EMBALMERS’ SUPPLY COMPANY v. SALVATORE D. GIANNITTI ET AL.
(AC 25829)
Flynn, C. J., and Bishop and Harper, Js.
Argued October 23, 2006-officially released August 7, 2007
Louis Ciccarello, for the appellee-appellant
Opinion
HARPER, J. This is an action for vexatious litigation brought by the plaintiff, the Embalmers’ Supply Company, against the defendants, the law firm of Modugno, Modugno & Modugno, LLC (law firm), and its former client, Salvatore D. Giannitti.1 After trial, the jury returned a verdict in favor of the plaintiff. On appeal, the law firm claims that the trial court (1) lacked subject matter jurisdiction, (2) improperly denied three of its postjudgment motions, (3) improperly permitted the plaintiff to file a reply to its special defense at the beginning of trial, (4) improperly permitted Gary R. Khachian, the attorney representing Giannitti, to testify as part of the plaintiff‘s rebuttal case and (5) improperly instructed the jury on the issue of probable cause.2 In its cross appeal, the plaintiff claims that the court improperly denied its motion for interest and attorney‘s fees pursuant to Practice Book § 17-18. With regard to the law firm‘s appeal, we affirm the judgment of the trial court. As to the plaintiff‘s cross appeal, we reverse the judgment in part.
The present action is based on prior litigation involving a request by Giannitti to inspect and copy the plaintiff‘s accounting records pursuant to
The relevant facts are as follows: On May 15, 1998, the plaintiff held a special stockholders’ meeting to discuss whether to repurchase all of its class B stock. At that time, the stockholders voted to reject the proposal. On June 22, 1998, R. Shawn Beck, president of the plaintiff, sent a letter to Giannitti, informing him that there would be another special stockholders’ meeting on August 20, 1998. The purpose of the meeting would be to conduct a second vote on the proposal to repurchase all class B stock at $153.64 per share. According to the letter, the purchase price of $153.64 per share was based on a 1997 valuation report prepared at the plaintiff‘s behest. The letter concluded with the statement that in the event that the stockholders voted to approve the stock repurchase, “each stockholder will have thirty days from the meeting date to submit his or her shares to the corporation‘s attorney for payment. After the thirty days expire, the offer will be withdrawn.”
That same day, June 22, 1998, the law firm sent a letter to the plaintiff on Giannitti‘s behalf, officially requesting permission to inspect the plaintiff‘s accounting records pursuant to
1997 valuation report on which it was based. The letter also stated that “[t]his information will be used to evaluate [Giannitti‘s] interest in said corporation and will aid [him] in [his] decision as to whether or not to accept the company‘s offer.”
A representative from the law firm and William Galasso, Giannitti‘s accountant, attended the August 20, 1998 special stockholders’ meeting. The meeting concluded with an affirmative vote to repurchase all class B stock at $153.64 per share over the next thirty days. Despite the offer, Giannitti did not sell his stock back to the plaintiff during the thirty day period. By its terms, the repurchase offer expired on September 21, 1998.
In early 1999, Giannitti filed a complaint against the plaintiff, alleging that he had been wrongfully denied access to some of the documents specified in his June 22, 1998 request to inspect and copy records. Although the stock repurchase occurred several months earlier, the complaint alleged that the inspection “was necessary in order to properly evaluate the offer made by [the plaintiff] to purchase [Giannitti‘s] class B stock.” On the basis of this allegation, Giannitti petitioned the court for a writ of mandamus, compelling production of all of the requested records pursuant to
On May 18, 1999, the court, Mintz, J., determined that the offer to repurchase Giannitti‘s stock had expired and that consequently, there was no longer any reason to grant the relief requested in the complaint. Accordingly, Judge Mintz dismissed the case as moot. On appeal, this court affirmed the judgment of dismissal. See Giannitti v. Embalmers’ Supply Co., 61 Conn. App. 904, 763 A.2d 1096, cert. denied, 255 Conn. 941, 768 A.2d 949 (2001).
Thereafter, the plaintiff initiated the present action by complaint dated April 11, 2001. The complaint alleged that the defendants “commenced and prosecuted [the shareholder litigation] without probable cause in violation of [General Statutes] § 52-568 (1)” and that Giannitti evinced “a malicious intent unjustly to vex and trouble the plaintiff corporation, in violation of § 52-568 (2) . . . .”6 The plaintiff requested double damages from the defendants pursuant to § 52-568 (1) and treble damages from Giannitti, specifically, pursuant to § 52-568 (2).
On February 25, 2003, the parties attended a court-ordered pretrial conference. Giannitti and his wife, Karin Giannitti, were present, along with their attorney,
on behalf of the plaintiff, also signed a generic release form (release) in which the plaintiff agreed to discharge the Giannittis and their “agents” from all past, present and future claims.8
Khachian later created a typed, formal copy of the February 25, 2003 agreement that was signed by the Giannittis and by R. Shawn Beck as a representative of the plaintiff (settlement agreement). In accordance with its terms, Salvatore Giannitti agreed to pay the plaintiff $2500 “as full and final satisfaction of the claims brought against him” in return for “full access to [the plaintiff‘s] books and records.” The settlement agreement further recorded the plaintiff‘s and the Giannittis’ “exchange [of] mutual releases.” Pursuant to the agreement, Salvatore Giannitti was withdrawn from the present action on March 10, 2003.
