Opinion
No. CV 06-5004384-S
April 2, 2008
MEMORANDUM OF DECISION ON PLAINTIFF'S CLAIM FOR A JURY TRIAL ON A HEARING IN DAMAGES PURSUANT TO C.G.S. §§ 52-215 AND 52-220
PROCEDURAL HISTORY
This case was initiated by complaint of the plaintiff dated June 8, 2006, seeking, inter alia, the dissolution of the defendant corporation, Tele-Consult Associates, Inc. (hereinafter "TCM"), a corporation in which the plaintiff, Tammy A. Jordaan (hereinafter "Jordaan") and the defendant, Katherine Wayland (hereinafter "Wayland"), each had a fifty percent ownership interest in TCA's capital stock. They were the sole members of the board of directors, Wayland was president and Jordaan was secretary/treasurer. In its Demand for Relief, the plaintiff claimed six separate temporary and permanent injunctions against Wayland as well as attorneys fees, restitution, an accounting, compensatory damages and punitive damages for a violation of the Connecticut Unfair Trade Practice Act ("CUTPA"). The gravamen of plaintiff's complaint is that Wayland breached her fiduciary duty as to Jordaan et al.
By amended complaint dated November 3, 2006, the plaintiff alleged breach of fiduciary duty by Wayland, Intentional Interference with Beneficial Relationship, violation of CUTPA and for the first time a petition for a judicial dissolution of TCA, and dissolution of TCA. In her prayer for relief by amendment, the plaintiff claimed six separate temporary and permanent injunctions against Wayland, dissolution of TCA, appointment of a receiver of TCA, an accounting by Wayland, restitution by Wayland, compensatory damages, punitive damages pursuant to CUTPA, and attorneys fees pursuant to CUTPA.
On or about February 13, 2007, the defendants filed an answer and counterclaim. The first count of the counterclaim claimed "Usurpation of Corporate Opportunity Against Jordaan," the second count "Breach of Fiduciary Duty Against Jordaan," the third count "Breach of Agency Agreement Against Jordaan," the fourth count "Accounting and Constructive Trust Against Jordaan," the fifth count for "Declaratory Judgment," the sixth count for "Injunctive Relief Against Jordaan," the seventh count "Unjust Enrichment Against Jordaan," the eighth count "Tortious Interference with Contractual Relations Against Jordaan," the ninth count "Conversion and Statutory Theft Pursuant to C.G.S. § 52-564 Against Jordaan," the tenth count "Civil Conspiracy Against Jordaan with Ann Flynn, Matthew McCoy and IQ Tel-Com," eleventh count "Unfair CUTPA Against Jordaan, Ann Flynn, Matthew McCoy and IQ Tel-Com," the twelfth count "Fraud and Deceit Against Jordaan," the thirteenth count "Breach of Agency Agreement Against IQ Tel-Com," the fourteenth count "Tortious Interference with Contractual Relations Against IQ Tel-Com, Ann Flynn and Matthew McCoy," and the fifteenth count "Aiding and Abetting Breach of Fiduciary Duty Against IQ Tel-Com, Ann Flynn and Matthew McCoy." In their Prayer for Relief, the defendants claimed injunctive relief against Jordaan, compensatory damages, attorneys fees, punitive damages, treble damages, attorneys fees and interest.
Ann Flynn, Matthew McCoy and IQ Tel-Com are not parties in this action.
On or about October 9, 2007, the plaintiff filed her answer and special defenses to defendant's counterclaim. The special defenses are estoppel, waiver, disclosure and/or inability to pursue future corporate opportunities, statute of limitations, payment, unclean hands, and setoff.
Defendants then moved to strike the special defenses on or about December 5, 2007. The plaintiff filed a brief in response on or about February 25, 2008. On February 28, 2008, by memorandum of decision, this Court granted in part the defendants' motion to strike. As of this date, the plaintiff has not pleaded over which he was required to do within fifteen days of the Memorandum of Decision. The defendants have not yet filed a reply to the remaining special defenses.
It should be noted that both the plaintiff and the defendants filed motions to dismiss the plaintiff's complaint and the defendants' counterclaim. Several briefs were filed on these motions during the summer of 2007 up until November of 2007. On or about December 14, 2007, this Court dismissed the plaintiff's complaint for disciplinary reasons. At the same time, the Court denied the plaintiff's motion to dismiss and defaulted the plaintiff on the defendants' counterclaim. The plaintiff filed a claim for a hearing in damages and a jury trial for said hearing as noted above.
The Court held a hearing on the plaintiff's claim for a jury trial, the parties then filed briefs on this issue dated February 29, 2008 and the defendants filed a reply brief as permitted by the Court on March 7, 2008. The plaintiff declined to file a reply brief.
