245 Conn. 1 | Conn. | 1998
Opinion
This appeal encompasses a number of issues related to alleged design, construction and maintenance defects in a condominium complex known as Willow Springs Condominiums (Willow Springs) and in an on-site sewage treatment plant constructed to serve only that condominium complex. The plaintiff, Willow Springs Condominium Association, Inc. (association), has claimed breach of statutory warranties pursuant to the Connecticut Common Interest Ownership Act
In the interests of clarity, before describing the various defects in the complex alleged in the complaint, we first address the history of the development of the Willow Springs project and the relationships among the various corporate and individual defendants who were parties to the original action. Second BRT Development Corporation obtained an $18.6 million construction loan to finance the Willow Springs project, which was originally named Kenwood Condominium. In September, 1985, prior to the start of construction, Second BRT Development Corporation merged with Seventh BRT, leaving Seventh BRT as the surviving corporate entity. Construction proceeded in phases over the course of three years, from 1984 until 1987. At the time of trial, the complex was comprised of twenty residential buildings, a sewage treatment plant and a clubhouse. The last units were completed in 1987 and certificates of occupancy for the various units were granted in 1985, 1986 and 1987. The first unit was sold on November 19, 1985. The association assumed control over Willow Springs in August, 1987, shortly after the last building was completed.
On June 11, 1987, after individuals already had purchased a number of units, Seventh BRT sold ninety-two of the remaining units to a partnership called BRT Property Group, for $4,784,000.
We turn next to the facts surrounding the various design, construction and maintenance defects described in the complaint. Over the course of time, a number of serious difficulties surfaced at Willow Springs, including problems with the sewage treatment plant, the paving and the residential buildings. The plaintiff filed this action on May 13, 1993, claiming, inter alia, breach of warranty with respect to the sewage treatment plant, CUTPA violations, and breach of fiduciary duty. The complaint was amended a number of times adding, inter alia, claims related to other defects. The fourth and final amended complaint was filed on December 7,1995. That seventeen count complaint alleged that Seventh BRT had breached the implied warranties in the CIOA
In connection with the various defects alleged by the plaintiff, the record reveals the following evidence. The on-site sewage treatment plant,
Roman Platosh, an expert in the design of sewage treatment plants, testified that he had inspected the plant in January, 1993, and had found that “[t]he conditions were deplorable .... There’s a building exhaust fan which was not in use. The vapor inside the building looked as if it was on fire from all the fog inside. Heavy odors in the buildings. Much of the equipment was rusting. I remember seeing the control panel with the doors open and wires hanging off of it. . . . [A]t that time the sand filters were not operational. They were being bypassed. Very heavy solids going over in the effluent. Everything was basically slimy. I was afraid to touch anything, including the hand rails. It was very dingy.” Platosh further testified that the design of the plant was deficient in that: (1) it did not provide adequate flow equalization in order to provide sewage flow into the treatment plant at a uniform or nearly uniform rate; (2) a single blower served two tanks causing (a) improper oxygen distribution in that the unit that was furthest away from the blower was oxygen starved, and (b) lack of “proper redundancy” in that the unit that was furthest away from the blower could not be operated if the other unit malfunctioned; (3) improper pacing of the chemical feed to the influent pump; and (4) the influent pump station pumped in sewage at a higher rate than the capacity of the treatment plant.
Walter Sinnott, a senior sanitary engineer with the department, testified that from the time the permit to operate was issued until January 1, 1991, there were “upsets” three or four times a year during which the plant would exceed the limits set out in the permit. From January 1,1991, until June, 1992, there were “serious effluent violations.” McDonald testified that he was aware of a number of problems with the plant from May, 1986, until 1991. In addition to technical problems, there were numerous complaints of unpleasant odors emanating both from the plant and from the adjacent landfill. In April, 1988, McDonald received a letter from Richard Finn, who was managing the plant at that time, detailing a number of problems. McDonald forwarded the letter to Consultants and Engineers, Inc., but took no further action on it himself. On June 9, 1994, the department sent a letter to Arthur Stueck II, who was the property manager at that time, informing him that
McDonald acknowledged that the plant experienced “phenomenal” flow surges on weekends. The influent pump chamber was equipped with floats that triggered a high water alarm and turned on the pumps when the water reached a certain level. Had the pumps turned on at the level for which they were originally set, 140 gallons per minute might be pumped into the plant, thereby inundating it. In order to prevent this problem, McDonald adjusted the float mechanisms to prevent the high water alarms from going off and to delay the pumps from turning on as they normally would. McDonald could not recall informing the board about the surge equalization problems with the plant, although he was aware of them. When residents of Willow Springs complained about unpleasant odors from the plant, his response was often to invite them to tour the plant. Robert Davenport, a Willow Springs homeowner who was a member of the association’s executive board from December, 1989, until the time of trial, testified that board members regularly inquired as to the condition and operation of th e treatment plant and that McDonald was generally the person who responded to those questions. Davenport further testified that, although he regularly attended board meetings, he had never heard McDonald, Nahom or LaCroce refer to the equalization or surge problems at the plant.
In addition to the sewage treatment plant, there were also problems with other condominium structures. The plaintiff alleged that the paving was inadequate, that the decks did not conform to the design and were constructed with untreated lumber, that the clothes dryer vents were improperly installed, and that the box chimneys were improperly constructed. These defects resulted in extensive damage and repairs.
Stueck, of REI Property Management Company,
In addition, the plaintiff claimed that the decks were improperly constructed. Stueck testified that, in 1994, during the course of an ongoing program to replace rotten deck boards, he told the association that he suspected more extensive repairs might have to be done to correct “problems that lied beneath the surface.” Several decks were dismantled in order to determine if there were structural defects hidden beneath the vinyl and aluminum siding in which they were wrapped. Stueck testified that every deck that was examined in this manner exhibited problems, such as “rot in the building, rot in the supporting structure, no footings, rotted posts. The post and beam construction, which . . . was wrapped in aluminum . . . was holding water so that the beam was also rotted.”
Taormina testified that the specifications for the decks indicated that they should be built with pressure treated lumber and that the support columns should rest on concrete footings that extend from three and
In 1995, a preexisting plan for piecemeal replacement of portions of the pavement was abandoned in favor of a total replacement plan. It was determined that the problems with the pavement, including severe cracking and sink holes, existed throughout the complex and that it was inefficient to repair the same areas repeatedly. It was determined that it would be less expensive to use new, as opposed to partially reclaimed, materials. The cost of replacing the pavement using new materials was $65,763.
The plaintiff claimed that the roofs were improperly constructed, resulting in extensive damage. From 1991 until the time of trial, 76 of 166 roofs experienced leaks. As these roofs were being repaired, various problems were discovered, including missing tar paper, inadequate weather shield and flashing, and shingles that did not reach the roof line. As a result of these defects, the
The plaintiff also claimed that the dryer vents had been improperly constructed, resulting in extensive damage. The property manager testified that numerous complaints concerning water leaks and dryers that either malfunctioned or caught fire were eventually traced to problems with the dryer vents. The complex consists of buildings that have one-story lower units and two-story upper units. Each unit is served by one dryer vent and one bathroom vent. It was discovered that the vents for the lower units did not vent to the outside of the building but, instead, opened into an enclosed area beneath the first floor roof line where moisture accumulated, causing leaks and rotted roofs. Additionally, because the dryer vent pipes were constructed of flexible materials and ran over long distances, lint would accumulate and clog the pipes, causing the dryers to malfunction and occasionally to catch fire. Eepairing these problems required the vent pipes to be extended to the outside of the buildings and, on occasion, necessitated the removal of sheetrock to expose the venting system in order to replace the flexible pipe with hard piping. The association hired a handyman to install the exterior vents, for which they supplied the materials and paid $17 per hour in labor. The jury heard extensive evidence, including expert
At the close of evidence regarding the chimneys, paving, roofs, decks and dryer vents, the trial court granted the defendants’ motion for a directed verdict with respect to the paving because that claim for damages was barred by the statute of limitations. Consequently, the trial court instructed the jury that it was not to award damages for that claim. In addition, the court directed a verdict in favor of the defendants on counts seven and nine of the complaint, which alleged wilful and wanton misrepresentation and breach of the defendants’ duty of care relating to the sewage plant. The court also limited the defendants’ liability relating to the chimneys, roofs, decks and dryer vents to: (1) those units sold to BRT Property Group in 1987 that were then sold to individual purchasers starting in 1991; and (2) those units retained by Seventh BRT and then sold to individual purchasers during the three years next preceding the commencement of this action.