One and one-half years later, the law firm and the plaintiff proceeded to trial. After deliberations, the jury returned a verdict in favor of the plaintiff on the basis of the finding that the law firm had instituted the shareholder litigation without probable cause and thereby caused the plaintiff to incur $7238.31 in damages. The jury further found that the provisions of the release did not absolve the law firm of liability for any action taken “as an agent of [its] former client Salvatore D. Giannitti
. . . .” Thereafter, the law firm filed five motions, including motions for remittitur, for a new trial and to set aside the verdict. All five were denied by the court.
The plaintiff filed a postjudgment motion entitled “motion for judgment in accordance with jury verdict and section 17-18 of the Practice Book.” In accordance with Practice Book § 17-18,9 the plaintiff asked the court to include in its final judgment $350 in attorney‘s fees and “interest from the date the complaint was filed to
In its memorandum of decision, the court doubled the plaintiff‘s damages pursuant to
I
THE LAW FIRM‘S APPEAL
In its appeal, the law firm raises various grounds for reversing the judgment of the court. We address each argument in turn.
A
Subject Matter Jurisdiction
Before turning to the merits of the law firm‘s appeal, we must first address its claim that this court lacks subject matter jurisdiction. Specifically, the law firm claims that the trial court dismissed the action for lack of subject matter jurisdiction on October 21, 2002. “[B]ecause [a] determination regarding a trial court‘s subject matter jurisdiction is a question of law, our review is plenary. Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time.” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 532-33, 911 A.2d 712 (2006).
There is an initial question, however, about whether the court ever in fact dismissed the case for lack of subject matter jurisdiction. On September 4, 2002, the law firm filed a motion requesting dismissal of the case because the plaintiff‘s complaint, as amended, did not comply with the pleading requirements of
the motion was “[g]ranted to [the] extent [that] the plaintiff will file [an] amended pleading includ[ing] [substantive counts and substantive relief] within [the] next [ten] days.” The plaintiff filed an amended complaint and demand for relief on October 31, 2002.
Despite the plaintiff‘s timely filing of an amended pleading, the law firm argued in subsequent motions and pleadings that the October 21, 2002 order constituted a dismissal of the case. First, the law firm filed an objection to the plaintiff‘s amended complaint and demand for relief on the
On March 11, 2003, the law firm filed a motion to dismiss that again alleged that the October 21, 2002, order constituted a dismissal for lack of subject matter jurisdiction. On August 27, 2003, the court, Hon. William B. Lewis, judge trial referee, issued a memorandum of decision denying the motion. The court flatly stated that “[t]he claim that Judge Adams dismissed this action is erroneous,” and opined that the October 21, 2002 order merely connoted a desire for “a complete complaint with both allegations of fact and prayers for relief in one document.” As further confirmation of his understanding of the order, the court cited Judge Adams’ “clear and explicit ruling” that the “case is not dismissed.”
Thereafter, the law firm filed an answer in which it raised as a special defense the allegation that the October 21, 2002 “dismissal” of the case divested the court of subject matter jurisdiction. The plaintiff promptly filed a motion to strike that special defense, which the court, Radcliffe, J., granted on January 20, 2004.
On December 12, 2003, the law firm filed an amended motion for summary judgment that raised, yet again, the allegation that the court lacked subject matter jurisdiction because of Judge Adams’ “dismissal” of the case on October 21, 2002.11 In a memorandum of decision dated February 27, 2004, the court, Tobin, J., rejected the claim and wrote that “[t]he fact that four judges have now been required to consider this same specious claim can not be allowed to pass without comment. Having had this claim repeatedly and explicitly rejected, it is nearly inconceivable ... that a member of the bar of this state would file a motion for summary judgment [on the same grounds].” The court then reminded the law firm and its members that although they were proceeding pro se, they were still subject to the Rules of Professional Conduct. The court concluded by stating that the law firm is “hereby expressly cautioned that no further frivolous pleadings ... will be tolerated by the court.”
Finally, in the August 18, 2004 hearing on the parties’ postjudgment motions, the law firm asked the court to reconsider its ruling that the October 21, 2002 order did not dismiss the case. The court stated: “I think I ruled once and for all and indeed even suggested that it would be a proper matter for the [statewide] grievance committee if it were raised again.” The court further lamented that the law firm‘s claim of dismissal had been “raised so often and ... is so lacking in merit.”
The previously mentioned rulings, as well as the record itself, make it plain that the law firm‘s argument is contrary to the facts of this case. It is evident from the record that the October 21, 2002 order to dismiss the case was conditioned on the plaintiff‘s failure to file an amended pleading. The condition never occurred because
Because the case was never dismissed, there is no merit to the law firm‘s argument that the trial court, and therefore this court, lacks subject matter jurisdiction. Accordingly, we now address the merits of the law firm‘s appeal.
B
Improper Denial of Motion To Set Aside the Verdict
In its motion to set aside the verdict, the law firm argued that as a matter of law (1) it had probable cause to initiate the underlying action and (2) the release discharged it of any and all liability to the plaintiff. After a hearing, the court denied the motion.
On appeal, the law firm claims that the court improperly rejected both grounds for granting the motion. The standard of review governing our review of a trial court‘s denial of a motion to set aside the verdict is well settled. “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 trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] 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.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006).
1
Lack of Probable Cause For Instituting the Shareholder Litigation
The law firm begins by waging a multipronged attack on the court‘s finding that it lacked probable cause to initiate the underlying action.12 Specifically, the law firm contends that the court‘s finding as to the issue of probable cause was unsupported by the evidence submitted at trial.13
As stated previously, we review a court‘s denial of a motion to set aside the verdict under the abuse of discretion standard.
