206 Conn. 125 | Conn. | 1988
The ultimate issue on this appeal concerns whether the trial court, M. Hennessey, J., erred in dismissing the plaintiffs’ action on the ground of lack of personal jurisdiction under the Connecticut long arm statute, i.e., General Statutes § 52-59b,
The following background circumstances are set out in order to place in proper context our determination of this matter. The plaintiffs, Jack L. Rosenblit, Jack S. Joseph and Gino Marchetti, who constitute a Connecticut general partnership known as The Worthy Group, instituted an action against William K. Danaher, Jr., David P. Connor, Daniel M. Keyes, Jr., and Leonard Orland, returnable to the Superior Court at Hartford.
The record discloses the following: In February, 1978, Rosenblit, Joseph and Marchetti, who were developers, formed The Worthy Group for the purpose of rehabilitating the Worthy Hotel located in Springfield, Massachusetts. In order to do so, it was necessary to obtain an exclusive option to buy the site of the hotel, certain building and zoning code variances, formal allocation
The plaintiffs sought to make service in this action on Danaher under the Connecticut long arm statute, i.e., General Statutes § 52-59b. Danaher moved to dismiss the action on the ground that the Superior Court lacked personal jurisdiction over him. The trial court, Purtill, J., held a hearing on Danaher’s motion at the same time it heard a separate motion to dismiss filed by Orland. In its memorandum of decision filed January 7, 1986, on these motions, the trial court denied Orland’s motion.
Later, Danaher’s motion to dismiss was reclaimed and came before the trial court, M. Hennessey, J. An evidentiary hearing was not held; rather, the parties and the trial court agreed that additional affidavits
The plaintiffs claim, regarding the dismissal of the action as to Danaher, that the trial court erred in: (1) not applying, as the law of the case with respect to subsequent proceedings, the law set out by Judge Purtill in his January 3, 1986 memorandum;
I
We turn first to the claim that the trial court did not apply, as the law of the case, the law set out by Judge Purtill in his earlier decision. In pressing this claim, the plaintiffs argue that because Danaher has not, by motion, notice of intention to appeal or the like, undertaken any action, the effect of which would make or seek to make Judge Purtill’s decision ineffective, then that decision must be regarded as setting the law of the case that should have been applied by the trial court, M. Hennessey, J., in reaching its decision. The plaintiffs also claim that this position is reinforced by their argument that the two memoranda of decision are essentially complementary because Judge Purtill’s memorandum set out the law and made no attempt to make findings of fact, whereas Judge Hennessey’s memorandum, which they allege did not set out the applicable law, made findings of fact “to which it should have applied the law as already enunciated [by Judge Purtill].” The plaintiffs’ claims are not persuasive.
“The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478. In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. Messenger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 56 L. Ed. 1152 (1912).” Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). We observed in Breen that the law of the case doctrine is not one of unbending rigor when we said: “ ‘A judge is not bound to follow the decisions of another judge
In the case before us, there is a serious question whether the doctrine of the law of the case directly applies because Judge Purtill did not “decide” or “rule” on the matter of whether Danaher was or was not subject to the in personam jurisdiction of the Superior Court. Accepting the plaintiffs’ claim that Judge Purtill set out relevant legal principles but made no findings of fact concerning Danaher’s amenability to such jurisdiction, we are left with at least two significant conclusions of Judge Purtill. First, it was because the plaintiffs’ affidavits were insufficient at that time to allow him “to make a determination of jurisdiction [over Danaher] under the long arm statute” that he concluded that the existing questions of fact be resolved by an evidentiary hearing that would eventuate if the motion to dismiss was reclaimed “with [a] full evidentiary hearing.” Second, Judge Purtill’s memorandum specifically stated that “[n]o action is taken on defendant Danaher’s motion.” Clearly, then, there was no definitive decision or ruling in Danaher’s motion to dismiss. We, therefore, do not have a situation where “[the] matter has previously been ruled on interlocutorily” by Judge Purtill so as to make operative the law of the case doctrine. Id. On the other hand, Danaher argues that the trial court, M. Hennessey, J., actually did apply the “law of the case.” Judge Hennessey’s