STANDARD OF REVIEW
The applicable statutes are as follows:
Sec. 52-221. Hearing in damages: Evidence. Notice. (a) In any hearing in damages upon default suffered or after demurrer overruled, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff's complaint, except such as relate to the amount of damage, unless he has given notice to the plaintiff of his intention to contradict such allegations and of the subject matter which he intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain the action, nor shall he be permitted to prove any matter of defense, unless he has given written notice to the plaintiff of his intention to deny such right or to prove such matter of defense.
(b) The judges of the Supreme Court shall make such rules as to the manner of filing such notices and as to the form thereof as they deem advisable.
Sec. 52-220. Hearing in damages: When to jury. In any action at law in which the defendant suffers a default and there is a hearing in damages, the hearing in damages shall be to a jury of six if either party to the action, within thirty days after the default has been entered, files with the clerk of the court in which the action is pending a request in writing that the hearing in damages be to a jury.
ISSUES AND FINDINGS IS THE PLAINTIFF ENTITLED TO A JURY TRIAL IN THE HEARING IN DAMAGES?
The short answer is No, for the following reasons:
1. WAIVER CT Page 5488
In Evans v. General Motors Corp., 277 Conn. 496, 505-06 (2006), the Connecticut Supreme Court stated, inter-alia:
"[T]he right to a jury trial is a right which, like other rights, may be waived but . . . is a right, the waiver of which is not to be inferred without reasonably clear evidence of the intent to waive." Citing Krupa v. Farmington River Power Co., 147 Conn. 153, 156, 157 A.2d 914 (1959).
This Court became involved in this case on or about April 4, 2007, to take up plaintiff's request for the appointment of a receiver of TCA. The Court initially denied the request for receiver, and, shortly thereafter, the Court stated it would first hear the claims of the plaintiff and the defendants as to whether or not Wayland and Jordaan had violated their fiduciary duties. The Court believed that determining that issue would have an effect on whether or not a receiver should be appointed and whether or not there should be a dissolution of TCA. The Court noted that this case had been scheduled for a court trial in November of 2007. However, because the Court was to get into the issue of who had breached her fiduciary duties which the Court believed was the major element of this case, it stated shortly after April 4, 2007 that we had shifted to a trial mode, with words that "we are now in a full trial mode." There was no objection by the plaintiff or the defendants for the Court to proceed with a court trial on the major issues. Plaintiff wanted to be assured that if the Court started with the defendants' counterclaim, the Court would not make up its mind on the issues until the plaintiff had set forth her case in chief on the issue of who had violated her fiduciary duties. The Court assured the plaintiff that it would not make up its mind until the plaintiff had put forth her case in chief. There was no objection to the Court hearing the evidence as a court trial. The Court then proceeded to hear the evidence on the aforementioned issue, and the trial before this Court lasted fifty-six days. At no time did the plaintiff claim her right to a jury trial. She was clearly aware that this Court was going to adjudicate the major issues of fact in this case. For example, in plaintiff's motion for order of judgment of dismissal against defendants and motion for sanctions/costs dated September 11, 2007, p. 5, counsel for the plaintiff stated: "Yet, the defendants are withholding the vast financial information requested to prejudice the plaintiff's defense, knowing that we are in trial." (Emphasis added.) In plaintiff's objection to defendants' request to amend their counterclaim complaint dated October 18, 2007, pp. 5-19, "Allowing defendants to amend now will not only prejudice the plaintiff, but it would cause undue delay in this already lengthy trial." (Emphasis added.) In plaintiff's objection to defendants' motion to cite in party defendants dated October 18, 2007, pp. 4-5, the plaintiff stated: "It would unfairly prejudice the plaintiff and cause undue delay in this trial if the court allowed the parties to be added into the case this late . . . Now at this late juncture — beyond the 12th hour — and when their case in chief is almost done, the defendants seek to further delay this already lengthy and arduous trial." (Emphasis added.) As late as plaintiff's objection and memorandum of law in opposition to defendants' motion to strike and memorandum of law dated February 25, 2008, p. 2, the plaintiff stated: " We have been on trial for more than 50 days." (Emphasis added.)
It is clear that the plaintiff, by her conduct, consented to 56 days of trial to the Court and did not claim a jury trial at any time prior to the Court's December 14, 2007 dismissal of her affirmative claims in this matter and entry of a default against her on the defendants' counterclaim. It is obvious that the plaintiff was happy to participate in a 56-day bench trial without objection and to make her claim for a jury only after she had received an unfavorable ruling from the Court on the motions to dismiss.
