Cheryl Terry Enterprises, Ltd. v. City of Hartford
Cheryl Terry Enterprises, Ltd. v. City of Hartford
Opinion of the Court
Opinion
In Cheryl Terry Enterprises, Ltd. v. Hartford, 262 Conn. 240, 242, 811 A.2d 1272 (2002), the plaintiff, Cheryl Terry Enterprises, Ltd., appealed from the judgment of the trial court setting aside the jury’s verdict for the plaintiff on its antitrust claim against the defendant, the city of Hartford. We concluded therein that the plaintiff had not appealed from a final judgment because the trial court had not yet resolved the plaintiffs remaining claim for permanent injunctive relief. The case thereafter was reclaimed to the trial list and, following additional hearings and briefing from the parties, the trial court denied the plaintiffs request for a mandatory injunction. Thereafter, the plaintiff appealed from the judgment of the trial court to the
In the present appeal, the plaintiff claims that the trial court improperly: (1) set aside the jury’s verdict on its antitrust claim on the ground that, under our decision in Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 722 A.2d 271 (1999), the plaintiff, an unsuccessful lowest bidder in a municipal bidding process, lacked standing to bring an antitrust claim against the defendant; (2) determined that it could effectively repeal Connecticut’s antitrust statute in cases involving municipal bidding; (3) set aside the jury’s verdict on the plaintiff’s antitrust claim on the ground that the plaintiff had failed to present sufficient proof of damages; (4) directed a verdict for the defendant on the plaintiff’s equal protection claims; and (5) failed to award the plaintiff mandatory injunctive relief.
We conclude that the trial court improperly set aside the verdict on the ground that the plaintiff lacked standing to bring an antitrust claim for damages against a municipality arising out of the municipal bidding process. We conclude further that the trial court improperly set aside the verdict on the ground that the plaintiff had not proved its damages to a reasonable certainty. In light of that conclusion, we need not address the plaintiff’s claim that the trial court improperly granted the defendant’s motion for a directed verdict on its equal protection claims. Finally, we conclude that the trial court properly denied the plaintiff’s request for injunctive relief. Accordingly, we reverse in part the judgment of the trial court.
The relevant facts and procedural history are set forth in our opinion in Cheryl Terry Enterprises, Ltd. v. Hartford, supra, 262 Conn. 240. “The plaintiff is a school bus company based in Hartford. The president of the
“After Laidlaw was awarded the contract, the plaintiff brought the action underlying this appeal, claiming violations of its equal protection rights and state antitrust law
“Thereafter, the trial court held a hearing on the plaintiffs motion for a temporary restraining order. On August 4, 1998, subsequent to the completion of the hearing, but prior to the issuance of the trial court’s decision, the defendant executed its contract with Laid-law. The trial court issued a decision denying the plaintiffs motion for a temporary restraining order on August 7, 1998.
“After a trial on the plaintiffs equal protection and state antitrust claims, the trial court granted the defendant’s motion for a directed verdict as to the plaintiffs equal protection claims, and submitted to the jury only the claim alleging an antitrust violation. Ultimately, the jury returned a verdict for the plaintiff in the amount of $500,000 on that claim. The defendant then filed a motion to set aside the verdict. The trial court granted this motion and, thereafter, set aside the verdict for the plaintiff. The trial court reserved the question as to whether Laidlaw was a necessary party on the injunction portion of the claim and noted that it would hold a hearing on the plaintiffs request for permanent injunctive relief ab initio if it were to decide that Laidlaw was indeed a necessary party. The court ultimately determined that Laidlaw was a necessary party and that it should be joined as a party within thirty days of that order. Prior to a resolution of the claim for permanent
As we noted previously, we dismissed the plaintiffs first appeal, concluding that the plaintiff had not appealed from a final judgment because the claim for injunctive relief had not been determined. Id., 242. Due to the trial court’s subsequent resolution of the plaintiffs remaining claim for injunctive relief, we now address the merits of the plaintiffs claims.
I
We address the plaintiffs first two claims together because they are interrelated. The plaintiff claims that the trial court improperly granted the defendant’s motion to set aside the verdict on the ground that Lawrence Brunoli, Inc. v. Branford, supra, 247 Conn. 407, precludes a plaintiff from pursuing a statutory antitrust claim for damages against a municipality arising out of a municipal bidding process. The defendant contends that the trial court properly found that, under Lawrence Brunoli, Inc., the plaintiff lacked standing to pursue its antitrust claim, and, therefore, that the trial court lacked subject matter jurisdiction. We agree with the plaintiff.
The following additional facts are relevant to our resolution of this claim. Prior to trial, the plaintiff was
“The trial court’s subject matter jurisdiction is a matter of law and, therefore, our review is plenary. If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause. . . . A determination regarding a trial court’s subject matter jurisdiction is a question of law.” Cadle Co. v. D’Addario, 268 Conn. 441, 446, 844 A.2d 836 (2004).
