactively alter the subrogation rights of the plaintiff contained in the existing contract of insurance between the parties. The referee reasoned that because the accident in question did not occur until July 4, 1994, approximately six months after the effective date of P.A. 93-297, the plaintiff “had no vested rights to be affected on January 1, 1994, when § 38a-369 was repealed.” Accordingly, the referee stated that the plaintiffs situation was governed by General Statutes § 52-225c, which provides: “Unless otherwise provided by law, no insurer or any other person providing collateral source benefits as defined in section 52-225b shall be entitled to recover the amount of any such benefits from the defendant or any other person or entity as a result of any claim or action for damages for personal injury or wrongful death regardless of whether such claim or action is resolved by settlement or judgment. . . .”

I

The plaintiff first claims that the trial court improperly concluded that the plaintiffs right to recover basic reparations benefits paid to the defendant was extinguished when P.A. 93-297 repealed § 38a-369. We disagree.

Our courts have consistently held that the repeal of existing legislation making a substantive change in the law does not affect pending claims or vested rights absent some clear intent evidenced by the legislature to do so. See McNally v. Zoning Commission, 225 Conn. 1, 9, 621 A.2d 279 (1993); Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991); Gibson v. Fullin, 172 Conn. 407, 412, 374 A.2d 1061 (1977).

The plaintiff had no vested right to recover benefits as of January 1, 1994, because the accident entitling the defendant to benefits, as well as the payment of the benefits to the defendant, occurred after § 38a-369 was repealed. While there was an insurance contract in effect between the parties on January 1, 1994, the plaintiff cites no cases, nor are we aware of any, to support the claim that the existence of an insurance contract creates a pending claim between the parties, or a vested right to recover damages for what has not yet occurred. Furthermore, the insurance policy of the parties provided that the right of the plaintiff to recover payments was subject to “any applicable limitations stated in the Connecticut Insurance Law.” An insurer’s right to subrogation under an insurance contract cannot arise until after it makes payment under the basic reparations provision of the policy. See Amica Mutual Ins. Co. v. Barton, 1 Conn. App. 569, 572-73, 474 A.2d 104 (1984). We therefore conclude that when P.A. 93-297 took effect on January 1, 1994, the plaintiffs right to recover reparations benefits paid to the defendant insured was extinguished.

II

The plaintiff also claims in its brief that the application by the trial court of the changes mandated in P.A. 93-297 violated the contract clause of the United States constitution. The constitution of the United States, article one, § 10, provides: “No State shall . . . pass any . . . Law Impairing the Obligation of Contracts . . . .”

Our Supreme Court has recently had an opportunity to review the same federal constitutional provision with respect to another automobile insurance statute, No. 93-77 of the 1993 Public Acts (P.A. 93-77). In Serrano v. Aetna Ins. Co., 233 Conn. 437, 664 A.2d 279 (1995), the court was asked to decide whether P.A. 93-77, which retroactively modified the uninsured and underinsured provisions of certain automobile liability insurance policies, violated the contract clause of the United States constitution. The trial court had concluded that the contract clause was violated. In that case, the parties had entered into a contract of automobile insurance that required the insured to file an uninsured or underin-sured motorist claim within two years of the date of an accident. Id., 440-41. The plaintiff commenced the action for underinsured motorist benefits more than two years from the date of the accident, but within the period provided for in P.A. 93-77, which saved claims that were pending on December 8, 1992, a date prior to the act’s effective date. Id., 442.

The Supreme Court held that P. A. 93-77 did not violate either the federal or the state constitution. Id., 445. In so holding, the court noted that “ ‘a statute does not violate the [cjontract [cjlause simply because it has the effect of restricting, or even barring altogether, the performance of duties created by contracts entered into prior to its [enactment].’ Exxon Corp. v. Eagerton, 462 U.S. 176, 190, 103 S. Ct. 2296, 76 L. Ed. 2d 497 (1983).” Serrano v. Aetna Ins. Co., supra, 233 Conn. 446. Instead, the court determined that in adjudicating a claim that a legislative enactment violates a constitutional contract clause, the court “must first ask whether the change in [the] law has operated as a substantial impairment of a contractual relationship. . . . This inquiry has three components: whether there is a contractual relationship, whether a change in law impairs that contractual relationship, and whether the impairment is substantial. ... If upon application of this test it appears that the challenged legislation substantially impairs existing contract rights, the enactment may nevertheless withstand constitutional scrutiny if it serves a significant and legitimate public purpose . . . .” (Citations omitted; internal quotation marks omitted.) Id., 447. The court further noted that “[s]everal factors are to be considered in determining the degree to which the challenged enactment operates as an impairment of the parties’ contractual relationship. These include the severity of the impairment, the extent to which it frustrates a party’s reasonable contractual expectations and the extent to which the subject matter of the impairment has been regulated in the past.” (Internal quotation marks omitted.) Id., 448.