The jury, having answered forty interrogatories,
The answers to the interrogatories reveal that the jury determined that Seventh BRT had: (1) breached the implied and express warranties under the CIOA and the NHWA, and that those claims were not barred by the statute of limitations; (2) fraudulently concealed information regarding the sewage treatment plant in order to delay the plaintiffs filing of the action; (3) made representations regarding the condition of the plant that were untrue or with reckless disregard as to whether they were untrue; (4) knowingly and purposefully misrepresented the condition of the treatment plant and concealed information regarding the plant from the unit owners and the association; and (5) violated CUTPA. In addition, the jury determined that there was a unity of interest between Seventh BRT, Little
The defendants filed a motion to set aside the verdict and for judgment notwithstanding the verdict. The trial court denied the motion with respect to all claims except for those related to the roofs. That award was reduced from $348,998 to $100, because it contravened the trial court’s prior explicit instruction to award only nominal damages for that claim. The verdict against Seventh BRT was thereby reduced to $532,393. The court declined to set aside the verdict on the remaining claims. On September 5, 1996, the court awarded $172,527.29 in interest against Seventh BRT, Little Rock, Danbury, and Condominium Management Group. Thereafter, the court awarded $100,000 in punitive damages against these defendants and, in addition, awarded the plaintiff $81,508 in attorney’s fees.
II
Seventh BRT has made numerous claims on appeal. We must note at the outset that it is difficult at times to determine whether it is challenging the jury instructions, the denial of its motions for a directed verdict, the denial of its motions to set aside the verdict and for judgment notwithstanding the verdict, or the sufficiency of the evidence. This difficulty is compounded by the fact that Seventh BRT has not complied with Practice Book § 4064C (d), now Practice Book (1998 Rev.) § 67-4 (d),
As nearly as we can determine, Seventh BRT has claimed that: (1) the jury charge as a whole failed to represent the law accurately because it did not distinguish between the plaintiffs claims or resolve the issues in a logical manner and because it was “unintelligible”;
A
Jury Charge
Seventh BRT’s first claim is that the jury instructions were “unintelligible” as a whole and failed to represent the law accurately. The plaintiff argues that this issue was not preserved for appeal. We agree. “This court will not consider claimed errors on the part of the trial court unless it appears that the question was distinctly raised at the trial .... State v. Simms, 170 Conn. 206, 208, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976) . . . .” State v. Groomes,
B
CIOA
Counts one and two of the complaint alleged that Seventh BRT had violated the express warranties in the
Seventh BRT claims that, because the plaintiff has claimed breach of warranty under the CIOA
We first address Seventh BRT’s claims under the CIOA with respect to the defects in the residential buildings. The court instructed the jury that the claim for the chimneys, decks, roofs and vents in the units sold to BRT Property Group in 1987 would not be barred by the statute of limitations if the jury determined that BRT Property Group owned six or more units, because BRT Property Group would then not be considered a “purchaser” under the CIOA. The court reasoned that, because the claims do not accrue under the CIOA until the unit is sold to a “purchaser,” the breach of warranty claims would not accrue when the ninety-two units
The resolution of this issue requires us to interpret the provisions of the CIOA as they relate to the accrual of breach of warranty claims. Statutory construction is a question of law and therefore our review is plenary. North Haven v. Planning & Zoning Commission, 220 Conn. 556, 561, 600 A.2d 1004 (1991). “[T]he process of statutory interpretation involves a reasoned search for the intention of the legislature.” (Internal quotation marks omitted.) Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). “As with any issue of statutory interpretation, our initial guide is the language of the statute itself. ...” (Citations omitted; internal quotation marks omitted.) Herbert S. Newman & Partners v. CFC Construction Ltd. Partnership, 236 Conn. 750, 756, 674 A.2d 1313 (1996). Furthermore, we interpret statutory language in light of the purpose and policy behind the enactment. State v. Pieger, 240 Conn. 639, 646, 692 A.2d 1273 (1997); Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 234, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997). “In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended.” Kron v. Thelen, 178 Conn. 189, 192, 423 A.2d 857 (1979). In order to determine the meaning of a
Willow Springs was organized pursuant to the CIOA by the declarant,
The statute of limitations for breach of implied or express warranties under the CIOA is three years from the date on which the cause of action accrues, “regardless of the purchaser’s or association’s lack of knowledge of the breach.” General Statutes § 47-277 (b). The accrual date depends on whether the defects complained of are contained in units or common elements. A cause of action accrues as to “units” when “the purchaser to whom the warranty was first made enters into possession . . . .” (Emphasis added.) General Statutes (Rev. to 1995) § 47-277 (b) (1). A cause of action accrues as to common elements “at the time the common element is completed and first used by a bona fide purchaser(Emphasis added.) General Statutes (Rev. to 1995) § 47-277 (b) (2). There is no separate accrual provision for limited common elements. A “purchaser” is defined as someone “other than a declarant or a dealer . . . .” General Statutes § 47-202 (25). A “dealer” is someone “who owns either six or more units, or fifty per cent or more of all the units . . . .” General Statutes § 47-202 (11).
Seventh BRT argues that limited common elements are a subset of common elements and that the cause of action for defects in the limited common elements, therefore, accrued when the first unit was used by a bona fide purchaser, which occurred in 1985 when the first unit was sold. The essence of Seventh BRT’s claim is that the definition of a “purchaser” contained in § 47-202 (25) applies to the accrual provision for units set forth in § 47-277 (b) (1), but not to the accrual provision for common elements in § 47-277 (b) (2). Seventh BRT
The plaintiff argues, to the contrary, that the definition of “purchaser” contained in § 47-202 (25) applies to the accrual provision in § 47-277 (b) (2). We agree. There can be no clearer guide to the interpretation of a statutory term than the meaning assigned to it in. the definitional section of the same statute. Where words of a statute are clear’ we presume that they accurately reflect the legislature’s intent. Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 642, 662 A.2d 1251 (1995). Furthermore, there is no reason to suppose that the legislature intended that the phrase “bona fide purchaser,” as it is generally understood, would not be further modified by the specific definition of “purchaser” contained in § 47-202
The purpose of the CIOA is to provide developers, lenders and title insurers with flexibility and certainty in establishing common interest communities, as well as providing prospective unit owners and unit owners’ associations with consumer protection rights such as disclosure and warranty rights. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1983 Sess., pp. 1821-23, remarks of William Breetz. It is consistent with the underlying purposes of the CIOA to ensure that warranty claims not accrue in favor of bulk purchasers. As the plaintiff points out, under Seventh BRT’s interpretation, a declarant could completely evade these warranty provisions by transferring all of the units to an affiliated entity that would hold them for rental for three years prior to selling them to individual purchasers. This is hardly consistent with the statutory purpose of providing individual unit owners with consumer protection rights. “We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. . . . It is also a rule of statutory construction that those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to absurd consequences
C
Fraudulent Concealment
We turn next to Seventh BRT’s claims regarding the sewage treatment plant. The plaintiff, in counts one
On appeal, Seventh BRT raises two issues with respect to the plaintiffs claim of fraudulent concealment. First, it argues that the plaintiff may not assert fraudulent concealment as a tolling mechanism because that claim was not properly pleaded. Second, it argues that fraudulent concealment cannot serve both as a tolling mechanism and also as an affirmative claim for relief.