In its memorandum of decision on the defendant’s motion to set aside the verdict, the trial court analyzed the act and determined that “it seems clear that a municipality can be sued under [the] act.” We agree. The act provides, inter aha, that “[e]very contract, combination, or conspiracy in restraint of any part of trade or commerce is unlawful.” General Statutes § 35-26. For pur
This broad definition of “person” is then utilized by the legislature to define both who may be liable for anticompetitive behavior, and who has standing to recover damages for such behavior. In regard to standing, General Statutes § 35-35 provides in relevant part that “any person . . . injured in its business or property by any violation of the provisions of this chapter shall recover treble damages, together with a reasonable attorney’s fee and costs.” See also General Statutes § 35-34 (“any person . . . may sue for injunctive relief, both temporary or permanent, against threatened loss or damage to its property or business by any violation of this chapter”).
Conversely, the legislature also has used that same broad definition of “person” to define any individual or entity that may be liable under the act for anticompetitive behavior. See, e.g., General Statutes § 35-38 (“[a]ny . . . person who has been held to have violated any of the provisions of this chapter shall forfeit and pay to the state a civil penalty of not more than two hundred fifty thousand dollars”); General Statutes § 35-39 (“[a] corporation, association, firm, partnership, proprietorship, or any other legal or commercial entity is liable under this chapter for the acts of its . . . agents”).
Despite having reached this conclusion, however, the trial court granted the defendant’s motion to set aside
To begin with, we already have concluded that the trial court properly determined that the definition of “persons” subject to liability under the act is broad enough to include municipalities. Once the trial court made this determination, it should have denied the defendant’s motion to set aside the verdict, and declined to apply the policy reasons set forth in Lawrence Brunoli, Inc., in order to alter the plain language of the act. State v. Hanson, supra, 210 Conn. 529.
Moreover, Lawrence Brunoli, Inc., readily is distinguishable from the present case. In Lawrence Brunoli, Inc., the plaintiff, an unsuccessful bidder in a municipal bidding contest, alleged impropriety in the contract awarding process and brought a breach of contract action for money damages against the town of Branford. Lawrence Brunoli, Inc. v. Branford, supra, 247 Conn. 408. Specifically, the plaintiff alleged fraud, corruption or favoritism on the part of the defendant in awarding the contract. Id., 410. The trial court dismissed the action for lack of subject matter jurisdiction on the ground that the plaintiff lacked standing to assert a claim for money damages and was, therefore, limited to an action for injunctive relief. Id. The issue on appeal to this court was “whether the [trial] court [had] subject matter jurisdiction over a claim for damages, rather than for injunctive relief, allegedly resulting from fraud, corruption or favoritism in the award of a contract that
Our decision in Lawrence Brunoli, Inc., was limited to actions based on common-law breach of contract claims or the municipal bidding statutes. In the present case, the plaintiff did not assert a common-law breach of contract action, nor an action for injunctive relief
Finally, we note that the policy considerations supporting our decision in Lawrence Brunoli, Inc., are rendered inapplicable to the present case due to the legislature’s broad conferral of standing under the act, which is based on several important principles, including, the protection of the public from anticompetitive behavior and the promotion of competition in the marketplace. See, e.g., Shea v. First Federal Savings & Loan Assn. of New Haven, 184 Conn. 285, 294, 439 A.2d 997 (1981) (“[b]oth federal and Connecticut antitrust law attempt to promote competition in the marketplace”). Put another way, although this court was hesitant to expose taxpayers to the additional costs of
II
We turn next to the plaintiffs claim that the trial court improperly granted the defendant’s motion to set aside the verdict on the ground that the plaintiff had failed to prove its claim of lost profits to a reasonable degree of certainty. The defendant contends that the trial court properly determined that the plaintiff had introduced no evidence of lost profits. We agree with the plaintiff.
The following additional facts and procedural history are relevant to our resolution of this claim. At trial, the evidence concerning the plaintiffs lost profits consisted of the bid on the Hartford school transportation contract (bid) and the testimony of Terry, the plaintiffs president. The bid was for a five year contract, with busing services to commence on July 1, 1998, and to terminate on June 30, 2003. On the bid forms, bidders had to specify the price of five items for each of the five years. Specifically, the bid forms requested prices for three “runs” consisting of morning, midday and afternoon service, whereby bidders had to specify the
The net present value of the plaintiffs bid was $5,862,997.93. Terry testified that this figure included all of the plaintiffs costs, as well as its usual anticipated profit of 8 to 10 percent. Specifically, Terry testified that, in preparing the bid, she had calculated the following costs: the cost of purchasing new or used school buses, including the cost of financing those purchases; payroll, including taxes and workers’ compensation insurance; facility costs, including the cost of gasoline for the school buses; property costs; and the cost of liability insurance. Terry further testified that she had calculated each of these costs on the basis of the individual specifications of the bid. She then testified that, after calculating the plaintiffs costs, she had added its anticipated profit. Terry stated that her usual practice was to add between 8 and 10 percent profit to her bids.
