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emphasizing that the statute applies to "negligence actions to recover damages for injuries to persons or property"
Summary of this case from Petrucelli v. PalmerOpinion
No. CV03 0405088
April 13, 2006
MEMORANDUM OF DECISION DEFENDANTS' MOTION TO SET ASIDE VERDICT
The defendants have filed a motion to set aside the jury verdict in favor of the plaintiffs and request that the court render judgment in favor of the defendants on all counts in accordance with the defendants' motion for a directed verdict.
The plaintiffs commenced this action to recover damages against the defendants, Willott, LLC, and William Squires and Lotte-Lill Squires on various allegations of breach of contract, negligent misrepresentation and intentional misrepresentation against one or more of the named defendants regarding a proposed sale of real property from the defendants to the plaintiffs. The defendants William Squires and Lotte-Lill Squires are husband and wife and are the principals of Willott, LLC.
The matter was tried before a jury, and on October 20, 2005, a verdict was rendered. Regarding the allegations of a breach of contract as to Willott, LLC only, the jury entered a verdict in behalf of the defendant finding that there was no contract for the purchase and sale of the subject property. As to the allegations regarding negligent misrepresentations as to William Squires and Lotte-Lill Squires only, the jury entered a plaintiffs' verdict, but as to each of these defendants, the jury awarded the plaintiffs no damages. As for the allegations of negligent misrepresentation as to Willot, LLC, the jury found in favor of the plaintiffs and awarded the plaintiffs damages totaling $11,149.50 as against Willott, LLC only. The jury then found in favor of the plaintiffs as to the claims of intentional misrepresentation that were made by the plaintiffs against William Squires and Lotte-Lill Squires only, and awarded the plaintiffs damages in the amount of $5,574.75 as against each of these two defendants.
The total damages of $11,149.50 consisted of the following categories: Attorneys fee ($884.50); Phone installation ($75.00); Yellow Page advertising ($190.00); Bargained for Value of Property ($10,000.00).
The sum of $5,574.75 each, assessed against William Squires and Lotte-Lil Squires represents 1/2 of the total damages noted in footnote 1 and for the identical categories of damages.
In reaching its verdict on the various counts alleged against the defendants, the jury answered interrogatories submitted to it by the court in a form and number approved by the parties. The jury interrogatories form was divided into subsections regarding the various allegations of breach of contract, negligent misrepresentation, and intentional and fraudulent misrepresentations as they might have applied to each of the various defendants.
A final section of the interrogatories form was to be answered by the jury only if they found any of the allegations in favor of the plaintiffs and awarded damages. That section reads as follows:
32. The plaintiffs have requested damages for their attorneys fee, their phone installation, the services of Joseph Goldman and their loss of the bargained value of the subject property. If you have entered an award of damages for any of the above-listed categories against any defendant for either a breach of contract, negligent misrepresentation or intentional misrepresentation is it your intention that these awards not be duplicated in their amounts so that the plaintiffs not receive multiple recoveries of damages for any one category of damages?
In response to this question the jury answered "Yes." It is with the findings of the jury and the specific response to this interrogatory and the interrogatories for each count and each defendant, that the court addresses the claims of the parties.
I STANDARD OF REVIEW
The legal standards regarding a motion to set aside a jury verdict are well established. Motions to set aside jury verdicts are authorized by Practice Book § 16-35 and General Statutes § 52-228b.
Sec. 16-35. Motions after Verdict: Motions in Arrest of Judgment, to Set Aside Verdict, for Additur or Remittitur, for New Trial, or for Collateral Source Reduction.
Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict, motions for remittitur, motions for additur, motions for new trials, unless brought by petition served on the adverse party or parties, and motions pursuant to General Statutes § 52-225a for reduction of the verdict due to collateral source payments must be filed with the clerk within ten days after the day the verdict is accepted; provided that for good cause the judicial authority may extend this time. The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies.
Sec. 52-228b. Setting aside of verdict in action claiming money damages.
No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.
