author: KATZ, J.

text:
    J. WILLIAM GAGNE, JR. v. ENRICO VACCARO
    (SC 16351)
    Katz, Sullivan, Vertefeuille, Zarella and Dranginis, Js.

    Argued November 30, 2000
    officially released March 6, 2001

      James F. Stapleton, with whom was Richard P. Colbert, for the appellant (plaintiff).

      William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellee (defendant).

       The listing of justices reflects their seniority status on this court as of the date of argument.

   Opinion

KATZ, J.

The principal issue in this appeal is whether, in the absence of a written contingency fee agreement between an attorney and his client, as required by General Statutes § 52-251c, recovery by that attorney against a successor attorney should be permitted on the basis of quantum meruit or unjust enrichment, regardless of whether bad faith by the successor attorney or the client’s waiver of § 52-251c has been established. We conclude that, under the facts and circumstances of this case, the failure by the plaintiff, J. William Gagne, Jr., to comply with § 52-251c did not preclude him from recovering under the doctrines of quantum meruit or unjust enrichment from the defendant, Enrico Vaccaro, the successor attorney, a reasonable fee for services he had rendered on behalf of his former client. Accordingly, we reverse the judgment of the trial court, which set aside a jury verdict for Gagne and found in favor of Vaccaro, and we reinstate the jury’s award of damages in the amount of $328,469.14.

The evidence at trial established the following facts. In the fall of 1989, Richard Aldrich was injured while working for RK Contractors on construction of the Fusco Building, Goodwin Plaza, in Hartford. Shortly thereafter, while Aldrich was in the hospital, Gagne, who practiced an extensive amount of labor law, was approached at a carpenter’s union meeting by an agent who asked him to visit Aldrich. During the course of his visit with Aldrich, Gagne agreed to represent him in the personal injury action arising from the accident. Although they discussed terms of the contract and agreed to a contingency fee of 25 percent, Gagne did not reduce the agreement to writing.

Over the next four years, Gagne worked on the case and ultimately engaged in settlement negotiations with Herbert Lustig, the attorney representing the primary and secondary insurers of RK Contractors. Lustig proposed a structured settlement of the claim totaling $2,307,000 over Aldrich’s lifetime, which had a guaranteed present value of $1,585,000. Following these settlement negotiations, Gagne flew to Aldrich’s home in Colorado to discuss the proposal. Upon Gagne’s return, he instructed his associate, Harry Elliott, to follow up on a variety of matters related to the settlement proposal, including confirming the amount of attorney’s fees allowable under § 52-25lc.

Approximately one month before the meeting in Colorado, unbeknownst to Gagne, Aldrich had contacted Vaccaro, an attorney who previously had represented Aldrich’s son in an unrelated case. Aldrich had been unhappy that his personal injury case arising out of the construction accident had not progressed further. Following the meeting in Colorado with Gagne, Aldrich sent Vaccaro the settlement proposal given to him by Gagne. During a subsequent conversation, Vaccaro told Aldrich that he could get him more money than the settlement proposal offered by Gagne. At some point in one of their conversations, Vaccaro asked Aldrich whether he had entered into a written fee agreement with Gagne. Aldrich informed him that his agreement with Gagne had been oral. Vaccaro then promised Aid-rich that he would charge him a contingency fee of only 10 percent upon transfer of the case to him. When he ultimately retained Vaccaro, Aldrich told him that Gagne had done a great deal of work on the case and that he was hiring Vaccaro on the condition that Vac-caro would agree to pay Gagne his fair share of the attorney’s fee earned in the case. In fact, Aldrich would not have agreed to hire Vaccaro had Vaccaro not agreed to that condition. Vaccaro acquiesced, and Aldrich discharged Gagne and retained Vaccaro.

On January 18, 1994, in a letter requesting the file from Gagne, Vaccaro wrote: “I will either agree with your claims and forward to you a check in payment thereof when the above matters are resolved or will hold any fee in escrow pending a determination of the amount due to you.” Gagne turned the file over to Vac-caro, who subsequently made a single settlement demand in the amount of $1,750,000. The demand was accepted and on April 25, 1994, the case was settled. Vaccaro’s file in connection with his representation of Aldrich consisted of an appearance, a withdrawal, two motions for extension of time, correspondence notifying other parties in the case that he was Aldrich’s successor counsel, a few letters to physicians requesting updated medical information and one letter to counsel for the workers’ compensation carrier. He did not conduct any factual investigation, hire any investigators, retain any experts or take any depositions. Gagne had performed 85 to 90 percent of the work on the case.

After Gagne learned that the case had settled, he attempted to arrive at a consensual resolution of the fee arrangement with Vaccaro. Gagne also proposed, albeit unsuccessfully, that the fee dispute be resolved by arbitration before the Connecticut Bar Association Lawyer-to-Lawyer Dispute Resolution Program.

Thereafter, Gagne brought the present action, claiming that: (1) he was the third party beneficiary of a contract between Aldrich and Vaccaro, thereby obligating Vaccaro to pay him a portion of the attorney’s fees recovered in the personal injury action brought on behalf of Aldrich; (2) by taking over the Aldrich case, Vaccaro also had implicitly assumed all of Aldrich’s obligations to compensate and reimburse Gagne for his fees and expenses from the total fees paid to him by Aldrich; (3) Vaccaro had agreed orally and in writing that he would reimburse Gagne for the disbursements he had incurred and that he would satisfy the contingent compensation due Gagne out of any recovery realized in Aldrich’s personal injury claim; (4) Vaccaro, who had received a substantial benefit from the work Gagne had performed, unjustly failed to pay him for that benefit to Gagne’s detriment; and (5) Vaccaro violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

On or about August 8, 1996, Vaccaro filed a motion for summary judgment, claiming, inter alia, that Gagne’s claims were barred on public policy grounds. Specifically, relying on Alan E. Silver, P.C. v. Jacobs, 43 Conn. App. 184, 602 A.2d 551, cert. denied, 239 Conn. 938, 684 A.2d 708 (1996), decided well after the events in the present case had transpired, Vaccaro claimed that Gagne’s failure to obtain a written fee agreement as required under § 52-251c precluded him from recovering his fee. In opposition to the motion, Gagne advanced four grounds under which he claimed recovery despite his noncompliance with § 52-251c: (1) AlanE. Silver, P.C., had been decided improperly; (2) that case was distinguishable; (3) Aldrich waived the protection of § 52-251c; and (4) Vaccaro’s bad faith actions precluded him from relying on Gagne’s noncompliance with § 52-25lc as a defense. The trial court, Licari, J., in ruling on the motion for summary judgment, recognized a bad faith exception to § 52-251c. Specifically, the trial court determined that when a successor attorney has acted in bad faith, using the original attorney’s noncompliance with the statute to avoid compensating him, the original attorney is not barred from recovering his fee, despite his noncompliance with § 52-251c. The trial court also recognized that the client may waive the protection of § 52-251c. Because there were issues of material fact raised in connection with those two defenses by Gagne, the trial court denied Vaccaro’s motion for summary judgment.

Thereafter, the case was tried to a jury, which found in favor of Gagne on all five counts of his complaint and awarded him damages in the amount of $328,469.14. Pursuant to Practice Book § 16-37, Vaccaro then moved the trial court to set aside the verdict and render judgment for him notwithstanding the verdict, claiming that, in the absence of a written contingency fee agreement, Gagne could not recover any attorney’s fees. In addition, Vaccaro contended that the evidence had been insufficient on the issue of his alleged bad faith, as well as on Gagne’s claims regarding breach of contract, Gagne’s status as a third party beneficiary and Vaccaro’s alleged CUTPA violation.

