author: Callahan, J.

text:
    A-G Foods, Inc. v. Pepperidge Farm, Inc., et al.
    (13789)
    Peters, C. J., Callahan, Glass, Hull and F. X. Hennessy, Js.

      Argued May 9—
    decision released August 7, 1990

      Louis B. Blumenfeld, with whom were Vincent M. DeAngelo and Lorinda S. Coon, for the appellant-appellee (plaintiff).

      John B. Farley, with whom was Joseph G. Lynch, for the appellee-appellant (named defendant).
   Callahan, J.

The plaintiff, A-G Foods, Inc., doing business as Fitzgerald Foods, brought this action for damages against the defendants, Pepperidge Farm, Inc. (Pepperidge Farm), and Anthony Spinelli. The revised complaint alleged, inter alia, that Spinelli, a distributor of Pepperidge Farm bakery goods, had defrauded the plaintiff by charging its stores for goods he had not delivered. As to Pepperidge Farm, the complaint alleged that, under the doctrine of respondeat superior, Pepperidge Farm was vicariously liable for each of the following: fraud (sixth count); reckless indifference and/or intentional and wanton disregard for the plaintiff’s rights (seventh count); theft (eighth count); and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §§ 42-110a through 42-110q (tenth count). It further alleged that Pepperidge Farm was negligent in failing to supervise Spinelli properly (ninth count) and that its negligence in failing to supervise Spinelli and to discover the fraud constituted a violation of CUTPA (tenth count).

Before the trial of this matter, in a criminal proceeding, Spinelli pleaded guilty to larceny. In that case, the trial court imposed a suspended sentence, placed him on probation for five years, and ordered as a condition of probation that he make restitution to the plaintiff. Spinelli paid the plaintiff approximately $88,000 pursuant to the restitution order.

This ease was thereafter tried to a jury, which answered twenty interrogatories and returned a verdict for the plaintiff on all counts, finding that the plaintiff had sustained damages of $250,000. Pepperidge Farm moved to set aside the verdict against it and for judgment notwithstanding the verdict, claiming, inter alia, that there was insufficient evidence to conclude that Spinelli was acting within the scope of his employment and in furtherance of Pepperidge Farm’s business when he stole from the plaintiff. The trial court agreed and rendered judgment in favor of Pepperidge Farm notwithstanding the verdict only on the sixth, seventh and eighth counts. In addition, the trial court ordered a remittitur, as to Pepperidge Farm, of $88,000, the amount the plaintiff had received from Spinelli as restitution, and set aside, as to Pepperidge Farm, the jury’s verdict awarding treble damages to the plaintiff. The plaintiff appealed the trial court’s decision to the Appellate Court and Pepperidge Farm cross appealed. We transferred these appeals to ourselves pursuant to Practice Book § 4023.

On appeal, the plaintiff contends that the trial court was incorrect when it: (1) concluded that there was insufficient evidence to support the jury’s finding that Spinelli was acting within the scope of his employment and in furtherance of Pepperidge Farm’s business when he defrauded and stole from the plaintiff; (2) set aside the jury’s award of treble damages; and (3) allowed a remittitur. On its cross appeal, Pepperidge Farm raises two issues: (1) whether its negligent supervision of Spinelli constituted a violation of CUTPA; and (2) if so, whether the trial court properly instructed the jury on the CUTPA claim. We reverse in part the decision of the trial court.

The jury could reasonably have found the following facts. In October, 1982, the defendants entered into a consignment agreement whereby Pepperidge Farm granted Spinelli an exclusive franchise to distribute Pepperidge Farm bakery products within a specified geographical area. By the terms of the agreement, Spinelli delivered Pepperidge Farm bakery products to both “chain” and “independent” grocery stores, including two independent grocery stores owned and operated by the plaintiff, in the towns of Avon and Simsbury. The consignment agreement required Spinelli to maintain records of the “consigned products received and sales and deliveries made” and allowed Pepperidge Farm to inspect those records.

Spinelli ordered bakery products from Pepperidge Farm on a weekly basis. Each morning he would pick up his order at the Pepperidge Farm depot and deliver the bakery goods to the various grocery stores. With respect to the independent grocery stores, Spinelli testified to the following billing procedure. Pepperidge Farm billed Spinelli once a week for all of the bakery goods that he purchased less those returned. Spinelli then billed each store, on an individual basis, for the bakery items he had delivered the previous week. The stores remitted payment directly to Spinelli rather than to Pepperidge Farm. Spinelli’s profit was the difference between the sales price, which he controlled, and the price he had paid Pepperidge Farm for its products. Pepperidge Farm was unaware of the quantity or type of goods delivered to each independent grocery store.

Approximately one year after he took over his route from his predecessor, Spinelli began charging the plaintiff for goods he did not deliver. Because of the lax check-in procedure at the plaintiffs stores, Spinelli was able surreptitiously to alter the invoices by inflating the amount of bakery products he delivered to them. Pepperidge Farm was unaware of Spinelli’s scheme and never received any money as a result of it. Spinelli testified that he did not overcharge any other stores on his route. After the fraudulent invoices were discovered, Spinelli was arrested in September, 1985, and subsequently pleaded guilty to larceny. Thereafter, the plaintiff commenced this civil action against both Spinelli and Pepperidge Farm.

I

A

The plaintiff first argues that the trial court should not have set aside the jury verdict on the sixth, seventh and eighth counts because there was sufficient evidence presented to the jury to show that Spinelli acted within the scope of his employment and in furtherance of Pep-peridge Farm’s business when he stole from the plaintiff. In rendering judgment for Pepperidge Farm, the trial court concluded that “there was no evidence: [1] that Pepperidge Farm conspired with Spinelli or ratified his actions afterward; [2] that Pepperidge Farm profited in any significant or even measurable way from Spinelli’s theft; [3] that Spinelli’s thefts were motivated in the slightest by the intent to serve Pepperidge Farm’s interests; or [4] that Spinelli’s conduct in stealing was of the same general nature as that which Pep-peridge Farm had authorized, or incidental to such conduct.” Specifically, the plaintiff objects to the trial court’s second and fourth conclusion.

“The trial court has the inherent power to set aside a jury verdict which, in the court’s opinion, is either against the law or the evidence. Maltbie, Conn. App. Proc. § 181. . . . The decision to set aside a verdict involves the exercise of a broad discretion in the trial court which, in the absence of a clear abuse, will not be disturbed and, in reviewing the exercise of that discretion, every reasonable presumption should be indulged in favor of its correctness. Jacobs v. Goodspeed, 180 Conn. 415, 429 A.2d 915 (1980).” O’Brien v. Seyer, 183 Conn. 199, 208, 439 A.2d 292 (1981); Palomba v. Gray, 208 Conn. 21, 23-24, 543 A.2d 1331 (1988). “ ‘ “[The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality.” Burr v. Harty, 75 Conn. 127, 129, 52 A. 724 (1902).’ Palomba v. Gray, [supra, 24].” Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 555, 562 A.2d 1100 (1989).

“Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant’s employment and was done to further his master’s business. See, e.g., Rappaport v. Rosen Film Delivery System, Inc., [127 Conn. 524, 526, 18 A.2d 362 (1941)]. But there are occasional cases where a servant’s digression from duty is so clear-cut that the disposition of the case becomes a matter of law. Bradlow v. American District Telegraph Co., 131 Conn. 192, 195, 196, 38 A.2d 679 [1944]; Turner v. American District Telegraph & Messenger Co., 94 Conn. 707, 715, 110 A. 540 [1920].” Pelletier v. Bilbiles, 154 Conn. 544, 547-48, 227 A.2d 251 (1967).

“In reviewing the court’s action in rendering a judgment notwithstanding the verdict, we consider the evidence in the light most favorable to the [plaintiff]. Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 499, 208 A.2d 748 [1965]; Hemmings v. Weinstein, 151 Conn. 502, 504, 199 A.2d 687 [1964]; Lurier v. Danbury Bus Corporation, 144 Conn. 544, 547, 135 A.2d 597 [1957].” Pelletier v. Bilbiles, supra, 546. In support of its argument that Pepperidge Farm benefited from Spinelli’s fraud, the plaintiff refers to testimony regarding the location and amount of shelf space devoted to Pepperidge Farm’s products. According to the testimony presented at trial, a distributor, such as Spinelli, attempts to maximize the shelf space devoted to his products because “ideally” more shelf space helps to stimulate demand and hence would increase the likelihood of sales. Because grocery stores are concerned with the dollar sales volume for every foot of shelf space in the store, the plaintiff had alio-cated its limited shelf space among the bakery distributors on the basis of the amount of bakery products purchased from each. When Spinelli fraudulently increased the amount of bakery products the plaintiff purchased from Pepperidge Farm, the plaintiff claims it allocated a larger portion of the shelf space devoted to bakery products to Pepperidge Farm. Thus, the plaintiff contends Pepperidge Farm received an indirect benefit from Spinelli’s fraud because more shelf space increased the amount of “legitimate” sales of Pepperidge Farm’s bakery goods.

In its memorandum of decision, the trial court concluded, however, that this evidence was insufficient as a matter of law to support the jury’s verdict because “[tjhere was no evidence that would enable the jury to quantify this effect or, indeed, even to determine whether in fact it materialized.” We agree.

We have long adhered to the principle that in order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer’s business. Cardona v. Valentin, 160 Conn. 18, 22, 273 A.2d 697 (1970); Pelletier v. Bilbiles, supra, 547; Antinozzi v. A. Vincent Pepe Co., 117 Conn. 11, 13, 166 A. 392 (1933); Son v. Hartford Ice Cream Co., 102 Conn. 696, 699, 129 A. 778 (1925). “But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply.” Mitchell v. Resto, 157 Conn. 258, 262, 253 A.2d 25 (1968); Wells v. Walker Bank & Trust Co., 590 P.2d 1261, 1264 (Utah 1979) (if employee’s actions are not authorized by his employer and he is acting for his own interests and not in furtherance of his employer’s business, employer cannot be held vicariously liable for employee’s actions).

While the plaintiff offered substantial testimony that increased shelf space might increase Pepperidge Farm’s sales, there was no evidence that this was the actual result. Although the amount of shelf space allocated to Pepperidge Farm increased, there was no testimony that actual sales had increased during Spinelli’s tenure. Further, the plaintiff failed to introduce any evidence that the allocation of shelf space to Pepperidge Farm decreased after the fraud was discovered. We conclude that, on the basis of the evidence presented, any possible indirect benefit Pepperidge Farm might have received by the increased shelf space was so de minimus that, as a matter of law, it does not support a conclusion that Spinelli acted within the scope of his employment and in furtherance of Pepperidge Farm’s business. See Mitchell v. Resto, supra, 262.

The plaintiff also objects to the trial court’s fourth conclusion. The plaintiff argues that because the trial court found that “every fraudulent transaction was mixed in with the legitimate business of Pepperidge Farm” and that almost “all of the fraudulent transactions took place at the stores and during the hours when Spinelli was engaged in selling Pepperidge Farm merchandise,” Spinelli was acting within the scope of his employment. The factual conclusion that Spinelli’s fraud occurred during business hours, however, is not sufficient to support the conclusion that Spinelli was acting within the scope of his employment. See Cardona v. Valentin, supra, 23; Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193, 198, 239 A.2d 490 (1968); Kasner v. Gage, 281 Minn. 149, 153, 161 N.W.2d 40 (1968). A servant acts within the scope of employment “while engaged in the service of the master, and it is not synonymous with the phrase ‘during the period covered by his employment.’ ” Levitz v. Jewish Home for the Aged, Inc., supra. While a servant may be acting within the scope of his employment when his conduct is “ ‘negligent, disobedient and unfaithful’ Butler v. Hyperion Theatre Co., 100 Conn. 551, 554, 124 A. 220 (1924), quoting Loomis v. Hollister, 75 Conn. 718, 723, 55 A. 561 (1903); that does not end the inquiry. Rather, “the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master’s business, or was engaged in an abandonment of the master’s business . . . .” Butler v. Hyperion Theatre Co., supra, 556. Unless Spinelli was actuated at least in part “ ‘ “by a purpose to serve a principal, the principal is not liable.” ’ Meyers v. National Detective Agency, Inc., 281 A.2d 435, 437 (D.C.C.A. 1971), quoting M.J. Uline Co. v. Cashdan, 84 U.S. App. D.C. 58, 59, 171 F.2d 132, 133 (1948).” International Distributing Corporation v. American District Telegraph Co., 569 F.2d 136, 139 (D.C. Cir. 1977).

As the trial court concluded in its third finding, there was no evidence to indicate that Spinelli, by his theft, intended to serve Pepperidge Farm's interests at all. In its brief, the plaintiff concedes that, although Spinelli’s fraud increased Pepperidge Farm’s shelf space, that result was unintentional. Further, there was no evidence that Pepperidge Farm knew of Spinelli’s fraudulent activity or received any of the monetary proceeds of Spinelli’s fraud. We conclude that the trial court did not abuse its discretion in determining that the jury could not reasonably and logically have found, from the evidence adduced at trial, that Spinelli was acting within the scope of his employment and in furtherance of Pepperidge Farm’s business.