Although the Serrano court stated that the legislation had a significant impact on the parties’ contractual relationship, it determined that, “[i]n view of the highly regulated nature of the insurance industry and the foreseeability of the legislature’s remedial action, the defendant, in order to establish a contractual interference of constitutional magnitude, was required to demonstrate that the challenged legislation gave rise to an impairment of overriding severity.” Id., 453. Given that the contractual modification effected by P.A. 93-77 “was neither extreme nor extraordinary” and “properly serves a significant and legitimate public purpose,” the court concluded that the defendant had failed to meet its heavy burden of establishing a constitutional violation. Id.

As in Serrano, the statute in this case is an automobile liability insurance statute. Upon consideration of the relevant factors, including the highly regulated nature of the insurance industry and the resulting foreseeability that a statute may be repealed, we conclude that the defendant has failed to establish that P.A. 93-297, which effectuated a repeal of § 38a-369, operates as a substantial impairment of the plaintiffs contractual rights under article one, § 10, of the United States constitution.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs complaint is in two counts and seeks damages from two defendants, the defendant insured and the defendant insured’s attorney.

       Public Acts 1993, No. 93-297, repealed General Statutes § 38a-369 in its entirety, effective January 1, 1994.

       Prior to January 1, 1994, General Statutes (Rev. to 1993) § 38a-369 provided in relevant part: “(a) Except as provided in this section, an insurer does not have, and may not directly or indirectly contract for, any right of subrogation to the proceeds of any cause of action of a recipient of basic reparations benefits against any person or organization not entitled to an exemption from liability under section 38a-368.

        “(b) Whenever a person who receives basic reparations benefits for an iqjury recovers damages, either by judgment or settlement, from the owner, registrant, operator or occupant of a private passenger motor vehicle with respect to which security has been provided under sections 38a-19 and 38a-363 to 38a-388, inclusive, or from a person or organization legally responsible for his acts or omissions, the insurer is entitled to reimbursement from the claimant to the extent that said basic reparations benefits have been paid, minus an amount which represents the insurer’s contribution toward attorney’s fees for the collection of basic reparations benefits. Such amount shall be computed by multiplying the total amount of such reasonable attorney’s fees and costs by a fraction, the numerator of which shall be the amount of basic reparations benefits received by the claimant and the denominator shall be the amount of damages recovered by the claimant, less court costs. In no event shall such amount exceed one-third the amount of the basic reparations benefits to be reimbursed to the insurer. The insurer shall have a lien on the claimant’s recovery for the amount to which he is entitled for such reimbursement; provided no such lien shall attach until such time as the proceeds of such recovery are in the possession and control of such claimant. . . .”

       The plaintiff did not file a motion to articulate the legal basis for the trial court’s judgment and raised no issue in its brief as to the propriety of the trial court adopting the trial referee’s conclusions of law. The plaintiff raised the issue at oral argument, and claimed that its broad objection to the trial referee’s report included the issue. That objection did not distinctly raise the claim and we need not consider it. Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5. Furthermore, atrial referee may, in addition to finding facts, also include in his or her memorandum of decision recommendations on legal issues. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 509-11, 508 A.2d 415 (1986). “The [trial] court shall render such judgment as the law requires upon the facts in the report .... The reviewing court is the effective arbiter of the law and the legal opinions of [the referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment.” Id., 510.

       It is not clear from the trial court file or the record whether the reference occurred before or after the stipulation was executed. Ordinarily, a reference to an attorney trial referee when no facts need be found would negate the necessity of such a reference. See Spears v. Kerars Realty Co., 171 Conn. 699, 702-703, 372 A.2d 121 (1976).