The trial court granted Vaccaro’s motion, concluding that the evidence did not support a finding of bad faith on his part.* * Accordingly, the trial court set aside the judgment and rendered judgment for Vaccaro. Gagne appealed from the judgment to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

On appeal, Gagne raises several issues addressing the trial court’s decision granting Vaccaro’s motion for judgment notwithstanding the verdict. In addition to his response defending the actions of the trial court, Vaccaro asserts numerous claims for consideration, should we agree with Gagne and order a new trial.* ** This case, however, distills to one basic question: whether, in the absence of a written contingency fee agreement between an attorney and his client, as required by § 52-251c, recovery by that attorney against a successor attorney should be permitted on the basis of quantum meruit or unjust enrichment, regardless of whether bad faith or the client’s waiver of § 52-251c has been established. With regard to this issue, Vaccaro claims that because Gagne had rendered legal services pursuant to an oral agreement, in violation of the Rules of Professional Conduct and § 52-25lc, Gagne is barred from recovering against him. Specifically, Vaccaro contends that, absent an express waiver or bad faith, the oral agreement is void as against public policy and thus, unenforceable. Essentially, we must decide whether to invoke a per se rule that would preclude recovery based on quantum meruit or unjust enrichment even in the absence of bad faith or a waiver by the client of the protections of § 52-251c. Additional facts will be presented as necessary.

We begin with a brief discussion of the well settled principles of law that guide our decision. The standard of review applied to directed verdicts is clear. A directed verdict is justified if, on the evidence the jury reasonably and legally could not have reached any other conclusion. Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). “In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff.” Id.; see Santopietro v. New Haven, 239 Conn. 207, 222, 682 A.2d 106 (1996). While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven; Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 529, 562 A.2d 1100 (1989); it may not resort to mere conjecture and speculation. Burke v. West Hartford, 147 Conn. 149, 151-52, 157 A.2d 757 (1960). The standard of review governing a motion for judgment notwithstanding the verdict is the same because a “motion for judgment notwithstanding the verdict is not a new motion, but the renewal of a motion for a directed verdict.” Salaman v. Waterbury, 44 Conn. App. 211, 216, 687 A.2d 1318 (1997), rev’d on other-grounds, 246 Conn. 298, 717 A.2d 161 (1998).

We turn next to the doctrines of quantum meruit and unjust enrichment. See footnote 10 of this opinion. Quantum meruit is a theory of contract recovery that does not depend upon the existence of a contract, either express or implied in fact. Fischer Co. v. Morrison, 137 Conn. 399, 403, 78 A.2d 242 (1951). Rather, quantum meruit arises out of the need to avoid unjust enrichment to a party, even in the absence of an actual agreement. Fischer v. Kennedy, 106 Conn. 484, 492, 138 A. 503 (1927); see also Sidney v. DeVries, 215 Conn. 350, 351-52 n.1, 575 A.2d 228 (1990) (quantum meruit and unjust enrichment are common-law principles of restitution; both are noncontractual means of recovery without valid contract). Quantum meruit literally means" ‘as much as he has deserved’ . . . .” Black’s Law Dictionary (7th Ed. 1999). Centered on the prevention of injustice, quantum meruit strikes the appropriate balance by evaluating the equities and guaranteeing that the party who has rendered services receives a reasonable sum for those services. Unjust enrichment applies whenever “justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . . .” 12 S. Williston, Contracts (3d Ed. 1970) § 1479, p. 272. Indeed, lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment. Not unlike quantum meruit, it is a doctrine based on the postulate that it is contrary to equity and fairness for a defendant to retain a benefit at the expense of the plaintiff. See National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985).

We next direct our attention to the pertinent statutory and regulatory provisions that control this appeal. Our law is clear. When an attorney undertakes to represent a client in a personal injury action, the attorney and his client “may provide by contract, which contract shall comply with all applicable provisions of the rules of professional conduct governing attorneys adopted by the judges of the Superior Court, that the fee for the attorney shall be paid contingent upon, and as a percentage of: (1) [d]amages awarded and received by the claimant; or (2) settlement amount pursuant to a settlement agreement.” General Statutes § 52-251c (a).

Rule 1.5 (c) of the Rules of Professional Conduct provides in relevant part: “A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages of the recovery that shall accrue to the lawyer as a fee in the event of settlement, trial or appeal, whether and to what extent the client will be responsible for any court costs and expenses of litigation, and whether such expenses are to be deducted before or after the contingent fee is calculated. ...”

Section 52-251c “was intended to regulate the attorney-client relationship in order to protect plaintiffs from excessive legal fees.” Berry v. Loiseau, 223 Conn. 786, 830 n.22, 614 A.2d 414 (1992). That having been said, the statute is silent on the issue before us in this appeal: what recovery, if any, is available against a successor attorney when the initial attorney did not comply with the Rules of Professional Conduct. When the legislature amended § 52-251c to incorporate the Rules of Professional Conduct, its intent was not telegraphed. See Public Acts 1987, No. 87-227, § 1. The statute does not contain any further language regarding the purpose or effect of the amendment, nor is the legislative history particularly expressive of its intent. The limited comments regarding § 52-251c indicate that the legislature was aware that “[f|rom time to time, [the] rules may change,” and that the recent amendment requiring contingency fee agreements to be in writing was adopted by the “professional association” itself. 30 H.R. Proc., Pt. 16, 1987 Sess., pp. 5653-54, remarks of Representative Richard Tulisano. The recognition that judges and attorneys make their own rules, which they unilaterally change from time to time, strongly suggests that the legislative intent in incorporating the Rules of Professional Conduct was not to establish any additional requirements, outside of what the “professional association” might establish.

The Rules of Professional Conduct caution those who seek to rely on their provisions. They “provide a framework for the ethical practice of law. . . . Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.” Rules of Professional Conduct, scope, p. 3.

Gagne contends that, in light of the language included in the scope of the Rules of Professional Conduct, and because the legislature did not provide, expressly or implicitly, for a third party, such as Vaccaro, to void or otherwise bar an attorney from receiving a fee for the work he performed, this court should not interpolate such a remedy into a violation of § 52-25lc. Gagne’s approach is consistent with our treatment of other consumer oriented statutes. For example, in New England Land Co., Ltd. v. DeMarkey, 213 Conn. 612, 623, 569 A.2d 1098 (1990), this court recognized that in enacting the statutory provisions regarding real estate brokers commissions; see General Statutes § 20-325a et seq.; the legislature expressly provided that a real estate broker is prohibited from commencing an action to recover for services when the broker’s contract is in violation of those provisions. Similarly, in deciding whether a contractor could recover from a homeowner for work performed, despite the contractor’s noncompliance with the Home Improvement Act; General Statutes § 20-418 et seq.; this court focused on an explicit statement in that act that a violation of the provisions renders the contract invalid, and concluded that the legislature intended to bar recovery in quantum meruit. See Barrett Builders v. Miller, 215 Conn. 316, 321, 576 A.2d 455 (1990) (absent proof of bad faith on part of homeowner, General Statutes § 20-429 permits no recovery by contractor who has failed to comply with its requirements); see also Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, 237 Conn. 123, 134-35, 676 A.2d 369 (1996) (noting explicit textual differences in Home Improvement Act in concluding that Common Interest Ownership Act; General Statutes § 47-200 et seq.; does not provide unrestricted right of rescission as remedy for violation).