It would be obviously unfair and prejudicial if a jury would be asked to hear evidence that the Court already has heard for 56 days prior to dismissing the plaintiff's claims. To participate in defendants' lengthy testimony on damages to the Court with the same evidence to be presented to a jury, the plaintiff clearly waived her right to a jury trial. Further, when the plaintiff agreed to simultaneous motions to dismiss on the same basis as that of the defendants, the plaintiff knew that she could have her complaint dismissed and be defaulted on the counterclaim. That is further evidence of her waiver of a right to a jury trial.
2. PLAINTIFF HAS CLAIMED THAT SHE HAS A FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A JURY TRIAL.
It is well settled law that the federal right to a jury trial under the Federal Constitution is applicable only to federal cases.
As to the plaintiff's Connecticut Constitutional right to a jury, it is not absolute. As far back as December 1908 in Bristol v. Pitchard, 81 Conn. 451, 453 (1908), the Court stated, in pertinent part, as follows:
The issues closed were plainly such as, prior to January 1, 1880, would have been properly cognizable in equity, and the various claims to judgment were all made "by way of equitable relief." The plaintiff, therefore, had no absolute right to a jury trial, and the defendant, who did not wish one, had an absolute right to a trial by the court in the absence of an order by the court to the contrary. (Citations omitted) . . . But whether the court should or should not grant the plaintiff's motion for an order to that effect, (jury trial) fell within its judicial discretion, and error cannot be predicated on its denial.
This case is primarily equitable and according to Evans v. General Motors Corp., supra, "Equitable actions, therefore, are not within the constitutional guaranty of trial by jury." An action in equity is "conspicuously inappropriate to a trial by jury." Hall v. Smedley Co., 112 Conn. 115, 117 (1930). "[I]t is well settled that there is no right to a jury trial in an equitable case." Gaudio v. Gaudio, 23 Conn.App. 287, 301 (1990). The analysis as to whether or not this is essentially a legal or equitable case must be performed in the context of the pleadings when read as a whole. Gaudio, supra states that the Court must examine the pleadings in their entirety. Id., 302. In Northeast Savings, P.A. v. Plymouth Commons Realty Corp. et al., 229 Conn. 634, 641 (1994), the Court stated: "When legal and equitable issues are combined in a single action, whether the right to a jury attaches depends on the relevant importance of the two types of claims. Where incidental issues of fact are presented in an action essentially equitable, the Court may determine them without a jury in the exercise of its equitable powers." "[t]he form of relief sought is not dispositive [but] it is certainly a relevant factor." Gaudio, supra at 302-03.
As noted above, the plaintiff, in its November 3, 2006 Amended Demand for Relief, claimed in paragraphs A through F six separate temporary and permanent injunctions against Wayland. She also claimed that Wayland be made to render an accounting and to make restitution. Accordingly, the overwhelming majority of plaintiff's claims in her Prayer for Relief are equitable in nature. In the defendants' Counterclaim dated February 13, 2007, the defendants in count one claim a constructive trust, in the third count the defendants claim injunctive relief, in the fourth count the defendants seek an accounting and constructive trust, and in the sixth count the defendants seek injunctive relief against Jordaan.
In Gaudio, supra, the trial court granted a motion to strike the case from the jury list because one, Eanelli, who was joined as a party to the case had waived his right to claim the case for a jury trial by participating in the court trial without objection.
The Court stated during the 56 days of trial that this had become an equitable action, and there was no objection to same. Accordingly, the Court finds that the hearing in damages is essentially a continuation of an equitable action, and, therefore, the plaintiff is not entitled to a jury.
In a very recent trial court decision dated February 1, 2008, Sferrazza, J., in a case remarkably similar to the case at bar, granted a motion to strike the plaintiffs' claim for a jury trial. See Stephen D. Williams et al. v. Alan F. Williams, TTDCV065000985S, Superior Court of Connecticut, Judicial District of Tolland at Rockville, 2008 Conn.Super.LEXIS 317 [44 Conn. L. Rptr. 806]. A copy of said decision is attached hereto as Schedule A. As in Williams, supra, both the plaintiff and the defendant in the case at bar have demanded an accounting from each other. Judge Sferrazza went on to say: "Whether partnership assets are missing or were misused will depend greatly on the result of such an accounting, as will the amount misappropriated or misapplied, if any. Clearly, any `proper judgment' rendered for either side of this litigation will depend on the outcome of the accounting. The resolution of the other, statutory claims will also be contingent on that outcome. It should be noted that the imposition of a constructive trust, the appointment of a receiver, the dissolution of the partnership, and the issuance of an injunction are also equitable or special statutory remedies for which no jury trial obtains . . . Because the nonjury issues predominate, the motion to strike the jury claim is granted." It should be noted that in the case at bar, the defendants, in their counterclaim, are seeking an accounting and constructive trust, the plaintiff did claim appointment of a receiver and dissolution of the corporation and both sides as indicated above, have claimed issuance of six injunctions on behalf of the plaintiff, and the defendants have also sought equitable relief in several areas as indicated above. There is no question that the equitable, nonjury, issues predominate.
