Feen v. New England Benefit Cos.

• Citation: 81 Conn. App. 772,841 A.2d 1193
• Decision Date: 02 March 2004
• Docket Number: (AC 23903)
• Parties: CARL S. FEEN v. NEW ENGLAND BENEFIT COMPANIES, INC., ET AL.
• Court: Appellate Court of Connecticut

81 Conn. App. 772

841 A.2d 1193

CARL S. FEEN v. NEW ENGLAND BENEFIT COMPANIES, INC., ET AL.

(AC 23903)

Appellate Court of Connecticut.

Argued December 5, 2003

Officially released March 2, 2004

West, McLachlan and Peters, Js.

Wesley W. Horton, with whom were Daniel J. Krisch, Timothy P. Pothin and, on the brief, Marisa A. Bellair and Barbara Ellis, legal intern, for the appellant (defendant).

Ira B. Grudberg, with whom was Alinor C. Sterling, for the appellee (plaintiff).

Opinion

McLACHLAN, J.

In this breach of contract action, the defendant New England Benefit Companies, Inc.,¹ appeals from the judgment of the trial court awarding the plaintiff, Carl S. Feen, $371,400.09 in damages. At issue is the court's construction of two oral contracts governing the payment of commissions to the plaintiff for two joint marketing ventures undertaken with the defendant. On appeal, the defendant claims that the court (1) improperly concluded that one contract remained in force after the occurrence of an event that the defendant contends terminated the contract and (2) misconstrued the commission structure of the other contract. We affirm the judgment of the trial court.

This appeal arises out of a business relationship between the plaintiff, an insurance broker, and the defendant, a Rhode Island corporation specializing in administering and marketing group insurance policies to professional organizations. The purpose of the relationship was for the plaintiff to assist the defendant, through its principal, Samuel H. Fleet, in marketing group life, medical and disability insurance plans to two organizations: The Connecticut Bar Association (bar association) and the Connecticut State Dental Association (dental association). It was Fleet's hope that the plaintiff, who purportedly had established good relations with both organizations, would be pivotal to the success of those marketing efforts.

Beginning in the summer of 1993, Fleet and the plaintiff met several times to discuss their marketing plans and eventually reached an oral agreement that, in exchange for the plaintiff's assistance in procuring a group insurance contract with the bar association, the defendant would pay the plaintiff a percentage of its total annual commission income. In January, 1994, the bar association accepted the defendant's offer, and the defendant began administering group insurance plans for the bar association's membership, underwritten by Homelife Financial Assurance Corporation (Homelife).²

Shortly thereafter, the parties discussed a similar arrangement for the plaintiff to assist the defendant in marketing a group insurance plan to the dental association. The parties again reached an oral agreement that if the defendant secured the dental association's group insurance business, the plaintiff would receive a share of the commissions. In late 1994, the dental association accepted the defendant's offer for a three year contract, and the defendant began administering group insurance plans for the dental association's membership.

Although initially the relationship between the parties was amicable, it turned acrimonious when, in early 1996, the defendant substituted CNA Insurance Company (CNA) for Homelife as underwriter for the bar association policies and, thereafter, stopped making commission payments to the plaintiff. At approximately the same time, the defendant also stopped making commission payments to the plaintiff for the dental association policies, having paid the plaintiff only for the first year of the contract.

On April 18, 2001, the plaintiff brought a two count complaint against the defendant for its alleged breach of the two oral contracts governing the payment of commissions related to the bar association and dental association insurance contracts. At trial, Fleet and the plaintiff provided conflicting testimony as to the terms of the commission agreements. As to the bar association contract, they both testified that they had agreed that the plaintiff would receive one-third of the defendant's total annual commission on the policies and that the defendant would keep the remaining two-thirds. The principal area of disagreement between the parties concerned whether their commission splitting agreement would continue if the defendant replaced the underwriter for the bar association policies. The plaintiff testified that the agreement would continue on a one-third-two-thirds basis even if the defendant replaced the initial underwriter. Fleet, in turn, testified that he and the plaintiff had agreed to negotiate a new commission splitting agreement if the bar association policies were underwritten through a new carrier. Fleet expressly denied ever telling the plaintiff that their arrangement would continue for as long as the defendant provided group insurance services to the bar association, regardless of the underwriter.