Our examination of the applicable law indicates that Judge Hennessey’s findings and conclusions were grounded on the relevant legal principles, many of which were set out in the earlier memorandum of Judge Purtill. “It is important to recognize that a claim of error cannot be predicated on an assumption that the trial court acted incorrectly.” Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984); Giammattei v. DiCerbo, 135 Conn. 159, 162, 62 A.2d 519 (1948). Rather, we are entitled to assume, unless it appears to the contrary, that the trial court, M. Hennessey, J., acted properly, including considering the applicable legal principles. See State v. One 1977 Buick Automobile, 196 Conn. 471, 481, 493 A.2d 874 (1985); Barra v. Ridgefield Card & Gift Gallery, Ltd., supra, 407-408. Indeed, only recently have we said that “as to judges and courts, under the law of evidence, ‘it is presumed, unless the contrary appears, that judicial acts and duties have been duly and regularly performed, the presumption of regularity attending the acts of public officers being applicable to judges and courts and their officers . . . .’The general rule that a judgment, rendered by a court with jurisdiction, is presumed to be valid and not clearly erroneous until so demonstrated raises a presumption that the rendering court acted only after due consideration, in conformity with the law and in accordance with its duty.” (Citations omitted.) Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 6-7, 513 A.2d 1218 (1986); W. Maltbie, Connecticut Appellate Procedure § 311. It has not been demonstrated that the trial court failed to consider the applicable law in reaching its decision. We must, therefore, assume that the trial court, M. Hennessey, J., considered everything before it, including the relevant legal
The plaintiffs next claim that the trial court, M. Hennessey, J., erred in failing to find in personam jurisdiction over Danaher under General Statutes § 52-59b (a) (1) directly because of his own activities in Connecticut that were undertaken in pursuance of the plaintiffs’ antitrust suit. We do not agree.
The trial court concluded “from the facts found that the minimum contact requirement for the operation of the long arm statute has not been satisfied.” We treat this as the parties do, i.e., that the plaintiffs had not demonstrated, as was their burden, that Danaher was amenable to in personam jurisdiction because of his own activities in Connecticut under § 52-59b (a) (1) and, therefore, under the constitutional “minimum contacts” standard of International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). In attacking this conclusion, the plaintiffs argue first that they submitted a copy of certain records of Danaher that “detail the professional services . . . [Danaher] claims to have rendered to the plaintiff[s] specifically in pursuance of the [plaintiffs’] antitrust lawsuit . . . .”
In this case, the parties specifically agreed that the trial court could resolve the issue on affidavits. It has been held that where a party agrees to join in “the battle of affidavits,” that party in effect consents to be bound by the resulting decision (subject, of course, to exercising his appellate rights). See Dopp v. Franklin National Bank, 461 F.2d 873, 879 (2d Cir. 1972); Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir. 1970); Phillips v. Crown Central Petroleum Corporation, 376 F. Sup. 1250, 1253 (D. Md. 1973). In considering the “credibility of and ascribing weight to” the affidavits, the trial court could have considered whether an affiant had an interest in the outcome of the litigation. Carolina Power & Light Co. v. Uranex, 451 F. Sup. 1044, 1055 (N.D. Cal. 1977). One court has noted that “[testimony presented by affidavit is different from testimony orally delivered because the affiant is not subject to cross-examination. But that fact leads to greater, not lesser, strictures imposed on the testimony presented by affidavit.” United States v. Dibble, 429 F.2d 598, 602 (9th Cir. 1970). Affidavits,
The three affidavits submitted by the plaintiffs to Judge Hennessey were not entirely consistent, when compared to each other, concerning how many times Danaher was in Connecticut. Moreover, two of these affidavits were submitted to Judge Hennessey by affiants who earlier had each also filed an affidavit when Orland and Danaher had filed their motions to dismiss before Judge Purtill. Joseph and Rosenblit filed affidavits on each occasion. Rosenblit’s earlier affidavit maintained that he had met with Orland and Danaher twice in Orland’s Connecticut office; the dates of the meetings were not set out. His later affidavit refers to only one Connecticut meeting with Danaher and that was in Orland’s Connecticut office at which time, he indicated, Orland, Joseph, Marchetti and he were also present. That meeting, his affidavit sets out, was in October, 1981. The third affidavit submitted to Judge Hennessey was by Donald E. Weisman. He had not filed an affidavit before Judge Purtill. The Weisman affidavit refers to only one Connecticut meeting placed as occurring on October 25, 1982, with Rosenblit at Orland’s office, but no mention is made that Danaher was present at that time.
Under all of the circumstances, Judge Hennessey could have decided, as she did, that Danaher was at only one meeting in Connecticut—on October 19,1981. At this meeting, which took place in Orland’s office, Rosenblit, Joseph and Marchetti were also present. It was at that time that Rosenblit, Joseph and Marchetti were presented with the draft of the antitrust complaint for their review and comments. Orland told them that he had “produced the draft.” Thus, on this branch of the matter, the trial court could find, as it did, that Danaher was only physically present in Connecticut on this matter on one occasion—October 19, 1981.