In addition, Terry testified at length concerning her approximately thirty years of experience in the school transportation business. She stated that she had started as a school bus driver in the 1960s, and soon thereafter
On cross-examination by the defendant, Terry acknowledged that she was unable to produce the exact figures that she had used in calculating the bid. She stated, however, that, although she had prepared the bid two and one-half years before the trial and could not remember the actual figures she had used, she could explain how she had calculated the bid. Terry explained that she had calculated the bid the same way that she calculates all of her bids: “I took my costs, as I always do, and add[ed] a profit, and that is all I can tell you because that is the way you do it.” Although Terry acknowledged that it was “possible” that she could have miscalculated the bid, she stated: “I have been doing this for a long time, and I have been pretty much on target. ... I am not infallible, no one is infallible, but I have a record.” When the defendant’s attorney asked Terry, a second time, if she could have miscalculated her expenses, she replied: “I have a record, that is why I am in business. ... I am confident of my past experience which has been many many years in the business, or I wouldn’t have been in the business.”
At the end of Terry’s testimony, the defendant moved to strike her testimony concerning anticipated profits as irrelevant because “she does not have the knowledge upon which to base an estimate of the profits.” The trial court denied the motion to strike, but indicated that, “unless there is more offered in the way of facts and figures that [Terry] relied on, I may be in a position
The jury returned a verdict in favor of the plaintiff on its antitrust claim, and awarded damages in the amount of $500,000.
We begin with a brief discussion of the appropriate standard of review. “The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence. . . . The supervision which a judge has over the verdict is an essential part of the jury system. . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion
“We recognize that, [i]n determining whether to set aside the verdict, the trial court walks a thin line. . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb. Our review of the trial court’s action on a motion to set aside the verdict involves a determination of whether the trial court abused its discretion, according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correctness . . . since the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. . . . Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury. . . .
“Finally, in evaluating the exercise of the trial court’s discretion, we are mindful that litigants have a constitutional right to have juries decide issues of fact. The right to a jury trial is fundamental in our judicial system, and this court 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 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. . . . Since, in setting aside the verdict, the trial court has deprived the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury, we must examine the evidential basis of the verdict
In the present case, the trial court set aside the jury’s verdict because it concluded that the plaintiff had not proved its damages to a reasonable certainty. “The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury. ... In considering a motion to set aside the verdict, the [trial] court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict.” (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 449, 815 A.2d 119 (2003). Accordingly, we must determine whether the trial court abused its discretion in making its determination that the evidence reasonably did not support the jury’s award of damages.
“In deciding whether damages properly have been awarded . . . we are guided by the well established principle that such damages must be proved with reasonable certainty. . . . Although we recognize that damages for lost profits may be difficult to prove with exactitude . . . such damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount with reasonable certainty. . . . Consequently, we have permitted lost profits to be calculated by extrapolating from past profits.” (Citations omitted; internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schalz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 69, 717 A.2d 724 (1998).
“This court and courts of other jurisdictions have looked to a number of factors in evaluating whether the plaintiff has proved lost profits to a reasonable certainty. A plaintiff’s prior experience in the same business has been held to be probative ... as has a plain
Finally, this court has recognized that, “[t]he vagaries of the marketplace usually deny us sure knowledge of what [the] plaintiffs situation would have been in the absence of the defendant’s antitrust violation. This fact and the general belief that it would be inequitable to allow a wrongdoer to defeat recovery by insisting on rigorous proof of damages have resulted in a lesser burden of proving the amount of damages in antitrust suits than in other contexts.” (Internal quotation marks omitted.) Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 28, 664 A.2d 719 (1995), quoting 1 A.B.A. Antitrust Section, Antitrust Law Developments (3d Ed. 1992) p. 668. Accordingly, “[a] damage theory may be based on assumptions so long as the assumptions are reasonable in light of the record evidence. . . . The reasonableness of the assumptions underlying the plaintiffs damage theory is determined by the trier of fact. . . . Federal appellate courts have refused to find damage evidence insufficient unless there was no basis for critical assumptions made by the [trier of fact].” (Citations omitted; emphasis added; internal quotation marks omitted.) Westport Taxi Service, Inc. v. Westport Transit District, supra, 28.
