author: KATZ, J.

text:
    MICHELLE MURPHY, CONSERVATOR (ESTATE OF PAUL SYLVAN) v. GEORGE WAKELEE
    (SC 15838)
    Borden, Norcott, Katz, Palmer and Peters, Js.
    Argued November 4
    officially released December 29, 1998

      A. Paul Spinella, with whom, on the brief, was Christian J. Moran, for the appellant (plaintiff).

      James E. Coyne, with whom, on the brief, was Colleen D. Fries, for the appellee (defendant).
   Opinion

KATZ, J.

In this certified appeal we must decide whether, when breach of a fiduciary duty has been alleged, the burden to prove fair dealing by clear-and convincing evidence shifts to the defendant in cases that do not involve claims of fraud, self-dealing or conflict of interest. We conclude that unless the allegation involves such claims, the burden does not shift.

The Appellate Court opinion sets forth the following relevant facts. “On October 7, 1963, Theodore Sylvan created an irrevocable, inter vivos trust referred to as the Ramp Garage Trust (trust). The trust designated Paul Sylvan (Sylvan) as beneficiary. On February 24, 1989, the defendant [George Wakelee] was appointed conservator of Sylvan’s estate.

“On July 23, 1987, Sylvan entered the DATAHR facility, a residence for mentally handicapped individuals and applied to the state department of income maintenance (department) for financial assistance under Title XIX-ND Medical Assistance Program. On October 15, 1987, the department resources division denied Sylvan’s application for Title XIX-ND benefits claiming that the corpus of the trust was available to pay his medical expenses.

“Subsequently, Sylvan timely appealed the department’s decision and an administrative hearing was held before a fair hearing officer on January 17, 1989. The fair hearing officer determined that the trust could be used to pay for Sylvan’s medical care at DATAHR. Accordingly, the fair hearing officer upheld the department’s decision to deny Sylvan Title XIX-ND benefits. No appeal was taken from the fair hearing officer’s decision and the corpus of the trust was invaded and fully exhausted to pay for Sylvan’s general medical care and support.

“On February 24,1993, the plaintiff, Michelle Murphy, was appointed to replace the defendant as conservator of Sylvan’s estate. Thereafter, Murphy filed a complaint against the defendant alleging that the defendant, in his capacity as conservator, was negligent in failing to appeal the hearing officer’s decision denying Sylvan Title XIX-ND benefits. A jury trial was held and the jury rendered a verdict in favor of the defendant on all counts in the complaint.” Murphy v. Wakelee, 46 Conn. App. 425, 426-27, 699 A.2d 301 (1997).

On appeal to the Appellate Court, the plaintiff claimed, inter alia, that the trial court improperly had instructed the jury regarding the parties’ burden of proof with respect to the duties of a fiduciary. The trial court had instructed the jury that the plaintiff had the burden of proving that the defendant, as conservator, was negligent and that his negligence was a proximate cause of the injury to Sylvan’s estate. The trial court concluded, however, by instructing the jury further that if it were to find that the plaintiff had proven negligence and causation by a preponderance of the evidence, the burden would then shift to the defendant to prove by clear and convincing evidence that he had not engaged in unfair dealing. The Appellate Court concluded that the charge was proper. Id., 429.

We granted the plaintiffs petition for certification to consider whether the Appellate Court properly concluded that the trial court’s instructions regarding the burden of proof as to the duties of the defendant in his fiduciary capacity were proper Murphy v. Wakelee, 243 Conn. 956,704 A.2d 805 (1997). The defendant asserts as alternate grounds for affirmance of the Appellate Court

judgment that (1) the plaintiffs complaint does not allege a breach of a fiduciary duty, thereby eliminating the necessity of a burden-shifting instruction, and (2) assuming that the complaint did allege a breach of a fiduciary duty, the trial court was not required to provide a burden-shifting instruction in the absence of an assertion that the defendant had engaged in fraud or self-dealing. We agree with the defendant’s second alternate ground for affirmance that, in the absence of a claim of fraud, self-dealing or conflict of interest, the trial court was not required to charge the jury that the defendant had a duty to prove his fair dealing by clear and convincing evidence. Accordingly, we affirm the judgment of the Appellate Court.

It is important at the outset to state what this case is not about. The plaintiff has not alleged that the defendant engaged in self-dealing. Nor has she alleged that his conduct was fraudulent or that he manifested a conflict of interest. The claim of breach of the defendant’s fiduciary duty is premised solely upon his alleged negligence as conservator in failing to preserve properly his ward’s assets by neglecting to appeal the hearing officer’s decision denying Sylvan Title XIX-ND benefits.

Our law on the obligations of a fiduciary is well settled. “[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him.” (Internal quotation marks omitted.) Konover Development Corp. v. Zeller, 228 Conn. 206, 219, 635 A.2d 798 (1994). “Once a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary. . . . Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence.” (Citations omitted; internal quotation marks omitted.) Dunham v. Dunham, 204 Conn. 303, 322-23, 528 A.2d 1123 (1987). Proof of a fiduciary relationship, therefore, generally imposes a twofold burden on the fiduciary. First, the burden of proof shifts to the fiduciary; and second, the standard of proof is clear and convincing evidence.

Although we have not expressly limited the application of these traditional principles of fiduciary duty to cases involving only fraud, self-dealing or conflict of interest, the cases in which we have invoked them have involved such deviations. In Dunham, the defendant, an attorney, had performed his family’s estate planning and had drafted his mother’s will which, coincidentally, left him substantial assets and named him executor of her estate. Id., 306. He then consolidated the entire family’s property in his name, leaving the plaintiff, his brother, with virtually nothing. Id. We concluded that the trial court correctly had instructed the jury that if it found a fiduciary relationship, the burden shifted to the attorney son to prove fair dealing. Id., 323.

In Alaimo v. Royer, 188 Conn. 36, 41, 448 A.2d 207 (1982), this court recognized a fiduciary relationship between the plaintiff, an elderly disabled woman, and the defendant, the president of a real estate investment club upon whom she had been encouraged to rely. The court held that in light of the allegations that the plaintiff had given the defendant her life savings for purposes of investment and that he had not paid interest but had instead spent the money, the burden shifted to the defendant to prove fair dealing.

In Sisk v. Jordan Co., 94 Conn. 384, 390, 109 A. 181 (1920), we reiterated the rule that “[a] fiduciary claiming a benefit from his dealing with his cestui que trust . . . should be made to prove that he dealt in fairness and under the conditions prescribed bylaw. The full knowledge of the transaction is within his possession; he can and he must assume the burden of its proof. This rule we applied in a transaction between a trustee and a cestui que trust. Nichols v. McCarthy, 53 Conn. 299, 319, 23 [A.] 93 [1885]. And likewise in the case of a transfer by an heir to the administrator. State v. Culhane, 78 Conn. 622, 629, 63 [A.] 636 [1906].”

In State v. Culhane, supra, 78 Conn. 628, we stated that “[i]t is a thoroughly well-settled equitable rule that any one acting in a fiduciary relation shall not be permitted to make use of that relation to benefit his own personal interest. This rule is strict in its requirements and in its operation. It extends to all transactions where the individual’s personal interests may be brought into conflict with his acts in the fiduciary capacity, and it works independently of the question whether there was fraud or whether there was good intention. . . . The rule applies alike to agents, partners, guardians, executors and administrators. In Nichols v. McCarthy, [supra, 53 Com. 316], this court, quoting the language of Pomeroy’s Equity Jurisprudence (3d Ed.), Vol. 2, § 958, said: A purchase by a trustee from his cestui que trust, even for a fair price and without any mdue advantage, or any other transaction between them by which the trustee obtains a benefit, is generally voidable, and will be set aside on behalf of the beneficiary; it is at least prima facie voidable upon the mere facts thus stated. There is, however, no imperative rule of equity that a transaction between the parties is necessarily, in every instance, voidable. It is possible for the trustee to overcome the presumption of invalidity. And again [in Nichols v. McCarthy, supra, 317], quoting from Perry on Trusts (5th Ed.), Vol. 1, § 194: If parties within the prohibited relations or conditions contract between themselves, courts of equity will avoid the contract altogether, without proof, or they will throw upon the party standing in this position of trust, confidence, and influence, the burden of proving the entire fairness of the transaction. The equitable doctrine thus stated applies with equal strictness to executors and administrators. [2 Pomeroy, supra] § 963.” (Internal quotation marks omitted.)

