Burr v. Lichtenheim

• Decision Date: 14 June 1983
• Court: Connecticut Supreme Court
• Parties: John BURR v. Alexander LICHTENHEIM et al.

Page 1290

460 A.2d 1290

190 Conn. 351

John BURR v. Alexander LICHTENHEIM et al.

Supreme Court of Connecticut.

Argued April 8, 1983.

Decided June 14, 1983.

John J. Graubard, Stamford, with whom, on the brief, were Paul R. Daddona, Anthony M. Daddona, and Biase Daddona, pro se, for the appellants (defendant Paul R. Daddona, et al.).

Lawrence M. Lapine, Stamford, for appellee (plaintiff).

Before PETERS, ARTHUR H. HEALEY, PARSKEY, SHEA and GRILLO, JJ.

PETERS, Associate Justice.

This is a suit to recover damages for breach of an indemnity agreement. The plaintiff, John Burr, brought an action against the defendants Alexander Lichtenheim and Katherine Lichtenheim (the Lichtenheims) for tortious interference with a contract and for abuse of process and against the defendants Paul R. Dadonna, Anthony M. Daddona and Biase Daddona (the Daddonas) for breach of an indemnity contract. The various counts against the two groups of defendants were tried separately. On the Lichtenheim counts, the trial court on one count and a jury on the other found the issues for the defendants. On the Daddona count, summary judgment as to liability having previously been rendered against the defendants, a jury found for the plaintiff, awarding him damages of $40,000 to which the trial court added $6000 as reasonable attorney's fees. After unsuccessful motions to set aside the verdict and for a new trial, the Daddonas have taken the present appeal which contests only the award of damages and not the prior summary judgment as to liability.

The underlying facts, which are undisputed, indicate that, on December 5, 1975, the plaintiff Burr bought certain property in Stamford from the defendants Daddona for $20,000. At that time, the Lichtenheims had a recorded right of first refusal with respect to the property. At the closing, in lieu of a release from the Lichtenheims, the plaintiff received an indemnity agreement by which the Daddonas agreed to hold him harmless "from any and all liabilities and expenses and damages incurred in connection with any action or proceeding brought to enforce Alexander Lichtenheim's and Katherine Lichtenheim's first refusal rights, if any, on the parcel of property conveyed to the grantee, John Burr, on this date, December 5, 1975."

The contingency contemplated by the indemnity agreement came to pass when the Lichtenheims, in September 1976, brought an action seeking specific performance to enforce their right of first refusal. In conjunction with that litigation, they recorded a lis pendens on the plaintiff's property. The Lichtenheim lawsuit ultimately terminated in a judgment against the Lichtenheims in March 1979. In the meantime, however, the plaintiff had initiated the present lawsuit in November 1976.

In their appeal from the adverse judgment in damages, the defendants have raised four issues. The defendants claim that the trial court erred: (1) in refusing their motion for a new trial on the basis of newly discovered evidence; (2) in permitting the jury, as a matter of law, to consider the plaintiff's claim of lost profits; (3) in permitting the jury to conclude, as a matter of fact, that the plaintiff had proven lost profits; and (4) in awarding the plaintiff the attorney's fees incurred in enforcing the indemnity agreement. We find error only with respect to the award of attorney's fees.

I

The defendants' claim of erroneous denial of their motion for a new trial on the basis of newly discovered evidence is premised on the following events. During the jury trial of the damages issue in the present case on June 2, 1981, the plaintiff was asked on cross-examination about the extent of his knowledge of the Lichtenheim interest in his property. He testified that, some time in the summer of 1976, in advance of the initiation of the Lichtenheim suit for specific performance, he had spoken with Mr. Lichtenheim. While the plaintiff was at work clearing his land, Mr. Lichtenheim had come over, and the two men had had a conversation. The plaintiff did not recall what Lichtenheim had said. Several days later, while the jury was deliberating in the present case, a companion case, Daddona v. Lichtenheim, was being tried to the court. In the companion case, on June 4, 1981, the plaintiff testified, as the Daddonas' witness, about the same conversation, and then recalled that Mr. Lichtenheim had claimed to own the property. Thereafter, the jury returned its verdict in the plaintiff's favor in the present case. The defendants promptly filed a motion for a new trial under § 320 of the Practice Book.

