author: NORCOTT, J.

text:
    T. CHRISTOPHER KILLION ET AL. v. IAN MARTIN DAVIS
    (SC 16417)
    Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.

      Argued April 26
    officially released July 31, 2001

      Ronald P. Mysliwiec, with whom was Steven D. Ecker, for the appellants (plaintiffs).

      Jonathan Turley, pro hac vice, with whom were James F. Stapleton and, on the brief, Thomas J. O’Neill, for the appellee (defendant).
   Opinion

NORCOTT, J.

This appeal requires us to determine whether the attorney trial referee’s conclusion that the defendant, Ian Martin Davis, personally was liable to the plaintiffs, T. Christopher Killion and Brad J. Felenstein, was supported by the referee’s findings of fact. The trial court rendered judgment in accordance with a report issued by the attorney trial referee recommending that the defendant personally be held liable for breach of an employment contract. The Appellate Court reversed, concluding that the attorney trial referee’s conclusion was not supported by the facts in the trial referee’s report or in the record as a whole. Killion v. Davis, 59 Conn. App. 358, 361, 757 A.2d 632 (2000). We reverse the judgment of the Appellate Court.

The following relevant facts, based upon the attorney trial referee’s findings, are aptly set forth in the Appellate Court decision. “The defendant and his wife were the sole shareholders of Sports Marketing Group, Inc., (Sports Marketing) and contracted to sell their stock to Times Mirror Magazine (Times Mirror) for more than $5 million. Prior to the sale to Times Mirror, the defendant, who was also the president of Sports Marketing, informed the plaintiffs in separate conversations that they would each receive $100,000 if they remained with Sports Marketing for three years following the sale. The defendant and Times Mirror agreed that Times Mirror would withhold a portion of the purchase price due to the defendant and pay the plaintiffs directly at the end of three years. Although the plaintiffs remained employed at Sports Marketing for the requisite three years, they did not receive the $100,000 promised to them.

“The plaintiffs thereafter brought an action against the defendant rather than Sports Marketing or Times Mirror to enforce the oral promise. The matter was heard by an attorney trial referee, who issued a report concluding that the defendant should pay the plaintiffs $100,000 each plus prejudgment interest. While the attorney trial referee found that the defendant, in his conversations with the plaintiffs, never specifically referenced his personal responsibility to pay the bonuses, the trial referee did conclude that it was reasonable for the plaintiffs to assume that the defendant would be personally responsible for the payment of the money. The trial referee also concluded that the plaintiffs remaining employed for three years was for the benefit of the defendant in his sale of stock to Times Mirror and therefore evidenced the defendant’s personal responsibility to pay the bonuses. The [trial] court adopted the report in its entirety when it rendered judgment.” Id., 359-60.

The defendant appealed claiming that the facts, even as found by the attorney trial referee in his report, did not support the conclusion that the defendant had intended personally to be liable for the plaintiffs’ bonuses. The Appellate Court agreed and, accordingly, reversed the judgment of the trial court and directed judgment for the defendant. Id., 362. The Appellate Court concluded that the evidence did not support the conclusion that the defendant personally was liable on the promise, “especially when the facts as found in the report state [d], specifically, that the defendant never referenced his personal responsibility.” Id. Thereafter, we granted the plaintiffs’ petition for certification to appeal limited to the following issue: “Whether the Appellate Court properly concluded that the attorney trial referee incorrectly ruled that the defendant was personally liable to the plaintiffs for the claimed bonuses?” Killion v. Davis, 254 Conn. 948, 762 A.2d 902 (2000). We conclude that the facts found in the report support the attorney trial referee’s conclusion that the defendant was under a personal obligation to pay the employment bonuses.

Cases may be referred to an attorney trial referee for a finding of facts where the parties are not entitled to a trial by jury and where the parties consent to such a referral. Practice Book §§ 19-2 and 19-3. “The report of . . . [an] attorney trial referee shall state, in separate and consecutively numbered paragraphs, the facts found and the conclusions drawn therefrom. . . Practice Book § 19-8 (a). “While the reports of [attorney trial referees] in such cases are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based upon evidence, in the absence of errors of law, and the parties have no right to demand that the court shall redetermine the fact thus found.” (Internal quotation marks omitted.) Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508, 508 A.2d 415 (1986).

“A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. . . . This court has articulated that attorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court.” (Citations omitted; internal quotation marks omitted.) Elgar v. Elgar, 238 Conn. 839, 848-49, 679 A.2d 937 (1996).

“Although it is true that when the trial court reviews the attorney trial referee’s report the trial court may not retry the case and pass on the credibility of the witnesses, the trial court must review the referee’s entire report to determine whether the recommendations contained in it are supported by findings of fact in the report. It is also true that the trial court cannot accept an attorney trial referee’s report containing legal conclusions for which there are no subordinate facts.” Post Road Iron Works, Inc. v. Lexington Development Group, Inc., 54 Conn. App. 534, 541, 736 A.2d 923 (1999). “If the attorney referee’s ruling was not legally and logically correct, the trial court may reject the report.” (Internal quotation marks omitted.) SFP Tisca v. Robin Hill Farm, Inc., 244 Conn. 721, 727, 711 A.2d 1175 (1998).

