Jones v. Ippoliti

• Decision Date: 16 March 1999
• Docket Number: (AC 15401)
• Citation: 727 A.2d 713,52 Conn. App. 199
• Court: Connecticut Court of Appeals
• Parties: RICHARD D. JONES ET AL. v. EDGARDO IPPOLITI ET AL.

52 Conn. App. 199

727 A.2d 713

RICHARD D. JONES ET AL. v. EDGARDO IPPOLITI ET AL.

(AC 15401)

Appellate Court of Connecticut.

Argued September 15, 1998.

Officially released March 16, 1999.

Landau, Schaller and Healey, JS. Frank J. Silvestri, Jr., with whom were Paul L. Bollo and, on the brief, Maximino Medina, Jr., for the appellants-appellees (defendants).

Eliot B. Gersten, with whom was Jeanine M. Dumont, for the appellees-appellants (plaintiffs).

Opinion

LANDAU, J.

The defendants¹ appeal from the judgment of the trial court, rendered after a trial to the court, awarding damages, offer of judgment interest and attorney's fees to the plaintiffs² for services rendered by the plaintiffs to the defendants. In a succession of challenges to the factual findings of the trial court, the defendants claim that the trial court improperly found (1) that they failed to tender payment of the underlying debt, (2) that the promissory note executed by the defendants to the plaintiffs had not been paid, (3) that the defendants committed fraud and breached the duty of good faith, (4) that the depositing of funds into a particular account, the subsequent creation of certified checks and the transfer of equipment constituted an intent to defraud, (5) that the defendant Edgardo Ippoliti was the alter ego of the corporation under the identity rule, (6) that the award of attorney's fees was unreasonable and unconscionable and (7) that, as a matter of law, the defendants' failure to file a certificate of adoption of trade name, in addition to the findings of fraud and fraudulent conveyance, amounted to an unfair and deceptive practice as defined in the Connecticut Unfair Trade Practices Act (CUTPA).³ In addition, the defendants claim that the trial court violated the Code of Judicial Conduct and General Statutes § 51-51i in that, not only was the appearance of impropriety present, but actual bias existed and, therefore, as a matter of public policy, the entire judgment should be set aside.⁴ In their cross appeal, the plaintiffs seek to recover "in-house" attorney's fees for the services they performed to assist their trial counsel in the prosecution of this case. We affirm the judgment of the trial court.

The trial court found the following facts. In 1990, Edgardo Ippoliti, a shareholder of the defendant corporation, a masonry subcontractor, retained the plaintiffs to represent the defendant corporation in a dispute with Turner Construction Company, a general contractor, concerning the construction of the Yale Center for Molecular Medicine in New Haven. As the Ippoliti account fell in arrears, the plaintiffs suggested that the defendants agree to reduce the balance of their account to a promissory note. On March 1, 1991, the defendant corporation and Ippoliti jointly and severally executed a promissory note, which had a maturity date of December 31, 1991, in favor of the plaintiffs.⁵ On December 17, 1991, and through subsequent statements to the plaintiffs, Ippoliti promised that he would be individually liable on a new promissory note covering the balance then due, $90,950.21, which included the unpaid original note. Ippoliti failed to execute the new promissory note and made false representations in order to induce the plaintiffs to continue to represent the defendants in the Turner matter.⁶

The defendants thereafter failed to tender payment to the plaintiffs. The plaintiffs commenced the underlying action in 1993 to collect fees for services rendered, primarily in connection with the defendant corporation's dispute with Turner Construction Company, together with interest and attorney's fees. The plaintiffs alleged breach of contract, failure to pay a promissory note, quantum meruit, promissory estoppel, breach of a duty of good faith and fair dealing, fraudulent conveyance, fraud and violation of CUTPA. The defendants counterclaimed, alleging breach of contract and breach of the duty of good faith and fair dealing, conversion and violation of CUTPA. Following a lengthy trial, the trial court found for the plaintiffs on each count of the complaint and on each count of the counterclaim.⁷