Second, Terry testified at length concerning her substantial experience in preparing bids for school transportation contracts. Specifically, Terry testified that she had approximately thirty years of experience in preparing such bids, and that she had run her own school transportation company since 1984. She also stated, several times, that she prepared her bids by first calculating her costs, and then adding in an anticipated profit, which was usually between 8 and 10 percent of the price of the bid. Although Terry could not produce the exact figures she had used in calculating the costs for the bid, she discussed, in detail, the nature of those costs. On cross-examination, Terry candidly acknowledged the possibility that she could have miscalculated the bid. She stated, however, that “I have been doing this for a long time, and I have been pretty much on target.” Terry also stated: “I am confident of my past experience which has been many many years in the business, or I wouldn’t have been in the business.” On the basis of this testimony, the jury reasonably could have inferred that Terry accurately had predicted the plaintiffs profits on previous bids. Moreover, her testimony was consistent with our well settled principle
In Westport Taxi Service, Inc. v. Westport Transit District, supra, 235 Conn. 32-36, in which the plaintiff had alleged antitrust violations, this court upheld an award of damages for lost profits and lost business value. In that case, the plaintiff, a private taxi company, claimed that the defendant municipality had committed an antitrust violation by operating a government subsidized, below cost taxi service for the purpose of monopolizing the town’s taxi business, thereby forcing the plaintiff out of business. After a court trial, the trial court agreed with the plaintiff and awarded it damages for lost profits and lost business value. With regard to lost profits, the trial court found that the plaintiff had not sought a fare increase with the state public utilities commission, because it “legitimately [had] feared that it would have trouble enough competing with [the defendant’s] service at present rates, without adding to the problem by increasing its fares.” (Internal quotation marks omitted.) Id., 30. Accordingly, the court awarded damages of $12,144 in lost profits based upon the difference in what the plaintiff had been charging and what it could have charged but for the defendant’s conduct.
The defendant appealed to this court, which affirmed the award of damages for lost profits and lost business value. Id., 45. With respect to lost profits, this court concluded that “the trial court based its calculation of the plaintiffs damages due to lost profits on sufficient evidence and reasonable assumptions . . . .” Id., 32. In addition, this court concluded that the trial court properly had relied on the testimony of the plaintiffs vice president to establish the lost value of the plaintiff s business. In so concluding, we noted “that the trial court has broad discretion to admit the testimony of anyone who is involved with a business or property and may have personal knowledge of its value.” Id., 35. Because the plaintiffs vice president was competent to testify to the methods he had employed in valuing the business, the weight given his testimony was for
. . . [The plaintiffs] president based his estimates on his experienced view of the equipment that would be required, the difficulty of maintaining production, and the time required for the job. Having taken account of these and related factors, he built a 20 percent profit into the contract price of $13.95 per thousand units. The award of $3000 lost profits on a contract for
The defendant, relying on Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 70, and Gordon v. Indusco Management Corp., 164 Conn. 262, 320 A.2d 811 (1973), contends that this court previously has set aside damage awards that were “supported by far more evidence than the verdict here.” A review of those cases, however, reveals that they do not support the defendant’s characterization. In Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 50-52, the plaintiff, a corporation that sold exercise equipment, brought an action against the defendant law firm and certain individual attorneys for malpractice in connection with the plaintiffs failed attempt to establish a new business that would franchise fitness clubs. After a court trial, the trial court rendered a verdict for the plaintiff, and awarded the plaintiff approximately $15.9 million in lost profits. Id., 51. On appeal, this court reversed the damages award, because “the trial court improperly concluded that the plaintiff had established its damages to a reasonable certainty.” Id., 59. Specifically, the plaintiff in that case
The lost profits of a new business also was an issue in Gordon v. Indusco Management Corp., supra, 164 Conn. 262, the other case relied on by the defendant. In Gordon, the plaintiff, who had acquired an area distributorship franchise in a fast-food restaurant operation, entered into a contract with the defendant for the construction and lease of a building in Danbury in which the plaintiff would operate an outlet of the restaurant chain. Id., 264. After the defendant had failed to construct the outlet, as it had promised to in the contract, the plaintiff brought an action against the defendant for breach of contract. Id., 263. In an effort to establish lost profits, the plaintiff presented the testimony of the operator an outlet of the fast-food chain located in Orange. That witness testified that his outlet’s gross receipts were $175,000, and that his net profit was 12 percent of the gross receipts. Id., 275. As this court noted, however, the operator of the outlet in Orange had managed that outlet himself, and his stated figure of a 12 percent profit had included the value of his own services to the operation in that capacity. Id., 276. The plaintiff, by contrast, had intended to hire a manager to run his outlet for him. Id. Accordingly, the court in Gordon concluded that the plaintiff had not proved his damages, because, “[s]ince the plaintiff would not have given his services but would have employed a manager
Unlike the businesses in both Beverly Hills Concepts, Inc., and Gordon, the plaintiff m the present case is not a new busmess.
The plaintiff next claims that the trial court improperly granted the defendant’s motion for a directed verdict on its equal protection claims on the ground that the plaintiff had an adequate remedy at law in its antitrust claim, because the trial court subsequently deprived the plaintiff of that adequate remedy when it set aside the jury’s verdict on the antitrust claim. The defendant contends that the trial court properly directed the verdict on the plaintiffs constitutional claims because the plaintiff had the remedy of a permanent injunction available to her. Because we have concluded that the trial court’s judgment setting aside the verdict was improper, we need not decide this issue because a litigant may recover just damages only once.
IV
The plaintiffs final claim is that the trial court improperly failed to grant it a mandatory injunction requiring that the defendant enter into a prospective, five year contract with the plaintiff on a cost plus 10 percent profit basis.
