LAVINE, J.
This appeal is one of several arising out of the proposed redevelopment of waterfront property in Bridgeport (city) known as Steel Point.
In their cross appeal, the defendants Alfred Lenoci, Sr., Alfred Lenoci, Jr., United Properties, Ltd., and Crescent Avenue Development Company (Lenoci defendants) claim that it was improper for the court to deny their motions for a directed verdict and to set aside the verdict as a result of concluding that the plaintiff's action was not barred by (1) the
The plaintiff's second revised complaint sounds in ten counts alleged against eighteen defendants.
In the same memorandum of decision, the court summarized undisputed facts, quoting frequently from the development agreement. "In November, 1998, the plaintiff, the city and the United Illuminating Company entered into a development agreement regarding the development of Steel Point. According to the complaint. . . this [development] agreement was executed `after more than a year of protracted negotiations and delays.' The completion of the agreement required satisfaction of numerous conditions, studies and financial and regulatory requirements. These conditions included approvals from the Connecticut development authority, the state of Connecticut bond commission, the Bridgeport city council, as well as from `all required City officials and entities' and `other state authorities as required by law.'. . . After full performance of the development agreement, the precise cost, financial obligations and construction `plans, specifications timetable and . . . standards' of the construction would be set forth in either a restated agreement or a land disposition agreement. . . .
"In summary, the development agreement was a very extensive and detailed preliminary understanding which contemplated the negotiation and execution of subsequent property conveyance and construction contracts after substantial preparatory and investigatory work had been completed and after the `amount of public funding [had] been more definitively ascertained and at such time as the Parties [had] achieved a more definite assessment of the precise cost of developing the Project.'
"The development agreement was amended three times, but its requirements were never completed. In or about 2000 or 2001, the city terminated the [development] agreement. . . . [T]he complaint alleges that this termination was a breach of the city's obligations under the [development] agreement. The complaint further alleges [that] the plaintiff's ability to perform or complete the [development] agreement fully or satisfactorily was frustrated and interfered with by the criminal or corrupt conduct of the other defendants. These claims are denied by the defendants. . . . Assuming, arguendo, the plaintiff's allegations of the defendants' wrongful conduct, there is no dispute that when the development agreement was terminated, all of the conditions and requirements of the [development] agreement had not been met. All the governmental approvals or permits, particularly from the city council and the state bonding commission, had not been obtained. No contracts for the transfer and construction of the property,
The court denied the plaintiff's motions for additur and to set aside the verdict, noting that the evidence at trial was conflicting and citing Skrzypiec v. Noonan, 228 Conn. 1, 11, 633 A.2d 716 (1993) ("[t]he existence of conflicting evidence limits the court's authority to overturn a jury verdict"). The court concluded that it could not find that "the jury could not have
Thereafter, the court awarded the plaintiff punitive damages, attorney's fees and costs pursuant to the jury's finding against the Lenoci defendants on the CUTPA claim and against Ganim on the fraudulent misrepresentation claim. The plaintiff appealed, and Ganim and the Lenoci defendants cross appealed.
The plaintiff has appealed from the judgment of the trial court claiming that the court improperly (1) precluded it from presenting evidence of (a) lost profits, (b) lost overhead expenses and (c) prior misconduct, and (2) awarded it inadequate punitive damages. We disagree with the plaintiff's claims.
We first address the plaintiff's claims that the court improperly precluded it from presenting certain evidence of damages and prior misconduct on the part of the defendants. The plaintiff cannot prevail on these claims.
The plaintiff claims that it was improper for the court to grant the defendants' motions in limine precluding it from presenting evidence of lost profits, i.e., the profits the plaintiff claims it would have made had the city not terminated the development agreement. In granting the defendants' motions to preclude such evidence, the court concluded that the evidence was grounded in speculation and therefore inadmissible. We agree with the trial court.
The plaintiff and the Lenoci defendants disagree as to the applicable standard of review for the plaintiff's claim. The plaintiff contends that the de novo standard applies to legal determinations, citing Duffy v. Flagg, 279 Conn. 682, 688-89, 905 A.2d 15 (2006) (ruling on motion in limine based on court's legal determination regarding informed consent claim). It claims that the court's granting of the motions in limine was predicated on the court's finding that there was insufficient evidence of lost profits, a question of law. The Lenoci defendants
"While evidentiary determinations are usually reviewed for abuse of discretion;
"In [the] context of [a] tortious interference claim, [a] plaintiff must show more than that he was about to enter into [a] contract and must, instead, show that he would have done so . . . . A damage theory may be based on assumptions so long as the assumptions are reasonable in light of the record evidence." (Internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 70, 717 A.2d 724 (1998).
We turn now to the facts underlying the plaintiff's claim. In December, 2005, the plaintiff disclosed two witness to provide expert testimony as to its claim of lost profits, Robert B. Pauls and Stephen J. Kieras. Pauls has extensive experience in real estate development and, in 1999, completed a market analysis and a rent forecast report for the plaintiff. Pauls predicted the rental revenue the plaintiff could expect upon completion of the project. In reaching his conclusions, Pauls relied on a 1999 report prepared by Rothschild, Inc., on behalf of the city, and a construction costs report. Kieras, who at the time the plaintiff was negotiating with the city, was the vice president for development of the Taubman Company (Taubman). In the summer of 2000, Kieras sent letters to Ganim explaining that Taubman had completed its due diligence on the project and was committed to it.
In September, 2006, several of the defendants filed, or joined in,
The defendants' motions in limine contended that "evidence regarding the plaintiff's claim for lost profits should be excluded because, as a matter of law, the claim is premised on so many assumptions and contingencies that its consideration by the jury would require the jury to engage in surmise and guesswork." In ruling on the motions in limine, the court found that "to preclude evidence of lost profits implicate[s] the issue of causation, an essential element that must be proven by the plaintiff under all causes of action asserted in the complaint." The court, quoting Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 734 A.2d 85 (1999),
The court stated that the "deficiency of the plaintiff's claim for lost profits is fundamental. The plaintiff bases the lost profits claim on a nonexistent contract whose potential realization and returns are remote as a matter of law because its evidentiary support is contingent and speculative. . . . [T]he development agreement did not provide for the construction of the project; it was merely a contract to pursue a restated development agreement or a land disposition agreement where the precise cost, plans and specifications of the construction would be set forth. Assuming, hypothetically, that all of the conditions and contingencies of the development agreement were achieved, the city was
In Goodstein Construction Corp., the Court of Appeals of New York stated, in part, "[t]o allow the profits that [Goodstein] might have made under the prospective [land development agreement] as the damages for breach of the exclusive negotiating agreements would be basing damages not on the exclusive negotiating agreements but on the prospective terms of a nonexistent contract which the City was fully at liberty to reject. It would, in effect, be transforming an agreement to negotiate for a contract into the contract itself." Id., at 373, 590 N.Y.S.2d 425, 604 N.E.2d 1356.
"[A] party's alleged failure to bargain in good faith is not a but-for cause of [Goodstein's] lost profits, since even with the best faith on both sides the deal might not have been closed [and] attributing [Goodstein's] lost profits to [the city's] bad faith may be speculative at best. . . . [A]n award based on [the expectation interest] would give the injured party the benefit of the bargain that was not reached. But if no agreement was reached and . . . it cannot even be known what agreement would have been reached, there is no way to measure the lost expectation. . . ." (Citations omitted; internal quotation marks omitted.) Id., at 373-74, 590 N.Y.S.2d 425, 604 N.E.2d 1356.
In their motions in limine, the defendants emphasized the numerous requirements and contingencies of the development agreement that the plaintiff had not met at the time the city terminated the development agreement. In its memorandum of decision, the trial court focused on the approvals the plaintiff was required to get from state and local governments and regulatory authorities, including the state bonding commission, department of transportation and the Bridgeport city council, to demonstrate the contingencies affecting the Steel Point development project. There is no dispute that the plaintiff did not obtain all of the approvals required by the development agreement. The court found that the plaintiff had not, and could not, advance any sufficient, nonspeculative arguments or evidence that the required governmental and regulatory approvals would have issued in its favor, thereby establishing the
The court identified the issue as "whether, in the absence of the defendants' wrongdoing or corrupt influences, the plaintiff can provide evidence, beyond surmise and conjecture, that the necessary city council authorizations would have been acquired." (Emphasis in original.) The court reasoned that the state and local authorities, acting in good faith and within the legitimate exercise of their governmental authority, could have accepted or rejected the plaintiff's proposal even if the proposal had been finalized. The court concluded that the approvals that the plaintiff needed from the state bonding commission and the Bridgeport city council were not "`merely perfunctory or ministerial [acts]. On the contrary, the required approval[s] contemplated . . . discretionary legislative action that was political in nature and not subject to judicial review,'" quoting Goodstein Construction Corp. v. City of New York, supra, 80 N.Y.2d at 372, 590 N.Y.S.2d 425, 604 N.E.2d 1356. On appeal, the plaintiff does not challenge the court's conclusion that the approvals were discretionary acts of governmental entities, and we do not disagree with the court's conclusion.