Our review of the report and the record persuades us that the conclusions reached by the attorney trial referee, and accepted by the trial court, are adequately supported by the subordinate facts found. First, the manner in which the transaction between the defendant and Times Mirror was structured suggests that the funds earmarked for the compensation payments were controlled by, and belonged to, the defendant. With regard to the sale of Sports Marketing, it is clear that a portion of the purchase price was withheld to fund the “ ‘incentive compensation’ ” payments to the plaintiffs. Specifically, the purchase price was reduced by $154,000, the value at that time of the $200,000 amount that was to be paid to the plaintiffs at the end of three years. The attorney trial referee found that the purpose in structuring the deal in this manner was to provide a financial benefit to the defendant. The parties eliminated any reference to the compensation payments in the purchase documents in order to minimize the defendant’s tax obligations and maximize Times Mirror’s tax deduction for the purchase. On the basis of the defendant’s own testimony, the attorney trial referee concluded that Times Mirror agreed to the reduction in purchase price because it “didn’t care how the defendant spent his money.” (Emphasis added.)

In addition, the attorney trial referee found that the deal was structured in such a way that, in the event that the plaintiffs did not remain with Sports Marketing for three years, Times Mirror would be required to refund any balance of the withheld funds to the defendant. The attorney trial referee found that neither plaintiff participated in, or was aware of, the details of the agreement between Times Mirror and the defendant. Thus, even though Times Mirror may have been required to make the payments pursuant to its agreement with the defendant, we agree that Times Mirror merely acted as a payment mechanism through which the defendant’s funds would pass. The attorney trial referee’s report supports a conclusion that the responsibility for paying the plaintiffs belonged to the defendant.

Second, there is the matter of the litigation in federal court that transpired between the defendant and Times Mirror subsequent to the sale of Sports Marketing. The litigation arose out of a dispute between the defendant and Times Mirror regarding the financial condition of Sports Marketing, but was unrelated to the bonuses owed to the plaintiffs. The parties eventually settled the litigation by stipulation, part of which required Times Mirror to establish an escrow fund in the amount of $150,000 to cover the plaintiffs’ claims. The escrow funds would have been paid to the defendant in the event that the plaintiffs were unsuccessful in their claim to recover the bonuses from him. Notably, the stipulation provided for the release of Times Mirror and Sports Marketing from any liability with respect to this action between the defendant and the plaintiffs. Once again, the plaintiffs were not privy to the settlement negotiations between Times Mirror and the defendant, the subject of which controlled the fate of the plaintiffs’ payments. These findings demonstrate that the defendant, and not Sports Marketing or Times Mirror, maintained control over the compensation payments. As the attorney trial referee concluded, it was, therefore, reasonable for the plaintiffs to assume that the defendant would be the one legally responsible for the payments.

On the basis of the report, the attorney trial referee’s conclusion that the defendant personally was liable for the plaintiffs’ claim was legally and logically sound. Our decision, however, should not be read to suggest that corporate officers generally are required to disclaim personal liability whenever making a promise for an employment bonus. Rather, the facts in the present case demonstrate the defendant’s complete control over the funds, regardless of the entity designated as the payment mechanism. We conclude that in this case, the cumulative facts as found by the attorney trial referee amply support his conclusion that the defendant personally was liable.

The judgment of the Appellate Court is reversed with respect to the issue of personal liability and the case is remanded to that court for further proceedings regarding the remaining issues on the defendant’s appeal.

In this opinion the other justices concurred.

       In addition to the issue of personal liability, the defendant also claimed on appeal that the trial court improperly had “(1) concluded that the oral agreement to pay the plaintiffs was not barred by the statute of frauds, (2) failed to correct factual and legal errors in the attorney trial referee’s report and (3) abused its discretion by awarding prejudgment interest.” Killion v. Davis, supra, 59 Conn. App. 359 n.l. Because of its conclusion on the issue of personal liability, the Appellate Court did not reach the defendant’s other-claims. Id.

       We note that, while the certified issue refers to the propriety of the attorney trial referee’s ruling, judgment actually was rendered by the trial court, in favor of the plaintiffs.

       We note that the opinion of the Appellate Court does not address this fact.

       The defendant claims that the settlement agreement is irrelevant to the issue on appeal because the settlement, which occurred in 1994, has no bearing on tihe intent of the parties’ 1989 oral contract, and it did not reference any liability running from the defendant to the plaintiffs. We disagree.
      Although the settlement could not possibly have had an actual effect on the terms of a contract executed five years prior to its inception, the settlement can be utilized to interpret the intent of the contract. “The intention of the parties manifested by their words and acts is essential to determine whether a contract was entered into and what i1s terms were.” (Internal quotation marks omitted.) Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987), overruled in part on other grounds, Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993). Because the terms of the contract in the present case are in dispute, specifically, who was obligated to pay the bonuses, the attorney trial referee reasonably looked to the settlement agreement as a means of determining the parties’ intentions.
      Specifically, the provisions of the settlement that provided for a fund to cover the bonus payments, the possible return of that fund to the defendant, and the release of Times Mirror and Sports Marketing from liability for the plaintiffs’ claim are all relevant to the question of whom the parties intended to issue the bonus payments. The attorney trial referee even concluded that, “[e]ven if arguendo, [Times Mirror] had assumed the obligation of the payments to the plaintiffs, the stipulation ending the federal litigation returned the obligation to the defendant.”
      In addition, the attorney trial referee explicitly mentioned the relevance of the settlement agreement. In a motion to correct the findings of fact, the defendant objected to the introduction of the settlement agreement. The attorney trial referee refused to correct this finding because he found it “relevant to the issues at bar.” We agree and conclude that the settlement is relevant to the resolution of this case and, therefore, the attorney trial referee properly discussed its contents.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. PATRICK J. FITZGERALD
    (SC 16195)
    Borden, Norcott, Palmer, Vertefeuille and Zarella, Js.

      Argued April 17
    officially released July 31, 2001

      Lisa Herskowitz, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and John Cashmon, senior assistant state’s attorney, for the appellant (state).