“A mandatory injunction ... is a court order commanding a party to perform an act.” Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 652, 646 A.2d 133 (1994). “Relief by way of mandatory injunction is an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances. . . . Ordinarily, an injunction will not lie where there is an adequate remedy at law.” (Citation omitted; internal quotation marks omitted.) Monroe v. Middlebury Conservation Commission, 187 Conn. 476, 480, 447 A.2d 1 (1982); accord Harvey v. Daddona, 29 Conn. App. 369, 377, 615 A.2d 177 (1992) (“[ijnjunctions should not be issued when damages can adequately protect the injured party”). Moreover, “[w]here the granting of the injunction would cause damage to the defendant greatly disproportionate to the injury of which the plaintiff complains, it may be held inequitable to grant a mandatory injunction and the plaintiff may be remitted to her remedy by way of damages.” Moore v. Serafin, 163 Conn. 1, 6-7, 301 A.2d 238 (1972). In sum, “[mjandatory injunctions are . . . disfavored as a harsh remedy and are used only with caution and in compelling circumstances.” 42 Am. Jur. 2d 560, Injunctions § 5 (2000).
We conclude that the trial court properly determined that the present case failed to present the “ ‘compelling
The judgment is reversed in part and the case is remanded with direction to reinstate the judgment for the plaintiff in accordance with the jury’s verdict.
The plaintiffs complaint also contained a breach of contract claim, which was dismissed by the trial court prior to trial. The plaintiff has not appealed from that ruling, and, therefore, it is not before us in the present appeal.
Section 2-548 of the Hartford municipal code provides in relevant part: “(a) The contract for which sealed bids are invited shall be awarded to the lowest responsible bidder. Any person or organization is deemed not to be a responsible bidder that . . .
“(2) Has been found by a court or administrative body of competent jurisdiction to be in violation of the National Labor Relations Act and that such violation continues to exist ....
“(c) The city manager shall certify whether the bidder is deemed to be a responsible bidder. If the city manager deems a bidder to meet the city’s requirements, the bidder will be certified for a period of one (1) year. In each case, where the city manager determines that a bidder is not deemed to be a responsible bidder, he shall state his reasons in a written opinion to be forwarded to . . . the bidder. . . .”
Laidlaw was the only union shop of the three bidders on the contract.
At the time of the plaintiffs first appeal to this court, Laidlaw had not been joined as a defendant, and, therefore, it was not a party to that appeal. Cheryl Terry Enterprises, Ltd. v. Hartford, supra, 262 Conn. 241. As we noted previously, however, when the case was reclaimed to the trial list, Laidlaw subsequently was a defendant in the plaintiffs action. In the current appeal, Laidlaw is involved as an appellee only as to the plaintiffs final claim—whether the trial court properly denied the plaintiff’s request for ipjunctive relief. In conformity with our prior opinion, therefore, we will continue to refer to the city of Hartford as the defendant, and we refer to Laidlaw by name in part IV of this opinion, which addresses the plaintiffs final claim.
The defendant’s motion to set aside the verdict also claimed that: (1) there was no evidence submitted upon which a reasonable jury could have concluded that the defendant conspired to restrain trade; and (2) there was no evidence upon which a reasonable jury could have concluded that the plaintiff suffered damages or an antitrust injury. Because the trial court found that it lacked subject matter jurisdiction in the present case, it declined to address the defendant’s claim that there was insufficient evidence to support a finding that the defendant had conspired to restrain trade. Therefore, that claim is not before us in the present appeal. The defendant’s remaining claim, that there was insufficient evidence to support a finding that the plaintiff had suffered damages for an antitrust injury, is addressed in part II of this opinion.
General Statutes § 35-31 provides: “(a) Nothing contained in this chapter shall be construed to forbid the existence or operation of labor, agricultural, or horticultural organizations instituted for the purpose of mutual help, and not having capital stock and not conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof. Such organizations, or the members thereof, shall not be held or construed to be illegal combinations or conspiracies or monopolies in restraint of trade, under the provisions of this chapter.
“(b) Nothing contained in this chapter shall apply to those activities of any person when said activity is specifically directed or required by a statute of this state, or of the United States.
“(c) Nothing contained in this chapter shall be construed to prevent persons engaged in the production of agricultural products as fanners, planters, dairymen or growers from acting together in associations, corporate or otherwise, with or without capital stock, in collectively processing, preparing for market, handling and marketing in interstate and foreign commerce, such products of persons so engaged. Such associations may have marketing agencies in common; and such associations and their members may make the necessary contracts and agreements to effect such purposes; provided, such associations are operated for the mutual benefit of the members thereof, as such producers, and conform to one or both of the following requirements: (i) That no member of the association is allowed more than one vote because of the amount of stock or membership capital he may own therein, or, (ii) that the association does not pay dividends on stock or membership capital in excess of eight per cent per annum, and, (in) that the association shall not deal in the products of nonmembers to an amount greater in value than such as are handled by it for members.”
“[I]n construing [the act] . . . the courts of this state shall be guided by interpretations given by the federal courts to federal antitrust statutes.” General Statutes § 35-44b. We note, therefore, that the federal courts, including the United States Supreme Court, consistently have held that a municipality is a “person” within the federal antitrust statutes. See, e.g., Lafayette v.
