Krondes v. Norwalk Savings Society, (AC 17221)

Decision Date27 April 1999
Docket Number(AC 17221)
Citation53 Conn. App. 102,728 A.2d 1103
CourtConnecticut Court of Appeals
PartiesFLORENCE KRONDES v. NORWALK SAVINGS SOCIETY

Landau, Schaller and Dupont, Js. Arthur R. Riccio, Jr., for the appellant (plaintiff).

Richard E. Castiglioni, with whom, on the brief, was James P. Blanchfield, for the appellee (defendant).

Opinion

DUPONT, J.

The plaintiff, Florence Krondes, appeals from a judgment of the trial court rendered after the court directed a verdict in favor of the defendant.1 On appeal, the plaintiff claims that the trial court improperly (1) directed the verdict for the defendant, (2) concluded that the plaintiffs claims were barred by the applicable statutes of limitation, (3) concluded that the plaintiffs claims were precluded on res judicata and collateral estoppel grounds and (4) denied the plaintiff's request to have the jury polled. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. The plaintiff brought this action against the defendant on May 24, 1991. In her complaint, the plaintiff alleged that she relied to her detriment on the advice, experience and expertise of the defendant and its agents in connection with the purchase and financing of two properties located at 31 Isaac Street, Norwalk (Isaac Street property), and 142-152 Connecticut Avenue, Norwalk (Connecticut Avenue property). On March 30, 1987, the plaintiff borrowed $200,000 from the defendant and, as security for the loan, executed a promissory note and gave a mortgage to the defendant on the Isaac Street property. The plaintiff contracted to purchase the Connecticut Avenue property on February 4, 1986. In connection with the contract, the plaintiff accepted and executed a series of mortgage commitment letters concerning the Connecticut Avenue property, the last one expiring on March 14, 1988. The plaintiff and the sellers never completed this transaction, however, and on May 5, 1988, the plaintiff sold her right to the contract to a third party.

The plaintiff alleged that she sought to finance the purchase of both properties through the defendant bank because the defendant held existing mortgages on the properties and allegedly knew the sellers, and she thought that she could enter into a special relationship with the defendant. The plaintiff alleged that she in fact established a special relationship of trust and confidence with the defendant and that, by virtue of this special banking relationship, the defendant owed her a duty to advise her of any information it had obtained relating to the properties. The plaintiff alleged that the defendant breached this duty by failing to advise her of certain detrimental information relating to the properties and the sellers and that said breach caused the plaintiff to suffer economic and other damages.2 The one count complaint alleged claims for fraud, misrepresentation, breach of an implied covenant of good faith and fair dealing, breach of a fiduciary duty and relationship of trust and confidence, and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

The defendant filed an answer and special defenses, alleging that the plaintiff's claims were barred by the applicable statutes of limitation and by the doctrines of res judicata and collateral estoppel.3 The plaintiff filed an amended reply denying the claims made in the defendant's special defenses and alleging that the defendant fraudulently concealed the plaintiffs causes of action in violation of General Statutes § 52-595. A jury was selected and the trial commenced on February 25, 1997.

On March 7, 1997, at the close of the plaintiffs case, the defendant moved for a directed verdict pursuant to Practice Book § 16-37. After hearing argument, the trial court reserved decision on the motion. Thereafter, on March 11, 1997, the trial court stated the following: "As I indicated to counsel in chambers, I was going to place on the record, this morning, my position with respect to many of the claims being made by the plaintiff in this lawsuit. You may recall, initially, I received a number of motions in limine regarding many of these same issues when the lawsuit or the taking of evidence was about to commence and reserved decision to see what the evidence would show. Thereafter, at the conclusion of the plaintiffs case Friday, there was a motion ... a motion for directed verdict by the defense—defendant's and at the time I indicated I would not direct a verdict.