      Michael W. Murray, for the appellee (defendant).
   Opinion

NORCOTT, J.

The dispositive issue in this certified appeal is whether the prosecutor’s disclosure to the judge in a bench trial of the existence of a part B information so tainted the entire trial as to require that the judgment of conviction be reversed. The state appeals from the judgment of the Appellate Court reversing the defendant’s conviction of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (1). State v. Fitz gerald, 54 Conn. App. 258, 266, 737 A.2d 922 (1999). The state claims that the Appellate Court improperly concluded that the disclosure of the part B information required reversal of the defendant’s conviction. Id. We agree with the state and, accordingly, we reverse the judgment of the Appellate Court.

The relevant facts and procedural histoiy are as follows. The defendant, Patrick J. Fitzgerald, was charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a). Since he twice previously had been convicted of the same offense, he was subject to the enhanced penalty provisions of § 14-227a (h) (3). The defendant was charged in a two part information according to the provisions of Practice Book § 36-14, formerly § 619. Part A of the information charged the defendant with operating a motor vehicle while under the influence of intoxicating liquor. Part B of the information charged the defendant with two previous convictions of the same offense. Because the defendant was charged via a two part information, the clerk was required to comply with Practice Book § 37-11, formerly § 648, which mandates that the clerk notify the defendant of the existence of the second part of the information “in the absence of the judicial authority . . . ,” The defendant was notified of the part B information on April 11, 1996, and again on November 13, 1996. It appears from the record that the defendant was notified in the absence of the judicial authority on both occasions.

On November 5, 1996, the day on which voir dire was to begin, the defendant withdrew his claim for a jury trial and opted for a bench trial. Upon noting that the defendant had been charged by a substitute information, the trial court took the defendant’s not guilty plea on the substitute information. Thereafter, the prosecutor informed the court of the existence of the part B information. The prosecutor stated: “There was, previously, he was previously advised of part B of the information on April 11th that’s contained in the file. I just wanted that on the record. I don’t know if it [was] brought before the court when he was advised.” The judge responded: “Okay. So noted.”

The defendant’s bench trial began on November 6, 1996, and took place over a period of five days, after which the court found the defendant guilty of violating § 14-227a (a) (1). The defendant then moved for a new trial, noting that the court improperly had been advised of the existence of the part B information prior to the trial. The court denied the motion, and a trial was held regarding the part B information. The defendant was found guilty of the part B information as well, and the court rendered judgment accordingly.

The defendant appealed from the judgment of the trial court to the Appellate Court, claiming that the trial court improperly had refused to order a new trial after the existence of the part B information had been made known to the court prior to the commencement of the trial. The Appellate Court reversed the defendant’s conviction and ordered a new trial, concluding that the prosecutor’s statement regarding the part B information tainted the case and constituted plain error requiring a new trial. State v. Fitzgerald, supra, 54 Conn. App. 266. We granted the state’s petition for certification to appeal limited to the following issue: “Under the circumstances of this case, did the Appellate Court properly conclude that the mention by the state of a part B information required that the judgment of conviction be reversed?” State v. Fitzgerald, 251 Conn. 903, 738 A.2d 1092 (1999). This certified appeal followed.

The state claims that the Appellate Court improperly concluded that the prosecutor’s comment in this case constituted plain error and required reversal of the defendant’s conviction. We agree.

“As a threshold matter, we first consider the issue of whether the Appellate Court improperly invoked the plain error doctrine . . . .” Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 195, 520 A.2d 208 (1987), overruled in part on other grounds, Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993). Practice Book § 60-5 provides in relevant part that a “court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” We note that the “scope of [the] review [here] is limited to determining whether the Appellate Court abused its discretion in granting review under the plain error doctrine.” Finley v. Aetna Life & Casualty Co., supra, 196.

“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.” (Internal quotation marks omitted.) Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 25, 664 A.2d 719 (1995). It is also a doctrine that should be invoked sparingly. See Berchtold v. Maggi, 191 Conn. 266, 274, 464 A.2d 1 (1983). “ ‘An important factor in determining whether to invoke the plain error doctrine is whether the claimed error resultfed] in an unreliable verdict or a miscarriage of justice.’ ” DiNapoli v. Cooke, 43 Conn. App. 419, 426, 682 A.2d 603, cert. denied, 239 Conn. 951, 686 A.2d 124 (1996), cert. denied, 520 U.S. 1213, 117 S.Ct. 1699, 137 L. Ed. 2d 825 (1997). A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. See State v. Schiappa, 248 Conn. 132, 166, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). We conclude that, under the facts of this case, the Appellate Court abused its discretion when it concluded that the prosecutor’s improper comment constituted plain error.

The improper disclosure by the prosecutor in this case did not amount to a mistake so manifest as to constitute plain error. Our review of the record reveals that any harm caused by the improper disclosure did not in any way undermine the validity of the guilty verdict. The trial court found that the evidence presented in the case sufficiently satisfied the state’s burden of proving guilt beyond a reasonable doubt. Our careful review of the evidence supports this conclusion. Also we cannot conclude, as a finding of plain error requires, that the prosecutor’s comment implicates the public confidence in our judiciary. Finally, we find nothing in the record that leads us to conclude that the trial court’s verdict was unreliable or that it constituted a manifest injustice to the defendant.