Although this court has not had the opportunity to address the issue presently on appeal, as we have indicated previously, the Appellate Court has spoken on the subject. In Alan E. Silver, P.C. v. Jacobs, supra, 43 Conn. App. 188-89, the court concluded that contingency fee agreements must be in writing and that an attorney’s failure to commit such an agreement to writing precludes him from recovering the value of his services from a successor attorney. Although the attorney in that case could not enforce his claim for fees against the client because there had been no written agreement, he argued that the successor attorney was not within the class to be protected by § 52-251c, and thus could not invoke its protection. Id., 190. The Appellate Court disagreed, concluding that “[w]here a law is passed for the protection of the public, we will not undermine the remedial purposes of the statute . . . .’’Id.

Relying on the cases decided by this court, in which the court has determined that a contractor cannot recover in quantum meruit from a homeowner when he has failed to comply with the written contract requirement in § 20-429 of the Home Improvement Act; see, e.g., Barrett Builders v. Miller, supra, 215 Conn. 325-26; the majority in Alan E. Silver, P.C., imposed a per se rule barring recovery from a successor attorney of fees for failure to secure a written fee agreement pursuant to § 52-251c. The Appellate Court concluded that it was more urgent to protect the public from attorneys than to protect attorneys from successor attorneys. Alan E. Silver, P.C. v. Jacobs, supra, 43 Conn. App. 190.

Barrett Builders, however, involved a situation wherein the interests of the plaintiff contractor and the consumer were in direct conflict. That clearly is not the case here. The ability of an attorney to recover from a successor attorney does not endanger the important public policy of protecting the public from excessive legal fees, particularly when “the plaintiffs agreement with the defendant is a separate transaction from the plaintiffs agreement with the [client].” Id.; see also Moz-zochi v. Beck, 204 Conn. 490, 501, 529 A.2d 171 (1987) (rejecting legal malpractice claim by third party in absence of any express indication, in text or history of Code of Professional Responsibility, now Rules of Professional Conduct, indicating intent to establish rules giving rise to such action).

We agree that, “by enacting § 52-251c without qualification, the legislature has imposed its view that it is more urgent to protect clients from attorneys than to protect attorneys from successor attorneys.” Alan E. Silver, P.C. v. Jacobs, supra, 43 Conn. App. 192. We disagree, however, that the doctrine of quantum meruit or unjust enrichment, as between an attorney and his successor, properly cannot be invoked to protect both interests.

Rather, we are persuaded by Judge Lavery’s dissenting opinion in Alan E. Silver, P.C., in which he took issue with the majority’s failure to cite any substantive applicable law, statutory or common, compelling the conclusion that a violation of § 52-251c is an outright bar’ to an attorney’s action in quantum meruit or unjust enrichment against a successor attorney. Id., 194. Judge Lavery noted: “The majority states that, under equitable quasi-contract principles, it would be ‘unjust to permit an attorney to avoid th[e] public policy by splitting a fee with a successor attorney.’ Such a construction suggests that the majority has adopted a per se rule, foreclosing recovery from a successor attorney under any set of circumstances, as long as the attorney failed to have the client sign a written contract. I believe that the equitable contract principles on which we should focus are those that have traditionally been the basis for an award under the restitutionary theories of quantum meruit and unjust enrichment: only those circumstances that existed between the two pertinent parties, here the plaintiff and the defendant. If the trial court limited its review of this matter to the transaction between the parties, then it would have had to determine whether the defendant benefited from the plaintiffs work product.” Id., 194-95 (Lavery, J., dissenting). The jury in the present case answered the pertinent questions regarding the value of the services Gagne had conferred upon Aldrich and the extent to which Vaccaro had benefited from those services, and the trial court’s judgment notwithstanding the verdict left those findings intact.

We recognize the broad general doctrine founded on the maxim ex turpi causa non oritur actio—no cause of action can arise out of an illegal or immoral inducement. We also acknowledge that a court should not allow itself to be made the instrument of enforcing obligations arising out of an agreement that is against public policy, either in law or in equity. In this case, however, the party seeking to hide behind the violation of § 52-251c, Vaccaro, is a third party who holds the fruits of the product of the oral contract between Aid-rich and Gagne. In our view, it would be a violation of our equity jurisprudence to allow Vaccaro to retain those fruits. Accordingly, we reverse that part of the decision in Alan E. Silver, P. C., which held that, in the absence of a written fee agreement between an attorney and the client, an attorney who has worked on a personal injury case cannot, under the doctrine of quantum meruit or unjust enrichment, collect his fee from a successor attorney after settlement. Id., 190-91.

As we have recognized often, “[a] right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. Franks v. Lockwood, 146 Conn. 273, 278, 150 A.2d 215 [1959]; Schleicher v. Schleicher, 120 Conn. 528, 534, 182 A. 162 [1935]. Connecticut National Bank v. Chapman, 153 Conn. 393, 399, 216 A.2d 814 [1966], With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. Cedo Bros., Inc. v. Greenwich, [156 Conn. 561, 564-65, 244 A.2d 404 (1968)]. . . . Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 246, 287 A.2d 379 (1971); Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282, 649 A.2d 518 (1994).” (Internal quotation marks omitted.) Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 511-12, 735 A.2d 813 (1999).

Unjust enrichment is a very broad and flexible equitable doctrine that has as its basis the principle that it is contrary to equity and good conscience for a defendant to retain a benefit that has come to him at the expense of the plaintiff. National CSS, Inc. v. Stamford, supra, 195 Conn. 597. The doctrine’s three basic requirements are that (1) the defendant was benefited, (2) the defendant unjustly failed to pay the plaintiff for the benefits, and (3) the failure of payment was to the plaintiffs detriment. Bolmer v. Kocet, 6 Conn. App. 595, 612-13, 507 A.2d 129 (1986). All the facts of each case must be examined to determine whether the circumstances render it just or unjust, equitable or inequitable, conscionable or unconscionable, to apply the doctrine. Meaney v. Connecticut Hospital Assn., Inc., supra, 250 Conn. 511-12. Accordingly, in the present case, Gagne was required to prove in the trial court that Vaccaro had received a benefit at his expense under circumstances that would otherwise make it unjust for Vaccaro to retain the benefit. This highly fact-intensive inquiry was conducted by the jury in this case, and, as evidenced by its answers to the interrogatories, was determined in Gagne’s favor.

Nevertheless, the trial court granted Vaccaro’s motion for judgment notwithstanding the verdict based upon its conclusion that the evidence of bad faith had been insufficient. While bad faith indeed may have been relevant to the inquiry of whether justice required recovery, we conclude that Gagne was not compelled to establish bad faith in order to have recovered in unjust enrichment against Vaccaro.

In Northrop v. Allstate Ins. Co., 247 Conn. 242, 253, 720 A.2d 879 (1998), we identified the distinction between a dispute involving a homeowner and a home improvement contractor and a dispute between the homeowner and his insurer. We recognized that the purpose of the Home Improvement Act is “to promote understanding by the consumer, to ensure his ability to make an informed decision and to protect him from substantial work by an unscrupulous contractor. Habetz v. Condon, 224 Conn. 231, 239, 618 A.2d 501 (1992) . . . [and] that compliance with the act is mandatory in order for a contractor to recover on a home improvement contract. Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 680, 657 A.2d 1087 (1995).” (Internal quotation marks omitted.) Northrop v. Allstate Ins. Co., supra, 253. Nevertheless, we concluded, “[t]hat does not mean, however, that the noncomplying contractor is not entitled to payment when the homeowner, for whose benefit the act’s prophylactic provisions were enacted, does not seek the protection of the act, and agrees that the contractor has done the work and should be paid. The act is for the benefit of the consumer, and compliance with its terms may be waived by the consumer, either explicitly or by nonassertion. Thus, the defendant, as the plaintiffs’ insurer, cannot interpose noncompliance with the act as a defense to its own insured’s claim for replacement cost coverage.” Id.