In its appellate brief, the plaintiff relies on 2 Restatement (Second), Torts, Unintended Consequences of Intentional Invasions § 435 B, p. 455 (1965),
Thus, the plaintiff argues that "when determining proximate cause in intentional tort cases, the court may consider: (1) the defendant's intent to do harm, (2) the degree of moral wrong involved and (3) the seriousness of the harm originally intended."
The shortcoming in the plaintiff's arguments, which contain accurate statements of the law, is that the court never got to the point of considering what evidence was admissible. The issue before the court was not what evidence the plaintiff could present to prove recoverable damages, but whether there were any damages to be recovered. It is not that the evidence the plaintiff sought to present was not admissible as to lost profits but that the evidence was not admissible on the ground of relevance, the court concluded, because there was insufficient evidence that the Steel Point project would come to fruition.
"Although we recognize that damages for lost profits may be difficult to prove with exactitude . . . such damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount with reasonable certainty." (Citations omitted; emphasis in original; internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. at 69, 717 A.2d 724.
The plaintiff claims that the only question before this court is whether the Steel Point "project would have been completed in the absence of the defendants' conspiracy. . . ."
As the Lenoci defendants point out, the development agreement contemplated that the plaintiff and the city would finalize their rights and obligations regarding the Steel Point project through three agreements, a restated agreement, a land disposition agreement and a purchase and sale agreement related to the transfer of real property owned by the United Illuminating Company.
For all of the foregoing reasons, we conclude that the court properly granted the defendants' motions in limine to preclude
The plaintiff's second claim is that the court erred when it precluded the plaintiff from presenting evidence of damages related to overhead expenses.
During the lengthy testimony of Alexius C. Conroy, owner of the Conroy Development Company,
The defendants objected to Conroy's proposed testimony regarding lost overhead as speculative, lacking foundation and hearsay, among other things, and in violation of the rules of practice regarding discovery. Counsel for certain of the defendants pointed to Conroy's deposition testimony in which he was unable to "break down the various expenses" of the plaintiff's damages claim.
Following the plaintiff's voir dire of Conroy, the court sustained the defendants' objections to the testimony and summary. It concluded that the overhead expenses were not compensable as a matter of law. It found, as well, that the defendants had inquired about the damages at Conroy's deposition and that he could not provide the information. The plaintiff never provided the information at a later time. In ruling, the court stated, "although damages are not required to be proven with mathematical certainty, the plaintiff must present evidence that provides a reasonable basis for the jury to determine damages without resort to speculation or surmise.
Several weeks later, the plaintiff again sought to introduce evidence of overhead expenses through the testimony of its expert witness, Ira Kaplan, an accountant. The defendants objected, arguing that the court previously had ruled on the issue at the time Conroy testified. The plaintiff countered that it had disclosed Kaplan as an expert witness subsequent to Conroy's deposition and provided the substance of his testimony in the disclosure, but the defendants never deposed Kaplan.
The defendants objected to evidence of overhead expenses on the ground that it violated the court's discovery order and the rules of practice.
The defendants argued that the plaintiff had abused the discovery process and, to the extent that Kaplan would testify about overhead and the value of Conroy's time, that the court previously had precluded its admission in evidence. Moreover, to the extent that Kaplan would testify about various financial statements that underlie the summary, the defendants have never had an opportunity to see those documents,
Practice Book § 13-14
It is not an abuse of the court's discretion to preclude evidence as a sanction for the plaintiff's failing to comply with discovery. "[T]he primary purpose of a sanction for violation of a discovery order is to ensure that the defendant's rights are protected, not to exact punishment on the [plaintiff] for its allegedly improper conduct. . . . The determinative question for an appellate court is not whether it would have imposed a similar sanction but whether the trial court could reasonably conclude as it did given the facts presented. Never will the case on appeal look as it does to a [trial court] . . . faced with the need to impose reasonable bounds and order on discovery." (Citation omitted; internal quotation marks omitted.) Usowski v. Jacobson, 267 Conn. 73, 85, 836 A.2d 1167 (2003).
On the basis of the record before us, we cannot conclude that the court abused its discretion by precluding evidence of the proffered overhead expenses. The defendants' notice of deposition to the plaintiff requested it to present the most knowledgeable person within the plaintiff to testify about damages and to bring any damages evidence to the deposition. At the time of the deposition, Conroy was not able to provide specific information in response to questions posed, and he did not bring any documents with him. Kaplan was disclosed as an expert who would provide the facts underlying Conroy's estimates of the overhead costs. The defendants did not depose Kaplan. At the time the plaintiff sought to present Kaplan's testimony, it made the documents available to the defendants for the first time. We agree with the court that no counsel should be burdened for the first time at trial with documents that underlie the testimony of a witness who should have been produced earlier pursuant to a discovery request. We conclude therefore that the court properly precluded the plaintiff's proffered evidence of overhead expenses.
The plaintiff's third evidentiary claim is that the court improperly precluded evidence of prior misconduct on the part of Kasper
We generally review claims of evidentiary impropriety for abuse of the court's discretion. See State v. Carpenter, 275 Conn. 785, 815, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S.Ct. 1578, 164 L.Ed.2d 309 (2006).
The following procedural history and facts are relevant to the plaintiff's claim. In its second revised complaint, the plaintiff alleged tortious interference, a violation of CUTPA and violation of General Statutes § 52-564 (statutory theft)
The plaintiff sought to enter evidence of Kasper's alleged prior misconduct to establish that Kasper was aware of the corrupt conspiracy to terminate the development agreement the city had with the plaintiff so that United Properties, Ltd., could acquire the rights to develop Steel Point. The defendants objected to each instance of alleged prior misconduct on Kasper's part as being outside the scope of the pleadings, irrelevant and collateral to the plaintiff's claim of damages arising from the Steel Point project.
Apparently, at some time prior to trial,
At trial, the court made preliminary statements regarding prior misconduct evidence. "First, there is no cause of action for . . . conspiracy under Connecticut law. That which makes a conspiracy actionable, if you will, or legally significant under Connecticut law, is not the conspiracy itself but the conspiratorial acts done in furtherance of tortious conduct that causes damages.
"In the complaint, the tortious cause of action at issue, therefore, is not civil conspiracy and is not some general claim of public corruption but is a claim for tortious interference with contractual relations. Part of this claim involves an allegation that this tort was accomplished through concerted or conspiratorial acts of one or more of the defendants and/or other parties. Thus, the precise legal issue presented and relevant to this evidentiary issue is whether the offered evidence is relevant to proving conspiratorial acts committed in furtherance of or in order to accomplish an interference with the plaintiff's contractual rights regarding the development of the property known as Steel Point."
Before ruling on the first proffered evidence of prior misconduct, the court further stated: "Three provisions of the [Connecticut code of evidence] are pertinent to the court's evaluation of this offer. They include § 4-1 of the code of evidence,
In deciding whether Kasper's alleged knowledge of or participation in a conspiracy concerning the renewal of a contract for wastewater treatment held by Professional Services Group, the court explained its ruling at length: "The plaintiff claims that the evidence regarding [Professional Services Group] is relevant under the exception of common plan or scheme or the related exception, a system of criminal activity, which is provided under § 4-5(b) of the code of evidence. The law regarding the application of this particular exception to the general rule has recently been explained. . . by our Supreme Court in State v. Randolph, 284 Conn. 328, [338-61, 933 A.2d 1158 (2007) ]. Among the comments which the Supreme Court stated in that case is that this particular rule, and its exception, is applied more expansively for cases involving sex offenses or charges of sex offenses than nonsex offenses. And [our Supreme] Court indicates that the general rule is that the rule announced in § 4-5 is more narrowly and stringently applied to instances that do not involve sex crimes or sex offenses.
"The [Supreme] Court in that decision. . . proceeded at length to indicate that the exception to the general rule, common plan or scheme is fairly narrow.
The court summarized two scenarios discussed in State v. Randolph, supra, 284 Conn. at 343, 933 A.2d 1158, in which the common scheme or plan is applied under § 4-5 of the code of evidence, to wit: "the first [type of scheme] is where the conduct at issue is so similar to the conduct alleged in the complaint that it represents a signature. . . . Thus, as a general exception to the general rule, evidence of other conspiracies
The court then ruled on the plaintiff's proffer of evidence regarding the sale of Kasper Group, Inc., to Professional Services Group. "[T]he claim is that concerted activity or conspiratorial acts were committed to accomplish an interference with contractual relations. Based on the offer of proof provided by the plaintiff, the evidence involving Professional Services Group is not evidence of such an integral part of the plan to accomplish interference with contractual relations as alleged in this case. . . . [The] plaintiff has not shown that any exceptions under § 4-5(b) [of the code of evidence] are applicable."
On the basis of our review of the record and the law; see State v. Randolph, supra, 284 Conn. at 338-61, 933 A.2d 1158; we conclude that the court did not abuse its discretion in precluding the evidence of Kasper's alleged prior misconduct. The proffered evidence, even if true, was evidence of a general pattern of corruption among the defendants for personal gain; it was not related to the city's termination of the development agreement.
