Hi-Ho Tower, Inc. v. Com-Tronics, Inc.

• Decision Date: 12 December 2000
• Docket Number: (SC 16227)
• Citation: 761 A.2d 1268,255 Conn. 20
• Parties: HI-HO TOWER, INC. v. COM-TRONICS, INC., ET AL.
• Court: Connecticut Supreme Court

255 Conn. 20

761 A.2d 1268

HI-HO TOWER, INC. v. COM-TRONICS, INC., ET AL.

(SC 16227)

Supreme Court of Connecticut.

Argued April 20, 2000.

Officially released December 12, 2000.

McDonald, C. J., and Borden, Palmer, Sullivan and Parker, Js. Ralph P. Dupont, with whom was Barbara J. Radlauer, for the appellant (plaintiff).

David B. Zabel, with whom, on the brief, was Vincent M. Marino, for the appellees (defendants).

Opinion

BORDEN, J.

The plaintiff, Hi-Ho Tower, Inc., appeals¹ from the judgment of the trial court, rendered after a jury trial, in favor of the defendants, Com-Tronics, Inc. (Com-Tronics), and its principal officer, John Becker, on the complaint, and for Com-Tronics on the third count of its counterclaim. The plaintiff claims that the trial court improperly: (1) instructed the jury as to the elements of a claim for tortious interference with business expectancies, and denied the plaintiffs motion for judgment notwithstanding the verdict on Com-Tronics' counterclaim for tortious interference; (2) granted the defendants' motion for a directed verdict on the plaintiffs claim of breach of fiduciary duty; and (3) instructed the jury that conversion and statutory theft are limited to tangible property and documents evidencing intangible rights. We affirm the judgment.

The plaintiff brought this action against the defendants in two counts seeking, on the basis of various legal theories including breach of fiduciary duty, damages for the defendants' alleged unlawful use of the plaintiffs radio and communications tower. Com-Tronics filed a four count counterclaim. The trial court directed a verdict for the defendants on the claim of breach of fiduciary duty. The jury returned a verdict for the defendants on all remaining counts of the complaint, and for Com-Tronics on the third count of its counterclaim, which was based on the theory of tortious interference with business expectancies.² The trial court rendered judgment on the verdict.

The jury reasonably could have found the following facts. The plaintiff, a wholly owned subsidiary of D'Addario Industries, Inc. (D'Addario Industries), is a corporation engaged in the business of owning, operating and maintaining a communications tower and facility in the town of Trumbull. The facility consists of the tower, an equipment building, cable and electrical wiring, and numerous repeaters and antenna combiners³ used in the transmission and reception of radio signals. The plaintiff licenses various entities to use its communications facilities for television, radio and wireless telephone services.

The defendants are engaged in the business of selling, servicing and installing two-way radio equipment. In the early 1980s, Becker began to service communications equipment for the plaintiff and various other entities operated by D'Addario Industries.

In 1982, Becker contacted F. Francis D'Addario, then president of the plaintiff, and requested permission, which was granted, to install a community repeater at the plaintiffs tower facility for use in Com-Tronics' business.⁴ In exchange, Becker paid a monthly usage fee of $25.⁵ Sometime either prior to or during 1989, the parties entered into an oral agreement whereby the defendants would furnish technical assistance and service functions at the tower.

It is undisputed that from 1982 through 1992, the defendants installed additional repeaters and antenna combiners on the plaintiffs tower for the defendants' use, licensed their customers to use the repeaters and combiners, and collected license fees for that use. In the plaintiff's equipment building adjacent to the tower, the defendants' customers placed their own equipment, which was subsequently wired to the additional repeaters and combiners that the defendants had installed on the tower. The parties dispute, however, whether the plaintiff was aware of the installation of these additional items or of the defendants' licensing activities and collection of licensing fees, and whether the defendants had permission from the plaintiff for these activities. The defendants' conduct in placing the additional repeaters and combiners on the plaintiffs tower and in using the tower for their own benefit form the basis for the plaintiff's claim, in its complaint, that the defendants unlawfully used the tower.

