text:
    Maria D’Ulisse-Cupo v. Board of Directors of Notre Dame High School et al.
    (12943)
    Peters, C. J., Dannehy, Santaniello, Callahan and Kline, Js.
    Argued December 4, 1986
    decision released February 3, 1987

      Thomas E. Crosby, for the appellants (defendants).

      Joseph D. Garrison, with whom was Nancy E. Fey, for the appellee (plaintiff).
   Peters, C. J.

This case arises out of the failure of a school board to rehire a nontenured teacher despite representations that she would receive a new employment contract. The plaintiff, Maria D’Ulisse-Cupo, filed a three count complaint against the defendants, the board of directors of Notre Dame High School and the principal of the school, George Schmitz, seeking damages premised on liability for breach of contract and negligent misrepresentation. The trial court rendered judgment against her after granting the motion of the defendants to strike all three counts of her complaint for failure to state a cause of action. Upon appeal to the Appellate Court, that court found error and remanded the case for further trial court proceedings on all counts. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 6 Conn. App. 153, 503 A.2d 1192 (1986). We granted certification at the request of the defendants and now conclude that the Appellate Court’s judgment must be reversed with respect to the plaintiff’s contract counts, so that further trial court proceedings will be limited to the plaintiff’s tort claim only.

Since this appeal is before us pursuant to a motion to strike, we take the facts to be those alleged in the plaintiffs complaint and construe the complaint in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986); Mead v. Bums, 199 Conn. 651, 655, 509 A.2d 11 (1986); Cavallo v. Derby Savings Bank, 188 Conn. 281, 283, 449 A.2d 986 (1982); Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 472, 427 A.2d 385 (1980); Stradmore Development Corporation v. Commissioners, 164 Conn. 548, 550-51, 324 A.2d 919 (1973). “ ‘For purposes of appeal, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . .’ ” Mead v. Burns, supra; DeMello v. Plainville, 170 Conn. 675, 677, 368 A.2d 71 (1976); McAnemey v. McAnerney, 165 Conn. 277, 282, 334 A.2d 437 (1973).

The plaintiff alleged the following facts in her complaint. From September, 1981, to June, 1983, she taught Spanish and Italian to ninth and tenth grade students at Notre Dame High School in West Haven. During that period, she was employed under an employment contract which expired in June, 1983. On or about March 21,1983, the defendant Schmitz, the school principal, orally represented to the plaintiff, during a performance review, that “there would be no problem with her teaching certain courses and levels the following year, that everything looked fine for rehire for the next year, and that she should continue her planning for the exchange program” which she organized for the school. Shortly thereafter, during the week of April 11,1983, Schmitz or his authorized representative posted a written notice on a bulletin board in the school stating: “All present faculty members will be offered contracts for next year.” Upon her return from an exchange trip to Italy, the plaintiff was again informed that she would have a teaching contract for the following year. On or about May 4, 1983, however, the plaintiff was told by school officials that, due to staff cutbacks in various departments, her teaching contract would not be renewed.

The complaint further alleged that Schmitz interviewed the plaintiff for a position in the English department on or about May 27,1983. Schmitz told the plaintiff and other teachers that the defendants would do everything possible to avoid discharging them. Subsequently, instead of hiring the plaintiff for the position available in the English department, the defendants hired an outside applicant for that position. Furthermore, the defendants allegedly failed to explore alternative job opportunities for the plaintiff or to offer her any substitute teaching positions for which she was qualified and available.

The three counts of the plaintiff’s complaint sought recovery of damages on the following legal theories: (1) breach of contract arising out of the defendants’ failure to rehire the plaintiff despite oral and written promises of a new contract, on which the plaintiff relied to her detriment; (2) liability in tort because of negligent misrepresentions that the plaintiff would be rehired to teach for a third year, representations on which the plaintiff relied to her detriment; and (3) breach of contract arising out of the defendants’ oral promises to avoid discharging teachers unnecessarily and to offer the plaintiff substitute teaching positions, promises on which the plaintiff relied to her detriment. The complaint further alleged that, as a result of these wrongful actions by the defendants, the plaintiff suffered the following damages: the stress of unemployment, loss of esteem, damage to her professional career and reputation, lost wages and fringe benefits, and mental and physical pain and suffering.

The defendants moved to strike the complaint on the ground that it failed to state a claim upon which relief could be granted. The trial court granted the motion as to all three counts for reasons articulated in its memorandum of decision. On the first count, which alleged, inter alia, that the plaintiff had been wrongfully discharged, the court concluded that no cause of action had been stated because the doctrine of wrongful discharge protects only employees at will. Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 569, 479 A.2d 781 (1984); Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 477, 427 A.2d 385 (1980). Relying on the allegations in the complaint, the court found that the plaintiff was not an employee at will, but rather an employee hired pursuant to a term contract of fixed duration. The court therefore found that the plaintiff had not been discharged from her employment; she simply had not been rehired upon the expiration of her contract. The court struck the second count, sounding in negligent misrepresentation, because the plaintiff did not allege that the defendants had “fail[ed] to exercise reasonable care or competence in obtaining or communicating the information.” 3 Restatement (Second), Torts (1979) § 552. The court determined that the third count, which alleged a further claim for breach of contract, failed to establish such a claim because there was no allegation that the defendants had offered the plaintiff future employment or that she had accepted such an offer. Alternatively, the court found that the third count failed to state a claim grounded in detrimental reliance because there was no allegation that the defendants, by virtue of their representations to the plaintiff, had “reasonably expect[ed] to induce action or forbearance” of a definite and substantial character. 1 Restatement (Second), Contracts § 90 (1979).

In reviewing the judgment of the trial court, the Appellate Court addressed each count of the complaint separately. The court initially determined that the first count, although cast as a claim for wrongful discharge, was in fact a claim based on a theory of implied contract arising out of the defendants’ alleged promises to rehire the plaintiff. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 157. The complaint contained allegations that the defendants had made representations concerning rehiring and promises that “all present faculty members will be offered contracts for next year.” The court determined that these allegations, coupled with the allegation that the plaintiff had relied on these promises to her detriment, formed the basis of an actionable claim for breach of an implied promise to rehire. Id., 159. With respect to the second count, the court concluded that, even absent formal invocation of all of the language of § 552 of the Restatement Second of Torts (1979), the plaintiffs allegation of negligent misrepresentation was sufficient to withstand a motion to strike. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 160. Addressing the third count, the court found that, although the plaintiff had not pleaded that the defendants “reasonably expected to induce action or forbearance” in making various representations to the plaintiff, that count likewise stated a claim for breach of an implied contract based on a theory of promissory estoppel. Id. The Appellate Court therefore set aside the judgment of the trial court and remanded the case for further proceedings.

In their appeal to this court following our granting of their petition for certification, the defendants challenge each of these conclusions of the Appellate Court. We agree with their claims with regard to the contract counts, counts one and three, but we disagree with respect to the second count alleging liablity for tortious misrepresentation.

I

We will address jointly the defendants’ attack on counts one and three, both of which contest the Appellate Court’s conclusions that the various oral and written representations made by the defendants are promises that are enforceable under the doctrine of promissory estoppel. In contesting the first count, the defendants maintained that the oral and written representations they had made regarding their intent to rehire the plaintiff for a third year did not rise to the level of promises which are enforceable based on detrimental reliance. They further argued that the third count should also be stricken because their subsequent oral representations to the plaintiff, that they would make every effort to avoid discharging teachers and to find alternate employment for the plaintiff, likewise did not amount to promises on which the plaintiff could reasonably have relied. We find both of these arguments persuasive.

Under the law of contract, a promise is generally not enforceable unless it is supported by consideration. E. Farnsworth, Contracts (1982) § 2.9, p. 89; A. Corbin, Contracts (1963) § 193, p. 188. This court has recognized, however, the “development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor; see Restatement (Second), Contracts § 90 (1973).” Sheets v. Teddy’s Frosted Foods, Inc., supra, 475; Hebrew University Assn. v. Nye, 148 Conn. 223, 232, 169 A.2d 641 (1961); see A. Corbin, supra, § 194, p. 193. Section 90 of the Restatement Second states that under the doctrine of promissory estoppel “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all. E. Farnsworth, supra, § 2.19, p. 95.

In reviewing the legal sufficiency of the claims based on detrimental reliance alleged in the first and third counts, the question before us is whether the various oral and written statements made by the defendants constituted promises within the meaning of § 90 of the Restatement Second. Count one alleges three distinct representations on which the plaintiff allegedly relied to her detriment. The first is the defendant Schmitz’s oral representation “that there would be no problem with her teaching certain courses and levels the following year, that everything looked fine for her rehire for the next year, and that she should continue her planning for the exchange program.” The second is the notice posted on the school bulletin board stating: “All present faculty members will be offered contracts for next year.” The third is a subsequent representation to the plaintiff again informing her that she would have a contract for the following year.