In count five of the complaint, the plaintiff alleged that Seventh BRT had fraudulently concealed the defec
We ordinarily do not address issues that have not been properly raised before the trial court. Santopietro
The record discloses the following undisputed facts. Seventh BRT interposed two exceptions to the charge on fraudulent concealment, neither of which was directed to the particular claim on appeal. The first exception was that “[the claims are] barred by [General Statutes §] 47-244 because [they relate] to individual unit owners . . . .” In the second objection, Seventh BRT stated, incorrectly, that the court had not limited the fraudulent concealment claim to the sewage treatment plant. Neither of these objections related to Seventh BRT’s claim on appeal. Moreover, Seventh BRT
Seventh BRT also argues that the fraudulent concealment claim cannot be both a tolling mechanism and an independent claim for relief, and that it was, therefore, inappropriate for the jury to award damages pursuant to that claim. Immediately after instructing the jury on the elements of fraudulent concealment and fraudulent misrepresentation, including the heightened burden of proof required for these counts, the court instructed the jury as follows: “With respect to damages for fraud, if you conclude that the plaintiff has sustained its burden of proof on the issue of fraud, if you conclude that ' [Seventh BRT] was guilty of fraudulent misrepresentations, then it will be necessary for you to determine the damages which the plaintiff is entitled to recover.” Seventh BRT did not except to this charge or request that it be clarified, nor did it object to the interrogatories.
The jury determined that Seventh BRT was liable for both fraudulent concealment and fraudulent misrepresentation. Although the interrogatories for both counts provided the opportunity to award damages, the jury did so only in response to the fraudulent concealment interrogatory.
D
Fraudulent Misrepresentation
Seventh BRT claims that count six of the complaint, alleging fraudulent misrepresentation, should have
It is the responsibility of the appellant to brief each issue adequately; see Practice Book § 4064C, now Practice Book (1998 Rev.) § 67-4; and to move for an articulation in order to clarify the basis of the trial court’s decisions should such clarification be necessary for effective appellate review of the issue on appeal. Practice Book § 4007, now Practice Book (1998 Rev.) § 61-10 (“[i]t is the responsibility of the appellant to provide an adequate record for review”); Practice Book § 4051, now Practice Book (1998 Rev.) § 66-5 (appellant may move for articulation of trial court decision); Barnes v. Barnes, 190 Conn. 491, 493-94, 460 A.2d 1302 (1983) (appellant is responsible for seeking articulation). Issues that have not adequately been briefed may be deemed abandoned. Latham & Associates, Inc. v. William Raveis Real Estate, Inc., supra, 218 Conn. 300; Gaynor v. Union Trust Co., 216 Conn. 458, 482, 582 A.2d 190 (1990).
We note initially that the propriety of the trial court’s decision to charge counts seven and nine out of the case is not before this court and, therefore, we do not
E
CUTPA
Count eight of the complaint alleged that Seventh BRT had engaged in unfair and deceptive trade practices in violation of CUTPA. The jury found that Seventh BRT had violated CUTPA, but awarded no separate damages on that claim.
General Statutes § 42-1 lOg (a) provides in part that “[t]he court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.” We have stated that § 42-1 lOg “permits a recovery of actual damages, attorney’s fees and punitive damages for violations of [CUTPA].” Freeman v. Alamo Management Co., 221 Conn. 674, 680 n.6, 607 A.2d 370 (1992). The plaintiff claims that this issue was not preserved for appeal. We disagree. Counsel for Seventh BRT excepted to the CUTPA charge, albeit in somewhat general terms, stating that “I’m excepting to all charges and, specifically ... [to the] unfair trade practice charge, in that it is still my claim with regard to all counts related to BRT, the statute of limitations has expired, so I’m excepting to that.”
Seventh BRT first claims that, because the basis of the CUTPA claim was contained in count seven of the complaint and that claim was charged out by the trial court, the CUTPA claim must necessarily fail. We disagree. The CUTPA claim is contained in count eight of the complaint and incorporated by reference paragraphs one through eleven of count seven (wilful and wanton misrepresentation in relation to the sewage
Taking as true Seventh BRT’s contention that this serial incorporation of statements in other counts of the complaint limited the CUTPA claim to the acts alleged in the counts that it has incorporated by reference, the complaint contains three possible bases for the CUTPA allegation, namely acts amounting to fraudulent concealment, to fraudulent misrepresentation, and to wilful and wanton misrepresentation. Because the wilful and wanton misrepresentation count was charged out of the case, the only remaining bases for the CUTPA allegation are acts amounting to fraudulent concealment and fraudulent misrepresentation. In addition to finding that Seventh BRT had violated CUTPA, the jury found that it had fraudulently concealed and fraudulently misrepresented the condition of the sewage plant. In fact, the jury awarded $95,683 in damages for fraudulent concealment.
Moreover, the relevant interrogatory asked merely whether Seventh BRT’s “conduct” violated CUTPA and did not tie the claim to any other count in the complaint. This language reasonably could be interpreted as referring to all of Seventh BRT’s conduct and not just to the acts alleged in count seven. Seventh BRT did not request an alternative CUTPA interrogatory, nor did it object to the interrogatory as it was presented to the jury. Seventh BRT cannot, therefore, challenge the interrogatory on appeal. West Haven Sound Development Corp. v. West Haven, supra, 207 Conn. 315-17. Consequently,
We next consider whether the jury properly determined that Seventh BRT had violated CUTPA. The nature of Seventh BRT’s argument that the claim is barred by the statute of limitations requires us to consider both whether the jury reasonably could have found evidence that Seventh BRT had violated CUTPA, and whether the statute of limitations nevertheless bars the claim. The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce, “and whether a practice is unfair depends upon the finding of a violation of an identifiable public policy.” Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257, 550 A.2d 1061 (1988). “CUTPA, by its own terms, applies to a broad spectrum of commercial activity. The operative provision of the act, [General Statutes] § 42-110b (a), states merely that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Trade or commerce, in turn, is broadly defined as the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state. General Statutes § 42-110a (4). The entire act is remedial in character; General Statutes § 42-110b (d); Hinchliffe v. American Motors Corp., 184 Conn. 607, 615 n.4, 440 A.2d 810 (1981); and must be liberally construed in favor of those whom the legislature intended to benefit. . . . Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 623, 642 A.2d 1186 (1994). Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 492, 656 A.2d 1009 (1995).” (Internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 212, 680 A.2d 1243 (1996).