In the cases concerning self-dealing in corporate transactions, we have stated that, if a director of a corporation enters into a transaction with the corporation that will inure to his or her individual benefit, the director bears the burden of proving that the transaction is “fair, in good faith and for adequate consideration . . . .” Rosenfield v. Metals Selling Corp., 229 Conn. 771, 795-96, 643 A.2d 1253 (1994); Osborne v. Locke Steel Chain Co., 153 Conn. 527, 534, 218 A.2d 526 (1966) (“director of a corporation has the burden of showing that any personal dealing with the corporation is fair, in good faith and for adequate consideration”); Klopot v. Northrup, 131 Conn. 14, 20-21, 37 A.2d 700 (1944) (“[w]here a director of a corporation enters into a transaction with it which will inure to his individual profit, we have held that he has the burden of proving that the transaction is entirely fair, made in good faith, for an adequate consideration and upon a full understanding”); Massoth v. Central Bus Corp., 104 Conn. 683, 689, 134 A. 236 (1926) (where director of corporation “deals with it as an individual, not himself participating in the transaction on behalf of the corporation, the burden rests upon him to show the transaction was entirely fair, made in good faith, for an adequate consideration, and upon a full understanding”); Sisk v. Jordan Co., supra, 94 Conn. 391 (where “[i]n his dealing with the corporation, both in his loans of money and credit, and in his purchases, the individual interest of [the plaintiff] and his fiduciary interest as director met . . . the burden was upon him to show that each of the transactions was fair and equitable”); see also 1 A.L.I., Principles of Corporate Governance: Analysis and Recommendations (1994) § 4.01 (c), comment (d), pp. 176-77 (business judgment rule is safe harbor except where matters of conflict exist; where director is interested, business judgment rule is inapplicable and burden shifts to director to prove transaction fair and reasonable to corporation).

We have applied this distinction in our cases concerning allegations of corporate misconduct involving usurpation of a corporate opportunity. “The framework governing a claim of usurpation of a corporate opportunity differs only in part from the basic corporate fiduciary framework.” Ostrowski v. Avery, 243 Conn. 355, 362, 703 A.2d 117 (1997). If a corporate officer is presented with a business opportunity that the corporation is financially able to undertake, is in line with its business and is one in which the corporation has an interest or expectancy, the self-interest of the officer will be brought into conflict with the interest of the corporation and the law will not permit him to seize the opportunity for himself. To prevail on a claim of usurpation, we observed, in Katz Corp. v. T. H. Canty & Co., 168 Conn. 201, 207-208, 362 A.2d 975 (1975), that a plaintiff bears the burden of establishing: (1) a fiduciary relationship between the corporation and the alleged wrongdoers; and (2) the existence of a corporate opportunity. “The doctrine of corporate opportunity ... is but one phase of the cardinal rule of undivided loyalty on the part of fiduciaries. In other words, one who occupies a fiduciary relationship to a corporation may not acquire, in opposition to the corporation, property in which the corporation has an interest or tangible expectancy or which is essential to its existence.” (Internal quotation marks omitted.) Id., 208. Once a plaintiff establishes the relationship and the corporate opportunity, the burden then shifts to the fiduciaries to establish, by clear and convincing evidence, the fairness of their dealings with the corporation. Ostrowski v. Avery, supra, 362.

Finally, we have applied these same rules to cases involving partners who self-deal. See Oakhill Associates v. D’Amato, 228 Conn. 723, 726-27, 638 A.2d 31 (1994) (claim of plaintiff partnership, in which named defendant was one of four partners, that defendant breached fiduciary duty by charging excessive amounts for construction work by defendant corporation, of which named defendant was majority shareholder, principal, officer and director); Konover Development Corp. v. Zeller, supra, 228 Conn. 211, 229-30 (claim of limited partner that general partner breached its fiduciary duty by terminating project requiring it to reimburse general partner for all “ ‘out-of-pocket’ expenditures” and to withdraw from partnership leaving general partner with 100 percent ownership of all real estate, permits and property rights).

Although not always expressly stated, the basis upon which the aforementioned burden-shifting and enhanced burden of proof rests is, essentially, that undue influence will not be presumed; Connell v. Colwell, 214 Conn. 242, 252, 571 A.2d 116 (1990) (fraud is not presumed and burden of establishing fraud rests on party who alleges it); and that the presumption of fraud does not arise from the relationship itself. We note, however, “that [this] rule is somewhat relaxed in cases where a fiduciary relation exists between the parties to a transaction or contract, and where one has a dominant and controlling force or influence over the other. In such cases, if the superior party obtains a possible benefit, equity raises a presumption against the validity of the transaction or contract, and casts upon such party the burden of proving fairness, honesty, and integrity in the transaction or contract.” (Emphasis added.) 37 Am. Jur. 2d 601-602, Fraud and Deceit § 441 (1968); see also United Founders Life Ins. Co. v. Carey, 347 S.W.2d 295, 307 (Tex. App. 1961) (when fiduciary relationship is shown and involved transaction is attacked for fraud and party accused has obtained advantage, presumption of unfairness arises which such party must dispel by showing transactions fairly made), rev’d on other grounds, 363 S.W.2d 236 (Tex. 1962). Therefore, it is only when the “confidential relationship is shown together with suspicious circumstances, or where there is a transaction, contract, or transfer between persons in a confidential or fiduciary relationship, and where the dominant party is the beneficiary of the transaction, contract, or transfer,” that the burden shifts to the fiduciary to prove fair dealing. 25 Am. Jur. 2d 551, Duress and Undue Influence § 38 (1996). A fiduciary seeking to profit by a transaction with the one who confided in him has the burden of showing that he has not taken advantage of his influence or knowledge and that the arrangement is fair and conscientious. Id., 552; see also Nichols v. McCarthy, supra, 53 Conn. 307-308. Therefore, we read the burden-shifting language in our cases, not in a vacuum as the plaintiff suggests, but, rather, against the backdrop of the circumstances that raised the presumption of fraud.

Finally, the plaintiff argues that should this court adopt a rule shifting the burden only in cases alleging fraud, self-dealing or conflict of interest, an exception should be carved out for cases involving conservators. She proposes that when a conservator, appointed to care for and manage the estate of an incompetent individual, is the fiduciary, the burden-shifting should apply even in the absence of a claim of fraud, self-dealing or conflict of interest. We disagree. We see no reason to carve out an exception solely because the plaintiffs ward is incompetent. Indeed, on the contrary, because the conservator’s duties are so prescribed, there is less reason for concern. As this court stated in Marcus’ Appeal from Probate, 199 Conn. 524, 528-29, 509 A.2d 1 (1986): “A conservator has only such powers as are expressly or impliedly given to him by statute. ... In exercising those powers, he is under the supervision and control of the Probate Court . . . [which] is under an ‘affirmative duty’ to protect the assets of an incompetent’s estate. . . . The court, and not the conservator, is primarily entrusted with the care and management of the ward’s estate, and, in many respects, the conservator is but the agent of the court. . . . Under our law, it is clear that the conservator acts under the supervision and control of the Probate Court in the care and management of the ward’s estate. It is equally clear that the Probate Court is without jurisdiction to approve of any acts by the conservator unless those acts are authorized by statute.” (Citations omitted; emphasis in original; internal quotation marks omitted.)

All fiduciary relationships, to some degree, “[require] confidence of one in another and a certain inequity or dependence arising from weakness of age, mental strength, business intelligence, knowledge of facts involved, or other conditions which give one an advantage over the other.” Gillespie v. Seymour, 14 Kan. App. 2d 563, 567, 796 P.2d 1060 (1990), rev’d in part on other grounds, 250 Kan. 123, 823 P.2d 782 (1991). Therefore, we perceive no principled basis upon which to craft the proposed exception for conservators.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       We granted the plaintiffs petitíonfor certification limited to the following issue: “Did the Appellate Courtproperly conclude that the trial court properly instructed the jury regarding the parties’ burden of proof with respect to the duties of the defendant fiduciary?” Murphy v. Wakelee, 243 Conn. 956, 704 A.2d 805 (1997).

       In the first count of her complaint, the plaintiff alleged that the defendant, pursuant to General Statutes (Rev. to 1989) § 45-75, now § 45a-655, had acted as conservator of Sylvan’s estate and set forth the facts from which the fiduciary duty arose. Despite the fact that the plaintiff does not identify the defendant as a fiduciary, she does state clearly that she brought the action against him as a conservator, as distinguished from the third count of the complaint, which is against the defendant individually and which asserts numerous claims of negligence in his role as an attorney. Because the defendant was a conservator, he owed a fiduciary duty to his ward, regardless of whether that duty had been specifically so labeled in the complaint. See Practice Book § 10-4, formerly § 110 (“unnecessary to allege any . . . duty which the law implies from the facts pleaded”). We, therefore, conclude that the trial court reasonably concluded that the first count of the complaint alleged a claim of breach of fiduciary duty. United, Components, Inc. v. Wdowiak, 239 Conn. 259, 264, 684 A.2d 693 (1996).

