Wallenta v. Moscowitz, (AC 23049)

CourtAppellate Court of Connecticut
Citation839 A.2d 641,81 Conn. App. 213
Docket Number(AC 23049)
Decision Date27 January 2004

Schaller, Dranginis and Bishop, Js. Chris DeMarco, with whom was Michael L. Moscowitz, for the appellant-appellee (defendant).

David A. Slossberg, with whom, on the brief, was Scott T. Penner, for the appellee-appellant (plaintiff).



This appeal concerns rescission and restitution of a contract for the sale of real property. The defendant, Michael L. Moscowitz, an attorney licensed to practice law in the state of Connecticut, agreed to sell certain premises to the plaintiff, Gary K. Wallenta. At trial, the parties agreed to bifurcate the issues of liability, which was tried to the jury, and the remedy, which was tried to the court. The jury returned a verdict in favor of the plaintiff, and the court ordered the contract rescinded and that the defendant pay restitution to the plaintiff. The defendant appeals from the judgment of the trial court asserting multiple claims that the court improperly (1) charged the jury, (2) denied his postverdict motions and (3) awarded attorney's fees.1 The plaintiff has cross appealed, claiming that the court improperly calculated both the (1) amount of restitution and (2) the amount of prejudgment interest owed to her by the defendant. We affirm the judgment of the trial court as to liability, but reverse the judgment with respect to the amount of restitution and prejudgment interest.

We begin by setting forth the facts and procedural history relevant to these appeals. During the liability phase of the trial, the jury reasonably could have found the following facts. The subject real property is located at 686 East Broadway in Milford (premises). In 1992, the defendant owned the premises and had offered them for sale. In August, 1992, the plaintiff twice visited the premises in the company of her real estate agent, David Frankel. The defendant was present on both occasions and, on each occasion, walked to the back of the premises with the plaintiff and informed her that the premises extended to the area of cut grass. He also told the plaintiff that he owned the clothesline behind the house. During the second visit, the plaintiff's then fourteen year old son accompanied her and heard the defendant state that the boundary of the premises extended to the area where the grass had been cut. Frankel confirmed the testimony of the plaintiff and her son regarding the defendant's representation that the boundary of the premises extended to the area of cut grass.

On August 19, 1992, the plaintiff signed a contract to purchase the premises for $105,000. She agreed to pay $35,000 in cash and to mortgage the premises for the remainder of the purchase price. Paragraph J of the contract provided in relevant part: "Warranty Deed, Marketable Title . . . SELLER agrees to provide BUYER at the time of closing any survey or map in the possession of SELLER." The defendant also signed the contract.

The parties closed the sales agreement on October 30, 1992. Both parties were represented by an attorney. At the closing, the defendant presented a signed affidavit attesting that there was no survey of the premises and that "there are no encroachments of structures or other improvements onto adjoining land or any easement, and that no structures or other improvements encroach onto the subject premises," and that the affidavit "is made for the purpose of inducing a purchase of said premises . . . ." The plaintiff relied on the defendant's affidavit in purchasing the premises.

In 1987, however, at a time when he owned the premises, the defendant, in fact, had obtained a survey. The survey indicated that stairs at the back of the house were one foot from the boundary of the premises. Nonetheless, the defendant constructed a deck at the back of the house that went beyond the boundary of the premises; the previously mentioned clothesline also was not on property owned by him. In 1995, the plaintiff engaged the services of a contractor with the intention of building a three season room on the footprint of the deck. At the time, a neighbor approached the plaintiff and informed her that the deck encroached on the land of another. The contractor investigated the matter in the Milford planning and zoning office and found the 1987 survey, which revealed that the deck extended beyond the bounds of the premises. After communicating with Milford officials, the plaintiff ceased her efforts to construct the three season room.

