79 Conn. App. 22 | Conn. App. Ct. | 2003
Opinion
The defendants Associated Appraisal Services, Inc., and Garry R. Brooke
The following undisputed facts were found by the court. “In early 1995, the plaintiff agreed to make a mortgage loan to Frank S. Sottile, who was purchasing a home then owned by one Kenneth Assad. The home was then under construction in Southington. The loan was to be in the amount of $650,000. The plaintiff contemplated selling the loan to Countrywide Funding Corp. (Countrywide). According to its own practice and as required by Countrywide, the plaintiff, in May, 1995, hired the [defendants] to appraise the property. The appraisal was done by Stephen G. Shore, an independent contractor, who reported the results to [Brooke, the president of the defendant corporation]. An appraisal report was issued by the defendants, purportedly signed by Shore and [Brooke], but in actuality, signed only by Brooke.
“The report assigned a value of $1,100,000 to the property ‘subject to completion per plan and specifications.’ Prior to closing the loan, the plaintiff asked Brooke to reinspect the property because it could not close the loan unless construction was completed. In response to this request, the defendant Brooke again
“Notwithstanding this report, Brooke prepared, signed and delivered to the plaintiff a document entitled ‘Satisfactory Completion Certificate’ (completion certificate), which contained the following recital: T certify that I have reinspected subject property, the requirements or conditions set forth in the appraisal report have been met, and any required repairs or completion items have been done in a workmanlike manner.’ The report, purportedly signed also by Shore, was in fact signed only by Brooke who, without authorization, signed Shore’s name.
“Relying on the appraisal, [the plaintiff] closed the loan on June 2, 1995, in the amount of $650,000. It thereupon assigned the mortgage to Countrywide. By agreement, [the plaintiff] fully guaranteed the loan to Countrywide. Brooke claimed at trial that [the plaintiff] knew the property was not completed, but told him to send [it] the satisfactory completion certificate notwithstanding. Later in 1995, the Sottile loan went into default. The plaintiff asked Countrywide to handle the foreclosure action, which it did. The judgment obtained found a debt due the plaintiff of $722,646.30 and a fair market value of the property in the amount of $552,000. The plaintiff duly watched over the property and the foreclosure action. Pursuant to its agreement with Countrywide, [the plaintiff] repurchased the loan and paid Countrywide a negotiated sum of $461,499.58, although Countrywide had claimed a loss of $544,091.25.” The negotiated sum was the result of an agreement entered into between the plaintiff and Countrywide resolving several outstanding debts the plaintiff owed Countrywide, including the Sottile loan. The court
The plaintiff brought an amended four count complaint against the defendants, alleging negligence, breach of contract, fraud and recklessness, and, finally, a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendants raised the following five special defenses: (1) statute of limitations, (2) failure to mitigate, (3) contributory negligence, (4) collateral estoppel and (5) improper reliance. The court found in favor of the plaintiff on each count and awarded $591,418 in damages plus attorney’s fees and costs. These appeals followed. Additional facts will be set forth as necessary.
I
The defendants’ first claim is that the court improperly admitted into evidence as a full contract only a portion of that contract. Specifically, the defendants argue that the court failed to require the production of a manual that was referenced in the contract. We disagree.
The following additional facts are necessary for the resolution of the defendants’ claim. The court admitted into evidence a loan purchase agreement (agreement) between Countrywide and the plaintiff dated January 16, 1990, which outlined the parties’ respective rights and obligations to each other when purchasing and selling loans. That agreement makes reference to Countrywide’s correspondent lending division loan purchase program seller’s manual (manual) that sets forth additional terms, conditions and procedures. On April 6, 2001, four days before trial began, the defendants asked the court to order the plaintiff to produce the manual. The plaintiff informed the court that neither it nor Countrywide had the manual as it existed in 1995, but that there was a 2001 version on Countrywide’s Internet
The defendants, at trial, objected to the agreement’s being admitted into evidence because it was incomplete due to the absence of the manual. The plaintiff argued that the agreement had been authenticated and identified by Dennis F. Hardiman, the chief executive officer of the plaintiff corporation, and that questions pertaining to the manual were a proper subject for cross-examination, but did not concern the agreement’s admissibility. The court informed the defendants that the agreement might become worthless after cross-examination concerning the absence of the manual, but that its absence alone did not make the agreement inadmissible. The court then overruled the defendants’ objection.