B

The plaintiff contends, for the first time on appeal, that the Restatement (Second) of Agency § 261 governs this case, and thus it need not establish that Spinelli acted in furtherance of Pepperidge Farm’s business. Section 261 provides: “A principal who puts a servant or other agent in a position which enables the agent, while apparently acting within his authority, to commit a fraud upon third persons is subject to liability to such third persons for the fraud.” Although the plaintiff admits that § 261 “is not precisely the statement of the law used by the parties and the court below,” he asserts that, because it is a “narrowly drawn application of the general rule,” we may apply it to sustain the jury verdict and reverse the trial court. We disagree.

“Our practice is to review claims that have been ‘distinctly raised at the trial.’ Practice Book § 4185.” Season-All Industries, Inc. v. R. J. Grosso, Inc., 213 Conn. 486, 495, 569 A.2d 32 (1990). “Practice Book § 4185 provides in relevant part that ‘[t]he supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.’ Plain error ‘ “review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).’ State v. Franko, 199 Conn. 481, 489 n.10, 508 A.2d 22 (1986).” Scott v. Barrett, 212 Conn. 217, 222, 561 A.2d 941 (1989).

In the plaintiff’s request to charge, the plaintiff asked the court to instruct the jury to determine “whether or not the wrongful conduct of Mr. Spinelli occurred in the course of his employment and in furtherance of Pepperidge Farm’s business.” The court’s instructions to the jury substantially mirrored that language, as did Interrogatory No. 8. As the plaintiff concedes in its brief, neither party objected to this portion of the trial court’s instructions to the jury.

By failing to take an exception to the court’s charge to the jury, the plaintiff accepted the instructions as the law of the case. Lengel v. New Haven Gas Light Co., 142 Conn. 70, 77, 111 A.2d 547 (1955). “The jury were bound to follow the court’s instructions and to bring in a verdict for the plaintiff consistent with them, or a verdict for the defendants.” Rosenblatt v. Berman, 143 Conn. 31, 37, 119 A.2d 118 (1955). We must view the claim of insufficiency of the evidence in light of the law of the case. Lengel v. New Haven Gas Light Co., supra. “ ‘A party cannot present a case to the trial court on one theory and then ask a reversal in the supreme court on another.’ Maltbie, Conn. App. Proc. § 305; Arcari v. Dellaripa, 164 Conn. 532, 537, 325 A.2d 280 [1973]; and a party is not entitled to raise issues on appeal which have not been raised in the trial court. Zeller v. Kugell, 145 Conn. 729, 730, 141 A.2d 240 [1958].” Grody v. Tulin, 170 Conn. 443, 447-48, 365 A.2d 1076 (1976). “ ‘[In] the interests of justice,’ we decline to exercise our discretion to review” this claim of the plaintiff. Scott v. Barrett, supra, 223.

II

The plaintiff next argues that the trial court should not have set aside the jury’s award of treble damages against Pepperidge Farm. The plaintiff maintains that General Statutes § 52-564 imposes liability for treble damages upon a principal who is vicariously liable for the acts of its agent. Before treble damages can be imposed, however, the proof must demonstrate a violation of the specific statute authorizing the extraordinary damages. DeMilo v. West Haven, 189 Conn. 671, 676, 458 A.2d 362 (1983); Tillinghast v. Leppert, 93 Conn. 247, 250, 105 A. 615 (1919). Section § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.” Having determined that Pepperidge Farm is not vicariously liable to the plaintiff for the theft perpetrated by Spinelli, see Part I, supra, we conclude that the trial court correctly determined that Pepperidge Farm could not be held liable for treble damages to the plaintiff.

Ill

On its cross appeal, Pepperidge Farm challenges the trial court’s conclusion that its negligence provided a sufficient basis to support the jury’s verdict that it had violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §§ 42-110a through 42-110q. The following facts are relevant to this claim. In the ninth count of the revised complaint, the plaintiff alleged that Pepperidge Farm was negligent in failing to supervise Spinelli. The jury returned a verdict in favor of the plaintiff on the negligence count, but, in answering interrogatories, the jury also determined that the plaintiff was 40 percent negligent. The court rendered judgment thereon, concluding that there was sufficient evidence to support the jury’s verdict. Specifically, in its memorandum of decision, the court found that Pepperidge Farm had never reviewed Spinelli’s books and records, as it was authorized to do by the terms of the consignment agreement, and had never compared Spinelli’s records to their own. This lack of supervision, the trial court stated, “enabled Spinelli to steal from the plaintiff.” Pepperidge Farm has not appealed the judgment rendered on the ninth count.

In the tenth count of the revised complaint, the plaintiff alleged that Pepperidge Farm was vicariously liable for a violation of CUTPA and that its failure to supervise Spinelli properly and to discover the fraud he was perpetrating constituted an independent basis for a violation of CUTPA. Although the trial court determined that Pepperidge Farm could not be held vicariously hable for Spinelli’s actions, it concluded that Pepperidge Farm nevertheless had violated CUTPA because of its negligence in failing to supervise Spinelli adequately. Therefore, it upheld the jury’s verdict in favor of the plaintiff on the tenth count of the plaintiff’s complaint.

Thereafter, on January 18, 1989, Pepperidge Farm filed a motion to reargue claiming that: (1) its negligence was insufficient as a matter of law to sustain a finding of a CUTPA violation; and (2) even if its negligence was sufficient to support such a finding, the court had failed to instruct the jury as to liability under CUTPA for negligence. Thereafter, the trial court denied the motion concluding that, although the court had instructed the jury only as to vicarious liability, the jury had the complaint during its deliberations, and had concluded that, pursuant to the ninth count, Pepperidge Farm was negligent. Therefore, the court opined, “the jury had [a] sufficient basis . . . for finding Pep-peridge Farm negligent on the tenth count” relating to the CUTPA violation. Pepperidge Farm has renewed both claims on appeal. Because we conclude that Pep-peridge Farm’s negligence did not constitute a violation of CUTPA, we need not address the defendant’s second argument.

Pepperidge Farm argues that its negligence was not an unfair or deceptive trade practice within the meaning of General Statutes § 42-110b (a). We agree. Section 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” In determining when a practice is unfair, we have “ ‘adopted the criteria set out in the “cigarette rule” by the federal trade commission . . . “(1) [WJhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [(competitors or other businessmen)].” Conaway v. Prestia, [191 Conn. 484, 492-93, 464 A.2d 847 (1983)], quoting FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244-45 n.5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972).’ McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 567-68, 473 A.2d 1185 (1984); see Statement of Basis and Purpose of Trade Regulation Rule 408, ‘Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking,’ 29 Fed. Reg. 8324, 8355 (1964).” Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 239, 520 A.2d 1008 (1987); Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 254, 550 A.2d 1061 (1988).