“[A] violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy. . . . Furthermore, a party need not prove an intent to deceive to prevail under CUTPA.” (Citations omitted; internal quotation marks omitted.) Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 522-23, 646 A.2d 1289 (1994). “Whether a practice is unfair and thus violates CUTPA is an issue of fact.” DeMotses v. Leonard Schwartz Nissan, Inc., 22 Conn. App. 464, 466, 578 A.2d 144 (1990). Although
The plant was subject to the express and implied warranties contained in the CIOA and, therefore, Seventh BRT had a continuing duty not to conceal information within its knowledge with the purpose of concealing a cause of action for breach of warranty pursuant to the CIOA. The plaintiff presented evidence that the plant exhibited serious problems from the time it was built until at least 1994, when the department issued a pollution abatement order. The plaintiff also introduced evidence that Seventh BRT was aware of these recurrent problems and that information concerning these issues was not properly communicated to unit owners or to the plaintiff. The court instructed the jury that, in order to find Seventh BRT hable for fraudulent concealment it had to conclude that it knew of the defects and concealed them with the express purpose of preventing the plaintiff from filing a timely action. Bound Brook Assn. v. Norwalk, 198 Conn. 660, 665, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986). The jury found that Seventh BRT, having breached its duty, was hable for fraudulent concealment and awarded damages for injuries resulting from that breach. Absent clear evidence to the contrary, we assume that the jury acted in accordance with the charge. State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992). In order to find Seventh BRT hable for fraudulent concealment, therefore, the jury necessarily must have found that it had acted with the direct purpose of concealing a cause of action. As we have stated, the standard under CUTPA is lower than for fraud and requires no showing of an intent to deceive. Normand Josef Enterprises, Inc. v. Connecticut National Bank,
Seventh BRT argues that the CUTPA claim is barred by the three year statute of limitations contained in § 42-1 lOg (f). The essence of this argument is that the CUTPA claim must be time barred because, it maintains, the rest of the plaintiffs claims are time barred. Seventh BRT asserts that, although fraudulent concealment can be used to toll an underlying substantive claim, it cannot be used to toll the statute of limitations for a CUTPA violation based on that claim. In Fichera v. Mine Hill Corp., 207 Conn. 204, 209-10 n.3, 216, 541 A.2d 472 (1988), this court determined that a CUTPA claim based on a single act that had occurred more than three years prior to the commencement of the action was time barred despite the fact that the plaintiff had not discovered the injury until eleven months before the action was filed. Although the trial court had based its allowance of the CUTPA claim on a theory of continuing duty to disclose and had not reached the issue of fraudulent concealment, this court determined that there was no continuing duty and that, even if the fraudulent act was self-concealing, the statute of limitations under CUTPA would not be tolled. Id., 216. “Since CUTPA violations are defined in General Statutes § 42-110b to include ‘deceptive acts or practices in the conduct of any trade or commerce,’ it is evident that the legislature intended that the perpetrators of such fraudulent practices, as well as other CUTPA violators, should be permitted to avail themselves of the statute of limitations defense provided by § 42-1 lOg (f). Despite the existence in other states of statutes of limitation applicable to unfair trade practices establishing a limitation period for bringing an action that begins after discovery of the violation, our legislature has failed to create such an option for
Fichera stands for the proposition that an arguably fraudulent or deceptive act that is itself claimed to be a CUTPA violation that occurred more than three years before the filing of the action cannot, by itself, toll the statute of limitations. It does not stand for the proposition that independent fraudulent or deceptive acts taking place within that three year period that have been undertaken for the purpose of concealing actionable conduct occurring prior to the three year period cannot independently form the basis of a CUTPA violation. Evidence was presented at trial that permitted the jury to conclude that some of the deceptive acts that formed the basis of these claims occurred within the three years prior to the date that this action was brought. For example, McDonald testified that he was aware of the serious problems with the sewage treatment plant that occurred as late as 1991. Additionally, Seventh BRT sold units to individual purchasers during that three year period. Moreover, we already have stated that Seventh BRT had a continuing duty to disclose the condition of the plant. Where a defendant has withheld information that it is under a duty to disclose, such an act may constitute an unfair or deceptive practice and, therefore, violate CUTPA. See Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, 230 Conn. 522-23. The jury was instructed on the elements of fraudulent concealment and fraudulent misrepresentation, and on the statute of limitations for CUTPA. Absent evidence to the contrary, we presume that the jury acted in accordance with the instructions given by the court. State v. Negron, supra, 221 Conn. 331. It is,
F
Unity of Interest
In count ten of the complaint, the plaintiff alleges that “the defendants Little Rock Properties Corporation, f/ k/aBRT Coiporation, Danbury Crossroads Corporation, f/k/a BRT Development Corporation, and Seventh BRT Development Corporation (hereinafter collectively referred to as ‘the BRT entities’) operate under common ownership and control such that a unity of interest exists and the independence of each corporation has ceased to exist. . . . Adherence to the fiction that the BRT entities are separate entities would serve only to defeat justice and equity allowing a single economic entity to escape liability for operations conducted separately under their various names but which were for the benefit of the whole enterprise. . . . The BRT entities are therefore jointly and severally liable for the acts and/or omissions of its individual corporations as such acts and/or omissions have been described hereinbe-fore.” The jury specifically found that a unity of interest existed among Seventh BRT, Little Rock and Danbury.
Seventh BRT claims on appeal that “[t]he jury’s finding that a unity of interest exists ... is unsupported by the evidence and, thus, the trial court erred in allowing the finding to stand.” We interpret this statement as a claim that the trial court improperly denied
“As we have repeatedly reiterated, issues not properly raised before the trial court will ordinarily not be considered on appeal.” Burton v. Burton, supra, 189 Conn. 133 n.3; Practice Book § 4185, now Practice Book (1998 Rev.) § 60-5; see footnote 33 of this opinion. “We have referred to the policy reasons underlying the preservation requirement on several occasions. The policy serves, in general, to eliminate the possibility that: (1) claims of error would be predicated on matters never called to the attention of the trial court and upon which it necessarily could have made no ruling in the true sense of the word; and (2) the appellee . . . would be lured into a course of conduct at the trial which it might have altered if it had any inkling that the [appellant] would . . . claim that such a course of conduct involved rulings which were erroneous and prejudicial to him. . . . State v. Kurvin, 186 Conn. 555, 564, 442
Seventh BRT did not adequately present the issue of sufficiency of the evidence at trial. A motion for a directed verdict is a prerequisite to the filing of a motion to set aside the verdict. See, e.g., Frankovitch v. Burton, 185 Conn. 14, 15 n.2, 440 A.2d 254 (1981); Cruzv.Drezek, 175 Conn. 230, 232, 397 A.2d 1335 (1978); see also Practice Book § 321, now Practice Book (1998 Rev.) § 16-37 (“a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his motion for a directed verdict” [emphasis added]). Additionally, to permit the appellant first to raise posttrial an issue that arose during the course of the trial would circumvent the policy underlying the requirement of timely preservation of issues.
Furthermore, because our review is limited to matters in the record, we will not address issues not decided by the trial court. Practice Book § 4185, now Practice Book (1998 Rev.) § 60-5 (“court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial”); Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims “neither addressed nor decided” by court below are not properly before appellate tribunal); State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982) (“[o]nly in the most exceptional circumstances will this court consider even a constitutional claim not properly raised and decided in the trial court”). The trial court did not rule on Seventh BRT’s claim, made for the first time during oral argument on the posttrial motions, that the evidence was insufficient to support the jury’s finding of a unity of interest. In its memorandum of decision denying the motion to set aside the verdict, the trial court did not address the sufficiency argument, but instead addressed the argument presented in Seventh BRT’s written motion concerning the adequacy of the charge.