"When considering a motion to set aside the verdict, [the trial] court's function is to determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict." (Internal quotation marks omitted.) Skrypiec v. Noonan, 228 Conn. 1, 10, CT Page 7061 633 A.2d 716 (1993), Preston v. Wellspeak, 62 Conn.App. 77, 81, 767 A.2d 1259 (2001). "A trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied." Card v. State, 57 Conn.App. 134, 138, 747 A.2d 32 (2000). "A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion." (Internal quotation marks omitted.) Kurti v. Becker, 54 Conn.App. 335, 337, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999).
"Before determining whether the granting of a motion to set aside is proper, the trial court must look at the relevant law that it gave the jury to apply to the facts, and at the facts that the jury could have found based on the evidence. The law and evidence necessarily define the scope of the trial court's legal discretion. This discretion vested in the trial court is not an arbitrary or capricious discretion, but rather, it is legal discretion to be exercised within the boundaries of settled law. This limitation on a trial court's discretion results from the constitutional right of litigants to have issues of fact determined by a jury. Suarez v. Sordo, 43 Conn.App. 756, 759-60, 685 A.2d 1144 (1996), cert. denied, 240 Conn. 906, 688 A.2d 334 (1997). "The right to a jury trial is fundamental in our judicial system, and [the Supreme Court of this State] has said that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of a trial by jury includes the right to have issues of fact as to which there is room for reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court." Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970).
Additionally, the court's consideration of a motion for additur is also guided by the parties' constitutional right to have factual disputes determined by the jury. The constitutional right of a party to have damages decided by the jury "is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court." Gladu v. Sousa, 52 Conn.App. 796, 800, 727 A.2d 1286, (1999), aff'd., CT Page 7062 252 Conn. 190, 745 A.2d 798 (2000).
In evaluating the adequacy of a jury's verdict, the court cannot substitute its discretion for that of the jury simply because this court would consider or weigh the evidence differently. Mere doubt as to the adequacy of a verdict or a conclusion that the jury exercised poor judgment are insufficient grounds to order an additur. Wochek v. Foley, 193 Conn. 582, 587, 477 A.2d 1015 (1984). "A verdict should not be set aside . . . where it is apparent that there was some evidence on which a jury might reasonably have reached its conclusion." Schettino v. Labarba, 82 Conn.App. 445, 450 (2004). A court should be hesitant to set aside a jury's award of damages because the assessment of damages defies any precise mathematical computation. Floyd v. Fruit Industries, Inc., 144 Conn. 659, 675, 136 A.2d 918 (1957). Establishing damages is a task peculiarly within the expertise of a jury. Zarelli v. Barnum Festival Society, Inc., 6 Conn.App. 322, 326, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986).
On the other hand, "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." (Internal quotation marks omitted.) Malmberg v. Lopez, 208 Conn. 675, 679-80, 546 A.2d 264 (1988). The standard controlling this consideration is "whether the award of damages falls 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 [was] influenced by partiality, mistake or corruption." (Internal quotation marks omitted.) Wood v. Bridgeport, 216 Conn. 604, 611, 583 A.2d 124 (1990).
II
The defendants claim that the verdicts in Counts Two and Four alleging negligent misrepresentation and fraudulent misrepresentation respectively, should be set aside because the plaintiffs failed to allege that the representations of the defendants induced any act of the plaintiffs.
"Whether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact. J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); Miller v. Appleby, 183 Conn. 51, 55, 438 A.2d 811 (1981)." "[Our Supreme Court] has long recognized liability for negligent misrepresentation . . . [It has held that] even an innocent misrepresentation of fact `may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth.' Richard A. Waldman Sons, Inc., 155 Conn. 343, 346, 232 A.2d 307 (1967) . . ." (Citations omitted.) D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217, 520 A.2d 217 (1987).
"The governing principles are set forth in . . . § 552 of the Restatement Second of Torts (1979): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." (Internal quotation marks omitted.) Citino v. Redevelopment Agency, 51 Conn.App. 262, 273-74, 721 A.2d 1197 (1998); Burnham v. Karl Gelb, P.C., 50 Conn.App. 385, 390, 717 A.2d 811 (1998)."[T]he plaintiff need not prove that the representations made by the [defendant] were promissory. It is sufficient . . . that the representations contained false information." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 218.