The plaintiff also claims that it was improper for the court not to consider evidence of certain misconduct on the part of the Lenocis and their financial status when awarding the plaintiff punitive damages under CUTPA.
General Statutes § 42-110g (a) provides in relevant part that "[a]ny person who suffers any ascertainable loss of money or property . . . as a result of the
"[A]warding punitive damages. . . under CUTPA is discretionary . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done. . . . [T]o award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights. . . . While the CUTPA statutes do not provide a method for determining punitive damages, courts generally award punitive damages in amounts equal to actual damages or multiples of the actual damages." (Citation omitted; emphasis added; internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 33-34, 830 A.2d 240 (2003); see also Elm City Cheese Co. v. Federico, 251 Conn. 59, 90, 752 A.2d 1037 (1999) (applying abuse of discretion standard to punitive damages award).
Unlike punitive damages under Connecticut common law, punitive damages under CUTPA are focused on deterrence, rather than mere compensation. See State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (punitive damages aimed at deterrence and retribution); Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 509, 656 A.2d 1009 (1995) (CUTPA remedy not limited to compensatory damages; court may award punitive damages and attorney's fees); Lord v. Mansfield, 50 Conn.App. 21, 27, 717 A.2d 267 (punitive damages intended not merely to deter defendant but to deter others from committing similar wrongs), cert. denied, 247 Conn. 943, 723 A.2d 321 (1998); Lenz v. CNA Assurance Co., 42 Conn.Sup. 514, 630 A.2d 1082 (1993) (financial circumstances of defendant relevant and material to deterrent of noncommon-law punitive damages).
"In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence." (Internal quotation marks omitted.) Rossman v. Morasco, 115 Conn.App. 234, 258, 974 A.2d 1, cert. denied, 293 Conn. 923, 980 A.2d 912 (2009); see also Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987). Punitive damages must be proven by a preponderance of the evidence. Whitaker v. Taylor, 99 Conn.App. 719, 735, 916 A.2d 834 (2007).
The following facts are relevant to the plaintiff's claim. After the jury returned a verdict in favor of the plaintiff on its CUTPA claim, the court held a hearing on July 24, 2008, regarding punitive damages to be awarded to the plaintiff. During the course of the hearing, the plaintiff sought to introduce evidence through the testimony of the Lenocis that they made payments to a city zoning official with respect to a supermarket on Dewhirst Street and to municipal officials in other cities in order to obtain approvals for construction projects. The defendants objected to the
The plaintiff sought an award of $5 million in punitive damages from each of the Lenocis. The Lenocis argued that no punitive damages should be awarded against them because their acts did not rise to the level of wilful, wanton or reckless conduct. In the alternative, the Lenocis argued that punitive damages should not exceed the jury's award of compensatory damages, or $20,000.
After the plaintiff and the Lenocis submitted post-hearing briefs, the court issued its ruling in a memorandum of decision on October 31, 2008. Although the Lenocis had argued that the evidence against them failed to support an award of punitive damages, the court found that their position did not "square with the jury's verdict," as "the jury found that the Lenoci defendants violated CUTPA by soliciting, accepting, paying or promising to pay bribes in order to tamper with, interfere or deny the plaintiff's development of Steel Point. The [Lenocis'] deliberate interference with the plaintiff's legitimate contract rights through conduct involving bribes to a public official is reprehensible behavior and evidences a reckless indifference to the rights of another sufficient to support an award of punitive damages."
On appeal, the plaintiff claims that the court abused its discretion in not awarding it $5 million in punitive damages against each of the Lenocis because the court was wedded to a damages multiplier that bore no relation to the severity of the Lenocis' conduct, did not consider the Lenocis' misconduct in having bribed other city officials and officials in other municipalities and did not consider the Lenocis' wealth. The Lenocis argue that the court did not abuse its discretion with respect to the punitive damages it awarded the plaintiff under CUTPA.
We first address the plaintiff's claim that the court improperly failed to consider evidence of the Lenocis having bribed public officials. Section 42-110g (a) provides in relevant part that "[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages. . . . [A]lthough CUTPA includes a number of provisions that serve to encourage private litigation. . . the opportunities for private enforcement are not unlimited. . . . The plain language of § 42-110g (a) provides one limitation by requiring that the plaintiff suffer an ascertainable loss that was caused by the alleged unfair trade practice." (Citations
As we explained in part I A of this opinion in affirming the court's preclusion of evidence that was not related to the allegations of the second revised complaint, when considering punitive damages, the evidence must be relevant, or directly related to the plaintiff's ascertainable loss. Evidence of the Lenocis' having paid off zoning officers for approvals of construction projects elsewhere in the city or bribing officials in other municipalities, as reprehensible as it may be, is not relevant to the losses the plaintiff sustained with regard to the Steel Point project. We completely agree with the plaintiff's position that the Lenocis' conduct in bribing officials is reprehensible and violates "the public's trust in our elected officials. . . ." State v. Bergin, 214 Conn. 657, 662, 574 A.2d 164 (1990). Again, as noted in part I A of this opinion, in bringing this action, the plaintiff was not acting as a private attorney general but was seeking damages for the losses it sustained with respect to the Steel Point project. The jury found that the Lenocis defendants tortiously interfered with the plaintiff's contractual rights and that the Lenocis violated CUTPA. Paragraph 80 of the second revised complaint alleges wrongdoing on the part of the defendants that resulted in the termination of the development agreement and the plaintiff's being ousted from the Steel Point project. As a matter of law, we cannot conclude that the Lenocis' conduct in bribing public officials for construction projects that were unrelated to Steel Point caused the plaintiff an ascertainable loss. Compare Abrahams v. Young & Rubicam, Inc., supra, 240 Conn. at 307, 692 A.2d 709 (addressing foreseeable injuries in bribery cases).
We now turn to the plaintiff's argument that the court was wedded to a simple multiplier and failed to consider the Lenocis' wealth in awarding punitive damages. We point out that the court's memorandum of decision demonstrates that it was well informed of the factors to be considered when assessing punitive damages under CUTPA. The court discussed at length the legal issues, both state and federal, that must be considered. The court observed that "the nature of the [Lenocis'] conduct, the actual harm to the plaintiff and the harm the [Lenocis] intended to inflict are all relevant considerations. As compared to punitive damages under Connecticut common law, punitive damages under CUTPA are focused on deterrence, rather than mere compensation. [See] Lenz v. CNA Assurance Co., [supra, 42 Conn.Supp. at 514, 630 A.2d 1082]. Consequently, the defendants' financial condition is a relevant consideration. `Once deterrence rather than compensation becomes the focus of CUTPA punitive damages . . . then the financial standing of the party against whom damages are sought becomes relevant and material.' Id. [at], 516 [630 A.2d 1082]."
The court also considered the analysis of punitive damages in the federal courts and federal constitutional concerns. In Exxon Shipping Co. v. Baker, 554 U.S. 471, 515, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) (imposing 1:1 ratio of punitive to compensatory damages in maritime case for reckless conduct),
The court found that "among the more vexing, competing considerations presented to the court in determining the amount of the punitive award in this case is, on one hand, the issue of deterrence, particularly in light of the [Lenocis'] financial net worth, and on the other hand, the issue of the overall reasonableness and rationality of a high punitive award in light of the amount of the plaintiff's actual recovery and the considerations highlighted by [Exxon Shipping Co. v. Baker, supra, 554 U.S. at 471, 128 S.Ct. at 2608] . . . [and] note[d] that because neither compensation nor enrichment is a valid purpose of punitive damages, an award should not be so large as to constitute a windfall to the individual litigant. Vasbinder v. Scott, 976 F.2d 118, 121 (2d Cir.1992)." (Internal quotation marks omitted.)
The court also was mindful that, in addition to statutory factors bearing on its discretion, a broader, threshold consideration is that high punitive awards may implicate constitutional concerns. In Bristol Technology, Inc. v. Microsoft Corp., 114 F. Sup.2d 59 (D.Conn.2000), vacated on other grounds, 250 F.3d 152 (2d Cir.2001), the District Court stated "the United States Constitution imposes a substantive limit on the size of punitive damages awards. . . . This is because [p]unitive damages pose an acute danger of arbitrary deprivation of property. . . . Still, [i]n our federal system, States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case.. . . Only when an award [of punitive damages] can fairly be categorized as grossly excessive in relation to [the State's legitimate interests in punishment and deterrence] does it enter the zone of arbitrariness that violates [due process]." (Citations omitted; internal quotation marks omitted.) Id., at 86.