“To establish [a claim of vexatious litigation under the common law], it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff‘s favor.” (Internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007). “A statutory action for vexatious litigation under ... § 52-568 ... differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages.” (Citation omitted.) Id.
“[F]or purposes of a vexatious suit action, [t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable [person] in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of. . . . Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted.” (Internal quotation marks omitted.) Id., 100-101. Finally, the existence of probable cause “is an absolute protection against an action for [vexatious litigation], and what facts, and whether particular facts, constitute probable cause is always a question of law.” (Internal quotation marks omitted.) Id., 94.
Our Supreme Court recently had the opportunity to consider whether a higher legal standard of probable cause should be applied to attorneys and law firms sued for vexatious litigation. See id., 84. After considering the statute and the competing policy interests, the court concluded that a higher standard should not apply. Id.,
100. Instead, in assessing probable cause, the court phrased the critical question as whether “on the basis of the facts known by the law firm, a reasonable attorney familiar with Connecticut law would believe” he or she had probable cause to bring the lawsuit. Id., 104-105. As is implied by its phrasing, the standard is an objective one that is necessarily dependent on what the attorney knew when he or she initiated the lawsuit. Id., 98. Further, the court warned that “[p]robable cause may be present even where a suit lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in [vexatious litigation] must separately show lack of probable cause.” (Emphasis in original; internal quotation marks omitted.) Id., 103.
“Whether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court, but when the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law.” DeLaurentis v. New Haven, 220 Conn. 225, 252-53, 597 A.2d 807 (1991). In this case, the jury found by way of an interrogatory that the law firm instituted the shareholder litigation without probable cause. After trial, the law firm filed a motion to set aside the verdict, alleging, inter alia, that the jury‘s findings were “against the evidence.” After reviewing
Resolving the question of probable cause, then, requires us to determine (1) the facts known to the law firm at the time that it filed suit pursuant to
about what the law firm knew at the time it instituted the shareholder litigation. His testimony, which was undisputed, established the law firm‘s knowledge of the following facts: (1) Salvatore Giannitti owned several hundred shares of class B stock in the plaintiff corporation; (2) in June, 1998, the law firm sent a letter on Salvatore Giannitti‘s behalf requesting access to the plaintiff‘s accounting records; (3) in July, 1998, the plaintiff permitted Salvatore Giannitti‘s accountant to inspect some, but not all, of the records named in the written request; (4) in August, 1998, the plaintiff held a special stockholder‘s meeting at which the stockholders voted to repurchase class B shares at $153.64 per share; (5) the deadline to take advantage of the repurchase offer was September 21, 1998; and (6) Salvatore Giannitti did not avail himself of the repurchase offer before it expired on September 21, 1998.
On the basis of the previously stated facts, the defendants requested a court order pursuant to
Judge Mintz dismissed the shareholder litigation as moot because he concluded that Salvatore Giannitti did not have “a proper purpose” within the meaning of
The court, Tobin, J., accepted the findings of the jury and of Judge Mintz in the shareholder litigation that the defendants’ sole reason for wanting to conduct the inspection was to evaluate the stock repurchase offer.14 The court then concluded that the law firm lacked probable cause, as a matter of law, because “the offer had expired at the time [it] brought the lawsuit and [it] brought the lawsuit only for the stated purpose of pursuing that offer.”
For further guidance, we also examined the official comment to § 16.02 (c) the Model Business Corporation
Act (model act), which provided the blueprint for
Taking heed of those traditional definitions of probable cause, we turn to the facts of this case. The defendants’ purpose, as stated in their complaint and as found by the court, was “to properly evaluate the offer made by the [plaintiff] to purchase [the stock].” The law firm contends that it had probable cause, as a matter of law, because “[it] followed the statutes and proceeded as any attorney would have under the same circumstances.” The law firm also argues, as it did before the trial court, that it could “evaluate” the repurchase offer even after its expiration.
The law firm‘s contention that it “followed the statutes” is irrelevant for purposes of liability for vexatious litigation. Although it is undisputed that the law firm filed a complaint pursuant to
Furthermore, the jury and the court implicitly rejected the law firm‘s contention that it “proceeded
as any attorney would have under the same circumstances.” A finding that the law firm instituted the shareholder litigation without probable cause necessarily connotes a finding that the law firm did not proceed “as any attorney would have under the same circumstances.”
Turning to the law firm‘s argument concerning its use of the word “evaluate,” we agree that one could want to evaluate the adequacy of an offer independent of his or her interest in accepting it. Yet, the phrase “proper purpose,” as used in
Obviously, evaluating the adequacy of an open offer to repurchase stock is “germane” to a shareholder‘s interest as a shareholder and therefore a proper purpose within the meaning of
This court has previously held that conducting a general valuation of stock in a closely held corporation is a “proper purpose” within the meaning of
to ascertain the value of Salvatore Giannitti‘s stock. Its purpose, as alleged in the complaint and found by the court, was to “properly evaluate the offer made by [the plaintiff] . . . .” Given its stated reason for wanting the inspection, the court was justified in concluding that the law firm did not have a “proper purpose” when it filed suit in the shareholder litigation. Moreover, the law firm has never provided a coherent explanation of how it planned to “evaluate” an offer that no longer existed.