We agree with the defendants that these representations do not invoke a cause of action for promissory estoppel because they are neither sufficiently promissory nor sufficiently definite to support contractual liability. The statements alleged to be actionable in the first count were, on their face, no more than representations indicating that the defendants intended to enter into another employment contract with the plaintiff at some time in the future. There is no claim that these representations were not made in good faith. Contrary to the plaintiff’s assertion, these representations manifested no present intention on the part of the defendants to undertake immediate contractual obligations to the plaintiff. See, e.g., Local 1330, United Steel Workers v. United States Steel Corporation, 631 F.2d 1264, 1279 (6th Cir. 1980); Abbington v. Dayton Malleable, Inc., 561 F. Sup. 1290, 1297 (S.D. Ohio 1983), aff' d, 738 F.2d 438 (6th Cir. 1984); A & M Fix It, Inc. v. Schwinn Bicycle Co., 494 F. Sup. 175, 178 (D. Utah 1980); Pacific Cascade Corporation v. Nimmer, 25 Wash. App. 552, 559, 608 P.2d 266 (1980). Furthermore, none of the representations contained any of the material terms that would be essential to an employment contract, such as terms regarding the duration and conditions of the plaintiffs employment, and her salary and fringe benefits. Augeri v. C.F. Wooding Co., 173 Conn. 426, 429-30, 378 A.2d 538 (1977); A. Cor-bin, supra, § 95. At most, the defendants made representations to the plaintiff concerning the expectation of a future contract, but they stopped short of making the plaintiff a definite promise of employment on which she could reasonably have relied.

The oral promises alleged in the third count, on which the plaintiff also claims to have relied to her detriment, are even more tenuous than those alleged in the first count. After determining that student enrollment levels had declined, the defendant Schmitz allegedly told the plaintiff, in May of 1983, that the defendants would do everything possible to avoid discharging teachers. Nonetheless, the defendants subsequently hired an outside applicant, rather than the plaintiff, for a one year position available in the English department. The defendants also failed to offer the plaintiff substitute teaching positions for which she was allegedly qualified and available. At oral argument before this court, although the defendants conceded having made conciliatory statements of this nature to the plaintiff and other teachers, the defendants continued to maintain their position that these representations were not intended as a guarantee of future employment on which the plaintiff or others were intended to rely. Possibly, as the plaintiff contends, the defendants did not do everything within their power to retain the plaintiff as an employee. In light of the vagueness and indefiniteness of their representations, however, and our underlying concern that “courts should not lightly intervene to impair the exercise of managerial discretion”; Sheets v. Teddy’s Frosted Foods, Inc., supra, 477; we conclude that an offer to use best efforts does not, in and of itself, impose contractual liability in the circumstances alleged in this case.

Because we disagree with the Appellate Court in its characterization of the plaintiffs complaint with respect to counts one and three, we reverse its judgment relating thereto. We note, for the sake of completeness, that the plaintiff has abandoned any claim that she may recover from the defendants, under count one, on a theory of wrongful discharge. No further proceedings are warranted, therefore, with respect to counts one and three.

II

The defendants’ final challenge to the judgment of the Appellate Court claims error in its ruling that the second count states a cause of action in tort for negligent misrepresentation. The second count incorporated by reference all but one of the factual allegations detailed in the paragraphs set forth in the first count, and further alleged that “[t]he defendants negligently misrepresented the facts to the plaintiff, causing her damages as pled.” The defendants contend that this count must be stricken because it does not allege that the defendants “fail[ed] to exercise reasonable care or competence in obtaining or communicating the information,” which is the language used in § 552 of the Restatement Second of Torts (1979) to define negligence for purposes of such a claim. According to the defendants, the mere allegation that “[t]he defendants negligently misrepresented the facts to the plaintiff,” even coupled with the facts alleged in the first count in support of that claim, was insufficient to sustain a cause of action for negligent misrepresentation. We disagree.

This court has long recognized liability for negligent misrepresentation. We have held that even an innocent misrepresentation of fact “may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth.” Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 346, 232 A.2d 307 (1967); see also J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 359, 464 A.2d 795 (1983); Johnson v. Healy, 176 Conn. 97, 102, 405 A.2d 54 (1978); Warman v. Delaney, 148 Conn. 469, 473, 172 A.2d 188 (1961); Boucher v. Valus, 6 Conn. Cir. Ct. 661, 665-66, 298 A.2d 238 (1972). The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts (1979): “One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” See also Ultramares Corporation v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931); Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922); W. Prosser & W.P. Keeton, Torts (5th Ed. 1984) § 107, p. 745.

The defendants argue, initially, that if they cannot be held liable in contract for their representations based on promissory estoppel, they likewise cannot be held liable in tort for negligent misrepresentation. For purposes of a cause of action for negligent misrepresentation, however, the plaintiff need not prove that the representations made by the defendants were promissory. It is sufficient to allege that the representations contained false information. The gravamen of the defendants’ alleged negligence is that the defendants made unconditional representations of their plans to rehire the plaintiff, when in fact the defendants knew or should have known that hiring plans would be contingent upon student enrollment levels for the following year. Richard v. A. Waldman & Sons, Inc., supra, 346; 3 Restatement (Second), Torts (1979) § 552, comment. The defendants ultimately relied on declining student enrollment levels as the justification for the staff cutbacks that resulted in the elimination of the plaintiff’s teaching position. If the plaintiff’s complaint otherwise contains the necessary elements of negligent misrepresentation, it survives a motion to strike even though the first and third counts grounded in promissory estoppel must fall.

The defendants further object to the allegation of negligent misrepresentation on the ground that the complaint fails to explain the nature of the defendants’ negligence, and instead alleges, in mere conclusory fashion, that the defendants “negligently misrepresented” certain facts. The defendants insist that the second count is fatally defective because it lacks an express allegation that the defendants “fail[ed] to exercise reasonable care or competence in obtaining or communicating the information.” 3 Restatement (Second), Torts (1979) § 552. They offer no authority, however, for the proposition that the pleader must use the precise language of the Restatement Second to establish a claim for negligent misrepresentation. Although numerous courts have quoted directly from the Restatement Second in describing the elements of an action for negligent misrepresentation, we have discovered no cases, nor have the defendants furnished any, in which a court has struck a claim for negligent misrepresentation merely because the complaint lacked such an allegation. Stagen v. Stewart West Coast Title Co., 149 Cal. App. 3d 114, 119, 196 Cal. Rptr. 732 (1983); Eby v. York-Division, Borg-Warner, 455 N.E.2d 623, 628 (Ind. App. 1983); Tober’s, Inc. v. Portsmouth Housing Authority, 116 N.H. 660, 663, 367 A.2d 603 (1976); Berry v. Playboy Enterprises, Inc., 195 N. J. Super. 520, 531, 480 A.2d 941 (1984), cert. denied, 99 N.J. 231, 491 A.2d 720 (1985); Rosenthal v. Blum, 529 S.W.2d 102, 104 (Tex. Civ. App. 1975). To the contrary, the case law in numerous jurisdictions suggests that courts liberally construe the pleadings in a way so as to sustain such a claim, particularly where the allegations in a complaint indicate, on their face, that an employer failed to exercise reasonable care in making representations to an employee on which the employee relied to his detriment. McAfee v. Rockford Coca-Cola Bottling Co., 40 Ill. App. 3d 521, 527, 352 N.E.2d 50 (1976); Eby v. York-Division, Borg-Warner, supra, 629; Berry v. Playboy Enterprises, Inc., supra, 531-32; see also Muraoka v. Budget Rent-A-Car, Inc., 160 Cal. App. 3d 107, 119, 206 Cal. Rptr. 476 (1984); First National Bank v. Collins, 44 Colo. App. 228, 230, 616 P.2d 154 (1980); Rosenthal v. Blum, supra, 105.

In our view, the plaintiffs allegation that “the defendants negligently misrepresented the facts to the plaintiff” necessarily implied that the defendants did not exercise reasonable care or competence in communicating with the plaintiff about her prospects for reemployment. Although the complaint could have alleged the nature of the defendants’ negligence more precisely, the lack of linguistic specificity does not warrant striking the second count. As the Appellate Court noted, under the rules of practice governing pleading, a party may plead legal effect as long as the pleading “fairly [apprises] the adverse party of the state of facts which it is intended to prove.” Practice Book § 109; see Practice Book § 108. We agree with the Appellate Court that the facts alleged by the plaintiff in this case fairly apprised the defendants of her intent to pursue a claim for negligent misrepresentation. Moreover, if the defendants were in doubt as to the nature of this claim or the legal theory underlying it, they could “have sought a more particular description of the negligence charged” by filing a request to revise. Scribner v. O’Brien, Inc., 169 Conn. 389, 399, 363 A.2d 160 (1975); Practice Book § 147;Fuessenich v. DiNardo, 195 Conn. 144, 148, 487 A.2d 514 (1985); Manning v. Michael, 188 Conn. 607, 617, 452 A.2d 1157 (1982). The defendants in this case never filed such a request. We conclude, therefore, that the Appellate Court correctly determined that the plaintiffs allegation of negligent misrepresentation contained in the second count is sufficient to withstand a motion to strike. We affirm their holding that further proceedings are required on the second count.

The judgment of the Appellate Court is reversed in part and the court is directed to remand the case for further proceedings in the trial court with respect to count two only.

In this opinion the other justices concurred.

       The plaintiff framed the first count, at least in part, as a claim for wrongful discharge. The Appellate Court first interpreted this claim as an allegation of wrongful termination arising out of the defendants’ failure to rehire the plaintiff. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 6 Conn. App. 153, 157, 503 A.2d 1192 (1986). The court therefore analyzed this claim in the context of recent case law in this state addressing the doctrine of wrongful discharge. See Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984); Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980); Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 499 A.2d 64 (1985). The court’s reliance on this line of cases, particularly on Finley v. Aetna Life & Casualty Co., supra, was misplaced because the right to recover in tort for wrongful discharge extends only to employees at will. As a general rule, contracts of permanent employment, or for an indefinite term, are terminable at will. Somers v. Cooley Chevrolet Co., 146 Conn. 627, 629, 153 A.2d 426 (1959); Fisher v. Jackson, 142 Conn. 734, 736, 118 A.2d 316 (1955). The doctrine of wrongful discharge, a narrow exception to this rule, provides that an employer may be liable for discharge of an at will employee at least in cases “where the discharge contravenes a clear mandate of public policy.” Sheets v. Teddy’s Frosted Foods, Inc., supra, 474. The plaintiff in this case, who was employed by the defendants pursuant to a term contract of fixed duration, was not an employee at will. She therefore was not entitled to invoke the doctrine of wrongful discharge.