To satisfy federal due process concerns, the United States Supreme Court has "instructed courts reviewing punitive damages to consider three guideposts: (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases." State Farm Mutual Automobile Ins. Co. v. Campbell, supra, 538 U.S. at 418, 123 S.Ct. 1513. The court in this case sought additional guidance with regard to applicability of the second factor, the disparity between the actual and potential harm suffered by
The United States Supreme Court has "been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award. . . . We decline again to impose a bright-line ratio which a punitive damages award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. In [Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) ], in upholding a punitive damages award, we concluded that an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety. . . . We cited that 4-to-1 ratio again in [BMW of North America, Inc. v. Gore, 517 U.S. 559, 581, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) ]. The Court further referenced a long legislative history, dating back over 700 years and going forward to today, providing for sanctions of double, treble, or quadruple damages to deter and punish. . . . While these ratios are not binding, they are instructive. They demonstrate what should be obvious: Single-digit multipliers are more likely to comport with due process, while still achieving the State's goals of deterrence and retribution, than awards with ratios in range of 500 to 1. . . .
"Nonetheless, because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where a particularly egregious act has resulted in only a small amount of economic damages. . . . The converse is also true, however. When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee. The precise award in any case, of course, must be based upon the fact and circumstances of the defendant's conduct and the harm to the plaintiff." (Citations omitted; internal quotation marks omitted.) State Farm Mutual Ins. Co. v. Campbell, supra, 538 U.S. at 424-25, 123 S.Ct. 1513.
After considering and balancing the issues presented in this case, the court awarded the plaintiff six times the actual damages, or $60,000 in punitive damages against both Lenoci, Sr., and Lenoci, Jr. We also cannot agree with the plaintiff's claim that the court was wedded to a simple multiplier when awarding punitive damages. The court clearly articulated its findings with regard to factors militating in favor of a high and a low punitive damages award, including the Lenocis' wealth, their reprehensible acts and the deterrent purpose of CUTPA punitive damages awards. It awarded the plaintiff punitive damages that were six times the actual damages awarded by the jury. The plaintiff takes exception to that amount because it was seeking $5 million from each of the Lenocis. The plaintiff, however, cannot escape the fact that the jury awarded it only $10,000 in compensable damages. Section 42-110g permits the court, in its discretion, to award punitive damages in relation to ascertainable loss. For the foregoing reasons, we cannot conclude that the court abused its discretion in carefully crafting the punitive damages award of $60,000 against each of the Lenocis.
The following procedural history is relevant to the cross appeals of the Lenoci
In December, 2003, the plaintiff commenced the present action, in which it alleged the same state causes of action that it had alleged in the federal action. At paragraph 21 of the original and second revised complaint, the plaintiff alleged: "The plaintiff originally filed this action in Federal District Court, in Bridgeport on November 19, 2001. On September 22, 2003, the district court, per Honorable Alan Nevas, dismissed without prejudice a portion of plaintiff's complaint which gave the federal court jurisdiction, and then using its discretion refused to exercise jurisdiction over the state law claims. The plaintiff refiles this complaint containing the state court claims pursuant to Connecticut General Statutes § 52-592." Additional facts will be set forth as necessary.
On cross appeal, the Lenoci defendants claim that the trial court improperly denied their motion for a directed verdict in which they asserted that the plaintiff could not prevail, as a matter of law, as its claims were barred by (1) the doctrine of collateral estoppel and (2) the statute of limitations. We disagree.
The following procedural history is relevant to the Lenoci defendants' cross appeal. When they responded to the plaintiff's second revised complaint,
Ordinarily, "[t]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict . . . [is] the abuse of discretion standard." (Internal quotation marks omitted.) Tornaquindici v. Keggi, 94 Conn.App. 828, 833, 894 A.2d 1019 (2006). "A verdict may be directed where the decisive question is one of law. . . ." (Internal quotation marks omitted.) Patterson v. Travelers Casualty & Surety Co., 104 Conn.App. 824, 827, 936 A.2d 241 (2007), cert. denied, 286 Conn. 920, 949 A.2d 481 (2008). The questions presented by the Lenoci defendants in their cross appeal raise questions of law. See Blackwell v. Mahmood, 120 Conn.App. 690, 694, 992 A.2d 1219 (2010) (collateral estoppel question of law); Vanliner Ins. Co. v. Fay, 98 Conn.App. 125, 139, 907 A.2d 1220 (2006) (whether claim barred by statute of limitations question of law). The plenary standard of review applies when appellate courts review questions of law. See Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007).
The Lenoci defendants claim that the court improperly denied their motions for a directed verdict predicated on the doctrine of collateral estoppel because the plaintiff's claims were litigated in the federal action. They further contend that, in denying their motions for a directed verdict and to set aside the jury verdict, the court improperly concluded that the standard necessary to prove proximate cause under RICO is different from that required to prove common-law proximate cause, which is applicable to the plaintiff's tortious interference and CUTPA claims.
"Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. . . . To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was
In its memorandum of decision issued on October 31, 2008, the court noted with regard to the plaintiff's federal action that Judge Nevas had found that the plaintiff lacked standing to maintain a RICO action; see 18 U.S.C. § 1964(c);
"The application of the collateral estoppel doctrine may not be proper when the burden of proof or legal standards differ between the first and subsequent actions. See, e.g., Bath Iron Works Corp. v. Director, Office of Workers' Compensation Programs, 125 F.3d 18, 22 (1st Cir. 1997) (`[c]ertainly a difference in the legal standards pertaining to two proceedings may defeat the use of collateral estoppel. . . [b]ut this is so only where the difference undermines the rationale of the doctrine' [citations omitted]); Newport News Shipbuilding & Dry Dock Co. v. Director, Office of Workers' Compensation Programs, 583 F.2d 1273, 1279 (4th Cir.1978) (`[r]elitigation of an issue is not precluded by the doctrine of collateral estoppel where the party against whom the doctrine is invoked had a heavier burden of persuasion on that issue in the first action than he does in the second, or where his adversary has a heavier burden in the second action than he did in the first'), cert. denied, 440 U.S. 915, 99 S.Ct. 1232, 59 L.Ed.2d 465 (1979); see also Purdy v. Zeldes, 337 F.3d 253, 260 n. 7 (2d Cir.2003) (`Collateral estoppel in this context is a fact intensive inquiry that is best determined on a case-by-case basis. As the [D]istrict [C]ourt stated, the collateral estoppel
The court found that "[a]lthough federal decisions address causation issues under RICO by using terminology such as proximate cause and foreseeability, and may even profess that proximate cause under RICO is parallel to or emanates from common-law principles, a close analysis reveals that the proximate cause standards under RICO and the common law are not the same." The court came to this conclusion by comparing the definitions of common-law proximate cause in decisions of our state courts and proximate cause under RICO found in federal decisions. The court found persuasive a decision by the United States Court of Appeals for the Second Circuit, Lerner v. Fleet Bank, N.A., 459 F.3d 273 (2d Cir.2006).
Our Supreme Court has defined proximate cause "as [a]n actual cause that is a substantial factor in the resulting harm. . . ." Coburn v. Lenox Homes, Inc., 186 Conn. 370, 383, 441 A.2d 620 (1982). "[T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries." (Internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., supra, 250 Conn. at 25, 734 A.2d 85.
"There is no little confusion in the case law about the meaning and proper use of the term proximate causation in the RICO context. When a plaintiff brings suit under RICO—as with any suit on a statute—he or she must show both that he [or she] is within the class the statute sought to protect and that the harm done was one that the statute was meant to prevent." (Internal quotation marks omitted.) Lerner v. Fleet Bank, N.A., supra, 459 F.3d at 284, quoting Abrahams v. Young & Rubicam, Inc., 79 F.3d 234, 237 (2d Cir.), cert. denied, 519 U.S. 816, 117 S.Ct. 66, 136 L.Ed.2d 27 (1996). When used in the RICO context, "the term proximate causation thus takes on a meaning that is different from its ordinary meaning at common law. . . ." (Internal quotation marks omitted.) Lerner v. Fleet Bank, N.A., supra, at 284. This conclusion finds support in RICO cases decided by the United States Supreme Court.
In Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 265-66, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992), the United
In Lerner v. Fleet Bank, N.A., supra, 459 F.3d at 283, the Second Circuit devoted an entire section of its opinion to RICO proximate cause versus common-law proximate cause. "In order to bring suit under § 1964(c), a plaintiff must plead (1) the defendant's violation of [18 U.S.C.] § 1962, (2) an injury to the plaintiff's business or property, and (3) causation of the injury by the defendants' violation. . . . RICO's use of the clause by reason of has been held to limit standing to those plaintiffs who allege that the asserted RICO violation was the legal, or proximate, cause of their injury as well as a logical, or but for, cause." (Citation omitted; internal quotation marks omitted.) Id., at 283-84. "When a plaintiff brings suit under RICO—as with any suit on a statute—he or she must show both that he [or she] is within the class the statute sought to protect and that the harm done was one that the statute was meant to prevent." (Internal
"At common law, so long as the plaintiff category is foreseeable, there is no requirement that the risk of injury to the plaintiff, and the risk of the harm that actually occurred, were what made the defendant's actions wrongful in the first place. With statutory claims, the issue is, instead, one of statutory intent: was the plaintiff (even though foreseeably injured) in the category the statute meant to protect, and was the harm that occurred (again, even if foreseeable), the mischief the statute sought to avoid." (Internal quotation marks omitted.) Abrahams v. Young & Rubicam Inc., supra, 79 F.3d at 237. "[T]he use of no proximate cause language as the ground for dismissal in statutory cases frequently leads to confusion when the issue of proximate cause is raised in related common law claims because the phrase proximate cause may cover a greater or lesser swath of injuries and victims when used in the statutory context." (Internal quotation marks omitted.) Lerner v. Fleet Bank, N.A., supra, 459 F.3d at 284.