“Moreover, in 1980 the commission ‘reviewed those factors and concluded that “[u]njustified consumer injury is the primary focus of the FTC Act, and the most important of the three . . . criteria.” ’ D. Rice, ‘Consumer Unfairness at the FTC: Misadventures in Law and Economics,’ 52 Geo. Wash. L. Rev. 1,4 (1983), quoting letter from FTC commissioners, December 17, 1980. ‘[T]he Commission explained that regulation is permissible only if a practice causes [unjustified] injury that is substantial . . . .’Id.” Atlantic Richfield Co. v. Canaan Oil Co., supra, 242-43.

“In discussing the third criterion, the federal trade commission has stated: ‘The independent nature of the consumer injury criterion does not mean that every consumer injury is legally “unfair,” however. To justify a finding of unfairness the injury must satisfy three tests. It must be substantial; it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and it must be an injury that consumers themselves could not reasonably have avoided. ’ Letter from Federal Trade Commission to Senators Ford and Danforth (Dec. 17, 1980) (reprinted in Averitt, ‘The Meaning of “Unfair Acts or Practices” in § 5 of the Federal Trade Commission Act,’ 70 Geo. L.J. 225, 291 [1981]).” (Emphasis added.) McLaughlin Ford, Inc. v. Ford Motor Co., supra, 569-70. This test is “equally applicable when a business person or competitor claims substantial injury.” Id., 570.

Because neither the second or third prong of the “cigarette rule” has been satisfied, we conclude that Pep-peridge Farm’s negligence was not an unfair practice within the meaning of CUTPA. Clearly Pepperidge Farm’s negligence did not constitute an “immoral, unethical, oppressive or unscrupulous” practice. In addition, because the jury found that the plaintiff was 40 percent negligent the plaintiff has not proved that it “could not reasonably have avoided” any injury. On the basis of this record, we conclude that the plaintiff has failed to show that Pepperidge Farm caused an unjustified consumer injury, a necessary predicate for recovery under CUTPA. American Financial Services v. F.T.C., 767 F.2d 957, 971 (D.C. Cir. 1985), cert. denied, 475 U.S. 1011, 106 S. Ct. 1185, 89 L. Ed. 2d 301 (1986). Contrary to the claim of the plaintiff, the first prong, standing alone, is insufficient to support a CUTPA violation, at least when the underlying claim is grounded solely in negligence. Id.; see Atlantic Richfield Co. v. Canaan Oil Co., supra, 242.

IV

The plaintiff next maintains that the trial court should not have ordered, as to Pepperidge Farm, a remittitur of $88,000, the amount Spinelli had paid the plaintiff in restitution. The following facts are relevant to this claim. The trial court instructed the jury to ignore the $88,000 payment during its deliberations. Thereafter, the jury found that the plaintiff had sustained damages of $250,000. The trial court rendered judgment awarding the plaintiff $1,043,593.66, including treble damages pursuant to General Statutes § 52-564, against Spinelli. As to Pepperidge Farm, the trial court awarded the plaintiff $250,000 in compensatory damages, $65,000 in attorneys’ fees, $26,334.78 in costs and $97,617.49 in interest.

In ordering the remittitur, the trial court concluded that the plaintiff was entitled to recover only compensatory damages against Pepperidge Farm. Because the plaintiff had already “received partial payment of its actual loss from one of the tortfeasors,” the trial court determined that Pepperidge Farm’s liability should be reduced by the $88,000 payment. The plaintiff objects to the trial court’s characterization of the $88,000 payment by Spinelli as compensatory. The plaintiff maintains that Spinelli’s payment should be applied to the “statutory treble damages for which [the jury found] Spinelli is responsible,” and should not be applied to reduce the amount of money Pepperidge Farm owes the plaintiff. We disagree.

“ ‘The assessment of damages is peculiarly within the province of the trier and the award will be sustained so long as it does not shock the sense of justice. The test is whether the amount of damages awarded falls within the necessarily uncertain limits of fair and just damages. Manning v. Michael, 188 Conn. 607, 616, 452 A.2d 1157 (1982).’ Herb v. Kerr, 190 Conn. 136, 139, 459 A.2d 521 (1983) . . . .” Buckman v. People Express, Inc., 205 Conn. 166, 174-75, 530 A.2d 596 (1987). “When a verdict is excessive as a matter of law, the amount of the remittitur . . . rests largely within the discretion of the trial court. ‘Its action is entitled to full support unless it abused its discretion.’ Allen v. Giuliano, 144 Conn. 573, 578, 135 A.2d 904 (1957). ‘In determining whether the trial court abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.’ Brooks v. Singer, 147 Conn. 719, 720, 158 A.2d 745 (1960).” Alfano v. Ins. Center of Torrington, 203 Conn. 607, 614, 525 A.2d 1338 (1987).

It is clear that the $88,000 payment was not made to satisfy Spinelli’s obligation to the plaintiff for treble damages pursuant to the trial court’s judgment. See General Statutes § 52-564. This court long ago declared that “[t]his [statute] has never been regarded as a penal statute. Indeed, actions on this statute are not ordinarily brought until [after] the defendant has been tried, convicted and sentenced in the criminal court for the stealing.” Plumb v. Griffin, 74 Conn. 132, 135, 50 A. 1 (1901). A conviction for larceny does not by itself authorize the award of treble damages to the owner of the property pursuant to § 52-564. Salisbury v. State, 6 Conn. 101, 105 (1826). Therefore, the restitution ordered by the criminal court was restitution to the plaintiff of the amount stolen by Spinelli, not payment on account of treble damages.

The plaintiff has failed to present any principled reason as to why the $88,000 payment should not be applied to the compensatory portion of the damage verdict. On the basis of this record, we cannot conclude that the trial court abused its discretion when it ordered the remittitur.

In sum, Pepperidge Farm is, in accordance with the trial court’s judgment on the ninth count, jointly and severally liable to the plaintiff for damages caused by its negligence. Because Pepperidge Farm’s negligence did not constitute a violation of CUTPA, however, the court’s judgment awarding $91,334.78 in attorneys’ fees and costs to the plaintiff pursuant to CUTPA must be set aside. See General Statutes § 42-110g (d).

In returning a verdict in favor of the plaintiff on the ninth count, the jury also found that the plaintiff had been 40 percent negligent. Therefore, we must apply our comparative negligence statute, General Statutes § 52-572h (b) which provides in pertinent part: “The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering . . . .” Thus, Pepperidge Farm is liable for only 60 percent of the compensatory damages of $250,000, or $150,000. Because we uphold the trial court’s order of a remit-titur, this amount must be reduced by $88,000.

We reverse the trial court’s judgment as to the tenth count and remand the case to the trial court with direction to render judgment in accordance with this opinion.

In this opinion the other justices concurred.