       The Appellate Court incorrectly analyzed the first and third counts based on a theory of breach of an implied in fact contract. “A contract implied in fact, like an express contract, depends on actual agreement.” Therrien v. Safeguard Mfg. Co., 180 Conn. 91, 94, 429 A.2d 808 (1980); Brighenti v. New Britain Shirt Corporation, 167 Conn. 403, 406, 356 A.2d 181 (1974);
        Corriveau v. Jenkins Bros., 144 Conn. 383, 387, 132 A.2d 67 (1957). Neither the first count nor the third count alleges that the defendants “agreed, either by words or action or conduct, to undertake any form of actual contract commitment” to the plaintiff. Therrien v. Safeguard Mfg. Co., supra, 94-95. Thus, the plaintiffs only viable claim for recovery in contract rests on the doctrine of promissory estoppel. We therefore review the legal sufficiency of the first and third counts by analyzing them as claims based on promissory estoppel.

       The plaintiff seeks to equate this notice with statements regarding terms of employment made by an employer in a personnel policy manual. In Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 520 A.2d 208 (1987), we concluded that it is a question of fact for the jury whether statements made in a policy manual constitute a binding employment contract which modifies an otherwise at will employment relationship. We conclude that in this case the general notice regarding rehiring that was posted on the bulletin board is not the equivalent of such statements made in a policy manual.

       Practice Book § 4013 (a) (1) (formerly § 3012 [a]), made applicable to proceedings after certification by Practice Book § 4140 (formerly § 3158), provides in relevant part: “If the appellee wishes to present for review alternate grounds upon which the judgment may be affirmed, or if he wishes to present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial ... he shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of issues.” An appellee who is aggrieved by the decision of the Appellate Court may file a cross petition for certification within ten days of the filing of the appellant’s petition. Practice Book § 4131 (formerly § 3141); State v. Torrence, 196 Conn. 430, 434 n.6, 493 A.2d 865 (1985); see Hartford v. Freedom of Information Commission, 201 Conn. 421, 433, 518 A.2d 49 (1986). If the plaintiff wished to pursue her claim for wrongful discharge, she should have filed in this court a cross petition for certification, which she failed to do. Moreover, the plaintiff conceded at oral argument that she was not an employee at will. Having been employed under a term contract, she was not within the class of persons protected by the doctrine of wrongful discharge. She further conceded that the use of the term “wrongful discharge” in paragraph twelve of her complaint was inaccurate because she was never discharged; she simply was not rehired upon the expiration of her contract.

       The complaint alleges generally that the “plaintiff relied to her detriment on these representations” and does not specifically describe the nature of the plaintiff's detrimental reliance. The plaintiff explained at oral argument that her reliance was in the nature of forbearance. She did not search for other employment, relying instead on the defendants’ representations that she would be rehired.

       Negligence has been defined as the “failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances . . . .” Black’s Law Dictionary (5th Ed. 1979).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Arthur I. Grayson v. Elyn K. Grayson
    (12836)
    Healey, Shea, Dannehy, Callahan and Pickett, Js.
    Argued November 7, 1986
    decision released February 3, 1987

      Wesley W. Horton, with whom were Susan M. Cormier and, on the brief, Anthony A. Piazza, for the appellant (defendant).

      Lawrence P. Weisman, with whom were Mark Soboslai and, on the brief, Ellen B. Lubell, for the appellee (plaintiff).
   Per Curiam.

This is an appeal from a judgment of the Appellate Court, affirming, by a divided court, a judgment of dissolution of marriage, upon an order of the trial court denying a motion by the defendant to open the judgment.

The plaintiff husband sued for dissolution of marriage on the ground of irretrievable breakdown. The defendant wife counterclaimed for a dissolution of the marriage on the ground of adultery and she also requested alimony. Each of the parties claimed a division of their property.

A trial of the issues framed by the pleadings began on May 26, 1981, before a state trial referee. On the third day of trial a settlement was reached whereby the action for dissolution would be discontinued and an agreement concerning nonmodifiable alimony and the disposition of property would be spread on the record in open court. Both parties stipulated that their marriage had broken down irretrievably and dictated into the record an agreement concerning alimony and the disposition of their property. The court thereupon entered a decree dissolving the marriage on the basis of irretrievable breakdown. The court also found, as the parties had represented, that the settlement agreement was fair and reasonable, and it incorporated the agreement into its decree.

In September, 1981, the defendant moved that the stipulated judgment be opened on the ground that the financial affidavit filed by the plaintiff on May 26,1981, was fraudulent. The plaintiff opposed the motion on its merits. The trial court adopted verbatim the findings of fact as drafted by the plaintiff, found no fraud, and denied the motion. The Appellate Court determined that the decision of the trial court was not clearly erroneous, with one judge dissenting. Grayson v. Grayson, 4 Conn. App. 275, 494 A.2d 576 (1985). The determination was made “after a meticulous examination of the parties’ detailed factual claims and the entire record,” pursuant to which the court “concluded that there was credible evidence for all of the [trial] court’s findings and that the findings were substantially in accord with the opinion.” Id., 285.

We are in agreement with the views expressed by the Appellate Court in its opinion, and it would serve no useful purpose to repeat that court’s discussion here. Our test for clear error on appellate review is, of course, whether the decision of a trial court is supported by credible evidence on the record viewed as a whole. It is a test we have frequently applied. See, e.g., Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 217, 477 A.2d 988 (1984); Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). The Appellate Court applied this standard in reviewing this case and found no error. Although it is deplorable that the trial court adopted verbatim the findings of fact as drafted by the plaintiff, we decline to disturb the Appellate Court’s ruling in light of its application of the proper standard of review. The dissent, faced with a deficient record, advocated changing the standard in reviewing marital dissolution cases from “credible evidence” to “substantial evidence.” Grayson v. Grayson, supra, 297 (Borden, J., dissenting). We see no reason for such a change.

In the light of these considerations and the rulings of the Appellate Court in this case, we do not reach the questions posed by the defendant and dismiss the appeal on the ground that certification was improvidently granted.

The appeal is dismissed.


author: Arthur H. Healey, J.

text:
    State of Connecticut v. Gregory Crumpton
    (12822)
    Peteks, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued December 2, 1986
    decision released February 3, 1987

      Thomas R. Gerarde, assistant public defender, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, were Mark Brodsky, assistant state’s attorney, James G. Clark, deputy assistant state’s attorney, and Robert Emmett Riley, legal intern, for the appellee (state).
   Arthur H. Healey, J.

The defendant, Gregory Crumpton, was convicted by a jury of robbery in the third degree in violation of General Statutes § 53a-136. He was sentenced to imprisonment for a total effective sentence of five years, execution suspended after four years. The defendant appeals from the judgment of conviction claiming that the trial court abused its discretion in denying his motion in limine (1) to prevent his impeachment by the use of evidence of a prior robbery conviction, and (2) in the alternative, to allow the conviction to enter into evidence as an unspecified felony conviction.

The jury could reasonably have found the following facts. On December 1,1984, at approximately 1 a.m., the victim was on her way to visit her brother, Nathaniel Lewis, at his Hartford apartment. As she neared the apartment, a black male grabbed her purse. Because the area was well lit, the victim “got a good look” at the perpetrator. Shortly thereafter, the victim located her brother and described the perpetrator to him. Lewis stated that the description fit a person he knew named Gregory Crumpton, the defendant. Lewis then went to locate the defendant, who lived in the same apartment complex. While in the defendant’s building, Lewis discovered some torn papers bearing his sister’s name. When Lewis located the defendant, and before Lewis said anything to him, the defendant denied taking the purse. After the police arrived, the victim identified the defendant as the person who had taken her purse. She also identified him at the trial. The purse was recovered on the roof of the defendant’s apartment building. Over two hundred dollars reportedly was missing.

According to the victim and Lewis, the defendant denied taking the purse and maintained that he had been home all night. At trial, although the defendant himself did not testify, the defendant’s mother and sister testified consistent with this alibi.

I

The defendant’s first claim of error concerns the trial court’s denial of his motion in limine, by which he sought to prevent the state from mentioning his prior conviction of robbery in the second degree to impeach his testimony.

Before trial, the defendant filed a written motion in limine requesting that, if he should testify, the court prohibit the state from using, for impeachment purposes, any and all prior felony or misdemeanor convictions. At the hearing on the motion, both parties agreed that on December 1,1983, the defendant had been convicted of robbery in the second degree and that the state intended to impeach the defendant’s credibility with this conviction. The defendant argued that the 1983 conviction should be excluded because its prejudicial effect would far outweigh its probative value. The defendant specifically mentioned the potential prejudice because of the similarity of the 1983 crime to the charge for which he was being tried. The state argued that the conviction should be admitted because robbery is a crime involving larceny, and larcenous crimes by their very nature indicate dishonesty. The state argued further that the robbery conviction was highly probative of the defendant’s credibility. The state maintained, therefore, that the probative value of the conviction outweighed its prejudicial effect. After hearing oral argument, the court denied the defendant’s motion. The defendant properly excepted. At trial, the defendant did not testify and the jury returned a verdict of guilty.

