Larsen Chelsey Realty Co. v. Larsen

• Citation: 656 A.2d 1009,232 Conn. 480
• Decision Date: 04 April 1995
• Docket Number: No. 14941,14941
• Court: Supreme Court of Connecticut
• Parties: LARSEN CHELSEY REALTY COMPANY v. S. Craig LARSEN et al.

Page 1009

656 A.2d 1009

232 Conn. 480

LARSEN CHELSEY REALTY COMPANY v. S. Craig LARSEN et al.

No. 14941.

Supreme Court of Connecticut.

Argued Nov. 1, 1994.

Decided April 4, 1995.

Raymond A. Garcia, with whom was Constantine G. Antipas, New Haven, for appellant (plaintiff).

Gary P. Sklaver, with whom, on the brief, was Irving H. Perlmutter, New Haven, for appellee (named defendant).

Patrick J. Monahan, with whom, on the brief, was Denise M. Bourque, Hartford, for appellee (defendant H. Pearce Co.).

Before PETERS, C.J., and CALLAHAN, BERDON, KATZ and PALMER, JJ.

BERDON, Associate Justice.

The plaintiff, Larsen Chelsey Realty Company, instituted this thirteen count action against the defendants, S. Craig Larsen (Larsen) and H. Pearce Company (Pearce Company), seeking monetary damages, legal fees and punitive damages. The plaintiff was a real estate broker with an office in New Haven. Larsen is the former president of the plaintiff and an employee of Pearce Company, a competing real estate broker in New Haven. The ten counts directed against Larsen alleged, in the first and third counts, libel; in the second and fourth counts, slander; in the fifth count, breach of fiduciary duty; in the sixth count, unfair competition; in the seventh count, theft of corporate opportunity; in the eighth count, interference with contractual relations; in the ninth count, conversion; and in the tenth count, violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The three counts directed against Pearce Company alleged, in the eleventh count, vicarious responsibility under the doctrine of respondeat superior for certain actions taken by Larsen; in the twelfth count, "tortious conduct," including unfair competition, unfair trade practices, and interference with contractual relations; and in the thirteenth count, violations of CUTPA. ¹

At trial, after both sides had rested, the trial court granted Pearce Company's motion for a directed verdict on all of the counts against it. The trial court also granted Larsen's motion for a directed verdict on the fourth count, which alleged slander, and on the ninth count, which alleged conversion. The eight remaining counts were submitted to the jury. The jury concluded that the plaintiff had failed to sustain its burden of proof on the second count, which alleged slander, and on the third count, which alleged libel. ² The jury returned a verdict for the plaintiff against Larsen on six of the remaining counts in the following amounts: on the first count, libel, $165; on the fifth count, breach of fiduciary duty, $6000; on the sixth count, unfair competition, $1; on the seventh count, theft of corporate opportunity, $1; on the eighth count, tortious interference with business relations, $1; and on the tenth count, violations of CUTPA, $1. The court subsequently granted Larsen's motion to set aside the jury verdicts on the first count, which alleged libel, and on the tenth count, which alleged violations of CUTPA. The plaintiff has appealed, claiming error in these and other rulings of the trial court. ³ We reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. The plaintiff was formed in 1987 as a combination of Chelsey Realty Company and Larsen Realty Company, the latter of which was owned by Larsen's father, Stuart Larsen. The plaintiff hired Larsen as its president in October, 1987, and it began operations in January, 1988. By all accounts, however, the new company was less than a financial success. Throughout 1988, the company never had a profitable month.

In 1989, the events which form the basis for this action began to unfold. In January, Chester A. Zaniewski, the chairman of the plaintiff's board of directors, met with Larsen and expressed his displeasure with the performance of the company. Larsen, who originally had taken the job with a salary of $80,000, agreed to tie his salary to commissions instead. He and Zaniewski also agreed that Larsen would try to find a buyer or an investor for the plaintiff.

On February 1, Larsen met with Barbara Pearce, president of the competing Pearce Company, to learn whether Pearce Company might be interested in buying or investing in the plaintiff. Larsen had been a commercial sales agent for Pearce Company in 1983, and he had a good relationship with the company and the Pearce family. At this meeting, Pearce informed Larsen that her company was not interested in buying or investing in the plaintiff, but she did ask whether he would be interested in taking a position with Pearce Company. At that meeting Larsen gave Pearce a list of the brokers working for the plaintiff. Larsen never discussed this meeting with Zaniewski. Larsen again met with Pearce on February 21, 23 and 24.