       Following the jury verdict, the court awarded the plaintiff $1,043,593.66 in damages and costs against Spinelli. He has not appealed from that judgment.

       Pepperidge Farm has not appealed the trial court’s judgment that an agency relationship existed between the defendants.

       Spinelli had purchased the right to enter into the consignment agreement from the previous distributor.

       Spinelli testified that Pepperidge Farm had a different procedure to handle the billing arrangements of the chain grocery stores. Pepperidge Farm would bill the chain grocery stores directly, and would pay Spinelli a commission based upon the amount of goods delivered to the chain stores.

       After a trial court has set aside a verdict, it may then either order a new trial or direct the entry of judgment as requested by the petitioning party. Practice Book § 321. In determining which alternative is appropriate when the trial court sets aside a verdict for insufficiency of the evidence, the trial court, in its discretion, must determine whether there is any further evidence that might support the jury verdict that, through no fault of the plaintiff, was not introduced in the first trial. Masterson v. Ather-

        ton, 149 Conn. 302, 316, 179 A.2d 592 (1962); Robinson v. Southern New England, Telephone Co., 140 Conn. 414, 421, 101 A.2d 491 (1953). We will not disturb the trial court’s judgment absent an abuse of discretion. Robinson v. Southern New England Telephone Co., supra. The plaintiff does not claim that it has further evidence, other than that presented at trial, that would warrant a new trial.

       Because the record does not reveal when during Spinelli’s tenure the increase in shelf space occurred, it is unclear whether it occurred as a direct result of Spinelli’s fraud or because of the installation of additional bread racks in the store.

       The trial court instructed the jury, in part, as follows: “If you find that the plaintiff has proved, by a preponderance of the evidence, that Mr. Spinelli was an agent or employee of Pepperidge Farm, rather than an independent contractor, then you must decide whether the financial losses that A-G Food claims it suffered occurred while Mr. Spinelli was acting within the scope of his employment and in furtherance of Pepperidge Farm’s business at the time the plaintiff claims it suffered those losses.”

       In its brief, the plaintiff suggests that “the jury may well have considered” the allegations in the tenth count of the complaint not as negligence, but rather “intentional business decisions of the defendant.” We disagree. The court did not instruct the jury as to the plaintiff’s current theory of liability under CUTPA nor does the complaint allege such a theory.

       The Federal Trade Commission has identified the “four primary categories of practices which have been prohibited as unfair: (1) withholding material information; (2) making unsubstantiated advertising claims; (3) using high-pressure sales techniques; and (4) depriving consumers of various post-purchase remedies.” American Financial Services v. F.T.C., 767 F.2d 957, 979 (D.C. Cir. 1985), cert. denied, 475 U.S. 1011, 106 S. Ct. 1185, 89 L. Ed. 2d 301 (1986).

       Spinelli testified that he had developed his scheme because of the plaintiff’s lax check-in procedures. Also, he had overcharged only the plaintiffs stores and not any other independent or chain grocery store. Further, Rocco Cianfarani, the store manager for the plaintiff’s Simsbury store, testified that employees at the plaintiff’s Simsbury store failed to follow its own procedures for receiving deliveries.

       General Statutes § 52-572h (b) provides: “negligence actions, doctrines APPLICABLE. LIABILITY OF MULTIPLE TORTFEASORS FOR DAMAGES
      “(b) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or his legal respresentative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section.”

       We have not taken into account the interest computation.


source: Caselaw Access Project

author: Hull, J. Shea, J.,

license: Public Domain

text:
    William Toby Wright, Sr. v. Commissioner of Correction
    (13898)
    Shea, Callahan, Covello, Hull and Borden, Js.

      Argued June 7—
    decision released August 14, 1990

      L. D. McCallum, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, for the appellant (respondent).

      Michael J. Isko, deputy assistant public defender, with whom was John W. Watson, assistant public defender, for the appellee (petitioner).
   Hull, J.

The sole issue in this appeal is whether seven day job credit (job credit) provided by General Statutes § 18-98a and outstandingly meritorious performance credit (OMP credit) provided by General Statutes § 18-98b earned during a subsequently vacated sentence must be credited against a new sentence imposed for the same offense. We conclude that affording such credit is constitutionally mandated by the double jeopardy clause of the United States constitution. Accordingly, we affirm the judgment of the trial court.

The following stipulated facts are relevant to this appeal. On May 27,1982, the petitioner, William Toby Wright, Sr., was committed to the custody of the respondent, the commissioner of correction, to serve a sentence of twenty-five years to life imprisonment for the crimes of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and being a persistent dangerous felony offender in violation of General Statutes (Rev. to 1981) § 53a-40 (a). The petitioner was thereafter incarcerated at the correctional institution at Somers where he held a job during the period September 1, 1982, through March 10,1986. As a result of his employment, he received 147 days of credit against his sentence pursuant to General Statutes § 18-98a. On November 17, 1983, the petitioner also received sixty days of OMP credit against his sentence pursuant to General Statutes § 18-98b.

On January 14, 1986, this court set aside the petitioner’s judgment of conviction and ordered a new trial. State v. Wright, 198 Conn. 273, 502 A.2d 911 (1986). The petitioner subsequently pleaded guilty to manslaughter in the first degree and to being a persistent dangerous felony offender and received a sentence of fifteen to thirty years imprisonment. In calculating the petitioner’s sentence, the respondent treated the time the petitioner had served on the vacated sentence as presentence confinement time and did not deduct the job credit or OMP credit that the petitioner had previously received.

The petitioner thereafter filed an amended petition for a writ of habeas corpus, alleging illegal confinement as a result of the respondent’s failure to deduct the job and OMP credits from his sentence. The trial court granted the amended petition and ordered the respondent to deduct the credits from the petitioner’s sentence. The court concluded that the double jeopardy clause of the United States constitution mandates the order conferring the credits. On the granting of certification, the respondent appealed this judgment to the Appellate Court; we subsequently transferred the appeal to ourselves pursuant to Practice Book § 4023.

The respondent maintains that the trial court should not have ordered a reduction in the petitioner’s sentence for the job and OMP credits he earned while serving the subsequently vacated sentence. The basis of the respondent’s argument is the plain language of §§ 18-98a and 18-98b that limits entitlement of the provisions’ respective credits to sentenced inmates, i.e., § 18-98a provides for credit to an inmate “who is employed within the institution to which he was sentenced” and § 18-98b provides for credit to an inmate “committed to the custody of the commissioner of correction for a definite term, or for a term with a minimum sentence imposed . . . .” (Emphasis added.) The respondent claims that, since the petitioner’s original conviction and sentence were vacated, the petitioner was necessarily not a “sentenced” inmate until the imposition of the valid sentence and was, therefore, not entitled to the credits provided by §§ 18-98a and 18-98b. We agree with the respondent that, in calculating the petitioner’s sentence, the respondent properly-treated the petitioner’s sentence as commencing on the date the valid sentence was imposed. See Casey v. Commissioner of Correction, 215 Conn. 695, 577 A.2d 1051 (1990); Sutton v. Lopes, 202 Conn. 343, 521 A.2d 147 (1987). We conclude, however, that the petitioner was nonetheless constitutionally entitled to a reduction in his sentence for the job and OMP credits he had received while serving the subsequently vacated sentence.