The plaintiff subsequently confronted the defendant about the situation and his failure to produce the 1987 survey at the closing. The parties were unable to resolve the matter, and the plaintiff commenced the present litigation in the fall of 1995. The original action sounded in five counts: Fraudulent misrepresentation, negligent misrepresentation, breach of the covenant of good faith and fair dealing, and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The court, Corradino, J., granted the defendant's motion for summary judgment as to the CUTPA claim. The parties presented evidence to the jury in March, 2001, and the jury returned a verdict in favor of the plaintiff on the four remaining counts. The defendant filed a number of postverdict motions, which the court denied. Over four days, between July, 2001, and April, 2002, the parties presented evidence to the court as to the remedies of rescission and restitution. By memorandum of decision filed April 24, 2002, the court ordered the plaintiff to convey the premises to the defendant on or before June 1, 2002, and ordered the defendant to pay the plaintiff restitution by that date as well. The defendant appealed and the plaintiff cross appealed.


The defendant has raised three types of claims on appeal, notably that the court improperly (1) instructed the jury, (2) denied his postverdict motions and (3) awarded the plaintiff attorney's fees. The defendant's claims lack merit.


The defendant claims that the court improperly charged or failed to charge the jury with respect to (1) clear and convincing evidence, (2) assumption of the risk, (3) injury as an element of fraud and (4) portions of the contract. We disagree with the defendant's claims.

"Our standard of review on this claim is whether it is reasonably probable that the jury was misled. . . . The test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict." (Internal quotation marks omitted.) Barrett v. Hebrew Home & Hospital, Inc., 73 Conn. App. 327, 332, 807 A.2d 1075 (2002).

The defendant's first instructional claim is that the court's charge on clear and convincing evidence was improper with regard to the plaintiff's claim of fraudulent misrepresentation. More specifically, the defendant claims that the court did not use the talismanic language "clear and satisfactory" or "clear, precise and unequivocal" when defining the standard of proof applicable to the first three elements required to be proven in a claim of fraudulent misrepresentation.2 On the basis of our review of the court's instruction regarding fraud, we conclude that it was an accurate statement of the law and sufficiently guided the jury in reaching its verdict.

After explaining to the jury the elements of fraudulent misrepresentation, the court stated that "those first three elements need to be proven by clear and convincing evidence." After distinguishing clear and convincing evidence from the criminal standard of evidence beyond a reasonable doubt and the usual civil standard of preponderance of the evidence, the court stated: "So, how do we articulate what that higher standard of proof is? This standard, clear and convincing, would be, [to] me, in the jury's mind, if the evidence establishes for the jury a reasonable belief that the facts asserted are highly, probably, true. That said, probability is substantially greater than the probability that they are not true. Okay. That is to say the scale must be heavily tipped in [the] plaintiff's favor. The other standard, more probably than not, the one that . . . governs everything else in this case, is not sufficient on fraudulent misrepresentation."

A party alleging fraudulent misrepresentation "must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as clear and satisfactory or clear, precise and unequivocal." (Internal quotation marks omitted.) Citino v. Redevelopment Agency, 51 Conn. App. 262, 276, 721 A.2d 1197 (1998).

"Connecticut case law firmly establishes that fraud must be proven by a standard more exacting than `a fair preponderance of the evidence.' This court has most recently formulated the proper standard as `clear and satisfactory evidence.' Miller v. Appleby, 183 Conn. 51, 55, 438 A.2d 811 (1981); see Bruneau v. W. & W. Transportation Co., 138 Conn. 179, 182, 82 A.2d 923 (1951); Hathaway v. Bornmann, 137 Conn. 322, 325, 77 A.2d 91 (1950). A second line of cases prefers the language of the trial court, `clear, precise and unequivocal evidence.' DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535, 546, 391 A.2d 170 (1978); Busker v. United Illuminating Co., 156 Conn. 456, 458-59, 242 A.2d 708 (1968); Creelman v. Rogowski, 152 Conn. 382, 384, 207 A.2d 272 (1965); Basak v. Damutz, 105 Conn....

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