Opinion
Argued March 5, 1981
Decision released April 14, 1981
Action to recover damages for alleged false representations and for negligence in connection with the sale and construction of a house, brought to the Superior Court in the judicial district of Waterbury and referred to Hon. Philip R. Pastore, state referee, who rendered judgment for the plaintiff, from which the defendant appealed and the plaintiff cross appealed; on retrial, the court, Ottaviano, J., rendered judgment for the plaintiff, from which the plaintiff appealed and the defendant cross appealed. No error.
Neal B. Hanlon, for the appellant-appellee (plaintiff).
George R. Temple, with whom, on the brief, was Joseph N. Perelmutter, for the appellee-appellant (defendant).
In Johnson v. Healy (I), 176 Conn. 97, 405 A.2d 54 (1978), this court decided that the plaintiff, Ronald K. Johnson, had established a cause of action for innocent misrepresentation against the defendant, John J. Healy. Because of error in the trial court's calculation of the damages resulting from such misrepresentation, we remanded the case for further proceedings limited to the issue of damages. Upon the retrial, the plaintiff was awarded the sum of $2750 in accordance with the standard established in Johnson v. Healy (I), supra, 106, "the difference in value between the property had it been as represented and the property as it actually was." Both parties have again appealed.
As we recognized in Johnson v. Healy (I), supra, 106, a standard of damages measured by diminution in value "is notoriously more difficult to apply than to state." When damages are difficult to prove, the proponent is required to prove damages with the precision which the facts permit, but no more. Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 278-79, 439 A.2d 314 (1981); Restatement (Second), Contracts 366 (Tent. Draft No. 14, 1979). In light of all of the evidence and the pleadings in the whole record, we cannot find clearly erroneous the trial court's factual determination of the damages in this case. Stelco Industries, Inc. v. Cohen, 182 Conn. 561, 564, 438 A.2d 759 (1980); Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).
On the plaintiff's appeal seeking higher damages, we find no merit in the argument that the trier was bound to accept the testimony of the plaintiff's expert witnesses. "The acceptance or rejection of the opinions of expert witnesses is a matter peculiarly within the province of the trier of fact and its determinations will be accorded great deference by this court." F.P. Carabillo Construction Co. v. Covenant Ins. Co., 172 Conn. 564, 566, 375 A.2d 1029 (1977); Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d 641 (1952). The trial court correctly refused to consider as a measure of diminution in value the plaintiff's proffered evidence of repair costs in excess of the purchase price of the property being repaired. Johnson v. Healy (I), supra, 105-106; Levesque v. D M Builders, Inc., 170 Conn. 177, 180-82, 365 A.2d 1216 (1976). The trial court did not abuse its discretion in permitting testimony concerning the plaintiff's continued occupancy of the property, subsequent to the date of the misrepresentation, when the plaintiff's witness had testified that the property would have been unsalable had the problems associated with it been known to a potential buyer. Questions of relevancy cannot be adjudicated by precise rules of law and must be left to be determined in each case according to reason and judicial experience. Hoadley v. University of Hartford, 176 Conn. 669, 672, 410 A.2d 472 (1979); Doran v. Wolk, 170 Conn. 226, 232, 365 A.2d 1190 (1976). When, as the trial court observed, the fact in question was obvious anyway, admission of the evidence could hardly constitute an abuse of discretion.
On the defendant's appeal, although three issues are listed in the statement of issues, only one issue has been addressed in argument in the brief. The defendant maintains that there was insufficient evidence before the trial court to justify even the award of $2750. The trial court relied in part upon the opinion of the defendant's expert witness, but found his estimate of a $2000 diminution in value subject to judicial modification because it was somewhat conservative. "In weighing the testimony of an expert, the trier of fact may accept part of the testimony of an expert without being bound by all of the opinion of an expert." United Aircraft Corporation v. International Assn. of Machinists, 169 Conn. 473, 490, 363 A.2d 1068 (1975), cert. denied, 425 U.S. 973, 96 S.Ct. 2172, 48 L.Ed.2d 797 (1976); Uniroyal, Inc. v. Board of Tax Review, 174 Conn. 380, 387, 389 A.2d 734 (1978). The trial court's determination had a sufficient basis in the record as a whole.
We note that neither party's brief in this court has responded in any fashion whatsoever to the arguments raised by the opposing brief's appeal or cross appeal. We deplore this lack of responsive briefing.