It is true that, read literally, §§ 18-98a and 18-98b do not apply to presentence inmates. It is also true that this court will not ordinarily construe a statute whose meaning is plain and unambiguous. Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981); Delevieleuse v. Manson, 184 Conn. 434, 438-39, 439 A.2d 1055 (1981). “This rule of statutory construction does not apply however if . . . a literal reading places a statute in constitutional jeopardy. We are bound to assume that the legislature intended, in enacting a particular law, to achieve its purpose in a manner which is both effective and constitutional.” Moscone v. Manson, supra.

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. This constitutional guarantee is applicable to the states through the due process clause of the fourteenth amendment; Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); and has been held to consist of three separate guarantees. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989). The last of these protections is the focus of our inquiry.

The United States Supreme Court has held that “the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully ‘credited’ in imposing sentence upon a new conviction for the same offense.” Id., 718-19. In explaining the scope of its holding, the court stated that “[s]uch credit must, of course, include the time credited during service of the first prison sentence for good behavior, etc.” Id., 719 n.13. The job and OMP credits received by the petitioner in the instant case are analogous to good behavior credit and are therefore subject to the constitutional requirement set forth in North Carolina v. Pearce. We refuse, therefore, to follow the suggestion of the respondent that §§ 18-98a and 18-98b be read to apply only to an inmate serving a sentence pursuant to a valid conviction. To do so would violate the constitutional mandate of North Carolina v. Pearce by denying an inmate full credit for punishment already exacted in cases such as this one, where the credits were earned while serving a subsequently vacated sentence. We conclude that the trial court properly determined that the petitioner, having received job and OMP credits while serving a subsequently vacated sentence, was constitutionally entitled to have those credits applied to his new valid sentence for the same offenses.

The judgment of the trial court is affirmed.

In this opinion Callahan, Covello and Borden, Js., concurred.

Shea, J.,

concurring. I do not disagree with the conclusion of the majority that double jeopardy principles require that the petitioner be given the credits he has earned. I do not believe it is necessary to reach the constitutional issue, however, because General Statutes § 53a-38 (c) plainly provides that “all time . . . credited against the vacated sentence shall be credited against the new sentence.” It is undisputed that the seven day job credit and outstandingly meritorious performance credit had been earned by the petitioner with respect to the vacated sentence and had been credited on that sentence accordingly. It follows inescapably that those credits must be applied pursuant to § 53a-38 (c) against the new sentence.

The majority, in footnote 4 of its opinion, explains its reluctance to rely on the plain language of § 53a-38 (c) by referring to our statement in Moscone v. Manson, 185 Conn. 124, 131-32, 132 n.5, 440 A.2d 848 (1981), that “§ 53a-38 (c) relates only to credit for time served pursuant to the vacated sentence and is irrelevant to any other statutory credit.” In Moscone, however, this court considered only the first part of § 53a-38 (c), requiring that “the new sentence shall be calculated as if it had commenced at the time the vacated sentence commenced.” In order to avoid a conflict with the constitutional principle of double jeopardy, as expounded in North Carolina v. Pearce, 395 U.S. 711, 718-19, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989), we held that this provision must be interpreted not to deprive a prisoner of the benefit of more favorable good time legislation enacted after imposition of his first sentence, which had been vacated on appeal.

Our general reference to § 53a-38 (c) as “irrelevant to any other statutory credit” must be read in the context of preceding references in the opinion to “the opening words of § 53a-38 (c)”; Moscone v. Manson, supra, 127; and to “the earlier language” of that statute. Id., 131. We expressly limited our decision in Moscone to the first provision of § 53a-38 (c), requiring calculation of the new sentence “as if it had commenced at the time the vacated sentence commenced,” by declaring: “The issue raised by the present litigation is not § 53a-38’s provision of credits for time previously served, a provision which can readily be accommodated to either version of good time credits.” (Emphasis added.) Id., 127. Implicitly we recognized that the concluding provision of § 53a-38 (c), that “all time served under or credited against the vacated sentence shall be credited against the new sentence” (emphasis added), would apply to good time previously credited regardless of changes in the circumstances under which it had been earned.

Because the plain language of § 53a-38 (c) bars the commissioner from reneging on good time properly allowed at the time it was credited on a vacated sentence, I would affirm the judgment of the trial court without addressing the constitutional issue and thus I concur in the judgment. See State v. DellaCamera, 166 Conn. 557, 560-61, 353 A.2d 750 (1974) (“Constitutional issues are not considered unless absolutely necessary to the decision of a case . . . or unless sufficient public interest warrants such a review.”).

       General Statutes § 18-98a provides: “Each person committed to the custody of the commissioner of correction who is employed within the institution to which he was sentenced . . . for a period of seven consecutive days, except for temporary interruption of such period as excused by the commissioner for valid reasons, may have one day deducted from his sentence for such period, in addition to any other earned time, at the discretion of the commissioner of correction.”

       General Statutes (Rev. to 1983) § 18-98b provides: “In addition to any commutation or diminution of sentence or any meritorious time service award which may have been granted under section 18-7 or 18-53 any inmate committed to the custody of the commissioner of correction for a definite term, or for a term with a minimum sentence imposed, may have not more than one hundred and twenty days deducted from any one continuous term of imprisonment as an outstandingly meritorious performance award in the discretion of the commissioner of correction for exceptional personal achievement, accomplishment and other outstandingly meritorious performance, provided . . . any serious act of misconduct or insubordination or refusal to conform to institution regulations occurring at any time during his confinement shall subject the prisoner, at the discretion of the warden and the commissioner, to the loss of all, or any portion, of any time awarded under this section. When any prisoner is held under more than one conviction the several terms of imprisonment imposed thereunder shall be construed as one continuous term for purposes of determining eligibility for any outstandingly meritorious performance award authorized by this section.”

