Opinion
No. CV 01 0086006S
March 30, 2005
MEMORANDUM OF DECISION
This is an action brought by the plaintiff, Chapman Lumber, Inc., against the defendant Clifford L. Tager. On July 15, 2004, the plaintiff filed an amended three-count complaint for damages he incurred as a result of the alleged actions of the defendant, which sounded in fraud (count one); tortious interference with contractual relations (count two); and conspiracy (count three). The case was tried to a jury. On September 24, 2004, the jury returned a verdict in favor of the plaintiff on all counts and awarded $55,000 in damages. On September 27, 2004, the plaintiff filed the following motions: motion for exemplary damages; motion for interest pursuant to General Statutes § 37-3a; and motion for interest pursuant to General Statutes § 52-192a. On October 1, 2004, the defendant filed a motion to set aside the verdict and have judgment rendered in accordance with his motion for a directed verdict. In addition, the defendant filed objections to all three of the plaintiff's motions on December 10, 2004.
The complaint filed on July 15, 2004 was the sixth amended complaint in this action. The suit was initiated on September 12, 2001.
I
The plaintiff has requested that the court award exemplary damages in the amount of $22,500 representing legal fees owed pursuant to a contingent fee agreement based on the finding of the jury that the defendant acted with reckless indifference to the rights of the plaintiff, committed an intentional and wanton violation of such right. The defendant objects to the plaintiff's motion for exemplary damages on the following grounds: (1) the plaintiff neither alleged nor produced evidence that the defendant acted with reckless indifference to the rights of the plaintiff or committed an intentional and wanton violation of those rights; (2) the plaintiff failed to present expert testimony as to the necessity, value and reasonableness of the legal fees or the equity in the property that was to be subject to a mortgage; and (3) the plaintiff is not entitled to interest pursuant to § 37-3a.
The defendant filed a motion to preclude the plaintiff from introducing its legal fees into evidence, which was denied by the court, Bozzuto, J., on September 14, 2004. The jury was properly instructed as to the reasonableness of the fees.
See Part II of this decision.
"Ordinarily, a successful litigant is not entitled to an award of attorneys fees . . . This rule is known as the American rule . . . Connecticut adheres to the American rule . . . Connecticut recognizes, however, the exceptions to this rule. A successful litigant is entitled to an award of attorneys fees if they are provided by contract . . . by statute . . . or as an aspect of punitive damages." (Citations omitted; internal quotation marks omitted.) Jones v. Ippoliti, 52 Conn.App. 199, 209, 727 A.2d 713 (1999). "Common law punitive damages cannot exceed the plaintiff's expenses of litigation, less his taxable costs. Litigation expenses may include not only reasonable attorneys fees, but also any other nontaxable disbursements reasonably necessary to prosecuting the action." (Citations omitted.) Berry v. Loiseau, 223 Conn. 786, 832, 825, 614 A.2d 414 (1992).
"[I]n order to 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." (Internal quotation marks omitted.) Id., 811. "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." Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987). "A plaintiff may recover punitive damages even if he does not specifically plead them in the body of the complaint or the claims for relief." Stohlts v. Gilkinson, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 01 0096452 (August 22, 2003, Aurigemma, J.), aff'd, 87 Conn.App. 634 (2005). "To furnish a basis for recovery of such damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought." Markey v. Santangelo, 195 Conn. 76, 77, 485 A.2d 1305 (1985).
In the present case, the jury found in favor of the plaintiff on all three counts, which included a fraud claim. The fraud claim was properly alleged and proven, which sufficiently demonstrates conduct that was wilful and malicious. The motion for exemplary damages is granted in the amount of $22,500.
II CT Page 5548
The plaintiff has requested interest pursuant to General Statutes § 37-3a in the amount of $12,000. The defendant has filed an objection in which he contends that: (1) the plaintiff did not include a request for interest by specifically naming the statute in the complaint; (2) there is no evidence that the defendant withheld money from the plaintiff; and (3) the plaintiff is not entitled to interest as a matter of equity.
General Statutes § 37-3a provides, in part: "[I]nterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable."
Practice Book § 10-3(a) provides: "When any claim made in a complaint, cross complaint, special defense or other pleading is grounded on a statute, the statute shall be specifically identified by its number." Practice Book § 10-3(a) "has been construed as directory rather than mandatory." Colon v. Board of Education, 60 Conn.App. 178, 188 n. 4, 758 A.2d 900 (2000). "As long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery." (Citations omitted.) Id.; Anquillare, Lipnicki, Ruocco and Co. v. VCR Realty Associates, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 00007017 (February 5, 2003, Alander, J.) ( 33 Conn. L. Rptr. 727).