"But, on consideration over the weekend and review of the case in its entirety, what the evidence has shown, from the way I viewed the evidence in any event, I'm not going to charge the jury with respect to a number of issues raised by the plaintiff, and, that would have the effect of directing a verdict, if you will. One of the concerns I have, is the complaint as drafted. The one count contains numerous claims, issues, causes of action and it would be difficult for me to sort that out. I certainly can't direct a verdict as to the entire count, at least at this juncture.

"I indicated, if I were to allow all claims to go to the jury, I know that based on the evidence as [it has] been introduced in this courtroom and the jury comes back with a verdict on any of these issues, I—for the plaintiff, I would take it away from the jury, as I would be duty bound to do. Not to create false hopes, if the jury were to come back in any one particular for the plaintiff, on any of these issues, I made my mind up."

The trial court found that as to the fraud, misrepresentation, tort and CUTPA claims, the plaintiff failed to present clear, precise and unequivocal evidence from which a jury could infer fraudulent concealment. The court, therefore, concluded that the applicable three year statutes of limitation were not tolled and that the plaintiffs claims were barred. These conclusions of the trial court applied to both the Connecticut Avenue and Isaac Street properties.

In addition to the ruling as to the statutes of limitation, the trial court ruled that the plaintiffs claims relating to the Isaac Street property were precluded by res judicata4 but that her claims as to the Connecticut Avenue property were not precluded on res judicata or collateral estoppel grounds because those claims were not involved in the prior foreclosure action.

The trial court concluded that the only viable claim remaining was the claim for a breach of the implied covenant of good faith and fair dealing as to the Connecticut Avenue property and that it would charge the jury as to that claim alone. Thereafter, the defendant presented one witness and then rested its case. No rebuttal was offered.

The next day the trial court stated the following: "Before we start anything regarding the present case, I want to make sure that the parties understand and the attorneys understand exactly what I will entertain today and that is what issue I will allow or claim I will allow to be presented to the jury. Yesterday, you will recall, I went through the various claims of the plaintiff that are contained in [her] revised complaint and decided that all save one would not be presented to the jury. I gave the reasons therefor. All reasons that I placed on the record but with respect to this claim that I said I would allow to go to the jury. I want to make sure we understand, we're all on the same wavelength. The claim, as I recall, is a breach by the defendant Norwalk Savings Society of an implied covenant of good faith and fair dealing."

The trial court explained further that it would allow the claim only as it relates to the Connecticut Avenue property. The trial court stated that "with respect to the claim of the breach of covenant, implied covenant of good faith and fair dealing relating to the Isaac Street property, that was heard. That was heard and decided in Norwalk Savings Society versus Krondes, decided a couple months ago by Judge Stevens. It was pled as a special defense, as I recall, along with a lot of other special defenses. It was fully litigated. There was a hearing, contested hearing. The judge decided the issue and decided against the defendant in that action, the plaintiff in this case .... [T]he plaintiff must understand that she made an election to have it heard and tried to the court.... She pled the breach of implied covenant of good faith and fair dealing as it relates to Isaac Street in that foreclosure action.... It was pled to the court. It was decided by the court. [It] cannot now be pled to the jury and decided by the jury."

Thereafter, the defendant renewed its motion for a directed verdict with respect to all claims in the complaint. The trial court stated, "Everything else is gone, as far as I'm concerned, from the case. It's as though I directed a verdict on all those other areas but because all of the cases—all of the claims were included in one paragraph it was very difficult for me to try to sort those out. Had they been in separate counts I would have entered a directed verdict as to those counts where I felt it required. Here, the best I can do is just say I will not charge these matters to the jury and therefore, it's as though I directed a verdict on all of these particular claims."5 The defendant argued that the court should direct a verdict as to the breach of an implied covenant of good faith and fair dealing because the plaintiff failed to present any evidence of a breach to support her claim. The plaintiff countered that she presented sufficient evidence from which a jury could find for the plaintiff.

Following the parties' arguments on the defendant's renewed motion for a directed verdict, the trial court stated the following: "I don't see for the life of me where the lender has breached any covenant, expressed or implied, in that contract without being able to make certain of these other claims that are...

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