Similarly, in the present case, as evidenced by the interrogatories, the jury reasonably found that Aldrich, for whose benefit the pertinent provisions existed, intended for Gagne to be paid a portion of the attorney’s fees for the services he had rendered on Aldrich’s behalf. Moreover, no dishonest purpose or disloyalty to Aldrich was established. No serious moral turpitude was found to exist. Rather, as the jury found, Aldrich’s interests were defended loyally, earnestly and successfully by Gagne, and he is entitled to reasonable compensation as the jury concluded. McKnight v. Gizze, 119 Conn. 251, 255, 175 A. 676 (1934). Accordingly, the judgment of the trial court as it relates to the fourth count of Gagne’s complaint is reversed.

The judgment of the trial court is reversed in part and the case is remanded to the trial court with direction to render judgment for Gagne on count four of his complaint in accordance with the jury’s verdict.

In this opinion the other justices concurred.

       General Statutes § 52-251c provides in relevant part: “Limitation on attorney contingency fees in personal ipjury, wrongful death and property damage actions, (a) In any claim or civil action to recover damages resulting from personal ii\jury, wrongful death or damage to property occurring on or after October 1, 1987, the attorney and the claimant may provide by contract, which contract shall comply with all applicable provisions of the rules of professional conduct governing attorneys adopted by the judges of the Superior Court, that the fee for the attorney shall be paid contingent upon, and as a percentage of: (1) Damages awarded and received by the claimant; or (2) settlement amount pursuant to a settlement agreement. ...”
      Rule 1.5 (c) of the Rules of Professional Conduct provides: “A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by subsection (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages of the recovery that shall accrue to the lawyer as a fee in the event of settlement, trial or appeal, whether and to what extent the client will be responsible for any court costs and expenses of litigation, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.”

       With regard to Gagne’s third party beneficiary claim, the trial court also distinguished Alan E. Silver, P.C. v. Jacobs, supra, 43 Conn. App. 184. In the present case, Gagne made a claim as a third party beneficiary to the written contingency fee agreement between Aldrich and Vaccaro, whereas in Alan E. Silver, P. C., the agreement that the court held to be unenforceable was an agreement between the original and the successor attorneys obligating the successor attorney to pay the original attorney those amounts that the clients were obligated to pay the original attorney, which, because of his noncompliance with § 52-251c, was nothing.

       Over Gagne’s objection, the trial court instructed the jury, and provided an interrogatory in accordance with the instruction, that, as a threshold issue, the jury was required to find that Vaccaro had acted in bad faith in his dealings with Gagne before it could consider any of the five counts of the complaint. In other words, if the jury determined that Vaccaro had not acted in bad faith, then it was to return a verdict for Vaccaro on all five counts. The response to the first interrogatory reflects the jury’s determination that Vaccaro had acted in bad faith.

       Practice Book § 16-37 provides: “Reservation of Decision on Motion for Directed Verdict
      “Whenever a motion for a directed verdict made at any time after the close of the plaintiffs case in chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. After the acceptance of a verdict and within the time stated in Section 16-35 for filing a motion to set a verdict aside, a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his or her motion for a directed verdict; or if a verdict was not returned such party may move for judgment in accordance with his or her motion for a directed verdict within the aforesaid time after the jury have been discharged from consideration of the case. If a verdict was returned the judicial authority may allow the judgment to stand or may set the verdict aside and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the judicial authority may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.”

       Vaccaro also filed a motion in arrest of judgment on the CUTPA count. In light of its decision to set aside the verdict on all counts and render judgment for Vaccaro, the trial court found it unnecessary to act on that motion.

       In its decision to set aside the verdict and render judgment for Vaccaro, regarding the first count of the complaint in which Gagne claimed he was the third party beneficiary of a contract between Aldrich and Vaccaro, the trial court determined that the evidence reasonably did not support a finding that there had been an enforceable agreement between Aldrich and Vaccaro whereby Vaccaro agreed to pay a fee to Gagne. The trial court concluded that the statement by Aldrich that Gagne’s fee “ ‘had to be taken care of ” was insufficient as a matter of law to form a binding contract. The trial court did not consider Aldrich’s testimony that Vaccaro had agreed to do just that. Although that testimony was brought to the trial court’s attention as part of Gagne’s motion for rectification filed on February 9, 2000, the trial court deemed no further action necessary.

       General Statutes § 51-199 (c) provides: “The Supreme Court may transfer to itself a cause in the Appellate Court. Except for any matter brought pursuant to its original jurisdiction under section 2 of article sixteen of the amendments to the Constitution, the Supreme Court may transfer a cause or class of causes from itself, including any cause or class of causes pending on July 1, 1983, to the Appellate Court. The court to which a cause is transferred has jurisdiction.”
      Practice Book § 65-1 provides: “Transfer of Cases by Supreme Court
      “When, pursuant to General Statutes § 51-199 (c), the supreme court (1) transfers to itself a cause in the appellate court, or (2) transfers a cause or a class of causes from itself to the appellate court, the appellate clerk shall notify all parties and the clerk of the trial court that the appeal has been transferred. A case so transferred shall be entered upon the docket of the court to which it has been transferred. There shall be no fee on such transfer. The appellate clerk may require the parties to take such steps as may be necessary to make the appeal conform to the rales of the court to which it has been transferred, for example, supply the court with additional copies of the record and the briefs.”

       Gagne claims that the trial court improperly: (1) required him to prove bad faith as a threshold issue to recovery; (2) allowed Vaccaro to assert as a defense the lack of his written fee agreement with Aldrich; (3) concluded that the evidence of Vaccaro’s bad faith was insufficient; and (4) denied his ability to recover under the doctrine of quantum meruit or unjust enrichment.