The defendants argue that the court admitted the agreement as a full contract without requiring the plaintiff to introduce the manual. According to the defendants, the agreement was incomplete without the manual. The defendants contend that they were harmed by the court’s ruling because the plaintiff was allowed to bring an action on an incomplete agreement, their ability to challenge the plaintiffs claim of damages was impaired and they were prohibited from effectively raising their special defense of contributory negligence.
We first set forth our standard of review. “We have, generally held that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear
The defendants cite § 1-5 (a) of the Connecticut Code of Evidence in support of their claim. That section provides that “[w]hen a statement is introduced by a party, the court may, and upon request shall, require the proponent at that time to introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of the first part of the statement, ought in fairness to be considered contemporaneously with it.” Even if we assume, without deciding, that this evidentiary section applies to written contracts and does not implicate the parol evidence rule, the fatal flaw in the defendants’ argument is that the manual that was in place in 1995 no longer existed. Neither the plaintiff nor Countrywide had that manual. The court did order the plaintiff to produce a portion of the 2001 manual relevant to the completion certificate, which the plaintiff did.
The defendants were not precluded in any way from cross-examining the witness on the absence of the manual. The defendants did not object at trial to the agreement on any other ground such as relevance or lack of authentication. We therefore conclude that the court did not abuse its discretion in admitting the agreement into evidence.
II
The defendants next raise several claims concerning the court’s award of damages. We will address each in turn.
The defendants’ first claim regarding damages is that the court improperly awarded prejudgment interest pursuant to General Statutes § 37-3a. Specifically, the defendants argue that the court should not have awarded prejudgment interest because there was no evidence that any money was due and payable to the plaintiff by the defendants or that any detention of money owed had been withheld wrongfully. Additionally, the defendants argue that the court improperly determined that prejudgment interest began to accumulate on the date title to the property vested with the plaintiff when there was no evidence that they were aware that they owed money to the plaintiff on that date. We disagree.
In its memorandum of decision, the court simply stated “that the plaintiff is lawfully entitled to prejudgment interest pursuant to § 37-3a.” Section 37-3a provides in relevant part that “interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable.” The court stated: “The damages in this case became liquidated on November 26, 1996, the day that title vested in the plaintiff. The defendants undoubtedly knew of then-wrongdoing at that time. They made no effort to pay the damages and have steadfastly continued such refusal throughout these proceedings. The court finds those damages of $170,646.30 wrongfully withheld. Interest is therefore due the plaintiff from November 26, 1996, until the date of this judgment at the rate of 10 percent a year.” The court found that the total interest due was $79,479.10.
“The allowance of prejudgment interest as an element of damages is an equitable determination and a matter lying within the discretion of the trial court. . . .
“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.” (Internal quotation marks omitted.) Maloney v. PCRE, LLC, 68 Conn. App. 727, 755, 793 A.2d 1118 (2002). Factual findings, such as those determinations, are reviewed under the clearly erroneous standard of review. See Tuxis-Ohr’s, Inc. v. Gherlone, 76 Conn. App. 34, 38, 818 A.2d 799, cert. denied, 264 Conn. 907, 826 A.2d 179 (2003). “A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the defi
The court’s conclusion that the defendants wrongfully detained money due to the plaintiff is supported by the evidence. The defendants knew that the building was incomplete and still sent in a false and misleading completion certificate indicating that all construction had been finished. The court, after hearing the witnesses testify and after weighing and interpreting the evidence, determined that the defendants knew their false and misleading completion certificate would cause the plaintiff damages. By not compensating the plaintiff for the damages it sustained after the foreclosure of the property that was supposed to secure the loan, the defendants wrongfully detained the plaintiffs money. That conclusion by the court, therefore, was not clearly erroneous.
The defendants do not contest the court’s determination of the date that title vested with the plaintiff. Rather, the defendants claim that the starting date for calculating interest was inappropriate because they had no knowledge of the foreclosure. The defendants fail to cite any authority for their contention that they had to know of the foreclosure. The evidence supports the court’s finding that the defendants knew of their misrepresentation and negligent completion certificate on the date they issued the document. Inferred from that fact is that the defendants were aware that the plaintiff could potentially suffer harm from that date onward. Obviously, the defendants knew that if the property was overvalued, the loan would be undersecured and that, if there was a foreclosure, the plaintiff would and did suffer damages.
