Coniglio v. White

• Decision Date: 10 September 2002
• Docket Number: (AC 21480)
• Citation: 804 A.2d 990,72 Conn. App. 236
• Court: Connecticut Court of Appeals
• Parties: JOSEPH W. CONIGLIO v. DAVID A. WHITE.

72 Conn. App. 236

804 A.2d 990

JOSEPH W. CONIGLIO v. DAVID A. WHITE.

(AC 21480)

Appellate Court of Connecticut

Argued March 22, 2002

Officially released September 10, 2002

Schaller, Spear and Hennessy, Js.¹

Nancy Burton, for the appellant (defendant).

Joseph M. Brophy, for the appellee (plaintiff).

Opinion

SCHALLER, J.

In this civil action based on breach of contract and negligence, the defendant, David A. White, appeals from the judgment, rendered after a jury trial, in favor of the plaintiff, Joseph W. Coniglio. The dispositive issue is whether the trial court improperly denied the defendant's motions for a directed verdict and to set aside the verdict that were based on the defendant's assertion that the court improperly instructed the jury on the applicable statute of limitations. We reverse the judgment of the trial court.²

The jury reasonably could have found the following facts. In the spring of 1986, the plaintiff considered purchasing a two acre back lot from Florence Smith. The plaintiff entered into an oral contract with the defendant, a licensed land surveyor. The parties agreed that the defendant would survey the lot for a fee of $1310. On May 27, 1986, the defendant delivered the survey, and the plaintiff paid him the agreed fee. A few months later, the plaintiff asked the defendant to include in the survey a right-of-way granted by Smith. Without additional compensation, the defendant revised the survey to include a right-of-way over Smith's property near the northern boundary. Sometime between 1987 and 1989, the plaintiff installed a driveway on the right-of-way shown on the revised survey. In 1989, without compensation, the defendant performed some additional work, unrelated to the right-of-way, on the survey for the plaintiff.

In 1994, after Smith had died, the purchaser of her homestead on the property had a survey performed, showing that the boundary of the 1986 survey was incorrect and that the right-of-way granted in 1986 by Smith to the plaintiff was located on state of Connecticut forest property. The purchaser notified the plaintiff that the right-of-way was not located on the purchaser's property. The plaintiff contacted the defendant about that assertion. The parties met, and the defendant explained that his survey showed proper boundaries. Thereafter, the defendant provided two additional surveys in 1994 to the plaintiff without compensation. The 1994 surveys showed essentially the same boundaries as the 1986 survey. In 1995, the plaintiff received a letter from the state of Connecticut informing him that its own survey showed that the plaintiff's right-of-way encroached on state property. On July 15, 1996, the plaintiff brought an action against the defendant alleging breach of contract and negligence.

In his complaint, the plaintiff alleged that the defendant (1) breached the oral contract by failing to perform an accurate survey in 1986, 1989 or 1994 and (2) negligently failed to meet the standards to which surveyors are customarily held in the execution of their work, all of which caused harm. In a special defense, the defendant alleged that the statute of limitations barred the plaintiff's claims. The defendant also filed a motion for a directed verdict on the basis of arguments concerning the applicable statute of limitations, continuing duty and consideration necessary for an enforceable modification of a contract. The court denied the defendant's motion for a directed verdict.

The court instructed the jury that pursuant to General Statutes (Rev. to 1985) § 52-584a, a seven year statute of limitations applied to both the contract and negligence counts.³ The court also instructed the jury on the elements of a contract, including consideration, but failed to instruct on the consideration required for modification of a contract. Instead, the court instructed on whether the parties had "revised" the agreement. The jury returned a verdict in favor of the plaintiff and awarded damages on the contract count in the amount of $1310 and on the negligence count in the amount of $25,000.

The defendant filed a motion to set aside the verdict, for a new trial and for remittitur. The defendant argued that the court improperly instructed the jury that the seven year statute of limitations applied. He further argued that the court improperly instructed the jury that "[w]hen given the opportunity to correct his findings in 1989 and 1994, he failed to do the same and erroneously reaffirmed the mistaken state of Connecticut boundary line in his survey of 1986." The court denied the defendant's motions. This appeal followed.

The defendant claims that the court improperly denied his motions for a directed verdict and to set aside the verdict. His claims rest on his assertion that the court improperly instructed the jury on the applicable statute of limitations. Specifically, the defendant argues that the court improperly instructed the jury that § 52-584a applied to the contract and negligence counts because § 52-584a did not apply to surveyors until October 1, 1998, when the legislature enacted Public Acts 1998, No. 98-137, § 61, and No. 98-219, § 33. The defendant further argues that he was prejudiced by the improper instruction because by instructing on the seven year statute of limitations, the court failed to instruct the jury concerning the correct statutes of limitation and the factual determinations that were relevant to a determination of whether either or both counts were barred.

As an initial matter, we set forth our standard of review. "[Appellate] review of a trial court's refusal to direct a verdict or to render judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial ... giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony.... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion." (Citation omitted; internal quotation marks omitted.) Stuart v. Stuttig, 63 Conn. App. 222, 226, 772 A.2d 778 (2001). "A jury's verdict should be set aside only 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.... A verdict should not be set aside where the jury reasonably could have based its verdict on the evidence." (Citation omitted; internal quotation marks omitted.) Caron v. Adams, 33 Conn. App. 673, 685, 638 A.2d 1073 (1994).

We also note that in reviewing the defendant's claim that the court improperly denied his motions for a directed verdict and to set aside the verdict, we must address the defendant's underlying assertion that the court improperly instructed the jury on the statute of limitations. We therefore set forth our standard of review for challenges to jury instructions. "[W]e adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.... [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... We do not critically dissect the charge in order to discover possible inaccurate statements.... Rather, we see if [the jury instructions] gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues.... [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial.... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. Even if instructions are found to be improper, we must further determine whether they have been prejudicial to the claiming party by adversely affecting the trial's outcome." (Citations omitted; internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 280-81, 640 A.2d 74 (1994).

Before October 1, 1998, the professionals listed as being subject to the seven year statute of limitations pursuant to § 52-584a were architects and professional engineers. See footnote 3. Surveyors were included as named professionals subject to the seven year statute of limitations provided by § 52-584a for survey work performed after October 1, 1998.

We conclude that as a matter of law, the court improperly instructed the jury on the applicable statute of limitations because § 52-584a did not apply to surveyors who performed or furnished surveys before October 1, 1998. All of the surveys provided by the defendant were furnished to the defendant before ...