In the case of Earl N. Kapitzke, Admr, C.T.A. v. F. MILLS Co. et al., file no. 55579, Superior Court of Connecticut, New Haven County, Booth, J. cited Bristol v. Pritchard, supra, and struck the case from the jury docket saying in pertinent part: "The action set forth in the complaint is based on the plaintiff's claimed right of an accounting and a money judgment as incident thereto. These and further allegations in the complaint are evidently designed to set up a fiduciary relationship between the plaintiff and the defendants, and to seek the relief prayed for on the basis of such relationship. Citing Bristol v. Pritchard, supra, Booth, J. stated: "Under these circumstances a jury trial is a matter of the court's discretion, which should be exercised to promote the expeditious disposition of the cause consistent with a legal and just determination of the issues presented. In the opinion of the court, after review of the pleadings, this result is more likely to follow from a court trial than by a trial by a jury."
In two cases decided by Lager, J., Anastasia et al. v. Mitsock et al., CV 05-4012156, Superior Court of Connecticut, Judicial District of New Haven at New Haven, 2006 Conn.Super.LEXIS 3661, December 1, 2006 [42 Conn. L. Rptr. 496] and in Antonellas v. Robert Miller et al., CV 98-0411546, opinion no. 96762, Superior Court of Connecticut, Judicial District of New Haven at New Haven, 2007 Conn.Super.LEXIS 130, January 18, 2007, Lager, J. cited Bristol v. Pritchard, supra, and in both cases granted a motion to strike from the jury list.
3. Plaintiff has cited C.G.S. § 52-220, which states, inter-alia: "In any action at law in which the defendant suffers a default and there is a hearing in damages, the hearing in damages shall be to a jury of six . . ." (Emphasis added.) This statute upon which the plaintiff makes her claim for a jury in the hearing in damages must be in an action at law. The Court has already determined that this case is an equitable action. Accordingly, said § 52-220 does not apply. In its December 14, 2007 Memorandum of Decision on Defendants' Motion to Dismiss the Plaintiff's Complaint at p. 2, the Court stated inter-alia "Since both parties are seeking injunctions, this has become a suit, at least in part, in equity." (Emphasis added.) 4. To try the hearing in damages to a jury would be a waste of judicial resources and the financial resources of the parties who would no doubt incur substantial legal fees and costs because a jury trial would mean starting the evidence all over again. Assuming you could impanel a jury that would sit still for more than 56 days of trial, there would be 56 days plus of trial, much of which would be repetitious of what this Court has already heard. This Court has already heard the defendants' lengthy evidence subject to lengthy cross-examination on the defendants' damages.
5. DELAY OF TRIAL
To submit the hearing in damages before a jury would cause unreasonable delay of this trial. The plaintiff, several times during this trial, complained about the length of trial and the potential for further delay. This took place when the defendants moved to cite in party defendants, namely IQ Telcom, Ann Flynn, One Solutions, and Matthew McCoy. Defendants did so no doubt because they believed that the plaintiff was judgment proof and that the aforementioned corporation and individuals had conspired with the plaintiff against the defendants and should be held accountable and pay damages. The Court denied the motion to cite in party defendants and also denied the defendants' attempt to amend their counterclaim. The Court heard arguments on the motion to cite in party defendants and the motion to amend the counterclaim before denying same. However, the plaintiff in opposition to said motions stated: "Allowing the defendants to amend now will not only prejudice the plaintiff, but it would cause undue delay in this already lengthy trial." (Emphasis added.) Objection to Defendants' Motion to Cite in Party Defendants dated October 18, 2007, pp. 4-5 stated: "It would unfairly prejudice the plaintiff and cause undue delay in this trial if the court allowed the parties to be added into the case this late . . . Now at this late juncture — beyond the 12th hour — and when their case-in-chief is almost done, the defendants seek to further delay this already lengthy and arduous trial." (Emphasis added.) " We have been on trial for more than 50 days." (Emphasis added.) Plaintiff's Objection and Memorandum of Law in Opposition to Defendants' Motion to Strike and Memorandum of Law dated February 25, 2008, p. 2.
The Court's denial of the two motions was based upon the unreasonable delay that would take place if the motions were granted, thereby adopting the plaintiff's arguments.
6. This is an equitable action, and to require the parties to retry the case already heard by this Court would be unfair and prejudicial primarily to the defendants but also to the plaintiff because of the resources that would have to be expended by both parties in time and money.
CONCLUSION
For each or all of the foregoing reasons, the plaintiff's claim for a jury trial is denied. The Court will proceed with the hearing in damages before this Court.