In Lerner, the Second Circuit held that when plaintiffs have not "pleaded facts sufficient to support a finding of proximate cause in the RICO action, [that] does not necessarily mean that their injuries were, under the facts alleged, not proximately caused by the [defendants'] actions for purposes of the plaintiffs' claims under the common law." Id., at 284. The Court of Appeals "concluded that the plaintiff could not bring a RICO suit because he was neither an intended target of the scheme nor an intended beneficiary of the laws prohibiting it. . . . But we also concluded that the RICO ruling is not dispositive of [the plaintiffs'] negligence claim. . . . [T]he duty to act with reasonable care establishes a general standard of conduct and is not limited to protecting certain classes of person from particular kinds of harms." (Citations omitted; internal quotation marks omitted.) Id., at 284-85.
"Even when stemming from the same fact pattern, then, proximate causation may be present or absent depending on the cause of action under which the plaintiff brings suit. . . . [W]e [have] concluded that the plaintiffs' injuries were not proximately caused by the defendants' racketeering activity, not that their injuries were not proximately caused by the defendants' conduct . . . . [W]e have . . . interpreted our decision . . . to stand for the proposition that a plaintiff does not have standing if he suffered an injury that was indirectly (and hence not proximately) caused by the racketeering activity or RICO predicate acts, even though the injury was proximately caused by some non-RICO violations committed by the defendants. . . . RICO and common law-claims will often depend on different chains of causation stemming from the same underlying conduct." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., at 285.
On the basis of our review of the federal law on the standard of proximate cause applied in RICO cases and the standard applicable to common-law proximate cause; see Paige v. St. Andrew's Roman Catholic Church Corp., supra, 250 Conn. at 25, 734 A.2d 85;
The Lenoci defendants also claim that the court improperly determined that the plaintiff's claims were not barred by the statute of limitations by concluding that the claims were saved by the accidental failure of suit statute, § 52-592.
"Deemed a saving statute, § 52-592 enables plaintiffs to bring new causes of action despite the expiration of the applicable statute of limitations. . . . In order to fall within the purview of § 52-592, however, the original lawsuit must have failed for one of the reasons enumerated in the statute." (Citation omitted; internal quotation marks omitted.) Skinner v. Doelger, 99 Conn.App. 540, 553, 915 A.2d 314, cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007).
At the conclusion of evidence, the Lenoci defendants moved for a directed verdict, claiming, in part, that the plaintiff's claims were barred by the statute of limitations. The court rendered an oral decision, finding that the Lenoci defendants had alleged a statute of limitations defense to the plaintiff's intentional interference and CUTPA claims against them, which are governed by a three year statute of limitations. The Lenoci defendants argued that the dismissal of the plaintiff's federal action did not fall within the protection afforded by § 52-592 because the federal action was dismissed without prejudice
In ruling on the motion for a directed verdict, the court construed the language of Judge Nevas' ruling on the defendants' motion to dismiss the federal action and the judgment entered by the clerk. The court concluded that the plaintiff's federal action was dismissed for failure to prosecute, as the "dismissal here was not entirely or fully voluntary. The dismissal was clearly definitive, and it was not curable as a matter of right."
On appeal, the Lenoci defendants claim that the plaintiff should not be able to rely on the accidental failure of suit statute because the plaintiff failed to plead the statute in its reply to their statute of limitations special defense. They rely on Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn.App. 680, 690-91, 974 A.2d 764, cert. denied, 293 Conn. 916, 979 A.2d 488 (2009), to support their position. Given the procedural history of this case, the Lenoci defendants cannot prevail under Beckenstein Enterprises-Prestige Park, LLC, which states, in relevant part, "[w]hile it has been suggested that it might be desirable for the plaintiff to plead sufficient facts necessary to bring the matter within the purview of § 52-592 . . . [our Supreme Court] has never held this to be a requirement. . . . It has been and is the holding of [our Supreme Court] that matters in avoidance of the Statute of Limitations need not be pleaded in the complaint but only in response to such a defense properly raised." (Internal quotation marks omitted.) Id., at 690, 974 A.2d 764. Although a plaintiff need not allege in its complaint facts sufficient to bring a cause of action within the purview of § 52-592, our Supreme Court has never held that a plaintiff who does allege such facts in its complaint has failed to invoke the protection of the accidental failure of suit statute.
In this matter, the plaintiff alleged at paragraph 21 of its complaint and second revised complaint that it had commenced an action in the District Court that was dismissed without prejudice and that it was bringing the present action containing
In his cross appeal, Ganim claims that the court improperly (1) awarded punitive damages that are arbitrary and excessive, (2) concluded that the plaintiff had presented sufficient evidence to prevail on its claim of fraudulent misrepresentation and (3) concluded that the plaintiff's claims were not barred by the statute of limitations.
The plaintiff alleged four counts against Ganim; see footnote 4 of this opinion; and Ganim filed motions to strike all four of those counts. The court granted the motions to strike the counts that alleged breach of the covenant of good faith and fair dealing and a violation of CUTPA, and granted his motion for summary judgment on the statutory theft count. On May 1, 2008, near the conclusion of evidence, the court granted Ganim's motion to amend his answer, thereby permitting him to allege that the remaining claim against him was barred by the statute of limitations. On May 5, 2008, Ganim filed a motion for a directed verdict pursuant to § 52-577, which the court denied. On June 6, 2008, the jury returned a verdict in favor of the plaintiff on the count of fraudulent misrepresentation and awarded the plaintiff $182,000 in compensatory damages. On July 18, 2003, Ganim filed a memorandum of law in support of his motion to set aside the verdict, claiming that the plaintiff's claimed reliance was not reasonable and justifiable as a matter of law. On July 24, 2008, the court held a hearing to determine common-law punitive damages as to Ganim. In a memorandum of decision issued on October 31, 2008, the court rejected Ganim's statute of limitations defense and justifiable reliance argument and awarded the plaintiff punitive damages of $210,039 less taxable costs.
Ganim claims that the court's award of common-law punitive damages was arbitrary and unreasonably excessive. We are not persuaded.
"In an action for fraud, the plaintiffs are entitled to punitive damages, in addition to general and special damages. . . . The [purpose] of awarding punitive damages is not to punish the defendant for his offense, but to compensate the plaintiff for his injuries. . . . The rule in this state as to torts is that punitive damages
Ganim claims on cross appeal that the court's $155,439 award of costs, as part of the punitive damages award against him, calculated as 42 percent of the plaintiff's costs of prosecuting the fraudulent misrepresentation claim, should be set aside as arbitrary and unreasonable. He contends that the "overarching rationale for an award of punitive damages for a civil wrong is to vindicate the public's interest, and not that of a particular plaintiff," citing Freeman v. Alamo Management Co., 221 Conn. 674, 679, 607 A.2d 370 (1992).
In accordance with the parties' stipulation; see footnote 76 of this opinion; the court found that the jury's finding of fraudulent misrepresentation was premised on Ganim's false representations concerning the Steel Point project. The court noted that "Connecticut courts have. . . consistently limited punitive or exemplary damage awards in Connecticut to costs in excess of taxable costs." (Internal quotation marks omitted.) Freeman v. Alamo Management Co., supra, 221 Conn. at 680, 607 A.2d 370. The plaintiff was seeking punitive damages of attorney's fees that were consistent with its fee agreement with counsel and $370,092 in costs.
On the basis of the jury's finding against Ganim on the plaintiff's fraudulent misrepresentation claim, the court was satisfied that the plaintiff had proven a reckless indifference to its contractual and business interests to warrant an award of punitive damages against Ganim. The court further found that the plaintiff's fee agreement with counsel was 30 percent of the first $6 million recovered and therefore the plaintiff was seeking $54,600 in attorney's
The court found, however, that the plaintiff's claim for $370,092 in costs reflected the total of the costs the plaintiff incurred to prosecute the entire litigation, but that the plaintiff prevailed on only one of the claims it alleged against Ganim, fraudulent misrepresentation, and that that claim was not inextricably intertwined with the claims against the city and other defendants. In applying the Connecticut rule that punitive damages are limited to the prevailing party's litigation expenses, the court concluded that it would not be an appropriate exercise of its discretion to award the plaintiff all of the costs it incurred when the majority of those expenses were incurred to pursue claims that it lost and were not related to the claims on which it prevailed. On the basis of the court's "evaluation of the totality of the relevant considerations," it concluded that the plaintiff should recover 42 percent of its costs as part of the punitive damages award. It awarded the plaintiff punitive damages against Ganim in the amount of $210,039, consisting of $54,600 in attorney's fees and $155,439 for costs.
