Tessmann v. Tiger Lee Const. Co.

• Citation: 634 A.2d 870,228 Conn. 42
• Decision Date: 07 December 1993
• Docket Number: No. 14639,14639
• Parties: Wayne E. TESSMANN et al. v. TIGER LEE CONSTRUCTION COMPANY et al.
• Court: Supreme Court of Connecticut

Page 870

634 A.2d 870

228 Conn. 42

Wayne E. TESSMANN et al. v. TIGER LEE CONSTRUCTION COMPANY et al.

No. 14639.

Supreme Court of Connecticut.

Argued Sept. 24, 1993.

Decided Dec. 7, 1993.

Edward W. Gasser, Hartford, with whom was Robyn Sondak, Middletown, for appellants (named defendant et al.).

Edward F. Hennessey, Hartford, with whom, on the brief, was Sheila M. Hennessey, Wethersfield, for appellees (plaintiffs).

Before CALLAHAN, BORDEN, NORCOTT, KATZ and PALMER, JJ.

CALLAHAN, Associate Justice.

This is an appeal from a Superior Court judgment rendered upon a jury verdict finding that the defendant Tiger Lee Construction Company (Tiger Lee) violated the New Home Warranties Act, chapter 827 of the General Statutes, and that the defendants Tiger Lee and Eugene Sammartino violated the Connecticut Unfair Trade Practices Act (CUTPA), chapter 735a of the General Statutes. The jury awarded the plaintiffs compensatory damages of $30,000 against Tiger Lee and Sammartino, and the trial court awarded punitive damages of $30,000, attorney's fees of $20,000 and interest of $14,375 against those defendants. Tiger Lee and Sammartino appeal from the judgment ¹ claiming: (1) the trial court improperly permitted the plaintiffs to testify concerning the diminution in value of their property, which testimony contradicted their earlier answers to the defendants' interrogatories; (2) the trial court improperly denied the defendants' request for a continuance to obtain an expert to rebut the plaintiffs' testimony as to diminution in value; (3) the evidence did not support the trial court's award of punitive damages; and (4) the trial court engaged in an improper ex parte communication with the jury prior to the conclusion of the trial. We affirm the judgment of the trial court.

The facts can be briefly summarized as follows. In the fall of 1986, the plaintiffs, Wayne and Bonnie Tessmann, purchased a lot from the defendant FRI Land Equities (FRI). In December, 1986, the plaintiffs contracted with Sammartino, an agent of Tiger Lee, to construct a house on the property. The contract provided for the house to be delivered in April, 1987, but it was not delivered until July, 1987. After delivery, the plaintiffs encountered numerous problems with the construction of the house and complained to Sammartino, Tiger Lee and FRI.

The defendants denied the existence of some of the problems and renounced responsibility for the others. The plaintiffs, thereafter, brought this action in the Superior Court. In their complaint, the plaintiffs claimed that there was a unity of ownership between FRI and Tiger Lee, that Sammartino acted as an agent of Tiger Lee, and that all three defendants violated the New Home Warranties Act and CUTPA in connection with the sale of the property and the construction of the plaintiffs' house.

I

The defendants' first two claims address the plaintiffs' testimony concerning the diminution in value of their house due to the problems with its construction. Specifically, the defendants contend that the trial court improperly permitted the plaintiffs to testify concerning the diminished value of their house, and improperly denied the defendants' request for a continuance to rebut that testimony. In order to resolve the defendants' claims, it is necessary to understand the events that led to the trial court's admission of the plaintiffs' testimony and to its denial of a continuance to the defendants to obtain an expert to counter that testimony.

The defendants first raised the issue of damages in their requests for disclosure and production, which were served on the plaintiffs on August 30, 1990. In their interrogatories, the defendants asked the plaintiffs to:

"6. State the fair market value of the property in question as of July 31, 1987.

"7. State the fair market value [of the property in question] as of July 25, 1988.

"8. State the fair market value of the property as of July 25, 1988, had the alleged defects ... not been present or had been corrected." The answers given by the plaintiffs to these questions were "I do not know."

