Bonnie Stellenwerf v. Peter Biscuti (2016)

decision to set aside a verdict entails the exercise of a broad legal discretion ․ that, in the absence of clear abuse, we shall not disturb.”  (Citations omitted;  internal quotation marks omitted.)  Edmands v. CUNO, Inc., 277 Conn. 425, 452, 892 A.2d 938 (2006).

RULING RE PLAINTIFF'S MOTION FOR ADDITUR, DEFENDANT'S MOTION FOR REMITTITUR, AND PLAINTIFF'S MOTION FOR ATTORNEYS FEES AND COSTS

This case was an action by the plaintiff, Bonnie Stellenwerf, against her former landlord, Peter Biscuti, for violations of her lease agreement and various landlord-tenant laws.  The matter was tried to a jury over a three-week period.  The jury entered a verdict for the plaintiff, awarding her $3,453.50 on her complaint, and awarded the defendant $4,374.00 on his counterclaim.  Pending before the court are plaintiff's post-trial motion for additur (Doc. No. 135.00), defendant's motion for remittitur (Doc. No. 137.00) and plaintiff's motion for attorneys fees and costs (Doc. No. 136.00).  For the following reasons, the plaintiff's motion for additur is denied.  The defendant's motion for remittitur is granted, in part, in the amount of $702.50.  The remitted sum, if accepted by the plaintiff, would reduce the verdict in favor of the plaintiff to $2,751.00.  Unless the plaintiff files a notice with the court accepting this order of remittitur within thirty days of the date of this order, the verdict for the plaintiff shall be set aside and a new trial ordered on plaintiff's complaint as required by General Statutes § 52–216a.  The verdict on the counterclaim in favor of the defendant was not challenged and shall remain at $4,374.00.  If the remittal is accepted, the resultant verdict will be of $1,623.00 in favor of the defendant.  On the plaintiff's motion for attorneys fees and costs, the court will award the plaintiff $31,824.00 in attorneys fees plus $1,545.52 for costs upon entry of judgment, if the remittitur is accepted.  The court shall enter a final judgment consistent herewith after 30 days, or after receipt of the plaintiff's acceptance of the remittal order, whichever occurs earlier.

I

General Statutes §§ 52–216a, 52–228b and Practice Book § 16–35 provide for motions to set aside the verdict and for new trials and for additurs to remedy erroneous jury verdicts.  The standard of review governing such motions is well-settled.  “The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence ․ [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles ․ Ultimately, [t]he

When considering a motion for additur, “[i]t is the court's duty to set aside the verdict when it finds that it does manifest injustice, and is ․ palpably against the evidence ․ The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, mistake or corruption ․” (Citation omitted;  internal quotation marks omitted.)  Ng v. Wal–Mart Stores, 122 Conn.App. 533, 536, 998 A.2d 1214 (2010).

“The amount of a damage award is a matter peculiarly within the province of the trier of fact ․ and if, on the evidence, the jury could reasonably have decided as they did, [the reviewing court] will not find error in the trial court's acceptance of the verdict.”  (Citations omitted;  internal quotation marks omitted.)  Childs v. Bainer, 235 Conn. 107, 121, 663 A.2d 398 (1995).  In Wichers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000) (en banc), the seminal case on the subject, our Supreme Court stated:

[T]he jury's decision ․ is best tested in light of the circumstances of the particular case before it.  Accordingly, the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had failed in his proof of the issue.  That decision should be made, not on the assumption that the jury made a mistake, but, rather, on the supposition that the jury did exactly what it intended to do.

As we previously have stated, although the trial court has a broad legal discretion in this area, it is not without its limits.  “Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury;  Rickert v. Fraser, 152 Conn. 678, 681, 211 A.2d 702 (1965);  the court's action cannot be reviewed in a vacuum.  The evidential underpinnings of the verdict itself must be examined.  ‘Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached.’  Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846 (1940).”  Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980).  “[I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work their will.”  Id., 419.

Wichers v. Hatch, supra, 252 Conn. 188–89.

Concerning the constitutional rights at stake in this exercise, the Supreme Court, in that case, said:

“The right to a jury trial is fundamental in our judicial system, and this court has said that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court.”  Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970).  Because in setting aside the verdict, the trial court deprives the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury, our role generally is to examine the evidential basis for the verdict itself to determine whether the trial court abused its discretion.  Palomba v. Gray, 208 Conn. 21, 25, 543 A.2d 1331 (1988).

Wichers v. Hatch, Id.

Motions for Remittitur are available under General Statutes §§ 52–216a, 52–228b and Practice Book § 16–35. § 52–216a provides, in pertinent part, as follows:

If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial.

General Statutes § 52–216a.

In applying this rule, our Supreme Court has long held that the assessment of damages is “peculiarly within the province of the jury, whose determination will be set aside only when it appears that the sum awarded is plainly excessive and exorbitant.”  Rutkowski v. Connecticut Light & Power Co., 100 Conn. 49, 55, 123 A.2d 25 (1923).  To warrant setting a verdict aside on this ground, the court must find that the verdict “so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.”  Briggs v. Becker, 101 Conn. 62, 66 124 A.2d 826 (1924);  accord, Gilliard v. Van Court Property Management Services, Ltd., 63 Conn.App. 632, 644, 777 A.2d 745 (2004);  see, generally, R. Bollier and S. Busby, 2 Stephenson's Connecticut Civil Procedure (3rd Ed., 2003) § 196(b).

“[A]lthough the trial court has a broad legal discretion in this area, it is not without its limits.”  Wichers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000).  “Litigants have a constitutional right to have factual issues resolved by the jury ․ This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded ․ The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury.”  (Citation omitted;  internal quotation marks omitted.)  Ham v. Greene, 248 Conn. 508, 536, 729 A.2d 740, cert. denied, 528 U.S. 929 (1999).  “Similarly, [t]he credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury.”  (Citation omitted;  internal quotation marks omitted.)  Childs v. Bainer, 235 Conn. 107, 112, 663 A.2d 398 (1995).