It is the appellant’s burden to provide an adequate record for review. Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5; Barnes v. Barnes, supra, 190
G
Offer of Judgment Interest
Count sixteen of the complaint alleges that Condominium Management Group, a division of Little Rock,
On September 5, 1996, the trial court granted the plaintiff’s motion for offer of judgment interest totaling
The question of whether the trial court properly awarded interest pursuant to § 52-192a is one of law subject to de novo review. “Section 52-192a (b) requires a trial court to award interest to the prevailing plaintiff from the date of the filing of a complaint to the date of judgment whenever: (1) a plaintiff files a valid offer of judgment within eighteen months of the filing of the complaint in a civil complaint for money damages; (2) the defendant rejects the offer of judgment; and (3) the plaintiff ultimately recovers an amount greater than or equal to the offer of judgment.” Loomis Institute v. Windsor, 234 Conn. 169, 180, 661 A.2d 1001 (1995). The purpose of § 52-192a “is to encourage pretrial settlements and, consequently, to conserve judicial resources. Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 301, 305, 472 A.2d 316 (1984); Verrastro v. Sivertsen, 188 Conn. 213, 223-24, 448 A.2d 1344 (1982); Lutynski v. B. B. & J. Trucking, Inc., 31 Conn. App. 806, 811, 628 A.2d 1 (1993), aff'd, 229 Conn. 525, 642 A.2d 7 (1994). ‘[T]he strong public policy favoring the
“There are many instances in which it would be imprudent for a plaintiff to file individual offers of judgment to multiple defendants because partial settlement may inadvertently extinguish rights against nonsettling defendants by operation of law. Annot., 92 A.L.R.2d 533 (1963). A plaintiff, as a practical matter, would not file separate offers of judgment in cases involving vicarious liability based on respondeat superior, automobile owner/operator negligence, or statutory indemnification claims unless each of those offers of judgment were for the full value of the case. Accordingly, in cases in which global settlement is the only viable alternative, permitting unified offers of judgment promotes the purpose of § 52-192a of encouraging settlements.” Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., supra, 239 Conn. 746.
H
Damages
The final judgment against Seventh BRT, excluding punitive damages and attorney’s fees, was $532,383. Of
In response to Seventh BRT’s claims regarding diminution in value of the property and repair estimates, the plaintiff argues that, although the measure of damages is generally diminution in value, the trial court may, at its discretion, choose to use the cost of repairs as the measure of damages. We agree.
“The defendants have assigned error in the refusal of the court to set aside the verdict awarding damages to the [plaintiff] .... The amount of the award is a matter within the province of the trier of the facts. . . . Then too, denial by the trial court of a motion to set aside a verdict claimed to be excessive is entitled to weighty consideration. . . . Such a claim raises a question of law. The issue here is not whether this court would have awarded more or less.” (Citations omitted; internal quotation marks omitted.) Johnson v. Flammia, 169 Conn. 491, 499, 363 A.2d 1048 (1975).
“To authorize a recovery of more than nominal damages, facts must exist and be shown by the evidence which affords a reasonable basis for measuring the [plaintiffs] loss. The [plaintiff has] the burden of
In determining the proper measure of damages for injury to land, “[t]he legal effort . . . is to compensate the landowner for the damage done.” D. Dobbs, Remedies (1973) § 5.1, p. 311. This is essentially true whether the injury is redressed under a theory of tort or breach of contract. Id. “The basic measure of damages for injury to real property is the resultant diminution in its value. Blakeman v. Tobin, 177 Conn. 597, 598, 419 A.2d 336 (1979); Falco v. James Peter Associates, Inc., [supra, 165 Conn. 446], There is, however, a well established exception to this formula; such diminution in value may be determined by the cost of repairing the damage, provided, of course, that that cost does not exceed the former value of the property and provided also that the repairs do not enhance the value of the property over what it was before it was damaged. Whitman Hotel [Corp.] v. Elliot & Watrous Engineering Co., 137 Conn. 562, 573, 79 A.2d 591 (1951) . . . .” (Internal quotation marks omitted.) Ferri v. Pyramid Construction Co., 186 Conn. 682, 689, 443 A.2d 478 (1982).
“The permissive language of Whitman Hotel [Corp.] clearly leaves the selection of the repair measure in the trial court’s discretion, limited only by the two attached provisos . . . .” Id.
The plaintiff in the present case introduced evidence of the cost of repairs for the chimneys, decks and vents.
We also disagree with Seventh BRT’s argument that evidence of cost of repairs must be valued at the time of the breach.
It is true that damages for breach of contract are to be measured “as of the date of the breach.” Levesque v. D & M Builders, Inc., 170 Conn. 177, 181, 365 A.2d 1216 (1976); Scribner v. O’Brien, Inc., 169 Conn. 389, 405, 363 A.2d 160 (1975). This does not necessarily mean, however, that current cost of repair estimates cannot be evidence of the extent of earlier damage.
We turn finally, with a weary and somewhat jaundiced eye, to Seventh BRT’s claim that the trial court improperly allowed the jury to award damages for the dryer vents because they were not claimed in the complaint and because there was insufficient evidence to support the award. The plaintiff argues that the allegations regarding the vents were added pursuant to a timely motion to amend the complaint and that the repair estimates presented to the jury provided a proper basis for the damage award. We agree with the plaintiff.
“Modern procedure has come a long way from the day when slight variances were fatal to a cause of action.
We agree with Seventh BRT that the complaint did not explicitly name the vents as an element for which damages were sought. The original complaint included only claims relating to the sewage treatment plant and did not make any allegations regarding damage or breach of warranty as to the residential buildings. A motion for leave to amend was filed on November 19, 1990, pursuant to which the plaintiff added claims relating to the residential structures.
The evidence indicates that Seventh BRT was on notice that evidence regarding defects in the vents would be presented at trial. The trial court explicitly announced to the jury that evidence would be presented regarding the vents and reminded the jury that this was “issue number five,” which indicates that the court, the parties and the jury were aware that evidence would be presented regarding this claim. Significantly, Seventh BRT has not argued that it was surprised or unfairly prejudiced by the plaintiffs presentation of evidence regarding the dryer vents. We, therefore, conclude that
Seventh BRT argues that the plaintiff presented insufficient evidence of damage to the vents because it introduced into evidence only two repair bills — one for $836.26, and another for $2977.34 — to repair a vent, and those repair bills were for units other than the ones for which the trial court allowed the jury to award damages.
The plaintiff has the burden of proving the extent of the damages suffered. Johnson v. Flammia, supra, 169 Conn. 501. Although the plaintiff need not provide such proof with “[mjathematical exactitude . . . the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate.” Falco v. James Peter Associates, Inc., supra, 165 Conn. 445. As we have stated previously, the determination of damages is a matter for the trier of fact and the “denial by the trial court of a motion to set aside a verdict claimed to be excessive is entitled to weighty consideration.” (Internal quotation marks omitted.) Johnson v. Flammia, supra, 499. It is, therefore, unnecessary for the plaintiff to show precisely what the cost of repair would be if it has presented sufficient evidence from which the jury reasonably can derive the damages incurred.
In the present case, the parties stipulated to the number of vents for which the jury was allowed to award damages. The plaintiff introduced into evidence the deeds for the units containing these vents. The plaintiffs witnesses described which types of units had defective vents and what had to be done to repair them. There was testimonial and photographic evidence showing the structure of the Willow Springs complex as a whole and showing the layout of the residential
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes § 47-200 et seq. The CIOA governs the rights and obligations of parties regarding the financing, construction, organization, sale, and management of common interest communities created on or after January 1, 1984. Common interest communities include condominiums, cooperatives and planned communities.
General Statutes § 47-116 et seq. The NHWA governs warranties relating to the sale of an improvement, which is defined as “any newly constructed single family dwelling unit, any conversion condominium unit being conveyed by the declarant and any fixture or structure which is made a part thereof at the time of construction or conversion . . . .” General Statutes § 47-116.
General Statutes § 42-110a et seq. CUTPA provides a cause of action against anyone who engages in “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” General Statutes § 42-110b (a).
The original defendants were: Seventh BRT, which was the developer and declarant of Willow Springs; Danbury Crossroads Corporation, formerly known as BRT Development Corporation, which owned the property before it was designated as a condominium development and before construction began on the complex; little Rock Properties Corporation, formerly known as BRT Corporation, which was the general contractor for the Willow Springs project; Condominium Management Group, a division of Little Rock Properties Corporation, which served as the property manager between July 12, 1985, and December 31, 1990; Martin Lillis, who, as MTL Enterprises, operated the sewage treatment plant; and Dennis McDonald, Edmund J. Nahom and Teresa LaCroce, who were employees and officers of Seventh BRT and had served on the association’s board. Although liability was found against Little Rock Properties Corporation, Danbury Crossroads Corporation and Condominium Management Group under the unity of interest doctrine; see parts II F and G of this opinion; for purposes of this opinion, we treat Seventh BRT as the sole appellant.