As a rule, evidence that a criminal defendant has been convicted of crimes on a prior occasion is not generally admissible. State v. Geyer, 194 Conn. 1, 5, 480 A.2d 489 (1984); State v. Amaral, 179 Conn. 239, 244, 425 A.2d 1293 (1979); C. McCormick, Evidence (3d Ed.) § 43. There are, however, several well recognized exceptions to this rule, one of which is that “[a] criminal defendant who has previously been convicted of a crime carrying a term of imprisonment of more than one year may be impeached by the state if his credibility is in issue.” State v. Harrell, 199 Conn. 255, 260, 506 A.2d 1041 (1986); General Statutes § 52-145 (b); State v. Geyer, supra, 6; State v. Carter, 189 Conn. 631, 642, 458 A.2d 379 (1983); State v. Hamele, 188 Conn. 372, 383, 449 A.2d 1020 (1982); State v. Iasevoli, 188 Conn. 325, 328, 449 A.2d 996 (1982); State v. Nardini, 187 Conn. 513, 521, 447 A.2d 396 (1982); Heating Acceptance Corporation v. Patterson, 152 Conn. 467, 472, 208 A.2d 341 (1965). In its discretion a “trial court may properly admit evidence of prior convictions provided that the prejudicial effect of such evidence does not ‘far outweigh’ its probative value. State v. Geyer, supra, 6-7; State v. Nardini, supra; State v. Marquez, [160 Conn. 47, 52, 273 A.2d 689 (1970)].” State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985). This court has identified three factors which determine whether a prior conviction may be admitted: “(1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime indicating untruthfulness; and (3) its remoteness in time.” State v. Nardini, supra, 522; State v. Harrell, supra, 261. “ ‘A trial court’s decision denying a motion to exclude a witness’ prior record, offered to attack his credibility, will be upset only if the court abused its discretion.’ State v. Binet, 192 Conn. 618, 623, 473 A.2d 1200 (1984); State v. Braswell, [supra]; State v. Bitting, 162 Conn. 1, 10-11, 291 A.2d 240 (1971).” State v. Harrell, supra. We find no abuse of discretion.

While there is no per se rule prohibiting impeachment of a defendant by proof of a prior conviction of a crime similar to that for which he is being tried; State v. Harrell, supra; State v. Binet, supra, 622; “[w]here the prior crime is quite similar to the offense being tried, a high degree of prejudice is created and a strong showing of probative value would be necessary to warrant admissibility.” State v. Nardini, supra; State v. Harrell, supra; State v. Carter, supra, 642-43. This court has recognized that crimes involving larcenous intent imply a general disposition toward dishonesty or a tendency to make false statements. State v. Harrell, supra, 263; State v. Geyer, supra, 12; State v. Carter, supra, 643; accord Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029, 88 S. Ct. 1421, 20 L. Ed. 2d 287 (1968) (“[i]n common human experience acts of deceit, fraud, cheating, or stealing . . . are universally regarded as conduct which reflects on a man’s honesty and integrity”). We note that larceny, which is the underlying crime in any robbery, bears directly on the credibility of the witness-defendant. The defendant’s robbery conviction, therefore, was highly probative of his truthfulness and veracity. In light of the fact that the prior conviction was relatively recent, the likely prejudice arising out of the similarity of the prior conviction to the crime charged did not outweigh the probative value of the evidence. Moreover, the state sought to impeach the defendant with a single prior conviction. A single prior conviction, introduced to impeach a defendant’s credibility, is inherently much less prejudicial to the defendant than the introduction of multiple convictions which may create pressure on jurors to believe that “if he did it before he probably did so this time.” See State v. Carter, supra, 644. “The trial court, because of its intimate familiarity with the case, is in the best position to weigh the relative merits and dangers of any proffered evidence. State v. Carter, supra, 642; State v. Bitting, supra [10].” State v. Geyer, supra, 13. The defendant’s conclusory claim of prejudice, together with the inadequate record he made to support his burden, does not avail him on this claim. The trial court did not abuse its discretion in ruling that the defendant’s prior conviction of robbery in the second degree could be admitted to impeach his credibility.

The defendant also argues that the trial court erred because in denying his motion in limine, it applied the incorrect law. The defendant contends that a review of the transcript reveals that the court may have denied the defendant’s motion because the prior conviction was relevant to establishing a “common scheme,” rather than because its probative value outweighed its prejudicial effect. Assuming without deciding that the court would have been in error had it admitted the prior conviction as evidence of a “common scheme,” we disagree with the defendant’s argument that the court applied the incorrect law. In support of his argument that the court did not apply the balancing test enunciated by this court in Nardini, the defendant points to the trial record and argues that it fails to support a finding that the court applied the Nardini test. We are unpersuaded.

Although the record in this case does not conclusively reveal the basis of the trial court’s decision, the record does show that the appropriate considerations were before the court. The sole basis of the defendant’s motion in limine was that the defendant would be prejudiced by the introduction of the robbery conviction and that this prejudice would far outweigh any relevance the prior conviction might have. At the hearing on the motion, both parties specifically argued the Nardini factors. Defense counsel himself said at that time: “As your Honor knows, the standard of review for excluding this conviction should be whether or not its probative value on the issue of my client’s credibility outweighs or is outweighed by its prejudicial tendency.” He also argued that the “seminal decision in this area is the case of State v. Nardini . . . .’’Moreover, the state did not argue that other grounds existed for the introduction into evidence of the prior conviction. From this, it is fair to assume that the trial court reflected on the appropriate factors; see Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 6, 513 A.2d 1218 (1986); and found that the probative value of the conviction outweighed its prejudicial effect. We do not presume error; the trial court’s ruling is entitled to the reasonable presumption that it is correct unless the party challenging the ruling has satisfied its burden demonstrating the contrary. See id., 7.

The defendant has an obligation to supply this court with a record adequate to review his claim of error. See State v. One 1977 Buick Automobile, 196 Conn. 471, 480, 493 A.2d 874 (1985). “It is important to recognize that a claim of error cannot be predicated on an assumption that the trial court acted erroneously.” Id. If the defendant thought the court was ruling on his motion on some ground other than that advocated by the parties, and alleged in his motion, he could have requested the trial court to articulate its decision. Without such a record and considering the fact that neither party argued a standard other than Nardini, it would be sheer speculation for this court to assume that the trial court applied the incorrect legal standard. The record is clear that the court was aware of the claims of the parties and of the fact that it had to evaluate the prejudicial tendency of the conviction against its probative value. Absent a clear indication that the court did not apply this standard, we conclude that the trial court applied the correct legal standard.

II

The defendant’s second claim of error is that the trial court erred in denying his motion to admit the prior conviction into evidence as an unspecified felony conviction. Following the court’s decision denying the defendant’s motion in limine, the defendant moved orally that the state be precluded from making specific mention of the robbery conviction. The defendant requested that the conviction be entered into evidence as an unspecified felony conviction. The court denied the motion and the defendant excepted.

The defendant argues that because a robbery charge has both an aspect of larceny, which bears on credibility, and an aspect of violence, which is not as probative of credibility, the prior conviction should have been entered as an unspecified felony. State v. Geyer, supra, 16. In State v. Geyer, supra, this court suggested that where a prior conviction does not directly reflect on credibility, it should enter into evidence as an unspecified felony conviction. We decline to extend the holding of State v. Geyer to the facts of this case. As the defendant concedes in his brief, and as the state argued at the trial, the suggestion made by this court in Geyer does not apply to prior convictions which relate to credibility. State v. Geyer involved the introduction of prior narcotics convictions. Those convictions had no direct bearing on the credibility of the defendant but were residual crimes that reflected on the defendant’s bad character. Id., 14-16. In this case, the defendant’s prior robbery conviction related directly to his credibility. The trial court’s decision denying the defendant’s oral motion to enter the prior conviction of robbery in the second degree as an unspecified felony was well within its discretion.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-136 provides: “robbery in the third degree: class D felony, (a) A person is guilty of robbery in the third degree when he commits robbery.
      “(b) Robbery in the third degree is a class D felony.”

       The defendant was convicted of robbery in the second degree in violation of General Statutes § 53a-135 which provides: “robbery in the second degree: class C felony, (a) A person is guilty of robbery in the second degree when he commits robbery and (1) he is aided by another person actually present; or (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.
      “(b) Robbery in the second degree is a class C felony.”

       “motion in limine
      “The defendant, Gregory Crumpton, through his attorney, Thomas R. Gerarde, respectfully moves this court to exclude from evidence any and all prior felony or misdemeanor convictions. In support of this motion the defendant states:
      “1. The defendant would be prejudiced by the introduction of prior felony or misdemeanor convictions to impeach his credibility as a witness.

        “2. This prejudice far outweighs any relevance the prior convictions may have.
      “3. No other grounds exist for the introduction into evidence of the defendant’s prior convictions.
      “wherefore, the defendant requests this court to grant his motion in limine.”

       In Luce v. United States, 469 U.S. 38, 43, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984), the United States Supreme Court ruled that “to raise and preserve for review [a] claim of improper impeachment with a prior conviction, a defendant must testify.” In State v. Harrell, 199 Conn. 255, 265, 506 A.2d 1041 (1986), this court stated that “we will follow the ruling of Luce v. United States, [supra], prospectively only.” The basis for the prospective application of Luce is so “that those defendants who have relied on previous decisions of this court that did not require a defendant to testify will not be prejudiced by this rule.” State v. Harrell, supra, 267. In this case, the defendant’s trial was held after the decision in Luce v. United States, but before our decision in State v. Harrell. The fact that the defendant did not testify at trial does not, therefore, preclude this court from reviewing his claim of error.