Our resolution of this issue is informed further by our decision in West-port Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 26, 664 A.2d 719 (1995). In that case, the defendant, a transit district established by the town of Westport, provided bus and taxi services in direct competition with the plaintiff. After the plaintiff was forced out of business, it brought an action against the defendant, alleging violations of the act Id., 11-12. The trial court found that the defendant had engaged in attempted monopolization and actual monopolization in violation of the act, and awarded the plaintiff damages for lost profits, the value of the business, and prejudgment interest. In addition, the trial court awarded the plaintiff treble damages under § 35-35. Id., 12-13. On appeal to this court, the defendant claimed, inter alia, that it was entitled to “governmental immunity applicable to municipalities and their agencies because it is a transit district established by the town of Westport.” Id., 26. We declined to review this claim, concluding that the record was insufficient to analyze the defendant’s claim properly. Id., 27. Accordingly, we concluded that the trial court properly awarded the plaintiff treble damages for lost profits and the lost value of the business. Id., 45.
Seo, e.g., Blesso Fire Systems, Inc. v. Eastern Connecticut State University, 245 Conn. 252, 254-55, 713 A.2d 1283 (1998); Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 693-95, 600 A.2d 1019 (1991); Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983); Spiniello Construction Co. v. Manchester, 189 Conn. 539, 543-44, 456 A.2d 1199 (1983); John J. Brennan Construction Corp., Inc. v. Shelton, 187 Conn. 695, 702, 448 A.2d 180 (1982); Austin v. Housing Authority, 143 Conn. 338, 349, 122 A.2d 399 (1956).
We note that the defendant’s anticompetitive behavior in the present case resulted in a greater cost to taxpayers for the contract, not less. Although awarding damages to the plaintiff, the injured party, may exacerbate the additional costs paid by the taxpayers, thus bolstering the defendant’s policy argument for exempting the municipal bidding process from the act, any change to the act must come from the legislature, not this court.
With regard to morning, midday and afternoon service, the bid form requested prices for the following specifications: thirty-four school buses for morning service, running from 6:30 am. to 9:15 am.; one school bus for midday service, running from 10:30 a.m. to 12 p.m.; and thirty-four school buses for afternoon service, running from 2 p.m. to 5 p.m.
In denying the defendant’s motion to strike Terry’s testimony as irrelevant, the trial court stated: “My difficulty now is in [granting] a motion to strike if the trial isn’t over, so I can’t say that the testimony is not relevant, you know, as such. But I am telling you, counsel, in fairness to you, that unless it is tied up, I am going to have a problem, because one of the aspects of this case is a request for an injunction, and the other aspect of this case is a request for damages. . . . The law permits speculation, but in certain respects on future earnings, and the cases are pretty liberal. Like a claim for future earnings, but there-has to be some foundational requirement. And [Terry] didn’t remember any costs of this contract, she didn’t remember maintenance, facilities, she had no access to these figures. And yet she says (hat she relies on these figures in determining what her bid price was and what her rate of profit is. ... I can’t say that her testimony was completely irrelevant, but I am telling you, counsel, unless there is more offered in the way of facts and figures (hat [Terry] relied on, I may be in a position where I grant a motion for a directed verdict .... And in fairness to you, I will allow you to recall her if she has figures.”
Approximately 8.5 percent of the net present value of $5,862,997.93, the plaintiffs bid on the Hartford school transportation contract, amounted to approximately $500,000, the amount awarded the plaintiff. Terry’s estimated profit of between 8 and 10 percent of the net present value represents a profit between $469,039.83 and $586,299.79. Accordingly, the jury’s damage award falls within this range.
The plaintiff had been charging a fare of $1.80 for an average three mile trip, whereas taxi companies in the surrounding areas of Bridgeport, Greenwich and Stamford had been charging $2.70 for the same distance. The trial court therefore awarded lost profits on the basis of the difference between the $1.80 average fare that the plaintiff had been charging and the $2.70 average fare that it could have charged. Westport Taxi Service, Inc. v. Westport Transit District, supra, 235 Conn. 30-31.
We note, in addition, that our observation in Westport Taxi Service, Inc. v. Westport Transit District, supra, 235 Conn. 29, that the trial court in that case had “made meticulous findings of fact and clearly detailed its calculations” regarding the plaintiffs lost profits, does not lessen the applicability of that case to our resolution of this issue in the present case. This detail was the result of the fact that Westport Taod Service, Inc., was tried to the court, which has the ability, and indeed the obligation, to provide such findings. See Practice Book § 6-1 (a).
