DeMilo v. City of West Haven
DeMilo v. City of West Haven
Opinion of the Court
In this appeal the defendant, the city of West Haven (city), is challenging the propriety of the trial court’s order assessing treble damages against it pursuant to General Statutes § 52-566.
The plaintiffs, five in number, are the owners of three parcels of property located in the city of West Haven, and one parcel located in the town of Orange. While the three parcels in West Haven are contiguous, access to the parcel in Orange is blocked by the Oyster River. In 1960, a bridge was built over the river by C. W. Blakeslee & Sons, Inc. to provide a means of access to the property in
In the meantime, in May, 1972, the city of West Haven commenced the construction of a sewage facility known as the Oyster River pumping station. The general contractor for the project was C. W. Blakeslee & Sons, Inc. The site for this facility was located on a portion of the plaintiffs’ land in West Haven known as the “second piece.” Prior to commencing this project, the city had not obtained the permission of the plaintiffs
In 1975, after discussions with the office of the city’s corporation counsel, the plaintiffs deeded the “second piece” by warranty deed to the city. The city paid the plaintiffs $14,500 for the property. In
After a trial to the jury, the plaintiffs were awarded $7424. The trial court then trebled this amount pointing out that it was acting pursuant to General Statutes § 52-566, as set forth above, for a total judgment of $22,272. These appeals followed.
We first take up the city’s claim that the trial court erred in trebling the amount of the verdict reached by the jury. In order to assess the city’s claim, it is necessary to review the counts upon which the jury reached its decision. The plaintiffs’ amended complaint contained eight counts.
The city claims that because only the fifth and sixth counts were submitted to the jury, there was no proof that the jury’s verdict was founded upon a violation of the statute. Where, as here, the jury returns a general verdict, the city claims that the court was not authorized in trebling the damages assessed by the jury.
In their briefs, both parties recognize that the circumstances under which a party can recover double or treble damages under a statute were set forth in Tillinghast v. Leppert, 93 Conn. 247, 105 A. 615 (1919). “We require that the complaint shall clearly state such facts as will bring the case within the statute. Broschart v. Tuttle, 59 Conn. 1, 8, 21 Atl. 925 [1890]. And we require that the claim for relief shall be specifically based upon the statutory
The plaintiffs agree in their brief that the jury returned a general verdict but claim that Tillinghast provides an exception to the rule that statutory damages cannot be awarded where there is a general verdict. They cite the following portion of that opinion as support for their position. “It is possible that the record may show clearly, notwithstanding the general verdict, that the jury found the damages under the statute allowing the trebling or doubling of the damages, and not for any other alleged cause of action, but where this, does not so appear the rule adopted must govern.” Tillinghast
A similar definition must be applied in interpreting the term “wilfully” as it appears in General
In addition, we also note the testimony elicited at the trial does not support the plaintiffs’ position so as to bring them within the exception in Tillinghast, Morton Hecht, the director of community management for the city, testified that the city did not
We hold that the trial court erred in trebling the damages awarded by the jury where the jury did not explicitly find a violation of General Statutes § 52-566.
We now turn to the issues raised by the plaintiffs in their cross appeal. Their first claim is that the court erred in failing to set aside the verdict as inadequate. The plaintiffs’ brief cites the testimony of two witnesses, William J. Roper and Edward N. Halprin, both of whom, the plaintiffs argue, testified that the cost of replacing the bridge was substantially more than the amount of the verdict reached by the jury. The problem with this claim is that, while a transcript of Roper’s testimony has been filed, the plaintiffs have not filed a transcript of any of Halprin’s testimony before the jury regarding the cost of replacing the bridge. Practice Book § 3060V. The only transcript of Halprin’s testimony regarding the costs of replacing the bridge that has been filed, and the transcript to which the plaintiffs’ brief and appendix cite, contains only Halprin’s testimony on the costs of
The final issue raised by the plaintiffs is their claim in their brief that the court erred in directing a verdict for the city on counts one and two in the amended complaint.
There is error on the defendant’s appeal and it is ordered that the case be remanded to the trial court with direction to reinstate the jury’s verdict of $7424. There is no error on the plaintiffs’ cross appeal.
In this opinion Peters, Parskey and Grillo, Js., concurred.
General Statutes (Rev. to 1979) § 52-566 provides: “Any person who wilfully removes or destroys any part of any bridge, or of its approaches, shall pay treble damages to the owner thereof or to the party bound to maintain: .the same.”
There was testimony that in 1972 one of the owners knew of the project and agreed to it, apparently under certain conditions. This information and agreement, however, was never passed on to all of the other owners.
A ninth count was added during the trial.
In the present ease, the seventh count clearly set forth sufficient facts to bring this count within the statute. Broschart v. Tuttle, 59 Conn. 1, 8, 21 A. 925 (1890). The seventh count, however, was not submitted to the jury, nor did the eourt charge the jury on the issue of wilfulness. Bather, the court charged the jury that they were to decide only counts five and six. Following the charge, the plaintiffs did not take any exception to the court’s failure to submit count seven to the jury. In addition, the plaintiffs have not raised any claim regarding the failure to submit the seventh count to the jury or the court’s failure to charge on the issue of wilfulness either in their preliminary .statement of issues or in their briefs. Because of the plaintiffs’ failure to preserve any alleged claim of error arising from the seventh count, either during the trial or upon appeal, we will not consider any such claim. Presutti v. Presutti, 181 Conn. 622, 626, 436 A.2d 299 (1980); State v. Sumner, 178 Conn. 163, 171, 422 A.2d 299 (1979). It is also for this reason that we decline to accept the dissenting opinion’s position that the seventh count should be remanded to the trial court for a new trial.