B
The defendants’ second damages claim is that the court improperly awarded the plaintiff punitive damages in the amount of $341,292.60. Specifically, the defendants argue that the award was excessive and in violation of the court’s discretion. We are not persuaded.
The court awarded punitive damages to the plaintiff for the defendants’ violation of CUTPA. The defendants violated CUTPA by submitting the completion certificate when they knew that the construction had not been completed, by failing to disclose to the plaintiff that vandalism had occurred on the property and by signing Shore’s name without Shore’s permission or knowledge. The court determined the amount of punitive damages to be awarded by utilizing the method of doubling the amount of actual or compensatory damages. In doing so, the court cited Bailey Employment System, Inc. v. Hahn, 545 F. Sup. 62, 73 (D. Conn. 1982), aff'd, 723 F.2d 895 (2d Cir. 1983).
General Statutes § 42-1 lOg provides in relevant part that “[a]ny person who suffers any ascertainable loss of money or property ... 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. . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”
“[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
The defendants do not contest the court’s conclusion that their conduct evidenced a reckless indifference to the rights of the plaintiff. Rather, their contention is with the amount of money awarded. We conclude that the court did not abuse its discretion in awarding punitive damages under CUTPA by doubling the compensatory damages of $170,646.30.
C
The defendants’ third claim concerning damages is that the court failed to take into account the property’s decrease in fair market value due to vandalism, which constituted an intervening cause of harm beyond the scope of the defendants’ duty to the plaintiff. We disagree.
The court determined that compensatory damages were limited to $170,646.30. That number was reached by taking the debt the foreclosure court found of $722,646.30 minus the fair market value of the property when title vested with the plaintiff, which was $552,000. The court stated in its memorandum of decision that “there is no evidence as to what, if any, reduction in fair market value was assigned at judgment because of vandalism.” The defendants contend, however, that the evidence produced at trial did establish the damages caused by vandalism. Specifically, the defendants refer
The defendants’ claim attacks a finding of fact, albeit a finding of the absence of a fact, which we review under the clearly erroneous standard of review. See Tuxis-Ohr’s, Inc. v. Gherlone, supra, 76 Conn. App. 38. Here, the court was correct that there was no evidence concerning the amount of damage, if any, vandalism caused to the property that would reduce its fair market value. The appraisal report the defendants rely on does not state that the physical depreciation was due to vandalism. The Countrywide letter does indicate that loss draft proceeds were received, but there was no evidence produced at trial that indicated those were proceeds from an insurance company to compensate for vandalism. Finally, the itemized repair fist simply indicates construction that was necessary to complete the residential dwelling on the property. On that list, there was no evidence that indicated that any specific item was necessary because of vandalism. Accordingly, we conclude that the court’s finding that there was no evidence of the amount of damages attributable to vandalism was not clearly erroneous.
The defendants’ fourth claim relating to the award of damages is that the court improperly awarded punitive damages on the plaintiffs claim of recklessness, which was not alleged or properly pleaded in the complaint. Specifically, the defendants argue that the court could not award punitive damages on count three of the complaint because that count contained the exact same factual allegations as count one, which was a claim of negligence. We disagree.
Although the defendants frame the issue as an improper award of damages, it actually is a claim that the court improperly denied their motion to strike the recklessness count. On September 9, 1998, the defendants filed a motion to strike, claiming, inter alia, that count three should be dismissed because it alleged the same factual allegations as did count one, which was a claim of negligence. The motion was denied on November 16, 1998. The defendants, therefore, claim that no damages can be awarded on count three because that count should have been stricken.
In its amended complaint dated May 21, 2001, the plaintiff alleged in count one that the defendants acted negligently in preparing the completion certificate by breaching their duty of reasonable skill, care and diligence. The plaintiff alleged that the defendants breached the standard of care by failing to notify it that construction was not completed, failing to conduct a proper inspection to determine whether construction was complete, and failing to use the level of skill and care of real estate appraisers in advising the plaintiff on the value of the property.
In count three, the plaintiff incorporated the factual allegations in count one, but did not incorporate the paragraph detailing how the defendants were negligent. Rather, the plaintiff alleged: “The representations set
“Our standard of review is undisputed. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on [a motion to strike] is plenary.” (Internal quotation marks omitted.) Melanson v. West Hartford, 61 Conn. App. 683, 687, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001). “On a motion to strike, the trial court’s inquiry is to ascertain whether the allegations in each count, if proven, would state a claim on which relief could be granted.” (Internal quotation marks omitted.) In re Michael D., 58 Conn. App. 119, 122, 752 A.2d 1135, cert. denied, 254 Conn. 911, 759 A.2d 505 (2000). “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly, rather than narrowly.” (Citation omitted; internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 629, 804 A.2d 180 (2002).