The Appellate Court should have reviewed the record to determine whether the trial court abused its discretion in denying the defendant’s motion for a new trial. See State v. Hammond, 221 Conn. 264, 269, 604 A.2d 793 (1992). la Hammond, this court stated that “[a]ppellate review of a trial court’s decision granting or denying a motion for a new trial must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . [W]e now conclude that the appropriate standard of review is abuse of discretion.” (Citations omitted.) Id., 269-70. “ ‘In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.’ ” Davis v. Fracasso, 59 Conn. App. 291, 295, 756 A.2d 325 (2000). We conclude that the trial court did not abuse its discretion in rejecting the defendant’s motion for a new trial.

We first note that there is no evidence in the record that the prosecutor’s actions in any way affected the fairness of the defendant’s trial. More specifically, we agree with the state that the record reveals that the trial court had forgotten about the existence of the part B information when it rendered its guilty verdict on the underlying charge. On November 12, 1996, when the court issued its guilty verdict, the prosecutor immediately stated that the defendant needed to be put to plea on the part B information. The court responded: “There’s a part B?” The Appellate Court rejected the state’s claim that no impropriety had occurred because the trial court had forgotten that it improperly had been informed of the existence of the part B. The Appellate Court stated that “[i]t would be irrational for us to hold that a case-by-case determination must be made, the determining factor being how good a memory each trial judge possessed. The state’s contention would create the bizarre situation in which it would be proper to mention part B before a judge with a poor memory but would be cause for reversal to mention part B before a judge with a good memory.” State v. Fitzgerald, supra, 54 Conn. App. 265. Although we agree with the Appellate Court that it would be inappropriate to engage in a case-by-case analysis of the mental faculties of a given judge, we fail to see how, in the total absence of illicit motivation or biased judicial behavior, the prosecutor’s comment here amounts to an error requiring a new trial. We leave for another day the situation in which a part B information is improperly revealed and the defendant can demonstrate either a prosecutor’s illicit motivation or biased judicial behavior resulting from the improper revelation. On the basis of the facts of this case, however, we conclude that the improper disclosure of the part B information does not require that the defendant receive a new trial.

On the facts of this case, the prosecutor’s comment before the court appears to be more of a technical violation of the rules of practice rather than a substantive deprivation of the defendant’s right to an impartial fact finder. As a technical violation, our decision in State v. Fullwood, 194 Conn. 573, 484 A.2d 435 (1984), is instructive. In Fullwood, we stated that a clerk’s failure to record on the docket the time and place during which the defendant had been notified of the part B information did not require dismissal of part B of the indictment. Id., 577. We note further, that even the failure by a clerk explicitly to notify the defendant of the existence of the part B information will not work to require a new trial; State v. Reddick, 224 Conn. 445, 450, 619 A.2d 453 (1993); or require the dismissal of the part B information; State v. Bradley, 39 Conn. App. 82, 95, 663 A.2d 1100 (1995), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996); when the defendant can be deemed to have actual notice of the part B information.

We recognize that in the present case, the defendant alleges more than a technical violation of Practice Book § 37-11. He claims that the disclosure to the court prevented him from receiving a fair trial. We disagree, however, with the defendant’s contention that the prosecutor’s improper disclosure required that the defendant receive a new trial. We note further that the Appellate Court’s reliance on Barbieri v. Cadillac Construction Corp., 174 Conn. 445, 389 A.2d 1263 (1978), as grounds for ordering a new trial, was misplaced. In Barbieri, we stated: “Since we cannot speculate as to the degree of influence which the objectionable [material] had in the final result . . . the safer rule is to grant a new trial.” (Internal quotation marks omitted.) Id., 451. There, we ordered a new trial because we were unable, as a reviewing court, to ascertain the degree of harm caused when a trial referee made improper judicial findings in a case tried without a jury. Id., 450. The present facts, however, concern an allegedly improper action by a prosecutor, not the judicial authority. Thus, unlike in Barbieri, where we were unable to separate the party whose conduct is called into question, on the one hand, from the decision maker, on the other, we are able to do so in the present case.

Furthermore, it is clear that any claimed error that occurred by the prosecutor’s disclosure of the part B information could have been remedied by requesting that the judge recuse himself before the trial began. As noted previously, the prosecutor informed the court of the existence of the part B information prior to trial. At that point, the defendant was aware of the potential for bias and could have filed a motion for judicial disquahfication under Practice Book § 1-22, formerly § 996, and Practice Book § 1-23, formerly § 997.

This court, in Timm v. Timm, 195 Conn. 202, 203, 487 A.2d 191 (1985), was required to determine whether the participation in pretrial settlement conferences by a trial referee required that the referee disqualify himself from the later nonjury trial. In determining that such participation did not require the referee’s recusal, we noted that “[t]he record is devoid of any suggestion of actual impropriety or bias on the part of the referee.” Id., 205. We further stated that “[t]he conduct of the defendant in this case, in failing to raise the issue of the referee’s disqualification either before or during the trial, can be construed as the functional equivalent of ‘consent in open court’ to [the judge’s] presiding over the trial.” Id.

Here too, as noted, there is no suggestion in the record of impropriety or bias on the part of the trial court judge. Moreover, instead of requesting that the judge recuse himself, the defendant chose to proceed to trial on the underlying charge. As in Timm, we conclude here that the defendant’s actions are tantamount to consent to the judge’s participation in the case. It would be inequitable to permit the defendant to notice the purported bias, proceed to trial, hoping to prevail on the merits, and then, after losing at trial, request a reversal for the alleged bias not objected to earlier.

We emphasize that this decision should not be read to condone the regular disclosure of a part B information to a fact finder. Section 37-11 clearly prohibits the judicial authority from being made aware of the existence of a part B information, thereby assuring that the sentencing enhancement provisions normally contained in a part B information do not unduly influence a fact finder’s disposition. The question before this court, however, is not whether a technical error occurred regarding compliance with the rules of practice, but whether, under the facts of this case, the disclosure by the prosecutor required reversal of the defendant’s conviction. We conclude that it did not.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion the other justices concurred.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. . . .”