These units consisted of phase fifteen of the Willow Springs construction project, which included buildings 7, 9, 12, 18 and 19.
See footnote 4 of this opinion.
General Statutes § 47-274 provides: “Express warranties of quality, (a) Express warranties made by any seller to a purchaser of a unit, if relied on by the purchaser, are created as follows:
“(1) Any affirmation of fact or promise which relates to the unit, its use, or rights appurtenant thereto, area improvements to the common interest community that would directly benefit the unit, or the right to use or have the benefit of facilities not located in the common interest community, creates an express warranty that the unit, area improvements and related rights and uses will conform to the affirmation or promise;
“(2) Any model or description of the physical characteristics of the common interest community, including plans and specifications of or for improvements, creates an express warranty that the common interest community will substantially conform to the model or description;
“(3) Any description of the quantity or extent of the real property comprising the common interest community, including surveys, creates an express warranty that the common interest community will conform to the description, subject to customary tolerances; and
“(b) Neither formal words, such as ‘warranty’ or ‘guarantee’, nor a specific intention to make a warranty, are necessary to create an express warranty of qualify, but a statement purporting to be merely an opinion or commendation of the real property or its value does not create a warranty.
“(c) Any conveyance of a unit transfers to the purchaser all express warranties of quality made by previous sellers only to the extent such a conveyance would transfer warranties pursuant to chapter 827.”
General Statutes § 47-275 provides: “Implied warranties of quality, (a) A declarant warrants to a purchaser that a unit will be in at least as good condition at the earlier of the time of the conveyance or delivery of possession as it was at the time of contracting, reasonable wear and tear excepted.
“(b) A declarant impliedly warrants to a purchaser that a unit and the common elements in the common interest community are suitable for the ordinary uses of real property of its type and that any improvements made or contracted for by him, or made by any person before the creation of the common interest community, will be: (1) Free from defective materials; and (2) constructed in accordance with applicable law, according to sound engineering and construction standards, and in a workman-like manner.
“(c) In addition, a declarant warrants to a purchaser of a unit that may be used for residential use that an existing use, continuation of which is contemplated by the parties, does not violate applicable law at the earlier of the time of conveyance or delivery of possession.
“(d) Warranties imposed by this section may be excluded or modified as specified in section 47-276.
“(e) For purposes of this section, improvements made or contracted for by an affiliate of a declarant are made or contracted for by the declarant.
“(f) Any conveyance of a unit transfers to the purchaser all of the declarant’s implied warranties of qualify only to the extent such a conveyance would transfer warranties pursuant to chapter 827.
“(g) The warranties provided to a purchaser by a declarant pursuant to this section with respect to common elements shall also extend to the association.”
General Statutes § 47-117 provides: “Express warranties, (a) Express warranties by a vendor are created as follows: (1) Any written affirmation of fact or promise which relates to the improvement and is made a part of the basis of the bargain between the vendor and the purchaser shall create an express warranty that the improvement conforms to such affirmation or promise; (2) any written description of the improvement, including plans and specifications thereof which is made a part of the basis of the bargain between the vendor and the purchaser shall create an express warranty that the improvement conforms to such description; and (3) any sample or
“(b) No formal words, such as ‘warranty’ or ‘guarantee’, nor any specific intention to make a warranty shall be necessary to create an express warranty, provided a simple affirmation of the value of the improvement or a statement purporting to be an opinion or commendation of the improvement shall not of itself create such a warranty.
“(c) No words in the contract of sale or the deed, nor merger of the contract of sale into such deed shall exclude or modify any express warranty made pursuant to subsection (a) of this section. Such warranty may, at any time after the execution of the contract of sale, be excluded or modified wholly or partially by any written instrument, signed by the purchaser, setting forth in detail the warranty to be excluded or modified, the consent of the purchaser to such exclusion or modification and the terms of the new agreement.
“(d) An express warranty shall terminate: (1) In the case of an improvement completed at the time of the delivery of the deed to the purchaser, one year after the delivery or one year after the taking of possession by the purchaser, whichever occurs first; and (2) in the case of an improvement not completed at the time of delivery of the deed to the purchaser, one year after the date of the completion or one year after taking of possession by the purchaser, whichever occurs first.”
General Statutes § 47-118 provides: “Implied warranties, (a) In every sale of an improvement by a vendor to a purchaser, except as provided in subsection (b) of this section or excluded or modified pursuant to subsection (d), warranties are implied that the improvement is: (1) Free from faulty materials; (2) constructed according to sound engineering standards; (3) constructed in a workman-like manner, and (4) fit for habitation, at the time of the delivery of the deed to a completed improvement, or at the time of completion of an improvement not completed when the deed is delivered.
“(b) The implied warranties of subsection (a) of this section shall not apply to any condition that an inspection of the premises would reveal to a reasonably diligent purchaser at the time the contract is signed.
“(c) If the purchaser, expressly or by implication, makes known to the vendor the particular purpose for which the improvement is required, and it appears that the purchaser relies on the vendor’s skill and judgment, there is an implied warranty that the improvement is reasonably fit for the purpose.
“(d) Neither words in the contract of sale, nor the deed, nor merger of the contract of sale into the deed is effective to exclude or modify any implied warranty; provided, if the contract of sale pertains to an improvement then completed, an implied warranty may be excluded or modified wholly or partially by a written instrument, signed by the purchaser, setting forth in detail the warranty to be excluded or modified, the consent of the purchaser to exclusion or modification, and the terms of the new agreement with respect to it.
The trial court eventually directed a verdict in favor of the defendants for claims relating to the paving, and permitted the jury to consider the issue of damages for claims relating to defects in the residential buildings, but only as to those units that had been sold to BRT Property Group or had been retained by Seventh BRT and then had been sold to individual purchasers within three years of the filing of the action.
The trial court directed a verdict in favor of the defendants on the claim of wilful and wanton misrepresentation (count seven of the complaint) and breach of the duty of care (count nine of the complaint).
This “community sewerage system” was proposed in accordance with General Statutes § 7-245.
Corporate Property Management, Inc., took over management of the complex from Condominium Management Group in January, 1991, and managed the property for less than one year. See footnote 13 of this opinion.
REI Property Management Company began serving as the property manager for Willow Springs on December 1, 1991.
The plaintiff introduced into evidence a number of deeds showing that from December 12,1991, to October 3,1994, BRT Property Group sold thirty units to individual purchasers, and that from November 19,1990, to February 20, 1992, Seventh BRT sold seven units to individual purchasers.
Practice Book § 312, now Practice Book (1998 Rev.) § 16-18, provides: “Interrogatories
“The court may submit to the jury written interrogatories for the purpose of explaining or limiting a general verdict, which shall be answered and delivered to the clerk as a part of the verdict. The clerk will take the verdict and then the answers to the several interrogatories, and thereafter the clerk will take the court’s acceptance of 1he verdict returned and the questions as answered, and proceed according to the usual practice. The court will not accept a verdict until the interrogatories which are essential to the verdict have been answered.”
Practice Book § 4064C (d), now Practice Book (1998 Rev.) § 67-4 (d), provides in relevant part: “The argument, divided under appropriate headings into as many parts as there are points to be presented, with appropriate references to the statement of facts or to the page or pages of the transcript or to the relevant document. The argument on each point shall include a separate, brief statement of the standard of review the appellant believes should be applied. . . .”
Seventh BRT appears to have raised this argument in two different sections of its brief. Because the same or similar issues are raised in both instances, we treat them together.
