Sheridan v. Desmond

• Decision Date: 15 July 1997
• Docket Number: No. AC,AC
• Citation: Sheridan v. Desmond, 697 A.2d 1162, 45 Conn.App. 686 (Conn. App. 1997)
• Parties: Brian SHERIDAN et al. v. James DESMOND et al. 15217.
• Court: Connecticut Court of Appeals

Page 1162

697 A.2d 1162

45 Conn.App. 686

Brian SHERIDAN et al. v. James DESMOND et al.

No. AC 15217.

Appellate Court of Connecticut.

Argued April 21, 1997.

Decided July 15, 1997.

Stephen M. Feinstein, with whom were Rebecca L. Balzac, Norwalk, and, on the brief, Kyle Barnett, Legal Intern, for appellant (defendant Dorothy Imhoff).

Alan M. Doran, West Chester, with whom, on the brief, was Bruce J. Corrigan, Jr., Westport, for appellees (plaintiffs).

Before HEIMAN, SPEAR and FRANCIS X. HENNESSY, JJ.

SPEAR, Judge.

The defendant Dorothy Imhoff appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiffs. On appeal, she claims that the trial court improperly denied her motion for a directed verdict because the plaintiffs failed to prove, in accordance with General Statutes § 34-51, ¹ that her partner's tortious actions, which caused the plaintiffs' losses, were within the scope of the partnership business or that she authorized his actions. We reverse the judgment of the trial court on the first three counts and affirm the judgment as to the fourth count. ²

The jury reasonably could have found the following facts. Dorothy Imhoff (defendant) and James Desmond, Sr. ³ (Desmond), owned, as tenants in common, commercial property located at 25 Perry Avenue in Norwalk. The defendant authorized Desmond to manage the property and did not participate in the day-to-day operations of the business. The plaintiffs signed a one year lease for the property at 25 Perry Avenue commencing October 10, 1986. They operated a night club on the property.

Desmond owned a lot located at 41 Perry Avenue that adjoined 25 Perry Avenue, in which the defendant had no ownership interest. On July 21, 1989, Desmond began construction of a building on the lot at 41 Perry Avenue. During construction, a trench was dug that blocked the fire exit doors located at the rear of 25 Perry Avenue. On July 27, 1989, the fire marshal ordered the plaintiffs' club closed for a violation of the fire code resulting from the blocked exit doors. On September 22, 1989, after the trench was filled, the fire marshal informed the plaintiffs that they could reopen. On the same day, Desmond constructed barriers on 41 Perry Avenue that again blocked the plaintiffs' fire exit doors.

The plaintiffs instituted an action seeking an injunction against Desmond. ⁴ The injunction was granted, the barriers were removed, and the plaintiffs' business reopened on November 4, 1989. The plaintiffs vacated the premises in December, 1989. ⁵

The following procedural history is relevant to this appeal. After Desmond's death, the administrator of his estate was joined as a defendant. Thereafter, the action was withdrawn as against Desmond's estate, and the plaintiffs filed a four count complaint against the defendant, alleging that the defendant and Desmond (1) intentionally and maliciously prevented them from operating their business, (2) breached their covenant of quiet enjoyment, (3) violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and (4) unlawfully withheld the plaintiffs' security deposit. The jury returned a general verdict in favor of the plaintiffs in the amount of $44,000.

After the close of evidence, the defendant filed a motion for a directed verdict, arguing, inter alia, that the plaintiffs failed to prove that she was liable for Desmond's wrongful acts pursuant to § 34-51. The trial court denied her motion and rendered judgment for the plaintiffs on the jury's verdict. This appeal followed.

I

Before we address the merits of the defendant's claim, we must first address the applicability of the general verdict rule. Under the general verdict rule, "if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party." Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993). "Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall." Staudinger v. Barrett, 208 Conn. 94, 100, 544 A.2d 164 (1988).