To determine whether the plaintiffs amended complaint stated a cause of action sounding in recklessness, we look first to the definition of reckless behavior. “Recklessness is a state of consciousness with reference to the consequences of one’s acts. ... It is more than negligence, more than gross negligence. . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there
Here, the plaintiff specifically alleged a recklessness cause of action. The plaintiff stated that the defendants knew the completion certificate was false, knew that the plaintiff would rely on it in making the loan, and submitted a false and misleading report with a reckless disregard for the truth of the certificate or the rights of the plaintiff. We conclude, therefore, that count three alleged a cause of action in recklessness and that the court properly awarded punitive damages on that count.
E
The defendants’ fifth damages claim is that the court improperly awarded punitive damages twice on the CUTPA claim. That claim is without merit.
Ill
The defendants’ third claim is that the court failed to address their special defense of improper reliance on the appraisal. Specifically, the defendants argue that the court did not comply with Practice Book § 6-1 (a) because it did not address the defendants’ fifth special defense or its factual basis. We decline to review that claim.
“Our rules regarding the need to seek an articulation of the factual basis of the trial court’s decision are well settled. It is the responsibility of the appellant to move for an articulation in order to clarify the basis of the trial court’s decision should such clar ification be necessary for effective appellate review of the issue on appeal. ... It is, therefore, the responsibility of the appellant to move for an articulation or clarification of the record when the trial court has failed to state the basis of a decision.” (Citations omitted.) Zahringer v. Zahringer, 262 Conn. 360, 370, 815 A.2d 75 (2003). “[W]here the trial court’s decision is ambiguous, unclear or incomplete, an appellant must seek an articulation
Here, the defendants have not provided this court with an adequate record. The defendants did not file any motion for articulation pursuant to Practice Book § 66-5 asking the trial court to address or to state its reasons for not finding in favor of the defendant on its fifth special defense. The defendants have failed to utilize the procedural vehicles available to remedy the inadequacies in the record, yet urge us to resolve the deficiencies in the memorandum of decision on direct appeal. We decline to do so. See Reader v. Cassarino, 51 Conn. App. 292, 295-97, 721 A.2d 911 (1998).
IV
The defendants’ fourth claim is that the court improperly failed to order the production of the policy manual in effect in 1995 that was referenced in the 1990 loan purchase agreement between the plaintiff and Countrywide. Specifically, the defendants argue that the manual was material and relevant because it was incorporated into the loan purchase agreement and related to their defense of contributory negligence. We are not persuaded.
The defendants assert that they asked for the manuals through various interrogatories and requests for production that were served on the plaintiff.
On March 12, 2002, the defendants filed a motion for nonsuit or sanctions pursuant to Practice Book § 13-14. In that motion, the defendants claimed that the plaintiff had failed to comply with its requests because the loan purchase agreements referenced the policy manual, which was not produced. The plaintiff filed an objection to the defendants’ motion for nonsuit or sanctions on March 28, 2001. The plaintiff claimed that it had complied in good faith with all discovery obligations and that failure to produce the manual was due to the fact that it did not possess the manual as it existed in 1995. One reason for the absence was that the 1995 manual had become obsolete. The plaintiff further asserted that it has no control over Countrywide and could not search Countrywide’s files to see if Countrywide had the obsolete manuals from 1995. The plaintiff did contact Countrywide and asked for the 1995 manual, but was informed that Countrywide could not provide a copy because it was obsolete and no longer in effect.
On April 6, 2001, the court heard arguments on the defendants’ motion for nonsuit or sanctions, which the court denied. The defendants argued that the manuals were relevant, material and necessary to the issues in the case. The plaintiff disagreed with the defendants,
“With respect to the appropriate standard of review, Practice Book § 13-14 (a) provides in relevant part that a trial court may, on motion [to compel production], make such order as the ends of justice require. Consequently, the granting or denial of a discovery request rests in the sound discretion of the court . . . and can be reversed only if such an order constitutes an abuse of that discretion. The ultimate issue in our review is, therefore, whether the trial court reasonably could have concluded as it did.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 786, 804 A.2d 889 (2002).