       Vaccaro claims that, in the event that we determine that the trial court improperly granted his motion for judgment notwithstanding the verdict and we order a new trial, we should nevertheless dismiss the CUTPA count. Specifically, he contends that: (1) the trial court did not have jurisdiction to reconsider the CUTPA count because that count, filed after the statute of limitations had run, did not relate back to the original complaint; (2) Gagne had failed to prove a CUTPA violation at the first trial; and (3) a single act cannot support a CUTPA claim. In addition, Vaccaro contends that we should nevertheless affirm the trial court’s decision to set aside the verdict and order a new trial with instructions to the trial court that bad faith must be proven, if at all, by clear and convincing evidence.
      Taking his last claim first, Vaccaro contends that if we conclude that the trial court improperly granted his motion for judgment notwithstanding the verdict, we “must review the [trial court’s] grant of the motion to set aside under a more lenient standard,” and affirm the granting of that motion and order a new trial. In this case, the basis for the trial court’s decisions as to both the motion for judgment notwithstanding the verdict and the motion to set aside the verdict was its legal determination that proof of Vaccaro’s bad faith was required and its further conclusion that it had not been demonstrated. Because we disagree with the trial court’s determination that bad faith was required in order for Gagne to recover in quantum meruit or unjust enrichment, there is no basis upon which to order a new trial on that count.
      With respect to Vaccaro’s claims regarding the CUTPA count, Gagne contends that the only claim properly preserved is the first one, namely, whether the trial court had jurisdiction to consider the CUTPA count. This claim had been raised by Vaccaro in a motion to dismiss, dated September 10, 1999, and was rejected by the trial court on September 13, 1999.
      According to Gagne, Vaccaro’s claim that a single act cannot form the basis of a CUTPA violation was raised for the first time in his brief to this court and therefore was not preserved properly for appellate review. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 49, 717 A.2d 77 (1998) (“to permit the appellant first to raise posttrial an issue that arose during the course of the trial would circumvent the policy underlying the requirement of timely preservation of issues”). We disagree. Our review of the record demonstrates that Vaccaro made this claim to the trial court before the jury began its deliberations. Although the charging conference was not recorded, following the jury charge, Vaccaro expressly objected to the application of CUTPA to a single act.
      Finally, Gagne argues that Vaccaro’s claim regarding sufficiency of the evidence was raised for the first time in a series of postverdict motions. Our review of the record reveals that Vaccaro filed a motion in limine on September 14, 1999, which was denied the same day. That motion merely sought to preclude the introduction of any evidence relating to a CUTPA violation on the ground that Gagne’s complaint had failed to put Vaccaro on notice of what evidence he intended to introduce. Once again following the charge to the jury, however, Vaccaro argued to the trial court that his conduct had been unconnected to the business of the law practice and that there had been no evidence of unfair or deceptive acts. Accordingly, Vaccaro’s claims have been preserved adequately for appellate review.
      Nevertheless, we do not reach Vaccaro’s alternate grounds for sustaining the judgment rendered in his favor on the CUTPA count. Although at trial Gagne raised the issue of whether bad faith was a threshold requirement to a recovery on several of the counts, he did not raise or brief that issue independently as it pertains to the CUTPA count on appeal. In his brief addressing the statement of issues before this court, Gagne claimed: “The trial court erred in requiring [Gagne] to prove bad faith as a ‘threshold issue’ to a recovery on [his] claims of an independent agreement and a third party beneficiary agreement.” Therefore, we do not offer an opinion on that issue and, accordingly, do not extend our decision reversing the judgment of the trial court to the CUTPA count. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 245 Conn. 38-39.

       Although the fourth count of Gagne’s complaint alleges unjust enrichment, and strictly speaking, it is on that count that we direct the trial court to render judgment in his favor, our decision about whether an attorney, who has failed to comply with § 52-251c, must prove bad faith on the part of the successor attorney in order to recover his fee pertains to claims under the doctrines of quantum meruit and unjust enrichment.

       Because Vaccaro was not a party to the agreement between Aldrich and Gagne, Gagne claims that Vaccaro does not have standing to raise a violation of § 52-251c as a defense. We disagree. See Alan E. Silver, P.C. v. Jacobs, supra, 43 Conn. App. 188-89.

       The trial court rejected the jury’s finding as to bad faith. Because we conclude that proof of bad faith was not required in order for Gagne to have recovered under the doctrine of unjust enrichment, we do not address that decision as part of our resolution of this issue.

       “The Rules contained in the Rules of Professional Conduct as adopted by the American Bar Association and as recommended, with revisions, by the Connecticut Bar Association for adoption were approved by the judges of the superior court, effective October 1, 1986.” Rules of Professional Conduct, preface, p. 1.

       The closest case that our research has led us to is McKnight v. Gizze, 119 Conn. 251, 255, 175 A. 676 (1934), wherein the court answered the following question: “Where an attorney, no actual fraud or duress being shown, procures from an ignorant and frightened client, a mortgage to ensure the payment of his fees for future services to an amount to be later determined, and thereafter the mortgage is judicially declared invalid, can he recover on a quantum meruit for the reasonable value of such services?”
      Relying on the fact that “the professional services in behalf of the client were faithfully performed, and even in taking the mortgage, no actual fraud, dishonesty or disloyalty to the client [was] disclosed”; id., 256; the court concluded that “[w]hen the illegality, either in whole or in part, is in the thing which the parly seeking to recover was to do, then there can be no recovery upon a quantum meruit. But where the illegality was not in what the plaintiff was to do but in the manner in which he was to be compensated for doing the legal thing, then he can recover upon a quantum meruit for the reasonable value of his services.” (Internal quotation marks omitted.) Id.
      “An attorney is rightly held to the highest degree of honesty and loyalty to his client, and if legal services are rendered in complete fulfilment of that obligation, neither reason nor justice requires that he be penalized by denying him full compensation even though a separate contract in relation thereto is found to be invalid, certainly where no wrongful intent is shown.
      “In the present case no dishonest purpose or disloyalty to the client was established, but it does conclusively appear that his interests were defended loyally, earnestly and successfully by the plaintiffs, and they are entitled to reasonable compensation as the trial court decreed.” Id., 257-58.
      Because the present case before us involves a claim by one attorney against his successor, McKnight is not controlling. That decision, however, differentiating between the services performed and the method of compensation, is informative.

       Although that rule is not absolute; see J. Calamari & J. Perillo, Contracts (3d Ed. 1987) § 22-1 et seq.; we need not address its various permutations or exceptions.

       Accordingly, we also reverse the holdings in Perkins & Mario v. Annunziata, 45 Conn. App. 237, 241-42, 694 A.2d 1388 (1997), and Brunswick v. Safeco Ins. Co., 48 Conn. App. 699, 705, 711 A.2d 1202, cert. denied, 247 Conn. 923, 719 A.2d 1168 (1998), wherein the Appellate Court reaffirmed its holding in Alan E. Silver, P. C., that an attorney who worked on a personal injury case could not collect his fee from a successor attorney after settlement in the absence of a written fee agreement between the attorney and the client.

       Therefore, we need not decide whether the trial court properly concluded that Gagne had not proven that Vaccaro had acted in bad faith in his dealings with Gagne in order to resolve this claim. See footnote 12 of this opinion.

       In denying Vaccaro’s motion for summary judgment, the trial court, Licari, J., determined that the issue of waiver was an issue of fact. When it came time to instruct the jury on the law, however, despite evidence on the issue of waiver, the trial court determined, as a matter of law, that waiver did not apply in this case. Therefore, we do not read the jury’s findings as tantamount to a decision of a knowing, intelligent and voluntary relinquishment of a known right, but, rather, as a factual determination that Aldrich intended for Gagne to be paid a portion of the attorney’s fees for the services he had rendered on Aldrich’s behalf. See Majernicek v. Hartford, Casualty Ins. Co., 240 Conn. 86, 96-97, 688 A.2d 1330 (1997).

       In light of our decision on the unjust enrichment count, we need not decide whether the trial court properly set aside the jury’s verdicts on the first three counts of Gagne’s complaint. Furthermore, although Gagne challenged the trial court’s determination that proof of bad faith was not required in order for him to recover on his independent contract claim and his third party beneficiary claim, he did not challenge that issue separately as it relates to the CUTPA count. Therefore, we do not decide whether the trial court properly rendered judgment for Vaccaro on the CUTPA count. See footnote 9 of this opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MARIO S. ROSATO v. BEATRICE MARTONE ROSATO
    (SC 16250)
    Norcott, Katz, Palmer, Sullivan and Flynn, Js.