The general verdict rule "rests on the sound policy of conservation of judicial resources, at both the appellate and trial levels. On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated.... In the trial court, the rule relieves the judicial system from the necessity of affording a second trial if the result of the first trial potentially did not depend upon the trial errors claimed by the appellant. Thus, unless an appellant can provide a record to indicate that the result the appellant wishes derives from the trial errors claimed, rather than from the other, independent issues at trial, there is no reason to spend the judicial resources to provide a second trial." (Citation omitted.) Curry v. Burns, supra, 225 Conn. at 790, 626 A.2d 719.

In this case, we are able to determine that the result of the first trial was based, at least in part, on the defendant's claim of error on appeal. In order to support a finding of liability on any of the first three counts, or any combination thereof, the plaintiffs were required to prove that Desmond's actions were (1) within the scope of the partnership business or (2) authorized by the defendant. Count four of the complaint alleges that the defendant unlawfully withheld the plaintiffs' security deposit and recovery under that count is not dependent on the jury's finding that the defendant is vicariously liable for Desmond's tortious actions. Pursuant to § 47a-21(d)(2), ⁶ recovery on the fourth count is limited to $8640 plus interest, an amount far less than the amount awarded. The jury's verdict, therefore, must have been based on a finding in favor of the plaintiffs on at least one of the first three counts, but the plaintiffs proved none of those counts, as we discuss in part II. Accordingly, we do not apply the general verdict rule.

II

We turn next to the defendant's claim that she was not liable for the tortious conduct of her partner and that the court should have granted her motion for a directed verdict. We agree.

"At the outset, we note the appropriate standard of review. In considering the trial court's denial of a motion for a directed verdict, we view the evidence in the light most favorable to the prevailing party.... Nevertheless, a verdict will be set aside and judgment directed if we find that the jury could not reasonably and legally have reached their conclusion.... A directed verdict is justified if on the evidence the jury could not reasonably and legally have reached any other conclusion." (Citations omitted; internal quotation marks omitted.) Krondes v. O'Boy, 37 Conn.App. 430, 433, 656 A.2d 692 (1995). "While it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation.... If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury." (Citations omitted; internal quotation marks omitted.) DiDomizio v. Frankel, 44 Conn.App. 597, 600, 691 A.2d 594 (1997).

With this standard of review in mind, we turn now to the law concerning partnerships. Generally, "[r]ules governing the liability of a principal for the tortious acts of his agent ... have been held to apply to the liability of one copartner for the tortious action of another." 68 C.J.S., Partnership § 168 (1950). The application of general principles of agency is in accord with the law of our state. See General Statutes § 34-42(3). ⁷

Section 34-51, which is part of the Uniform Partnership Act, was codified in Connecticut in 1961. Pursuant to this statute, liability is imposed on a partner for the tortious acts of his partner only where (1) the act occurred in the ordinary course of the partnership's business, or (2) the tortfeasor partner acts with the authority of his partner or partners. "The test of partners' joint and several liability in tort is based on a determination whether the wrong was committed in behalf of and within the reasonable scope of the business of the partnership. If so, the partners are liable as joint tortfeasors.... But where the injury results from a wanton or willful act of one of the [partners], committed outside the agency of common business, then the [partner] doing the act and causing the injury is alone responsible, unless the act which constitutes the wanton or willful tort is authorized by the members of the partnership ...." 59a Am.Jur.2d, Partnership § 650. "The connection with the partnership business or objective must rise above the level of mere speculation or surmise in order to establish a partnership purpose in the tortfeasor's conduct." Id., § 651.

A

We must first determine whether Desmond's tortious actions occurred within the ordinary scope of partnership business. We conclude that they did not.

Our courts have yet to interpret the "ordinary course of the business" language contained in § 34-51. The defendant urges this court to adopt the factors set forth by the Massachusetts Supreme Judicial Court in Kansallis Finance Ltd. v. Fern, 421 Mass. 659, 659 N.E.2d 731 (1996). ⁸ In Kansallis, Stephen Jones and the four defendants were partners in a law firm. The plaintiff requested an opinion letter from Jones regarding a loan and lease financing transaction. Jones and others, not defendants in the case, conspired to defraud the plaintiff and provided an opinion letter on the law firm's stationery that...