In ruling on a Motion for Remittitur, the court should not act as the seventh juror with absolute veto power.  Whether the court would have reached a different result is not itself decisive.  “The court's proper function is to determine whether the evidence, viewed in a light most favorable to the prevailing party, reasonably supports the jury's verdict.”  (Citation omitted.)  Campbell v. Gould, 194 Conn. 35, 40, 478 A.2d 596 (1984).

Plaintiff's motion for attorneys fees is claimed by reason of fact that she prevailed on her claim of violation of the Connecticut Unfair Trade Practice Act (CUTPA), General Statutes § 42–110a et seq.  That act provides, in pertinent part, as follows:  “In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery.”  General Statutes § 42–110g(d).  “An award of attorneys fees is not a matter of right.  Whether any award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case ․ Additionally, the amount of attorneys fees that the trial court may award is based on the work reasonably performed by an attorney and not on the amount of recovery.”  (Citations omitted;  internal quotation marks omitted.)  Thorsen v. Durkin Development, LLC, 129 Conn.App. 68, 76–77, 20 A.3d 707 (2011).  “One who prevails on a CUTPA claim may be “clearly entitled” to such fees and costs, but it is an “undisputed requirement that the reasonableness of the attorneys fees and costs must be proven by an appropriate evidentiary showing.”  Barco Auto Leasing Corp. v. House, 202 Conn. 106, 120–21, 520 A.2d 162 (1987).

II

Proceedings in this case occurred on February 17, 18, 19, 23, 24, 25, and March 1, 2, and 3, 2016.  The jury heard the testimony of Bonnie Stellenwerf, Peter Biscuti, Christopher Bodiere, Adriene Merry, Mark Shirley, John Robbins, Jr. and Jeffrey Decker.  It also reviewed numerous correspondence, e-mails, text messages, video, photographs, records and other types of documents introduced as exhibits in the case.

The jury could have reasonably found as follows:  In 2013, the defendant was interested in renting a single-family home he owned located at 11 Fanning Road in Ledyard, CT because he was planning on living in South Carolina.  The plaintiff wanted to rent a house because she needed space to store equipment for her carpet cleaning business.  She saw the property and liked it.  She hoped to live there for many years.  The plaintiff signed a rental agreement to rent 11 Fanning Road on October 17, 2013.  The agreement called for a term of one year, beginning November 15, 2013.  The tenant agreed to pay the landlord the sum of $2,000.00 per month, due and payable on the 15th day of each month with a 10–day grace period.  If not paid within the grace period, the agreement called for, inter alia, a $100.00 late fee.  It also called for a bad check service charge of $25.00.

The agreement called for a security deposit as follows:

Tenants hereby agree to pay a security deposit of $2000 to be refunded upon vacating, returning the keys to the Landlord and termination of this contract according to other terms herein agreed.  This deposit will be held to cover any possible damage to the property.  It will be held intact by Landlord until at least thirty (30) working days after Tenants have vacated the property.  At that time Landlord will inspect the premises thoroughly and assess any damages and/or needed repairs.  This deposit money minus any necessary charges for missing/dead light bulbs, repairs, cleaning, etc. will then be returned to Tenant with a written explanation of deductions, within 60 days after they have vacated the property.

Rental Agreement, para. 6 (emphasis in original).

As for alterations and damage, the agreement provided as follows:

Tenant shall make no alterations, decorations, additions, or improvements in or to the premises without Landlord's prior written consent, and then only by contractors or mechanics, or other approved by Landlord.  All alterations, additions or improvements upon the premises, made by either party, shall become the property of the Landlord and shall remain upon, and be surrendered with said premises, as a part thereof, at the end of the term hereof.

They acknowledge that they will be responsible for and pay any damage done by rain, wind, hail, tornadoes, etc., if this damage is caused by leaving windows open, allowing stoppage and/or overflow or water and/or sewage pipes, broken windows or doors, torn screens, broken door and window locks, etc. or any damage caused while Tenant has occupancy.

Rental Agreement, para. 17.

The agreement further permitted the defendant access to the property as follows:

The Owner reserves the right to enter the residence at reasonable times to inspect, make necessary repairs, supply services, or show it to prospective residents, purchasers, workmen or contractors.  Whenever practicable, a 24–hour notice of the Owner's intent to enter shall be given to the Resident.

Rental Agreement, para. 25.

On October 8, 2013, the plaintiff paid to the defendant $2,000.00 for the security deposit and, on November 14, 2013, paid him $4,000.00 for the first and last month's rent.  Contrary to statutory requirements, the defendant did not open an escrow account for the security deposits.  He commingled the deposits with other funds in a general account.

The plaintiff commenced occupancy in November 2013 with her pet dog and her son, Mark Shirley.  Despite some late payments and a check that bounced, the plaintiff eventually made payments and continued to occupy the property into 2014.  In April 2014, a decorative stone wall in front of the house was damaged, presumably by a delivery vehicle.  The plaintiff paid for it to be repaired for $350.00.

At the beginning of the tenancy, the defendant lived and worked in South Carolina, but he moved back to Connecticut in March 2014.  He rented other property when he returned at the rate of $1,000.00 per month.  From time to time, he visited 11 Fanning Road to retrieve items used in his contracting business stored in a shed on the property.  He also stored items in an unfinished portion of the basement of the house.  He also returned, from time to time, to store firewood on the property.  Through an informal arrangement with the plaintiff, he would call in advance to say he was coming to access the property, and the plaintiff would routinely allow him access.

In March 2014, the defendant alerted the plaintiff to the fact that he would not be able to rent the property to her after the lease expired in November 2014 as he had decided to resume living at 11 Fanning Road. The plaintiff was upset, as it was her desire to stay at 11 Fanning Road for many years.  She even discussed the purchase of the property with the defendant, but no agreement was reached.  Eventually, she resigned herself to moving and commenced a search for alternative housing.  In the event that she found a new place and needed to move quickly, she requested, and received, an agreement from the defendant to terminate the lease early without penalty for early termination.  The parties signed a Connecticut Lease Termination form on April 30, 2014 calling for termination of the lease on May 14, 2014.  They subsequently agreed to change the termination date to July 15, 2014.

