Bonan v. Goldring Home Inspections, Inc.

• Decision Date: 02 April 2002
• Docket Number: (AC 21210)
• Citation: 794 A.2d 997,68 Conn. App. 862
• Court: Connecticut Court of Appeals
• Parties: ELIZABETH BONAN v. GOLDRING HOME INSPECTIONS, INC.

68 Conn. App. 862

794 A.2d 997

ELIZABETH BONAN v. GOLDRING HOME INSPECTIONS, INC.

(AC 21210)

Appellate Court of Connecticut.

Argued November 30, 2001.

Officially released April 2, 2002.

Foti, Dranginis and Hennessy, JS. Marylouise S. Black, with whom, on the brief, were Robert M. Fleischer and Leslie L. Lane, for the appellant (plaintiff).

David J. Robertson, for the appellee (defendant).

Opinion

DRANGINIS, J.

In this case, the plaintiff, Elizabeth Bonan, appeals from the judgment rendered in her favor following a jury trial. On appeal, the plaintiff claims that she is entitled to a new trial because the trial court improperly (1) restricted her testimony on direct examination, (2) refused to charge the jury on her breach of contract claim or, in the alternative, blended her breach of contract claim with her negligence count in its instructions to the jury, (3) refused to charge the jury on the issue of the defendant's guarantee as set forth in her breach of contract count and (4) instructed the jury regarding her claim that the defendant violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On December 13, 1994, the plaintiff entered into a written contract to purchase a home in Norwalk for $750,000. Soon thereafter, the plaintiff received a mortgage commitment from National Westminster Bank for $350,000. Pursuant to the loan commitment, the plaintiff was required to provide to the bank, on or before the closing date, a satisfactory report regarding wood destroying insects prepared by a licensed pest control company.¹

To meet the loan commitments, the plaintiff, on January 4, 1995, entered into an oral contract with the defendant, Goldring Home Inspections, Inc., for it to conduct a visual inspection of the subject property. The defendant did not detect any major problems, and provided the plaintiff with a written inspection report and a satisfactory insect report, both indicating the lack of any visible signs of insect infestation. The plaintiff paid $650 to the defendant for the home inspection. The plaintiff subsequently closed on the purchase of the property on January 10, 1995.

Toward the end of March, 1995, the plaintiff noticed insects swarming in her solarium, which were later discovered to be termites. The plaintiff entered into a contract with OCON, Inc., to remediate the termite infestation. The plaintiff paid $2968 to OCON for its termite work. To treat the termite damage, insulation material and asbestos also had to be removed from crawl space in the wall. The plaintiff also had to replace woodwork in the solarium. The plaintiff allegedly discovered other problems with the home that she claims the defendant should have identified during the home inspection.

The plaintiff then filed an action against the defendant, alleging breach of contract, negligence and CUTPA violations. Following a jury trial, a verdict was rendered in the plaintiffs favor on the negligence count only, and damages were awarded to her in the amount of $2968. This appeal followed. Additional facts will be set forth where pertinent to the issues raised.

I

We will first address the second issue raised by the plaintiff regarding the court's refusal to instruct the jury on the breach of contract count, as our resolution of that claim affects our determination of the other issues raised in this appeal.²

The plaintiff contends that the court improperly refused to charge the jury on her first count of breach of contract or, in the alternative, that it improperly blended her breach of contract claim with the second count of her complaint, a negligence claim. The plaintiff, therefore, requests a new trial as to her breach of contract and CUTPA claims. We are not persuaded.

