9 Conn. App. 299 | Conn. App. Ct. | 1986
This case involves a lengthy and bitter dispute between the plaintiffs and the defendants which has already yielded two appellate level decisions from the courts of this state.
Deciding whether the named defendant’s claims can be sustained requires a determination of whether the trial court properly complied with our remand order. When a case is remanded for a rehearing, the trial court’s jurisdiction and duties are limited to the scope of the order. Bruno v. Civil Service Commission, 192 Conn. 335, 343, 472 A.2d 328 (1984); Manchester Modes, Inc. v. Ellis, 2 Conn. App. 261, 477 A.2d 164 (1984). The trial court should not deviate from the directive of the remand. Gary Excavating Co. v. North Haven, 160 Conn. 411, 432, 279 A.2d 543 (1971). The direction expressed, however, in the Appellate Court’s order must be interpreted in light of the court’s opinion. Nowell v. Nowell, 163 Conn. 116, 121, 302 A.2d 260 (1972).
With respect to the exemplary damage claim, this court found that $2500 of an award of $13,541.10 was improperly awarded. Leabo v. Leninski, 2 Conn. App. 715, 722, 484 A.2d 239 (1984). This court stated that “we remand for a proper determination of the exemplary damages award.” Id., 722. The reason that a “proper determination” was required was due to the
This court, in light of the noted lack of evidence upon which a proper determination of exemplary damages could be made, ordered that a new hearing be held for a determination of such damages. “A ‘hearing’ is generally defined as a ‘[proceeding of relative formality . . . generally public, with definite issues of fact and of law to be tried, in which . . . parties proceeded against have [a] right to be heard . . . . ’ (Emphasis added.) Black’s Law Dictionary (5th Ed.).” Herman v. Division of Special Revenue, 193 Conn. 379, 382-83, 477 A.2d 119 (1984). Our order, in effect, constituted a reversal of the decision of the trial court to award the sum of $2500 as part of the total award for exemplary damages. The result of a reversal as to the amount of damages is a new trial, limited to the assessment of damages. Hawley v. Rivolta, 131 Conn. 540, 543, 41 A.2d 104 (1945); Murray v. Krenz, 94 Conn. 503, 508, 109 A. 859 (1920).
We find that the order was interpreted properly by the trial court. A new hearing was required so that the parties could be heard, and additional or new evidence could be taken for a “proper determination” of the award of exemplary damages.
With respect to compensatory damages, this court found error in the trial court’s judgment which declined to award such damages “not because of a failure of proof . . . but because of the difficulty of arriving at
The trial court properly heard evidence on exemplary and compensatory damages in the course of its new hearing. Although the named defendant claims that both awards were excessive, the thrust of his argument is that the evidence relating to those awards was inadmissible, rather than insufficient to support the awards. We have already determined that the evidence was admissible. Both the amount of the exemplary damages and the amount of the compensatory damages were supported by the evidence and were not excessive. A trial court has wide discretion, in cases involving torts, to establish that amount which gives a plaintiff fair, just, and reasonable compensation for his injuries. Conaway v. Prestia, 191 Conn. 484, 494, 464 A.2d 847 (1983).
There is no error.
In this opinion the other judges concurred.
The full history of the dispute is enunciated in those previous appeals: Leabo v. Leninski, 182 Conn. 611, 438 A.2d 1153 (1981), and Leabo v. Leninski, 2 Conn. App. 715, 484 A.2d 239 (1984).
The order in Leabo v. Leninski, 2 Conn. App. 715, 729, 484 A.2d 239 (1984) reads: “There is error in part on the appeal and on the cross appeal, the judgment is set aside and the case is remanded for a new hearing limited to a determination of that portion of the exemplary damages of the plaintiffs arising from preparation for the trial, the trial itself and preparation of the post-trial brief, and to a determination of compensatory damages for mental anguish and invasion of privacy suffered by the plaintiff Karl B. Leabo only.”
The trial court, during the hearing on remand expressed its interpretation of the remand as follows: “This is a hearing on the remand of this Court made by the higher court on two subjects. One, they found error in my awarding of lump sum additional fee without sufficient evidence on the subject of the exact basis for the latter part of the charges made by plaintiffs’ counsel without sufficient evidence as to just what went into that charge. Number two, they found error in my failing to award compensatory damages for the mental anguish and trouble suffered by the plaintiff and remanded for me to hear sufficient evidence to form a basis of a decision that they found I should have made on that subject. Instead of saying, as I did at the time, that it was impossible to, from the evidence that I heard, to make a specific award of damages in that amount.”
The appellant failed to assert any objection at the time of the new hearing concerning the qualification of the judge to conduct the hearing, and we will not review this claim of error. See Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 77-78 n.10, 504 A.2d 1376, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986). Indeed, the “failure to raise the issue of a referee’s disqualification either before or during the trial ‘can be construed as the functional equivalent of “consent in open court” ’ to the referee’s presiding over the trial. Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985).” Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 517, 508 A.2d 415 (1986); see General Statutes § 51-39 (c). To hear such an assign