The defendant attempts to distinguish the present case from Capitol City Personnel Services, Inc. v. Franklin, supra, 52 Conn. App. 787, because in that case, “the plaintiffs witness testified that [the] plaintiff had earned a 25 percent profit markup on its billings for the same type of business in the same locality over the past three years. [The] [pjlaintiff also presented testimony that other businesses in the same industry and area also earned about the same percentage profit at the time.” This is a distinction without a difference. In the present case, Terry testified that she always anticipates a profit of between 8 and 10 percent, and that she usually is accurate. Therefore, Terry’s estimate of lost profits was not a “pure guess [that] was wholly unsupported as to either the amount of business lost or the profit to be expected.” Doeltz v. Longshore, Inc., 126 Conn. 597, 602, 13 A.2d 505 (1940). Moreover, the fact that the plaintiff had submitted the lowest bid on the Hartford school transportation contract, is evidence that the plaintiffs bid was competitive in the industry. Therefore, the jury reasonably could have inferred that Terry’s stated anticipated profit of 8 to 10 percent was accurate as to the state’s school transportation industry, as well as to this particular plaintiff. Finally, the fact that the plaintiffs anticipated profit had ranged from 8 to 10 percent is not fatal to its claim for lost profits; that
Similarly, the dissent’s reliance on Doeltz is misplaced. In that case, this court determined that lost profits had been improperly awarded for the plaintiffs new business when profits had actually increased after the defendant’s interference and the plaintiff had presented no evidence of costs oilier than rent. Doeltz v. Longshore, Inc., supra, 126 Conn. 601. In addition, the plaintiffs testimony that “[w]e usually figure on the liquor 100 [percent profit] and food 50 [percent profit]”; id., 599; in an attempt to establish lost profits was deficient. Id., 601. This court concluded in Doeltz that, without more evidence, simply averaging the two figures to arrive at a claim for 75 percent lost profit, was insufficient, because “[n]o attempt was made to show what relative proportion of [the plaintiffs] total sales fell within one class or the other. The evidence quoted shows that the estimate of the plaintiff was a pure guess and was wholly unsupported as to either the amount of business lost or the profit to be expected.” Id., 601-602.
In addition, we note thatneither Beverly Hills Concep ts, Inc., nor Gordon were antitrust cases and, accordingly, both can be distinguished on that ground alone. See Westport Taoei Service, Inc. v. Westport Transit District, supra, 235 Conn. 28 (there is “a lesser burden of proving the amount of damages in antitrust suits than in other contexts” [internal quotation marks omitted]); see also Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 92 (Peters, J., dissenting).
“The rale precluding double recovery is a simple and time-honored maxim that [a] plaintiff may be compensated only once for his just damages for the same injury. . . . Plaintiffs are not foreclosed from suing multiple defendants, either jointly or separately, for injuries for which each is liable, nor are they foreclosed from obtaining multiple judgments against joint tortfeasors. . . . The possible rendition of multiple judgments does not, however, defeat the proposition that a litigant may recover just damages only once. . . . Double recovery is foreclosed by the rule that only one satisfaction may be obtained for a loss that is the subject of two or more judgments.” (Internal quotation marks omitted.) Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 22 n.6, 699 A.2d 964 (1997).
In its complaint, the plaintiff also sought prohibitory injunctive relief, namely, that the court temporarily restrain the defendant from entering into the contract with another party, and temporarily restrain the defendant from permitting any party to perform work under the contract. The plaintiff concedes that, because the contract was in fact almost complete at the time of the hearing, its request for prohibitory injunctive relief was moot and noryusticable. Consequently, we will address only the trial court’s denial of the plaintiff’s request for prospective mandatory relief. See Tomasso Bros.,
Laidlaw is involved as an appellee solely for this claim. See footnote 5 of this opinion.
Such a remedy also would create an expansive range of practical problems for the trial court when developing, and subsequently monitoring, the new contract, including: how would cost be determined; what services would be covered under the contract; how would changes resulting from changed market conditions be addressed; and how would the level of service provided by the plaintiff be measured.
Concurring Opinion
joins, concurring and dissenting. I concur with the outcome in parts I, III and IV of the thoughtful majority opinion.
Without reiterating the entire standard of review, I nonetheless note that I agree with the majority that a trial court’s decision to set aside a verdict is entitled to “ ‘broad legal discretion,’ ’’ .and, therefore, our review of “ ‘the trial court’s action on a motion to set aside the verdict involves a determination of whether the trial court abused its discretion, according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correctness’ . . . .” (Citations omitted.) Howard v. MacDonald, 270 Conn. 111, 127, 851 A.2d 1142 (2004); accord Labbe v. Pension Commission, 239 Conn. 168, 192, 682 A.2d 490 (1996); Ginsberg v. Fusaro, 225 Conn. 420, 425, 623 A.2d 1014 (1993); Palomba v. Gray, 208 Conn. 21, 24, 543 A.2d 1331 (1988); O’Brien v. Seyer, 183 Conn. 199, 208, 439 A.2d 292 (1981); Jacobs v. Goodspeed, 180 Conn. 415, 416, 429 A.2d 915 (1980).