As part of their business, the defendants provided technical services for both the plaintiffs and the defendants' customers whose equipment was located at the plaintiffs tower facility. This part of Com-Tronics' business forms the basis of its counterclaim for tortious interference.

In August, 1992, the plaintiff was contacted by the Federal Communications Commission (commission) regarding communications interference with area television and radio reception due to increased use of the tower facility. The plaintiff hired a consultant, Thomas Osenkowsky, to conduct an investigation of the commission's allegations. In preparation for the investigation, the plaintiff asked Becker to compile a list of customers who were utilizing the tower's communications facilities. The list prepared by Becker included Com-Tronics' equipment located at the tower. At the conclusion of the investigation, Osenkowsky determined that the list compiled by Becker accurately reflected all equipment located at the tower.

In September, 1992, David D'Addario, the president of D'Addario Industries,⁶ met with Becker and demanded that the defendants turn over all of the defendants' equipment at the tower to the plaintiff, and reimburse the plaintiff for revenues lost as a result of the defendants' alleged unauthorized use of the plaintiffs tower facility. On September 22, 1992, the plaintiff sent a letter to all tower customers for whom the defendants provided maintenance and repair services, stating that the defendants no longer were associated with or had access to the tower. Additional facts will be provided as necessary.

Thereafter, the plaintiff brought this action against the defendants. The first count of the plaintiffs complaint claimed damages based on three theories: (1) breach of fiduciary duty; (2) breach of contract; and (3) common-law conversion and statutory theft. The second count claimed damages under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Com-Tronics, in addition to pleading special defenses, filed a four count counterclaim alleging: (1) breach of agreement; (2) unjust enrichment; (3) tortious interference with existing and prospective business expectancies due to the plaintiffs wrongful denial of access to the tower, including resulting lost profits from work performed for various tower customers as part of the defendants' technical assistance responsibilities at the tower; and (4) violation of CUTPA.⁷

At the close of the plaintiffs case, the trial court directed a verdict in favor of the defendants on the plaintiffs claim of breach of fiduciary duty. After Com-Tronics had presented its evidence on its counterclaim, the trial court denied the plaintiff's motion for a directed verdict on the counterclaim. The remaining issues were submitted to the jury by way of interrogatories. The jury returned a verdict for the defendants on all remaining counts of the complaint, for Com-Tronics on the third count of its counterclaim, namely, tortious interference, and for the plaintiff on the remaining counts of Com-Tronics' counterclaim.

In connection with the third count of Com-Tronics' counterclaim, however, the court bifurcated the question of punitive damages. After the jury rendered a verdict for Com-Tronics on the third count of its counterclaim, but awarded damages of $0, the trial court, over the objection of the plaintiff, submitted the question of punitive damages to the jury with supplementary instructions. The jury then rendered a verdict of $120,000 in punitive damages.

The trial court denied the plaintiffs motions: (1) for a directed verdict as to the issue of punitive damages; (2) to set aside the verdict on the complaint, and on the counterclaim for tortious interference; (3) for judgment notwithstanding the verdict or a new trial on the counterclaim for tortious interference and the punitive damage award; and (4) for a remittitur as to the punitive damage award. The trial court rendered judgment accordingly. This appeal followed.

I

The plaintiff first claims that the trial court improperly instructed the jury as to the elements of a claim for tortious interference with business expectancies and, furthermore, improperly denied the plaintiffs motion for a directed verdict on Com-Tronics' counterclaim for tortious interference because Com-Tronics failed to prove actual loss and recovered punitive damages in the absence of an award of compensatory damages. Because we perceive the plaintiffs claims to raise two distinct issues, we consider them in turn.

A

We first consider the plaintiffs claim that the trial court improperly instructed the jury as to the elements of a claim for tortious interference with business expectancies. Specifically, the plaintiff argues that the trial court improperly charged the jury that the law required Com-Tronics to prove only that it suffered a loss to prevail on its claim for tortious interference. We disagree.

We review the plaintiff's claim in light of the well established rule that "jury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge.... A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict.... The test to determine if a jury charge is proper is 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.... Jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the...