In anticipation of the availability of 11 Fanning Road, the defendant terminated his rental agreement for the property he was occupying in Connecticut.  As the deadline to move approached, the defendant began moving his, and his girlfriend's, belongings to 11 Fanning Road. On June 17, 2014, the plaintiff observed the defendant moving items belonging to her from a shed on the property and roughly throwing them into his pickup truck.  He put her items in the garage, but she later discovered that some items were missing and she later accused him of theft in this lawsuit.

To speed the plaintiff's removal from the property, the defendant offered to help her move.  The plaintiff accepted.  On the morning of June 19, 2014, at 6:45 a.m., the defendant sent a text message to the plaintiff announcing that he would be on the property at 9 a.m. to start moving items.  The plaintiff responded that her family was still asleep, and told him she would call him later to let him know when to come.  The defendant decided to start moving things anyway, and arrived shortly after 8:39 a.m. The defendant and his girlfriend and another helper entered the finished portion of the basement, where the plaintiff's son, Mark Shirley, was in a bedroom.  Mark ran upstairs to complain to his mother after the unexpected intrusion, and the plaintiff went down to the basement and began arguing, loudly with the defendant.  The defendant lost his temper, approached the plaintiff and began shouting back.  Mark intervened and pushed the defendant.  The defendant fell to the ground.  The plaintiff's dog also intervened, and bit the defendant.  The defendant demanded that the police be called, claiming he was assaulted.  The police arrived.  Both the defendant and Mark were arrested.  For the next several days, the defendant sent text messages to the plaintiff giving her 24–hour advanced notice of his need for access to the property, although he never went to the property.  He stopped sending notices only after the plaintiff complained to him about the annoyance.  He sued the plaintiff, in an action separate from the instant case, over the dog bite.

After the incident in the basement, the defendant removed all remaining funds from the account holding the plaintiff's security deposit and closed the account.  The plaintiff's last month's rent was paid from the prepayment.  The plaintiff was completely moved out of 11 Fanning Road by the evening July 16, 2014.  She and Mark made videos of the property to document the condition of the property at that time.  She invited the defendant to inspect the property at that time, but the parties could not agree on a mutually convenient time.

On July 17, 2014, the plaintiff supplied the defendant with her forwarding address, and requested the return of her security deposit.  The defendant responded with arguments and told her not to bother him.  Next, on August 4, 2014, he sent her a list of charges against her security deposit as follows:

2 days rent into new month $ 133.33

1 week rent I had to pay due to your delay in vacating $ 250.00

Patch and paint dining room wall-excessive holes $ 200.00

Fix driveway $ 585.00

Top soil and seed to rebuild beside driveway $ 250.00

4 cords of wood used from wood pile $1,080.00

Re-key locks due to all keys not being returned $ 150.00

Garage door remote not returned $ 27.22

2 screens:  1 broken, 1 needed repair $ 75.00

Stairwell carpet replaced $ 707.56

Total $3,458.11

Less security deposit -$2,000.00

Amount due for damages $1,458.11

At trial, the parties put on evidence concerning each item.  The defendant also testified that his list was incomplete:  that he stopped listing charges against the security deposit once his damages exceeded the security deposit justifying his retention of the security deposit.  At trial he further claimed that the plaintiff damaged his fireplace by burning wood at too high a temperature, causing him a loss of $5,360.55;  that the stone wall needed further repair costing $1,600.00;  that his bedroom carpet needed to be replaced because it had been soiled by the dog, costing $1,424.00;  that the stamped concrete pavers in the front of the house were damaged by plaintiff and needed to be replaced at a cost of $4,740.00;  that hardwood floors needed to be refinished due to the plaintiff having applied a rock candy gloss without his approval, costing $2,400.00;  that the knobs on all of the cabinets needed to be replaced because the plaintiff broke one and the style was no longer in stock, costing $205.00;  and that glass in the dining room chandelier cracked and needed to be repaired at a cost of $400–450.00. At trial, the parties put on evidence concerning each item.

The plaintiff pursued her case in eleven counts:  Count One for failure to return security deposit;  Count Two for failure to credit interest to security deposit;  Count Three for failure to deposit security deposit into an escrow account;  Count Four for illegal entry onto premises;  Count Five for harassment;  Count Six for statutory theft;  Count Seven for trespass;  Count Eight for violation of the Connecticut Unfair Trade Practices Act (CUTPA);  Count Nine, bad faith;  Count Ten, unjust enrichment;  and Count Eleven, breach of contract.  She also requested punitive damages.  The defendant filed special defenses, and he sought damages against the plaintiff in a counterclaim and in a setoff claiming that the plaintiff damaged premises.  On the claims against the defendant, the jury rendered its verdict in favor of the plaintiff on Count One, failure to return security deposit;  Count Two, failure to credit interest to security deposit;  Count Three, failure to deposit security deposit into an escrow account;  Count Four, illegal entry onto premises;  Count Seven, trespass;  Count Eight, violation CUTPA;  and Count Eleven, breach of contract.  It rendered a verdict for the defendant on:  Count Five, harassment;  Count Six, statutory theft;  Count Nine, bad faith;  and Count Ten, unjust enrichment.  The jury further found that the plaintiff failed to prove grounds for punitive damages.  As to damages related to the security deposit violations, the jury awarded the plaintiff $700.00 for failure to return the security deposit on Count One;  $2.50 for failure to credit interest on Count Two;  zero for failure to deposit the security deposit in an escrow account on Count Three;  zero for the CUTPA violation on Count Eight;  zero for the bad faith claim in Count Nine and $750.00 on the breach of contract claim in Count Eleven or on the unjust enrichment claim in Count Ten. The jury added the damages resulting in a subtotal of $1,452.50.  As to damages related to the entry, the jury awarded the plaintiff $2,000.00 for illegal entry on Count Four;  zero for harassment on Count Five;  zero for statutory theft on Count Six;  $500.00 for trespass on Count Seven;  $1.00 for violating CUTPA and $750.00 for breach of contract on Count 11.  Adjusting for duplication of damages, the subtotal was $2,001.00.  Thus, the total damages awarded to the plaintiff were $3,453.50.  With regard to the defendant's counterclaim and setoff, the jury found in favor of the defendant and awarded him $4,374.00.