       General Statutes § 14-227a (h) provides in relevant part: “Any person who violates any provision of subsection (a) of this section shall ... (3) for conviction of a third and subsequent violation within ten years after a prior conviction for the same offense, (A) be fined not less than two thousand dollars nor more than eight thousand dollars, (B) be imprisoned not more than three years, one year of which may not be suspended or reduced in any manner, and sentenced to a period of probation requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C) have such person’s motor vehicle operator’s license or nonresident operating privilege permanently revoked upon such third offense. . . .”
      We note that the above quoted language is the statutory revision currently in effect at the time of this opinion. In 1995, when the defendant committed the offense at issue in this appeal, the revision of the statute differed, but in ways not relevant to the issue before us.

       Practice Book § 36-14 provides: “Where the information alleges, in addition to the principal offense charged, a former conviction or convictions, such information shall be in two separate parts, each signed by the prosecuting authority. In the first part, the particular offense with which the accused is charged shall be set out, and in the other part the former conviction or convictions shall be alleged. In alleging the former conviction, it is sufficient that the information allege the date when, the town or city where, and the court wherein such conviction was obtained and the crime of which the defendant was convicted, all of which may be stated in accordance with the provisions of Section 36-13.”
      This rule of practice codifies this court’s decision in State v. Ferrone, 96 Conn. 160, 113 A. 452 (1921), on appeal after remand, 97 Conn. 258, 116 A. 336 (1922), wherein the court adopted the two part information process.

       Practice Book § 37-11 provides: “Prior to the time the defendant enters a guilty plea or, if the defendant pleads not guilty, prior to the commencement of trial, the clerk shall notify the defendant, in the absence of the judicial authority, of the contents of the second part of the information. The clerk shall enter on the docket the lime and place of the giving of such notification and, where necessary, shall include entry thereof in the judgment file.”
      There is no dispute that the clerk complied with this provision. The issue, instead, concerns the prosecutor’s disclosure of the part B information to the trial court.

       The attorney for the defendant stated at this point: “One other oral motion I’d like to make is a motion for a new trial based on the—it was quite clear the reason for the part B information being read outside the hearing of the court prior to the commencement of the trial that we’ve had the last few days as [the assistant state’s attorney] indicated on the record before the trial was started after he was put to the substituted information, there was a notation made that there was part B information in this case.”

       In determining whether the trial court abused its discretion in denying the defendant’s motion for a new trial, it is necessary to address the error claimed by the defendant as grounds for a new trial. The error, as noted, was the improper disclosure of the part B information.

       The defendant makes reference to one comment by the trial judge as indicative of his awareness of the part B information prior to the guilty finding. On November 13,1996, the day after the defendant was found guilty on the charge of operating a motor vehicle while under the influence of intoxicating liquor, he made a motion for a new trial based on the improper revelation of the part B information to the court. See footnote 5 of this opinion. The court responded to the defendant’s motion, stating: “By notation I think [the existence of the part B information] was said on the record.” The defendant argues that the court’s statement reveals that it had been aware of the part B information all along. This statement, however, must be read in its context. It came the day after the court had issued its finding of guilty on the underlying charge and after the prosecutor had reminded the court of the need to proceed on the part B information. We are not persuaded that this single statement indicates either prior knowledge of the part B information or, more importantly, evidence of unfair treatment of the defendant by the trial court.

       We note further, that the defendant’s basic argument, taken to its logical conclusion, would produce a near total ban on bench trials for the offense of operating a vehicle while under the influence of intoxicating liquor. Under § 14-227a (a), a person violates the law if he or she operates a motor vehicle “(1) while under the influence of intoxicating liquor ... or (2) while such person has an elevated blood alcohol content. . . .” (Emphasis added.) “ ‘[E]levated blood alcohol content’ ” is defined in § 14-227a (a) (2) as either: “(A) a ratio of alcohol in the blood of such person that is ten-hundredths of one per cent or more of alcohol, by weight, or (B) if such person has been convicted of a violation of this subsection, a ratio of alcohol in the blood of such person that is seven-hundredths of one percent or more of alcohol, by weight.”
      In other words, a first time offender’s blood alcohol content must be at least 0.10 while a repeat offender’s need only be 0.07. The judge presiding in a bench trial therefore would be aware that the defendant before him was a repeat offender when the judge was notified that the state’s burden was to prove 0.07, rather than 0.10. The defendant’s argument suggests that this entire statutory scheme would need to be eliminated as it inherently injects knowledge of a prior conviction into the mind of the fact finder. We place greater faith in the ability of trial judges to fairly find malfeasance, without being influenced by inadmissible or irrelevant evidence, than does the defendant.

       This argument was first raised by the state to the Appellate Court. Unlike the Appellate Court, however, we are persuaded by this reasoning.

       Practice Book § 1-22, formerly § 996, provides in relevant part: “Ajudicial authority shall, upon motion of either party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified from acting therein pursuant to Cannon 3 (c) of the Code of Judicial Conduct . . . .”
      Cannon 3 (c) (1) of the Code of Judicial Conduct provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”
      Practice Book § 1-23, formerly § 997, provides: “A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”
      At the time of the defendant’s trial, §§ 996 and 997 were in effect and they differed from §§ 1-22 and 1-23 in only minor respects.


author: KATZ, J.

text:
    EVELYN COSBY TOLBERT ET AL. v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY ET AL.
    (SC 16397)
    Borden, Norcott, Katz, Vertefeuille and Fracasse, Js.
    Argued May 22
    officially released July 31, 2001

      Stephen P. Bertucio, for the appellant (named plaintiff).