On cross appeal, Ganim claims that the 42 percent factor the court used to calculate the award of costs against him is arbitrary and unreasonable because the court did not provide a bona fide reason to assess against him and the Lenoci defendants each 42 percent of the plaintiff's costs, despite the "obvious differences" in the quantum of proof and the different rationales at play between the plaintiff's verdict as against the Lenoci defendants and as against him. In its memorandum of decision awarding punitive damages and attorney's fees under CUTPA, the court stated in detail the factors it considered with regard to the purpose of punitive damages, the plaintiff's success and the interrelatedness of its claims. Those evaluative factors apply equally to the Lenoci defendants and to Ganim. It is true, however, that the court did not distinguish between the Lenoci defendants and Ganim and explain why it applied the same 42 percent factor to both sets of defendants. Ganim, however, failed to seek an articulation. See Practice Book § 66-5.
"Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative." (Citations omitted; internal quotation marks omitted.) State v. Hoeplinger, 27 Conn.App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). For the reasons stated, Ganim cannot prevail on his appellate claims regarding punitive damages.
Ganim claims that the court abused its discretion by denying his motion to set aside the verdict. We do not agree.
"[The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles. . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb." (Internal quotation marks omitted.) Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 170, 976 A.2d 723 (2009).
Ganim claims that the court improperly denied his motion to set aside the verdict because there was insufficient proof that the jury reasonably could have found by clear and convincing evidence that he was guilty of fraudulent misrepresentation. We disagree, as the claim is controlled by the general verdict rule.
On cross appeal, Ganim claims that any reliance by the plaintiff on representations he made after it received notice of termination of the development agreement clearly was not reasonable or justified. The court denied the motion because it could not determine from the record, and on the basis of the general verdict rule,
On the basis of our review of the record, we conclude that the jury reasonably could have found that Ganim promised Conroy that he would work together with the plaintiff and that Ganim appeared to support the Steel Point project and wanted to work with Conroy. Ganim encouraged public financing of the project and tried to help Conroy find financing partners. When Conroy's financial partner, Lend Lease, withdrew, Ganim reassured Conroy of the city's continued interest in working with him. After signing the second development agreement and as the August, 1999 deadline approached, Ganim encouraged Conroy to keep working. There were design meetings in early 2000 after
Ganim argues that in August, 2000, when the city terminated the development agreement, Conroy executed a written acknowledgment of the termination. In light of the termination, Ganim contends that no jury rationally could find that the plaintiff justifiably relied on any misrepresentation that he could have made concerning the plaintiff's involvement in the project. The court found Ganim's position problematic because there is no definitive or reliable basis to conclude that the representations that the jury found to be fraudulent were made after the city terminated the development agreement. No interrogatories were submitted to the jury requesting that it identify the fraudulent misrepresentations it found Ganim made and when they were made. The court concluded that in the absence of specific findings, the plaintiff was entitled to rely on the general verdict rule. Because the jury reasonably could have relied on evidence of fraudulent representations made by Ganim prior to the time the city terminated the development agreement, the court properly denied his motion to set aside the verdict.
Ganim's last claim is that the court improperly denied his motion to set aside the verdict in which he claimed that the plaintiff's action was barred by the statute of limitations. We do not agree.
At trial, Ganim relied, in part, on the same arguments made by the Lenoci defendants with regard to the statute of limitations. On cross appeal, in addition to the Lenoci arguments, which we addressed in part II A of this opinion, Ganim claims that the court improperly applied § 52-592 pursuant to this court's decision in Daoust v. McWilliams, supra, 49 Conn.App. at 715, 716 A.2d 922. It is Ganim's position that § 52-595 does not apply because the plaintiff never alleged fraudulent misrepresentation in the federal action, but did so for the first time in the present action. The plaintiff contends that the claim is not properly before this court because Ganim waived it at trial.
In its October 31, 2008 ruling on Ganim's motion to set aside the verdict, the court made the following findings. The gravamen of the second revised complaint against Ganim is that in 1998, the plaintiff entered into an agreement with the city to develop Steel Point. The court stated: "Among its claims, the plaintiff alleges that Ganim . . . had a secret plan with other defendants to oust the plaintiff as the developer of the project so that it could be replaced by . . . United Properties, Ltd. . . . According to the complaint, the Lenocis had agreed to pay bribes to Ganim in exchange for the selection of United Properties, Ltd., as the developer of Steel Point."
The court also found that count eight of the second amended complaint alleges that "Ganim made fraudulent misrepresentations as part of this corrupt scheme. . . . [T]he jury was charged to consider whether Ganim made false statements concerning the status of the Steel Point project, the requirements to be fulfilled by the plaintiff, the manner in which project money was expended, or the time periods relating to demolition, destruction, or land acquisitions. The trial evidence establishes that on December 19, 2000, as part of a criminal investigation into Ganim's activities, the Federal Bureau of Investigation executed search and seizure warrants on various residences and establishments, including Ganim's office and personal residence. The evidence is undisputed that none of the alleged misrepresentations were made by Ganim to the plaintiff or its agents after the execution of these warrants.
"Because none of the alleged representations took place after December, 2000, and because the present action was not instituted until January, 2004, Ganim claims that the plaintiff's fraudulent misrepresentation claims [are] barred by the three year statute of limitations of . . . § 52-577."
Section 52-592(a) provides in relevant part: "If any action, commenced within the time limited by law, has failed . . . to be tried on its merits because . . . the action has been dismissed for want of jurisdiction. . . or for any matter of form. . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action. . . ." (Emphasis added.) The court concluded that Daoust v.
In Daoust, William J. Daoust, Jr., commenced an action in federal court, alleging violation of his civil rights under 42 U.S.C. §§ 1983 and 1988 and state law causes of action. Daoust v. McWilliams, supra, 49 Conn.App. at 717, 716 A.2d 922. The federal court, Covello, J., first granted the defendants' motion to dismiss and thereafter granted summary judgment in favor of the defendants with regard to all of Daoust's federal claims. Id., at 718, 716 A.2d 922. Judge Covello declined to exercise supplemental jurisdiction over Daoust's state law claims. Id. Within one year, Daoust commenced an action in the Superior Court, where the court, Stanley, J., granted the defendants' motion for summary judgment, concluding that "the savings provisions of § 52-592 operate only to save the exact state law claims that were dismissed without prejudice in federal court, but do not permit the bringing of additional state law claims arising from the same set of facts." Id., at 721, 716 A.2d 922. This court disagreed.
"Section 52-592 uses the words action and cause of action, and not claim, to refer to what is allowed to be brought under its provisions. Section 52-592(a) provides that the plaintiff . . . may commence a new action . . . for the same cause . . . . Section 52-592(d) provides that the above language appl[ies] to . . . any action brought to the United States . . . district court for the district of Connecticut. . . . It is well settled that [a] cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief. . . . A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action. . . . Even though a single group of facts may give rise to rights for several different kinds of relief, it is still a single cause of action." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., at 721-22, 716 A.2d 922. This court concluded that because Daoust's "claims of assault and battery, spoliation of evidence, invasion of privacy and abuse of process are part of a new action. . . . for the same cause brought within one year after the determination of the original action, as required by § 52-592(a), they are not barred by the three year statute of limitations." (Internal quotation marks omitted.) Id., at 722, 716 A.2d 922.
On cross appeal, Ganim contends that the trial court in the present action improperly determined that Daoust controls, but he failed to explain the basis of his argument. At oral argument, he claimed that there is no common nucleus of facts between the federal action and the present one. On the basis of our review of the allegations of fact in the federal action and the allegations in the second revised complaint, we disagree. See O'Halloran v. Charlotte Hungerford Hospital, 63 Conn.App. 460, 463, 776 A.2d 514 (2001) (construction of complaint question of law).
On the basis of our review of the complaint in the federal action and the second revised complaint in the present action, we conclude that the court properly determined that the allegations of state law claims emanate from a common nucleus of facts.
We conclude that the court thoughtfully resolved the issues presented and carefully exercised its discretion throughout the lengthy trial.
The judgment is affirmed.
In this opinion the other judges concurred.
In its second revised complaint, the plaintiff alleged claims against the following defendants, who are not parties to this appeal: the city of Bridgeport; 815 Lafayette Centre, LLC; United Investments, LLC; Michael Schinella; Pinto; Kasper Group, Inc.; Leonard Grimaldi; Charles J. Willinger, Jr., and Willinger, Willinger & Bucci, P.C. (Willinger defendants); United Environmental Development Company; Harbor Communications, Inc.; and HNTB Corporation.
Count Claim Defendant
One tortious interference Charles J. Willinger, Jr., Willinger, Willinger & Bucci, P.C.
(Willinger defendants)
Two tortious interference Lenoci, Sr., Lenoci, Jr., Schinella, United Environmental Development
Company, United Properties, Ltd., 815 Lafayette Centre,
LLC, United Investments, LLC, Crescent Avenue Development
Company, LLC
Three tortious interference Paul J. Pinto, Joseph T. Kasper, Jr., Kasper Group, Inc.