III

The issues raised by the parties in their various motions are addressed seriatim.

In her motion for additur, the plaintiff argues that the jury's award of $700.00 under Count One of the complaint, for failure to return her security deposit, was inadequate because under the applicable statute, she was entitled to $8,000.00.  The court is not persuaded.

The plaintiff's argument is based on her reading of the Connecticut Landlord and Tenant Act, which provides, in pertinent part, as follows:

Upon termination of a tenancy, any tenant may notify his landlord in writing of such tenant's forwarding address.  Within thirty days after termination of a tenancy, each landlord other than a rent receiver shall deliver to the tenant or former tenant at such forwarding address either (A) the full amount of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of this section, or (B) the balance of the security deposit paid by such tenant plus accrued interest as provided in subsection (i) of this section after deduction for any damages suffered by such landlord by reason of such tenant's failure to comply with such tenant's obligations, together with a written statement itemizing the nature and amount of such damages.  Any such landlord who violates any provision of this subsection shall be liable for twice the amount or value of any security deposit paid by such tenant, except that, if the violation is the failure to deliver the accrued interest, such landlord shall only be liable for twice the amount of such accrued interest.

General Statutes § 47a–21(d)(2) (emphasis added).

The term “security deposit” in this context means “any advance rental payment other than an advance payment for the first month's rent and a deposit for a key or any special equipment.”  General Statutes § 47a–21(10).

On this issue, in addition to reciting the above pertinent statutory provisions to the jury, the court instructed the jury as follows:  “The language of the statute allows for a landlord to deduct from a tenant's security deposit actual damages, not damages that were neither suffered by the landlord nor created by the tenant's failure to comply with her obligations.  Damages cannot be simply fabricated by the landlord.”  Jury Charge, para. 6. As to damages, it instructed as follows:

With respect to the plaintiff's claims that the defendant violated the statutes regarding the failure to return the security deposit and interest at the termination of the tenancy, the law provides that any such landlord who violates the requirements of the statute shall be liable for twice the amount of the value of the security deposit paid by such tenant, except that, if the violation is the failure to deliver the accrued interest, such landlord shall only be liable for twice the amount of such accrued interest.  In other words, if the defendant landlord failed to return the security deposit, you may award double the security deposit.  If he also failed to pay the accrued interest required by the statute, you may award double interest.  If he only failed to pay the accrued interest, you may only award double interest.

Jury Charge, para. 14.

Plaintiff argues that her security deposit in this case consisted of $2,000.00 that she paid to the defendant in October 2013 for the security deposit, and an additional $2,000.00 that she paid in November 2013 for the last month's rent paid in advance.  Therefore, her total security deposit, as defined by the statute, was $4,000.00.  Since the jury rendered its verdict in her favor on Count One for failing to return her security deposit, it should have awarded her twice the security deposit, i.e., $8,000.00, she argues.  The court is not persuaded.  First, the evidence in the case showed that the prepayment of the last month's rent was applied to the last month's rent debt as agreed between the parties, so that amount was not improperly retained by the defendant.  Second, by awarding the plaintiff only $700.00 damages on Count One, the jury evidently concluded that the landlord properly retained a portion of the $2,000.00 security deposit paid in October 2013 due to damage caused by the plaintiff as permitted by statute.  There certainly was enough evidence in the case for the jury to find that the plaintiff caused damage, but that all of the defendant's assessments were not merited.  There was certainly enough evidence in the case for the jury to have concluded that the landlord's list of damages included some ineligible items and/or that he overvalued his damages.  Absent proof that the landlord illegally retained the entire security deposit, or fabricated all of his damages, the sanction of double damages on the entire security deposit was not appropriate.  Cf. Carillo v. Goldberg, 141 Conn.App. 299, 61 A.3d 1164 (2013).  The statute only exacts a penalty equal to one hundred percent of the plaintiff's actual damages.  Littas v. Burrows, Superior Court, Doc. No. CV 93–092710 (November 27, 1996, Tierney, J.) [18 Conn. L. Rptr. 282].  Thus, the jury properly declined to award double damages on all of the original security deposits.  Instead, it properly awarded double damages on the amount improperly retained.

B

The defendant asks the court, in his motion for remittitur, to order that the verdict be reduced in three particulars.

First, as to the jury's award of $750.00 for breach of contract as to the defendant's violation of plaintiff's security deposit rights in Count Eleven, the defendant moves the court to order that $750.00 be remitted from the plaintiff's total verdict of $3,453.50 because there was no evidence of damages beyond the $702.50 awarded for violation of those same rights under Counts One, Two and Three.  For the following reasons, the court agrees with the defendant that a remittance is in order, but not as defendant calculates.

Counts One, Two and Three were for violation of plaintiff's statutory rights for return of her security deposit, failure to credit interest to the security deposit and failure to deposit the security deposit into an escrow account.  The court instructed the jury as follows:

Count One:  Failure to Return Security Deposit

The First Claim is in Count One of her complaint.  It alleges that the defendant violated General Statutes § 47a–21(d) by failing to return her security deposit to her at the termination of her tenancy.  General Statutes § 47a–21(d) provides, in pertinent part, as follows:  “Upon termination of a tenancy, any tenant may notify his [or her] landlord in writing of such tenant's forwarding address.  Within thirty days after termination of a tenancy each landlord ․ shall deliver to the tenant or former tenant at such forwarding address either (A) the full amount of the security deposit paid by such tenant plus accrued interest ․ or (B) the balance of the security deposit paid by such tenant plus accrued interest ․ after deduction for any damages suffered by such landlord by reason of such tenant's failure to comply with such tenant's obligation, together with a written statement itemizing the nature and amount of such damages.”  The term “security deposit” is defined by statute as “any advance rental payment other than an advance payment for the first month's rent and a deposit for a key or any special equipment.”  The language of the statute allows for a landlord to deduct from a tenant's security deposit actual damages, not damages that were neither suffered by the landlord nor created by the tenant's failure to comply with her obligations.  Damages cannot be simply fabricated by the landlord.