We conclude that a reasonable attorney would not believe that evaluating the expired offer was “a lawful and reasonable purpose germane to [the shareholder‘s] status as a shareholder . . . .” (Internal quotation marks omitted.) Pagett v. Westport Precision, Inc., supra, 82 Conn. App. 532. Because a reasonable attorney familiar with Connecticut law would not believe that evaluating an expired stock repurchase offer constitutes “a proper purpose” for requesting inspection of corporate records, we conclude that the law firm did not, as a matter of law, have probable cause to bring suit in the shareholder litigation. Accordingly, the court did not abuse its discretion in denying the motion to set aside the verdict on this ground.15
2
Effect of the Release
With regard to the denial of its motion to set aside the verdict, the law firm also claims that the court improperly rejected its argument that the release discharged it of any liability to the plaintiff. Specifically, the law firm argues that because it was Salvatore Giannitti‘s “agent,” it thereby was covered by the release provision discharging Salvatore Giannitti‘s “agents” of liability to the plaintiff. The law firm further contends that the release was unambiguous and that the court‘s admission of parol evidence concerning the intent of its signatories was therefore improper.16 We are not persuaded.
Second, the court cited Sims v. Honda Motor Co., 225 Conn. 401, 623 A.2d 995 (1993), for the proposition that even when a release is unambiguous, parol evidence is admissible to show its intended scope and effect.17 Consistent with this reading of Sims, the court examined the extrinsic evidence concerning intent and found that the parties never intended to discharge the law firm from its potential liability to the plaintiff. Further, the court found evidence that the law firm was aware of its intentional exclusion from the coverage of the release. Because the plaintiff and Salvatore Giannitti did not intend to discharge the law firm from liability at the time that they executed the release, the court held that the release had not done so as a matter of law.
As stated previously, we review the denial of a motion to set aside the judgment under the deferential abuse of discretion standard.18 See Jackson v. Water Pollution Control Authority, supra, 278 Conn. 702. Beyond that standard of review, determining whether the release effectually discharged the law firm of liability requires us to interpret its language. “It is well settled that a release, being a contract whereby a party abandons a claim to a person against whom that claim exists, is subject to rules governing the construction of contracts. . . . The intention of the parties, therefore, controls the scope and effect of
“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000). Further, “[a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party‘s subjective perception of the terms.” (Internal quotation marks omitted.) Pesino v. Atlantic Bank of New York, 244 Conn. 85, 92, 709 A.2d 540 (1998).
Accordingly, we turn to the two reasons for the court‘s rejection of the law firm‘s argument that the release discharged it of liability to the plaintiff. We agree with the court that the plaintiff‘s action against the law firm was founded on an allegation of direct liability for the institution of the underlying litigation. Since Vandersluis v. Weil, 176 Conn. 353, 407 A.2d 982 (1978), our Supreme Court has “assumed, without discussion, that an attorney may be sued in an action for vexatious litigation, arguably because that cause of action has built-in restraints that minimize the risk of inappropriate litigation.” Mozzochi v. Beck, 204 Conn. 490, 495, 529 A.2d 171 (1987). Indeed, just this year, our Supreme Court articulated the standard of probable cause that is applicable to vexatious litigation suits brought against attorneys. See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 84. There is therefore no basis for the law firm‘s argument that by virtue of its status as a law firm, it cannot be held directly liable for vexatious litigation under
We depart from the court‘s decision insofar as it purports to rely on Sims v. Honda Motor Co., supra, 225 Conn. 401, for the proposition that a court need not make a finding of ambiguity before admitting extrinsic evidence of the parties’ intent in executing a release. A review of Sims and subsequent decisions reveals that the rule set forth in that case applies only in situations in which the normal rules of contract interpretation would operate to defeat the purpose of a remedial statute such as
In Sims, the plaintiff brought a product liability action against the manufacturer of a motorcycle that he was driving at the time he was involved in a collision with an automobile. See Sims v. Honda Motor Co., supra, 225 Conn. 402-403. The manufacturer moved for summary judgment on the ground that a release signed by the plaintiff and the other driver‘s insurance company discharged the manufacturer of liability as a matter of law. Id., 405.
The key issue in the case was the proper construction of
Our Supreme Court reasoned that it was necessary to create a special “intent rule” of contract interpretation for
That our Supreme Court did not intend for the rule in Sims to apply to all releases became apparent in its later decisions. Two years after Sims, our Supreme Court clarified that Sims should not be read as a rejection of the “four corners” doctrine of contract interpretation. See Levine v. Massey, 232 Conn. 272, 278 n.7, 654 A.2d 737 (1995). Instead, the court described it as “a narrow exception to the general rule of contract construction” that was needed to avoid “frustrat[ing] the purpose of a remedial statute.” Id.
That is clearly not the situation in this case.
Moreover, despite being invited to expand the applicability of the Sims exception, our Supreme Court has repeatedly declined to do so. In 1999, it confined
Every indication from our Supreme Court suggests that the Sims exception is a narrow one and should certainly not be expanded beyond the circumstances that spawned its creation. We therefore conclude that Sims is inapplicable. Consequently, we will apply the normal principles of contract interpretation.20
Given the failure of the release to define the term “agents” or otherwise indicate that it was solely applicable to the Giannittis, we conclude that extrinsic evidence was necessary and, therefore, admissible to establish the intent of the parties at the time of its execution. Accordingly, the court properly allowed both parties to present extrinsic evidence that tended to clarify the intended scope and coverage of the release.
The interpretation of ambiguous contract language, being a question of fact, was properly submitted to the jury through an interrogatory. On the basis of the evidence, the jury found that the law firm was not Salvatore Giannitti‘s “agent” within the meaning of the release. The law firm has not challenged that factual finding on appeal, and we decline to upset it because it was amply supported by the evidence presented at trial.