       Although the defendant argues only that allegations of fraud or self-dealing require a burden-shifting instruction, we consider an allegation of conflict of interest, which also describes a basic deviation from the duty owed by a fiduciary to a beneficiary, to similarly warrant this heightened jury charge.

       Accordingly, the trial court’s instructions were more favorable than those to which the plaintiff was actually entitled.

       In Dunham, we also referred to cases in other jurisdictions that held that conveyances of property from clients to attorneys are presumptively fraudulent and that the attorneys bear the burden to prove fair dealing by clear and convincing evidence. See Hicks v. Clayton, 67 Cal. App. 3d 251, 262, 136 Cal. Rptr. 512 (1977); Nelson v. Walden, 186 So. 2d 517, 519 (Fla. App. 1966); In the Matter of Miller, 568 S.W.2d 246, 251 (Mo. 1978).


source: Caselaw Access Project

author: NORCOTT, J. BERDON, J.,

license: Public Domain

text:
    LAWRENCE BRUNOLI, INC. v. TOWN OF BRANFORD
    (SC 15872)
    Borden, Berdon, Norcott, Katz and McDonald, Js.
    Argued September 23, 1998
    officially released January 5, 1999

      John C. FitzGerald, Jr., for the appellant (plaintiff).

      Brian J. Donnell, with whom was Robert M. Barrack, for the appellee (defendant).
   Opinion

NORCOTT, J.

The issue in this appeal is whether the court has subject matter jurisdiction over a claim for damages, rather than for injunctive relief, allegedly resulting from fraud, corruption or favoritism in the award of a contract that is subject to competitive municipal bidding requirements. The plaintiff, Lawrence Brunoli, Inc., brought this action against the defendant, the town of Branford, for money damages that the plaintiff claimed to have received as a result of improperly having been denied a certain municipal construction contract on which it had submitted a bid. The trial court dismissed the action on the ground that the plaintiff had no standing to assert a claim for damages in such a situation, and that a disappointed bidder is confined to an action for injunctive relief. The plaintiff claims that an unsuccessful bidder for a municipal construction contract is not limited to injunctive relief, but instead may seek money damages from the municipality. We conclude that a cause of action for money damages is not available to unsuccessful bidders on municipal contracts, regardless of whether there are allegations of fraud, favoritism or corruption in the bidding process. Accordingly, we affirm the judgment of the trial court.

According to the allegations of the plaintiffs revised complaint, which for purposes of this appeal we assume to be true, the defendant published an invitation to bid on a municipal construction project for renovations to and alterations of Branford High School, in response to which the plaintiff submitted a bid. The plaintiff further alleged that, on February 3, 1997, it was informed that it was the “lowest qualified bidder,” but that the defendant subsequently withdrew its award of the contract to the plaintiff because the plaintiff had failed to attend a prebid conference regarding details of the work to be performed under the contract. In addition, the complaint alleged that the defendant had permitted the plaintiff to bid on the project although the defendant knew that the plaintiff had not attended the prebid conference, and that the defendant therefore had waived any attendance requirement by accepting the bid. According to the complaint, the defendant later awarded the contract to the second lowest bidder, in violation of § 75-2 of the code of the town of Branford. The plaintiff alleged further that the defendant’s conduct constituted favoritism toward the ultimate contract awardee. Finally, the plaintiff alleged that the defendant had breached its agreement to award the contract to the lowest qualified bidder, causing the plaintiff to suffer damages.

The defendant moved to dismiss the complaint for lack of subject matter jurisdiction on the ground, inter alia, that the plaintiff “is seeking money damages rather than injunctive relief, and Connecticut law only affords standing to disappointed bidders for public works contracts to bring actions for injunctive relief to vindicate the public interest in the competitive bidding process as private attorneys general.” The trial court granted the defendant’s motion and rendered judgment dismissing the plaintiffs action. This appeal followed. The plaintiff claims that the trial court improperly concluded that despite allegations of fraud, favoritism or corruption in the bidding process, an unsuccessful bidder for a municipal public works contract may not maintain an action for money damages. We disagree.

We first note that, because “[a] determination regarding a trial court’s subject matter jurisdiction is a question of law,” our review is plenary. Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998). It is well established that “[i]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). In the present case, however, we need not reach and, therefore, decline to address, the question of whether the facts alleged in the plaintiffs complaint constitute fraud, corruption or favoritism, because we conclude that, as a matter of law, an unsuccessful bidder to a municipal contract has no standing to assert a cause of action for money damages for failure of the municipality to follow its competitive bidding laws, regardless of whether the plaintiff alleges fraud, corruption or favoritism.

An unsuccessful bidder to a municipal contract has available to him only very limited forms of standing. “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subj ect matter of the controversy.” (Internal quotation marks omitted.) Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983). It is axiomatic that a party cannot be liable for breaching a contract with another party unless a contract exists between the parties that could be breached. In the realm of competitive municipal bidding, it is well settled that a contract is created through the municipality’s action of awarding a contract, not through the submission of a bid by the contractor. “A bid is a binding offer to make a contract. ... A bid, even the lowest responsible one, submitted in response to an invitation for bids is only an offer which, until accepted by the municipality, does not give rise to a contract between the parties. . . . Furthermore, where the municipality reserves the right to reject any and all bids, no bidder can claim any contractual lights until he has been awarded the contract.” (Citations omitted; internal quotation marks omitted.) John J. Brennan Construction Corp., Inc. v. Shelton, 187 Conn. 695, 702, 448 A.2d 180 (1982). Except in certain specified circumstances, “an unsuccessful bidder has no standing to challenge the award of apublic contract.” Ardmare Construction Co. v. Freedman, supra, 501.

If an unsuccessful bidder has standing to bring a claim against a municipality, therefore, such standing must be derived from a source other than its bid submitted in response to the invitation to bid. That source is the municipal bidding statutes themselves. Spiniello Construction Co. v. Manchester, 189 Conn. 539, 543-44, 456 A.2d 1199 (1983). “[O]nly where fraud, corruption or favoritism has influenced the conduct of the bidding officials or when the very object and integrity of the competitive bidding process is defeated by the conduct of municipal officials, does an unsuccessful bidder have standing to challenge the award.” (Internal quotation marks omitted.) Ardmare Construction Co. v. Freedman, supra, 191 Conn. 501. A review of our prior cases illustrates, however, that the only remedy afforded to unsuccessful bidders under the municipal bidding statutes has been injunctive relief against the awarding of the contract to the illegally favored bidder. See, e.g., Blesso Fire Systems, Inc. v. Eastern Connecticut State University, 245 Conn. 252, 713 A.2d 1283 (1998); Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 600 A.2d 1019 (1991); Ardmare Construction Co. v. Freedman, supra, 497; Spiniello Construction Co. v. Manchester, supra, 539; John J. Brennan Construction Corp., Inc. v. Shelton, supra, 187 Conn. 695; Austin v. Housing Authority, 143 Conn. 338, 122 A.2d 399 (1956).

Providing unsuccessful bidders with an equitable remedy alone is consistent with the policies that we previously have identified as underlying the municipal bidding statutes. This court has long maintained that “[mjunicipal competitive bidding laws are enacted to guard against such evils as favoritism, fraud or corruption in the award of contracts, to secure the best product at the lowest price, and to benefit the taxpayers, not the bidders; they should be construed to accomplish these purposes fairly and reasonably with sole reference to the public interest.” (Emphasis added.) John J. Brennan Construction Corp., Inc. v. Shelton, supra, 187 Conn. 702; Ardmare Construction Co. v. Freedman, supra, 191 Conn. 504. In Spiniello Construction Co. v. Manchester, supra, 189 Conn. 544-45, we substantially adopted the approach to unsuccessful bidder claims that was described by the Court of Appeals for the District of Columbia in Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 864 (D.C. Cir. 1970). In Scanwell Laboratories, Inc., the court concluded that an unsuccessful bidder may bring an action against the municipality, but rather than being an action to vindicate the personal harm the bidder perceives it has suffered, “the [action] itself is brought in the public interest by one acting essentially as a ‘private attorney general.’ ” Id., 864. That public interest is triggered when a municipality is involved in some form of fraud, corruption or favoritism, or “when the very object and integrity of the competitive bidding process is defeated by the conduct of municipal officials.” Spiniello Construction Co. v. Manchester, supra, 544; see also Ardmare Construction Co. v. Freedman, supra, 504 — 505. It would be inconsistent with these policies to permit an unsuccessful bidder to assert a private claim for damages.