    Argued September 20, 2000
    officially released March 6, 2001

      Beatrice Martone Rosato, pro se, the defendant.

      Mark M. Wrenn, with whom, on the brief, was James P. Caulfield, for the appellee (plaintiff).

       The listing of the justices reflects their seniority status on this court as of the date of argument.

   Opinion

PER CURIAM.

This appeal requires that we determine whether the Appellate Court improperly reversed the trial court’s judgment of financial orders because of a misreading of the trial court’s original order regarding the defendant’s interest in the plaintiffs pension annuity benefits. Rosato v. Rosato, 40 Conn. App. 533, 536, 671 A.2d 838 (1996). Because we cannot conclusively determine, in this factually complicated and procedurally complex case, whether the Appellate Court properly reconciled the ambiguous original order of the trial court with an equally ambiguous answer to the plaintiffs motion for clarification of that order, the case must be remanded to the trial court for a new determination of the financial orders. While we recognize that this case has lingered long in our court system, we strongly believe that the interests of justice require no less than a redetermination of the entire “mosaic” that constitutes the complete financial order package. Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989).

The factual and procedural background of this case is best described as labyrinthine. The plaintiff, Mario S. Rosato, and the defendant, Beatrice Martone Rosato, had been married for almost twenty-nine years when their marriage was dissolved on July 11, 1988. At the time of the dissolution, the plaintiff was fifty-eight years old and had been an employee of the United States Postal Service (post office) for more than twenty-four years. The plaintiffs base salary was approximately $37,500. Additionally, the plaintiff earned between $8000 and $12,000 in overtime annually. The plaintiff also had a pension with the post office. It is this pension that is at the heart of the present appeal.

When first addressing the matter of the plaintiffs pension in the order of dissolution, the trial court, Santos, J., ordered that “the wife is to retain any benefits in the husband’s pension plan which he currently has, as his spouse.” (Emphasis added.) The plaintiff retired at the end of 1991, and began to collect his lifetime pension benefits. Believing that she was entitled to a share of this lifetime benefit, the defendant contacted the federal Office of Personnel Management (office) in 1992 to request payment of those benefits. The office declined her request for payment on the ground that the trial court’s order did not “explicitly [divide]” the plaintiffs civil service retirement benefits.

Thereafter, in 1994, the defendant filed a motion for clarification of the trial court’s order in which she requested that the court “set forth the exact percentage interest of the plaintiffs pension which is due to the defendant.” The trial court’s response to this request constitutes another facet of the ambiguity that pervades this appeal. On March 29, 1995, the trial court granted the defendant’s motion and indicated that its original intention was to award the defendant 55 percent of the plaintiffs pension benefits. The plaintiff appealed claiming that the trial court’s original order granted the defendant only a spousal survivorship interest in his pension rather than an interest in his lifetime benefits. At the time of the dissolution, the plaintiff claimed that a spousal survivorship interest was all that the defendant was entitled to pursuant to the benefit plan. The plaintiff argued that the trial court’s clarification order was an improper modification of the original property award.

The Appellate Court reversed the trial court’s clarification order concluding that the trial court improperly had modified a property award in violation of General Statutes § 46b-81. Rosato v. Rosato, supra, 40 Conn. App. 536. The Appellate Court, in explaining its decision, changed the language of the trial court’s original order by writing, “ ‘the wife is to retain any benefits in the husband’s pension plan which [she] currently has, as his spouse.’ ” (Emphasis added.) Id., 534. The Appellate Court construed the trial court’s original order as granting the defendant spousal survivorship benefits, which the Appellate Court concluded were the only benefits that the defendant had at the time of the divorce. Id., 535. Thus, in reversing the clarification order, it appears that the Appellate Court left in place its version of the original order, which the Appellate Court deemed was an award of only a survivorship interest.

Thereafter, the defendant again contacted the office to ascertain her survivorship benefits that she understood the Appellate Court to have ordered. The office concluded that, notwithstanding the Appellate Court’s decision, the trial court’s original order granted lifetime benefits. The office repeated that it could not process the defendant’s request for these benefits because the trial court’s order did not specify the amount or percentage of her interest in the plaintiffs lifetime pension benefits. The defendant then appealed this decision to an administrative law judge. The administrative law judge affirmed the office’s ruling, and the decision became final when the Merit Systems Protection Board (board), the federal reviewing agency, denied the defendant’s petition for review.

The defendant appealed the board’s decision to the United States Court of Appeals for the Federal Circuit, which, in 1997, reversed that ruling. Rosato v. Office of Personnel Management, 132 F.3d 55 (Fed. Cir. 1997). The Court of Appeals concluded: (1) the Appellate Court had misinterpreted the trial court’s original order as limiting the defendant to only a survivorship interest; and (2) the board should have recognized the Appellate Court’s error and reversed the office’s denial of the defendant’s claim, especially when the trial court had provided the required information relating to the defendant’s share of the contested benefits in its clarification. Rosato v. Office of Personnel Management, United States Court of Appeals for the Federal Circuit, Docket No. 97-3332 (December 16, 1997). Further, the Court of Appeals remanded the case with direction that the office begin past and future benefit payments to the defendant. Id.

This unfortunate saga, however, did not end with that remand. Pursuant to the order of the Court of Appeals, in 1998, the office began making monthly benefit payments of approximately $1300, together with a lump sum payment of $43,908.70, which represented three years of arrearages to the defendant. Subsequently, however, because of a procedural infirmity regarding the plaintiffs failure to receive notice of the appeal from the board’s decision, the Court of Appeals reversed itself on January 25, 1999. Rosato v. Office of Personnel Management, 165 F.3d 1377 (Fed. Cir. 1999). The Court of Appeals concluded that it lacked the authority to order lifetime benefits to the defendant because, “[u]nder the regulations that govern this case, [the office] is obligated to follow the dictates of the state [A]ppellate [C]ourt decision (even when, as here, it knows that to do so contravenes the intent of the state court). In short, [the office] has strapped itself to wooden, even unthinking, adherence to the state court decision. Under the terms of the Connecticut [Appellate [C]ourt decision, [the defendant] cannot prevail because she does not contest her ineligibility for a survivor’s annuity.” Id., 1381. Nonetheless, the Court of Appeals urged the defendant to request the Appellate Court to reconsider its decision by stating “[s]hould she prevail in seeking reconsideration by the Connecticut [A]ppellate[C]ourt, she could again apply to [the office] seeking the 55 percent share of [the plaintiffs] lifetime annuity that the Superior Court sought to award to her.” Id., 1382.

Based on the decisions of the Court of Appeals, the defendant filed a series of motions in the Appellate Court seeking a reconsideration of that its decision. The Appellate Court dismissed these motions as untimely. Rosato v. Rosato, 53 Conn. App. 387, 389, 731 A.2d 323 (1999). Thereafter, in order to appeal the Appellate Court’s 1996 judgment, the defendant filed a motion for permission to file a late petition for certification in this court, which we granted on November 30, 1999. This appeal is before us on our grant of the defendant’s petition for certification on February 16, 2000.

The certified issue in this appeal is as follows: “Did the Appellate Court improperly reverse the judgment of the trial court due to a misreading of the trial court’s order regarding the defendant wife’s interest in the plaintiff husband’s lifetime annuity?” Rosato v. Rosato, 252 Conn. 930, 746 A.2d 793 (2000). After structuring a certified question and hearing oral argument, we have, on occasion, realized that the certified question is inadequate to resolve the case before us. See Stamford Hospital v. Vega, 236 Conn. 646, 648 n.l, 674 A.2d 821 (1996). This is one of those occasions. Thus, we have now determined that the dispositive issue in this appeal is whether the trial court’s original order granted the defendant an interest in the plaintiff’s lifetime pension, or only a survivorship interest upon the plaintiffs death.