       General Statutes § 52-225b provides in relevantparfc “ ‘Collateral sources’ means any payment made to the claimant, or on his behalf, by or pursuant to: (1) Any . . . automobile accident insurance that provides health benefits, and any other similar insurance benefits . . . .”

       This claim was not made to the trial court. The attorney trial referee obliquely raises it in his report by stating that the plaintiff did not specifically argue an unconstitutional infringement of contract. It is, however, an unpreserved constitutional claim for which there is a record; State v. Newton, 8 Conn. App. 528, 532-34, 513 A.2d 1261 (1986); and we therefore review it. The principles of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), apply to civil cases. Hurtado v. Hurtado, 14 Conn. App. 296, 300, 541 A.2d 873 (1988); see Budlong v. Nadeau, 30 Conn. App. 61, 64, 619 A.2d 4, cert. denied, 225 Conn. 909, 621 A.2d 290, cert. denied, 510 U.S. 814, 114 S. Ct. 62, 126 L. Ed. 2d 31 (1993).

       Public Acts 1993, No. 93-77, provides in relevant part: “No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim be made on the uninsured or underinsured motorist provisions of a motor vehicle policy to a period of less than three years from the date of accident ....
      “No uninsured or underinsured motorist claim or action pending on December 8, 1992, or brought after said date and prior to the effective date of this act, in which a settlement has not been reached or a final judgment has not been rendered prior to the effective date of this act, shall fail by reason of any contractual limitation in a motor vehicle insurance policy which limits the time within which such claim shall be submitted to arbitration or such action shall be commenced to a period of time less than that allowed under section 38a-336 of the general statutes, as amended by . . . this act.”


author: LAVERY, J.

text:
    MAX F. BRUNSWICK v. SAFECO INSURANCE COMPANY
    (AC 17001)
    Lavery, Sullivan and Daly, Js.
    Argued February 19
    officially released May 19, 1998

      David M. Reilly, for the appellant (plaintiff).

      Roger J. Frechette, with whom, on the brief, was Franz P. Frechette, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff, Max F. Brunswick, appeals from the summary judgment rendered by the trial court in favor of the defendant, Safeco Insurance Company. The issues raised on appeal concern whether an attorney can bring a cause of action against an insurance carrier that settled a personal injury action directly with the attorney’s former client. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff is an attorney engaged in the practice of law in New Haven. At some time prior to 1991, the plaintiff undertook to represent Mary Osborne in connection with injuries she sustained in an automobile accident. The plaintiff claims that he met with Osborne’s daughter at a time when Osborne was incapacitated and gave the daughter a copy of his retainer agreement, which included the plaintiffs name but was not signed by him. The plaintiff subsequently had a telephone conversation with Osborne during which he asked Osborne to sign and return the retainer agreement. Osborne neither signed nor returned the agreement to the plaintiff.

Nonetheless, the plaintiff proceeded with his representation of Osborne by obtaining copies of her relevant medical records, issuing letters of protection to her health care providers and others, and commencing suit on her behalf against the driver of the other vehicle, who was insured by the defendant. During the pendency of the personal injury suit, Osborne informed the plaintiff by letter dated May 8, 1991, that she no longer wanted him to represent her in this matter because she was going to negotiate a settlement directly with the defendant. On May 28, 1991, Osborne filed her pro se appearance in lieu of the plaintiffs in the personal injury action, but failed to provide notice of her appearance in accordance with the rules of practice. In early June, 1991, the plaintiff appeared at short calendar on behalf of Osborne and entered a discovery agreement reached with counsel retained by the defendant to represent its insured. Although several of the defendant’s agents knew of the plaintiffs interest as Osborne’s attorney, the defendant negotiated a settlement of the personal injury action directly with Osborne in October, 1991. The plaintiff was not given notice of the settlement, payment or withdrawal of the action.