"It is well established that common law fraud must be proven by a higher standard than a fair preponderance of the evidence. This middle tier standard has been described as `clear and satisfactory evidence' and as `clear, precise and unequivocal evidence.'" Kilduff v. Adams, Inc., 219 Conn. 314, 327-28, 593 A.2d 478 (1991); Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 181, 540 A.2d 693 (1988); Aksomitas v. Aksomitas, 205 Conn. 93, 100, 529 A.2d 1314 (1987); J. Frederick Scholes Agency v. Mitchell, supra, 191 Conn. 358.
It is also settled law that "`[t]he essential elements of an action in fraud . . . are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; [fn. 15] (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury." Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970); D. Wright J. Fitzgerald, Connecticut Law of Torts (2d Ed.) 135.
"An actionable misrepresentation, whether made knowingly, recklessly, negligently or innocently, must be made for the purpose of inducing action upon it." J. Frederick Scholes Agency v. Mitchell, supra, 191 Conn. 359; Clark v. Haggard, 141 Conn. 668, 673, 109 A.2d 358 (1954).
The defendants claim that the verdict should be set aside because the plaintiffs failed to specifically allege inducement. However, as the plaintiffs argue, the defendants do not claim that there was insufficient proof of inducement.
An otherwise valid judgment will not be invalidated if a variance between the pleading and the proof does not change the theory of the cause of action and if the complaining party at all times was in a position to know the true sate of facts. Strimiskav. Yates, 158 Conn. 179, 184, 257 A.2d 814 (1969); Lyons v. Nichols, 63 Conn.App. 761, 766, 778 A.2d 246 (2001); DiLieto v. Better Homes Insulation Co., 16 Conn.App. 100, 106, 546 A.2d 957 (1988). To set aside a judgment on the basis of a variance between the pleading and the proof, the variance must be material in a way which is essential to the cause of action claimed. Schaller v. Roadside Inn, Inc., 154 Conn. 61, 67, 221 A.2d 263 (1966). Immaterial variances are disregarding. Practice Book § 10-62. A variance is material if the defendants have been prejudiced in maintaining their defense, or if they have been surprised or misled by the allegations of the complaint. Strimiska v. Yates, supra, 158 Conn. 184.
The court agrees with the plaintiffs that the defendants have not set forth an argument that they were prejudiced, surprised or misled by the allegations of the complaint. The complaint sets forth an action for negligent misrepresentation and it is no surprise that in addition the parties also understood the complaint to allege an intentional misrepresentation theory of recovery, as well. The defendants should have raised the question of a material variance at the time evidence was presented so to allow the plaintiff an opportunity to make its pleading, if insufficient, conform to the proof. D'Agostino v. Amendola, 17 Conn.App. 810, 550 A.2d 1103 (1988) (Any variations between the findings and the pleadings were waived because no objection was made at trial.); see also, DiLieto v. Better Homes Insulation Co., supra, 16 Conn.App. 104-05.
Lastly, the defendants filed to argue that the jury should not be charged on the elements of misrepresentation, and did, in fact, submit charges as to those counts. The defendants made no request of the court for a charge regarding the failure to allege inducement.
III
The defendants also argue that the verdicts against Lotte-Lil Squires should be set aside because there was no testimony that this defendant made any statements of any facts alleged by the plaintiffs. The court disagrees.
Defendants Mr. and Mrs. Squires had been married for many years. Mrs. Squires was a member of the defendant Willott, LLC and, as such, had an ownership in the real property which is the subject of this dispute. The jury could reasonably infer that she was aware of the circumstances regarding the encumbrances affecting the property. The evidence showed that she was present at meetings between the plaintiffs, her husband and the real estate agent. At times she did offer information regarding the property. She heard discussions regarding the details of the pending sale of the property. The jury could reasonably find that she had the opportunity and the duty to speak concerning the property, but failed to do so.
IV
The defendants further argue that the verdict should be set aside because negligent misrepresentation and intentional fraud must be made either in the inducement to enter into a contract or in the performance of the contract. The defendants fail, however, to point to any case law regarding this proposition.
In the present matter, in response to a specific interrogatory, the jury found that a letter between the parties dated May 28, 2003 was not a contract. This however, is not fatal to the plaintiffs' action sounding in misrepresentation. "For purposes of a cause of action for negligent misrepresentation . . . the plaintiff need not prove that the representations made by the defendants were promissory. It is sufficient to allege that the representations contained false information." D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, supra, 202 Conn. 217-19; Mips v. Becon, Inc., 70 Conn.App. 556, 799 A.2d 1093 (2002).