Four breach of contract city
Five breach of implied covenant of city
good faith and fair dealing
Six negligence city
Seven quantum meruit city
Eight fraudulent misrepresentation city, Ganim, Willinger
Nine CUTPA Ganim, Lenoci, Sr., Lenoci, Jr., Leonard Grimaldi, Pinto, Schinella,
HNTB Corporation, Willinger defendants, Kasper, Kasper,
Kasper Group, Inc., Harbor Communications, Inc.
Ten General Statutes § 52-564, Ganim, Willinger defendants, Grimaldi, Pinto, Schinella, Lenoci,
(statutory theft) Sr., Lenoci, Jr., Kasper, Kasper Group, Inc.
According to Pinto, the Lenocis wanted to obtain the development rights for the Steel Point project, as well as the site of the former Father Panik Village and the waterfront property directly across the river from Steel Point known as CarTech. The Lenocis intended to use the Father Panik Village and CarTech land as relocation sites for businesses that were displaced by the Steel Point project. Beginning in April, 1999, the Lenocis agreed to pay Pinto $1 for each square foot of development space in the city that they obtained. Pinto shared those moneys with Ganim. The Lenocis also were providing Ganim with entertainment, meals, trips and shopping. They made substantial contributions to Ganim's political campaigns, as well. The Lenocis paid Pinto approximately $500,000 in consulting fees that were shared with Ganim. With regard to Steel Point, the city devoted significant time and effort to finding a developer, as it wanted the project to succeed in light of the city's recent bankruptcy. In October, 1997, the city selected the plaintiff's predecessor in interest to redevelop Steel Point. The Conroy Development Company, which is owned by Alexius C. Conroy, was the principal, and Lend Lease, a large retail development firm from Australia, was its financial partner. According to Michael Freimuth, the director of the city's office of planning and economic development at the time, the plaintiff's "proposal was presented as the largest proposal and one that would return to the public side the most benefits, that is, in the sense of jobs and taxes . . . ." The key elements of the plaintiff's proposal were retail-entertainment facilities that would draw large numbers of people.
The initial goal of the plaintiff and the city was to obtain public funding from the legislature for the Steel Point project. They secured passage of a bill for $200 million in public financing that required contributions from the city. In June, 1998, the state bonding commission approved the initial $20 million in public financing, which was to be used to acquire, clear and remediate Steel Point and to construct utilities and bulkheads.
In the fall of 1998, the city and the plaintiff signed a development agreement, which required the plaintiff to make a commitment by March, 1999. The commitment date was later extended with Ganim's approval. In December, 1998, Lend Lease had second thoughts about the Steel Point project and withdrew. Joseph T. Kasper, Jr., whose firm, Kasper Group, Inc., had done the base plotting and map work at Steel Point for United Properties, Ltd., suggested to Conroy that he and the Lenocis become partners. Conroy rejected the suggestion on the basis of his prior experience working with the Lenocis.
The city sent the plaintiff a draft of the restated agreement in May, 1999, and a draft of the land disposition agreement on July 16, 1999. According to Conroy, the restated agreement contained numerous provisions that were not commercially reasonable, particularly with respect to Steel Point tenants. The city wanted (1) the right to approve or reject the tenants the plaintiff brought to Steel Point, (2) the plaintiff to disclose financial information regarding tenants before a lease was signed and (3) the plaintiff to waive its right to legal remedies, i.e., if the city "is unable to transfer title and/or meet its obligations under the terms of the [restated development agreement], after using its best efforts, the [plaintiff] knowingly, voluntarily and upon advice of counsel, waives any and all rights to proceed to court." Conroy had never encountered such provisions in his experience as a developer. Negotiations with prospective tenants must remain confidential, and the city would not be a party to the lease. Moreover, the waiver, default and indemnification provisions were unacceptable.
Conroy considered two other matters related to the project to be irregular. First, attorney Charles J. Willinger, Jr., represented the city with regard to the Steel Point project. Between 1998 and 2000, Willinger paid Pinto more than $100,000, as Ganim's intermediary, to obtain that legal work. Willinger also represented the Lenocis' business, United Properties, Ltd. Second, Conroy thought it was unusual that in early 1999, Ganim appointed the city's chief administrative officer, Dennis C. Murphy, to oversee the development of Steel Point. It was the only time in his thirteen years as the head of economic development that Freimuth was replaced on a development project.
After Lend Lease withdrew from the Steel Point project, Conroy and CBL & Associates Properties, Inc., a real estate developer, formed a joint venture in March, 1999. The August 31, 1999 deadline to sign the restated development agreement passed, but the city did not send Conroy a default notice. Ganim told Conroy that he wanted him to continue working on the Steel Point project. Conroy continued to meet with city officials to discuss infrastructure issues at Steel Point. Kasper again suggested to Conroy that he and the Lenocis become partners. Conroy declined.
Conroy found another financial partner in the Taubman Company, an organization that has managed more than 20 million square feet of mall space, with whom Conroy previously had worked. They signed a joint venture agreement on February 29, 2000. Immediately thereafter, Murphy wrote to Conroy on March 1, 2000, telling him that it was good that Conroy had found another partner, but because he had "failed to provide the city with a firm, irrevocable and legally binding commitment to build Phase One of the project, all agreements by and between all parties have been automatically terminated." According to Conroy, Ganim, however, continued to treat the plaintiff as the Steel Point developer and told Conroy to ignore Murphy's letter. Taubman conducted due diligence and in June, 2000, sent a commitment letter to the city.
In June, 2000, Ganim added conditions to be fulfilled before the Steel Point project could move forward, including an irrevocable $10 million letter of credit from Taubman. Pinto described Ganim's demand for a letter of credit as leverage. One of the ways in which Ganim gained control, according to Pinto, was to make high demands that were difficult to meet. Although the plaintiff was asked to sign an irrevocable letter of credit, the city had not obtained all the land for the Steel Point project and did not know when it would get it. In Freimuth's thirteen years as director of the city's office of planning and economic development, no developer had ever signed an irrevocable letter of credit before the land was acquired. Taubman refused to provide an irrevocable letter of credit before the city had acquired the land.
According to Pinto, Ganim wanted people to come to him, Pinto or Grimaldi for help. Ganim thought that he could "throw Conroy off of the project" but wanted to keep him on the project "as sort of a bookmark" for political reasons and the $1 dollar per square foot agreement. Ganim did not want to create a void with the project by discharging Conroy before he was "ready to put [the Lenocis] in."
On July 21, 2000, Ganim announced a request for proposals for the separate development of the waterfront. From the beginning of its involvement in the Steel Point project, the plaintiff had proposed a master plan for development of the entire site. Taubman construed Ganim's request for proposals as the city's having lost interest in the project.
On August 25, 2000, Ganim asked Conroy and Taubman to produce five letters of commitment from prospective tenants. Murphy testified that Ganim told Conroy and Stephen J. Kieras, then Taubman's vice president of development, that without the letters, the plaintiff was out. The plaintiff submitted letters of interest from tenants to the city on October 30, 2000. Taubman, however, had lost faith in the idea of a public-private partnership and withdrew from the Steel Point project on November 17, 2000. Conroy remained involved in the Steel Point development project and submitted a proposal when the city issued a new request for proposals but was not selected.
Three days after Murphy sent Conroy the March 1, 2000 letter terminating the development agreement, the Federal Bureau of Investigation (FBI) taped Lenoci, Jr., and Pinto discussing a way to force Conroy out of the Steel Point project. The FBI executed search warrants at the Lenocis' place of business, Willinger's law firm and the Kasper Group, Inc., on December 19, 2000, and at Ganim's home on January 6, 2001. The searches culminated a four year investigation of "contractors and developers who were . . . bestowing benefits on public officials in exchange for lucrative contracts and excellent development deals in the city of Bridgeport." As a result of being charged with federal offenses, Lenoci, Sr., Lenoci, Jr., and others pleaded guilty and were sentenced to prison. Ganim was charged with and convicted of sixteen federal felonies, including racketeering and bribery, and was sentenced to nine years in federal prison.
Count: claim Defendant Disposition
Two: tortious interference United Environmental Development Company summary judgment
Six: negligence city summary judgment
Seven: quantum meruit city summary judgment
Nine: CUTPA Ganim motion to strike
Ten: General Statutes Ganim, Lenoci, Sr., Lenoci, Jr., summary judgment
§ 52-564
Charles J. Willinger, Jr., Willinger, Willinger & Bucci, summary judgment
P.C.
Joseph T. Kasper, Jr., Kasper Group, Inc. withdrawn
The plaintiff withdrew all claims against Schinella, Grimaldi, Harbor Communications, Inc., Paul J. Pinto, United Environmental Development Company, 815 Lafayette Centre, LLC, and United Investments, LLC. A default for failure to plead had entered against Kasper Group, Inc., on counts three and nine, but on May 23, 2008, the plaintiff withdrew count nine against Kasper Group, Inc.