On August 3, 1992, the plaintiff commenced the action now before this court by serving the defendant with a six count complaint. The plaintiff alleged that (1) he has a common-law lien on the recovery in the amount of his compensation, (2) the defendant tortiously interfered with his contractual rights, (3) the defendant’s actions violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., (4) the defendant violated the regulations of the insurance commission, (5) the defendant violated the plaintiffs property rights under 42 U.S.C. § 1983 and (6) the defendant’s reckless acts impaired the rights of those given letters of protection by the plaintiff. As special defenses to the plaintiffs action, the defendant alleged that the plaintiff failed to comply with General Statutes § 52-251 c and with rule 1.5 (c) of the Rules of Professional Conduct (effective October 1, 1986).* ****

Between July, 1993, and October, 1996, the parties filed five motions for summary judgment and also filed corresponding objections with affidavits and other evidence. On February 26,1997, the trial court simultaneously granted the defendant’s third and fourth motions for summary judgment. The plaintiff appealed.

On appeal, the plaintiff claims that the trial court improperly granted summary judgment because (1) the defendant did not have standing to raise § 52-251c and rule 1.5 (c) in defense of the plaintiffs claims, (2) a lawyer who performs services for a client is not barred from recovery for services rendered where the attorney has issued his written commitment to abide by the regulations of § 52-25lc and rule 1.5 (c) even though the commitment is not signed, (3) the plaintiff is protected by the rule that a party may not repudiate her bargain in bad faith to reap the benefit of a statute, (4) an action for interference with contractual relations or business relations may be brought against a tortfeasor even though an enforceable contract did not exist, and (5) the plaintiffs cause of action was alleged, in part, pursuant to General Statutes § 42-110b, not General Statutes § 38a-816 (6), which is part of the Connecticut Unfair Insurance Practices Act (CUIPA).

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established.” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). “The judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is 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, now Practice Book (1998 Rev.) § 17-49. A “material fact” is a fact that will make a difference in the result of the case. See Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). The facts at issue are those alleged in the pleadings. See Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 489, 280 A.2d 359 (1971). The party seeking summary judgment “has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.” D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Pursuant to Practice Book §§ 380 and 381, now Practice Book (1998 Rev.) §§ 17-45 and 17-46, the party adverse to such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A defendant’s motion for summary judgment “is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985).

I

The plaintiffs first claim is that the trial court improperly determined that the defendant has standing to assert § 52-251c and rule 1.5 (c) as special defenses because it is not within the class that the statute and rule were intended to protect. The defendant’s special defenses are at the heart of its motions for summary judgment because they attack the plaintiffs failure to secure a written fee agreement when he undertook to represent Osborne. This failure is fatal to the plaintiffs claims. See Alan E. Silver, P.C. v. Jacobs, 43 Conn. App. 184, 188-89, 682 A.2d 551, cert. denied, 239 Conn. 938, 684 A.2d 708 (1996).

Our law is clear. When an attorney undertakes to represent a client in a personal injury action, the attorney and the client “may provide by contract, which contract shall comply with all applicable provisions of the rules of professional conduct . . . that the fee for the attorney shall be paid” contingent upon certain events. See General Statues § 52-251c (a). The applicable rule of professional conduct provides that “[a] contingent fee agreement shall be in writing . . . .” Rule 1.5 (c) of the Rules of Professional Conduct. The use of the word shall means that the performance of the statutory requirement is mandatory rather than permissive. See Caulkins v. Petrillo, 200 Conn. 713, 717, 513 A.2d 43 (1986).

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 . . . Alan E. Silver, P.C. v. Jacobs, supra, 43 Conn. App. 190. Although Jacobs makes it clear that the plaintiff could not enforce his claim for fees against Osborne because there was no written agreement, the plaintiff argues that the defendant is not within the class to be protected by § 52-251c and for that reason cannot invoke its protection. We disagree.

“In order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. First, the plaintiff must be within the class of persons protected by the statute. . . . Second, the injury must be of the type which the statute was intended to prevent.” (Citations omitted; internal quotation marks omitted.) Berchtold v. Maggi, 191 Conn. 266, 274-75, 464 A.2d 1 (1983). Here, the defendant asserts § 52-251c as a special defense; it does not attempt to use the statute because it has sustained an injury. The plaintiff is the party claiming the injury. Section 52-25lc placed an affirmative duty on the plaintiff; he cannot come forward now seeking justice when he failed to follow the law.

