Opinion
CV085005984S
01-14-2020
Lisa Bruno v. Reed Whipple et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Brazzel-Massaro, Barbara, J.
MEMORANDUM OF DECISION RE AMENDED MOTION TO VACATE #284
Brazzel-Massaro, J.
INTRODUCTION
The plaintiff, Lisa Bruno filed an action in this court on November 10, 2008. The action was tried to a jury in 2013. The jury returned a verdict for the defendant. The plaintiff appealed the verdict for the defendant and the case was remanded for a trial limited to hearing in damages on the breach of contract cause of action only. This hearing was conducted before Judge Anthony Truglia with a decision issued February 21, 2017 in favor of the defendant.
Presently, the court has before it the plaintiff’s amended motion to vacate the decision of the trial court, Truglia, J., which was entered after the hearing in damages. The motion addresses a decision of the court as set forth in a memorandum of decision dated February 21, 2017. (D.E. #254.05.) The plaintiff argues that the trial court did not have jurisdiction to enter its order of judgment for the defendant based upon the remand and order by the Appellate Court. The plaintiff argues that the trial court was limited solely to determine the amount of damages to be awarded. The defendant has filed a memorandum in opposition which was actually filed for the original motion to vacate. The objection is dated July 22, 2019. A reply was filed dated July 30, 2019.
DISCUSSION
The plaintiff argues that the trial court, Judge Truglia, entered an improper judgment in favor of the defendants after the remand provided that the court was to conduct a hearing in damages related to the breach of contract cause of action. The plaintiff contends that the trial court did not have subject matter jurisdiction to conduct the hearing and thereafter to enter a verdict for the defendant.
The Appellate Court decision entered after trial provides the background of the action which came before it and is relevant to the decision on the present motion. Bruno v. Whipple, 162 Conn.App. 186, 130 A.3d 899 (2015). The Appellate Court states: "The plaintiff appeals from the judgment of the trial court in favor of the defendants, Heritage Homes and its president, Reed Whipple, claiming that the trial court erred: (1) in denying her posttrial motion to set aside the jury’s verdict (a) for Heritage Homes on her claim of breach of contract, and (b) for Whipple on her claim of violation of the Connecticut Unfair Trade Practices Act (CUTPA) ... and (2) in granting the pretrial motion of Heritage Homes for summary judgment on her claims of breach of the implied covenant of good faith and fair dealing and violation of CUTPA." Id., Bruno v. Whipple, 162 Conn.App. 189. The court ruled that: "We reverse the judgment in favor of Heritage Homes on the plaintiff’s claim of breach of contract and remand the case for a hearing in damages on the claims pursuant to the unchallenged portion of the jury’s verdict and accompanying answers to interrogatories concerning that claim." Id., 162 Conn.App. 189. The Appellate Court provided a very thorough and pointed legal analysis of the trial court’s ruling which permitted evidence and charge addressing the added special defense of waiver. The plaintiff argued in part on the appeal, that the special defense of waiver was not timely and did not give proper notice to the plaintiff to address it during the course of the trial and as charged to the jury. Based upon the facts raised at trial and the arguments of the parties, the Appellate Court concluded that "the court should have set aside the jury’s verdict as to waiver." Id., 207. The Appellate Court also entered a specific finding as to the scope of the remand. In this analysis, the Appellate Court determined that the breach of contract finding was wholly separable from the verdict that resulted from the special defense. The Appellate Court ruled that it would limit the hearing in damages to the breach of contract finding by the jury. Id., 208. This court reads this finding to allow the court on remand to determine what, if any damages would be awarded to the plaintiff on the breach of contract finding. The plaintiff is partially correct in her assessment of the finding by the Appellate Court that the verdict as to the breach of contract in favor of the plaintiff would stand. However, the Appellate Court obviously recognized that remanding the matter for a hearing in damages as to this count does not and did not require a finding of an award of money damages. In footnote 10 of the decision the court recognizes that because there was no award of damages to the plaintiff, the defendant could not appeal from the jury’s determination of damages, if any, so that the court left open the appeal issues of damages if the defendant was aggrieved from the determination of liability and damages. Id., 208-09.
The court affirmed the jury verdict as to the other claims of error.
The jury interrogatories returned by the jury after trial answered that the defendant had breached the contract but that the special defense of waiver applied and thus they returned a verdict for the defendant on the breach of contract cause of action.
With this background, the trial court conducted a hearing in damages on the claim of breach of contract. The plaintiff requests this court to vacate the decision from the trial court which was entered after the remand. The plaintiff seeks this ruling so as to allow a new hearing in damages.