Here, the defendants do not challenge the court’s denial of its motion for nonsuit or sanctions, but rather the court’s failure to compel the plaintiff to produce the 1995 manual. Neither the plaintiff nor Countrywide possessed the 1995 manual. The court ordered the plaintiff to disclose any portion of the 2001 manual that was relevant to the completion certificate, which the plaintiff claimed it did and had produced before trial. The defendants did not object to or contest that assertion. Accordingly, we conclude that the court did not abuse its discretion in failing to compel the plaintiff to produce a document that neither it nor Countrywide possessed.
V
The defendants’ fifth claim is that the court improperly precluded them from conducting a voir dire of
The plaintiff called Hardiman as its first witness. During the direct examination, the plaintiff introduced into evidence five exhibits. Before any of the exhibits were admitted into evidence, the defendants sought and were granted permission to voir dire the witness. On the last such occasion, the court stated: “I’m not going to allow you to examine [Hardiman] anymore because you have been cautioned time and time again that you’re asking questions that are inappropriate for voir dire. ” After that ruling, several other exhibits were introduced through Hardiman. The defendants did not ask the court for permission to voir dire Hardiman on those exhibits.
The defendants merely cite an evidentiary treatise in support of their claim. That treatise states in relevant part: “In deciding whether or not to object to testimony or exhibits, opposing counsel is entitled to a preliminary inquiry into the factual or legal prerequisites for admission of such evidence. Examples of matters appropriate for such examination are the competency of witnesses . . . qualifications of experts, authenticity of documents or exhibits and similarity of conditions.” C. Tait, Connecticut Evidence (3d Ed. 2001) § 1.29.2, p. 84. The defendants provide no case law or analysis to support their claim. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Internal quotation marks omitted.) Wachter v.
VI
The defendants’ next claim is that the court improperly precluded their experts from testifying at trial. Specifically, the defendants argue that their experts had been disclosed properly pursuant to the rules of practice.
A scheduling order was issued on November 8, 2000, by an attorney trial referee, requiring that the defendants disclose their experts by December 23, 2000. Implicit in that order was that the disclosure comply with the rules of practice. In two separate pleadings dated December 22, 2000, the defendants disclosed two expert witnesses pursuant to Practice Book § 13-4 (4). The two experts were Gary Schiller and Stuart Greenberg. Both witnesses would testify about “[t]he duties, obligations, and standard of care for commercial and residential lenders in the state of Connecticut and the [plaintiff’s breach of said duties and obligations and [the] standard of care with respect to the transaction which is the subject of this lawsuit.” The substance of the facts and opinions of the expert testimony according to the disclosure was that the plaintiff had “violated [its] responsibilities and the applicable standard of care for mortgage lenders and brokers in the state of Connecticut, in connection with lending funds for the purchase of the property at 510 Mount Vernon Road in Southington, Connecticut which is the subject
On March 30, 2001, the plaintiff filed a motion to preclude the defendants’ expert witnesses on the ground that the defendants had violated Practice Book § 13-4 (4). The defendants articulated for the first time before the court on April 6, 2001, that their experts would be testifying about the standard of care with regard to the completion certificate. The court, after hearing argument from both parties, precluded the defendants’ experts from testifying at trial because of the defendants’ improper disclosure. The court explained that the disclosures did not provide the plaintiff with any idea of what the experts would testify about and that the disclosure actually led the plaintiff astray of what the experts would testify about. The court stated: “If we had a lot of time in this case, I [would allow the defendants to] amend your disclosure, let [the plaintiff] take the deposition .... We’re out of time. We don’t have that time, it’s gone. Now I have to make a decision of what’s fair for this trial. I realized that if [the defendants do not] put [their] expert on . . . [they] may be hurt in this case. And if I do let you put it on, he is going to be hurt because [the plaintiff] has no answer to that. [The plaintiff] hasn’t had time to do it.” The court explained that the defendants had never informed the plaintiff about what subject the experts would testify and that the disclosure was not specific enough. That, the court concluded, was not in accordance with Practice Book § 13-4 (4) because the subject matter and substance of the facts and opinions were not even remotely in the disclosure.
First, the order with which the defendants were required to comply was reasonably clear, and the defendants knew that in complying with the order they had to comply with Practice Book § 13-4 (4). The November 8, 2001 scheduling order stated that the defendants had to disclose their experts by December 23, 2001. In disclosing their experts, the defendants had to comply with Practice Book § 13-4 (4), which provides in relevant part that a party shall “disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. ...”