       General Statutes § 52-145 provides: “certain witnesses not disqualified. credibility, (a) A person shall not be disqualified as a witness in any action because of, (1) his interest in the outcome of the action as a party or otherwise, (2) his disbelief in the existence of a supreme being, or (3) his conviction of crime.
      “(b) A person’s interest in the outcome of the action or his conviction of crime may be shown for the purpose of affecting his credibility.”

       We agree with the Appellate Court’s statement that “ ‘[a] prior conviction of robbery with violence is inextricably interwoven with the crime of larceny and implies a lack of veracity. It, therefore, is directly relevant to a determination of the credibility of a defendant-witness.’ ” State v. DelVecchio, 7 Conn. App. 217, 220, 508 A.2d 460 (1986), quoting State v.
        Kuritz, 3 Conn. App. 459, 461, 489 A.2d 1053 (1985); State v. Jackson, 3 Conn. App. 132, 135 n.2, 485 A.2d 934 (1985).

       At the time oí trial, the prior conviction of robbery in the second degree was less than fourteen months old. In his brief, the defendant does not claim that the conviction was remote and therefore less probative than a more recent conviction.

       The facts of this case are unlike the facts of State v. Martin, 201 Conn. 74, 513 A.2d 116 (1986). In Martin, the record clearly indicated that the trial court had applied the incorrect legal standard.

       In State v. Geyer, 194 Conn. 1, 16, 480 A.2d 489 (1984), we said: “We note, however, that the prudent course for a trial court faced with a decision whether to admit as evidence of credibility prior convictions for crimes that do not directly reflect on credibility is to allow the state to mention that the defendant was convicted of an unspecified crime or crimes carrying a penalty of more than one year, at a certain time and place. The defendant’s character, from which the jury might draw an inference of dishonesty, would thus be sufficiently impugned without the extraordinary prejudice that sometimes follows when the prior crime is specifically named.” (Emphasis added.)


author: Shea, J.

text:
    Atlantic Richfield Company v. Canaan Oil Company et al.
    (11761)
    Peters, C. J., Healey, Shea, Dannehy and Cioffi, Js.
    Argued November 12, 1986
    decision released February 3, 1987

      Michael F. Dowley, for the appellant-cross appellee (defendant Waterbury Petroleum Products, Inc.).

      Richard W. Tome, with whom, on the brief, was John N. Montalbano, for the appellee-cross appellant (plaintiff).
   Shea, J.

The plaintiff Atlantic Richfield Company (ARCO) sued the defendants Canaan Oil & Fuel Company, Canaan Oil Company, and Geoffrey S. Smith, Jr., the president of Canaan Oil & Fuel Company, for the balances due both on a promissory note payable to ARCO and on the sale of petroleum products, an aggregate amount of $49,725.52. Default judgments were rendered against those defendants, who are not involved in the present appeal. ARCO also sued the defendant Waterbury Petroleum Products, Inc. (the defendant), as guarantor of the Canaan companies’ outstanding indebtedness. The defendant filed a counterclaim on the basis of the refusal of ARCO to extend certain discounts and credit privileges for the defendant’s purchases of fuel. After a trial to a jury, the court, Edelberg, J., rendered judgment in accordance with verdicts for the defendant on the complaint and for the plaintiff on the counterclaim. In its appeal the defendant raises various claims of error relating to the trial court’s (1) jury instructions, (2) rulings that generally precluded the introduction into the case of references to federal energy regulations and federal court decisions, and (3) refusal to allow the defendant to call the plaintiff’s counsel as a witness. The plaintiff has cross appealed from the directed verdict in favor of the defendant on the allegation of the complaint that the defendant had guaranteed the indebtedness of the Canaan companies, and from certain rulings concerning discovery and the pleadings. We find no error in either the appeal or the cross appeal.

On August 21, 1969, the Canaan companies and Geoffrey S. Smith, Jr., executed a promissory note payable to ARCO in the amount of $50,000. Canaan Oil Company also became indebted to ARCO under various distributorship agreements. On August 14, 1975, the defendant purchased the assets of the Canaan Oil Company. ARCO alleges that in this transaction the defendant agreed to guarantee Canaan Oil Company’s outstanding debt to ARCO, and that, in consideration of such agreement, ARCO entered into distribution contracts with the defendant. ARCO brought the present action upon the defendant’s subsequent refusal to pay Canaan Oil Company’s debt. The defendant counterclaimed that by demanding more than the distributor price for fuel, and by withdrawing the defendant’s line of credit, ARCO had breached its contract, harassed the defendant, intentionally interfered with its business, furthered a conspiracy to so interfere and committed violations of our state antitrust and unfair trade practices statutes.

I

We first dispose of the defendant’s claims on appeal.

A

The defendant claims initially that the trial court failed to instruct the jury that ARCO had the burden of proving its special defenses to the counterclaim. To the counterclaim counts of breach of contract, harassment, intentional interference with business and unfair trade practices, the plaintiff pleaded as a special defense that “[wjhatever actions were taken by [the] plaintiff were legitimate, lawful and proper actions in the assertion of its legitimate business and contractual rights and interests and, accordingly, are not actionable.” To all but the first count, the plaintiff also pleaded that the statute of limitations barred such claims.

A party may properly be assigned the burden of proving the facts that he affirmatively asserts to be true. Coogan v. Lynch, 88 Conn. 114, 116, 89 A. 906 (1914). A party who pleads a special defense “ ‘presumably does so with the idea of making his defense appear to be stronger and more aggressive, and invites the court to charge that he has assumed the affirmative upon that particular issue . . . . ’ Coogan v. Lynch, [supra].” Rix v. Stone, 115 Conn. 658, 664, 163 A. 258 (1932).

In the present case the court appears to have applied this principle by instructing the jury as follows: “Now, with respect to the material allegations of the complaint and special defenses to the counterclaim, which have not been admitted in the answer or reply of the defendant’s, the plaintiff has the burden of proving them.” At a later point in the charge the court gave a similar instruction imposing the burden of proof on the plaintiff: “In this case, it is not incumbent upon the defendant to disprove the essential elements of the plaintiff’s cause of action or special defenses to the counterclaim, but on the contrary the burden of proof is on the plaintiff . . . . ” In its brief the defendant refers to two additional instructions on the burden of proof that are inconsistent with those we have recited. In excepting to the charge as given, however, the defendant’s counsel failed to point out specifically these inconsistent instructions, declaring vaguely that he was “not so certain” that the court had allocated the burden of proof to the plaintiff. This imprecise reference did not reasonably alert the court to the deficiencies in the charge now advanced. Counsel thus failed to “state distinctly the matter objected to and the ground of objection” as required by Practice Book § 315 for appellate review. The contention of the defendant, therefore, warrants no further consideration.

B

The defendant next challenges the trial court’s instructions on its CUTPA claim. Embodying the core proscription of General Statutes §§ 42-110a through 42-110q, the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b (a) states: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Claiming that the trial court’s jury charge with respect to its CUTPA claim was “too limiting,” the defendant refers to that portion of the instruction in which the court read to the jury § 42-110b (a) and then stated: “It would appear that if any one or more of the acts alleged in [the CUTPA count] of the counterclaim were immoral, unethical, oppressive or unscrupulous and caused substantial harm to the defendant, that act or those acts would be violative of § 42-110b.”

The ground of the defendant’s objection to the above instruction at trial was that a violation of CUTPA “is not merely limited to the four examples which your Honor gave [i.e., immoral, unethical, oppressive or unscrupulous acts], but rather . . . these unfair trade practices are to be governed by the cases and common law as developed by the federal statutes and the cases underneath them.” Counsel for the defendant focused his oral argument on this claim upon a discussion of the similar theme that “[i]t’s more than merely oppressive, immoral, unethical conduct, but it includes that which is unfair and deceptive. And [the court] didn’t really charge on unfair and deceptive.”

General Statutes § 42-110b (b) states: “It is the intent of the legislature that in construing subsection (a) of this section, the commissioner and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5 (a) (1) of the Federal Trade Commission Act (15 U.S.C. 45 (a) (1)), as from time to time amended.” “We followed this mandate recently, and adopted the criteria set out in the ‘cigarette rule’ by the federal trade commission for determining when a practice is unfair: ‘(1) [W]hether 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).

Contrary to the claim of the defendant, the trial court’s jury charge did refer adequately to the criteria developed under the federal unfair trade practices legislation. The factors “immoral, unethical, oppressive, or unscrupulous,” comprise one of the federal criteria for determining when a practice is unfair. The defendant’s further contention that the jury charge omitted reference to a practice “which is unfair and deceptive” also lacks merit, because the court both read to the jury § 42-110b (a), which proscribes “unfair or deceptive acts,” and delineated many of the more specific considerations necessary to a determination of statutory unfairness. “The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. Borsoi v. Sparico, 141 Conn. 366, 371, 106 A.2d 170 [1954]. Since the charge was sufficiently correct in law, adapted to the issues and ample for the guidance of the jury, it met the required test.” DeCarufel v. Colonial Trust Co., 143 Conn. 18, 20-21, 118 A.2d 798 (1955); see also State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (1985); Nichols v. Coppola Motors, Inc., 178 Conn. 335, 346, 422 A.2d 260 (1979).