Count Two:  Failure to Credit Interest to Security Deposit

In Count Two, the plaintiff alleges that the defendant violated General Statutes § 47a–21(i) by failing to credit the plaintiff interest on her security deposit during her tenancy.  In this regard, General Statutes § 47a–21(i) provides, in pertinent part, as follows:  “[E]ach landlord ․ shall pay interest on each security deposit received by such landlord ․ [T]he rate for each calendar year shall be not less than the deposit index [as published in the Department of Banking news bulletin] ․ for that year.  On the anniversary date of the tenancy and annually thereafter, such interest shall be paid to the tenant or resident or credited toward the next rental payment due from the tenant or resident, as the landlord or owner shall determine.  If the tenancy is terminated before the anniversary date of such tenancy, or if the landlord or owner returns all or part of a security deposit prior to termination of the tenancy, the landlord or owner shall pay the accrued interest to the tenant or resident not later than thirty days after such termination or return.  In any case where a tenant or resident has been delinquent for more than ten days in the payment of any monthly rent, such resident or tenant shall forfeit any interest that would otherwise be payable to such resident or tenant for that month, except that there shall be no such forfeiture if, pursuant to a provision of the rental agreement, a late charge is imposed.  The parties agree that deposit index applicable in this case was .11 percent per annum in 2013 and .09 percent per annum in 2014.

Count Three:  Failure to Deposit the Security Deposit into an Escrow Account

In Count Three, the plaintiff alleges that the defendant violated General Statutes § 47a–21(h) by failing to deposit her security deposit into an Escrow Account.  In this regard, General Statutes § 47a–21(h) provides, in pertinent part, as follows:  “Each landlord shall immediately deposit the entire amount of all security deposits received by him ․ from his tenants into one or more escrow accounts for such tenants in a financial institution.  Such landlord shall be escrow agent of such account.  The term “escrow agreement” is defined by statute as “any account at a financial institution which is not subject to execution by the creditors of the person in whose name such account is maintained and includes a client's fund account.”

Jury Charge, para. 6.

On these counts the jury awarded a cumulative verdict of $702.50.  There was certainly enough evidence for the jury to conclude that the defendant violated the statutes by subtracting too much from the plaintiff's security deposit for damage caused to the property and for not giving her interest on the security deposit as defined by the statutes for a total of $702.50, including double damages.

The grounds for violation in Count Eleven, in pertinent part, concerned the same subjects.  As the court instructed the jury:

Count Eleven is for breach of contract.  The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party, and damages.  Here, the plaintiff alleges that she and defendant entered into a written contract under which the defendant agreed to lease 11 Fanning Road in exchange for, among other things:  (a) that the plaintiff pay a security deposit to the defendant, to be returned at the end of the lease;  (b) that the defendant pay interest on the security deposit;  (c) that the defendant deposit the plaintiff's security deposit in a separate escrow account;  (d) that the defendant not comingle the plaintiff's security deposit with his own funds ․ She alleges that she fulfilled her obligation, but that the defendant did not, and that she suffered damages, when the defendant breached his contract when he:  (a) failed to return the security deposit;  (b) failed to credit the plaintiff interest on her security deposit;  (c) failed to put the plaintiff's security deposit in a separate escrow account ․

Jury Charge, para. 6.

The jury awarded the plaintiff $750.00 on that count.  There was certainly enough evidence for the jury to conclude that the defendant breached his contract by subtracting too much from her security deposit for damage caused to the property and for violating the other provisions of the contract relating to her security deposit totaling $750.00.¹  However, the jury then added the two and awarded a total of $1,452.50 of damages related to the security deposit.

Since the plaintiff was claiming damages for the same injuries on four different legal theories, there was a potential for the jury to award damages for the same injury multiple times.  That is not permitted.  “A plaintiff may be compensated only once for his just damages for the same injury.”  (Citation omitted;  internal quotation marks omitted.)  Virgo v. Lyons, 209 Conn. 497, 509, 551 A.2d. 1243 (1988).  Also, inasmuch as the legal tests were different on the different theories, there was a potential for different damage awards.  See Jury Charge, para. 14.  The parties and the court anticipated such a problem and the court instructed the jury on how to avoid the problem.  The verdict form also included the following special instruction:

Reminder:  The plaintiff cannot recover more than once for the same injury, even if she prevails on several counts.  If damages are found for the same injury on more than one count, report the highest damages award only.

Since it appears that the plaintiff was awarded $702.50 for damages on Counts One, Two and Three and another $750.00 on Count Eleven for the same injury, the jury should have reported only the higher amount once in its subtotal.  Since the $750.00 award was the higher amount, the court will order the plaintiff to remit the lower award of $702.50 from the verdict.

The remitted sum would reduce the total verdict in favor of the plaintiff to $2,751.00.  Unless the plaintiff files a notice with the court accepting this order of remittitur within thirty days of the date of this order, the verdict shall be set aside and a new trial ordered on the plaintiff's complaint, as required by General Statutes § 52–216a.  See Schroeder v. Triangulum Associates, 259 Conn. 325, 334, 789 A.2d 459 (2002) (generally, issues of liability and damages are interwoven;  plaintiff did not attempt to show that justice requires that as new trial be limited to issue of damages only).

Second, the defendant argues that the jury's award of $500.00 for trespass on Count Seven should be remitted because, “[t]he $500 seems like an arbitrary number that was awarded without basis of any actual damages.”  Defendant's Motion for Remittitur, p. 2. The motion is denied on this point.  The jury, correctly this time, did not add this to its verdict because it also awarded the plaintiff $2,000.00 for statutory illegal entry under Count Four. Having already awarded the plaintiff damages for the same injury under a different count, and having not included the award in its verdict, the defendant's issue is moot.

Third, the defendant argues that the jury's verdict of $750.00 for breach of contract for the entry should be remitted because there was no evidence or proof of any actual damages.  Here, again, the jury did not add this to the verdict because it previously awarded the plaintiff $2,000.00 for statutory illegal entry under Count Four. Having already awarded the plaintiff damages for the same injury under a different count, and having not included the award in its verdict, the defendant's issue is moot.