"The determination to award interest on moneys due and owing is within the discretion of the trial court." Knapp v. Knapp, 270 Conn. 815, 825, 856 A.2d 358 (2004). "General Statutes § 37-3a . . . provides for interest at the rate of ten percent a year, and no more . . . in civil actions. That is not a fixed rate, but the maximum rate of interest that the court can, in its discretion, award." (Internal quotation marks omitted.) Nolan v. Milford, 86 Conn.App. 817, 818, 862 A.2d 879 (2005); see also Sears, Roebuck Co. v. Board of Tax Review, 241 Conn. 749, 765-66, 699 A.2d 81 (1997). "Before awarding interest, the trial court must ascertain whether the defendant has wrongfully detained money damages due the plaintiff . . . Interest on such damages ordinarily begins to run from the time it is due and payable to the plaintiff . . . The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of an arbitrary rule." (Citations omitted; internal quotation marks omitted.) West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 321, 541 A.2d 858 (1988). "A trial court must make two determinations when awarding compensatory interest under § 37-3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated." Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 735, 687 A.2d 506 (1997).
In the present case, the plaintiff alleged a "claim for interest," which sufficiently apprised the defendant that it would be seeking an award of interest. While the defendant cites to Tang v. Bou-Fakhreddine, 75 Conn.App. 334, 815 A.2d 1276 (2003), for the proposition that in order to recover interest pursuant to § 37-3a, the defendant must have actually held onto the money, the court finds this analysis to be only partially correct. In Tang, the court held that "[t]he prejudgment interest statute does not apply when the essence of the action is the recovery of damages to compensate a plaintiff for injury, damage or costs incurred as a result of a defendant's negligence. It ordinarily does not apply to contract actions in which the plaintiff is not seeking the recovery of liquidated damages or the recovery of money advanced under a contract and wrongfully withheld after a breach of that contract. The prejudgment interest statute does not apply to such actions because they do not advance claims based on the wrongful withholding of money, but rather seek damages to compensate for losses incurred as a result of a defendant's negligence. Moreover, such damages are not considered due and payable until after a judgment in favor of the plaintiff has been rendered." Id., 349. In the present case, the jury found that the defendant had conspired with another to deprive the plaintiff of monies that were owed to him. The defendant asks this court to apply the court's reasoning in Tang to actions sounding in fraud, yet he presents no logical basis for the court to do so. The court grants the plaintiff's motion for interest pursuant to § 37-3a in the amount of $12,000.
III
The plaintiff has requested interest pursuant to General Statutes § 52-192a in the amount of $32,400. The defendant has filed an objection in which he contends that the plaintiff's offer of judgment was for $75,000, and the jury returned a verdict for $55,000, which prevents the awarding of interest pursuant to § 52-192a.
General Statutes § 52-192a provides, in relevant part: "(a) After commencement of any civil action based upon contract or seeking money damages . . . the plaintiff may, not later than thirty days before trial, file with the clerk of the court a written `offer of judgment' . . . offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain . . . (b) After trial the court shall examine the record to determine whether the plaintiff made an `offer of judgment' which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in the plaintiff's `offer of judgment,' the court shall add to the amount so recovered twelve percent annual interest on said amount . . ." See Practice Book §§ 17-14 through 17-18.
"The purpose of § 52-192a is to encourage pretrial settlements and, consequently, to conserve judicial resources . . . [T]he strong public policy favoring the pretrial resolution of disputes . . . is substantially furthered by encouraging defendants to accept reasonable offers of judgment . . . Section 52-192a encourages fair and reasonable compromise between litigants by penalizing a party that fails to accept a reasonable offer of settlement . . . In other words, interest awarded under § 52-192a is solely related to a defendant's rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources." (Internal quotation marks omitted.) Cardenas v. Mixcus, 264 Conn. 314, 321, 823 A.2d 321 (2003).
In the present case, the court has awarded interest and exemplary damages consistent with the jury verdict awarding $55,000. As such, the judgment exceeds the amount of the offer of settlement. Accordingly, the motion for interest pursuant to § 52-192a is granted in the amount of $32,400.
See Part I and II of this decision.
IV
The defendant has filed a motion to set aside the verdict and have judgment rendered in accordance with his motion for a directed verdict on the ground that the verdict is contrary to law and the evidence.
The defendant also asserts numerous other grounds for his motion, all of which the court finds lack merit.
"The standard for granting a motion to set aside a verdict is whether the jury reasonably and legally could have reached the conclusion it did on the basis of the evidence it in fact had." Message Center Management, Inc. v. Shell Oil Products Co., 85 Conn.App. 401, 415-16, 857 A.2d 936 (2004). "The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence . . . The supervision which a judge has over the verdict is an essential part of the jury system . . . [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, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality." (Internal quotation marks omitted.) Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 637-38, 854 A.2d 1066 (2004).
The court finds that the jury reasonably and legally reached its conclusion based on the evidence submitted at trial, and, therefore, is not contrary to law or the evidence. Accordingly, the motion to set aside the verdict and have judgment rendered in accordance with the defendant's motion for a directed verdict is denied.
BY THE COURT
Bozzuto, J.