After hearing all of the evidence concerning the execution of the release, the jury found that the parties did not intend, through the use of the term “agents,” to discharge the law firm of liability to the plaintiff. Because the intent of the parties governs the legal construction of a release; see Muldoon v. Homestead Insulation Co., supra, 231 Conn. 482; we conclude, as a matter of law, that the release did not relieve the law firm of liability to the plaintiff for vexatious litigation under
C
Improper Denial of Motion For a New Trial
In its motion for a new trial, the law firm argued that the amended complaint failed to allege a cause of action for vexatious litigation sufficiently under
The law firm claims that the court‘s refusal to grant a new trial on any of these grounds was improper. “Any motion for a new trial is addressed to the sound discretion of the trial court and will not be granted except on substantial grounds.” Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983). Yet notwithstanding this deferential standard of review, “[t]he interpretation of pleadings is always a question of law for the court . . . . The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference
1
Inadequacy of the Complaint
First, the law firm challenges the court‘s rejection of its argument that the amended complaint failed to include sufficient allegations to state a cause of action for vexatious litigation under
The complaint, as amended, alleged that the defendant “instituted” the shareholder litigation and that Judge Mintz dismissed the case. The complaint then stated that the defendants unsuccessfully appealed to this court and then to our Supreme Court. Finally, the complaint alleged that “[the shareholder litigation], as well as the subsequent appeal and [p]etition [f]or [c]ertification, were all commenced and prosecuted without probable cause in violation of
All of those allegations, in the aggregate, were more than sufficient to put the law firm on notice of “the facts claimed and the issues to be tried . . . .” (Internal quotation marks omitted.) Travelers Ins. Co. v. Namerow, supra, 261 Conn. 795. Furthermore, the statutory cause of action for vexatious litigation requires a party to prove only “want of probable cause . . . and a termination of suit in the plaintiff‘s favor.” Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 94. Here, the complaint expressly alleged the existence of both elements.
“Our Supreme Court has repeatedly eschewed applying the law in such a hypertechnical manner so as to elevate form over substance.” (Internal quotation marks omitted.) Martin Printing, Inc. v. Sone, 89 Conn. App. 336, 344, 873 A.2d 232 (2005). In accordance with that principle, it has consistently refused to require use of particular statutory buzzwords or phrases in complaints or otherwise to demand more specificity than necessary to give the other party notice of the claims at issue. See Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 575, 715 A.2d 46 (2002); Service Road Corp. v. Quinn, 241 Conn. 630, 636, 698 A.2d 258 (1997); Tedesco v. Stamford, 215 Conn. 450, 459, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev‘d, 222 Conn. 233, 610 A.2d 574 (1992).
Furthermore, “[t]he absence of a requisite allegation in a complaint . . . is not a sufficient basis for vacating a judgment unless the pleading defect has resulted in prejudice. . . . [J]udgment will not be arrested for faults in statement when facts sufficient to support the judgment have been substantially put in issue and found.” (Internal quotation marks omitted.) Tedesco v. Stamford, supra, 215 Conn. 457. The law firm has never claimed that prejudice or surprise resulted from the complaint‘s alleged lack of specificity.
2
“Newly Discovered Evidence” and Allegedly False Testimony
Second, the law firm claims that the court should have granted its motion for a new trial on the basis of (1) its failure to present evidence establishing the existence of a relationship between JEB Industries, Inc., and Richard Beck, chairman of the plaintiff, and (2) Richard Beck‘s false testimony in connection therewith.21 We disagree.
Additional facts are necessary to our resolution of the law firm‘s claim. During cross-examination, the law firm asked Richard Beck whether he “ha[d] any personal relationship to JEB Industries, Inc.,” and whether “any of [his] family members ha[d] any relationship to JEB Industries, Inc.” He responded to both questions in the negative. He did testify, however, that JEB Industries, Inc., was a manufacturer of funeral supplies and that he believed it was located in Indiana.
At the hearing on the motion for a new trial, the law firm presented certified copies of the 1999 annual report of JEB Industries, Inc., as well as its certificate of dissolution, which it filed with the Delaware secretary of the state on December 18, 2000. In contradiction to Richard Beck‘s testimony, the documents showed that the individuals named as officers of JEB Industries, Inc., included Richard Beck himself, as well as his immediate family members. The law firm represented to the court that it obtained the documents after trial and that, accordingly, the action should be tried anew in order to afford it the opportunity to use this evidence to impeach Richard Beck. The law firm did not explain, however, why it came to possess this information only after the trial.
The court refused to grant a new trial because the 1999 annual report of JEB Industries, Inc., as well as its certificate of dissolution, were matters of public record and, therefore, easily accessible to the law firm. As such, the court concluded that the absence of this evidence at the time of trial was the result of the law firm‘s failure to “do [its] homework” and “prepare a cross-examination.” In addition, the court found that granting a new trial because of a failure to uncover readily available evidence would constitute an impermissible “do over” and inexplicably permit the law firm “to get a second bite on this cause of action.”