C

In her motion for attorneys fees and costs, as supplemented, the plaintiff seeks an award of $52,270.00 in attorneys fees and $1,545.52 in costs in this case.  She claims eligibility for such an award due to the fact that the jury rendered a verdict in her favor on her CUTPA claim and awarded her $1.00.  As previously noted, awards of attorneys fees and costs in CUTPA cases are not of right, but are within the discretion of the court regardless of the size of the verdict.  General Statutes § 42–110g(d) (“In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery”).  For the following reasons, the court will award attorneys fees and costs to the plaintiff in this case upon entry of a final judgment if the remittitur is accepted, but not for the full amount requested.

Defendant argues that no attorneys fees or costs should be awarded in this case because the plaintiff perpetuated and escalated the conflict, that she engaged in excessive litigation, spent too much time on certain matters and failed to make a reasonable settlement demand.  In an effort to portray the plaintiff as unreasonable, the defendant chronicled the lengthy settlement negotiations between the parties, including negotiations to sell the house to the plaintiff, in an effort to persuade the court that plaintiff deliberately protracted the litigation for the sole purpose of obtain a large attorneys fee award.  The court is not persuaded.  The court observes that defendant's evidence on this point shows that the plaintiff offered to settle the case for $4,500.00 on September 22, 2014, long before litigation even commenced, and the defendant rejected the offer.  As the litigation dragged on, and the plaintiff's attorney spent more time preparing the case, her attorneys fees and costs increased, but the defendant refused to recognize that reality.  As defendant's witness testified at the hearing on the motion for attorneys fees, the plaintiff was equally upset at the high attorneys fees that she had incurred.  She was not able to settle for zero after jury selection started, as defendant proposed.  Consequently, the court finds that the build-up of pre-trial fees and costs were due, in part to the defendant's continuous intransigence.

Defendant argues that no attorneys fees or costs should be awarded because the plaintiff chose to litigate to a jury as opposed to other, less time consuming and less expensive forms dispute resolution, such as mediation, arbitration or even a bench trial.  Again, the court is not persuaded.  The plaintiff had a right to have her CUTPA claim heard by a jury.  General Statutes § 42–110g(g).  While the court always encourages alternative dispute resolution and other efficiencies in the administration of justice, it would be inappropriate for the court to even appear to penalize the plaintiff for exercising her right to have the matter heard by a jury.  See State v. Elson, 311 Conn. 726, 781, 91 A.3d 862 (2014).

Defendant argues that no attorneys fees should be awarded because the plaintiff took too much time litigating certain matters.  The court does share the defendant's frustration with the length of time it took to try this case.  Nine full trial days were spent litigating a landlord tenant dispute primarily triggered over the landlord's retention of a small security deposit plus an intrusion.  The court, in fact, on several occasions urged counsel to find a way to streamline the presentation of evidence.  Counsel tried, and in some instances succeeded, but the court observed that the defendant was only willing to concede points or stipulate to evidence or shorten matters if it benefitted him or disadvantaged the plaintiff.  The length of the trial was due, in part, to the fact that the defendant was claiming that he was not required to return the security deposit, and he counterclaimed for damages, alleging that the plaintiff damaged at least seventeen items.  Under our cumbersome rules of practice and rules of evidence, that obligated the plaintiff to present before and after evidence on the condition of each item, including publishing to the jury time-consuming video and photographic evidence.  However, many of the photographs and videos were of poor quality and of dubious value.  The defense repeated the exercise on cross examination and during defendant's case, and put on expert witness testimony on some points.  The illegal entry claims were similarly, thoroughly contested, resulting in lengthy testimony from numerous witnesses.  The presentation of evidence took so long that one alternate juror needed to be excused due to work obligations.  Once the presentation of evidence finally ended, it took the jury three days to decide the case, reflecting the multitude of facts it needed to consider and the many legal issues it needed to resolve.  In sum, the defendant was partly responsible for the length of the trial and cannot blame the plaintiff for proving a case the defendant refused to concede.  However, some of defendant's points can be considered in adjusting the lodestar, discussed infra.

Additionally, the defendant argues that no attorneys fees and costs should be awarded because the plaintiff's overall extent of success achieved was minimal compared to the monetary amount awarded by the jury, and based the fact that the jury awarded the defendant more for damages on his counterclaim than it awarded the plaintiff on her complaint.  The defendant is factually accurate, but the court is not persuaded that this should result in no attorneys fees.  The amount involved and results obtained are factors that the court can look at in awarding attorneys fees under CUTPA.  Jacques All Trades Corp. v. Brown, 57 Conn.App. 189, 198, 752 A.2d 1098 (2000).  But, the amount of recovery cannot be the only factor.  Steiger v. J.S. Builders, Inc., 39 Conn.App. 32, 39, 663 A.2d 432 (1995).  In fact, the statute specifies that attorneys fees cannot be based on the amount of recovery.  General Statutes § 42–110g(d).  However, some of defendant's points can be considered in adjusting the lodestar, discussed infra.

Whether attorneys fees and costs should be awarded is a matter left to the discretion of the trial court, and the appellate courts will not interfere with the trial court's exercise of this discretion unless there is manifest abuse or injustice appears to have been done.  Jacques All Trades Corp. v. Brown, 42 Conn.App. 124, 131, 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997).  In this regard, though, our appellate courts have recognized that it is “[t]he public policy underlying CUTPA to encourage litigants to act as private attorney's general and to engage in bringing actions that have as their basis unfair or deceptive trade practices ․ In order to encourage attorneys to accept and litigate CUTPA cases, the legislature has provided for the award of attorneys fees and costs ․ Once liability has been established under CUTPA, attorneys fees and cost may be awarded at the discretion of the court.”  (Citations omitted;  internal quotation marks omitted.)  Id., 130–31.

