Horrocks v. Keepers, Inc. ( 2022 )

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HORROCKS v. KEEPERS, INC.—CONCURRENCE
FLYNN, J., concurring. I agree that the trial court’s
judgment should be affirmed. I write separately for the
following reasons. It has been usual for this court either
to address each claim raised by an appellant on appeal
or, in the alternative, to explain why review is not under-
taken. In the present case, the first claim of the defen-
dants/appellants, Keepers, Inc., and Joseph Regensb-
urger, is ‘‘[w]hether the standard of review for the trial
court should have been de novo review rather than the
more deferential review afforded arbitration decisions
when the arbitrator found the entertainment lease
agreement violated public policy and determined it to
be illegal.’’ This claim is listed as Roman numeral one in
the defendants’ statement of issues, and the defendants
devote more than one half of their appellate brief to
detailing their supporting arguments. I write separately
to explain why I think this claim, ultimately, is unreview-
able. In support of their argument, the defendants cite
to Schoonmaker v. Cummings & Lockwood of Connect-
icut, P.C., 252 Conn. 416, 425, 747 A.2d 1017 (2000)
(‘‘we conclude that because the arbitrator’s decision
regarding the postemployment payments implicated a
legitimate public policy, that is, facilitating clients’
access to an attorney of their choice, the trial court
should have exercised de novo review’’). In response,
the plaintiffs, Crystal Horrocks, Yaritza Reyes, Dina
Danielle Caviello, Jacqueline Green, Sugeily Ortiz and
Zuleyma Bella Lopez, contend: ‘‘Although the first issue
raised by the defendants in this appeal is disguised
as a legal question concerning the standard of review
utilized by the trial court, they are actually asking this
court to hold that the trial court applied an improper
standard of review to a claim it was never asked to
consider. Despite never challenging the arbitrator’s
determination that the . . . agreement was void as a
matter of public policy, in [their] motion to vacate [the
arbitration awards], the defendants now ask this court
to reverse the trial court on an issue [they] never raised.’’
The defendants raise for the first time on appeal the
issue of whether the arbitrator properly had determined
that the agreement was void as a matter of the public
policy of the freedom to contract and challenge the
standard of review purportedly used by the trial court
in addressing that issue. However, there is an obstacle
in the path of reviewability. The defendants never raised
in connection with their motion to vacate a challenge
to the arbitrator’s decision that the agreement was void
as a matter of the public policy of the freedom to con-
tract, and, as a result, the trial court did not address
that issue, much less apply a standard of review to it.
The defendants’ mere citation in their motion to vacate
to Schoonmaker v. Cummings & Lockwood of Connect-
icut, P.C., supra, 252 Conn. 416, for the proposition that
the arbitrator in the present case exceeded his authority
under General Statutes § 52-418 (a) (4), is not sufficient.
Although Schoonmaker concerns the necessity to
review an arbitrator’s decision de novo where it affects
the public policy of a client’s right to be represented
by an attorney of his or her choice, reference to Schoon-
maker, without more, would not alert a trial court to the
distinct freedom to contract ground that the defendants
now assert for the first time on appeal. This court cannot
review a claim on appeal that the trial court applied
the wrong standard of review to a claim that it had not
been asked to review. Issues must be distinctly raised
before the trial court to be reviewable on appeal. See E.
Prescott, Connecticut Appellate Practice & Procedure
(7th Ed. 2021) § 8-2:1.1, p. 466; see also Practice Book
§ 60-5 (reviewing court not bound to consider claim not
distinctly raised at trial).