The court was similarly unimpressed by the law firm‘s argument that it was entitled to a new trial because of Richard Beck‘s allegedly false testimony concerning the lack of any connection between himself and JEB Industries, Inc. The court observed that the law firm should have been ready to impeach Richard Beck in the event that he misstated the nature of his connection to JEB Industries, Inc., and that there was no basis for the law firm, as experienced litigators, to “go into court with the naive assumption that [their] opponent is always going to speak the truth.” Overall, the court declared that the law firm‘s failure to “nail the witness” during
Thus, the court found that the evidence was not “newly discovered” because it could have been found easily by the law firm at the time of trial. We agree. As statutorily mandated corporate filings, the documents were matters of public record that could have been requested years prior to trial. The documents’ unquestionable availability inevitably leads to the conclusion that the law firm simply failed to avail itself of the information. Moreover, the fact that the law firm knew well in advance that it planned to ask Richard Beck about his connection to JEB Industries, Inc., eliminates the last vestige of this argument. Lack of due diligence in preparing for cross-examination is clearly not a valid reason for requesting a new trial.
We also are not moved by the law firm‘s argument that not granting a new trial would allow the plaintiff “to perpetrate a fraud on the court.” Our Supreme Court has stated that “[n]ew trials are not granted upon newly discovered evidence which discredits a witness unless the evidence is so vital to the issues and so strong and convincing that a new trial would probably produce a different result.” (Internal quotation marks omitted.) Burr v. Lichtenheim, supra, 190 Conn. 355. Here, the identities of the officers of JEB Industries, Inc., as well as the location of its corporate headquarters, were not “vital” issues in this vexatious litigation action. The introduction of this evidence at a new trial, therefore, would not be likely to produce a different result. As such, we cannot say that the court abused its discretion in this regard.
D
Improper Denial of Motion For Remittitur
In its motion for remittitur, the law firm argued that the jury award of $7238.31 was excessive and contrary to the evidence introduced at trial. After a hearing, the court denied the motion.
On appeal, the law firm claims that the denial of the motion for remittitur was improper because the judgment failed to take into account Salvatore Giannitti‘s $2500 payment to the plaintiff and $6639.41 that was credited back to the plaintiff‘s account allegedly as a result of the defendants’ inquiries into the plaintiff‘s accounting records. The law firm also argues that the plaintiff never submitted evidence showing “actual payment for the handling of the prior action.” These two factors, the law firm argues, meant that “the net effect of the prior lawsuit was that plaintiff suffered no monetary loss.” Accordingly, the law firm concludes that the judgment should have shocked the court‘s sense of justice because the plaintiff was “compensated for a loss that it did not suffer” and “compensated twice for the same wrong.” We are not persuaded.
“The amount of a damage award is a matter peculiarly within the province of the . . . jury. . . . The size of the verdict alone does not determine whether it is excessive. The only practical test to apply to [a] verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.” (Internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 323, 852 A.2d 703 (2004).
“[I]n ruling on the motion for remittitur, the trial court was obliged to view the evidence in the light most favorable to the plaintiff in determining whether
The court concluded that the jury‘s damages award of $7238.31 most likely derived from an interrogatory directed to the plaintiff in which it reported that its “attorney‘s fees and disbursements” in the prior action totaled $7238.31. On the basis of that understanding, the court denied the law firm‘s motion for remittitur because it found the award to be properly supported by the evidence introduced at trial.
Given the evidentiary basis for the jury‘s damages award, we cannot say that the court abused its discretion in denying the motion for remittitur. Although there were other figures in the record that could have yielded alternative calculations, “[t]he existence of conflicting evidence [further] curtails the authority of the court to overturn the verdict because the jury is entrusted with deciding which evidence is more credible and what effect it is to be given.” (Internal quotation marks omitted.) Hughes v. Lamay, 89 Conn. App. 378, 384, 873 A.2d 1055, cert. denied, 275 Conn. 922, 883 A.2d 1244 (2005). As such, we reject the law firm‘s claim of error on this ground.
E
Improper Acceptance of Reply to Special Defense
The law firm next claims that the court improperly permitted the plaintiff to file a reply to its special defense at the beginning of trial. We disagree.
The record reveals the following relevant facts. At the start of trial on July 28, 2004, the court asked the parties for a copy of the operative pleadings. The plaintiff‘s counsel informed the court that he had on hand the reply to the law firm‘s special defenses. At that point, however, counsel for the law firm objected to the reply on the ground that the amended answer was dated October 30, 2003, but the plaintiff‘s reply was dated July 27, 2004. Because several months had passed before the filing of the reply, the law firm argued that the reply was untimely under our rules of practice. See
The court then inquired as to how the case got onto the trial list without a certificate of closed pleadings. Counsel for the plaintiff stated that he did not file the reply until July 27, 2004, because he was waiting for the court to rule on his motion to strike the law firm‘s special defense
Because the court exercised its judgment in accepting the belated reply, we review it under the abuse of discretion standard. See Gianquitti v. Sheppard, 53 Conn. App. 72, 76-77, 728 A.2d 1133 (1999); Merritt v. Fagan, 78 Conn. App. 590, 593, 828 A.2d 685, cert. denied, 266 Conn. 916, 833 A.2d 467 (2003). The court probed the explanation of the plaintiff‘s counsel for his failure to file the reply on time and then turned to other matters. Under these circumstances, we cannot say that the court‘s acceptance of the reply was an abuse of its discretion. Consequently, the law firm‘s argument in this regard must fail.
F
Improper Admission of Evidence
Next, the law firm claims that the court improperly allowed Khachian, the attorney representing Salvatore Giannitti, to testify as part of the plaintiff‘s rebuttal case. In that regard, the law firm argues that Khachian‘s testimony was outside the scope of the evidence presented in the law firm‘s case-in-chief. Additionally, the law firm contends that Khachian‘s testimony about the execution of the release was inadmissible evidence of settlement negotiations. Neither argument is availing.