      Craig S. Taschner, with whom was Dale M. Clayton, for the appellee (defendant Fleet National Bank).
   Opinion

KATZ, J.

The plaintiff, Evelyn Cosby Tolbert, appeals, following our grant of certification to appeal, from the judgment of the Appellate Court affirming the judgment rendered by the trial court in favor of the defendant Fleet National Bank (Fleet). The trial court’s judgment followed the granting of Fleet’s motion to set aside the jury’s verdict on count six of the plaintiffs complaint. The Appellate Court affirmed the judgment of the trial court on the ground alleged by Fleet in its motion to set aside the juiy’s verdict, namely, that the plaintiffs claim against Fleet was barred by the six year statute of limitations set forth in General Statutes § 52-576. We granted the plaintiffs petition for certification to appeal limited to the following issue: “Did the Appellate Court properly affirm the trial court’s ruling that the claim of the named plaintiff, Evelyn Cosby Tolbert, against the defendant Fleet National Bank was barred by General Statutes § 52-576?” Tolbert v. Connecticut General Life Ins. Co., 254 Conn. 927, 761 A.2d 758 (2000). We affirm the judgment of the Appellate Court.

The following facts and procedural history as summarized by the Appellate Court are relevant to our resolution of this issue. “In September, 1975, the plaintiff and her then husband secured a mortgage from Fleet’s predecessor in interest, Hartford Federal Savings and Loan Association (Hartford Federal). In conjunction with the mortgage, the plaintiff and Hartford Federal entered into an agreement whereby Hartford Federal was to procure mortgage disability insurance (disability policy) for the plaintiff. Hartford Federal secured a disability policy with the defendant Connecticut General Life Insurance Company (Connecticut General) effective October 6,1975. In 1979, when the plaintiff became totally physically disabled, Connecticut General began paying disability benefits on the plaintiffs behalf in the form of monthly mortgage payments on the mortgaged property she owned on Rutland Street in Hartford.

“In September, 1990, Connecticut General stopped paying disability benefits, and the plaintiffs mortgage account became delinquent. [Northeast Savings], which had acquired Hartford Federal’s interest in the mortgage; see footnote [4 of this opinion]; commenced foreclosure proceedings against the plaintiff. Because her disability benefits were not reinstated in a timely manner and because she was facing foreclosure proceedings, the plaintiff sold the premises at a price well below the appraised value.

“The plaintiff commenced this action against Connecticut General in 1994. More than eighteen months later, the [trial] court granted the plaintiffs motion to cite in Fleet as a party defendant. The plaintiff filed a substitute complaint in which she alleged, in count six, that she and Fleet’s predecessor in interest, Hartford Federal, had a contract pursuant to which Hartford Federal was to procure a mortgage disability policy; that Hartford Federal . . . was to procure insurance which was adequate to protect the plaintiff; that Hartford Federal . . . breached its contract with the plaintiff ... in that it failed to procure insurance which was adequate to protect the plaintiff; and that as a result of Hartford Federal’s negligent failure to procure adequate insurance, the plaintiff . . . has incurred damages . . . . In its answer, Fleet essentially denied the allegations of the substitute complaint and interposed, in its first special defense, an allegation that the action was barred by the provisions of § 52-576, the applicable statute of limitations. [See footnote 3 of this opinion.]

“After the jury returned a verdict against Fleet on count six, Fleet moved to have the verdict set aside [again contending that the claim against it was barred by the statute of limitations, § 52-576]. After the parties briefed and argued the issue, the court granted Fleet’s motion, ruling that the six year statute of limitations commenced running in September, 1975, when the parties entered into the contract rather than, as argued by the plaintiff, September, 1990, when the disability benefits were terminated.” (Emphasis in original; internal quotation marks omitted.) Tolbert v. Connecticut General Life Ins. Co., 58 Conn. App. 694, 696-98, 755 A.2d 293 (2000).

Thereafter, the plaintiff appealed from the judgment of the trial court to the Appellate Court. The Appellate Court affirmed the judgment of the trial court, concluding that the trial court properly had set aside the jury’s verdict on count six of the substitute complaint. Id., 701. In reaching this conclusion, the Appellate Court “determined that the six year statute of limitations began running in September, 1975, when the parties entered into the contract. Because the plaintiff did not commence this action until 1994, the [trial] court properly concluded that [her] action against Fleet was barred by the statute of limitations.” Id. In addition, the Appellate Court determined that the plaintiffs appeal, and the legal theory on which it was based, namely, that Fleet’s predecessors in interest had assumed a continuing duty to procure policies of disability insurance, had not been pleaded in the plaintiffs substitute complaint, nor proven at trial. Id. Therefore, the Appellate Court concluded that she could not recover under a continuing duty theory on appeal. Id. This certified appeal followed.

On appeal, the plaintiff claims that the Appellate Court improperly affirmed the trial court’s determination that her breach of contract claim against Fleet was barred by § 52-576, the applicable statute of limitations. Specifically, the plaintiff contends that, although she entered into a contract with Fleet’s predecessor in interest, Hartford Federal, in September, 1975, because she was not aware that Hartford Federal had breached its contract with her until September, 1990, when her mortgage disability insurance benefits were wrongly terminated by Connecticut General, the statute of limitations did not begin to run until that time. The plaintiff further maintains that, even if her cause of action accrued in September, 1975, Hartford Federal, and Fleet, as its successor in interest, assumed a continuing duty to procure disability insurance for her, and, therefore, that the statute of limitations was tolled until September 1990, when her disability benefits were wrongly terminated. Accordingly, under either interpretation, the plaintiff maintains that her action against Fleet was timely.

