Froom Development v. Developers Realty

• Decision Date: 02 June 2009
• Docket Number: No. 29527.,29527.
• Citation: Froom Development v. Developers Realty, 972 A.2d 239, 114 Conn.App. 618 (Conn. App. 2009)
• Court: Connecticut Court of Appeals
• Parties: FROOM DEVELOPMENT CORPORATION et al. v. DEVELOPERS REALTY, INC., et al.

972 A.2d 239

114 Conn.App. 618

FROOM DEVELOPMENT CORPORATION et al. v.DEVELOPERS REALTY, INC., et al.

No. 29527.

Appellate Court of Connecticut.

Argued January 5, 2009.

Decided June 2, 2009.

Carl H. Hoffman, with whom was Frederic S. Ury, Fairfield, for the appellants (plaintiffs).

David S. Hoopes, with whom, on the brief, were Glenn E. Coe, Proloy K. Das

and Peter S. Royer, Hartford, for the appellees(defendants).

BEACH, J.

This action arises from an unsuccessful effort to develop a shopping center in Concord, New Hampshire.The plaintiffs, Froom Development Corporation and the president of that corporation, Ronald J. Froom, appeal from the judgment of the trial court denying their motion to set aside the verdict, which was rendered on all but one count in favor of the defendants, a collection of individuals and corporate entities, including Developers Realty, Inc.(Developers Realty), and the Marion Eisenbaum Estate Trust (trust).¹On appeal, the plaintiffs claim that the court(1) abused its discretion in denying their motion to set aside the verdict on the grounds (a) of inconsistency, (b) that it was inherently ambiguous for the jury to return a verdict in favor of the plaintiffs while awarding zero damages and (c) that the verdict was contrary to the law and unsupported by the evidence, and (2) abused its discretion by denying their oral motion for a mistrial made after the jury returned with a revised verdict.We affirm the judgment of the trial court.

The following facts, as stated by the court in its ruling on the plaintiffs' motion, and procedural history are relevant to our resolution of the plaintiffs' appeal."The case involved a business dispute arising out of a written agreement between the plaintiffs ... and the defendant Developers Realty ... a corporation and one of several entities formed by the Eisenbaum family involved with the development of shopping malls.In essence, the agreement provided that if [Developers Realty] chose to develop real property brought to its attention by [the plaintiffs], then [the plaintiffs] would have a 50 percent ownership interest in the joint venture project.In all cases, [Developers Realty] would provide funds for all preconstruction development expenses and construction expenses, although it was the intent of the parties to obtain construction mortgages as soon as possible.The agreement also set out the understanding that if a parcel of property introduced by [the plaintiffs] was selected for possible development, and [Developers Realty] elected at a later date not to proceed with the development, [the plaintiffs] would be given a reasonable time to continue the project alone or to find a new partner to replace [Developers Realty]....

"[The plaintiffs] directed [Developers Realty] to real property on Loudon Road near Concord, New Hampshire, which appeared developable into a shopping center, and [Developers Realty] took steps to obtain options to purchase two parcels of the property.Some time in the 2000-2001 time frame, there was evidence that [Developers Realty] and individuals and entities associated with [Developers Realty] began to ignore [the plaintiffs] and any communications from [them] about the Concord project....[In]July, 2003, [Developers Realty] directly told [the plaintiffs] that [it] no longer considered [the plaintiffs] to be a joint venture partner in the Concord project.

"The Concord project itself had a troubled life span.[The plaintiffs] initially envisioned a shopping center project of four retail outlets and a restaurant with a total amount of 140,000 to 150,000 square feet of space situated on eighteen to twenty acres of land.[Developers Realty] later increased the size of the proposed project and purchased or optioned more than ten additional acres.There was interest from various retail stores that continued for several years, but there was never sufficient interest to make the project a reality.Varying evidence was presented from all sides as to the root cause for the eventual failure of the project.[The plaintiffs] blamed the defendants' incompetence and inattention.The defendants saw the reasons as being the vagaries of the marketplace, competition from other developers and certain difficulties arising from the location of the property.For whatever reasons, however, the Concord project was not able to attract a satisfactory anchor tenant, and all parties agree that the lack of such a tenant kept other retailers from signing leases sufficient to get construction financing.The evidence showed that while Dick's Sporting Goods, an attractive potential anchor tenant, considered renting 50,000 square feet of retail space on the Concord project property, it eventually located elsewhere in the area because [Developers Realty] was unable to attract Bed Bath & Beyond as another tenant."