This ease aptly demonstrates the reason behind the requirement that claims be raised at the trial eourt. Had the plaintiffs taken a proper exception in this ease, the trial court would have been in a position to consider correcting its error before it was too late to do so. See State v. Albin, 178 Conn. 549, 555-56, 424 A.2d 259 (1979).
Finally, accepting the dissent’s contention that the appellate rules do not require an appellee to request that a case be remanded for further proceedings in the event that error is found in the judgment would, in this ease, negate the requirement that an issue be raised in the trial eourt in the first instance. Practice Book § 3063. The dissent claims that the plaintiffs had no reason to preserve any other claim for review because they prevailed in the trial eourt. After the trial court had charged the jury, however, and before the verdict, they did not know they would prevail. Had the plaintiffs taken a proper exception at that time and requested the trial eourt to submit count seven to the jury, they may not have prevailed.
Therefore, for the plaintiffs to prevail in this appeal, they must demonstrate that this case comes within the exception set forth in Tillinghast v. Leppert, 93 Conn. 247, 105 A. 703 (1919).
Because of .this holding we reserve for another day the issue of whether a municipality is a “person” as that term in used in § 52-566.
In this regard, we note that the file indicates that the plaintiffs ordered all of Halprin’s testimony from the court reporter. This does not in any way, however, lessen the plaintiffs’ burden.
The plaintiffs also claimed that the court erred by informing the jury that their award would be trebled. This claim, as it is set out in the plaintiffs’ brief, also cannot be considered because it encompasses the issue of the propriety of the jury’s award, which we have declined to review for the reasons we have already stated.
In regard to this issue, we note that in their preliminary statement of the issues the plaintiffs claim that the court erred in directing a verdict on the “First, Second, Third, Fourth, Fifth, Sixth, and Ninth eounts.” First, as is evident from our opinion, the fifth and sixth counts were decided by the jury. The third, fourth and ninth counts have not been briefed. “ 'Where an assignment of error is to be pursued, it must be briefed. Any other rule would work an injustice and hardship on the adverse party. Cushing v. Salmon, 148
In addition, the plaintiffs, in their preliminary statement of issues, claimed that the court erred in failing to award interest on the judgment. This claim has also not been briefed and is likewise deemed abandoned.
The trial court also heard the third and fourth counts as a court and rendered judgment thereon for the defendants.
The judgment provides, in pertinent part, as follows: “[W]hen all the evidence having been submitted, the Court entered judgment for the defendant on Counts 1, 2, 3 and 4, and directed the verdict for the defendant on Counts 8 and 9.”
Concurring in Part
(concurring and dissenting). I agree with the disposition of the case made by this court except with respect to the seventh count in which treble damages pursuant to General Statutes § 52-566 were claimed against the city for “wilfully” removing or destroying the bridge. The trial court erroneously assumed that a finding by the jury of a “wrongful” destruction of the bridge under the fifth count or of “nuisance” under the sixth count was equivalent to a finding that the city had acted “wilfully” under § 52-566. The judgment trebling the damages in accordance with the statute as claimed in the seventh count must be vacated, and the verdict for the actual damages sustained, as found by the jury under the fifth and sixth counts, must be reinstated.
Our finding of error on the seventh count, however, should not have the effect of a final disposition of that count, as the opinion of this court treats it. We have set aside the determination of the trial court on the seventh count only because of the erroneous basis upon which it was reached, not because the claim lacks merit or because the evidence was insufficient to support it.
Our appellate rules do not require an appellee to request that a case be remanded for further proceedings in the event that error is found in the judgment. The defendant neither in brief nor in argument has claimed that the error which we have found would justify the directed judgment on the seventh count which the opinion mandates. Such a result would follow if we had sustained the other claims of the defendant, that the evidence was insufficient to support a finding of wilful destruction of the bridge, as required by § 52-566, and that the statute does not apply to municipalities. The
The only explanation offered in the opinion for refusing another opportunity to adjudicate the merits of the seventh count in the trial court is contained in footnote 4, which refers to the lack of any exception by the plaintiffs to the failure of the court to submit that count to the jury as well as to the absence of any claim of error in this appeal related thereto. The transcript indicates that when the court advised the jury that only the fifth and sixth counts would be submitted to them neither party objected. They must be deemed, therefore, to have waived the right to a jury determination of the issues of the seventh count. That waiver, however, cannot be enlarged to constitute a waiver of the claim for treble damages itself. Both parties by their silence effectively consented to a court trial of the seventh count. The trial court declared in response to a question from the jury prior to the verdict
I dissent, therefore, from the failure to remand the seventh count to the trial court for a new trial.
The statement in footnote 4 of the opinion that the plaintiffs did not know they would prevail on the seventh count before the verdict is subject to misinterpretation. When the jury inquired, “Are treble damages automatically then added to our findings?”, the court responded, “The answer to that is yes. I will handle that after I hear from you.” The plaintiffs, therefore, knew that any damages found by the jury would be trebled automatically by the court, a result which would give them the maximum relief requested under the seventh count. It is true, of course, that they did not know that the jury would award them any damages.
Reference
- Full Case Name
- Michael DeMilo Et Al. v. City of West Haven
- Cited By
- 91 cases
- Status
- Published