Common Condominium Associations, Inc. v. Common Associates

• Decision Date: 31 January 1984
• Citation: 470 A.2d 699,192 Conn. 150
• Court: Connecticut Supreme Court
• Parties: The COMMON CONDOMINIUM ASSOCIATIONS, INC., et al. v. The COMMON ASSOCIATES, et al.

Page 699

470 A.2d 699

192 Conn. 150

The COMMON CONDOMINIUM ASSOCIATIONS, INC., et al. v. The COMMON ASSOCIATES, et al.

Supreme Court of Connecticut.

Argued Dec. 7, 1983.

Decided Jan. 31, 1984.

Philip M. French, Stamford, for appellants (plaintiffs).

James R. Fogarty, Stamford, with whom, on brief, was Robert A. Epstein, Stamford, for appellees (named defendant et al.).

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

PER CURIAM.

The plaintiffs have appealed from the orders of the trial court granting the defendants' motion to dissolve or modify a prejudgment remedy, an ex parte real estate attachment, which had been granted against them, and denying the plaintiffs' motion to modify the prejudgment remedy "by increasing the amount of the attachment and/or by ordering the defendants ..." to establish an escrow account. ¹ The plaintiffs request from this court an order directing that the trial court establish an escrow fund under General Statutes § 47-74d in the amount of $1,609,430.05 and issue an attachment in the amount of $5,643,235.10.

The underlying action, in nine counts, is predicated on alleged breaches of express and implied warranties, negligence, violations of escrow requirements imposed on condominium developers via § 47-74d, and conspiracy to defraud. When the plaintiffs originally applied for a prejudgment remedy, the court granted their request for an ex parte prejudgment remedy in the amount of $5,975,475. As a result of the defendants' motion to modify or dissolve, the court reduced the prejudgment remedy to the amount of $735,000. This reduction indicated the court's reliance upon the evidence and testimony submitted by the defendants' expert witness, Glendon R. Mayo. Hence, the plaintiffs' attack relative to the decreased prejudgment figure is directed principally toward the testimony of Mr. Mayo. The plaintiffs maintain, inter alia, that the witness did not qualify as an expert, that he relied extensively upon outside staff inspections, that his interpretation of the building code was erroneous, and that he failed to consider expenses already incurred.

We first note that the plaintiffs' far-reaching attack on Mayo's testimony fails to comply with the provisions of Practice Book § 3060F(c)(3), which specifies what must be included in a brief where error is claimed in a ruling of the trial court. ² That aside, "[t]he determination of the qualification of an expert is largely a matter for the discretion of the trial court ... 'Some facts must be shown as the foundation of such an opinion, but there is no rule of law declaring the precise facts which must be proved before such an opinion may be received in evidence ....' " Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73 (1964), quoting Coffin v. Laskau, 89 Conn. 325, 329, 94 A. 370 (1915).

Parenthetically, we note that the fact that an expert opinion is drawn from other sources, inadmissible in and of themselves, does not render the opinion inadmissible. Tait & LaPlante, Conn. Evidence § 7.16, pp. 101-102. Furthermore, cost estimates can be based on data obtained from others; Schaefer, Jr. & Co. v. Ely, 84 Conn. 501, 508, 80 A. 775 (1911); including to what extent buildings are furnished in a workmanlike manner. See Holden & Daly, Conn. Evidence § 120, p. 566.

In the plaintiffs' motion to modify the prejudgment remedy, they requested that the original attachment be modified by increasing the amount of the attachment "and/or" ordering the defendants, the Common Associates, Collins, and Emil to reestablish and fully fund the escrow account. ³ Section 52- 278l of the General Statutes allows an appeal from an order "granting or denying a motion to dissolve or modify a prejudgment remedy under § 52-278e." Section 52-278e is entitled "Allowance of prejudgment remedy without hearing. Subsequent motion, hearing and order" and provides: "The defendant ... may move to dissolve or modify the prejudgment remedy granted pursuant to this section ...." (Emphasis added.) This section does not envision a plaintiff's moving to modify his own previously obtained ex parte prejudgment remedy. Thus, the plaintiff is not afforded, via § 52-278l, a right to appeal the denial of such a motion.

Apparently anticipating a claim of jurisdictional debility, the plaintiffs characterize the request made below as "not technically" for a prejudgment remedy, but one for injunctive relief. Nowhere in the record is it indicated that such a claim was advanced in the trial court. What was stated in State v. Reinosa, 29 Conn.Sup. 117, 274 A.2d 452 (1970), applies with equal force here: "[t]he defendant seeks to create a new centauric pleading ... [T]he court cannot accept the defendant's ex parte innovation, however well intentioned." Id., 117-18, 274 A.2d 452.

The plaintiffs also aver that the court erred in concluding that fraud was not proven. In addition to their contention that the record is replete with evidence of fraud, the plaintiffs maintain that it is "not even the function of the court to resolve conflicting testimony" in a hearing involving a request for a prejudgment remedy hearing. We note, first,...