Lynch v. Granby Holdings, Inc., 11222

• Decision Date: 17 August 1993
• Docket Number: No. 11222,11222
• Court: Connecticut Court of Appeals
• Parties: Joseph L. LYNCH et al. v. GRANBY HOLDINGS, INC. GRANBY HOLDINGS, INC. v. Daniel L. LYNCH.

Page 609

630 A.2d 609

32 Conn.App. 574

Joseph L. LYNCH et al. v. GRANBY HOLDINGS, INC.

GRANBY HOLDINGS, INC. v. Daniel L. LYNCH.

No. 11222.

Appellate Court of Connecticut.

Argued June 8, 1993.

Decided Aug. 17, 1993.

Conn.App. 1993.

[32 Conn.App. 575] Timothy Brignole, Hartford, for appellant-appellee (plaintiff Daniel Lynch, plaintiff in the first case, defendant in the second case).

Eliot B. Gersten, with whom, on the brief, was Andrea A. Hewitt, Hartford, for appellee-appellant (named defendant in the first case, plaintiff in the second case).

Before EDWARD Y. O'CONNELL, LANDAU and FREDERICK A. FREEDMAN, JJ.

LANDAU, Judge.

This appeal and cross appeal ¹ arise out of two actions concerning a lease agreement between the parties. On appeal, Daniel Lynch, doing business as D.L. Lynch Associates (Lynch), claims that the trial court improperly (1) charged the jury on the doctrine of mitigation of damages, resulting in a verdict in favor of Lynch but awarding him zero damages, (2) charged the jury on the amount of damages Lynch claimed in his action against Granby Holdings, Inc., and the amount of damages he claimed in defense of Granby Holdings' action against him for breach of lease, (3) refused to admit evidence of Granby Holdings' failure to obtain a certificate of occupancy for the premises to show that it established a pattern of dealings between Granby Holdings and the town of Granby, and (4) refused to admit evidence of Granby Holdings' failure to obtain a certificate of occupancy for Lynch's use as a defense to Granby Holdings' action against him for breach of the lease agreement. On the

                cross appeal, Granby Holdings claims that the trial court improperly (1) admitted evidence of settlement negotiations and compromise discussions and (2) denied its motion for a directed verdict against the plaintiffs Joseph Lynch and Joan Lynch, doing business as The Sun Capsule (hereafter The Sun Capsule).   See footnote 1.   We reverse the judgment of the trial court on Lynch's breach of lease action against Granby Holdings and affirm the judgment of the trial court in all other respects
                

I THE APPEAL

The following facts are relevant to this appeal. Lynch owned a real estate brokerage firm named D.L. Lynch Associates. Lynch decided to open an office in the town of Granby and entered into negotiations with Granby Holdings in an effort to lease space in a shopping plaza owned by Granby Holdings. On March 19, 1987, Lynch and Granby Holdings entered into a written lease agreement for the rental of 2500 square feet of space in Granby Holding's shopping plaza. The lease agreement provided that Lynch could assign or sublet all or any part of the premises, subject to certain restrictions and agreements. In October, 1987, Lynch sublet 1250 square feet of his space to his parents, Joseph and Joan Lynch, for the establishment of The Sun Capsule, a suntanning business (The Sun Capsule). As part of the original lease agreement, Granby Holdings agreed to perform certain minor construction work in the event of such sublease.

After entering into the sublease agreement, The Sun Capsule contracted to have a sign made for its business. Lynch showed a representative of Granby Holdings where The Sun Capsule's sign would be located, and he had no objection. After the sign was placed on the building, the town notified The Sun Capsule that the sign had to be removed because its placement caused the total sign area for the building to exceed town regulations. The Sun Capsule removed the sign. Lynch and Granby Holdings discussed the various alternatives available to the parties to allow for the construction of some type of sign for The Sun Capsule. None of these alternatives, however, was successful. The Sun Capsule paid rent to Lynch from November, 1987, until February, 1988. Lynch continued to pay rent for the entire 2500 square foot space until December 1, 1989. The Sun Capsule vacated the sublet premises on December, 1989.

On November 3, 1988, Lynch and The Sun Capsule filed a complaint alleging that Granby Holdings (1) breached its lease and the sublease by failing to provide the necessary sign space to allow the installation of The Sun Capsule sign, (2) negligently misrepresented to The Sun Capsule the amount of sign space available to it, (3) negligently misrepresented to Lynch the amount of sign space available to his subtenant, and (4) breached its lease agreement with Lynch by failing to provide the necessary agreed upon sign space for Lynch and his subtenant. On April 27, 1990, Granby Holdings filed a complaint against Lynch for breach of the lease agreement for failure to pay rent.