Section § 52-251c protects clients from excessive legal fees by regulating the attorney-client relationship. Berry v. Loiseau, supra, 223 Conn. 830 n.22. The statute permits the attorney and client to enter into a written contract to govern the attorney’s fee. A contract is binding on all parties to the agreement. See Herbert S. New man & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 760, 674 A.2d 1313 (1996). The plaintiff could have protected his interests by abiding by the dictates of the statute. He cannot now complain that the defendant should have protected his interests, which he, by law, could have done himself.

The plaintiff also argues that because the attorneys retained by the defendant to represent its insured knew of the plaintiffs appearance in the personal injury suit and because Osborne had not properly certified her May 28, 1991 pro se appearance to the plaintiff; see Practice Book § 123, now Practice Book (1998 Rev.) § 10-14; the defendant’s direct communication with Osborne was improper. This argument is unavailing. Osborne wrote to the plaintiff on May 8, 1991, not only discharging him, but also telling him she intended to negotiate a settlement with the defendant directly.

II

The plaintiffs second claim is that the trial court improperly granted the defendant’s summary judgment motion because a lawyer who performs services for a client is not barred from recovery for services rendered where the attorney has issued a commitment to abide by the dictates of § 52-25lc and rule 1.5 (c) that is not signed. In support of his argument, the plaintiff relies on Schwarzschild v. Martin, 191 Conn. 316, 321-22, 464 A.2d 774 (1983). The plaintiffs reliance is misplaced.

In Schwarzschild, the dispute was whether a written agreement that had not been signed by one of the parties to the agreement was enforceable as to all of the parties. Here, the plaintiff seeks to enforce an unsigned agreement allegedly between himself and Osborne against the defendant, who was not a party to the attorney-client relationship. Furthermore, it is evident that the plaintiff and Osborne did not have an agreement at the time the defendant settled Osborne’s claim. Osborne discharged the plaintiff in May, 1991, and the defendant settled Osborne’s claim in October, 1991.

III

The plaintiffs third claim is that the trial court improperly granted the defendant’s motion for summary judgment because a party may not repudiate her bargain in bad faith to reap the benefit of a statute. See Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 501 (1992). Again, the plaintiff attempts to impute the acts of Osborne to the defendant, which he may not do. There is no genuine issue of material fact that Osborne discharged the plaintiff as her attorney at least five months before the defendant settled Osborne’s claim. Osborne informed the defendant that she had discharged the plaintiff and intended to settle her claim directly. There is no evidence, in any form, that the defendant acted in bad faith.

IV

The plaintiffs next claim is that a plaintiff may bring an action against a tortfeasor for interference with contractual relations or business relations even though an enforceable contract did not exist. In support of that claim, the plaintiff relies on the rule governing intentional interference with contractual relations or unlawful interference with business relations set forth in Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 415, 363 A.2d 86 (1975). While we agree with the plaintiffs statement of the rule, the rule has no application to this case, which is factually distinguishable from Harry A. Finman & Son, Inc.

In Harry A. Finman & Son, Inc., the plaintiff was the defendant hydraulics company’s Connecticut distributor. The defendant trucking company, which knew of the plaintiffs relationship with the hydraulics company, corresponded with the company and questioned the plaintiffs sales ability. The defendant trucking company was then appointed the hydraulics company’s exclusive distributor in Connecticut. The Supreme Court held that the elements of the plaintiffs cause of action against the defendant trucking company were present in its pleadings and claims of proof, and were sufficient to make out a prima facie cause of action. Therefore, the trial court should have submitted a verdict form to the jury on the plaintiffs claims against the defendant trucking company.

Here, Osborne discharged the plaintiff by letter and so informed the defendant. Osborne’s claims were settled at least five months after she discharged the plaintiff. There was no evidence presented that the defendant initiated correspondence directly with Osborne and, thus, was the cause of Osborne’s terminating the plaintiffs employment.