Furthermore, we have noted previously that we must “strike the proper balance between fulfilling the purposes of the competitive bidding statutes and preventing frequent litigation that might result in extensive delay in the commencement and completion of government projects to the detriment of the public.” Ardmare Construction Co. v. Freedman, supra, 191 Conn. 505. To grant standing to unsuccessful bidders who seek to bring actions for money damages would undermine the purpose underlying the municipal bidding statutes. If a municipality is found to have committed fraud, corruption or favoritism and is accordingly enjoined from awarding the bid to the designated awardee, the public is protected because the municipality is barred from paying more than the best price for the work to be performed. If, however, an unsuccessful bidder is permitted to assert a claim for money damages, rather than injunctive relief against awarding the contract to the successful bidder, the taxpayers of the municipality would be subject to paying once to have the work performed by the successful bidder and, if the unsuccessful bidder were successful, again for damages above and beyond the cost of the project. Such extra costs clearly are not in the public interest.

Further, a municipality must know, in advance of awarding a contract, what the ultimate costs of the project will be. If an unsuccessful bidder were able to eschew a claim for injunctive relief and assert a claim for damages, the municipality would not know with certainty what those costs are until the limitations period for such a claim for damages had passed.

The plaintiff contends, nevertheless, that the threat of public discontent at paying damages would provide a more effective deterrent to keep bidding officials from committing fraud, corruption or favoritism than does the threat of an injunction. We do not find this argument to be persuasive. Our cases, in which unsuccessful bidders sought injunctive relief in circumstances of fraud, corruption or favoritism, constitute persuasive evidence that money damages are not required as an incentive for unsuccessful bidders to act as watchdogs on the municipal bidding process. There already exists in the realm of injunctive relief sufficient incentive for unsuccessful bidders to seek judicial intervention, which in turn acts as a deterrent upon bidding officials to violate the bidding statutes, without the detriment to the public interest that an action for money damages would cause.

Finally, recognizing standing to an unsuccessful bidder to seek money damages effectively would eliminate the availability of injunctive relief in this context. It is well established that “ ‘ [a] party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law.’ ” Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992). If an unsuccessful bidder had an action in damages available to it as an alternative form of relief, we fail to see how it would ever be a qualified candidate for injunctive relief. This would eliminate the more efficacious remedy, to the detriment of the public.

We reaffirm the conclusion that this court consistently has maintained: where a municipality has engaged in fraud, corruption or favoritism, an unsuccessful bidder does have standing under the applicable, competitive municipal bidding provision to bring an action for injunctive relief. We hold, however, that an unsuccessful bidder does not have standing to seek money damages. To conclude otherwise would run counter to the sound and established purpose of protecting the public interest that underlies the municipal bidding statutes.

The judgment is affirmed.

In this opinion BORDEN, KATZ and MCDONALD, Js., concurred.

BERDON, J.,

dissenting. This case involves an important public policy consideration — whether a municipality should be subject to liability for damages because it rejected the bid of the lowest qualified bidder in violation of the town code that requires the town to award contracts to such a bidder. “Such requirements [of competitive bidding] as are contained in the [code] in question are for the purpose of inviting competition, to guard against favoritism, improvidence, extravagance, fraud and corruption in the awarding of municipal contracts, and to secure the best work or supplies at the lowest price practicable, and are enacted for the benefit of property holders and taxpayers, and not for the benefit or enrichment of bidders, and should be so construed and administered as to accomplish such purpose fairly and reasonably with sole reference to the public interest. 10 McQuillin, Municipal Corporations (3d Ed.) § 29.29.” (Internal quotation marks omitted.) Austin v. Housing Authority, 143 Conn. 338, 345, 122 A.2d 399 (1956). The question, therefore, is how to best protect those interests. I would hold that the public interest can best be vindicated by allowing the lowest qualified bidder who has not been awarded the contract to seek damages.

In the present case, the plaintiff, Lawrence Brunoli, Inc., alleges that the defendant, the town of Branford, had informed the plaintiff that it was the “lowest qualified bidder” for the construction project in question, but did not award the contract to the plaintiff because it apparently failed to attend a prebid conference. The plaintiff, however, alleges in its complaint that the defendant’s invitation to bid did not specify that the prebid conference was a requirement and, alternatively, that if it did, it waived any such requirement. According to the plaintiff, the defendant engaged in favoritism when it awarded the contract to the second lowest bidder, whose bid was $344,000 higher than the plaintiffs, in violation of § 75-2 of the Branford code. The plaintiff brought the present action for money damages that it allegedly suffered as a result of this violation. The defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction was granted and the plaintiff appealed.

On the basis of the plaintiffs allegations, I recognize that the taxpayers of the defendant already have been penalized in the amount of $344,000 as a result of the defendant’s refusal to accept the plaintiffs low bid. According to the majority opinion, the public, through the defendant, should not be penalized further by having to pay monetary damages, notwithstanding any potential fraud, favoritism or corruption. Similarly, other jurisdictions that have prohibited monetary damages have done so in reliance on the same two theories that the majority espouses: (1) that the competitive bidding laws were designed to protect the government and not the individual bidders; and (2) that the treasury has already been injured by paying too high a price for the goods and service. Annot., 65 A.L.R.4th 93, 99 (1988). Additionally, the majority asserts that the availability of monetary damages would create excessive litigation and cause uncertainty for the municipal government with respect to the costs of the project. Such claims are not only unconvincing, but also ignore the problem of the lack of incentive for the private sector to keep government honest and the reality that costs of such projects are typically elastic.

In my view, the assessment of monetary damages against the defendant would best serve the public interests at stake. I agree with those jurisdictions that have determined that “[a]n award of money damages would be in the public interest because it would deter such misconduct by public entities in the future.” Marbucco Corp. v. Manchester, 137 N.H. 629, 633, 632 A.2d 522 (1993); see also Swinerton & Walberg Co. v. Inglewood Los Angeles County Civic Center Authority, 40 Cal. App. 3d 98, 105, 114 Cal. Rptr. 834 (1974). As the plaintiff asserts, the spector of public discontent at paying monetary damages is more likely to deter any potential official misconduct than if only injunctive relief is at stake. Moreover, such a deterrent would encourage more bidders, which would increase competition and thereby lower costs to the taxpayers. See Owen of Georgia, Inc. v. Shelby County, 648 F.2d 1084, 1095 (6th Cir. 1981) (applying Tennessee law, “it is doubtful that many contractors would bid at all knowing the deck was stacked against them”). Lastly, awarding monetary damages would also compensate the plaintiff for its justifiable reliance upon the municipal code.

It is true, as the majority points out, that we have thus far recognized that in certain circumstances the lowest bidder has standing to bring an action for an injunction. See, e.g., Spiniello Construction Co. v. Manchester, 189 Conn. 539, 544, 456 A.2d 1199 (1983). Nevertheless, the majority is unable to cite to any case wherein we have, on a contractual theory, rejected a cause of action for damages. The majority merely states that since there was no contract between the plaintiff and the defendant, there is no cause of action for damages. This simplistic answer, however, does not address the plaintiffs claim.

The law of contract does not necessarily start with an offer and end with the acceptance of that offer, for we have always recognized that variations are often required in order to do justice. In this matter, the plaintiff reasonably relied on the defendant’s promise that if there was to be an award, the bid would be awarded to the lowest qualified bidder. Indeed, this promise is embodied in § 75-2 (A) (1) of the Branford code, which provides that “all work or materials and supplies furnished to and purchased by the town . . . shall be awarded after advertising ... to the lowest responsible bidder . . . .” (Emphasis added.)

This court has long recognized that a “promise which the promisor should reasonably expect to induce action ... on the part of the promisee . . . and which does induce such action ... is binding if injustice can be avoided only by enforcement of the promise.” (Internal quotation marks omitted.) D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987), quoting 1 Restatement (Second), Contracts § 90 (1973); Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980). When government officials fail to award a contract to the lowest qualified bidder in violation of a code, ordinance or statute, “injustice to [the low bidder], the promisee, can be avoided only by at least the partial enforcement of the [government’s] promise .... [Furthermore, t]o hold that [the low bidder] was not entitled to rely upon this promise . . . would make the [government’s] promise an illusory one and render the whole competitive bidding process nugatory.” Swinerton & Walberg Co. v. Inglewood-Los Angeles County Civic Center Authority, supra, 40 Cal. App. 3d 104. Such reasoning has encouraged other jurisdictions to award damages to low bidders who have claimed damages directly attributable to their reliance on a low bidder statute. See, e.g., Owen of Georgia, Inc. v. Shelby County, supra, 648 F.2d 1094-96; Swinerton & Walberg Co. v. Inglewood-Los Angeles County Civic Center Authority, supra, 103-105; Marbucco Corp. v. Manchester, supra, 137 N.H. 633-34. Similarly, I would hold that, based upon the contractual theory of promissory estoppel, the plaintiff has alleged a cause of action for money damages over which the court has jurisdiction. Therefore, the trial court should not have dismissed the action.