Practice Book § 315, now Practice Book (1998 Rev.) § 16-20, provides in relevant part: “The supreme court and the appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state the specific matter objected to and the ground of objection. . . .”
We address, elsewhere in this opinion, specific exceptions that are relevant to other issues on appeal.
We note that the case was tried on an issue-by-issue basis and that the court charged separately on each count of the complaint. Additionally, each juror was given a notebook that had been organized according to the issues
Because we conclude that the jury properly could have found Seventh BRT liable for breach of warranty under the CIOA, we do not reach the claims regarding the NHWA.
General Statutes (Rev. to 1995) § 47-277 provides: “Action for breach of warranty. Statute of limitations, (a) A judicial proceeding for breach of any obligation arising under section 47-274 or 47-275 shall be commenced within three years after the cause of action accrues.
“(b) Subject to subsection (c) of this section, a cause of action for breach of warranty of quality, regardless of the purchaser’s or association’s lack of knowledge of the breach, accrues: (1) As to a unit, at the time the purchaser to whom the warranty is first made enters into possession if a possessory interest was conveyed or at the time of acceptance of the instrument of conveyance if a nonpossessoiy interest was conveyed; and (2) as to each common element, at the time the common element is completed and first used by a bona fide purchaser.
“(c) If a warranty of quality explicitly extends to future performance or duration of any improvement or component of the common interest community, the cause of action accrues at the time the breach is discovered or at the end of the period for which the warranty explicitly extends, whichever is earlier.”
We note that this statute was amended in 1995, adding the phrase “[ujnless a period of limitation is tolled under section 47-253” at the beginning of
See footnote 14 of this opinion.
“ ‘Declarant’ means any person or group of persons acting in concert who (A) as part of a common promotional plan, offers to dispose of his interest in a unit not previously disposed of or (B) reserves or succeeds to any special declarant right.” General Statutes § 47-202 (12). Because Seventh BRT is without question the “declarant” of Willow Springs, claims for breach of warranty pursuant to §§ 47-274 and 47-275 relating to units retained by Seventh BRT and then sold to bona fide purchasers within the three years next preceding the commencement of this action are not barred by the statute of limitations provided in § 47-277.
The court, in fact, instructed the jury as to the UCC definition of a bona fide purchaser and then went on to state that the term purchaser was further limited by the CIOA as described previously.
There is an additional requirement in § 47-277 that neither party has addressed in its briefs, although it was raised in Seventh BRT’s supplemental motion for a directed verdict. A claim with respect to any element other than a unit cannot, by the express terms of § 47-277, accrue before that element is used by the “purchaser.” Limited common elements are, by definition, allocated for the use of one or more but fewer than all the units. General Statutes § 47-202 (19). Seventh BRT’s claim in its motion for a directed verdict, that the term “use" may be broadly defined as deriving benefit, is unavailing. First, it would be illogical to assume that the term “use” as employed in the definitional section of the statute means anything but actual use because, theoretically, each unit derives some incremental value from all common elements and limited common elements. Second, the defendant’s proffered definition renders the statutory distinction between the accrual of a cause of action for units and common elements meaningless. “[PJrinciples of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results. . . . We must avoid a construction that fails to attain a rational and sensible result that bears directly on the result that the legislature sought to achieve.” (Citation omitted; internal quotation marks omitted.) State v. DeFrancesco, 235 Conn. 426, 436-37, 668 A.2d 348 (1995). A claim relating to a limited common element, therefore, does not, as Seventh BRT argues, accrue when the first unit is sold to a bona fide purchaser but, rather, accrues when a unit for whose use that element is allocated is first sold to a bona fide purchaser.
Seventh BRT claims on appeal that the trial court improperly allowed the jury to apply the NHWA to limited common elements of a condominium complex organized under the CIOA. Specifically, it claims that the NHWA
See footnote 7 of this opinion.
The plaintiff need only allege and prove one permissible basis for avoiding the statute of limitations. Because we conclude that Seventh BRT may not challenge the jury’s finding with respect to fraudulent concealment, and that that claim therefore serves as an effective bar to the statute of limitations defense, we need not reach the issue of whether there was sufficient evidence for the jury to have found an express extension of the warranty.
See footnote 34 of this opinion.
Count five of the complaint provides in relevant part:
“6. Prior to June 6, 1992, Seventh BRT possessed knowledge to the effect that the Treatment Plant was inadequate for the needs of the community and that it was not being properly operated and/or maintained.
“7. As the Condominium Declarant Seventh BRT had an obligation to disclose to the plaintiff and unit owners its knowledge regarding the inadequacies of the Treatment Plant and its deteriorating condition.
“8. Seventh BRT Fraudulently, and with an intent to mislead, concealed the information regarding the Treatment Plant from the plaintiff. . . .”
We note that the plaintiff did not specifically cite the fraudulent concealment statute, General Statutes § 52-595, in count five, although it substantively alleged that Seventh BRT had fraudulently concealed information regarding the condition of the treatment plant that it had a duty to disclose.
General Statutes § 52-595 provides: “Fraudulent concealment of cause of action. If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.”
Practice Book § 4185, now Practice Book (1998 Rev.) § 60-5, provides in relevant part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” This rule of practice was repealed September 3, 1996, and replaced with Practice Book § 4061, prior to its present codification at § 60-5.
Seventh BRT’s requests for interrogatories relating to the fraudulent concealment count provided as follows:
“4. Did [Seventh BRT] intentionally conceal serious problems relating to the sewerage treatment plant from the plaintiff? . . .
“5. Has the plaintiff proven by clear, concise and convincing evidence that [Seventh BRT’s] actions were directed to the very point of obtaining a delay in filing an action so that they could thereafter seek to take advantage of Statute of Limitations? . . .
“6. Has the plaintiff proven that [Seventh BRT] fraudulently concealed serious problems at the sewerage treatment plant by clear, precise and unequivocal evidence? . . .
“6A. If the answer is yes, please state the date this first occurred. . .
Seventh BRT’s request to charge relating to the fraudulent concealment count provides in relevant part:
“4. The warranty with respect to the sewerage treatment plant has expired. With regard to the sewerage treatment only, the plaintiff has alleged that [Seventh BRT] fraudulently, and with an intent to mislead, concealed the information regarding the treatment plant from the plaintiff. To establish that [Seventh BRT] had fraudulently concealed the existence of the cause of action and so had tolled the Statute of Limitations, the plaintiff has the burden of proving that the defendants were aware of the facts (serious problems) necessary to establish this cause of action, and that this defendant had intentionally concealed those facts from the plaintiff. . . .
“5. [Seventh BRT’s] actions must have been directed at the very point of obtaining the delay [in filing the action] of which they afterward [seek] to take advantage of by pleading the statute. To meet this burden, it is not sufficient for the plaintiff to prove merely that it was more likely than not that [Seventh BRT] had concealed the cause of action. Instead, the plaintiff has to prove fraudulent concealment by the more exacting standard of clear, precise and unequivocal evidence. . . (Citation omitted.)
The interrogatories relating to the fraudulent concealment count were answered as follows:
“13. Did [Seventh BRT] fraudulently, and with an intent to mislead, conceal information regarding the treatment plant from the Association and the unit owners so as to obtain a delay in filing the action?
ANSWER: YES
“14. If your answer to #13 is yes, what amount of damages is attributable to that concealment?
The interrogatories relating to fraudulent misrepresentation were answered as follows:
“15. Did [Seventh BRT] make representations to the Association and the unit owners regarding the adequacy of the treatment plant, its operation and maintenance that were untrue or with reckless disregard as to whether they were true?
ANSWER: YES
“16. If your answer to #15 is yes, what amount of damages is attributable to [Seventh BRT’s] conduct?”