V

The plaintiffs final claim is that the trial court improperly granted summary judgment as to his CUTPA claim because the trial court applied the CUIPA standard requiring a plaintiff to allege more than one unfair act of claim settlement practice prohibited by § 38a-816 (6). See Lees v. Middlesex Ins. Co., 229 Conn. 842, 850-51, 643 A.2d 1282 (1994); Mead v. Burns, 199 Conn. 651, 666, 509 A.2d 11 (1986). The plaintiff cites no Connecticut law in support of his claim that an attorney may assert a CUTPA claim, exclusive of a CUIPA allegation, against an insurer that settles a claim with a former client. Because the plaintiff has provided no analysis of the rule of law applicable to our statutes, we will not review this claim. See New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 100, 709 A.2d 14 (1998); Middletown Commercial Associates Ltd. Partnership v. Middletown, 42 Conn. App. 426, 439 n.12, 680 A.2d 1350, cert. denied, 239 Conn. 939, 684 A.2d 711 (1996).

The judgment is affirmed.

In this opinion the other judges concurred.

       There is evidence that the plaintiff was already representing Osborne in another personal injury action.

       The plaintiff responded to Osborne by letter dated May 15, 1991, attempting to dissuade her from negotiating the settlement herself.

       The plaintiff subsequently withdrew the last paragraph of count four, which was then identical to count two.

       General Statutes § 52-251c provides in relevant part: “Limitation on attorney contingency fees in personal injury, wrongful death and property damage actions, (a) In any claim or civil action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or alter October 1, 1987, the attorney and the claimant may provide by contract, which contract shall comply with all applicable provisions of the rules 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.”

       Rule 1.5 (c) provides: “A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by subsection (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages of the recovery that shall accrue to the lawyer as a fee in the event of settlement, trial or appeal, whether and to what extent the client will be responsible for any court costs and expenses of litigation, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.”

       The defendant also impleaded Osborne as a third party defendant. The third party complaint is not before us.

       The first three motions for summary judgment were not ruled on by the trial court.

       The grounds and arguments of the motions for summary judgment are identical, with the exception of supporting documents, and will be discussed together.

       Section 42-110b is part of CUTPA.

       The case before us does not require us to determine whether the written agreement required by § 52-251c and rule 1.5 (c) must be signed.

       This appeal does not require us to determine whether the plaintiff could state a cause of action against Osborne based on bad faith.

       “Accordingly, the law not only does not restrict its protection to rights resting on enforceable contractual relationships, ‘but it also forbids unjustifiable interference with any man’s right to pursue his lawful business or occupation and to secure to himself the earnings of his industry.’ Skene v. Carayanis, 103 Conn. 708, 714, 131 A. 497 [1926].” Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., supra, 169 Conn. 414-15.

       The issue on appeal in Harry A. Finman & Son, Inc., supra, 169 Conn. 407, concerned the interrogatories that were sent to the jury.

       In his reply brief, the plaintiff cites several cases from other jurisdictions in answer to the defendant’s brief. None of the cases is about CUTPA.


author: PER CURIAM.

text:
    DIME SAVINGS BANK OF NEW YORK, FSB v. RAYMOND J. SAUCIER ET AL.
    (AC 16577)
    O’Connell, C. J., and Schaller and Hennessy, Js.
    Argued March 3
    officially released May 19, 1998

      Leslee B. Hill, with whom, on the brief, was Robert A. Ziegler, for the appellant (named defendant).

      David F. Borrino, for the appellee (plaintiff).
   Opinion

PER CURIAM.

This is a mortgage foreclosure action in which the named defendant, Raymond J. Saucier, appeals from the judgment of foreclosure by sale. More specifically, Saucier claims that the trial court improperly struck his special defense, which alleged that the plaintiff had not complied with the notice requirements of 12 U.S.C. § 1701x.

The trial court record discloses that the plaintiff moved to strike Saucier’s special defense on May 21, 1996. The parties briefed the issue, and oral argument was presented to the court. On July 11, 1996, the trial court granted the motion to strike the special defense, and Saucier filed a notice of intent to appeal. The plaintiff subsequently obtained summary judgment against Saucier, and the trial court rendered a judgment of foreclosure by sale. This appeal followed.

The duty to provide this court with a record adequate for review rests with the appellant. See Practice Book § 4007, now Practice Book (1998 Rev.) § 61-10; Statewide Grievance Committee v. Clarke, 48 Conn. App. 545, 547, 711 A.2d 746 (1998). In the present case, the record is inadequate for review because we have not been provided with a written memorandum of decision or a transcribed copy of an oral decision signed by the trial court. See Practice Book § 4059, now Practice Book (1998 Rev.) § 64-1. We cannot reach the issue of whether the trial court acted properly because we may not surmise or speculate as to the reasons why the trial court granted the motion to strike. Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608, 710 A.2d 190 (1998); Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993).