On the first day of trial the defendants objected to the plaintiffs' attempt to introduce the report and testimony of Kenneth Grous, a builder. That evidence would have placed a dollar amount on the diminution in value allegedly suffered by the plaintiffs due to the defendants' substandard construction. The defendants claimed that they had never received a copy of the report. The defendants moved to preclude Grous' report and testimony under Practice Book § 220(D), ² which required the plaintiffs to disclose the substance of any expert testimony they planned to present within sixty days from the date the case was claimed to the trial list. Section 220(B) provides that, in the absence of such a disclosure, the expert "shall not testify except in the discretion of the court for good cause shown."

In response to the objection to Grous' report, the plaintiffs' counsel stated that the report had been telecopied to the defendants' counsel in a timely manner. The defendants' counsel, however, maintained that he had never received a copy of any such report. After hearing argument by both attorneys, the trial court granted the defendants' motion in limine and excluded Grous' report and testimony pursuant to § 220(D).

That ruling precluded the plaintiffs' only expert witness able to place a dollar amount on the plaintiffs' damages. Faced with this prospect, the plaintiffs sought to introduce evidence regarding diminution in value by testifying themselves at trial as to their opinion of the value of their house as it was, compared to what it would have been had the house been properly constructed. The plaintiffs testified that, in their opinion, the diminution in value that they had suffered as a result of construction deficiencies was between $20,000 and $30,000. ³

To recover damages, the plaintiffs had the burden of producing evidence that afforded the jury a reasonable basis to measure the plaintiffs' loss. Ferri v. Pyramid Construction Co., 186 Conn. 682, 691, 443 A.2d 478 (1982); Johnson v. Flammia, 169 Conn. 491, 501, 363 A.2d 1048 (1975). One way the plaintiffs could have proven damages would have been to present evidence of diminution in value, which is "the difference in value between the property had it been as represented and the property as it actually was." Johnson v. Healy, 176 Conn. 97, 106, 405 A.2d 54 (1978); West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 318, 541 A.2d 858 (1988).

It is undisputed that homeowners are qualified to testify as to their personal opinion regarding the value, or diminution in value, of their properties. State v. Simino, 200 Conn. 113, 120, 509 A.2d 1039 (1986); Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982); McCahill v. Town & Country Associates Ltd., 185 Conn. 37, 41, 440 A.2d 801 (1981). ⁴ The defendants conceded as much, but objected to the admission of the plaintiffs' testimony on the ground that it contradicted their answers to the defendants' interrogatories, which had indicated that the plaintiffs did not know the fair market value of their house or its fair market value without the defects. Thus the defendants argue on appeal that the trial court improperly failed to exclude the plaintiffs' testimony pursuant to Practice Book § 231(d).

Section 231 provides in relevant part: "If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond to requests for production or for disclosure ... or has failed to comply with the provisions of Sec. 232 ⁵ ... the court may, on motion, make such order as the ends of justice require." Specifically, the court may enter "an order prohibiting the party who has failed to comply from introducing designated matters in evidence." Practice Book § 231(d). Whether to exclude testimony under § 231(d) is a matter entrusted to the sound discretion of the trial court. Berry v. Loiseau, 223 Conn. 786, 798-99, 614 A.2d 414 (1992); Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989); Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 40, 404 A.2d 889 (1978). In reviewing the trial court's decision, every reasonable presumption should be made in favor of the court's proper exercise of its discretion. Timm v. Timm, 195 Conn. 202, 206, 487 A.2d 191 (1985); Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591 (1926).

The plaintiffs claim that their testimony regarding the diminution in the value of their house attributable to the defendants' faulty construction was not inconsistent with their answers to the defendants' interrogatories and was properly admitted for that reason. We disagree.

The plaintiffs first argue that whereas the defendants' questions regarding fair market value requested a fact, the plaintiffs' trial testimony simply constituted their opinion of the property's diminution in value. This distinction is without merit. A determination of fair market value, which is defined as "[t]he amount at which property would change hands between a willing buyer and a willing seller"; Black's Law Dictionary (6th Ed.1990); necessarily requires a prediction as to what price a property would command were it to be sold. The plaintiffs, therefore, should have understood that the defendants' questions sought their opinions as to the property's fair market value rather than any objectively verifiable fact.

We also reject the plaintiffs' other overly technical explanations as to why their testimony at trial covered different areas than the defendants' interrogatories and was not inconsistent with their answers to the interrogatories. A reasonable person would have concluded that the defendants' interrogatories were aimed at the same information to which the plaintiffs testified at trial--diminution in value. Practice Book § 231,...