The jury could have reasonably concluded that the representations were made by the defendants and their agents that there could be a closing by June 16, 2003, and that the property could be sold for $370,000. The defendants knew or should have known that the proposed sale would be contingent upon the approval of the Webster Bank, a lien holder. This was not disclosed to the plaintiffs and given their prior dealings with the Webster Bank, the jury could conclude the defendants knew these statements regarding the sales price and the closing date were false. The plaintiffs in reliance on this false information, did not search for other suitable properties to relocate their accounting business.
V
The defendants also argue that the verdict should be set aside because the statements made by Mr. Squires were not untrue at the time they were made, and only expressed his expectation, opinion and intent. Thus these statements do not constitute actionable misrepresentation.
"Although the general rule is that a misrepresentation must relate to an existing or past fact, there are exceptions to this rule, one of which is that a promise to do an act in the future, when coupled with a present intent not to fulfill the promise, is a false representation." Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970); see also Yeong Gil Kim v. Magnotta, 49 Conn.App. 203, 225, 714 A.2d 38 (1998) ("A representation about a promise to do something in the future, when linked with a present intention not to do it, is a false representation"). Thus, the jury could have reasonably concluded that the defendants knew the representation regarding when the closing could take place was false. Mr. Squires knew he would have to take the offer to the Webster Bank for approval and he knew this would not be a rapid process. The jury could have concluded that Mr. and Mrs. Squires kept Webster's interest from the knowledge of the plaintiffs, as any undue delay would make the property less desirable to the plaintiffs. The jury could have concluded that Mr. and Mrs. Squires knew that a closing by the end of June 2003 was not possible and that they had no intent to close by the end of June 2003, and that these statements by the defendants were false when made.
VI
The defendants also raise the claim for the first time, that the plaintiffs' actions in failing to obtain a title search constituted contributory negligence. They argue that the plaintiffs' claim of reliance is seriously flawed and "disingenuous" when the plaintiffs knew or should have known that the defendants' title to the property was causing a problem in establishing a closing date, and that by not performing a title search, the plaintiff's actions constituted "gross negligence." The court disagrees.
First, the court notes that the defendants have never raised contributory negligence as a special defense. See Practice Book § 10-53. Second, contributory negligence applies negligence actions to recover damages for injuries to persons or property. See General Statutes § 52-114. Third, the failure to perform a title search does not negate the findings of reliance. The recipient of a fraudulent misrepresentation of fact is justified in relying upon its truth, although he might have ascertained the falsity of the representation had he made an investigation. The recording acts are not intended as a protection for fraudulent liars. Their purpose is to afford protection to persons who buy a recorded title against those who, having obtained a paper title, have failed to record it. The purpose of the statutes is fully accomplished without giving them a collateral effect that protects those who make fraudulent misrepresentations from liability. 3 Restatement (Second) Torts § 540, p. 881 (1977); see also, 37 Am.Jur.2d Fraud and Deceit § 258 at 281 (2001). The recipient of a fraudulent misrepresentation of fact is justified in relying upon its truth, although he might have ascertained the falsity of the representation had he made an investigation. "The doctrine of constructive notice does not apply to serve as a shield of protection from accountability for one who makes false representations to another's damage." Aksomitas v. Aksomitas, 205 Conn. 93, 99 (1987) 529 A.2d 1314 (1987).
Sec. 10-53. Pleading Contributory Negligence
If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant and the defendant shall specify the negligent acts or omissions on which defendant relies. (See General Statutes § 52-114 and annotations.)
Sec. 52-114. Pleading of contributory negligence.
In any action to recover damages for negligently causing the death of a person, or for negligently causing personal injury or property damage, it shall be presumed that such person whose death was caused or who was injured or who suffered property damage was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care. If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants.