Thereafter, the plaintiffs brought a complaint in multiple counts against the defendants.By the end of trial, the number of counts had been narrowed to six: breach of contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., conversion and tortious interference with business relations.²

In the verdict, as accepted, the jury found in favor of the plaintiffs only on the count alleging breach of the covenant of good faith and fair dealing and awarded no damages on that count.The plaintiffs thereafter filed a motion to set aside the verdict, which the court denied.This appeal followed.Additional facts will be set forth as necessary.

I

We first address the defendants' threshold jurisdictional claim that the plaintiffs have not appealed from a final judgment.See, e.g., Levarge v. General Dynamics Corp.,282 Conn. 386, 390, 920 A.2d 996(2007).The defendants argue that we do not have subject matter jurisdiction over this appeal because the plaintiffs appealed from the court's memorandum of decision denying their motion to set aside the verdict, rather than from the judgment the court rendered.They argue that as a result, the plaintiffs have not appealed from a final judgment.We disagree.

"[T]he right of appeal is purely statutory.It is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met....Moreover, [t]he statutory right to appeal is limited to appeals by aggrieved parties from final judgments. ...Because our jurisdiction over appeals ... is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim."(Internal quotation marks omitted.)Rosado v. Bridgeport Roman Catholic Diocesan Corp.,276 Conn. 168, 194, 884 A.2d 981(2005).

The record shows that the verdict was reached on October 26, 2007.A motion to set aside the verdict was filed on November 5, 2007.The court denied that motion and rendered judgment on December 21, 2007.The appeal was filed on January 9, 2008.The appeal form states that the appeal was taken from the denial of the motion to set aside the verdict and does not specifically state that it was taken from the judgment rendered at the same time.If this is a defect, however, it amounts to no more than one of form that requires challenge, if at all, within ten days after the filing of the appeal.SeeLetsch v. Slady,145 Conn. 401, 402, 143 A.2d 642(1958);Practice Book§ 66-8;³see alsoGeneral Statutes § 52-263.⁴Because the defendants have failed to move to dismiss the appeal, they have waived any such defect.SeeMaciejewska v. Lombard Bros., Inc.,171 Conn. 35, 37 n. 1, 368 A.2d 206(1976);Desmarais v. Pinto,147 Conn. 109, 110, 157 A.2d 596(1960).Accordingly, we now turn to the merits of the plaintiffs' appeal.

II

The plaintiffs claim that the court abused its discretion in denying their motion to set aside the verdict.The plaintiffs argue that the court should have granted the motion on the grounds (1) of inconsistency, (2) that it was inherently ambiguous for the jury to return a verdict in favor of the plaintiffs while awarding zero damages and (3) that the verdict was contrary to the law and unsupported by the evidence.We disagree.

We begin by setting forth our standard of review."The standard of review governing our review of a trial court's denial of a motion to set aside the verdict 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 [its] 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 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."(Internal quotation marks omitted.)Embalmers' Supply Co. v. Giannitti,103 Conn.App. 20, 32-33, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246(2007).

A

The plaintiffs claim that the court abused its discretion when it denied their motion to set aside the verdict on ground of inconsistency.⁵We disagree.

"The role of an appellate court where an appellant seeks a judgment contrary to a general verdict on the basis of the jury's allegedly inconsistent answers to such interrogatories is extremely limited....To justify the entry of a judgment contrary to a general verdict upon the basis of answers to interrogatories, those answers must be such in themselves as conclusively to show that as [a] matter of law judgment could only be rendered for the party against whom the general verdict was found; they must...