Second, the record demonstrates that the defendants violated Practice Book § 13-4 (4). The defendants’ dis
Finally, the sanction of precluding the defendants’ experts from testifying was proportional to the violation and did not constitute an abuse of discretion. The defendants for the first time indicated the true subject matter of their experts’ opinion on April 6, 2001. That violated the rules of practice pertaining to disclosure. Evidence began on April 10, 2001. The complaint had been in existence since May, 1998. The experts were known on December 22,2000, yet the defendants waited until April 6, 2001 to fully comply with the rules. The court in its ruling noted that the plaintiffs disclosed expert would not able to rebut or to testify on the standard of care regarding the certificate of completion. A continuation of the trial to allow the plaintiff to depose the defendants’ experts, to find an expert to rebut the defendants’ experts, and to have that expert deposed would cause undue prejudice to the plaintiff at that late stage of the trial and would cause undue interference with an action that had gone on for almost three years. See Practice Book § 13-4 (4) (A) and (B). We therefore conclude that the court did not abuse its discretion in precluding the defendants’ experts from testifying at trial.
VII
The defendants’ seventh claim is that the court improperly applied the wrong statute of limitations.
“We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Internal quotation marks omitted.) Wachter v. UDV North America, Inc., supra, 75 Conn. App. 545-46. The defendants simply reproduced the language of §§ 52-584 and 52-577 in their brief to this court. The defendants cited a two step test that was employed in a Superior Court case, but do not explain what that test is or how it is applicable to the facts here.
The defendants also do not cite any appellate authority for their bare assertion that the court improperly applied the wrong statute of limitations. The defendants argue, without any legal support or analysis, merely that the corporation is a “person” under § 52-584, that it was damaged by purely commercial losses and that the plaintiffs “property,” both real and personal, was injured because of the simple fact that the plaintiff suffered monetary loss. In addition, absent from the defendants’ brief is any reference to which count, if any, that argument is applicable. Accordingly, we decline to review that claim.
VIII
The defendants’ final claim is that the judge improperly failed to recuse himself. Specifically, the defendants argue that a judge who presides over pretrial settlement conferences or is aware of confidential settlement offers must disqualify himself because of the appearance of impropriety. We disagree.
The court denied the defendants’ motion for disqualification on April 11, 2001. The court indicated that it had not been involved in the settlement negotiations, but did read the attorney trial referee’s report in the court file. The court explained that its reference to monetary figures on April 6, 2001, was used hypothetically to legal arguments and possible claims in the case, but did not concern settlement offers or the merits of the case. The court also stated that even if the defendants’ motion had merit, the defendants had waived any claim because they waited until the court ruled unfavorably on their motions.
“A factual basis is necessary to determine whether a reasonable person, knowing all of the circumstances, might reasonably question the trial judge’s impartiality. Vague and unverified assertions of opinion, speculation and conjecture cannot support a motion to recuse . . . .” (Internal quotation marks omitted.) State v. Montini, 52 Conn. App. 682, 695, 730 A.2d 76, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999). “It is a fundaméntai principle that to demonstrate bias sufficient to support a claim of judicial disqualification, the due administration of justice requires that such a demonstration be based on more than opinion or conclusion.” (Internal quotation marks omitted.) Id., 695-96.
Here, the defendants made two factual assertions that are not supported by the record before us. We do not have a transcript of the April 4, 2001 meeting, and the April 6, 2001 hearing is devoid of the statement the defendants assert the judge made. Furthermore, the
IX
The plaintiff filed a cross appeal and claims that the court improperly calculated compensatory damages. Specifically, the plaintiff argues that it suffered a total loss of $461,499.58 due to the defendants’ misconduct rather than the $170,646.30, which was awarded. We disagree.
We first set forth our standard of review. “[T]he extent of loss for which an appraiser should be legally responsible is a question of law, subject to plenary review.” Tulhill Finance v. Greenlaw, 61 Conn. App. 1, 6, 762 A.2d 494 (2000). The court based its calculation of compensatory damages on First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 724 A.2d 497 (1999), concluding that damages in a case of real estate appraiser negligence are determined at the time title vests in the foreclosing party. Pursuant to First Federal Savings & Loan Assn. of Rochester, the court concluded that the amount of compensatoiy damages owed to the plaintiff was the debt owed by Sottile minus the fair market value of the property at the time of foreclosure.