Any motion for a new trial is addressed to the sound discretion of the trial court and will not be granted except on substantial grounds. Bernier v. National Fence Co., 176 Conn. 622, 628, 410 A.2d 1007 (1979). When the asserted ground for the motion is newly discovered evidence, we have repeatedly relied on the statement of principles in Turner v. Scanlon, 146 Conn. 149, 148 A.2d 334 (1959), where we held (at p. 163, 148 A.2d 334) that "[a] party is entitled to a new trial on the ground of newly discovered evidence if such evidence is, in fact, newly discovered, will be material to the issue on a new trial, could not have been discovered and produced, on the trial which was had, by the exercise of due diligence, is not merely cumulative and is likely to produce a different result.... This rule is necessary, for without it there might never be an end to litigation.... New trials are not granted upon newly discovered evidence which discredits a witness unless the evidence is so vital to the issues and so strong and convincing that a new trial would probably produce a different result.... The basic question which the trial court has to decide is whether upon all the evidence an injustice had been done. In deciding this question, the court has the exercise of a sound legal discretion, and its action cannot be disturbed unless this discretion has been abused." (Citations omitted.) See Lombardi v. Bockholdt, 167 Conn. 392, 395, 355 A.2d 270 (1974); Pass v. Pass, 152 Conn. 508, 511-12, 208 A.2d 753 (1965).

The defendants' claim cannot survive scrutiny under the test laid down by Turner v. Scanlon. While the defendants have demonstrated that the evidence upon which they rely "could not have been discovered and produced, on the trial that was had, by the exercise of due diligence," unavailability of evidence is not, in and of itself, sufficient to require a new trial. On the facts before it, in a hearing limited to the ascertainment of damages, the trial court might reasonably have concluded that the content of the conversation between the plaintiff and Mr. Lichtenheim was not of vital significance. Even if the discrepant versions of the plaintiff's recollection of this conversation could be taken as reflecting adversely on the plaintiff's credibility in general, the trial court might reasonably have concluded, in light of the extensive documentary record in this case, that a new trial would probably not have produced a different result. The defendants have not established an abuse of discretion in the denial of their motion for a new trial.

II

The defendants' second and third claims of error, because they address different facets of the plaintiff's recovery of damages for loss of profits, can conveniently be addressed together. In the defendants' motion to set aside the verdict, they maintained that it was error to submit the issue of lost profits to the jury because (1) the indemnity agreement did not obligate the defendants to reimburse the plaintiff for lost profits and (2) the proof offered by the plaintiff did not substantiate his claim for lost profits with reasonable certainty.

The defendants' first claim requires interpretation of the terms of the indemnification agreement, particularly of its language, "any and all liabilities and expenses and damages incurred in connection with any action or proceeding brought to enforce [the Lichtenheim's] first refusal rights ...." In this regard, the defendants submitted to the trial court two alternate requests to charge. The defendants' "preferred" charge asked the court to determine the question of the construction of the contract as a matter of law. This charge the court refused to give. The defendants' alternate charge, which the trial court gave, left it to the jury to determine whether the agreement was intended to cover not only expenses directly incurred by the plaintiff in defending against the action brought by the Lichtenheims but also covered "any loss which he might sustain as a result, direct or indirect, of the bringing of such action." ¹

The plaintiff argues that we need not consider this claim of error since it is conceded that the charge as given was one that the defendants had themselves requested. There would be merit in this argument if the record evidenced any confusion in the trial court with regard to the defendants' two requests. The record shows, to the contrary, that the defendants clearly articulated their views about the interpretation of the contract to the trial court. They stated their requests in the alternative, and reiterated their position in timely objections to the charge as given. In these circumstances, we can see no reason why the defendants, having consistently although unsuccessfully pursued their claim of law in the trial court, should be foreclosed from appellate review of that claim simply because they chose to assist the trial court in its formulation of the issue of fact. Procedurally, this claim is properly here.

Turning then to the merits of the defendants' claim, we must decide whether the trial court erred in permitting the jury to determine, as a matter of fact, whether the contract of indemnity excluded recovery for loss of profits. The defendants argue that, as a matter of law, this indemnity contract excluded such a recovery. The defendants note that an indemnity agreement, like any other contract,...