ANSWER: $._”
General Statutes § 52-577 provides: “Action founded upon a tort. No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”
General Statutes § 52-584 provides in relevant part: “Limitation of action for injury to person or property. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . .
The interrogatories for the CUTPA claim and the answers thereto were as follows:
“19. Does the conduct of [Seventh BRT] constitute a violation of Connecticut’s Unfair Trade Practices Act (§ 42-110a et seq. of the Connecticut General Statutes)?
ANSWER: YES
“20. If your answer to #19 is yes, what amount of damages is attributable to that violation?
ANSWER: $_”
General Statutes § 42-110g (f) provides: “An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.”
The interrogatory regarding unity of interest and the answer thereto stated as follows:
“21. If you find liability on the part of [Seventh BRT], do you find that a unity of interest existed between [Seventh BRT], BRT Corporation (now known as [Little Rock]) and BRT Development Corporation (now known as [Danbury]), as charged by the Court?
ANSWER: YES”
We reject Seventh BET’s request for “plain error” review of its claim that there was insufficient evidence of unity of interest. First, “[o]nly in the most exceptional circumstances will this court consider a claim that was not raised in the trial court.” Cahill v. Board of Education, 187 Conn. 94, 99, 444 A.2d 907 (1982). Second, Seventh BET failed to request plain error review of this claim in its “initial brief to this court, but, rather, raised it for the first time in [its] reply brief. ‘It is a well established principle that arguments cannot be raised for the first time in a reply brief.’ Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 593 n.26, 657 A.2d 212 (1995).” State v. Wilchinski, 242 Conn. 211, 217 n.7, 700 A.2d 1 (1997).
We note that it is no longer generally necessary for litigants to preserve a claim both during trial and posttrial in a motion to set aside the verdict in order to obtain appellate review. Santopietro v. New Haven, supra, 239 Conn. 211-13. In Santopietro, however, we specifically reserved the question of whether, in a civil action for money damages, it would be necessary to raise the issue of sufficiency of the evidence both during the trial and in a motion to set aside the verdict. Id., 213 n.9.
We recognize that a trial court has the inherent authority to set aside a verdict even where no motion to set aside the verdict has been filed. See, e.g., A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 206, 579 A.2d 69 (1990); State v. Avcollie, 178 Conn. 450, 455, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980); Belchak v. New York, N. H. & H. R. Co., 119 Conn. 630, 637, 179 A. 95 (1935). This does not mean, however, that Seventh BET need not have raised issues arising during the trial, in a motion for a directed verdict, in order for the
It is important to note that, in the present case, the court denied Seventh BRT’s posttrial motions and, in fact, never ruled on the sufficiency argument. We, therefore, need not decide whether Seventh BRT’s claim regarding sufficiency of the evidence of unity of interest would have been reviewable had the court granted those motions.
Seventh BRT moved for a directed verdict on January 4, 1996, and renewed its motion on January 17, 1996, and again on January 25, 1996. On none of these occasions did Seventh BRT argue that the plaintiff had presented insufficient evidence of unity of interest.
The request to charge filed by Seventh BRT on January 22,1996, provides in relevant part as follows:
“10. In count ten of its complaint, the plaintiff alleges that a Unity of Interest exists between [Danbury], [Little Rock] and [Seventh BRT]. The plaintiff must show that there was such a unity of interest in ownership that the independence of the corporations had in effect ceased or never begun. It is a requirement of this rule that the defendant would escape liability for an act performed and conducted for the benefit of the whole
“17. There is no question that a group of individuals or one individual may establish as many separate corporations as they desire. Obviously, the useful and beneficial role of the corporate concept in the economic and business affairs of the modem day world would be destroyed if the mle of freedom from individual liability for corporate obligations did not obtain. If the plaintiff can show that there was such a unity of interest and ownership that the independence of the corporation had in effect ceased or never begun, an adherence to the fiction of separate entity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise. This rule has been applied where one corporation with a lot of assets has transferred the assets to a smaller corporation under similar control to avoid liability. However, where there is no showing that the separate existence of the separate corporations was to commit a fraud or to perpetuate a dishonest or unjust act the rule does not apply. Zaist v. Olson, 154 Conn. 563 [575, 227 A.2d 552] (1967); Vogel v. New Milford, 161 Conn. 490 [494, 290 A.2d 231 (1971)]. . . .”
Little Rock and Danbury specifically raised the issue of the adequacy of the jury charge on unity of interest in their joint motion to set aside the verdict and motion for judgment notwithstanding the verdict.
With respect to the unity of interest, the trial court’s memorandum of decision provided as follows: “The defendants now claim that Zaist v. Olson, [supra, 154 Conn. 563] requires that the verdict be set aside and for judgment notwithstanding the verdict. According to the defendants, the basis of this request is that under Zaist . . . the plaintiff was required to prove that the existence of a separate corporation was to commit a fraud or perpetuate a dishonest or unjust act. This court’s reading of Zaist, however, differs. In Zaist ... the court set forth two rules. The first was the instrumentality and the second was its complement, the identity rule. Id., 575-76. This court charged properly under the rules set forth in Zaist . . . and as such, the motions with respect to this issue are denied.”
The complaint alleges that Condominium Management Group served as property manager for Willow Springs between July 12, 1985, and December 31, 1990.
General Statutes § 52-192a provides: “Offer of judgment by plaintiff. Acceptance by defendant. Computation of interest, (a) After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment’ and prior to the rendering of a verdict by the jury or an award by the court, the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiff’s ‘offer of judgment’. Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
“(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1, 1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”
We note that it does not appear that the trial court included the $40,000 verdict against Condominium Management Group when calculating the $172,527.29 in interest awardedpursuantto § 52-192a. Furthermore, although the judgment file provides that “[t]he court ... by Order of September 5, 1996, awarded interest of $172,527.29 as against Seventh BRT Development Corp., Little Rock Properties Corp., Danbury Crossroads Corp., and Condominium Management Group,” the order itself merely grants Seventh BRT’s motion, which generically refers to “the BRT corporate defendants.” Neither party has challenged the trial court’s computation of the interest awarded nor has either moved for an articulation as to the parties responsible for paying it. We therefore assume that the judgment correctly expresses the intention of the trial court.
The t,rial court, instructed the jury that the measure of damages is “diminution in the value of the plaintiffs property caused by the defendant’s injury to it. It is, however, well established that such diminution in value may be determined by the cost of repairing the damage, provided, of course, that that cost does not exceed the former value of the property and provided
We note that although there are differences in remedies available for damage to land under tort and contract theory; Johnson v. Flammia, supra, 169 Conn. 499 (recovery in tort allows total damages to exceed reasonable market value of property); cost of repairs is admissible as evidence of diminution in value of the property in both tort and breach of contract actions. See Scribner v. O’Brien, Inc., 169 Conn. 389, 405, 363 A.2d 160 (1975).
Because the plaintiff failed to introduce sufficient evidence of the cost of repairing the roofs, the trial court reduced the jury’s $348,998 verdict on that claim to $100 in nominal damages.
This issue was raised but not decided in Scribner v. O’Brien, 169 Conn. 389, 363 A.2d 160 (1975).
In Levesque, we rejected the defendant’s argument that the plaintiff had suffered no loss under the diminution in value measure of damages for injury to real property because the value of the damaged property had increased from the date of the breach to the time of trial. We stated that the proper frame of reference for diminution in value was the value before and immediately after the breach. Levesque v.D & M Builders, Inc., supra, 170 Conn. 181. To have held otherwise would have immunized the defendant
The trial court permitted the jury to award damages for only forty-six dryer vents. These vents are contained in the units sold to BRT Property
The jury awarded $79,000 in damages for the dryer vents.
We note that the verdict falls in between the amounts that would result had the jury simply multiplied either the lower or the higher repair bill by the number of vents.