The measure of damages with respect to an action predicated on promissory estoppel “may be limited as justice requires.” 1 Restatement (Second), Contracts § 90 (1981). I would adopt the New Hampshire approach as follows: “In the ordinary case, the damages that an unsuccessful low bidder may recover should be limited to those it sustained directly by reason of its justifiable reliance upon the municipality’s promise to award the contract to the lowest responsible bidder submitting all essential information prior to the bidding deadline, if it awarded it at all. Hence, damages ordinarily should be limited to the expenses incurred by the lowest bidder in its fruitless participation in the competitive bidding process, i.e., its bid preparation costs. See Paul Sardella Construction Co. v. Braintree Housing Authority, 371 Mass. 235, 243, 356 N.E.2d 249,254 (1976). To permit the recovery of greater damages in such cases could drain the public fisc in response to mere carelessness on the part of low level government officials. If a disappointed low bidder complies with all requirements of the bid instructions but is deprived of the contract through some conduct of the awarding authority tantamount to bad faith, however, then the recovery of lost profits should be the measure of damages. See [.Peabody Construction Co. v. Boston, 28 Mass. App. 100, 105-106, 546 N.E.2d 898 (1989)]. The greater deterrence resulting from an entitlement to lost profits is justified when bad faith is proven because a municipality’s bad faith undermines the purpose of competitive bidding. . . . [P]ublic confidence in government is eroded when municipal officials act in bad faith.” (Citation omitted; internal quotation marks omitted.) Marbucco Corp. v. Manchester, supra, 137 N.H. 634.

I dissent.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       Each bid package purchased by the prospective bidders contained instructions to the bidders, which provided in relevant part:
      “1.03 RECEIPT AND AWARD OF BIDS . . .
      “B. Bid will be awarded based on the lowest qualified bid.

      “C. The [defendant] reserves the right to accept or reject any bid to best serve its interests, or to hold the bids for forty-five (45) days before decision.
      “1.04 QUALIFICATIONS OF BIDDER . . .
      “B. The [defendant] may make such investigation as he deems necessary to determine the ability of the Bidder to perform the work, and the bidder shall furnish to the [defendant] all such information and data for this purpose as the [defendant] may request. The [defendant] reserves the right to reject any bid if the evidence submitted by or investigation of such bidder fails to satisfy the [defendant] that such bidder is properly qualified. . . .

      “1.06 PRE-BID CONFERENCE
      “A. A Pre-Bid Conference will be held at 10:00 AM, Thursday, January 16,1997 at the Branford High School. Attendance of contractors who intend to submit a bid is mandatory. . . (Emphasis added.)

       Section 75-2 of the code of the town of Branford provides in relevant part: “Advertising and bids required. . . .
      “A. Amounts; exceptions; definitions. . . .
      “(1) Hereafter, all work or materials and supplies furnished to and purchased by the town . . . shall be awarded after advertising the same in some newspaper with a general circulation in the town to the lowest responsible bidder . . . (Emphasis added.)

       We addressed a related example of the detriment to the public interest that arises when citizens of a municipality are forced to pay for more than the cost of the actual work to be performed in Blesso Fire Systems, Inc. v. Eastern Connecticut State University, supra, 245 Conn. 252. In Blesso Fire Systems, Inc., an unsuccessful bidder for a fire alarm system contract brought an action for injunctive relief, then later during the course of the plaintiffs appeal, the defendant put the entire project out to be rebid. Id., 256. The plaintiff was not awarded the contract during this rebidding process, and did not challenge the award to a different bidder. We dismissed the plaintiffs appeal as moot in light of the rescission of the first contract and the rebidding process that had occurred. Id. The plaintiffs second claim, beyond the injunction, was for a writ of mandamus to compel the state to award it the contract in question. We noted, however, that where the second contract award was proper according to the municipal bidding statute, if the second contract remained in effect and the mandamus action were granted, the result would be to “require the university to enter into two contracts for the same work.” (Emphasis in original.) Id., 257. To do as the plaintiff urges in the present case and provide money damages to unsuccessful bidders would provide a result that is different only in degree, not in kind, from the bizarre result of awarding two contracts for the same project that we sought to avoid in Blesso Fire Systems, Inc.

       The majority ol' courts have concluded that damages may not be recovered under the municipal bidding statutes. Annot., 65 A.L.R.4th 99, § 2 [a] (1988). The plaintiff contends, however, that we should look for guidance to those jurisdictions that allow a cause of action for money damages by unsuccessful bidders to municipal contracts when fraud, corruption or favoritism are alleged. See, e.g., North Central Utilities, Inc. v. Walker Community Water System, Inc., 437 So. 2d 922, 924-25 (La. App. 1983) (impliedly permitting recovery for lost profits by remanding case in which plaintiff sought lost profits, without commenting on prayer for relief); Telephone Associates, Inc. v. St. Louis County Board, 364 N.W.2d 378, 382-83 (Minn. 1985) (permitting recovery of costs incurred in preparing bid including reasonable attorney fees under promissory estoppel theory, for purpose of encouraging “proper challenges to the bid-letting process” without making such plaintiff “bear the expense of its actions”); Marbucco Corp. v. Manchester, 137 N.H. 629, 634, 632 A.2d 522 (1993) (constructing hybrid scheme under which recovery of lost profits by unsuccessful bidder is permitted when municipality’s conduct is “tantamount to bad faith,” and recovery of expenses incurred in preparing bid is permitted for mere wrongful failure to award contract to lowest responsible bidder). Unlike the dissent, we are not persuaded by the reasoning of those decisions.

       ‘'Since the motion to dismiss filed by the [defendant] does not seek to introduce facts outside of the record it . . . admits all well pleaded facts, the complaint being construed most favorably to the plaintiff.” (Internal quotation marks omitted.) Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983).

       See footnote 3 of the majority opinion for the relevant text of § 75-2 of the Branford code.

       Additionally, I would also allow the plaintiff to recover the costs, including attorney’s fees, that it incurs in its attempt to enforce its rights under the municipal code. See generally Owen of Georgia, Inc. v. Shelby County, supra, 648 F.2d 1096.


author: BERDON, J.

text:
    JOHN J. PITCHELL v. CITY OF HARTFORD ET AL.
    (SC 15835)
    Callahan, C. J., and Borden, Berdon, Norcott and Katz, Js.
    Argued September 22, 1998
    officially released January 5, 1999

      Timothy Brignole, for the appellant (plaintiff).

      Henry C. Ide, for the appellee (defendant Gregory Sargis).
   Opinion

BERDON, J.

The dispositive issue in this certified appeal involves the legal effect of an attorney having filed an appearance for both the named defendant, the city of Hartford (city), and its employee, the defendant Gregory Sargis (Sargis), followed by the subsequent withdrawal of the appearance for Sargis on the ground that it had been filed in error because of a potential conflict of interest. We conclude that, under the circumstances of this case: (1) the appearance for Sargis was filed with proper authority; and (2) the failure of Sargis’ attorney to move to dismiss the action against him within thirty days of the filing of the appearance constituted a waiver of Sargis’ right to contest personal jurisdiction over him.

The plaintiff, John J. Pitchell, maintains that an attorney from Halloran and Sage (Halloran & Sage), who served as counsel for the city, waived any claim of insufficient service of process on Sargis, a Hartford police officer, by filing an appearance on his behalf and not moving to dismiss within thirty days as required by Practice Book § 10-30, formerly § 142. The trial court disagreed and granted Sargis’ motion to dismiss based on lack of personal jurisdiction. The plaintiff appealed to the Appellate Court and the majority of the three judge panel that heard the appeal affirmed the trial court’s dismissal. Pitchell v. Hartford, 46 Conn. App. 799, 808, 700 A.2d 1386 (1997). We granted certification to appeal from the judgment of the Appellate Court on the following issue: 3“Did the Appellate Court properly hold that the appearance of the attorney for the city of Hartford on behalf of the defendant police officer did not waive the employee’s right to claim insufficient service of process by way of a motion to dismiss after judgment enters against him for failure to appear? See Practice Book §§ 142 and 144 [now §§ 10-30 and 10-32].” Pitchell v. Hartford, 243 Conn. 953, 704 A.2d 803 (1997). We now reverse the judgment of the Appellate Court.

This appeal is the outgrowth of an action that the plaintiff originally had commenced against the same three defendants, the city, Sargis and James F. Callan, also a police officer for the city, in the United States District Court for the District of Connecticut (federal action). The federal action was based in part on a claim that Sargis was negligent in failing to prevent Callan from shooting the plaintiff in the course of an incident that had occurred on June 19, 1987. The law firm of Hailoran & Sage *represented all three defendants throughout the federal action. In addition to Halloran & Sage’s appearance, Henry C. Ide, who is Sargis’ attorney of record in this case, also filed an appearance on his behalf in the District Court. Notwithstanding Ide’s appearance, Halloran & Sage filed motions and pleadings on behalf of Sargis throughout the federal action. *5 The United States District Court eventually dismissed the plaintiffs federal action, declining to exercise pendent jurisdiction over the state law claims.