In this appeal, the primary dispute revolves around the meaning of the trial court’s original order. After awarding the defendant alimony for a term of five years at the rate of $175 per week, the trial court ordered that “[t]he wife is to retain any benefits in the husband’s pension which he currently has, as his spouse.” (Emphasis added.) The defendant argues that the trial court’s original order granted her an interest in the plaintiff’s lifetime pension benefits. The defendant contends, therefore, that once the plaintiff began to collect his pension shortly after his retirement, she was entitled to a share of his lifetime benefits that he currently was enjoying. Further, the defendant claims that the trial court’s clarification of its original order set the percentage of those benefits at 55 percent. In response, the plaintiff relies on § 46b-81, which provides for the distribution of marital property in a dissolution proceeding. Pointing out that we previously have held that § 46b-81 (a) involves the assignment of marital assets; Sunbury v. Sunbury, 216 Conn. 673, 676, 583 A.2d 636 (1990); the plaintiff claims that the pension here did not amount to a marital asset because his rights in the pension did not vest until after the date of the dissolution and, therefore, his current interest in the benefits at the time of dissolution was zero. The award, he contends, amounts to a survivorship interest only. Also, as a part of his claim on appeal, the plaintiff argues that the clarification was in fact an improper modification of an award in violation of § 46b-81, because to award the defendant a 55 percent lifetime benefit interest contravened the original award of a survivorship interest, which was the only interest she had at the time of the dissolution. Our conclusion that only a remand to the trial court will do justice in this case is premised on several distinct concerns that exacerbate the confused state of these proceedings and are unavoidable in our review of this record.

I

The first of these concerns involves the trial court’s determination in its clarification that the defendant receive 55 percent of the plaintiffs pension. It is something of an understatement to say that this percentage adds to the overall confusion. Regarding this portion of the award, the trial court stated: “I believe in terms of the transcript as I’ve reviewed it, that at the time, the defendant had as a survivor a fifty-five percent interest. Now, even though that percentage would have been taken in a different context, it was the Court’s intention because I only ordered—I believe it was five years of alimony at one hundred and seventy-five dollars per week for a [twenty-nine] year marriage—and based on what I heard as testimony, the Court did consider certain issues of fault that it would have been the Court’s intention that the percentage, the fifty-live percent, would apply to the current value of the pension. . . . [I]t was the intention of the Court that the defendant share in a percentage of fifty-five percent as to that pension.” Although we reasonably might conclude from this, as apparently did the Court of Appeals, that the trial court intended to award 55 percent of the plaintiffs lifetime pension benefits, we note that the trial court never specifically referred to 55 percent of the lifetime pension benefits. Thus, while the clarification arguably sheds light on what the trial court meant by the word “currently” in its original order—in the context of lifetime benefits—it also should be noted that the 55 percent figure arose in a completely different context—the survivorship context,—when Margaret Carter, an employee benefits specialist from the post office, testified that the defendant’s annual survivor-ship benefits would be 55 percent of the annual lifetime benefits paid.

Even if we ultimately were to conclude that the trial court’s clarification was not a modification because, in light of the entire picture, the overall intent of the original order coupled with the clarification was, in fairness, to award the defendant a share of the plaintiffs lifetime pension benefits, we are faced with further complications that stem from the financial awards in this record.

II

If the defendant is correct that the trial court originally awarded her a portion of a lifetime benefit and appropriately clarified that intent in its supplemental ruling, then we are faced with the issue raised as the plaintiffs alternate ground for affirmance: that the pension was nonvested and, therefore, was not marital property subject to distribution. If the plaintiff is correct that the pension was not marital property subject to distribution, then the trial court improperly awarded 55 percent of the lifetime benefit.

From our review of the record, the question of the vested or nonvested status of the pension contributes to the overall confusion in this case. Our examination of this problem area begins with a review of the evidence before the trial court regarding whether the pension was vested, and whether the plaintiff had a current right to collect pension benefits at the time of the dissolution.

During the dissolution proceedings, Carter testified that the plaintiff was not eligible to retire until some time in 1989. Accordingly, when asked to determine what benefits the plaintiff would receive were he to retire on the date of the dissolution, July 11,1988, Carter testified that the plaintiff would receive only a return of his own contributions to the pension plan, without interest, because he was not eligible to retire. The plaintiff now relies on this testimony to support his claim that the current value of his pension benefits at the time of the dissolution was zero because his rights did not vest until after the date of the dissolution. Curiously, Carter was never asked and never testified about when or if the plaintiffs rights in the pension had already vested. The distinction between eligibility and actual vesting is important because a person’s rights in a pension may vest and that person still may have to wait a period of time before he or she is eligible to collect. Conversely, another person may be eligible to retire before that person’s rights vest in the plan. During the dissolution proceedings, this important distinction was not addressed.

Further complicating the issue is the fact that Carter’s testimony was never clear about when the plaintiff was eligible to retire. Early in her testimony, Carter stated that the plaintiff was eligible to retire on December 26, 1989. Later, Carter testified that the plaintiff was eligible to retire on January 10, 1989, almost twelve months earlier than she previously had indicated. The latter date appears to coincide with the plaintiffs attainment of the anniversary of his twenty-fifth year of service and sixty years of age. The plaintiff contends that his rights did not vest until he attained either twenty-five years of service or reached sixty years of age. If Carter meant to say vest rather than retire during her later testimony, then on the date of the dissolution the plaintiff would have been either six or eighteen months away from vesting, but none of this is clear from the record. What is apparent to this court is that this confusion regarding when the plaintiff was eligible to retire and whether Carter meant to say vest rather than retire, strengthens our belief that a remand for a new hearing on the financial orders is necessary in order fairly to resolve this dispute.

In reaching our conclusion, we are guided by a decision of the Appellate Court in Koper v. Koper, 17 Conn. App. 480, 553 A.2d 1162 (1989). In Koper, the Appellate Court reversed a judgment of dissolution after concluding that the trial court, in an articulation of the basis for the financial orders, had failed to explain the basis of its original decision, and had, in fact, changed its position on the issue of fault. Id., 484. Concluding that the original decision and the articulation were imper-missibly contradictory, the Appellate Court remanded the case to the trial court for a new trial because any attempt to resolve the conflict on the appellate level would have placed the court “in the untenable position of retrying the facts.” Id.

We find ourselves in a similar position to the court in Koper. It is clear to us that without the benefit of a definite resolution of the questions surrounding all the relevant pension information, we cannot be absolutely certain whether the Appellate Court correctly concluded that the trial court improperly had modified its original award order. Keeping in mind that we ultimately are charged with the responsibility of doing justice in the extraordinary circumstances of this case, we conclude that: (1) we cannot determine with certainty whether the trial court’s original order granted the defendant an interest in the plaintiffs lifetime pension, or only a survivorship interest upon the plaintiffs death; (2) we cannot reconcile clearly whether the clarification order by the trial court was intended to award 55 percent of the plaintiffs lifetime pension benefits or survi-vorship rights; (3) the trial court should determine whether the plaintiffs pension benefits vested, and if they did vest, when did they vest; (4) we must set aside the Appellate Court’s judgment because its interpretation of the trial court’s order may well be flawed; and (5) for us to resolve all of the preceding issues might well cast us, to a great degree, in the role of a fact finder.