Apart from withstanding the limited force of the defendant’s exception at trial, the court’s jury instructions on CUTPA also covered the substance of the defendant’s generalized request to charge, which, in relevant part, was as follows: “(a) [CUTPA] prohibits unfair or deceptive practices in a trade or commerce causing a loss to a party; (b) If you find by a fair preponderance of the evidence that ARCO’s conduct in dealing with its distributor, Waterbury Petroleum, was unfair or deceptive and not a proper business practice, then you shall return a verdict in favor of Waterbury Petroleum . . . and should you find otherwise, your verdict shall be in favor of ARCO.” “Our courts have long recognized that a request of the type made here ‘hinders rather than helps’ the trial court in determining whether a particular instruction should be given.” State v. McIntosh, 199 Conn. 155, 161, 506 A.2d 104 (1986). Under Practice Book § 316, “[a]ny party intending to claim the benefit of . . . any specific statute shall file a written request to charge on the legal principle involved.” “The phrase ‘on the legal principle involved’ requires more than a mere reference to, or quotation of, the statute coupled with a statement that its violation . . . in a situation governed by it” would necessitate a particular verdict. Lowell v. Daly, 148 Conn. 266, 269-70, 169 A.2d 888 (1961). Rather, § 316 “calls for a request explaining the meaning and interpretation of the statute in the light of the claims of proof in the case.” Id., 270. Having failed to provide such an explanation, the defendant cannot prevail in its attack upon the generality of the language used in the charge.

Because the defendant’s objection to the jury charge on CUTPA was solely upon the ground we have rejected, that it failed to include adequate references to the terminology “unfair or deceptive” and to federal applications of such terminology, we need not consider whether other aspects of the charge were defective. See Moore v. McNamara, 201 Conn. 16, 30, 513 A.2d 660 (1986). Practice Book § 3063 (now § 4185) clearly relieves this court of any obligation to consider a claim “not distinctly raised at trial.” State v. Rogers, 199 Conn. 453, 461, 508 A.2d 11 (1986). At no time during the trial did the defendant alert the court to the precise claim raised in its brief on appeal that satisfying any one of the three criteria set out in the cigarette rule would constitute a violation of CUTPA, whereas the court “charged that a practice would both have to be immoral, unethical, oppressive or unscrupulous and cause substantial harm to [the defendant].” (Emphasis in original.) “That the defendant objected does not change this principle. The defendant’s failure to raise distinctly in the trial court the grounds upon which he now relies effectively deprived the trial court of the opportunity to consider the matter in the first instance.” State v. Rogers, supra, 462.

It is true that this court has acknowledged the statement of the Federal Trade Commission (FTC) that all three criteria set out in the cigarette rule “ ‘do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.’ ” McLaughlin Ford, Inc. v. Ford Motor Co., supra, 569 n.15, quoting Statement of Basis and Purpose, “Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures,” 43 Fed. Reg. 59,614, 59,635 (1978). We note, however, that the phrase “or because to a lesser extent it meets all three” suggests that conjunctive linkage may be appropriate in certain cases. Further, in his article, “The Meaning of ‘Unfair Acts or Practices’ in Section 5 of the Federal Trade Commission Act,” 70 Geo. L.J. 225, 285 (1981), Neil Averitt, a member of the planning staff of the commission’s bureau of competition, summarized that under the cigarette rule “[t]he propriety of commercial conduct was to be judged by considering whether it (1) caused substantial consumer injury; (2) violated established public policy; and (3) was immoral or unscrupulous.” (Emphasis added.) Moreover, in 1980 the commission “reviewed those factors and concluded that ‘[ujnjustified 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. “[Tjhe Commission explained that regulation is permissible only if a practice causes [unjustified] injury that is substantial . . . . ” Id. Because “unjustified injury” may reasonably be seen, with no great sacrifice of lexicographic integrity, as flowing from conduct that is “immoral, unethical, oppressive or unscrupulous,” the trial court’s jury charge in the present case appears consistent with some of the current federal definitions of “unfair” acts or practices. Cf. A.F.M. Corporation v. Corporate Aircraft Management, 626 F. Sup. 1533, 1549-51 (D. Mass. 1985); but see Puretest Ice Cream, Inc. v. Kraft, Inc., 614 F. Sup. 994, 996 (D. Mass. 1985).

This court may in the interests of justice notice plain error not brought to the attention of the trial court. Practice Book § 4185; Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 14 n.9, 513 A.2d 1218 (1986). In light of the foregoing, and because, in any event, the defendant points to nothing in the record to support a conclusion that the jury likely found it had satisfied even one of the relevant tests for proving a violation under CUTPA, we fail to perceive any manifest injustice to the defendant resulting from the trial court’s charge that would warrant our application of the plain error doctrine. See State v. Utz, 201 Conn. 190, 202, 513 A.2d 1191 (1986).

C

The defendant next claims that the court erroneously limited the jury’s consideration to acts occurring “after June 1, 1976,” approximately three years before the defendant filed its counterclaim. The defendant points to the six year limitation upon actions for breach of written contracts prescribed by General Statutes § 52-576, and to this court’s interpretation in Handler v. Remington Arms Co., 144 Conn. 316, 130 A.2d 793 (1957), of a predecessor statute to General Statutes § 52-577, which provided that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” In Handler v. Remington Arms Co., supra, 321, we held that “[w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed.”

Our review of the trial transcripts indicates that, in response to the plaintiff’s special defense, the court imposed the June 1,1976 cutoff date referred to by the defendant only with respect to its CUTPA claim. Because General Statutes § 42-110g (f) prescribes a three year limitation upon actions claiming a violation of CUTPA, the defendant’s reliance on any other statute of limitations is unfounded. .

D

A further contention of the defendant is essentially that federal energy regulations and federal court decisions ought to have been admitted in evidence for the purpose of aiding in the interpretation of the parties’ contract and guiding the determination of whether unfair trade practices had been committed. It is a basic principle that a complainant may prevail only upon the grounds of recovery that he has alleged. Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983); see also Lamb v. Burns, 202 Conn. 158, 172, 520 A.2d 190 (1987). The defendant’s counts alleging ARCO’s breach of contract and unfair trade practices incorporated claims that ARCO had breached its obligations under “federal guidelines” and “standards established by the federal government.” At trial the court ruled that “the claims concerning violations under federal regulations are exclusively in the jurisdiction of the federal courts,” and subsequently ordered the deletion of any references in the counterclaim to such violations.

The federal violations alleged by the defendant concerned regulations promulgated pursuant to the Emergency Petroleum Allocation Act of 1973, 15 U.S.C. §§ 751 through 760h, Pub. L. No. 93-159, 81 Stat. 628 (1973), and the Economic Stabilization Act of 1970 as amended, Pub. L. No. 92-210, 85 Stat. 743 (1971). Section 211 (a) of the latter act, incorporated by reference in the former act; 15 U.S.C. § 754 (a) (1) (A); provides in part: “The district courts of the United States shall have exclusive original jurisdiction of cases and controversies arising under this title, or under regulations or orders issued thereunder, notwithstanding the amount in controversy . . . . ” See Society of New York Hospital v. Associated Hospital Service, 367 F. Sup. 149, 151 n.2 (S.D.N.Y. 1973); Prairie States Petroleum Co. v. Universal Oil Sales Corporation, 88 Ill. App. 3d 753, 757, 410 N.E.2d 1008 (1980). It is clear that the trial court thus properly concluded from the express language of § 211 (a) that, insofar as the violations alleged in the counterclaim of “federal guidelines” and “standards established by the federal government” are concerned, the federal government has preempted the field and has made the jurisdiction of the federal courts of matters arising under the foregoing acts exclusive. The trial court therefore cannot be said to have erred in refusing to consider the federal claims set forth in the defendant’s counterclaims. Cf. Ellis v. Illinois Commerce Commission, 44 Ill. 2d 438, 443, 255 N.E.2d 417 (1970).

The defendant’s related contention is that the court erred in denying its request that judicial notice be taken of the federal regulations enumerated in its counterclaim. Federal statutes and the regulations issued thereunder may be judicially noticed. Powers v. Powers, 186 Conn. 8, 10, 438 A.2d 846 (1982); Theron Ford Co. v. Home Owners’ Loan Corporation, 120 Conn. 250, 252, 180 A. 448 (1935). The doctrine of judicial notice, however, “does not obviate the necessity for the proper framing of issues, whether of fact or of law.” Fagan v. Bridgeport, 13 Conn. Sup. 75, 78 (1944). “Facts cannot be proven by evidence or established by judicial notice until and unless they are properly pleaded . . . . ” Frasca v. Basile, 27 Conn. Sup. 292, 294, 236 A.2d 925 (1967).

With respect to the defendant’s contract claim, the court addressed the defendant thus: “It is abundantly clear that all you allege here is that the federal guidelines had been violated. You do not in any way say it violated any of the terms of the contract itself, neither the contract of August 22, 1975, nor any other contract.” We agree with this analysis of the defendant’s pleading. The court consequently ruled correctly against taking judicial notice of the federal regulations as they pertained to the contract claim.

Turning to the CUTPA claim, we note preliminarily that, because General Statutes § 42-110b (b) prescribes that courts of this state shall be guided in construing CUTPA by federal interpretations of the Federal Trade Commission Act, such use of these interpretations in CUTPA litigation ought not be problematic. Indeed, the language used by the trial court in its jury charge regarding CUTPA, as stated above, indicated a proper reliance on federal constructions of the phrase “unfair acts or practices.” The defendant, however, requested judicial notice of regulations promulgated under other federal legislation that, as pleaded, could only have provided a basis for the direct adjudication of federal claims. Thus, the trial court properly refused to notice judicially the federal regulations presented by the defendant.