Thereafter, on May 31, 1994, the plaintiff brought the present action against the same three defendants in the Superior Court for the state law causes of action that he had alleged in his earlier federal action. The return date for the defendants’ appearances was June 28,1994. Pursuant to General Statutes § 52-59b (c), the plaintiff seived Sargis by having the sheriff (1) leave copies of the writ, summons and complaint with the secretary of the state, and (2) send certified copies of the writ, summons and complaint to Sargis at an address in Arizona where the plaintiff believed he resided. On June 20, 1994, the sheriff received the return receipt along with the original, unopened certified letter with the notation: “Return to Sender, No Forward Order on File, Unable to Forward.”

Nevertheless, on June 28, 1994, Halloran & Sage filed an appearance on behalf of “all defendants.” Three days later, on July 1, 1994, Halloran & Sage filed what it labeled an “amended” appearance, on behalf of the city alone. On the same day, Halloran & Sage filed an answer and special defenses also on behalf of the city alone. On July 5, 1994, the plaintiff moved for a default for failure to appear as to Sargis and Callan. The motion was accompanied by a military affidavit, dated July 5, 1994, indicating that Sargis resided in Phoenix, Arizona, where he was employed as a police officer. On July 7, the trial court denied the motion for default, with a notation suggesting that the plaintiff “move for a [statutory] continuance or for [a] finding of actual notice of out-of-state defendants.”

On July 28, 1994, notwithstanding Halloran & Sage’s attempt to amend its appearance, the clerk’s office mailed to Halloran & Sage and to the plaintiffs attorney a computer printout of the status of appearances, indicating that Halloran & Sage was still the attorney of record for the city, Callan and Sargis.

There was no further activity in the case until October 27, 1994, when the plaintiff moved for a default against Sargis for failure to appear. One day later, the trial court denied the motion with a notation that an appearance for Sargis had been filed by Halloran & Sage on June 28,1994. On November 9,1994, more than four months after Halloran & Sage had filed its original appearance, Halloran & Sage formally moved to withdraw its appearance on behalf of Sargis and Callan. The motion to withdraw was filed more than three months after the trial court had sent counsel the computer printout indicating that Halloran & Sage was still Sargis’ attorney of record. In its motion to withdraw, Halloran & Sage stated: “In filing an appearance form on June 28, 1994, Halloran & Sage sought to represent only the City of Hartford .... Halloran & Sage cannot represent Gregory Sargis and James F. Callan because this would present a conflict of interest.”

The Appellate Court in its opinion set forth the following additional relevant facts: “That motion [to withdraw] was accompanied by a certification from an attorney in the law firm [of Halloran & Sage] that Sargis had been notified of the pendency of the motion and of his rights pursuant to Practice Book § 77 (d) [now § 3-9 (d)] by a notice mailed to him at 3202 West Bell Road, apartment 2225, Phoenix, Arizona. The trial court, Langenbach, J., granted [over the objection of the plaintiff] the motion to withdraw on November 21, 1994, relying on the documents provided by Halloran & Sage, which included the certification that Sargis had been notified at his address in Arizona. On August 7, 1995, the plaintiff filed a motion for default for failure to appear against Sargis. . . . Sargis was defaulted for failure to appear on August 11, 1995. Judgment was rendered against him in the amount of $1,750,000 on October 30, 1995, after a hearing in damages. Notice of the judgment was sent to Sargis at the Arizona address on November 8, 1995. The notice was returned to the sender as undelivered by the postal service.

“On February 23, 1996, [Ide appeared on behalf of] Sargis [and] filed a motion to open the judgment, which the trial court, Berger, J., granted on April 15, 1996. On May 10, 1996, [Ide on behalf of] Sargis filed a motion to dismiss, alleging that [Sargis] resided in Connecticut at the time of attempted service of the complaint and, therefore, the process was insufficient. On July 22,1996, the trial court, Langenbach, J., granted the defendant’s motion to dismiss.” Pitchell v. Hartford, supra, 46 Conn. App. 802-803.

The plaintiff appealed to the Appellate Court, claiming that the trial court had improperly granted both Sargis’ motion to open the default judgment and his motion to dismiss. The majority of the Appellate Court affirmed the trial court’s judgment. Id., 808. This certified appeal followed.

It is fundamental that jurisdiction over a person can be obtained by waiver. United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985) (“[u]nlike subject matter jurisdiction, however, personal jurisdiction may be created through consent or waiver”). In the present case, the plaintiff claims that Halloran & Sage’s appearance on behalf of Sargis, followed by a failure to move to dismiss the complaint within thirty days of the filing of that appearance, constituted a waiver of Sargis’ right to contest personal jurisdiction over him. Practice Book § 10-30. In contrast, Sargis contends that Halloran & Sage had mistakenly filed the original appearance and, for that reason, the trial court granted its motion to withdraw. Consequently, according to Sargis, Halloran & Sage did not waive his right to claim lack of personal jurisdiction by failing to move to dismiss within thirty days. We agree with the plaintiff.

The issue of whether a court-approved withdrawal of an appearance, based on a claim of mistake, can prevent the waiver of the represented party’s right to claim lack of personal jurisdiction as a result of an insufficient service of process when that withdrawal occurs more than thirty days after the original appearance, is a matter of law. “[W]here legal conclusions of the [trial] 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 . . . .” Pandophe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). Thus, our review of the trial court’s ultimate legal conclusion and resulting grant of the motion to dismiss will be de novo.

The certified issue raises two underlying questions: (1) whether Halloran & Sage’s appearance was filed with authority; and (2) if so, whether the failure to move to dismiss within thirty days thereafter constituted a waiver of Sargis’ right to challenge the court’s personal jurisdiction over him. If the appearance was filed with authority, and if Sargis’ right to challenge the court’s personal jurisdiction over him was waived, the court had valid personal jurisdiction over Sargis that could not be attacked later.

It has long been established that a court cannot acquire jurisdiction over a party as a result of an attorney filing an appearance unless the filing of that appearance is authorized. See, e.g., Hanzes v. Flavio, 234 Mass. 320, 327, 125 N.E. 612 (1920). In the present case, as the plaintiff argues, the city had statutory authority to retain an attorney to file an appearance for Sargis, whose alleged liability was based on his status as a city employee. Sargis concedes that the city had authority, in its discretion, to appear and defend on behalf of its employees. General Statutes § 7-465 expressly provides in part: “(a) Any town, city or borough . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages .... In any such action the municipality and the employee may be represented by the same attorney if the municipality, at the time such attorney enters his appearance, files a statement with the court, which shall not become part of the pleadings or judgment file, that it will pay any verdict rendered in such action against such employee. . . .” In the present case, Halloran & Sage did not file a statement that the city would pay any verdict against Sargis pursuant to § 7-465. The failure to file such a statement, however, neither deprived Halloran & Sage of the authority to appear nor invalidated its appearance on Sargis’ behalf, ab initio. Until the appearance was challenged as unauthorized for failure to file the certificate, or Halloran & Sage sought to withdraw it on the basis of a potential conflict of interest, its legal effect remained as what it purported to be: an appearance on behalf of all the defendants named in it. The filing of the statement does not demonstrate Halloran & Sage’s authorization to represent all of the defendants. Instead, it indicates that a potential conflict of interest between the defendants has been resolved. It directly relates to the issue of whether, if a judgment is rendered against Sargis, the city will be required to pay the judgment, an issue we do not reach in this case.

General Statutes § 7-101a also places a financial responsibility on the city to pay for damages, legal fees and costs arising out of the negligence of an employee. Section 7-101a (a) obligates the city to “protect and save harmless any municipal officer ... or any municipal employee . . . from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence, or for alleged infringement of any person’s civil rights, on the part of such officer or such employee while acting in the discharge of his duties.” Consequently, notwithstanding Halloran & Sage’s belated claims regarding conflict of interest and its failure to file a statement pursuant to § 7-465 (a), §§ 7-465 and 7-101 (a) at least permit, or authorize, the same attorney to represent a municipality and an employee.