The following additional facts are relevant to our resolution of the plaintiffs claim. As previously mentioned, the plaintiff filed a three count complaint against the defendant, alleging breach of contract, negligence and CUTPA violations. The plaintiff proceeded to trial on those three counts. At the conclusion of the evidence, the defendant sought a directed verdict on all three counts. Although the court did not rule on the motion explicitly, during discussions with the parties it expressed concern about whether the breach of contract count was legally viable and whether it should submit the issue to the jury.³

In its charge to the jury, the court instructed the jury to disregard the breach of contract claim. The plaintiff now challenges the following portion of the jury charge, which encompasses the court's instruction to reject the breach of contract count "Ladies and gentlemen, during the trial, and as I explained to counsel, the first count on breach of contract, I believe, that is—we can cover more clearly for your purposes in the second count, which is the negligent] performance of a contract. So, therefore, I don't intend to deliver the first count to you. I don't think it's necessary for a resolution in this particular case, which then means you're getting down to the second— and, as I said to you, the second count, of course, is founded in negligence. So, what we have to do is now switch over to the concept of you have a contract. Of course, you have a contract, an offer, acceptance and consideration. I don't believe there's any question that we did have what we call an oral contract in here."

Although the plaintiff labels her claim as one involving an improper jury instruction, in essence, she claims that the court "sua sponte, and in derogation of the law," rejected the breach of contract count, thereby warranting our plenary review of the matter.⁴ We find that the gravamen of the plaintiffs claim is whether the court properly determined, as a matter of law, that she was not entitled to submit the breach of contract count to the jury.

"It is well established that [a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. . . . [A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible.... The trial court has a duty not to submit any issue to the jury upon which the evidence would not support a finding.... Accordingly, the right to a jury instruction is limited to those theories for which there is any foundation in the evidence.... In determining whether any such foundation exists, [w]e must consider the evidence presented at trial in the light most favorable to supporting the [party's] request to charge.... Additionally, [w]hen ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Citations omitted; internal quotation marks omitted.) Henriques v. Magnavice, 59 Conn. App. 333, 336, 757 A.2d 627 (2000); see also Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 139, 757 A.2d 516 (2000).

We conclude that the court properly declined to instruct the jury on the breach of contract count because, in this case, the plaintiff was not entitled to an instruction on both the breach of contract and negligence counts.

In her first count for breach of contract as set forth in the complaint, the plaintiff alleged that the "[d]efendant defaulted in the performance of its Agreement with the plaintiff in that it failed to perform the inspection in a skillful, competent and workmanlike manner by failing to identify, in the report or otherwise, the existence of substantial and costly problems with the premises...." (Emphasis added.) The plaintiff alleged negligence in the second count of her complaint, stating that "[t]he [d]efendant, in violation and breach of its duty, failed to exercise a reasonable degree of care, skill and diligence when it performed the inspection of the premises in that it failed to identify and report numerous problems at the [p]remises, including but not limited to the problems described in [count one]." (Emphasis added.)

More significantly, however, in the breach of contract and negligence counts, the damages that the plaintiff claimed she suffered as a result of the defendant's actions were identical to one another. In the first count, the plaintiff alleged that "[a]s a direct and proximate result of the Defendant's default, the plaintiff has been forced to expend considerable sums to correct and repair the problems with the premises which the defendant failed to identify. As a further direct and proximate result of the defendant's default, the plaintiff purchased the premises for a purchase price greater than she would have paid had the defendant discovered and reported the problems with the premises described... above." (Emphasis added.) The damages that the plaintiff claimed in the negligence count reiterate verbatim those set forth in the breach of contract count, with the exception that she substituted the word negligence for default.⁵

Although the plaintiff was entitled to allege those respective theories of liability, she was not entitled to recover twice for the same damages that arose out of the same transaction. See Jonap v. Silver, 1 Conn. App. 550, 561, 474 A.2d 800 (1984). Thus, submitting both the breach of contract and negligence charges to the jury in this case would have resulted in the jury improperly awarding duplicative damages to the plaintiff. See id., 562.

Jonap v. Silver, supra, 1 Conn. App. 550, is instructive. In Jonap, the plaintiff filed an action against the defendant for injurious falsehood and invasion of privacy. Following trial, the jury awarded damages in favor of the plaintiff for, inter alia, both invasion of privacy by appropriation and invasion of privacy by false light. Id., 553. On appeal, this court found that the jury...