VII
The defendants argue that the jury should not have been permitted to find the "benefit of the bargain" damages, as the jury found that no contract existed. Additionally, the defendants argue that there was no competent or reliable evidence that the value of the property was anything more than the price of $370,000. The defendants also complain that the jury should not have been allowed to consider actual damages for items such as phone installation, phone directory advertising, attorneys fees and any other expenses when it was allowed to consider benefit of the bargain damages because if the plaintiffs received benefit of the bargain damages, they would have necessarily incurred those expenses to obtain that bargain. Thus, in effect, the jury awarded such damages twice. "`Where the general measure [of damages] used is the benefit of the bargain measure . . . care must be exercised to avoid giving the plaintiff an unwarranted bonus.' Dobbs, Remedies § 9.2, p. 599." Miller v. Appleby, 183 Conn. 51, 59, 438 A.2d 811 (1981); Foley v. Huntington Company, 42 Conn.App. 712, 744, 682 A.2d 1026 (1996).
It is well-settled law that property owners can testify as to their opinion of fair market value. Misisco v. LaMaita, 150 Conn. 680, 192 A.2d 891 (1963). The jury had evidence of what the defendants thought the property was worth; what the defendants listed it for; what they told others about its value and costs; and what the plaintiffs offered for the property. The jury also had evidence that this was a distress sale and could have inferred that the plaintiffs' offer was low and the defendants' demand was high.
The plaintiffs argue that in a fraud case or a breach of contract case, the plaintiff would be entitled to recover that amount which represents the loss of the benefit of the bargain, as the difference between the contract price and the property's fair market value. "[C]ontract damages are ordinarily based on the injured party's expectation interest and are intended to give him the benefit of the bargain by awarding a sum of money that will, to the extent possible, put him in as good a position as he would have been in had the contract been performed." 22 Am.Jur.2d 68, Damages 45; Colby v. Burnham, 31 Conn.App. 707, 721 (1993) 627 A.2d 457 (1993). Such damages, moreover, are to be determined as of the time of the occurrence of the breach. O'Hara v. State, 218 Conn. 628, 642, 590 A.2d 948 (1991); West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 317, 541 A.2d 858 (1988).
The underlying premise in an award for the benefit of the bargain damages is the existence of a contract and a breach of such contract. That is not the case here. The jury in its answer to the first interrogatory found that there was no contract between the parties for the purchase and sale of the subject parcel of real estate. This answer by the jury was regarding the First Count of the complaint against Willott, LLC only, alleging that Willott, LLC was in breach of a contract.
In their responses to interrogatories regarding the Second Count of the Complaint based on allegations that the defendants Willott, LLC, William Squires and Lotte-Lill Squires made negligent representations to the plaintiffs, the jury awarded the plaintiffs $11,149.50 as against Willott, LLC. This award of damages included the sum of $10,000 for the category of "Bargained for Value of Property" and an additional $1,149.50 for other categories of damages. The jury also rendered a verdict against both William Squire and Lotte-Lill Squires for negligent misrepresentation. However, the jury awarded no ($0) damages against Mr. and Mrs. Squires for negligent misrepresentation.
As to the Fourth Count sounding in allegations of intentional misrepresentations by Mr. and Mrs. Squires, the jury awarded the plaintiffs the identical sum of $11,149.50 for the same categories of damages that was awarded against Willott, LLC for negligent misrepresentation. However, in awarding the $11,149.50, the jury divided this total equally, assessing the sum of $5,574.75 against Mr. Squires and $5,574.75 against Mrs. Squires. The damages assessed against each of these defendants for intentional misrepresentation included $5,000 against each for the category of "Bargained for Value of Property." This is the identical $10,000 for this category awarded to the plaintiffs as against Willott, LLC on the Second Count alleging negligent misrepresentation. The jury however, in response to Interrogatory 32, answered that it did not wish that any amounts of awards for any category of damages be duplicated, so as to result in a multiple recovery of damages for the plaintiffs. In other words, the total award for "Bargained for Value of Property." is to be $10,000 and not $20,000, and the same principle would apply to the other categories of damages which totaled $1,149.50. This sum was not to be increased to $2,299.00
Nonetheless, the court has determined that the $10,000 award for the "Bargained for Value of Property" in Counts Two and Four was improper and cannot stand due to the lack of an underlying contract for the purchase and sale of the subject property. The jury specifically found that no contract existed and entered a defendant's verdict for Willott, LLC on the First Count alleging a breach of contract.