“The admission of rebuttal evidence ordinarily is within the sound discretion of the trial court. In considering whether a trial court has abused its discretion, appellate courts view such a trial court ruling by making every reasonable presumption in favor of the decision of the trial court.” Outdoor Development Corp. v. Mihalov, 59 Conn. App. 175, 183, 756 A.2d 293 (2000).
Following the close of the law firm‘s case-in-chief, the plaintiff called Khachian to the witness stand for the first time. Khachian testified that he drafted the settlement agreement in his capacity as Salvatore Giannitti‘s attorney. He also outlined the events that occurred on February 25, 2003, the day that the parties signed the release. Finally, he testified about the circumstances that led to the signing of the settlement agreement. The law firm raised timely objections to Khachian‘s testimony on the grounds that it exceeded the scope of its case-in-chief and constituted impermissible evidence of settlement negotiations.
The transcript reveals that the court allowed the plaintiff to call Khachian on rebuttal because it had allowed the law firm similar latitude during its case-in-chief. Specifically, the court reasoned that the law firm had originally exceeded the scope of the plaintiff‘s case-in-chief by inquiring into the circumstances surrounding the execution of the release. Because it had allowed the law firm to engage in that line of inquiry during its case-in-chief, the court concluded that “[i]n all fairness,” it should allow the plaintiff the opportunity to “rebut that case.”
Having carefully reviewed the transcript, we cannot say that the court abused its discretion when it permitted the plaintiff to till soil that was originally unearthed during the law firm‘s case-in-chief. As such, this claim must fail.
“The general rule is that evidence of an attempted settlement is not admissible against either party to the settlement negotiations.” (Emphasis added.) Miko v. Commission on Human Rights & Opportunities, 220 Conn. 192, 209, 596 A.2d 396 (1991). Restricting the rule‘s application to the parties involved in settlement negotiations is part and parcel of the rule‘s goal of encouraging the settlement of disputes. See PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., supra, 267 Conn. 332 (“[t]he purpose of
G
Improper Jury Instruction
The law firm next claims that the court‘s instruction on probable cause improperly ordered the jury to apply a “higher, incorrect ‘reasonable man’ standard instead of the more lenient ‘reasonable attorney’ standard . . . .” Although the law firm concedes that it failed to object to the instruction, it requests that we grant review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
567 A.2d 823 (1989),24 or the plain error doctrine.25 See
A reading of the briefs reveals that the law firm did not raise the issue of Golding or plain error review in its principal brief. Further, although the law firm mentioned those issues in its reply brief, it provided no analysis whatsoever of how the facts satisfy the four prongs of Golding or the requisite elements of plain error review.
Our Supreme Court has clearly stated that “[o]ur practice requires an appellant to raise claims of error in his original brief, so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant‘s reply brief is to respond to the arguments and authority presented in the appellee‘s brief, that function does not include raising an entirely new claim of error.” (Internal quotation marks omitted.) Grimm v. Grimm, 276 Conn. 377, 394 n.19, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006). In accordance with this practice, we have consistently held that “[t]his court will not review claims that are raised for the first time in a reply brief. That policy applies to requests for review under Golding as well as requests for review under the plain error doctrine.” Daniels v. Alander, 75 Conn. App. 864, 882, 818 A.2d 106 (2003), aff‘d, 268 Conn. 320, 844 A.2d 182 (2004). By asking for review for the first time in its reply brief, the law firm deprived the plaintiff of the opportunity to argue its position fully on this issue. Given the inexplicable deficiency of adequate notice to the plaintiff, we decline to address this claim.26
THE PLAINTIFF‘S CROSS APPEAL
We finally reach the plaintiff‘s cross appeal from the court‘s denial of its motion for attorney‘s fees and statutory interest pursuant to
“The question of whether the trial court properly awarded interest pursuant to
The following facts are not in dispute. On June 7, 2002, the plaintiff filed a pleading entitled “[o]ffer of judgment directed to Modugno, Modugno & Modugno, LLC.” The pleading stated that pursuant to
At the time that the plaintiff made its offer of judgment,
The law firm never responded to the plaintiff‘s offer of judgment. In accordance with
On August 4, 2004, the plaintiffs filed a motion requesting that the court award it $350 in attorney‘s fees and “interest from the date the complaint was filed to the date of judgment as provided by [Practice Book]
We must determine whether use of the conditional language “within thirty days” in an offer of judgment precludes recovery under
First, there is nothing in
The goals of
On the basis of these underlying policy concerns, this court has previously refused to require strict compliance with the mandates of
After reviewing the policy underlying
In this case, the plaintiff‘s inaccurate statement of the applicable period of time within which to accept the offer was unfortunate.
It would contravene the policy of
On the appeal, the judgment is affirmed. On the cross appeal, the judgment is reversed only as to the denial of the plaintiff‘s motion for interest and attorney‘s fees and the case is remanded for further proceedings to determine the amount of interest and the appropriateness of an award of attorney‘s fees.
In this opinion FLYNN, C. J., concurred.