The statute does not define what the phrase “transact any business” means, but in Zartolas we construed it “to embrace a single purposeful business transaction.” Zartolas v. Nisenfeld, supra. We said that the “term ‘transact any business’ extends beyond the typical commercial enterprise to include the execution [in Iowa] of a warranty deed pursuant to a single sale of
This court went on to say: “By owning land in Connecticut the defendants invoked the benefits and protection of Connecticut’s laws of real property, including as an incident of ownership the right to sell the property. If the defendants breached their warranties, the breach occurred because of acts committed here [in Connecticut]. The warranties in the deed clearly anticipate litigation in Connecticut, which is the only forum that can determine title to Connecticut land. Durfee v. Duke, 375 U.S. 106, 115, 84 S. Ct. 242, 11 L. Ed. 2d 186 (1963); Farmers’ Loan & Trust Co. v. Postal Telegraph Co., 55 Conn. 334, 335, 11 A. 184 (1887); In re Goar’s Estate, 252 Iowa 108, 110, 106 N.W.2d 93 (1960). Thus, the fundamental incidents of this warranty deed render the defendants’ purposeful execution of it a ‘transaction of any business within this state.’ Hi Fashion Wigs, Inc. v. Peter Hammond Advertising, Inc., [32 N.Y.2d 583, 586, 300 N.E.2d 421, 347 N.Y.S.2d 47 (1973)].” (Emphasis added.) Zartolas v.
The case at hand is thus readily distinguishable from Zartolas on the facts. In this case, two Connecticut residents, Rosenblit and Joseph, went to Massachusetts and there, with Marchetti, a Massachusetts resident, hired an attorney, who resided and practiced law in Massachusetts, to bring an action that arose out of a series of contacts by the plaintiffs with Massachusetts residents in the main. In addition, the proposed action concerned not only events that had occurred in large measure in Massachusetts and arose out of the plaintiffs’ efforts to rehabilitate real property situated in Massachusetts, but also involved a number of the potential witnesses from Massachusetts. Even though it is true that Orland resides in Connecticut and some witnesses may reside in Connecticut, on balance we cannot say that Zartolas or Computer Assistance, Inc.,
II
The plaintiffs next claim that the trial court erred in not finding that Danaher was subject to in personam jurisdiction indirectly under General Statutes § 52-59b (a) (1) and/or (2) because of the activities of his “agent” Orland in Connecticut that were undertaken in pursuance of, or otherwise related to, the plaintiffs’ lawsuit. In advancing this alternative basis for claiming jurisdiction, the plaintiffs claim that Danaher and Orland were “actual or apparent partners or coventurers with respect to their initiation and conduct of [their] antitrust lawsuit.” We will not consider this branch of the plaintiffs’ claim.
Although the trial court did not explicitly find that Orland was an “independent consultant,” as Danaher characterized him in his affidavit, the trial court did find that Orland’s being brought into this matter was
Assuming that Danaher’s assertion that Orland was not his “agent,” but his “independent consultant” is correct, then it appears to us that Orland was an “independent contractor” and that the trial court had implicitly so found. The plaintiffs reject Danaher’s statement that Orland was an “independent consultant,”
The trial court was presented with questions of fact to resolve. The question of status, in the absence of controlling circumstances, is one of fact. See Francis v. Franklin Cafeteria, Inc., 123 Conn. 320, 324, 195 A. 198 (1937). The existence of an agency is a question of fact. Fuessenich v. DiNardo, 195 Conn. 144, 159, 487 A.2d 514 (1985); Beckenstein v. Potter & Carrier, 191 Conn. 120, 133, 464 A.2d 6 (1983). Questions concerning the creation of an agency relationship are ones of fact. Frigon v. Enfield Savings & Loan Assn., 195 Conn. 82, 85, 486 A.2d 630 (1985). The determination of the status of an individual as an independent contractor or employee is, in the absence of controlling considerations, a question of fact. See Francis v. Franklin Cafeteria, Inc., supra, 326. We cannot say that on this record the trial court was clearly erroneous in resolving the issues on the agency claim as it did.