Fleet, in contrast, claims that the statute of limitations in this case began to run when Hartford Federal entered into a contract with the plaintiff in September, 1975, contending further that, if Hartford Federal had, in fact, breached its contract with the plaintiff by failing to procure adequate disability insurance, that breach occurred in September, 1975. In addition, Fleet maintains that, because the plaintiffs continuing duty claim had neither been pleaded in her substitute complaint nor proven at trial, she cannot recover under that theory on appeal. Accordingly, Fleet claims that the plaintiffs action is time barred under § 52-576. We agree with Fleet.

Before turning to the merits of the plaintiffs claim, we first address the proper standard for this court’s review. Generally, we review a decision of the trial court setting aside a verdict to determine whether the trial court properly exercised its discretion. Wichers v. Hatch, 252 Conn. 174, 181, 745 A.2d 789 (2000). When, however, as in the present case, “the trial court concludes, as a matter of law, that it is compelled to act in a particular fashion, plenary review is appropriate.” Id., 181-82.

General Statutes § 52-576 (a) provides that “[n]o action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . . .” The parties agree that Fleet was served with the plaintiffs substitute complaint in April, 1996. Therefore, the plaintiffs cause of action was time barred unless it “accrued” within the preceding six years, i.e., during or after April, 1990. See Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 156, 464 A.2d 18 (1983).

The law concerning when a breach of contract action accrues is well settled. This court has stated that “ [i]n an action for breach of contract . . . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted.” Kennedy v. Johns-Manville Sales Corp., 135 Conn. 176, 180, 62 A.2d 771 (1948); Beckenstein v. Potter & Carrier, Inc., supra, 191 Conn. 156. Although the application of this rule may result in occasional hardship, “[i]t is well established that ignorance of the fact that damage has been done does not prevent the running of the statute, except where there is something tantamount to a fraudulent concealment of a cause of action.” (Emphasis added.) Kennedy v. Johns-Manville Sales Corp., supra, 179; Beckenstein v. Potter & Carrier, Inc., supra, 156.

In the present case, the procurement of inadequate insurance, which constituted the alleged breach of the contract, would have resulted in legal damage as soon as it occurred. Indeed, the injury allegedly caused by Hartford Federal had to have been inflicted at the time Hartford Federal procured a mortgage disability policy for the plaintiff in September, 1975, because that policy was either adequate or inadequate at that time See Cheshire Brass Co. v. Wilson, 86 Conn. 551, 557, 86 A. 26 (1913) (“where an insurance broker or agent is employed by a person to procure insurance for him, the broker or agent becomes his agent until the insurance is procured . . . but, after the insurance has been procured, he ceases to be the agent of the insured”); see Lewis v. Michigan Millers Mutual Ins. Co., 154 Conn. 660, 664-65, 228 A.2d 803 (1967) (broker is agent for person for purpose of procuring insurance; once purpose accomplished, agency relationship terminates); accord Gaylord Hospital v. Massaro, 5 Conn. App. 465, 468, 499 A.2d 1162 (1985) (drawing distinction between contracts for attainment of end result and contracts for performance of specific definable act). The fact that the plaintiff was not aware of any injury until 1990, while unfortunate, is of no import to the determination of when the alleged breach by Hartford Federal occurred. As stated previously, “[i]t is well established that ignorance of the fact that damage has been done does not prevent the running of the statute [of limitations] . . . .” (Emphasis added.) Kennedy v. Johns-Manville Sales Corp., supra, 135 Conn. 179; see id., 178-80 (fact that damage not manifest at time of breach did not prevent running of statute). Accordingly, we conclude that, if the contract was breached, it was breached in September, 1975, when the alleged procurement of inadequate insurance occurred.

The plaintiff claims, however, that Fleet, and its predecessors in interest, had assumed a continuing duty in this case to provide her with adequate insurance, which tolled the statute of limitations until September, 1990. We conclude that this claim must also fail because the plaintiff failed to allege a continuing duty in her complaint. See Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 13, 459 A.2d 115 (1983).

The plaintiff alleged in count six of her substitute complaint that she and Fleet’s predecessor in interest, Hartford Federal, had entered into a contract in September, 1975, pursuant to which “Hartford Federal was to procure a mortgage disability policy” that was adequate to protect her, and that Hartford Federal had breached its contract with her in that it failed to perform that task. (Emphasis added.) The complaint itself contains no allegation of fact giving rise to a continuing duty on the part of Fleet or Hartford Federal. See Cheshire Brass Co. v. Wilson, supra, 86 Conn. 557 (characterizing insurance agent’s act of procuring insurance policy as distinct act). In addition, the plaintiff presented no facts to the trial court that reasonably would support an inference of a continuing duty on the part of Fleet. Without any indication of a continuing duty properly presented to the trial court, the plaintiff cannot recover under that theory on appeal. Bartha v. Waterbury House Wrecking Co., supra, 190 Conn. 13-14; see also Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 359, 525 A.2d 57 (“ ‘[a] plaintiff may not allege one cause of action and recover upon another’ ”), following remand, 205 Conn. 479, 533 A.2d 1211 (1987).