E

The defendant’s final claim is that the court erred in precluding it from calling the plaintiff’s trial counsel to the stand to testify regarding an alleged conspiracy between the plaintiff and a competitor of the defendant. Under Disciplinary Rule 5-102 (B) of the Code of Professional Responsibility, a lawyer who may be called as a witness other than on behalf of his client may continue the representation only “until it is apparent that his testimony is or may be prejudicial to his client.” “If by merely announcing his intention to call opposing counsel as a witness an adversary could thereby orchestrate that counsel’s disqualification under the Disciplinary Rules, such ‘a device’ might often be employed as a purely tactical maneuver. Clearly, however, these Rules were not designed to be used as tools of litigation strategy. Therefore, whenever an adversary declares his intent to call opposing counsel as a witness, prior to ordering disqualification of counsel, the court should determine whether counsel’s testimony is, in fact, genuinely needed.” Connell v. Clairol, Inc., 440 F. Sup. 17, 18 n.l (N.D. Ga. 1977). The trial court in the present case based its decision on such a determination. Finding that the defendant had produced evidence neither of the participation of the plaintiffs counsel in any aspect of a conspiracy nor of a conspiracy at all, the court rejected the defendant’s request as furthering nothing more than a “fishing expedition.” We conclude that the court correctly required independent evidence of the alleged conspiracy as a requisite to the determination of “whether counsel’s testimony is, in fact, genuinely needed.” It is elemental that fishing expeditions cannot provide a basis for the disqualification of opposing counsel.

II

In the cross appeal ARCO claims that the court erred: (1) in directing a verdict in favor of the defendant on the claim that the latter had guaranteed the indebtedness of the Canaan companies; (2) in refusing to impose sanctions on the defendant for its noncompliance with the plaintiff’s discovery requests; (3) in refusing to strike the defendant’s counterclaim for improper joinder; and (4) in striking certain of the plaintiff’s defenses to the counterclaim. Because the plaintiff failed to file a motion to set aside the verdict, we shall not provide a full review of its claims of error.

Practice Book § 320 provides in part that “motions to set aside a verdict . . . must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered . . . . ” General Statutes § 52-228b provides in part that “[n]o verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court.” “The evident purpose of [§ 52-228b] is to provide an opportunity for the trial court to pass upon claims of error which may become the subject of appeal. This procedure is not a mere superfluity with respect to rulings made at trial .... To require a written motion to set aside a verdict as a prerequisite to consideration on appeal of trial rulings assigned as error . . . also serves to implement our policy against review of questions not distinctly raised in the trial court. Practice Book § 3063 [now § 4185].” Pietrorazio v. Santopietro, 185 Conn. 510, 514-15, 441 A.2d 163 (1981). Accordingly, we are limited in our consideration of the issues raised in this cross appeal to ascertaining whether there has been “plain error.” Practice Book § 3063 (now § 4185); Pietrorazio v. Santopietro, supra, 515.

We fail to discern plain error in any of the trial court’s rulings challenged by the plaintiff. The court granted the defendant’s motion for a directed verdict regarding the claim of its guarantee of the Canaan companies’ indebtedness because the plaintiff had not produced sufficient evidence that it had met a condition precedent to the guarantee. The agreement of August 14, 1975, between Canaan Oil Company and the defendant, which contained the terms of such guarantee, was expressly conditional upon ARCO’s assent to Canaan’s assignment to the defendant of its “authorized distributor agreement,” and upon ARCO’s further assent “to an extension of two (2) years of said agreement from April 30, 1976.” Because distributor agreements between the defendant and ARCO were renewed only for one year terms in August, 1976, and again in 1977, whereas a reasonable interpretation of the contract language may have been that the two year extension had to be in effect by April 30, 1976, the court’s direction of a verdict did not constitute plain error.

The permissive language of Practice Book § 231 allows the trial court broad discretion in deciding whether to impose sanctions on a party for failure to comply with discovery requests. That the discovery requests at issue involved the defendant’s claimed damages is dispositive of the plaintiff’s second contention that the court erred in its refusal to impose sanctions. Apart from the merits of the request for such sanctions, it would be ludicrous to contend that this refusal could have resulted in any manifest injustice to the plaintiff, when the jury’s verdict in favor of the plaintiff on the counterclaim removed the defendant’s claimed damages from the case.

Neither do we find plain error in the decision of the trial court, Aspell, J., that the defendant’s counterclaim arose out of the transactions that comprised the subject of the plaintiff’s complaint and thus had been properly joined. Practice Book § 116 provides in relevant part that “[i]n any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff . . . provided that each such counterclaim . . . arises out of the transaction or one of the transactions which is the subject of the plaintiff’s complaint. . . .” Section 116 “is a common-sense rule designed to permit the joinder of closely related claims where such joinder is in the best interests of judicial economy.” Jackson v. Conland, 171 Conn. 161, 166, 368 A.2d 3 (1976). Because the plaintiff’s complaint and the defendant’s counterclaim alleged breaches of the same contract, it was certainly not plainly erroneous for the trial court to find a relation between the two actions close enough to warrant joinder.

Finally, the plaintiff claims error in the ruling of the trial court, Mulcahy, J., granting the defendant’s motion to strike its special defenses alleging that the defendant was barred by the principles of collateral estoppel and res judicata from relitigating certain claims brought by the defendant in previous actions against third parties. The plaintiff does not dispute the court’s finding that “ARCO [was] neither a party to any of the other actions nor ... in privity with any of the parties to those law suits.” “A final judgment on the merits is conclusive on the parties in an action and their privies as to the cause of action involved .... Collateral estoppel is that aspect of res judicata which is concerned with the effect of a final judgment on the subsequent litigation of a different cause of action involving some of the issues determined in a former action between the parties.” Corey v. Avco-Lycoming Division, 163 Conn. 309, 317, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); Doran v. Doran, 3 Conn. App. 277, 280, 487 A.2d 1106 (1985). It was clearly not plain error for the court to adhere to established precedent. We find no error on the cross appeal.

There is no error.

In this opinion the other justices concurred.

       Practice Book § 3063 provided: “The 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.” The present case was tried in 1982. Although it was not until 1983 in the case of Conaway v. Prestia, 191 Conn. 484, 464 A.2d 847 (1983), that this court first had occasion to recognize the cigarette rule, the delineation of the rule at the federal level preceded the trial by several years. See FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244-45 n.5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972); 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). Thus we do not consider the defendant’s claim regarding the rule raised for the first time on appeal to be one that “arose subsequent to the trial” under § 3063.

       Paragraph six of the defendant’s first count of its counterclaim, incorporated by reference into all other counts, contained in the defendant’s third amended answer, read as follows:
      “6. Despite Waterbury Petroleum’s readiness and willingness to perform the terms of said Agreements, ARCO, during the period August 1975 to the present, has breached the terms of said Agreements in several respects, all to Waterbury Petroleum’s loss and damage in that ARCO:
      “(a) Contrary to regular business practice and contrary to the standards established by the federal government, required all motor gasoline to be sold and delivered to Waterbury Petroleum in ARCO’s trucks and at much greater costs than the contract price. Federal government standards contravened were those set forth at 10 CFR §§ 210.61, 210.62, and 210.63.
      “(b) Contrary to regular business practice of ARCO and contrary to the federal guidelines, required each payment for oil and gasoline to be made by certified check, not even accepting ARCO credit card charge slips. Federal guidelines contravened were those set forth at 10 CFR §§ 210.61, 210.62, and 210.63.
      “(c) Contrary to federal guidelines, ARCO unilaterally increased the purchase price of gasoline by 2.5 cents over the distributor price, all to Waterbury Petroleum’s loss. Federal guidelines contravened were those set forth at 10 CFR §§ 210.61, 210.62, and 210.63.”

       In its brief on appeal, the defendant has intertwined certain stray contentions of which we summarily dispose. First, the defendant claims that the court erroneously precluded it from introducing evidence of its trade classification. The record reveals, however, that the court in fact overruled the plaintiffs objection to such introduction and allowed questioning regarding the distinction between a “distributor” and a “contract dealer.” Second, the defendant asserts that the court erroneously “ordered the antitrust act out of the case for all purposes, even the allegations of the CUTPA count.” See General Statutes §§ 35-24 through 35-49. Because the defendant does not allege it was precluded from introducing evidence of the plaintiffs actual conduct that might have constituted an antitrust as well as a CUTPA violation, we fail to perceive any prejudice to the defendant in pursuing its CUTPA or contract claims from this ruling.
      The defendant further objects to the court’s instruction to the jury that “you are to dismiss . . . from your mind any references of claims that were filed by Waterbury Petroleum against [ARCO] before the Federal Regulatory Agency . . . . ” See Atlantic Richfield Co. v. Department of

        Energy, 655 F.2d 227 (Temp. Emer. Ct. App. 1981). The court, in its discretion, may conditionally admit evidence upon representations that its relevancy will later be established. Steiber v. Bridgeport, 145 Conn. 363, 366-67, 143 A.2d 434 (1958); C. Tait & J. LaPlante, Handbook of Connecticut Evidence (1976) § 3.4 (d). At trial, the court did admit evidence offered by the defendant of the defendant’s own action in filing a federal claim, because it might possibly have proved relevant with respect to ARCO’s “motivation for harassment, for unfair business practices . . . .” The court did not abuse its discretion in subsequently precluding consideration of such evidence, perhaps on the ground that its potential for creating confusion of the issues outweighed any probative value it might have had.
      Finally, we decline to consider the defendant’s cryptic claim that the court erroneously instructed the jury that as a matter of law the defendant had released a 1969 agreement with ARCO. When the court, during the trial, anticipated it would so instruct the jury “at the appropriate time,” counsel for the defendant indicated his intention to take an exception. After the charge had been delivered, however, the defendant did not take any exception to that portion of the charge.