The court can equate this motion to vacate with a motion to set aside, motion to re-open or a motion to re-argue which are all untimely. The court does not specifically address this argument but notes that each of these motions would be denied based upon the two years that have passed since the decision. The plaintiff obviously determined that the decision should be appealed without first this seeking relief from the court.
Interestingly enough, however, the plaintiff also filed an appeal of the decision by Judge Truglia. The Appellate Court found in that decision that the plaintiff did not satisfy the burden of proof in regard to the damages requested. Bruno v. Whipple, 186 Conn.App. 299, 109 A.3d 604 (2018). The Appellate Court once again analyzed the decision of the trial court reviewing the exhibits and the testimony provided on the issue of damages. The Appellate Court recognized that the trial judge is the sole arbiter of credibility issues as well as the weight to be afforded the specific testimony. Utilizing this theory and reviewing the decision on a clearly erroneous standard, the Appellate Court ruled that the trial court properly determined that the plaintiff had failed to satisfy her burden of proof and it concluded that the court’s finding that the plaintiff "has not proven ... that the marital estate was reduced by [the] defendant’s breach of contract is not clearly erroneous." (Quotations omitted.) Id., 312. Thus, the Appellate Court found and affirmed that the plaintiff "had not met her burden in demonstrating entitlement to her claimed damages." Id. In this 2018 appeal the plaintiff also argued that the trial court exceeded the scope of the remand. This is the same argument the plaintiff has raised in this motion. The Appellate Court did not find that the trial court exceeded its authority in finding that the plaintiff failed to satisfy the burden as to damages.
The plaintiff in this present motion, as well as in the appeal of Judge Truglia’s decision, seems to be misguided, that is, believing that because the jury made a finding that there was a breach of contract and the court ordered the remand for a hearing in damages on this issue, she is to receive an award of damages. The plaintiff in her appeal and in the amended motion to vacate has lost sight of the rationale which was amply supported in the 2018 decision that the plaintiff must present evidence at the hearing in damages that her claimed damages were the foreseeable result of the defendant’s failure to provide her with the invoices on a biweekly basis ..." Id., 311. The Appellate Court recognized the legal criteria which requires that in addition to proving liability, the plaintiff must also present evidence to support the extent of damages suffered. Citing Naples v. Keystone Building & Development Corp., 295 Conn. 214, 990 A.2d 326 (2010). The decision by Judge Truglia was affirmed by the Appellate Court which clearly recognized the legal insufficiencies and that the speculative testimony or a resort to conjecture does not prove damages.
The Appellate Court reviewed the findings of the trial court which analyzed the many claims regarding the funding to the house in question and the impact upon the final dissolution in the divorce action. The Appellate Court concluded after its review of the findings that: "We therefore conclude that the court’s finding that the plaintiff ‘has not proven ... that the marital estate was reduced by [the defendant’s] breach of contract’ is not clearly erroneous. Accordingly, the court properly determined that the plaintiff had not met her burden in demonstrating entitlement to her claimed damages."
The second issue on appeal was precisely the argument now made to this court that the trial court exceeded the scope of the remand. The Appellate Court issued a decision on December 4, 2018. The Appellate Court affirmed Judge Truglia’s findings that the plaintiff did not prove damages. The Appellate Court found that the decision of the trial court was improper in that it did not address nominal damages, but the court discussed the purpose of a hearing in damages and the general adherence to a challenge by the defendant to any damages claimed. This is precisely what occurred at the hearing in damages where the trial court was presented with testimony and evidence of the claim for damages. The Appellate Court noted that "the plaintiff’s burden at a hearing in damages is limited to proving that the amount of damages claimed is derived from the injuries suffered and is properly supported by the evidence." Bruno v. Whipple, 186 Conn.App. 299, 315, 199 A.3d 604 (2018) citing, Murray v. Taylor, 65 Conn.App. 300, 335, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001). Additionally, the court recognized that: "a plaintiff in a breach of contract action must prove that the damages were forseeable to the defendant and naturally and directly resulted from the defendant’s conduct." Id. Citing Meadowbrook Center, Inc. v. Buchman, 149 Conn.App. 177, 188, 90 A.3d 219 (2014). The Appellate Court determined that because there was a finding of a breach of contract by the jury that, at a minimum, nominal damages would be appropriate as an award. However, the court strongly relayed the position that the plaintiff must prove that the breach of contract "caused loss and the amount of loss in order to receive anything