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


author: SULLIVAN, J.

text:
    AKILAH BITTLE v. COMMISSIONER OF SOCIAL SERVICES
    (AC 17071)
    Foti, Sullivan and Daly, Js.
    Argued February 27
    officially released May 19, 1998

      Michael Dardzinski, with whom were Ro bert A. Solomon and, on the brief, Kathleen Sullivan and Ana Mari Bermudez, for the appellant (plaintiff).

      Karen Haabestad Fritzinger, assistant attorney general, with whom, on the brief, were Richard Blumen-thal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).
   Opinion

SULLIVAN, J.

The dispositive issue in this appeal is whether service of process pursuant to General Statutes § 4-183 (c) is perfected upon depositing into the mail a copy of the appeal documents, addressed to the proper agency or the office of the attorney general, within forty-five days of an agency decision. The plaintiff, AM-lah Bittle, appeals from the judgment of the trial court dismissing her appeal from a decision of the defendant department of social services (department). The trial court concluded that it did not have jurisdiction to hear the plaintiffs appeal because service of process was not made on the defendant within forty-five days as required by § 4-183 (c).

The facts are undisputed. The plaintiff applied to the department for an emergency security deposit so that she might rent a new residence. The department informed her that before she could be eligible for an emergency security deposit she would have to obtain a judgment of eviction against herself. Shortly thereafter, the plaintiff obtained such a judgment. When she advised the department that she had obtained the judgment of eviction, the department informed her that she had never been qualified to receive an emergency security deposit.

The department issued its denial of the plaintiffs request for an emergency security deposit on August 29, 1995. On October 12, 1995, forty-four days after the issuance of the judgment, the plaintiff attempted to appeal from the denial of her request for an emergency security deposit. This was accomplished by depositing the appeal documents in the United States mail by certified mail, return receipt requested, addressed to the commissioner of the department of social services and to the office of the attorney general. The attorney general’s office and the office of the commissioner of the department of social services received the appeal documents on October 16, 1995, forty-eight days after notice of the denial of the requested emergency security deposit was mailed to the plaintiff. The trial court found that service was not completed until it was received by the defendants and, therefore, that the plaintiff had not satisfied the requirement of § 4-183 (c), depriving the court of subject matter jurisdiction. We agree.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . [WJhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” Id., 222.

The plaintiff claims that the trial court improperly dismissed her appeal because she did, in fact, satisfy the forty-five day service requirement set forth in § 4-183 (c) when she deposited her appeal documents in the United States mail within forty-five days of the department’s decision.

“[I]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994).

Connecticut statutes must be read in accordance with the plain language that is set forth in them. Donner v. Kearse, 234 Conn. 660, 670, 662 A.2d 1269 (1995). Section 4-183 (c) provides, in general terms, that an administrative appeal must be filed with the court and served on the agency or the attorney general and on each party listed in the decision within forty-five days of delivery of the agency’s final decision to the appellant. Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852, 633 A.2d 305 (1993). Section 4-183 (c) further provides that the appealing party’s failure to make service on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal. If the legislature intended to allow service on the subject agency to be completed upon receipt of the appeal documents after forty-five days, it would not have specifically excluded “parties other than the agency that rendered the final decision” from the forty-five day requirement. To hold that service was completed when the plaintiff deposited the appeal documents in the mail would result in a grace period to the appealing party that the legislature never intended. In fact, the legislature’s intent was quite the opposite.