Thus, for the reasons set forth in this opinion, we find it necessary to reverse the judgment of the Appellate Court and remand the case for a new hearing to establish a new set of comprehensive financial orders, including a new alimony award. We recognize that this unique case provides very little precedential value, and we hope not to see another of its kind again. Finally, given the longevity of these proceedings and with recognition of the patience of the parties involved, we strongly urge that this matter be given an expeditious reassignment for rehearing.

The judgment of the Appellate Court is reversed and the case remanded to that court with direction to remand the case to the trial court for a new hearing on the financial orders.

       At the outset, we note that we are not alone in this quandary. Several other courts and administrative agencies along the path of this procedural nightmare engendered by this case have evinced confusion about the true nature of both the trial court’s original and clarified intent regarding the defendant’s awarded interest in the plaintiffs pension. Rosato v. Rosato, 53 Conn. App. 387, 388-90, 731 A.2d 323 (1999); Rosato v. Office of Personnel Management, United States Court, of Appeals for the Federal Circuit, Docket No. 97-3332 (December 16,1997); Rosato v. Office of Personnel Management, 165 F.3d 1377, 1380 (Fed. Cir. 1999).

       In addition to the matter of the plaintiff’s pension, the trial court also ordered that: (1) the plaintiff pay the defendant alimony in the sum of $175 per week for a period of five years, with the alimony to terminate on the event of the defendant’s death, remarriage or cohabitation; (2) the parties retain their one-half interest in the family condominium and that the defendant be allowed to continue to live there for a period of five years at which time, if the unit was sold, the proceeds are to be divided equally between the parties; (3) the parties equally divide any of the plaintiffs remaining investments; and (4) the plaintiff pay the defendant’s attorney’s fees of $3000 within ninety days of the order.

       The trial court’s order provides in pertinent part: “I believe in terms of the transcript as I’ve reviewed it, that at the time the defendant had as a survivor a fifty-five percent interest.
      “Now, even though that percentage would have been taken in a different context, it was the Court’s intention because I only ordered—I believe it was five years of alimony at one hundred and seventy-five dollars per week for a [twenty-nine] year marriage—and based on what I heard as testimony, the Court did consider certain issues of fault that it would have been the Court’s intention that the percentage, the fifty-five percent, would apply to the current value of the pension. . . .”

       Whether the trial court’s order classified the defendant’s interest as a survivorship interest or an interest in the plaintiffs lifetime benefits is crucial. If the original order gave the defendant a survivorship interest in the plaintiffs pension, then the defendant would not be entitled to receive any payments during the plaintiffs lifetime. Thus, the order would allow the defendant to retain the survivorship benefits in the plaintiffs pension that she acquired as a spouse, and only upon the plaintiffs death would she be entitled to receive proceeds from such funds. If, however, the original order granted the defendant a current interest in the plaintiffs lifetime pension benefits and not a survivorship interest, then the defendant had rights upon 1he plaintiffs retirement, regardless of when the plaintiff dies.

       General Statutes § 46b-81 (a) provides: “At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.”

       From a review of the parties’ briefs filed in the Appellate Court, it appears that the Appellate Court, sua sponte, changed the language from “he” to “[she] ” in the award, perhaps in an attempt to clarify the trial court’s original order. In any event, it is not clear why the word “she” was substituted for the word “he” in the opinion of the Appellate Court.

       The Appellate Court interpreted the order as “simply allow[ing] the [wife] to retain the survivorship benefits in the [husband’s] pension that she acquired as a spouse.” Rosato v. Rosato, supra, 40 Conn. App. 535.

       On March 13, 1996, the office sent the defendant notice that her request for lifetime benefits was denied because (1) of the infirmity in the trial court’s original order, and (2) in 1992, the plaintiff had changed his election to provide for a former spouse survivor annuity as follows: “Survivor annuity equal to 0% of my annuity.” In response to the defendant’s request for a reconsideration, on June 24, 1996, the office denied the defendant the relief that she sought, stating as follows: “Since your divorce decree did not ‘expressly’ award you a former spouse survivor annuity, you are ineligible for a former spouse survivor annuity based upon court order. Also, since [the plaintiff] did not elect a reduced annuity at the time of his retirement 1o provide for a former spouse survivor annuity for you, you are ineligible for a former spouse survivor annuity based on annuitant’s election.”

       The plaintiff previously intervened as a party in the administrative action initiated by the defendant.

       Consistent with the entire construct of this case, the Court of Appeals subsequently stated that “[the office’s] reconsideration decision is, politely stated, puzzling.” Rosato v. Office of Personnel Management, 165 F.3d 1377, 1380 (Fed. Cir. 1999).

       The defendant was appearing pro se at this point.

       See footnote 5 of this opinion for the text of § 46b-81 (a).

       Moreover, the plaintiff contends that the defendant was not entitled to any award of benefits with regard to the pension because the survivorship interest that she had at the time of the dissolution was zero.

       Later, in that same proceeding, the trial court added: “So I am clarifying the judgment with respect to only that provision which refers to the pension. And with respect to that, it was the Court’s intention to award the defendant fifty-five percent of that pension.”

       We note that both the office and the Court of Appeals have interpreted the original order as granting the defendant a percentage of her lifetime benefits without concluding what that percentage might be because of the restriction on their jurisdiction. Rosato v. Office of Personnel Management, supra, 165 F.3d 1380-81.

       While we have determined that vested pension benefits are not mere expectancies and, therefore, are properly distributable as marital assets; see Krafick v. Krafick, 234 Conn. 783, 798, 663 A.2d 365 (1995); we left open the question of whether nonvested pensions are distributable. Id., 798-99 n.23.

       Evidence that directly addressed the question of the date of the plaintiffs vesting was contained in a letter dated September 10, 1987, which was introduced and admitted into evidence during Carter’s testimony. The author of the letter, Doris Giles, who was manager of personnel services for the post office and also Carter’s supervisor, wrote to the defendant’s attorney at that time that the plaintiffs vesting period was only five years. If true, then the plaintiffs pension clearly was marital property subject to distribution pursuant to § 46b-81. See Krafick v. Krafick, 234 Conn. 783, 798, 663 A.2d 365 (1995). Unfortunately, this crucial evidence seems to have been ignored by all involved, as the focus of Carter’s testimony revolved around the question of the plaintiffs eligibility to retire and what benefits he would receive were he hypothetically to leave his job on the day Carter testified.

       The remand for a new hearing on the financial orders necessarily will be before a different trial court than that which issued both the original order and the clarification. See State v. Gonzales, 186 Conn. 426, 436 n.7, 441 A.2d 852 (1982); Quindazzi v. Quindazzi, 56 Conn. App. 336, 337 n.l, 742 A.2d 838 (2000); State v. Douglas, 10 Conn. App. 103, 119, 522 A.2d 302 (1987); see also General Statutes § 51-183c (“[n]o judge of any court who tried a case without a jury in which a new trial is granted, or in which the judgment is reversed by the Supreme Court,, may again try the case”).

       We recognize that it is an open question whether nonvested pension benefits are subject to distribution in a dissolution order. Krafick v. Krafick, 234 Conn. 783, 798-99 n.23, 663 A.2d 365 (1995). Should the trial court conclude that the plaintiffs interest had not yet vested, this court retains jurisdiction on appeal to expedite a decision on this question should one become necessary.