In the instant case, there was certainly sufficient evidence for the jury to conclude that the defendant landlord violated CUTPA by manipulating and taking advantage of his tenant.  The plaintiff demonstrated that the defendant bullied her.  He disrespected her right to quiet enjoyment of the property.  He used unfair tactics to get his way resulting in violence.  However, the prospect for a large monetary award for the plaintiff was very low in this case.  In fact, the jury only awarded nominal damages of $1.00 for the CUTPA violation concerning the illegal entry, apparently due to the difficulty in valuing plaintiff's ascertainable loss.  The fact that a plaintiff fails to prove a particular loss or the extent of the loss does not foreclose the plaintiff from obtaining attorneys fees pursuant to CUTPA.  Service Road Corp. v. Quinn, 241 Conn. 630, 644, 698 A.2d 258 (1997).  Allowing attorneys fees and costs to the plaintiff would be consistent with the policies behind the legislation of encouraging consumers to fight for their rights against those who engage in unfair trade practices even though the prospect for a monetary reward is low.  There are no persuasive countervailing reasons why attorneys fees and costs should be barred in this case.  Accordingly, the plaintiff is clearly entitled to some attorneys fees and costs.

“The initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate ․ The courts may then adjust this lodestar by other factors [outlined in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974) ] ․ The Johnson factors may be relevant in adjusting the lodestar amount, but no one factor is a substitute for multiplying reasonable billing rates by a reasonable estimate of the number of hours expended on the litigation.”  (Citation omitted.)  Whitney v. J.M. Scott Associates, Inc., 164 Conn.App. 420, 435 (2016);  Steiger v. J.S. Builders, Inc., supra, 39 Conn.App. 39.  The Johnson factors call on the court to consider:  “(1) the time and labor required;  (2) the novelty and difficulty of the questions;  (3) the skill requisite to perform the legal service properly;  (4) the preclusion of other employment by the attorney due to acceptance of the case;  (5) the customary fee for similar work in the community;  (6) whether the fee is fixed or contingent;  (7) time limitations imposed by the client or the circumstances;  (8) the amount involved and the results obtained;  (9) the experience, reputation and ability of the attorneys;  (10) the undesirability of the case;  (11) the nature and length of the professional relationship with the client;  and (12) awards in similar cases.”  (Citation omitted;  internal quotation marks omitted.)  Jacques All Trades Corp. v. Brown, supra, 57 Conn.App. 198.

The plaintiff's counsel submitted at hearing highly detailed billing statements and time sheets documenting the professional services rendered and costs charged in this case in support of plaintiff's motion for attorneys fees and supplemental motion.  The records showed that, since March 2, 2015, plaintiff's counsel billed for 261.5 hours of work at $200.00 per hour for a total of $52,300.00, plus costs of $1,545.52.  For reasons similar to his reasons for urging an award of no attorneys fees, the defendant argues that the lodestar should be drastically reduced to a nominal $2,500.00.  He does not address the request for costs.  There can be no doubt that plaintiff's counsel devoted a significant amount of time on this case, but there were multiple factual issues, eleven counts, special defenses and counterclaims.  For the same reasons the court found that attorneys fees are deserved in this case, the court finds that a drastic reduction to an arbitrary level of $2,500.00 would be an abuse of discretion.  See Carrillo v. Goldberg, 141 Conn.App. 299, 317, 61 A.3d 1164 (2013).  Alternatively, defendant proposes other, similarly arbitrary reductions to the hours expended for nearly all tasks, leaving an award of $26,680.00.  Likewise, any such arbitrary reduction of the award would be an abuse of discretion.  However, several factors persuade that court that an adjustment to the lodestar would be appropriate, discussed infra.

Starting with the initial estimate of attorneys fees at $52,300.00, the court finds that some of the charges in the plaintiff's accounting are inaccurate or ineligible.  In particular, on March 24, 31 and July 28, 2015, counsel charged for $300.00 for spending 1.5 hours on the dog bite litigation between the parties.  That involved a different case and there is no evidence that the plaintiff prevailed.  Those charges cannot be included in the present case.  On April 29, 2015 and on January 20, 2016, counsel charged $140.00 for spending .7 hours explaining his fees to his client.  That did not involve the litigation and will not be allowed.  On February 8, 2016, counsel charged $1,600.00 for 8 hours in jury selection and on February 11, 2016, he charged $1,300.00 for 6.5 hours in jury selection, however, those were admitted to have been entered erroneously.  Those charges will not be allowed.  That leaves an award of $48,960.00 in the initial estimate, or lodestar.

The court further finds that of the Johnson factors indicate that a downward adjustment in the lodestar would be in order.  The court's findings are as follows:  With respect to time and labor required, the court finds that usually only one junior attorney billed for all of the work, but the time expended and tasks performed were disproportionate to the stakes.  Much unnecessary time was spent preparing and presenting photographs and videos that were of poor quality and of dubious value.  As to the novelty and difficulty of the questions, the court finds that the issues were not overly complex, but were made complicated and time consuming by their volume.  As to the skill requisite to perform the service properly, the court finds that no extraordinary skill was required.  Indeed, plaintiff's counsel was a young lawyer and this was his first jury trial.  As for preclusion of other employment, the court finds no evidence of such sacrifice in this case.  As for customary fee, the court finds that the rate of $200.00 per hour was modest.  As for fee arrangement, the court finds that the plaintiff's contract called for an hourly rate, demonstrating that the total charge would be the result of the time expended.  As for time limitations, the court finds that this case commanded no extraordinary priority.  As to the amount involved and results obtained, the court finds that the results in this case were not rewarding.  In fact, the defendant's damages award in his counterclaim exceeded the plaintiff's damages.  The plaintiff's rights were vindicated, both on the security deposit and intrusion issues, as encouraged by CUTPA.  However, the overall extent of success achieved was minimal compared to the effort expended.  While not solely to blame for the length of the litigation, plaintiff's counsel spent an unnecessary amount of time preparing and presenting evidence of dubious value.  As to the experience, reputation and ability of the attorneys, the court finds that one junior attorney handled this matter, and it was his first jury trial.  As to the undesirability of the case, the court finds that this case was not unpopular and pursuit of this case required no special courage.  As for the nature and length of the professional relationship with the client, the court finds no evidence of a longstanding professional relationship in this case.  As for awards in similar cases, the court observes that in cases where attorneys fees are awarded in pursuant to CUTPA, attorneys fees are often awarded based on the reasonable time expended and reasonable rates, and the results vary depending on the circumstances.  Thus, in one case, the court was found to have properly awarded $19,413.50 in attorneys fees for a violation of CUTPA even though the prevailing party suffered no actual damages.  See, e.g., Jacques All Trades Corp. v. Brown, supra., 57 Conn.App. 195.  In another case, the Appellate Court reversed a Superior Court decision in a CUTPA case concerning a landlord/tenant dispute over a security deposit that awarded only $2,500.00 when $35,000.00 in attorneys fees were incurred.  See Carrillo v. Goldberg, supra, 141 Conn.App. 316.  Inasmuch as each case takes a different amount of time and involves different issues, a comparison of awards is not of much value.  However, this court observes that, if no lodestar decrease was appropriate, the total sum requested in this case would not be out of line with similar cases with similar numbers of factual and legal issues that need to be researched, prepared and proven at trial.  However, a lodestar decrease is appropriate.