A review of the history of § 4-183 (c) reveals that prior to 1988, appeals had to be served on the defendant agency within thirty days of its decision. The appeal then had to be returned to court within another fifteen days, or within forty-five days of the issuance of the agency’s decision. General Statutes (Rev. to 1987) § 4-183. “Section 4-183 (c) is the outgrowth of the fact that ‘[i]n 1988, the legislature enacted a comprehensive revision of the [Uniform Administrative Procedure Act], based upon recommendations made after nearly three years of study and review by the Connecticut law revision commission.’ Tolly v. Department of Human Resources, [225 Conn. 13, 26, 621 A.2d 719 (1993)]. With only slight alteration, § 24 of the bill proposed by the law revision commission ultimately became General Statutes § 4-183 (c). Compare 1987 Thirteenth Annual Report of the Connecticut Law Revision Commission to the General Assembly, March, 1988, p. 63 (law revision commission report). The commentary to § 24 of the proposal makes clear not only that service must be made within forty-five days, but that ‘[t]he appeal must also be filed in the court within forty-five days.’ Law revision commission report, p. 39. There is nothing in the committee hearings or floor debate on Public Acts 1988, No. 88-317, to suggest that the legislature intended to depart from this earlier and clearly expressed intent.” Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, supra, 227 Conn. 853.

The plaintiff relies heavily on Hanson v. Dept. of Income Maintenance, 10 Conn. App. 14, 15-16, 521 A.2d 208 (1987), which states, in dicta, that the mailing of an appeal of an agency’s decision on the forty-fifth day is effective service. That case was decided, however, prior to the comprehensive changes to § 4-183 (c) and, therefore, does not assist the plaintiff in this appeal. In Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, supra, 227 Conn. 852-53, our Supreme Court held that if appeal documents are received by the clerk’s office beyond the forty-five day period, the Superior Court has no subject matter jurisdiction to hear the appeal. The appellant in that case mailed the appeal documents and served the parties within the forty-five day appeal period. The clerk’s office did not receive the appeal documents, however, until after the expiration of the appeal period. The issue in Glastonbury Volunteer Ambulance Assn., Inc., was whether the filing of the appeal occurred beyond the forty-five day appeal period, thereby depriving the trial court of subject matter jurisdiction. The court in that case addressed the filing requirement under § 4-183 and not the issue of when service of process is completed. Thus, Glastonbury Volunteer Ambulance Assn., Inc., did not address the issue in this case, namely, whether service is completed by the deposit of the appeal into the mail or by the actual receipt of the appeal by either the agency involved or the office of the attorney general. Nevertheless, we find instructive the court’s decision that the filing requirement in § 4-183 mandates receipt of the appeal documents within the forty-five day appeal period.

We find that service under § 4-183 (c) on an agency or on the office of the attorney general is not completed until the appeal is in the possession of the subject agency or the attorney general’s office, whether said service be by certified mail or in-hand service. Because service was not completed within forty-five days of the issuance of the agency’s decision, the trial court had no subject matter jurisdiction to hear the appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 4-183 (c) provides: “Within forty-five days after mailing of the final decision under section 4-180 or, if there is no mailing, within forty-five days after personal delivery of the final decision under said section, a person appealing as provided in this section shall serve a copy of the appeal on the agency that rendered the final decision at its office or at the office of the Attorney General in Hartford and file the appeal with the clerk of the superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the person appealing resides or, if that person is not a resident of this state, with the clerk of the court for the judicial district of Hartford-New Britain. Within that time, the person appealing shall also serve a copy of the appeal on each party listed in the final decision at the address shown in the decision, provided failure to make such service within forty-five days on parties other than the agency that rendered the final decision shall not deprive the court of jurisdiction over the appeal. Service of the appeal shall be made by (1) United States mail, certified or registered, postage prepaid, return receipt requested, without the use of a sheriff or other officer, or (2) personal service by a proper officer or indifferent person making service in the same manner as complaints are served in ordinary civil actions.”

       Stephen F. Frazzini, the executive director of the Legal Aid Society of Hartford County, Inc., stated in his comments to the legislature regarding the revisions to § 4-183 (c.) that “[t]he problem is that the present statute is very hard to follow. I don’t know how many times I have seen lawyers who have thought that they could file the appeal within forty-five days and they were safe. The present section has two different filing deadlines. You have to file it, you have to serve the appeal on the agency within [thirty] days after the decision, and then within another [fifteen] days you have to file the appeal with court. But the number of people who do both within [forty-five] days is legion, and I think it’s really unfair that the appeal process is so difficult to understand and to comply with. What this bill does is it makes . . . things simpler. For example, one forty-five day appeal period, serve the party, serve the agency both. No confusion [on] how long you’ve got . . . for what you’ve got to do.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1988 Sess., p. 264.