45 Conn. App. 686 | Conn. App. Ct. | 1997
Opinion
The defendant Dorothy Imhoff appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiffs. On appeal, she claims that the trial court improperly denied her motion for a directed verdict because the plaintiffs failed to prove, in accordance with General Statutes § 34-51,
The jury reasonably could have found the following facts. Dorothy Imhoff (defendant) and James Desmond, Sr.
Desmond owned a lot located at 41 Perry Avenue that adjoined 25 Perry Avenue, in which the defendant had no ownership interest. On July 21, 1989, Desmond began construction of a building on the lot at 41 Perry Avenue. During construction, a trench was dug that blocked the fire exit doors located at the rear of 25 Perry Avenue. On July 27,1989, the fire marshal ordered the plaintiffs’ club closed for a violation of the fire code resulting from the blocked exit doors. On September 22, 1989, after the trench was filled, the fire marshal informed the plaintiffs that they could reopen. On the same day, Desmond constructed barriers on 41 Perry Avenue that again blocked the plaintiffs’ fire exit doors.
The plaintiffs instituted an action seeking an injunction against Desmond.
The following procedural history is relevant to this appeal. After Desmond’s death, the administrator of his estate was joined as a defendant. Thereafter, the action was 'withdrawn as against Desmond’s estate, and the plaintiffs filed a four count complaint against the defendant, alleging that the defendant and Desmond (1) intentionally and maliciously prevented them from
After the close of evidence, the defendant filed a motion for a directed verdict, arguing, inter alia, that the plaintiffs failed to prove that she was liable for Desmond’s wrongful acts pursuant to § 34-51. The trial court denied her motion and rendered judgment for the plaintiffs on the jury’s verdict. This appeal followed.
I
Before we address the merits of the defendant’s claim, we must first address the applicability of the general verdict rule. Under the general verdict rule, “if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.” Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993). “Thus, in a case in which the general verdict rale operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall.” Staudinger v. Barrett, 208 Conn. 94, 100, 544 A.2d 164 (1988).
The general verdict rale “rests on the sound policy of conservation of judicial resources, at both the appellate and trial levels. On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated. . . . In the trial court, the rale relieves the judicial system from the necessity of affording a second trial if the
In this case, we are able to determine that the result of the first trial was based, at least in part, on the defendant’s claim of error on appeal. In order to support a finding of liability on any of the first three counts, or any combination thereof, the plaintiffs were required to prove that Desmond’s actions were (1) within the scope of the partnership business or (2) authorized by the defendant. Count four of the complaint alleges that the defendant unlawfully withheld the plaintiffs’ security deposit and recovery under that count is not dependent on the jury’s finding that the defendant is vicariously liable for Desmond’s tortious actions. Pursuant to § 47a-21 (d) (2),
II
We turn next to the defendant’s claim that she was not liable for the tortious conduct of her partner and that the court should have granted her motion for a directed verdict. We agree.
“At the outset, we note the appropriate standard of review. In considering the trial court’s denial of a motion for a directed verdict, we view the evidence in the light most favorable to the prevailing party. . . . Nevertheless, a verdict will be set aside and judgment directed if we find that the jury could not reasonably and legally have reached their conclusion. ... A directed verdict is justified if on the evidence the jury could not reasonably and legally have reached any other conclusion.” (Citation omitted; internal quotation marks omitted.) Krondes v. O’Boy, 37 Conn. App. 430, 433, 656 A.2d 692 (1995). “While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury.” (Citations omitted; internal quotation marks omitted.) DiDomizio v. Frankel, 44 Conn. App. 597, 600, 691 A.2d 594 (1997).
With this standard of review in mind, we turn now to the law concerning partnerships. Generally, “[rjules governing the liability of a principal for the tortious acts of his agent . . . have been held to apply to the liability of one copartner for the tortious action of another.” 68 C.J.S., Partnership § 168 (1950). The application of general principles of agency is in accord with the law of our state. See General Statutes § 34-42 (3).
A
We must first determine whether Desmond’s tortious actions occurred within the ordinary scope of partnership business. We conclude that they did not.
Our courts have yet to interpret the “ordinary course of the business” language contained in § 34-51. The defendant urges this court to adopt the factors set forth by the Massachusetts Supreme Judicial Court in Kansallis Finance Ltd. v. Fern, 421 Mass. 659, 659 N.E.2d 731 (1996).
In answering a question certified to it from the United States Court of Appeals for the First Circuit, the Massachusetts Supreme Judicial Court held that the trial court’s jury instruction was a correct statement of law.