We conclude that the Appellate Court properly determined that the six year statute of limitations began to run in September, 1975, when the parties had entered into the contract. Accordingly, because the plaintiff did not commence this action until 1994, the Appellate Court properly affirmed the judgment of the trial court, setting aside the jury’s verdict for the plaintiff on count six of her substitute complaint.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       The other plaintiffs in the trial court were Evelyn Cosby Tolbert’s sons, Ivan K. Tolbert and Volos Tolbert, who had attempted to help their mother financially when her home was being foreclosed. Because judgment was rendered in favor of the defendant Fleet National Bank on count six of the substitute complaint, which alleged breach of a contract to which Tolbert’s sons were not parties, they were not parties to the appeal in the Appellate Court, nor are they parties to this appeal. In this opinion, we refer to Evelyn Cosby Tolbert as the plaintiff.

       The named defendant, Connecticut General Life Insurance Company, was not a party to the appeal in the Appellate Court nor is it a party to this appeal. The jury found in favor of the plaintiffs on their negligence claim against Connecticut General Life Insurance Company and the parties subsequently settled that dispute.

       General Statutes § 52-576 (a) provides: “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.”

       “Hartford Federal granted a mortgage to the plaintiff and her former husband. Hartford Federal’s interest in the mortgage was subsequently transferred to Northeast Savings (Northeast) and eventually to Fleet. Northeast was the lender that initiated foreclosure proceedings against the plaintiff.” Tolbert v. Connecticut General Life Ins. Co., 58 Conn. App. 694, 696 n.3, 755 A.2d 293 (2000).

       “The plaintiff placed in evidence a certificate of insurance issued by Connecticut General stating in part: ‘Connecticut General . . . CERTIFIES that the Mortgagor named below, being indebted to Hartford Federal . . . as evidenced by the obligation referred to below, has become insured with respect to such indebtedness under GROUP PROTECTED MORTGAGE DISABILITY INSURANCE POLICY NO. 31934-02 . . . issued to TRUSTEE OF THE SAVINGS AND LOAN LEAGUE OF CONNECTICUT MORTGAGE INSURANCE TRUST FUND . . . EFFECTIVE DATE: October] 6, [1975] . . . MORTGAGOR Evelyn E. Tolbert .... TERMINATION OF INSURANCE The insurance on a Mortgagor will terminate on the earliest date specified below . . . The date the Mortgagor attains age sixty-six. . . .’ ” Tolbert v. Connecticut General Life Ins. Co., 58 Conn. App. 694, 696, 755 A.2d 293 (2000).

       Fleet also made a number of additional arguments in support of its motion to set aside the jury’s verdict. Specifically, Fleet contended that: (1) the plaintiffs claims were barred by the doctrine of res judicata because they could have been adjudicated in a prior foreclosure proceeding; (2) there was no evidence of the existence of a contract between Fleet and the plaintiff; (3) there was no evidence that Fleet bore liability for the actions of its alleged predecessor, Hartford Federal; and (4) Fleet was unfairly prejudiced by certain testimony of both the plaintiff and her son, Ivan K. Tolbert. The trial court did not malee any determination in regard to these additional claims.

       Fleet raises two additional claims as alternate grounds for affirming the judgment of the Appellate Court, namely, that: (1) the plaintiffs claim is barred by the doctrine of res judicata; and (2) the jury’s verdict on count six of the plaintiffs substitute complaint was contrary to the law and the evidence. Because we conclude that the Appellate Court properly determined that the plaintiffs claim against Fleet was barred by the statute of limitations, we decline to address these claims.

       The plaintiff has not alleged that Fleet, or its predecessor in interest, Hartford Federal, fraudulently concealed facts or information from her that would have tolled the statute of limitations.

       There is no dispute that Connecticut General stopped making payments in September, 1990. Indeed, that was the basis for the breach of contract action against Connecticut General, which since has been settled. See footnote 2 of this opinion. We note, however, that “[t]he plaintiff . . . placed in evidence a certificate of disability insurance issued by Connecticut General in 1975 and admitted] that Connecticut General provided disability benefits until 1990.” Tolbert v. Connecticut General Life Ins. Co., supra, 58 Conn. App. 701. Those facts appear to contradict the plaintiffs claim that Hartford Federal breached its contractual obligation to procure an adequate disability policy for her.

       The plaintiffs reliance on this court’s prior decisions in Polizos v. Nationwide Mutual Ins. Co., 255 Conn. 601, 767 A.2d 1202 (2001), and Coelho v. ITT Hartford, 251 Conn. 106, 752 A.2d 1063 (1999), for the proposition that the statute of limitations did not begin to run in this case until September, 1990, when she became aware that the disability payments had stopped, is misplaced. Polizos and Coelho, respectively, were actions for uninsured and underinsured motorist benefits. Aprerequisite to recovery under both causes of action is the denial of coverage under a tortfeasor’s policy. Polizos v. Nationwide Mutual Ins. Co., supra, 610-11. Accordingly, until a plaintiff is aware, or should have been aware, that the tortfeasor either has inadequate insurance, or no insurance at all, the plaintiff legally cannot recover from his or her own insurance company. Id., 611-12. In contrast, in the present case, the plaintiff could have asserted a viable claim against Fleet, or its predecessor, Hartford Federal, any time after September, 1975, when Hartford Federal had procured the disability policy for the plaintiff, whether the policy was adequate or inadequate.

       On appeal to the Appellate Court, the plaintiff changed her breach of contract claim, contending for the first time that Fleet had incurred a continuing duty to provide her with disability insurance, a duty that she maintains Fleet breached in 1990 when her payments were terminated. “This continuing duty language [effectively] . . . transformed the plaintiffs claim from the obligation to perform a distinct task to a continuing duty.” (Emphasis in original.) Tolbert v. Connecticut General Life Ins. Co., supra, 58 Conn. App. 701.