       See Galarowicz v. Ward, 119 Utah 611, 620, 230 P.2d 576 (1951), stating: “Apparently, the object of this precept is to avoid putting a lawyer in the obviously embarrassing predicament of testifying and then having to argue the credibility and effect of his own testimony. It was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him as counsel.”


text:
    Nicola Melia v. Hartford Fire Insurance Company
    (12813)
    Peters, C. J., Healey, Shea, Dannehy and Glass, Js.
    Argued December 3, 1986
    decision released February 10, 1987

      James F. Stapleton, with whom, on the brief, were Thomas J. Byrne and Stefan R. Underhill, for the appellant (defendant).

      Frank W. Murphy, with whom, on the brief, were Reuben S. Midler and Cynthia A. Martin, for the appellee (plaintiff).
   Shea, J.

This action was brought upon a fire insurance policy issued by the defendant on January 16, 1981, to protect the plaintiff against loss by fire to his building at 430 Elm Street in Stamford, which was substantially damaged in a fire that occurred on March 23, 1981. The complaint claimed liability on the policy in the first count and in the second count sought damages because the defendant had allegedly refused to pay the fire loss without proper cause and thus had failed to act in good faith and to deal fairly with its insured. In answering the complaint, the defendant admitted its issuance of the policy but denied the remaining allegations. The defendant also pleaded wilful concealment and material misrepresentations by the plaintiff as a special defense, which the plaintiff denied.

On June 21, 1985, in accordance with the plaintiff’s request, the trial court ordered the defendant to produce its claims file for inspection by the plaintiff, overruling objections of the defendant based upon the attorney-client privilege and the “work product” doctrine. See Hickman v. Taylor, 329 U.S. 495, 504-14, 67 S. Ct. 385, 91 L. Ed. 451 (1947). After its motion to open that “judgment” had been denied on July 29, 1985, the defendant appealed.

On its own initiative this court raised the question of whether the appeal had been taken from a final judgment, a necessary prerequisite to our jurisdiction. We conclude that the disclosure order appealed from does not constitute a final judgment and that the appeal must accordingly be dismissed for lack of jurisdiction.

The defendant recognizes that our jurisdiction is restricted ordinarily to appeals from judgments that are final. See General Statutes §§ 51-199, 52-263. It maintains, however, that our authority to construe the statutory term “final judgment” has been exercised on some occasions to allow appeals from orders of the trial court that are essentially interlocutory. This contention is undoubtedly sound, because, “[i]n both criminal and civil cases ... we have determined certain interlocutory orders and rulings of the Superior Court to be final judgments for purposes of appeal.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). We have set forth two circumstances under which an otherwise interlocutory order may be appealed: “(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id.

The defendant does not claim that the first Curcio alternative, termination of a separate and distinct proceeding, is applicable to this appeal from a disclosure order. It relies wholly on the second, claiming that its rights under the attorney-client privilege and the related work product doctrine will be inalterably concluded if it must, without appellate review, comply with the order by making the requested documents available to the plaintiff.

“An order issued upon a motion for discovery is ordinarily not appealable because it does not constitute a final judgment, at least in civil actions.” Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478 (1980). This court has previously dismissed appeals from discovery rulings that, if erroneous, would have compelled those subject to the order to reveal information they were entitled by law to withhold. Barbato v. J. & M. Corporation, 194 Conn. 245, 478 A.2d 1020 (1984) (appeal from order compelling testimony where witness attempted to invoke privilege against self-incrimination); Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., supra (appeal from sanctions imposed for refusal of defendant garnishee to produce documents).

The federal courts have held similarly that, because most discovery orders do not finally dispose of the proceeding, they are not appealable as final judgments. Cogen v. United States, 278 U.S. 221, 223-24, 49 S. Ct. 118, 73 L. Ed. 275 (1929); 4 J. Moore, Federal Practice (2d Ed. 1986) § 26.83[3]. A federal statute creates an exception to the final judgment rule, however, and authorizes the courts of appeals to exercise discretionary jurisdiction over appeals from interlocutory orders of the district court when that court certifies that the order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation . . . .” 28 U.S.C. § 1292 (b). Even under this enlarged jurisdiction, discovery orders are seldom appealable, because they do not ordinarily present novel controlling legal questions or accelerate the disposition of actions. 4 J. Moore, supra, § 26.83[9.—2].

Though in some instances the federal courts of appeals have entertained appeals pursuant to § 1292 (b) from discovery orders presenting issues of claimed violations of the attorney-client privilege and the privilege against self-incrimination, these appeals have usually raised issues of wide general significance affecting interests beyond those of the parties. See Garner v. Wolfinbarger, 430 F.2d 1093, 1097 (5th Cir. 1970); Radiant Burners, Inc. v. American Gas Assn., 320 F.2d 314, 317 (7th Cir. 1963). Where there has been no certification by the district court pursuant to § 1292 (b), however, it has been held that an order for production of documents that is claimed to infringe the attorney-client privilege does not meet the federal standard for final judgments that do not terminate actions. International Business Machines Corporation v. United States, 480 F.2d 293, 297 (2d Cir. 1973). That standard allows interlocutory appeals for only those decisions falling within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Loan Corporation, 337 U.S. 541, 546, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). It appears that the federal courts have not deemed the breach of confidentiality involved in a discovery order infringing upon the attorney-client privilege to be sufficiently important to transform an interlocutory order into a final judgment under this standard. International Business Machines Corporation v. United States, supra.

This court has no discretionary jurisdiction comparable to that given the federal courts by § 1292 (b) to entertain appeals from interlocutory orders, except as provided in General Statutes § 52-265a. This statute allows an aggrieved party to appeal from “an order or decision of the superior court in an action which involves a matter of substantial public interest and in which delay may work a substantial injustice . . . .” (Emphasis added.) See Laurel Park, Inc. v. Pac, 194 Conn. 677, 678-79 n.1, 485 A.2d 1272 (1984). Before filing this appeal, the defendant petitioned unsuccessfully for certification pursuant to § 52-265a, claiming that a substantial public interest was implicated and that delay would result in injustice. As the denial of that petition indicated, there are in this case no significant ramifications affecting the public interest or entailing injustice from delay that cannot be substantially redressed by appellate review of the final judgment after completion of the trial.

In arguing that this appeal from a disclosure order falls within the second Curdo alternative, that the rights of a party be so concluded that further proceedings cannot affect them, the defendant concedes that adequate relief from most erroneous discovery rulings that are also prejudicial can be obtained on appeal after trial. It maintains, however, that the privacy interests protected by the attorney-client privilege cannot be completely restored once they have been invaded by a disclosure order. It is true that a remand for a new trial resulting from an erroneous order to disclose information protected by the privilege cannot wholly undo the consequences of its violation, though the rights of the client in respect to use of privileged material during further proceedings in the litigation can be adequately safeguarded. “Vindication at the appellate level can seldom regain all that has been lost by an erroneous determination of a cause in the trial court.” In re Juvenile Appeal (85-AB), 195 Conn. 303, 311, 488 A.2d 778 (1985). The same imperfection in the appellate remedy would be present if the attorney-client privilege were violated, not by a pretrial disclosure order, but by a ruling on evidence during trial, which would have to await final judgment for appellate review unless trials were to be interrupted whenever such a ruling occurred.

Our concern for the efficient operation of the judicial system, which is the practical consideration behind the policy against piecemeal litigation inherent in the final judgment rule, has induced us to dismiss appeals where statutorily created rights of privacy, no less significant than the right of confidentiality for attorney-client communications, have been at stake. Where those accused of crimes have claimed entitlement to treatment as juveniles or youthful offenders, we have recognizd that our decree after a successful appeal from a conviction cannot restore the protection the legislature intended against publicity and other consequences attending an adult criminal proceeding. Id.; State v. Longo, 192 Conn. 85, 91, 469 A.2d 1220 (1984). We have concluded, nevertheless, that the harm caused by delay in the disposition of criminal cases likely to result from allowing interlocutory appeals where trial courts have denied youthful offender or juvenile treatment far outweighs the need to provide additional appellate remedies to implement the legislative purpose more effectively. In re Juvenile Appeal (85-AB), supra, 312.

The defendant contends that the delay that interlocutory appeals from disclosure orders would create is of smaller concern in civil cases. Citizens of this state, nevertheless, have a right to “justice administered without . . . delay” in civil as well as criminal cases. Conn. Const., art. I, § 10; see Pellegrino v. O’Neill, 193 Conn. 670, 685, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984). Though the importance of prompt resolution of criminal cases may be greater, the expeditious disposition of disputes between private litigants also vitally affects the public interest. The opportunities for delay that would become available if every disclosure order that might arguably implicate the attorney-client privilege could be appealed before trial are overwhelming to contemplate. The appeal filed in this case from a single disclosure ruling has taken more than eighteen months to resolve, while trial court proceedings have been stalled. We conclude that the occasional violation of the attorney-client privilege that cannot be fully rectified upon review of the final judgment is a lesser evil than that posed by the delay in the progress of cases in the trial court likely to result from interlocutory appeals of disclosure orders.

The appeal is dismissed.

In this opinion the other justices concurred.

       The court assigned this case on the motion calendar for a hearing on whether the appeal should be dismissed for lack of a final judgment. After argument it was decided to defer the final judgment issue until the entire appeal had been heard, including the final judgment issue, which the parties have fully briefed.