After a trial before a jury, the jury found in favor of Granby Holdings on the breach of lease count brought by The Sun Capsule, in favor of The Sun Capsule on the breach of oral agreement and, in the negligent misrepresentation counts, against Granby Holdings and awarded $12,409 in damages. On the fourth count, for breach of lease brought by Lynch against Granby Holdings, the jury found in favor of Lynch but awarded zero damages.

On the complaint by Granby Holdings against Lynch for breach of the lease agreement for failure to pay rent, the jury found in favor of Granby Holdings and awarded damages in the amount of $35,911.30.

A

Lynch first claims that the trial court improperly instructed the jury on the doctrine of mitigation of damages. Because the jury's award of damages was improper "On appeal, the conclusion of the trial court from the vantage point of the trial bench cannot be disturbed unless there is a clear abuse of discretion.... An appellate court cannot retry the facts of a case or pass upon the credibility of the witnesses.... However, it is the court's duty to set aside the verdict when it finds that it does manifest injustice, and is ... palpably against the evidence.... In determining whether a verdict does such injustice, the only practical test is whether the total damages awarded fall somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.... A direct showing of partiality, prejudice, mistake or corruption is not required. If the amount awarded shocks the sense of justice as to what is reasonable, then the inferred conclusion is that the jury was misguided in reaching its decision...." (Citations omitted; internal quotation marks omitted.) Malmberg v. Lopez, 208 Conn. 675, 679-80, 546 A.2d 264 (1988).

however, we reverse and do not directly address this claim.

Our courts have held that "where the plaintiffs are entitled to recover damages for their injuries, an award limited to nominal or special damages is 'manifestly inadequate' and should be set aside, 'for the same rule governs upon an application for a new trial in the case of an inadequate award as in the case of an excessive award.' " Id., at 681, 546 A.2d 264. "An explicitly stated award of zero damages differs from an award of nominal damages. A plaintiff's verdict with a nominal damage award ordinarily suggests that the jury found that despite the defendant's liability, the plaintiff failed to prove damages.... The jury's intent in rendering a plaintiff's verdict with zero damages ... is far less clear." (Citations omitted; emphasis in original.) Id., at 681-82, 546 A.2d 264.

In Malmberg, our Supreme Court held that "[w]here liability is strongly contested and the award of damages is clearly inadequate if liability were proven ... an appellate court cannot infer from the jury verdict alone whether the jury were confused about the proper measure of damages or whether they were confused about the proper rules for determining liability, or both.... [W]here ... liability is contested and an appellate court is unable to infer whether upon a new trial a jury would find in favor of the defendant or in favor of the plaintiff an appellate court must remand the case for a trial on all issues." (Citation omitted; internal quotation marks omitted.) Id., at 682, 546 A.2d 264, quoting Freshwater v. Booth, 160 W.Va. 156, 160-62, 233 S.E.2d 312 (1977).

Here, a third factor is present. We are unable to glean from the jury's verdict whether they were confused about liability, about damages, about the mitigation damages, or all three. Therefore, the jury's award of zero damages is improper and must be vacated.

B

Lynch next claims that the trial court improperly charged the jury on the amount of damages he claimed in his action against Granby Holdings for breach of lease and in Granby Holdings' action against him for breach of lease. ² We disagree.

"A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict.... The charge is to be read as a whole, with the instructions claimed to be improper read in that context.... A reviewing court does not critically dissect the charge to discover possible inaccuracies. The test to determine if a jury charge is proper is whether ' "it fairly presents the case to the Our full and independent review of the entire jury instruction discloses that the court's charge with respect to the damages claimed by Lynch was not improper. At trial, Lynch testified that he was entitled to damages in the amount of $7700 for failure of Granby Holdings to provide space for a sign, taking into consideration his failure to pay rent while occupying the space. He later corrected himself to state that the correct figure was only $5850. In the charge, the court correctly explained the law and what Lynch was claiming. After the initial charge, at the request of Lynch, the court corrected certain figures it had given to the jury in its initial charge, and our review of that portion of the charge leads us to the conclusion that the charge was "correct in law, adapted to the issues and...