Application of these factors to the present case militates against a finding that Desmond’s tortious acts were taken in the ordinary course of partnership business. First, Desmond’s tortious actions are not the “kind of thing” a partner would do. The plaintiffs argue that “the eviction of tenants is in the ordinary course of business of real estate owners.” That may be true, and Desmond and the defendant did institute a summary process action to evict the plaintiffs from the property. An attempt at an illegal, forceful eviction, however, accomplished by erecting barriers to prevent egress from fire exit doors is not the “kind of thing” a partner would do. Second, Desmond’s actions did not occur within the geographic limits of the partnership. The barriers erected were not on the property owned by the partnership; rather, they were located on the property at
Ordinarily, the determination of whether one is acting within the scope of partnership business is a question of fact. See, e.g., King v. Board of Education, 203 Conn. 324, 327, 524 A.2d 1131 (1987); 1 Restatement (Second), Agency § 228, comment (d) (1958). Where, however, it is clear that one is not acting within the scope of employment, the question becomes one of law. Id. We conclude, as a matter of law, that the jury could not reasonably have concluded that Desmond’s actions were in furtherance of the partnership business.
B
We must next determine whether the defendant authorized Desmond’s actions. We conclude that she did not.
The plaintiffs assert that the defendant’s general grant of authority to Desmond to run the partnership business supports the finding that Desmond acted within her authority when he dug the trenches and erected the barriers that blocked the plaintiffs’ fire exit doors. We disagree.
Desmond’s actions do not fit into any of those categories. Contrary to the plaintiffs’ assertion, a general grant of authority to manage a business does not encompass authority to commit an intentional tort.
The plaintiffs also assert that the defendant ratified Desmond’s actions by not acting to stop him when he erected the barriers. We are unpersuaded. Ratification is defined as “the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account . . . [requiring an] acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances. . . . Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 185, 510 A.2d 972 (1986).” (Citations omitted; internal quotation marks omitted.) Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 542, 651 A.2d 1302 (1995). Here, the plaintiffs failed to prove that Desmond’s actions in digging the trench and erecting the barriers were done on the defendant’s account. Furthermore, the defendant testified that she did not intervene in Desmond’s actions because both the trench and barriers were located on his property, in which she
Ill
Because we have already concluded that the general verdict rule does not apply here, we examine the fourth count of the amended complaint in isolation from the other three counts. The defendant does not assert or brief any claim with respect to the security deposit claim set out in the fourth count
The judgment is reversed as to counts one, two and three and the case is remanded with direction to render judgment in favor of the defendant Dorothy Imhoff on those counts and in favor of the plaintiffs in the amount of $8640 on count four.
In this opinion the other judges concurred.
General Statutes § 34-51 provides: “Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.”
The first three counts of the complaint are based on Imhoff s alleged liability for the tortious acts of her partner. We address those counts in part II of this opinion. The fourth count is based on a claimed failure to return the plaintiffs’ security deposit and is discussed in part III herein.
Although Desmond was originally named as a defendant in this case, the plaintiffs withdrew their case against him prior to trial.
Imhoff was not named as a party defendant in the injunction action.
On November 4, 1988, the defendant and Desmond served a notice to quit on the plaintiffs based on the expiration of the lease. A summary process trial was held in July, 1989, and a judgment of possession was rendered in favor of the defendant and Desmond. That judgment was affirmed in Desmond v. Sheridan, 23 Conn. App. 811, 581 A.2d 285 (1990).
General Statutes § 47a-21 (d) (2) provides in relevantpart: “Upon termination of a tenancy, any tenant may notify Ms landlord in writing of such tenant’s forwarding address. Within thirty days after termination of a tenancy, each landlord other than a rent receiver shall deliver to the tenant or former tenant at such forwarding address either (A) the full amount of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of tMs section, or (B) the balance of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of this section after deduction for any damages suffered by such landlord by reason of such tenant’s failure to comply with such tenant’s obligations, together with a written statement itemizing the nature and amount of such damages. Any such landlord who violates any provision of this subsection shall be liable for twice the amount or value of any security deposit paid by such tenant . . . .”
General Statutes § 34-42 (3) provides: “The law of agency shall apply under this chapter.”
The defendant also urges this court to rely on Gramercy Equities Corp. v. Dumont, 72 N.Y.2d 560, 531 N.E.2d 629, 534 N.Y.S.2d 908 (1988). That case, however, is concerned only with whether a joint venturer who committed an intentional fraud against a third party is entitled to indemnification from the other joint venturer. The test applied by the New York Court of Appeals
Both the trial court and the jury found that although Jones did not sign the letter, he arranged for a third party to do so and adopted or ratified the issuance of the letter.
In determining the propriety of the trial court’s instructions to the jury, the Kansallis Finance Ltd. court looked to 1 Restatement (Second), Agency
Mass. Gen. Laws ch. 108A, § 13 provides: “Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his co-partners, loss of injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting the act.”
The plaintiffs incorporated the first three counts of the amended complaint as part of the fourth count. The allegations in support of the security deposit claim are set out as a separate cause of action, therefore, the allega.tions as to the first three counts are merely surplusage. See Edwards v. Tardif, 240 Conn. 610, 621, 692 A.2d 1266 (1997).
See footnote 6.
General Statutes §47a-21 (i) provides: “(1) On and after July 1, 1993, each landlord other than a landlord of a residential unit in any building owned or controlled by any educational institution and used by such institution for the purpose of housing students of such institution and their families, and