Halloran & Sage’s potential conflict of interest does not change our conclusion. Any potential conflict of interest is a matter between the defendants, and can be waived by those parties. In the present case, the statutory authority for Halloran & Sage’s multiple defendant appearance contemplates a potential conflict of interest. See General Statutes §§ 7-101a (b) and 7-465. Thus, Halloran & Sage could have represented all three defendants, pursuant to §§ 7-101a or 7-465, as it did in the federal action, or each defendant could have had separate representation. See Fraser v. Henninger, 173 Conn. 52, 57-58, 376 A.2d 406 (1977). Even if there was a perceived conflict of interest caused by the dual representation of Sargis and the city, the conflict did not destroy the binding effect of Halloran & Sage’s appearance with respect to the waiving of service of process. This is true even though Halloran & Sage’s motion to withdraw its appearance on behalf of Sargis was based on its argument that it had only intended to represent the city by its June 28, 1994 appearance because to do otherwise would have been a conflict of interest. See Johnson v. Zoning Board of Appeals, 166 Conn. 102, 107, 347 A.2d 53 (1974) (jurisdiction attaches even if appearance is “inadvertently” filed by attorney who has authority to do so). There is nothing extraordinary about an attorney entering an appearance on behalf of a client and later withdrawing due to a conflict of interest. Accordingly, the existence of a potential conflict of interest between the city and Sargis did not alter the city’s authority to file an appearance on behalf of Sargis or alter Sargis’ ability to raise his right to claim insufficient process.

We are also required to determine whether, under the provisions of the rules of practice, Sargis waived his right to contest the court’s jurisdiction by Halloran & Sage’s failure to move to dismiss within thirty days. “The rules of statutory construction apply with equal force to Practice Book rules.” Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984). “Where the meaning of a statute [or rule] is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction.” (Internal quotation marks omitted.) Id. The plain language of the rules of practice regarding appearances and the right to challenge the court’s jurisdiction over the person is unambiguous, thus its clear meaning must be followed. Although we are directed to interpret liberally the rules of practice, that liberal construction applies only to situations in which “a strict adherence to them would work surprise or injustice.” Practice Book § 1-8, formerly § 6. We perceive no such surprise or injustice here.

We first note that the filing of an appearance on behalf of a party, in and of itself, does not waive that party’s personal jurisdiction claims. Nevertheless, “[a]ny defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . .” Practice Book § 10-30. The rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6, formerly § 112. Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court. Any claim of insufficiency of process is waived if not sooner raised.

In the present case, Halloran & Sage was Sargis’ attorney of record between June 28 and November 21,1994, when the trial court granted the motion to withdraw its June 28 appearance on behalf of Sargis. During those 146 days, Halloran & Sage failed to file a motion to dismiss on behalf of Sargis. Thus, it is not disputed that a motion to dismiss was not filed within thirty days of the June 28 appearance. Pursuant to the rules of practice, a waiver of personal jurisdiction defects occurs if a timely motion to dismiss is not filed. Therefore, despite Sargis’ argument that neither he nor Halloran & Sage intended to waive his jurisdictional challenge, we view the inaction of his attorneys of record as an abandonment of his right to make such a claim, which resulted in a waiver of that right.

Furthermore, when an attorney has the authority to enter an appearance on behalf of a defendant, the filing of a general appearance is not modified merely because it was filed in error. Johnson v. Zoning Board of Appeals, supra, 166 Conn. 110; Baker v. Baker, 248 Iowa 361, 364—65, 81 N.W.2d 1 (1957) (jurisdiction over defendant cannot be questioned by special appearance after entry of general appearance, even when general appearance was filed due to mistake by counsel). Halloran & Sage’s “amended” appearance of July 1, 1994, also had no effect on its original appearance filed on behalf of all three defendants. Once an appearance has been filed, the attorney must follow Practice Book procedures in order to withdraw. Practice Book § 3-9, formerly § 77. Section 3-9 (d) prohibits the withdrawal of an attorney’s appearance without permission from the court, unless it falls within a stated exception, none of which applies here. It follows that, once the court has obtained jurisdiction as a result of a waiver, the subsequent withdrawal of counsel does not affect the court’s jurisdiction over the party. In the present case, Sargis’ right to make such a claim was waived thirty-one days after Halloran & Sage’s original appearance on June 28, 1994.

Nor are we persuaded by Sargis’ argument that, because the plaintiff conceded that Sargis had failed to appear before November, 1994, the plaintiff could not later argue that Sargis appeared on June 28, 1994, through Halloran & Sage. We are not convinced that the plaintiff necessarily made this concession by filing any of his three motions for default for failure to appear. Moreover, even if he had made such a concession, it would not change the status of Halloran & Sage’s appearance on behalf of Sargis that was in effect until its motion to withdraw was granted in November, 1994.

Our conclusion is further supported by the fact that the clerk of the court indicated to all parties that Halloran & Sage was representing the defendants, including Sargis, when he sent the computer printout to all parties on July 28, 1994, and that the trial court denied the October 27,1994 motion for default for failure to appear, based on the June 28 appearance. Therefore, Halloran &

Sage had notice for more than three months that the court had accepted its original appearance on behalf of all three defendants and gave no effect to its second appearance filed on behalf of the city alone.

In sum, the rules of practice are unambiguous. Its provisions create evenhanded, easy to follow procedures that all litigants must follow. As the plaintiff argues, to allow a party to compromise these well established, unambiguous Practice Book provisions would lead to a case-by-case analysis by the courts, which would lead to uncertainty of application.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to that court for further proceedings according to law.

In this opinion the other justices concurred.

       Practice Book § 10-30 provides in relevant part: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . .

       Subsequently, we granted Sargis’ motion for permission to raise as an alternate ground for affirmance the plaintiffs failure to provide an adequate record for review. The plaintiff had advanced several grounds for denying Sargis’ motion to dismiss, one of which was waiver of service of process. Although the trial court, Langeribach J., made no finding when granting the motion to dismiss, the record in this case is adequate to determine if there was a waiver pursuant to the rules of practice.

        Pitchell v. Callan, United States District Court, District of Connecticut, Docket No. H-89-73 (January 6, 1993).

       The appearance was filed by Stephen P. Fogerty of Hailoran, Sage, Phelon and Hagarty, the predecessor to Hailoran & Sage.

       At oral argument before this court, Sargis conceded that both Ide and Halloran & Sage were his attorneys of record throughout the entire federal action.

       The court order denying the motion for default erroneously noted the date of the appearance as “6/29/94.”

       This was the same Arizona address that the plaintiff had used in the initial attempt to serve the complaint on Sargis that was returned as undeliverable.

       “On September 24,1996, Judge Langenbach issued the following articulation: ‘The motion to dismiss was granted because the defendant Sargis was a resident of Connecticut and had been so since March of 1993. Therefore, the attempted service on him in June of 1994 when he had been a Connecticut resident for over one year by leaving a copy of the writ, summons and complaint with the Secretary of the State and by certified mail to an address in Arizona was ineffective.’ ” Pitchell v. Hartford, supra, 46 Conn. App. 803.

       Because we limited our certification to the issue of the motion to dismiss, we let stand the trial court’s granting of the motion to open the default judgment, thereby vacating the $1,750,000 judgment by default as to Sargis.

       See footnote 1 of this opinion for the relevant text of Practice Book § 10-30.

       The plaintiff also argues that the city had common-law authority under the theory of respondeat superior, which creates joint and several liability between an employee and employer. We do not reach this issue because we hold that the city had statutory authority.

       The Appellate Court improperly required the plaintiff to establish that Halloran & Sage filed the initial appearance pursuant to either Sargis’ authorization or a duty to defend him. Pitchell v. Hartford, supra, 46 Conn. App. 807.

       Black’s Law Dictionary (6th Ed. 1990) generally defines an appearance as: “A coming into court as a party to a suit .... The formal proceeding by which a defendant submits himself to the jurisdiction of the court. The voluntary submission to a court’s jurisdiction. . . .”

       The 1978 revised edition of the Practice Book implicitly abolished special appearances. Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 226-27, 429 A.2d 478 (1980); see also In re Baby Girl B., 224 Conn. 263, 305-306, 618 A.2d 1 (1992) (Borden, J., concurring and dissenting). Historically, a party submitted to the jurisdiction of the court and waived any right to claim lack of jurisdiction when the party entered a general appearance. In re Baby Girl B., supra, 305 (Borden, J., concurring and dissenting). Alternatively, a special appearance enabled a party to appear for the sole purpose of challenging the court’s jurisdiction. Id.

       Practice Book § 10-6 provides: “Pleadings Allowed and Their Order
      “The order of pleading shall be as follows:
      “(1) The plaintiffs complaint.
      “(2) The defendant’s motion to dismiss the complaint.
      “(3) The defendant’s request to revise the complaint.
      “(4) The defendant’s motion to strike the complaint.
      “(5) The defendant’s answer (including any special defenses) to the complaint.
      “(6) The plaintiffs request to revise the defendant’s answer.
      “(7) The plaintiffs motion to strike the defendant’s answer.
      “(8) The plaintiffs reply to any special defenses.”
      Practice Book § 10-7, formerly § 113, entitled “Waiving Right to Plead,” explains how a party waives its right to plead certain motions. Section 10-7 provides: “In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.”