Ill
Finally, the plaintiffs claim that the trial court erred in not stating the factual basis of its decisions on certain factual issues, in not stating its conclusions on certain claims of law raised by the parties in violation of Practice Book § 4059 and, consequently, erred in not granting their motion for reargument and rehearing dated May 27, 1986,
We have examined the trial court’s six page decision in considering the plaintiffs’ claims and the trial court’s action. We conclude that they are without merit. One, however, deserves a brief discussion. There, the plaintiffs claimed that the trial court failed to set forth its legal conclusions on whether “the plaintiff[s] failed to meet [their] burden under (a) the statutory standard of [General Statutes] § 52-59b (a) (1), or (b) the constitutional ‘minimum contacts’ standard of International Shoe Co. v. Washington, [supra,] and its progeny, or (c) both standards.” In its memorandum of decision, the trial court said in part: “We conclude from the facts found that the minimum contact requirement for the operation of the long arm statute has not been satisfied.” The plaintiffs do not, in their brief, point out why this particular “defect” has inhibited them from actu
There is no error.
In this opinion Glass, Covello and Santaniello, Js., concurred. Callahan, J., concurred in the result.
General Statutes § 52-59b provides in part: “(a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual, or foreign partnership, or his or its executor or administrator, who in person or through
This action was subsequently withdrawn as to the defendants Keyes and Connor.
The complaint was in seven counts and contained approximately 260 paragraphs.
The trial court, M. Hennessey, J., found that by the time Orland had been introduced to the plaintiffs, Danaher had already undertaken to represent them.
This action was brought against the city of Springfield, the mayor of Springfield and the “Connecticut developer” in both a corporate and an individual capacity.
Although there is no such claim in the plaintiffs’ complaint, their brief maintains that “judgment [was] subsequently [to the United States Magistrate’s Report and Recommendation] granted by the federal court pursuant thereto.” Essentially, the complaint alleges that this recommendation of the United States Magistrate was made because “[t]he undisputed facts, viewed most favorably to the plaintiff[s] did not establish” either “the existence of a ‘horizontal group boycott’ which constituted a ‘per se’ antitrust violation under Section 1 of the Sherman Act” or “any other basis warranting antitrust liability under Section 1 of the Sherman Act.” The single count lawsuit that had been filed in the United States District Court for the District of Massachusetts had alleged that the “Conspirators [the defendants] conducted a ‘horizontal group boycott’ . . . which [allegedly] constituted a ‘per se’ violation of Section 1 of the Sherman Act (15 U.S.C. Section 1).”
Orland had filed his motion to dismiss alleging that “(1) the court lack[ed] personal jurisdiction over him, and (2) Connecticut [was] an improper venue
In keeping with this agreement, three affidavits, dated March 31,1986, were filed by the plaintiffs. They were those of Jack L. Rosenblit, Jack S. Joseph and Donald E. Weisman; Rosenblit and Joseph had also filed earlier affidavits on August 7, 1985. Danaher, who had not filed an affidavit at the time the motion was heard earlier by Judge Purtill, did file one before Judge M. Hennessey.
The memorandum of decision indicates that the parties to the motion agreed to present in affidavit form that “testimony” which would have been offered by them. Moreover, it points out that they agreed that the affidavits submitted would “pin down those meetings in Connecticut at which Danaher was physically present, and, as to those meetings, what transpired. This [the trial court noted] would bear on the determination of whether or not the minimum contact requirement for operation of the long arm statute was satisfied.”
The defendant Danaher correctly pointed out at oral argument that this issue was not raised by the plaintiffs in their preliminary statement of issues and suggests, therefore, that we should not now consider it. The failure of an appellant to include a claim in his preliminary statement of issues, as required by our rules of practice, justifies our refusal to consider that claim. Practice Book § 4013; Presutti v. Presutti, 181 Conn. 622, 626, 436 A.2d 299 (1980).
Practice Book § 4013, which was effective October 1,1986, was revised to add, inter alia, the following as the last sentence of subsection (a) (1): “Whenever the failure to identify an issue in a preliminary statement of issues prejudices an opposing party, the court may refuse to consider such issue.” The plaintiffs’ brief was originally filed in the Appellate Court on November 17, 1986; therefore, the revised rule applies. From what is before us, we conclude that it will not prejudice Danaher for us to review this claim and we do so.
Attached to the March 31, 1986 affidavit of Rosenblit are what are claimed to be certain time sheets and an itemized statement of Danaher’s professional services to the plaintiffs in the antitrust litigation. Wholly apart from any hearsay defect, these materials make brief reference to two other meetings in Connecticut at which three people were purportedly present— Danaher, Orland and Marchetti. No affidavit has been filed by Marchetti to the effect that Danaher was in fact at either of those meetings. These two meetings, the precise dates of which are indistinct, purportedly took place prior to the October 19, 1981 meeting at which the trial court did find that Danaher was in attendance in Connecticut.