BISHOP, J., concurring. While I agree with the majority‘s disposition of these appeals, I write separately to emphasize the legal and policy reasons that an appellate court should not accord review to an unpreserved claim that the trial court exhibited partiality toward a party at trial. The defendant law firm, Modugno, Modugno & Modugno, LLC (law firm), contends that the “court erred during trial when it advised [the attorney for the plaintiff, the Embalmers’ Supply Company] on how to proceed during trial.” The “advice” the court purportedly gave was its suggestion that the plaintiff‘s counsel “sit down, take a deep breath, take a minute or two and think” during a colloquy between counsel and the court regarding the admissibility of extrinsic evidence to explain the intent of the parties in the execution of a release. The law firm claims that, following this advice, the plaintiff‘s counsel then reversed his position on the issue, and the court correspondingly ruled in the plaintiff‘s favor.1
“[A]s a general rule, even in cases alleging judicial bias, this court will not consider the issue on appeal where the party failed to make the proper motion for disqualification at trial. . . . Failure to request recusal or move for a mistrial represents the [parties‘] acquiescence to the judge presiding over the trial.” (Citation omitted; internal quotation marks omitted.) Schnabel v. Tyler, 32 Conn. App. 704, 714, 630 A.2d 1361 (1993), aff‘d, 230 Conn. 735, 646 A.2d 152 (1994); see also Statewide Grievance Committee v. Friedland, 222 Conn. 131, 146-47, 609 A.2d 645 (1992). “Our Supreme Court has criticized the practice whereby an attorney, cognizant of circumstances giving rise to an objection before or during trial, waits until after an unfavorable judgment to raise the issue. We have made it clear that we will not permit parties to anticipate a favorable
Here, the law firm did not object to the court‘s “advice” to the plaintiff‘s counsel, move the court to recuse itself on the basis of a lack of impartiality or seek a mistrial. The record contains no indication that the law firm made an assertion of judicial misconduct or bias to the trial court. Rather, the law firm simply asserted that the court‘s ruling on the admissibility of evidence of the parties’ intent in executing a release was “inappropriate.” As noted, this evidentiary claim is separately set forth by the law firm on appeal and, I believe, properly assessed by the majority. Thus, I agree with the majority that the law firm‘s freestanding claim of impropriety is unpreserved and, consequently, unreviewable on appeal.
An unpreserved claim of improper judicial commentary has been held to be appropriate for review if it implicates a constitutional right or pursuant to the doctrine of plain error. See Honan v. Dimyan, 63 Conn. App. 702, 778, 778 A.2d 989, cert. denied, 258 Conn. 942, 786 A.2d 430 (2001); State v. Gracewski, 61 Conn. App. 726, 734, 767 A.2d 173 (2001); State v. Harris, 28 Conn. App. 474, 476-77, 612 A.2d 123, cert. denied, 223 Conn. 926, 614 A.2d 828 (1992); State v. Anthony, 24 Conn. App. 195, 210, 588 A.2d 214, cert. dismissed, 218 Conn. 911, 591 A.2d 813, cert. denied, 502 U.S. 913, 112 S. Ct. 312, 116 L. Ed. 2d 254 (1991). In this instance, because the claimed prejudicial effect of the court‘s “advice” to counsel was no more than an allegedly improper evidentiary ruling and the law firm‘s evidentiary claim was not coupled with an assertion that the court‘s alleged partiality denied it a fair trial, the claim does not rise to the level of a constitutional violation. Additionally, because the law firm has not sought plain error review, none is available to it. See State v. Marsala, 93 Conn. App. 582, 590, 889 A.2d 943 (“This court often has noted that it is not appropriate to engage in a level of review that is not requested. . . . When the parties have neither briefed nor argued plain error [or review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)], we will not afford such review.” [Internal quotation marks omitted.]), cert. denied, 278 Conn. 902, 896 A.2d 105 (2006).
In addition to these legal reasons to decline review of the law firm‘s claim, there is a sound policy basis to decline as well. This court does not sit as a surrogate judicial review council. Indeed, our Supreme Court has opined that “when an attorney is confronted with what appears to be judicial misconduct, the appropriate avenue is the judicial disciplinary process. . . .” (Internal quotation marks omitted.) Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 236, 890 A.2d 509, cert. denied, 549 U.S. 823, 127 S. Ct. 157, 166 L. Ed. 2d 39 (2006). Publicly aired unfounded claims of judicial impropriety serve not only to denigrate the integrity of the judge subjected to such claims; they also tend to bring into disrepute the integrity of the judicial process to the detriment of the public‘s right to have confidence in government‘s adjudicative arm. Thus, there is good reason for our jurisprudence that mere claims of judicial misconduct, unmoored to the constitutional rights of a litigant and unclaimed for plain error review, should not find a hospitable response on direct appeal.
DELONE ROBINSON ET AL. v. CURTIS ROBINSON
(AC 27467)
Flynn, C. J., and McLachlan and Harper, Js.
Notes
The law firm has separately claimed that the court‘s ruling on the admissibility of extrinsic evidence regarding the release was incorrect. Thus, it is not necessary to reach the law firm‘s untethered claim regarding judicial bias in order to resolve the evidentiary issue.
“[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the [party opposing the claim] has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.
“[T]he plain error doctrine, which is now codified at
We also note that the law firm‘s lack of analysis of the four prongs of Golding and the applicability of the plain error doctrine would have precluded review even if it had been included in its principal brief. See, e.g., Notopoulos v. Statewide Grievance Committee, 85 Conn. App. 425, 434, 857 A.2d 424 (2004) (“failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned” [internal quotation marks omitted]), aff‘d, 277 Conn. 218, 890 A.2d 509, cert. denied, 549 U.S. 823, 127 S. Ct. 157, 166 L. Ed. 2d 39 (2006); State v. Bourguignon, 82 Conn. App. 798, 801, 847 A.2d 1031 (2004) (no analysis of claim of plain error considered failure to demonstrate manifest injustice).
On June 24, 2002,