       The respondent supplements his argument with the claim that, because this court's decision in Sutton v. Lopes, 202 Conn. 343, 349, 521 A.2d 147 (1987), requires that the petitioner’s original conviction be treated as “wholly nullified,” the respondent may deduct from the petitioner’s sentence only those credits to which a presentence inmate is entitled. The respondent’s reading of Sutton is broader than the language therein warrants. In that case, we held that time served on a vacated sentence may be treated as presentence time for the purpose of calculating statutory good time credit. Id.; see also Casey v. Commissioner, 215 Conn. 695, 577 A.2d 1051 (1990). We stated, quoting North Carolina v. Pearce, 395 U.S. 711, 721, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled in part on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989), that because “ ‘ “the original conviction ha[d], at the defendant’s behest, been wholly nullified and the slate wiped clean . . .” ’ ” the trial court had not improperly characterized the period of confinement on the invalid sentence as presentence confinement; Sutton v. Lopes, supra. Despite the respondent’s contention to the contrary, Sutton does not stand for the proposition that the punishment exacted and the credits afforded pursuant to the vacated conviction had likewise been nullified.

       General Statutes § 53a-38 (c) provides: “When a sentence of imprisonment that has been imposed on a person is vacated and a new sentence is imposed on such person for the same offense or for an offense based on the same act . . . all time served under or credited against the vacated sentence shall be credited against the new sentence. ” (Emphasis added.) We are precluded from relying on this language to dispose of the present issue, however, because this court has previously construed this statute to relate “only to credit for time served pursuant to the vacated sentence^ see General Statutes § 18-7a;] and is irrelevant to any other statutory credit.” Moscow v. Manson, 185 Conn. 124, 132 and n.5, 440 A.2d 848 (1981).

       General Statutes § 53a-38 (c) provides: “When a sentence of imprisonment that has been imposed on a person is vacated and a new sentence is imposed on such a person for the same offense or for an offense based on the same act, the new sentence shall be calculated as if it had commenced at the time the vacated sentence commenced, and all time served under or credited against the vacated sentence shall be credited against the new sentence.”


author: Covello, J.

text:
    Irving J. Pinsky v. Statewide Grievance Committee et al.
    (13828)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.

      Argued May 2—
    decision released August 14, 1990

      Christine M. Whitehead, for the appellant (named defendant).

      Roger J. Frechette, with whom was Matthew E. Frechette, for the appellee (plaintiff).
   Covello, J.

This is an appeal from a judgment of the trial court that rescinded the reprimand of an attorney issued by the named defendant, the Statewide Grievance Committee (defendant). The issues presented are: (1) whether an attorney has the right to appeal a reprimand issued by the defendant to the Superior Court; (2) if the right to such an appeal exists, should the Superior Court proceedings be limited to a review of the record before the defendant or should the trial court conduct a trial de novo; and (3) whether the trial court correctly concluded that the plaintiff had not violated the Rules of Professional Conduct. We conclude that: (1) an attorney has the right to appeal a reprimand; (2) such an appeal is limited to a review of the record of the proceedings before the defendant; and (3) a review of that record supports the trial court’s conclusion that the plaintiff had not violated the Rules of Professional Conduct.

Examination of that record discloses the following: The plaintiff, Irving J. Pinsky, is an attorney. During the time in question, he maintained his office in a New Haven building owned by the Bank of Boston/Connecticut. Eric Connery, the bank’s employee, managed the building. The bank, represented by a New Haven law firm, began a summary process action against the plaintiff, seeking to evict him from the building. The plaintiff did not enter his own appearance, but rather retained counsel to represent him in the summary process action.

On at least one occasion, the bank’s attorneys contacted the plaintiff directly by mail, returning his tender of rent with a covering letter. On March 29,1988, the plaintiff sent a letter addressed to Connery’s home. The letter did not indicate the plaintiff’s status as an attorney, but it did contain his name and post office box number. In his letter to Connery, the plaintiff expressed his frustration with the events surrounding the eviction, and threatened to initiate a legal action against Connery.

On April 19,1988, Connery filed a complaint with the defendant, alleging, inter alia, that the plaintiff knew the bank was represented by counsel and had therefore improperly communicated directly with Connery, an employee of the bank, in violation of Rule 4.2 of the Rules of Professional Conduct. Pursuant to Practice Book § 27F (a) (l), the defendant referred the complaint to the grievance panel for the New Haven judicial district. On May 27, 1988, the grievance panel concluded that there was insufficient evidence to support a finding of probable cause that the plaintiff was guilty of misconduct.

On September 15, 1988, however, contrary to the finding of the grievance panel, the defendant found that there was probable cause to believe that the plaintiff had violated Rule 4.2. Pursuant to Practice Book § 27J (a) the defendant then referred the complaint to a reviewing committee. On March 28, 1989, the reviewing committee recommended that the complaint be dismissed. On April 20, 1989, despite the reviewing committee’s recommendation to the contrary, the defendant concluded that the plaintiff had violated Rule 4.2, and reprimanded him.

On May 25, 1989, the plaintiff began this action in the Superior Court seeking judicial review of the defendant’s actions. The plaintiff claimed, inter alia, that because he was not representing a client at the time of his communication with Connery, his activities were not governed by the Rules of Professional Conduct. On October 5, 1989, after conducting a trial de novo concerning the defendant’s actions, the trial court, sustained the plaintiff’s appeal, rescinded the reprimand, and ordered that an appropriate publication to that effect be published in the Connecticut Law Journal. The defendant appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

I

The defendant’s first claim is that the Superior Court lacked jurisdiction to review the reprimand issued by the defendant. The defendant argues that while the rules of practice and the General Statutes empower the defendant to issue reprimands to attorneys, there are no provisions for appeal from such a disciplinary action. See General Statutes § 51-90 et seq. and Practice Book § 27B et seq. We agree that there is no statutory right of appeal from a reprimand, but conclude nevertheless that the trial court has authority to review such an order by virtue of its inherent supervisory authority over attorney conduct.

“Judges of the Superior Court possess the ‘inherent authority to regulate attorney conduct and to discipline members of the bar.’ Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 523, 461 A.2d 938 (1983). ‘It is their unique position as officers and commissioners of the court . . . which casts attorneys in a special relationship with the judiciary and subjects them to its discipline.’ Id., 524.” Statewide Grievance Committee v. Presnick, 215 Conn. 162, 166, 575 A.2d 210 (1990); Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 238, 558 A.2d 986 (1989).

General Statutes § 51-90 et seq. and Practice Book § 27B et seq. “are not restrictive of the inherent powers which reside in courts to inquire into the conduct of their own officers, and to discipline them for misconduct.” State v. Peck, 88 Conn. 447, 457, 91 A. 274 (1914). “[Disciplinary [proceedings] are taken primarily for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them. . . . The end result of these proceedings is a judgment from which an appeal lies to this court. In re Application of Dodd, 131 Conn. 702, 707, 42 A.2d 36 [1945]; O’Brien’s Petition, [79 Conn. 46, 59, 63 A. 777 (1906)].” Heiberger v. Clark, 148 Conn. 177, 183, 169 A.2d 652 (1961).