       Furthermore, contrary to Sargis’ arguments, Halloran & Sage’s actions indicate that it actually believed that service was sufficient. In November, 1994, Halloran & Sage certified to the court that it sent Sargis notice of its motion to withdraw to the same Phoenix address to which the plaintiff had sent a copy of the complaint. Consequently, it appears that the Phoenix address was Sargis’ last address known to both the plaintiff and Halloran & Sage. Practice Book § 10-13, formerly § 122, provides in relevant part that service of process may be made by mailing a copy of the pleadings to the “last known address of the attorney or party. . . . Service by mail is complete upon mailing. ...”

       Practice Book § 3-9 provides in relevant part: “Withdrawal of Appearance; Duration of Appearance

        “(a) An attorney or party whose appearance has been filed shall be deemed to have withdrawn such appearance upon failure to file a written objection within ten days after written notice has been given or mailed to such attorney or party that a new appearance has been filed in place of the appearance of such attorney or party in accordance with Section 3-8.
      “(b) An attorney may withdraw his or her appearance for a party or parties in any action after the appearance of other counsel representing the same party or parties has been entered. . . .
      “(c) All appearances of counsel shall be deemed to have been withdrawn 180 days after the entry of judgment in any action seeking a dissolution of marriage, annulment, or legal separation, provided no appeal shall have been taken. . . .
      “(d) Except as provided in subsections (a), (b) and (c), no attorney shall withdraw his or her appearance after it has been entered upon the record of the court without the leave of the court. . .
      The withdrawal in this case does not fall within the exceptions of subsections (a), (b) or (c).

       The plaintiff filed motions for default for failure to appear on July 5, 1994, October 27, 1994, and August 4, 1995.


author: PER CURIAM.

text:
    JOHN I. HAYMOND v. STATEWIDE GRIEVANCE COMMITTEE
    (SC 16002)
    Callahan, C. J., Borden, Palmer, McDonald and Peters, Js.
    Argued December 2, 1998
    officially released January 5, 1999

      Kimberly A. Knox, with whom were Wesley W. Horton and, on the brief, John A. Reed, Kevin B. Hawkins, legal intern, and Daniel J. Krisch, legal intern, for the appellant (plaintiff).

      Cathy A. Dowd, assistant bar counsel, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, John I. Haymond, an attorney, appeals from the judgment of the trial court dismissing his appeal from a reprimand issued to him by the defendant, the statewide grievance committee. See Haymond v. Statewide Grievance Committee, 45 Conn. Sup. 481, 723 A.2d 821 (1998). The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we granted the plaintiffs motion to transfer the appeal to this court pursuant to Practice Book § 65-2 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The facts giving rise to this appeal are set forth in detail in the trial court’s opinion; Haymond v. Statewide Grievance Committee, supra, 45 Conn. Sup. 481; and may be summarized as follows. In 1994 and 1995, the plaintiff placed advertisements for his law firm, the Law Offices of John Haymond, in the Springfield, Massachusetts NYNEX Yellow Pages Telephone Directory. A picture of the plaintiff appeared in both advertisements. The text of the 1994 advertisements included a reference to “12 personal injury attorneys.” The text of the 1995 advertisements stated: “We are a team of fourteen lawyers with nearly 200 years combined experience,” and “Licensed in Massachusetts and Connecticut.”

During the same period, the plaintiff also placed television advertisements that featured the plaintiff and contained the following statements: “At the law offices of John Haymond, we protect the rights of accident victims and their loved ones”; “For accident claims call the Law Office of John Haymond”; “I’m Attorney John Haymond. . . “The Law Offices of John Haymond works for you and keeps on working”; and “I’m John Haymond and that’s my promise.” The television advertisements were broadcast on WGGB, a station located in Springfield, Massachusetts.

The plaintiff is a member of the bar of the states of Connecticut and Pennsylvania, but he is not a member of the Massachusetts bar. At the time he placed the advertisements, only four attorneys in his firm were admitted to the Massachusetts bar. The plaintiffs professional and support staff worked in offices located in Hartford and Bridgeport. A Springfield, Massachusetts, office was used for meetings with clients as needed.

On March 29, 1995, Alan Goodman, a Massachusetts attorney, filed a complaint with the defendant regarding the plaintiffs advertising. After a hearing, the defendant concluded that the plaintiff had used false and misleading telephone directory advertisements and television commercials in violation of rules 7.1 (1) and 8.4 (3) of the Rules of Professional Conduct. Consequently, on February 21,1997, the defendant issued a reprimand to the plaintiff.

Thereafter, the plaintiff appealed from the defendant’s reprimand to the Superior Court pursuant to Practice Book § 2-38, formerly § 27N. On appeal, the plaintiff challenged both the defendant’s jurisdiction over out-of-state advertising and the defendant’s application of Connecticut law, rather than Massachusetts law, to the advertisements he had placed. The trial court dismissed the plaintiffs appeal.

After considering the briefs and arguments of the parties and examining the record on appeal, we conclude that the judgment of the trial court is correct and must be affirmed. The issues presented were resolved properly in the trial court’s opinion. It would serve no useful purpose for this court to repeat the discussion contained therein. See Brennan v. Burger King Corp., 244 Conn. 204, 206, 707 A.2d 30 (1998); Lizotte v. Welker, 244 Conn. 156, 158, 709 A.2d 1 (1998); Murphy v. Buonato, 241 Conn. 319, 321-22, 696 A.2d 320 (1997); Gajewski v. Pavelo, 236 Conn. 27, 30, 670 A.2d 318 (1996).

The judgment is affirmed.

       The trial court’s opinion referred to rules 7.1 (a) and 8.4 (c) of the Rules of Professional Conduct. The 1998 revision of the Practice Book, however, delineates subsections of the Rules of Professional Conduct by number, rather than by letter.
      Rule 7.1 of the Rules of Professional Conduct provides in relevant part: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
      “(1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading . . . .”
      Rule 8.4 of the Rules of Professional Conduct provides in relevant part: “It is professional misconduct for a lawyer to . . .
      “(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .”


text:
    SHANNON LACH v. RICHARD J. WELCH, ADMINISTRATOR (ESTATE OF MICHAEL E. WELCH)
    (SC 15890)
    Callahan, C. X, and Borden, Norcott, Katz and Palmer, Js.
    Argued December 8, 1998
    officially released January 19, 1999

      Frederic E. Mascolo, for the appellants (defendant et al.).

      James Wu, with whom was Joseph J. Fairchild, for the appellee (plaintiff).

      Kenneth J. Bartschi, with whom were Susan M. Cormier, Bridget Jenkins and, on the brief, Michael McHale, legal intern, for the minor child.
   Opinion

PER CURIAM.

After examining the record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was granted improvidently.

The appeal is dismissed.

       We granted the defendants’ petition for certification to appeal limited to the following issue: “Did the Appellate Court properly dismiss this appeal for lack of a final judgment?” Lack v. Welch, 244 Conn. 912, 713 A.2d 830 (1998).


text:
    STATE OF CONNECTICUT v. ANTHONY SINCHAK
    (SC 15854)
    Callahan, C. J., and Borden, Norcott, Katz and Palmer, Js.
    Argued December 8, 1998
    officially released January 19, 1999

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

      John A. East III, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva Lenczewski, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

We granted the defendant’s petition for certification to appeal from the judgment of the Appellate Court; State v. Sinchak, 47 Conn. App. 134, 703 A.2d 790 (1997); limited to the following issues: (1) “Whether the rule set forth in State v. McPhail, 213 Conn. 161 [567 A.2d 812] (1989), should be overruled and a midline approach should be used to decide whether one has been deprived of a fair and valid probable cause hearing?” and (2) “Whether the Appellate Court correctly determined the state’s nondisclosure of exculpatory documents prior to or at the probable cause hearing did not deprive the defendant of a fair trial?” State v. Sinchak, 243 Conn. 964, 707 A.2d 1266 (1998).

With respect to the first question certified, we have determined that certification was granted improvidently. The rule of State v. McPhail, supra, 213 Conn. 161, best would be addressed in conjunction with the rules set forth in State v. Boyd, 214 Conn. 132, 570 A.2d 1125 (1990), and State v. Mitchell, 200 Conn. 323, 512 A.2d 140 (1986). The continued validity of the rules of Boyd and Mitchell, however, was not certified and, therefore, not briefed or argued in this case.

With respect to the second question certified, after examining the record on appeal and considering the briefs and oral arguments of the parties, we have determined that certification was granted improvidently.

The appeal is dismissed.