A review of Johnson factors reveals that a downward adjustment of the lodestar is indicated in several categories, particularly due to the results obtained compared with the excessive effort expended.  “A key consideration in evaluating [a claim for litigation expenses] is the overall extent of the success achieved.  Where a party succeeds on his [statutory] claim, but fails on other claims brought in the same suit, the size of his [attorneys fee] award should reflect his success, as determined by the trial court in securing redress for the injuries that prompted his [statutory] claim and reasonable legal cost incurred in pursuing this success.  Consequently, even when the plaintiff's claims are interrelated, the lodestar amount may be excessive when the plaintiff has achieved only partial or limited success ․ Again, the most critical factor is the degree of success obtained.”  (Citations omitted.)  Metcoff v. NCT Group, Inc., 52 Conn.Sup. 363, 376, 50 A.2d 1004 (2011), aff'd, 137 Conn.App. 578, 49 A.3d 282, cert. denied, 307 Conn. 924, 55 A.3d 566 (2012) (allowing only 40 percent of attorneys fees based, in part, on plaintiff's failure to prevail on numerous counts).  Considering the fact that the plaintiff succeeded on only seven of her eleven counts, proved less damages than she claimed, and ended up owing the defendant more money for damages that she caused compared to that awarded to her, and considering the other Johnson factors and based on the court's review of the file and familiarity with the proceedings, a downward adjustment on the lodestar allowing plaintiff 65 percent of her claimed attorneys fees would be fair.  That results in a lodestar of $31,824.00.

Finally, it is not entirely clear from the defendant's objections, but he seems to suggest that attorneys fees should be apportioned between work on the CUTPA claim, on which the plaintiff prevailed in part, and work on other claims, some of which did not allow attorneys fees and/or resulted in verdicts for the defendant.  The court is not persuaded.  It is true that the plaintiff was only successful on the CUTPA claims concerning the illegal entry and not on the CUTPA claims concerning the security deposit and, under the jury's verdict, no attorneys fees were available on any of the other counts.  However, there is no practical way to identify and segregate the work between counts or claims without being arbitrary.  The CUTPA claims encompassed all of the other claims in the case.  All of the factual development and all of the legal work on all of the claims were related or came from a common nucleus, were worked on concurrently, and all of the effort on the CUTPA claim contributed to the success of the other claims on which the plaintiff prevailed.  In such a circumstance, an apportionment of attorneys fees is neither practicable nor necessary.  See Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 325–33, 63 A.3d 896 (2013);  Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 195, 510 A.2d 972 (1986);  Noyes v. Antiques at Pompey Hollow, LLC, 144 Conn.App. 582, 597, 73 A.3d 794 (2013).

Accordingly, the court will award $31,824.00 in attorneys fees plus $1,545.52 for costs to the plaintiff in this case upon entry of a final judgment if the remittitur is accepted.

IV

For all of the foregoing reasons, the plaintiff's motion for additur is denied.  The defendant's motion for remittitur is granted, in part, in the amount of $702.50.  The remitted sum, if accepted by the plaintiff, would reduce the total verdict in favor of the plaintiff to $2,751.00.  Unless the plaintiff files a notice with the court accepting this order of remittitur within thirty days of the date of this order, the verdict for the plaintiff shall be set aside and a new trial ordered on plaintiff's complaint.  The verdict on the counterclaim in favor of the defendant was not challenged and shall remain at $4,374.00.  If the remittal is accepted, the resultant verdict will be for $1,623.00 in favor of the defendant.  On the plaintiff's motion for attorneys fees and costs, the court will award the plaintiff $31,824.00 in attorneys fees plus $1,545.52 for costs upon entry of judgment, if the remittitur is accepted.  The court shall enter a final judgment consistent herewith after 30 days, or after receipt of the plaintiff's acceptance of the remittal order, whichever occurs earlier.

Robert F. Vacchelli

Judge, Superior Court

FOOTNOTES

FN1. That the two damage awards for the same injuries were different was likely due to the different tests applicable to the different theories of recovery.  Neither party pursued interrogatories that might have caused the jury to explain the differences in detail and how it calculated its awards.  “Where there was an error free path available to the jury to reach its verdict, and no special interrogatories were submitted showing which road the jury went down, any judgment rendered on such a verdict must be affirmed.”  (Citation omitted.)  Jackson v. H.N.S. Management Co., 109 Conn.App. 371, 373, 951 A.2d 701 (2008)..  FN1. That the two damage awards for the same injuries were different was likely due to the different tests applicable to the different theories of recovery.  Neither party pursued interrogatories that might have caused the jury to explain the differences in detail and how it calculated its awards.  “Where there was an error free path available to the jury to reach its verdict, and no special interrogatories were submitted showing which road the jury went down, any judgment rendered on such a verdict must be affirmed.”  (Citation omitted.)  Jackson v. H.N.S. Management Co., 109 Conn.App. 371, 373, 951 A.2d 701 (2008).

Vacchelli, Robert F., J.