The court should not have submitted an interrogatory allowing an award for this category of damages, without cautioning the jury that to award benefit of the bargain damages, the jury would first need to find that a contract existed. The court was also in error in instructing the jury that benefit of the bargain damages applied to the negligent and intentional misrepresentation allegations without the necessary cautions and instruction that the jury must first find that a contract existed. "The principal function of a jury charge is to assist the [jurors] in applying the law correctly to the facts which they might find to be established . . . and therefore, we have stated that a charge must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven . . . State v. DeJesus, 92 Conn.App. 92, 104-05, 883 A.2d 813 (2005) "The test to determine if a jury charge is proper is 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 . . . [I]nstructions to the jury need not be in the precise language of a request . . . Moreover, [j]ury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury." (Internal quotation marks omitted.) Shea v. Doherty, 91 Conn.App. 367, 371-72, 880 A.2d 1017 (2005); Atkin v. Marko, 83 Conn.App. 279, 282-83, 849 A.2d 399 (2004).
"[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 . . ." Labbe v. Hartford Pension Commission, 239 Conn. 168, 192, 682 A.2d 490 (1996); State v. Chin Lung, 106 Conn. 701, 704, 139 A. 91 (1927). A verdict that is inconsistent or ambiguous should also be set aside. Ginsberg v. Fusaro, 225 Conn. 420, 425-26, 623 A.2d 1014 (1993). It is also proper for a trial court, using due caution, and in the exercise of its discretion, to set aside a verdict when satisfied its rulings on evidence were erroneous and that those erroneous rulings were consequential enough to have had a substantial effect on the verdict. Ardoline v. Keegan, 140 Conn. 552, 555-56, 102 A.2d 352 (1954).
The court finds that the erroneous submissions on the interrogatories and the errors in the instructions to the jury as to the plaintiff's claim of "loss of the benefit of the bargain" clearly had a substantial effect on the amount of the verdict. The error is unmistakable and unquestionably was harmful in the award of damages. Jackiewicz v. United Illuminating, 106 Conn. 310, 311, 138 A. 151 (1927); Message Center Management v. Shell Oil Prod., 85 Conn.App. 401, 415, 857 A.2d 936 (2004).
The defendants' present motion only requests that the verdict be set aside and that judgment be entered for the defendants on all counts. The defendant has not filed a motion specifically requesting a remittitur. See General Statutes § 52-216a. However, the defendants did specifically argue that the jury should not have been permitted to find benefit of the bargain damages when the jury, in fact, found that no contract existed. The court, therefore, finds sua sponte that the verdict must be reduced by the sum of $10,000, representing that sum which was awarded to the plaintiffs for their loss of the benefit of the bargain. See Dimmock v. Allstate Ins. Co., 84 Conn.App. 236, 245, n. 11, 853 A.2d 543 (2004).
Sec. 52-216a reads in relevant part as follows: . . . If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial . . .
VIII ORDERS
This court grants a remittitur in the amount of $10,000, as to the defendant Willott, LLC on the Second Count alleging negligent misrepresentation. It also orders that a remittitur of $5,000 each be granted as to each of the defendants William Squires and Lotte-Lill Squires as to the Fourth Count alleging intentional misrepresentation. The total award for the plaintiffs as against Willott, LLC, as to the Second Count of the complaint, therefore, is reduced to $1,149.50. The total awards as against William Squires and Lotte-Lill Squires on Count Four are reduced to $574.75, as to each defendant. It is specifically noted that in accordance with the jury's response to interrogatory 32, the total damages of $1,149.50 are not to be duplicated or doubled in their amounts so as to award a multiple recovery by the plaintiffs.
Therefore, unless the parties accept the verdict with the remittitur imposed by this court, within 20 days of the date notice of this decision is mailed to the parties, the verdict will be set aside and a new trial will be ordered on all issues, including but not limited to damages. See Fazio v. Brown, 209 Conn. 450, 455-57, 551 A.2d 1227(1988).
If an acceptance of the remittitur is filed, a judgment shall enter in the amount of $1,149.50 for the plaintiffs, as against Willott, LLC, on the Second Count of negligent misrepresentation, and in the amount $574.75 as against William Squires and $574.75 as against Lotte-Lill Squires, both on the Fourth Count of intentional misrepresentation. Total damages due the plaintiffs from all defendants shall not exceed the sum of $1,149.50.