With respect to the dental association contract, the plaintiff testified that he and Fleet had agreed that the plaintiff would receive 1 percent of the defendant's total annual commission in the first year of the contract and 2 percent in years two and three of the contract. Fleet, in contrast, testified that the agreement called for the plaintiff to receive 1 percent in the first year, 0.5 percent in the second year and nothing in the third year.³

After hearing those conflicting versions of the contracts, the court credited the plaintiff's testimony over that of Fleet in virtually every respect. The court found that the parties had agreed that the commission payments would continue for as long as the defendant administered policies to the bar association membership, regardless of whether the initial underwriter was replaced. As to the dental association contract, the court found that the commission structure agreed to by the parties called for payments of 1 percent, 2 percent and 2 percent, respectively, for the three years of the contract. Consequently, the court awarded the plaintiff damages in the amount of $371,400.09.⁴ This appeal followed.

I

The defendant first claims that the court improperly construed the duration of the bar association contract as continuing after the replacement of Homelife, the initial underwriter, with CNA and, consequently, awarded excessive damages. We decline to review that claim.

The defendant predicates its claim on the contention that the oral contract at issue was a personal services contract, terminable at the will of either party, and that its replacement of Homelife in 1996 was an act sufficient to terminate the contract. The defendant argues, therefore, that the court's damages award was excessive to the extent that it included damages that occurred past early 1996.⁵

Because the defendant failed to raise that issue before the trial court, the claim was not preserved for appellate review. "[I]t is the appellant's responsibility to present such a claim clearly to the trial court so that the trial court may consider it and, if it is meritorious, take appropriate action. . . . For us [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge." (Citation omitted; internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 265, 828 A.2d 64 (2003). "A plaintiff cannot try his case on one theory and appeal on another." McNamara v. New Britain, 137 Conn. 616, 618, 79 A.2d 819 (1951).⁶ We accordingly conclude that the issue was not properly preserved for appellate review.

Although we ordinarily limit our review on appeal to issues that were distinctly raised at trial and ruled on by the court, we can nevertheless consider unpreserved claims under the rubric of plain error, as the defendant urges. For the two reasons we will set forth, we decline to do so.

First, the defendant requests such review for the first time in his reply brief. "It is a well established principle that arguments cannot be raised for the first time in a reply brief." (Internal quotation marks omitted.) Willow Springs Condominium Assn, Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 48 n.42, 717 A.2d 77 (1998). That principle has routinely been applied to requests to review an unpreserved claim pursuant to the plain error doctrine. See, e.g., Daniels v. Alander, 75 Conn. App. 864, 882-83, 818 A.2d 106, cert. granted on other grounds, 264 Conn. 901, 823 A.2d 1219 (2003); State v. Barlow, 70 Conn. App. 232, 249, 797 A.2d 605, cert. denied, 261 Conn. 929, 806 A.2d 1067 (2002). We accordingly do not review the defendant's claim.

Second, even if the defendant had requested plain error review in its principal brief, we remain unconvinced that such review is warranted. As we have often reiterated, plain error review "is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Internal quotation marks omitted.) State v. Holmes, 78 Conn. App. 479, 484, 827 A.2d 751, cert. denied, 266 Conn. 909, 832 A.2d 73 (2003). We are not persuaded that the claim presents the type of extraordinary situation for which such review is reserved. In both its principal and reply briefs, the defendant characterizes its claim as one that hinges on a facet of contract law that, while alluded to in dicta in a case more than a half-century old,⁷ has yet to be squarely addressed by our courts.

Confronted, as we allegedly are here, with a claim contingent on unsettled legal principles, we must decline to afford plain error review for...