On February 27, unbeknown to Zaniewski, Larsen told the plaintiff's employee brokers that the company was going to close, and he encouraged them to contact Pearce for jobs. Meanwhile, Larsen prepared a letter to mail to the plaintiff's clients and business contacts. The letter, dated and mailed on March 6, 1989, stated that the plaintiff was going to cease independent operations and would merge with Pearce Company. ⁴ That same day, Larsen wrote a letter to the New Haven board of realtors advising it that the plaintiff would be "closing," that he and two other realtors would be "transferring" to Pearce Company, and that "[w]e are using the month of March to finish up all old business and to transfer any new business to [Pearce Company]." ⁵ Larsen then began to solicit agents and sign listings on behalf of Pearce Company.

Two days later, on March 8, Zaniewski and his business adviser, Irwin Ganson, visited Larsen to discuss his attempts to sell the company. While waiting in a conference room, they discovered copies of the March 6 letter that Larsen had prepared and mailed. Zaniewski and Ganson confronted him with the letter and then consulted counsel. Two days later, on March 10, they returned to the office and fired him. On the same day, Larsen spoke to a representative of the owner of the building that leased space to the plaintiff and told her that the plaintiff was closing and moving that day. The owner of the building then applied for and received a prejudgment remedy, which allowed it to change the locks on the plaintiff's offices and prevent the plaintiff's agents from removing furniture, equipment, books and records. We will discuss additional facts as they become relevant.

I

We first consider the plaintiff's claim that the trial court improperly set aside the jury's verdict for the plaintiff against Larsen on the first and tenth counts of the complaint, which alleged libel and violations of CUTPA.

A

The plaintiff initially claims that the trial court improperly set aside the jury verdict for the plaintiff on the first count of the complaint, which alleged that Larsen had libeled the plaintiff in the March 6 letter mailed to the plaintiff's clients. ⁶

The following additional facts are relevant to this claim. Before the court instructed the jury, Larsen moved for a directed verdict on several counts of the complaint, including the libel count. The trial court denied his motion. Thereafter, the jury returned a verdict for the plaintiff on the libel count. Larsen then moved for the court to set aside the verdict on that count, which had awarded $165 in damages to the plaintiff, and to render judgment for him in accordance with Practice Book § 321. ⁷ The plaintiff also moved to set aside the verdict against Larsen as to damages only, claiming that the jury verdict for the plaintiff on the first count was inadequate as a matter of law.

The trial court held a hearing on May 14, 1993, on these and other posttrial motions filed by the parties. The court did not rule on these motions in court on that day. Neither party received notice of any action taken by the court. On July 13, 1993, the parties returned to court for a hearing on motions related to other counts of the complaint. During this hearing, they reminded the court that it apparently had not yet ruled on their motions to set aside the verdict as to count one. The court informed the parties that it, in fact, had made its decision in chambers after they had left court on May 14. Apparently, the clerk's office had failed to notify counsel for the parties of the court's orders. ⁸ The court stated that it had denied the plaintiff's motion for a new trial on damages ⁹ but had granted Larsen's motion to set aside the plaintiff's verdict on the libel count and to render judgment for Larsen. The court did not explain the grounds for its decision either in a written memorandum of decision or orally on the record, nor did either party ever ask the court to articulate its reasoning.

Faced with such a scant record, we are unable to determine whether the trial court was correct in setting aside the jury verdict for the plaintiff and rendering judgment for Larsen on this count. In cases such as this, where meaningful appellate review is precluded by the incompleteness of the record, we have taken two approaches. Under the first approach, and the one we usually take, we have disposed of the appeal by summarily affirming the decision of the trial court. See, e.g., Ginsberg v. Fusaro, 225 Conn. 420, 431-32, 623 A.2d 1014 (1993) (trial court, in denying motion to set aside verdict, had failed to file memorandum of decision). Reasoning that it is ultimately the responsibility of the appellant to secure an adequate appellate record, we have refused to entertain claims of error brought by a party who has failed to undertake this obligation. Id. Under the second approach, however, we have utilized this court's authority, pursuant to Practice Book § 4061, ¹⁰ to remand the case to the trial court in order that it may articulate the grounds for its decision. See, e.g., Rostain v. Rostain, 213 Conn. 686, 694, 569 A.2d 1126 (...