The plaintiffs argument is that the court applied First Federal Savings & Loan Assn. of Rochester improperly, thus limiting its damages, and failed to undertake an analysis of duty and proximate cause. We agree that the court failed to undertake an analysis of duty and proximate cause when determining what damages to award, but conclude that the court ultimately awarded
“The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. . . . Essential to determining whether a legal duty exists is the fundamental policy of the law that a tortfeasor’s responsibility should not extend to the theoretically endless consequences of the wrong. . . . Even where harm was foreseeable, this court has found no duty when the nexus between a defendant’s negligence and the particular consequences to the plaintiff was too attenuated.” (Citations omitted; internal quotation marks omitted.) Id., 605-606.
Here, we must determine whether the scope of the defendants’ duty, in providing a valuation of the property to the plaintiff, extended to protecting the plaintiff against monetary loss that resulted from an indemnification clause in the loan purchase agreement between the plaintiff and Countrywide and a subsequent agreement between the plaintiff and Countrywide in which they resolved and settled a number of outstanding debts owed by the plaintiff to Countrywide. Our starting point in that determination is the purpose for which the appraisal and completion certificate was sought.
The duty owed to the plaintiff was to provide an appraisal on the property to ensure that only the Sottile loan was properly secured in case of a default. The defendants did not have a duty to protect the plaintiff from losses it paid to Countrywide in a subsequent agreement that encompassed several outstanding debts of the plaintiff. Our conclusion is supported by the facts that the defendants did not know of the subsequent agreement between the plaintiff and Countrywide, did not know of the other loans purchased by Countrywide from the plaintiff that were addressed in that agreement, and provided the appraisal and completion certificate only for the Sottile loan. When the defendants issued their negligent and false appraisal and completion certificate, it was foreseeable that the property would be overvalued, causing the loan to be under-secured, and that in case of a default, the plaintiff would suffer loss stemming from that transaction alone. It was not foreseeable that as a result of the plaintiff
We next must determine what damages were proximately caused by the defendants’ breach of their duty to the plaintiff. It was foreseeable to the defendant appraiser that providing the false appraisal to the plaintiff would cause it to loan money believing that the properly securing the loan was fully constructed when in fact it was not, which would lead to the property’s being overvalued and the loan undersecured. As a result, the damages that resulted from the borrower’s subsequent default would be proximately caused by the negligent appraisal and completion certificate. Here, the court found that those damages were the debt owed minus the fair market value of the property when the title vested with the plaintiff. The plaintiff, however, argues that the defendants should be responsible for all the money paid to Countrywide. Yet, the evidence demonstrates that the amount the plaintiff paid to Countrywide was due to numerous other outstanding loans and was not related to the negligent appraisal and completion certificate. In other words, the total loss the plaintiff claims was outside the duty owed by the defendants and was not proximately caused by the defendants’ conduct.
Although the court did not undertake that analysis of duty and proximate cause, we are “authorized to rely upon alternative grounds supported by the record to sustain a judgment. . . . Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.” (Citation omitted; internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992). We have determined that the damages claimed by the plaintiff were
The judgment is affirmed.
In this opinion the other judges concurred.
The three defendants in the plaintiffs initial complaint were Associated Appraisal Services, Inc., Brooke and Stephen G. Shore. The plaintiff subsequently withdrew the action as against Shore on April 11,2001. We therefore refer in this opinion to Associated Appraisal Services, Inc., and to Brooke as the defendants.
That assertion by the defendants is supported only by a footnote in the plaintiffs posttrial brief. No evidence of that assertion was produced to the court during trial.
Those interrogatories and requests for production, however, were not produced by the defendant in the record on appeal. We do have before us the plaintiffs objections to certain requests for production, including interrogatory four, which states: “Please identify each and every document used by the Plaintiff in the loan application and approval process by the Plaintiff during the time period from January 1, 1995, through July 1,1995.” The defendants’ request for production number nine states: “Produce all documents related to the sale of the [Sottile] loan . . . .” The defendants’ request for production number twelve states: “Produce all documents related to the alleged errors and inaccuracies in the Defendants’ appraisal . . . .”
The defendants also claim that the court improperly precluded their experts’ testimony in that the subject matter of that testimony was relevant to the issues at trial. The court’s decision, however, to preclude the experts was not based on relevance, but on the defendants’ failure to comply with the rules of practice.