other than nominal damages." The court agreed that a nominal award would have been appropriate even though the Appellate Court properly determined and thus affirmed the trial court’s findings that, as to the cause of action, it was not clearly erroneous. Thus, because there was a technical breach found the court erroneously directed judgment for the defendant. However, the court then determined that such a finding was not reversible error even though nominal damages would have been appropriate. The court stated that the rationale for not reversing is that "nominal damages mean no damages at all." They exist in name only and not in amount." Bruno v. Whipple, Id., 186 Conn.App. 318. The Appellate court relied upon Riccio v. Abate, 176 Conn. 415, 407 A.2d 1005 (1979) as support for the position that there was no demonstration of actual damages and thus the judgment should not be reversed. Thus, the Appellate Court affirmed the decision of Judge Truglia and the plaintiff now requests this court act contrary to the December 4, 2018 findings of the Appellate Court. Additionally, the plaintiff filed a petition with the Supreme Court on February 14, 2019 which was denied on May 22, 2019. Whipple v. Bruno, 186 Conn.App. 299, 199 A.3d 604, petition for cert. denied, 331 Conn. 911, 203 A.3d 1245 (2019). The plaintiff continued to pursue the decision of the appellate courts while pursuing the same claim in this motion by filing a motion to reconsider the appellate court decision on October 15, 2019. This motion was denied on October 30, 2019. Id. However, it is interesting to note that again the arguments of the plaintiff are convoluted and misguided in that she argues on the reconsideration once again that there was an unauthorized exercise of subject matter jurisdiction by the trial court which is precisely the claim set forth in this motion to vacate. This claim has been ruled upon by the Appellate and Supreme Courts and the plaintiff looks to this court to interfere with the authority of the appellate courts. It is not for this court to usurp the power or authority of our appellate courts. The Supreme Court has stated "[t]his court follows the well-recognized principle of law that the opinion or an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory [on] the parties to the action and [on] the trial court ... The rule is that a determination once made will be treated as correct throughout all subsequent stages of the proceeding except when the question comes before a higher court ..." (Citations omitted.) American Diamond Exchange Inc. v. Alpert, 302 Conn. 494, 509, 28 A.3d 976 (2011). The plaintiff has been afforded every opportunity to challenge the decision issued by Judge Truglia in her appeals to the appellate courts. The amended motion to vacate a decision of another Superior Court trial judge is not within this court’s authority which would result in this court not only usurping the authority of another trial court but more importantly in this case, the appellate courts.
The plaintiff seems to argue that the fact that the Appellate Court remanded for a hearing in damages reflected an automatic finding or rubber stamp to the damages submitted by the plaintiff without permitting a challenge by the defendant.
The court defined nominal damages as "a trivial sum of money awarded to a litigant who has established a cause of action but has not established that he is entitled to compensatory damages." 4 Restatement (Second) Torts § 907, p. 462 (1979). "Nominal damages are usually fixed at one cent, one dollar, or some similar small amount ... While no exact standard has been fixed as to what amount should be given as nominal damages, it must be insubstantial, a few cents or dollars." Id., 319 fn. 11, citing Hartford v. International Assn. of Firefighters, Local 760, 49 Conn.App. 805, 816 n.7, 717 A.2d 258, cert. denied, 247 Conn . 920, 722 A.2d 809 (1998).
A prime example of the plaintiff’s inconsistent and frivolous arguments is the plaintiff’s position on the motion to reconsider the appellate decision was a completely circuitous argument claiming the decision of the trial court dated February 21, 2017 was not a final judgment yet she pursued an appeal of this final judgment. This argument does not equate with the plaintiff’s filing of an appeal and the petition for certification to the Supreme Court.
The plaintiff attempts to inject a different approach to the motion by citing C.G.S. § 52-266. The plaintiff argues that C.G.S. § 52-266 controls the extent of the remand in this case to only the damages that can be awarded. This statue provides: "If several issues are presented by the pleadings, and on the trial of one or more of such issues an error or ground for a new trial intervenes which does not affect the legality of the trial or disposition of the other issue or issues, judgment shall not be arrested or reversed nor a new trial granted except so far as relates to the particular issue or issues in the trial of which such error or ground for a new trial intervened." However, this statute does not impact the decision of the Appellate Court which thoroughly addressed the liability and damage issues raised by the plaintiff and finding that the trial court’s ruling was not clearly erroneous. ---------
Therefore, the court denies the plaintiff’s amended motion to vacate the February 21, 2017 decision.