The plaintiffs maintain that these Connecticut meetings took place on August 7,1981, September 19,1981, October 19, 1981, October 26, 1981, and December 23, 1982.
Moreover, as a subissue of this claim, the plaintiffs also claim in their brief that Danaher’s failure to challenge the authenticity of these “records” constitutes an “authentication” by him of these records, specifically that he did so by his failure to “disown” them when given the opportunity to do so by way of counteraffidavit. This claim will not be considered because it is not set out in the plaintiffs preliminary statement of issues. See Practice Book § 4013; Presutti v. Presutti, 181 Conn. 622, 436 A.2d 299 (1980).
In Computer Assistance, Inc. v. Morris, 564 F. Sup. 1054 (D. Conn. 1983), the employer, Computer Assistance, Inc., a corporation headquar
Computer Assistance, Inc., is clearly distinguishable from the case at hand on the facts. Computer Assistance, Inc., hired Morris in 1979 to manage its Houston branch; at that time he became its managing partner in Houston. Some portion of the negotiations leading to this 1979 agreement, which contained a noncompetition clause, took place in Connecticut and the agreement itself was signed by Morris in Connecticut. Later in 1979, Morris came back to Connecticut either to sign an additional agreement or to receive training or both. These were the only occasions that Morris was in Connecticut between 1979 and September, 1982, although he did communicate with Computer Assistance, Inc.’s headquarters “frequently” by telephone and mail. Relations between Computer Assistance, Inc., and Morris apparently became strained and Morris came to Connecticut in September, 1982, concerning a new agreement. It would appear that in that month their relationship was dissolved and at that time both the parties signed a “memorandum of understanding.” There was no dispute that in the same month Morris set up his own enterprise that directly competed with Computer Assistance, Inc., in the Houston area. In the Connecticut action, his former employer alleged that that action breached their 1979 agreement, which contained the noncompetition clause.
It is apparent from a recital of the circumstances above that the Computer Assistance, Inc. court had “no difficulty in finding a statutory basis for the assertion of personal jurisdiction over Morris in Connecticut.” Id., 1059. Morris was, in large measure, Computer Assistance, Inc., in the Houston area. He was its managing partner there. Over the period from late 1979 until September, 1982, he was “frequently” in telephone and mail contact with his company’s headquarters in Connecticut. In addition, he
At oral argument, Danaher took the position that this claim should not be considered as it was not set out in the plaintiffs’ preliminary statement of issues, which, we note, was never amended. See Practice Book § 4013; Presutti v. Presutti, 181 Conn. 622, 626, 436 A.2d 299 (1980). The plaintiffs did not take issue with Danaher’s assertion. On examining the plaintiffs’ preliminary statement of issues, we find that Danaher is correct. This stated claim is not properly before us and will not be considered. Practice Book § 4013; Presutti v. Presutti, supra. Moreover, to consider this branch of their claim would prejudice Danaher. Cf. footnote 11, supra.
The plaintiffs offer no meaning of “independent consultant” except to argue that under § 14N of the Restatement (Second) of Agency he is also an agent even if he is also an independent contractor.
In addition, in § 14N of the Restatement (Second) of Agency another comment, i.e., comment b, discusses a class referred to as “Non-agent independent contractor.”
The plaintiffs’ “Motion for Reargument and Rehearing” is as follows:
“The Plaintiff[s] in the above-entitled case moves that the judgment of the Court, (M.) Hennessey, J., rendered in the above matter on May 6, 1986, be set aside and set down for reargument with a full evidentiary hearing only in the event that the Plaintiff[s’] Motion To Set Aside and Reverse The Judgment of even date is denied. The ground upon which the Plaintiff[s] relies is that, in the event that said decision is not found to be clearly*147 erroneous in view of evidence in the record such that a reversal thereof is mandated, then, at the least, said decision is based upon insufficient fact-finding and insufficient consideration of applicable law, the remedy for which is further proceedings on the matter.
“In support of this Motion the Plaintiff[s] relies upon the Memorandum Of Law attached hereto.”
On August 25, 1986, the plaintiffs filed in the Appellate Court their motion for review; see Practice Book § 4058; and their motion for an order of compliance. See Practice Book § 4183 (1).
On October 2, 1986, the Appellate Court granted the motion for review but denied the relief requested therein. On that date, it also denied the motion for an order of compliance.