Count: claim Defendants Verdict for Damages
One: tortious interference Charles J. Willinger, Jr., Willinger, Willinger & defendants none
Bucci, P.C. (Willinger defendants)
Two: tortious interference Lenoci, Sr. plaintiff $ 10,000
Lenoci, Jr. plaintiff $ 10,000
United Properties, Ltd. plaintiff $ 10,000
Crescent Avenue Development Company, LLC defendant none
Three: tortious interference Joseph T. Kasper, Jr., defendant none
Four: breach of contract city defendant none
Five: breach of the implied city defendant none
covenant of good faith and
fair dealing
Six: negligence city defendant none
Eight: fraudulent Ganim plaintiff $182,000
misrepresentation
Willinger defendants defendant none
Nine: CUTPA Lenoci, Sr. plaintiff $ 10,000
Lenoci, Jr. plaintiff $ 10,000
Kasper defendant
Default Kasper Group, Inc. plaintiff $134,524
"The second component of legal cause is proximate cause, which we have defined as [a]n actual cause that is a substantial factor in the resulting harm. . . . The proximate cause requirement tempers the expansive view of causation [in fact] . . . by the pragmatic . . . shaping [of] rules which are feasible to administer, and yield a workable degree of certainty. . . . Remote or trivial [actual] causes are generally rejected because the determination of the responsibility for another's injury is much too important to be distracted by explorations for obscure consequences or inconsequential causes. . . . In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice. . . .
"We have held, moreover, that the test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries. . . . This causal connection must be based upon more than conjecture and surmise." (Citations omitted; internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., supra, 250 Conn. at 24-26, 734 A.2d 85.
"Any binding obligation on the City under the [land disposition agreement] . . . would contain the `terms, covenants, and conditions relative to the sale and development of the site', was to be contingent upon the fulfillment of various legal requirements, including approval by the affected Community Board and the City Planning Commission. . . .
"By letter dated November 29, 1983, the City notified [Goldstein] that it had been `dedesignated' as exclusive negotiator for the two sites, stating as the reason that it had decided it was in the best interests of the City to reserve the two sites for commercial development by back office users, many of whom wished to construct their own buildings. No [land disposition agreement] was ever concluded." (Citation omitted; internal quotation marks omitted.) Goodstein Construction Corp. v. City of New York, supra, 80 N.Y.2d at 368-70, 590 N.Y.S.2d 425, 604 N.E.2d 1356.
"WHEREAS, in response to the [request for qualification], the Developer proposes to redevelop certain property . . . and proposes to prepare the site plans, engineering plans, surveys and other materials necessary to effectuate all permits and approvals required to construct the Project as contemplated thereby; and . . .
"WHEREAS, the costs to be borne by the City, United Illuminating [Company] and the Developer in the design and implementation of Harbour Place are difficult to assess at the time of the execution of this Agreement; and
"WHEREAS, all Parties are relying upon substantial assistance in the form of public funding as further defined herein, the precise amount of which to be allocated to the Project is not yet ascertained; and
"WHEREAS, the Developer anticipates the ability to provide the City and United Illuminating [Company], within the time contemplated by this Agreement, with a more definitive assessment of the precise cost of developing Harbour Place; and
"WHEREAS, at such time as the amount of public funding has been more definitively ascertained and at such time as the Parties have achieved a more definite assessment of the precise cost of developing the Project and of other matters related to the Project, this Agreement shall be amended and restated . . . and the Parties, together with the Agency and the Port Authority, shall execute a Land Disposition Agreement. . . ."
"Mr. Raabe: How much money did you, meaning you, personally, or companies you controlled, contribute to the entity?
"Mr. Conroy: I just told you, I don't know. . . .
"Mr. Raabe: Is there any way of figuring that out?
"Mr. Conroy: Probably.
"Mr. Raabe: How would you do that?
"Mr. Conroy: Here, no.
"Mr. Raabe: If you were going to take more time, how would you do that?
"Mr. Conroy: I would have to go back and look at the books and, you know, calculate it. I don't have that, either the ability or the information available."
"We've now seen in B-11 for identification that Mr. Conroy could not specify damages and did not bring any documents with him. It's my understand that the plaintiff is now proffering Ira Kaplan to come before this court and testify as to specifics of damages and introduce yet more documents that were not produced at the plaintiff's designee's deposition. The city would be prejudiced by that. It's in violation of the rules, it's a violation of the scheduling order of this court, and it's improper and the city objects."
"On the one hand, there was some information which was provided to the defense regarding these issues. On the other hand, there was a failure to produce the supporting documents regarding these issues as requested in appropriate and proper discovery. On one hand, I guess from the plaintiff's view, sufficient information was provided so that if the production was inadequate, the defendants knew that they could have moved for further compliance or could have moved for the taking of the deposition of Mr. Kaplan. Query what production would have been produced if Mr. Kaplan's deposition had been taken, but I'm not going to speculate as to that. But certainly in response to the deposition notice of Mr. Conroy, documents were not produced. The documents were not produced in response to discovery request. I've already indicated that the existence of this information in twenty something boxes and a direction to the defendants to find it, if you can or if you will, is equivalent to a document dump, which is procedurally inappropriate.
"Thus, in evaluating this issue, the court's view is that the nature of this claim, as I'm looking at it, this is again the last page of court exhibit nine, is a matter which defense counsel should not have to address, the documents regarding it for the first time at trial. These are issues which, plaintiff had the burden pursuant to discovery order and scheduling order to produce and upon that production counsel would have had the opportunity to review it and to inquire concerning it, particularly, as to Mr. Conroy. Thus, the court's ruling stands. This document, which, essentially, I understand is the last page of court exhibit nine concerning the overhead expenses, court's ruled that it's inadmissible. Offer of proof regarding Mr. Kaplan's testimony is not going to be able to address or cure the basis of the court's concern."
"[a] by hiring Pinto, knowing the corrupt relationship between the defendant and the mayor of Bridgeport;
"[b] by hiding from the plaintiff the corruption in which the Kasper Group was engaged in Bridgeport, which would have caused the plaintiff to reject the Kasper Group as a provider of architectural and engineering services at Steel Point;
"[c] by disclosing development plans and specifications to third parties, including the Lenocis, plans and proprietary information which was and is the property of the plaintiff;
"[d] by attempting to insert the Lenocis into the development of Steel Point as codeveloper;
"[e] [b]y unfairly criticizing the plaintiff, its economic plan and viability;
"[f] [b]y failing to control the actions of Pinto in obstructing the [plaintiff's] development plan;
"[g] [b]y taking steps to delay and obstruct the development of the plaintiff on the development site."
The paragraphs of the complaint are numbered consecutively in the style of pleading in the District Court, rather than pursuant to Practice Book § 10-26.
"Under Connecticut law, technically speaking, there is no such thing as a civil action for conspiracy. The action is for damages caused by the acts committed pursuant to a formed conspiracy rather than by the conspiracy itself." (Citations omitted; internal quotation marks omitted.) Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 139-40, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002).
"(b) . . . Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony. . . .
"(c) . . . In cases in which character or a trait of character of a person in relation to a charge, claim or defense is in issue, proof shall be made by evidence of specific instances of the person's conduct."
The Supreme Court held that under RICO, "subrogation to the rights of the manipulation conspiracy's secondary victims does, and should, run afoul of proximate-causation standards. . . ." Id., at 274, 112 S.Ct. 1311. Compare 16 L. Russ & T. Segalla, Couch on Insurance (3d Ed. 2005) § 222:4 ("subrogation is a time-honored theory, and insurers who pay a loss are entitled, within the limit of subrogation doctrine, to pursue the actual wrongdoer").
* * *
"(d) The provisions of this section shall apply. . . to any action brought to the United States . . . district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court. . . ."
The parties do not dispute that the federal action was commenced timely and the present action commenced within one year of the dismissal of the federal action.
"1. Do you find that [Ganim] made any false representations to the Plaintiff as statements of fact? Yes. . . .
"2. Do you find that these statement(s) made by [Ganim] were untrue and were known to be untrue by [Ganim] at the time they were made, or that [Ganim] made the statement(s) with reckless disregard for the truth of the matter? Yes. . . .
"3. Do you find that [Ganim] made false statements to induce the Plaintiff to act upon the false statements? Yes. . . .
"4. Do you find that the Plaintiff did act upon the false statements? Yes. . . .
"5. Do you find that the Plaintiff has proved all of the elements set forth in Questions # 1 through 4 by clear, precise and unequivocal evidence as opposed to by a mere preponderance of the evidence? Yes. . . ."
The Lenoci defendants and Ganim filed motions for a directed verdict on the statute of limitations special defenses. The court denied the defendants' motions for a directed verdict. The court, however, granted the plaintiff's motion for directed verdict as to the statute of limitations special defenses "to that limited extent" that the plaintiff had not voluntarily withdrawn the federal action.
At paragraph 99 of the second revised complaint, the plaintiff alleged "Willinger and Ganim made, and caused other representatives of Bridgeport to make false representations of fact concerning the status of the Steel Point Project, the requirements to be fulfilled by the plaintiff, the manner in which Project money was expended, time periods relating to demolition, destruction, land acquisition and other components of the development project."