In Grievance Committee of the Bar of New Haven County v. Sinn, 128 Conn. 419, 422, 23 A.2d 516 (1941), we concluded that “[i]n ¡presentment] proceedings. . . a defendant is entitled to notice of the charges against him, to a fair hearing, and a fair determination, in the exercise of a sound judicial discretion, of the questions at issue, and to an appeal to this court for the purpose of having it determined whether or not he has in some substantial manner been deprived of such rights.” (Emphasis added.) Since the public notice of a reprimand is just as damaging to an attorney’s reputation as the publicity attending a presentment proceeding, it is inconsistent and inequitable to deny an attorney the right to a review of a reprimand issued by the defendant while affording the right to a review of the trial court’s decision in presentment proceedings. Statewide Grievance Committee v. Presnick, supra, 170.

II

The defendant next argues that even if the trial court had the authority to review its actions, the trial court should have limited the proceedings to a review of the record rather than conducting a trial de novo. We agree.

Appeals to the court from the determinations of administrative, legislative and quasi-judicial bodies are limited to a review of the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct. See, e.g., Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 560 A.2d 403 (1989) (chiropractors); State Medical Soci ety v. Board of Examiners in Podiatry, 208 Conn. 709, 546 A.2d 830 (1988) (podiatrists); Stern v. Medical Examining Board, 208 Conn. 492, 545 A.2d 1080 (1988) (physicians); Leib v. Board of Examiners for Nursing, 177 Conn. 78, 411 A.2d 42 (1979) (nurses); Board of Education v. Commission on Human Rights & Opportunities, 176 Conn. 533, 409 A.2d 1013 (1979) (teachers); Obuchowski v. Dental Commission, 149 Conn. 257, 178 A.2d 537 (1962) (dentists); Jaffe v. State Department of Health, 135 Conn. 339, 64 A.2d 330 (1949) (physicians); Lieberman v. State Board of Examiners in Optometry, 130 Conn. 344, 34 A.2d 213 (1943) (optometrists); U.S. Vision, Inc. v. Board of Examiners for Opticians, 15 Conn. App. 205, 545 A.2d 565 (1988) (opticians). Although there is no statutory provision for an appeal from the reprimand ordered by the defendant, we see no reason why the right of an attorney to judicial review in a disciplinary matter should be any different than the process accorded other professionals in disciplinary matters before licensing and/or disciplinary boards.

The fact that the trial court conducted a trial de novo, however, does not compromise the result in the present instance. The undisputed facts contained in the record of the disciplinary proceedings conducted by the defendant establish that a review of the record would have produced the same result. The trial court proceedings, although described as a trial de novo, in fact did not produce any additional evidence that was not contained within the record before the defendant. These predicate facts support the legal conclusion reached by the trial court.

Rule 4.2 provides that “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” (Emphasis added.) The purpose of this restriction is to preserve the integrity of the lawyer-client relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer. The rule is designed to prevent situations in which a represented party may be taken advantage of by opposing counsel. See ABA/BNA Lawyer’s Manual on Professional Conduct (1989) § 71:303.

Contact between litigants, however, is specifically authorized by the comments under Rule 4.2: “This Rule does not prohibit communication with a party . . . concerning matters outside the representation. . . . Also, parties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party is permitted to do so. ” (Emphasis added.) The language of Rule 4.2 and the comments thereto, limit the restriction on communications with represented parties to those situations where the attorney is “representing a client.” Here, the plaintiff was not “representing a client.”

The grievance panel, the reviewing committee and the trial court all correctly concluded that the plaintiff’s letter was a communication between litigants and that the plaintiff had a right to make such a communication because he was not representing a client. There was no evidence that suggests that the letter was written by the plaintiff in a representative capacity. While the plaintiff’s conduct may have been less than prudent, it did not violate Rule 4.2.

“Where the trial court reaches a correct decision but on mistaken [procedural] grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it. Morris v. Costa, 174 Conn. 592, [597-98,] 392 A.2d 468 [1978]; DiMaggio v. Cannon, 165 Conn. 19, 24, 327 A.2d 561 [1973].” Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978). “This court is not required to reverse a ruling of the trial court which reached a correct result, albeit [from] a wrong [procedural posture]. Favorite v. Miller, [supra].” Herr-mann v. Summer Plaza Corporation, 201 Conn. 263, 274, 513 A.2d 1211 (1986).

The judgment of the trial court is affirmed.

In this opinion the other justices concurred.

       “[Rules of Professional Conduct] Rule 4.2 communication with person REPRESENTED BY COUNSEL
      “In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”

       “[Practice Book] Sec. 27F.—piling complaints; action; time limitation
      “(a) Any person, or a grievance panel on its own motion, may file a written complaint alleging attorney misconduct whether or not such alleged misconduct occurred in the actual presence of the court. Complaints against attorneys shall be filed with the statewide bar counsel. Within seven days of the receipt of a complaint the statewide bar counsel shall:
      “(1) forward the complaint to a grievance panel in the judicial district in which the respondent maintains his principal office or his residence, provided that, if the respondent does not maintain such an address in this state, the statewide bar counsel shall forward the complaint to any grievance panel.”

       “[Practice Book] Sec. 27J. action by statewide grievance committee OR REVIEWING COMMITTEE
      “(a) Upon receipt of the record from a grievance panel, the statewide grievance committee may assign the case to a reviewing committee which shall consist of at least three members of the statewide grievance committee, at least one third of whom are not attorneys. The statewide grievance committee may, in its discretion, reassign the case to a different reviewing committee. The committee shall regularly rotate membership on reviewing committees and assignments of complaints from the various grievance panels. An attorney who maintains an office for the practice of law in the same judicial district as the respondent may not sit on the reviewing committee for that case.”

       In Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 576 A.2d 532 (1990), we recently concluded that the defendant, as an adjunct of the judicial branch, is not an administrative agency within the meaning of the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; and that a complainant was therefore not entitled to appeal under that act from decisions of the defendant. Although the second count of the plaintiffs complaint purports to be an appeal from the defendant as an “agency” as defined in General Statutes § 4-166, the remaining four counts set forth grounds supporting the equitable relief claimed. In rendering judgment the trial court appears to have ignored the second count and simply ordered as equitable relief a rescission of the reprimand and an appropriate publication of the rescission.
      It is not clear that the plaintiff in Sobocinski could have used this equitable avenue to obtain judicial review of the decision of the defendant dismissing her complaint against her former attorney from which she had appealed pursuant to General Statutes § 4-183. As a complainant, her interest in that decision was not equivalent to the right of an attorney, such as this plaintiff, in preserving his professional reputation. There may be situations, however, where a decision of the defendant so affects the constitutionally protected interests of a complainant that an appeal to court may be warranted. Cf. Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 542-43, 489 A. 2d 363 (1985).