I THE APPEAL

Initially, we address the defendants' claim that the public policy embodied in Canon 3 (c) of the Code of Judicial Conduct⁸ and General Statutes § 51-51i⁹ compels this court to set aside the judgment. Specifically, the defendants claim that the issue in this case is not an appearance of bias but whether there is actual bias. The following additional facts are relevant to the resolution of this claim. On November 17, 1994, at the beginning of the trial, the trial judge volunteered that he was familiar with the masonry business because, as an attorney, he had represented a mason supplier, American Mason Supply. At that time, the defendants' counsel failed or neglected to advise the trial court of any contact between American Mason Supply and the defendants. Approximately one month later, the trial judge recognized the name of American Mason Supply when he reviewed recently subpoenaed documents. The trial judge, still unaware of any relationship between American Mason Supply and the defendants, pointed out that he had represented American Mason Supply in the past and indicated that the owner of the company was a close friend.¹⁰ A lengthy discussion followed in which the defendants' counsel informed the court that while he was aware of the fact that the court had represented American Mason Supply, he had not been aware of the close friendship that existed between the court and the principal of that company.

During this discussion, the plaintiffs' counsel urged that the defendants either move to recuse the trial judge or waive the alleged conflict in order to avoid that issue on appeal.¹¹ The trial judge represented that he saw no problem with the relationship's interfering with his adjudication of the case. Furthermore, the trial judge noted that he was familiar with a member of the plaintiffs' law firm because, when he represented American Mason Supply, the plaintiffs' law firm acted as opposing counsel and that particular attorney might have been hardheaded during negotiations. After further discussion regarding the nature of the relationship between the court and the owner of American Mason Supply, the defendants' counsel stated: "Your Honor, I accept the court's representations and I will not make a motion to recuse," at which point the trial continued.

The defendants assert that the public policy embodied in Canon 3 (c) and § 51-511 does not confer rights on litigants but, instead, imposes duties on the judiciary and, thus, the defendants could not have waived the claim of actual bias of the trial court.¹² Furthermore, the defendants appear to argue that actual bias existed in the proceeding based on the trial court's conclusions regarding the finding of fraud, the finding that the promissory note had not been paid, the awarding of attorney's fees, the piercing of the corporate veil, the issuance of an ex parte attachment after the trial but before final judgment was rendered, and the termination of the automatic stay.

While we realize that both the original action and the appeal have a long history, the record in this hotly contested collection action is bare of any evidence substantiating allegations of judicial bias. In fact, the record reveals that the trial judge affirmatively and candidly placed on the record his relationship with American Mason Supply and permitted the defendants the opportunity to move to recuse him. The defendants chose not to take advantage of the opportunity presented by the trial court but, instead, proceeded to trial. "We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial. We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal." (Internal quotation marks omitted.) Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967); Parker v. Shaker Real Estate, Inc., 47 Conn. App. 489, 497, 705 A.2d 210 (1998); see also Schnabel v. Tyler, 32 Conn. App. 704, 714-15, 630 A.2d 1361 (1993), aff d on other grounds, 230 Conn. 735, 646 A.2d 152 (1994) (failure to request recusal or to move for mistrial represents acquiescence to judge's presiding over trial and prohibits review of claim on appeal); Emerick v. Emerick, 28 Conn. App. 794, 808, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992) (when not raised at trial by motion for disqualification, claims alleging judicial bias deemed waived); Lo Sacco v. Young, 20 Conn. App. 6, 9, 564 A.2d 610, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989) (failure to request recusal or to move for mistrial construed as functional equivalent of consenting to judge's presiding over trial). We conclude, therefore, that this claim is without merit.

As to the remaining claims on appeal, the parties agree that they encompass a challenge to the trial court's findings of facts. "Our role in reviewing an appeal based on the sufficiency of the evidence is well defined. Where the claim is that the evidence produced did not satisfy the burden of proof factually, the duty of an appellate court is well established. An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court.... Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are...