Jones v. Ippoliti

727 A.2d 713, 52 Conn. App. 199, 1999 Conn. App. LEXIS 90
CourtConnecticut Appellate Court
DecidedMarch 16, 1999
DocketAC 15401
StatusPublished
Cited by26 cases

This text of 727 A.2d 713 (Jones v. Ippoliti) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Ippoliti, 727 A.2d 713, 52 Conn. App. 199, 1999 Conn. App. LEXIS 90 (Colo. Ct. App. 1999).

Opinion

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 (l).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 Ippol-iti 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 [201]*201fraudulent 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 § 51-5U 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, [202]*202concerning 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

[203]*203The 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 § 51-5H9 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.

[204]*204The following additional facts axe 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 [205]*205no 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 § 51-5M 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 [206]*206reveals 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.

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Bluebook (online)
727 A.2d 713, 52 Conn. App. 199, 1999 Conn. App. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-ippoliti-connappct-1999.