Moreover, I agree with the majority that we apply this familiar and deferential scope of review in light of
Applying this deferential standard of review to the present case, I would conclude that the trial court did not abuse its discretion when it granted the motion of the defendant, the city of Hartford, to set aside the verdict. As the trial court noted, the plaintiff “presented no experts, statistics, financial records as to costs or any information from which a reasonable calculation of lost profits could be made for this contract.” To the
First, Terry failed to testify about any profits the plaintiff actually had made under prior busing contracts. See Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 72-73 (experience of plaintiff in same business probative on issue of lost profits); Kay Petroleum Corp. v. Piergrossi, 137 Conn. 620, 624-25, 79 A.2d 829 (1951) (profits earned by plaintiff in year prior to breach may be extrapolated to time remaining on contract breached by defendant); Tull v. Gundersons, Inc., 709 P.2d 940, 945 (Colo. 1985) (trial court improperly excluded evidence of plaintiffs “past profit experience on other projects”); Van Hooijdonk v. Langley, 111 N.H. 32, 34, 274 A.2d 798 (1971) (“[a]n established business can usually provide data from which future prospects [of profitability] can reasonably be projected”); White v. Southwestern Bell Telephone Co., 651 S.W.2d 260, 263 (Tex. 1983) (profits earned by plaintiffs florist shop prior to defendant’s breach of contract relevant to determination of lost profits caused by defendant’s failure to list plaintiffs business properly in telephone directory).
Second, Terry failed to testify about any profits that the plaintiff actually had made under subsequent busing contracts. See Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 73 (plaintiffs experience in same enterprise subsequent to interference probative on issue of lost profits); El Fredo Pizza, Inc. v. Roto-Flex Oven Co., 199 Neb. 697, 698, 261 N.W.2d 358 (1978) (increased profits earned after
Third, Terry failed to testify about profits other participants in the busing industry had made under a contract with the defendant, or, more generally, under contracts with other towns. See Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 73 (experience of third parties in similar business probative on issue of lost profits); Chung v. Kaonohi Center Co., 62 Haw. 594, 611, 618 P.2d 283 (1980) (proper to base future profit calculation on experience of third party conducting virtually identical business at same location), overruled in part on other grounds, Francis v. Lee Enterprises, Inc., 89 Haw. 234, 237, 971 P.2d 707 (1999); Vickers v. Wichita State University, 213 Kan. 614, 618, 518 P.2d 512 (1974) (approving of reliance on experience of others in same line of business). While the lack of this evidence is not, by itself, fatal, it would have “remove[d] the assessment of damages from the realm of speculation [by providing] . . . objective verifiable facts that bear a logical relationship to projected future profitability.” Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 76.
Rather than testify about past profits the plaintiff or other companies actually had made under prior contracts, Terry merely testified that she always added 8 to 10 percent profit to her expenses to determine the bid amount, and that she “would have hoped for” the same amount for the contract with the defendant.
The majority places great emphasis on the fact that Terry “had approximately thirty years of experience in the school transportation industry and had been running her own school transportation company since 1984.” On the basis of this experience, the majority states that “the jury reasonably could have concluded that Terry’s anticipated profit of between 8 and 10 percent was appropriate.” Although I agree that Terry, as well as the plaintiff, had substantial experience in the busing industry, I would conclude that this counsels
As the majority notes, “this court has recognized that, ‘[t]he vagaries of the marketplace usually deny us sure knowledge of what [the] plaintiffs situation would have been in the absence of the defendant’s antitrust violation,’ ” and therefore a plaintiff in a typical antitrust case is subject to a “ ‘lesser burden of [proof] . . . .’” This case is not a typical antitrust case, however, as the plaintiffs situation was necessarily limited to an identifiable amount based on the figures set forth in the bid submitted to the defendant. As the trial court stated: “[T]his is not a case where the requirements of proof of lost profits should be relaxed because of the intricacies of proof presented by a complex antitrust case. The contract price was known, all that was needed was information about expenses which Terry at one time admitted she had calculated. This rather is a situation where evidence that could have been preserved and presented was not offered in court and, without that evidence, there can be no reasonable basis for the jury’s determination of lost profits.” See also Doeltz v.
At the completion of Terry’s testimony, the defendant moved to strike her testimony on the ground that she did not have the knowledge upon which to base an estimate of the profit built into the bid. Although the trial court denied the defendant’s motion, it nevertheless warned counsel for the plaintiff that, “unless there is more offered in the way of facts and figures that [Terry] relied on, I may be in a position where I grant a motion for a directed verdict . . . .”
In reaching this conclusion, I am guided by this court’s decision in Doeltz v. Longshore, Inc., supra, 126 Conn. 597. In Doeltz, the plaintiff had leased a refreshment concession from the defendant for $500 plus 5 percent of the gross receipts for the summer season. Id., 598. Under the terms of the lease, the defendant was to equip the bar and permit the plaintiff to have the exclusive sales of beverages and food on the defendant’s premises. Id. Despite the terms of the lease, the plaintiff alleged that the bar was not equipped and ready for him on the agreed date, and that the defendant subsequently interfered with the operation of the plaintiffs business. Id., 598-99. The plaintiff brought an action against the defendant seeking, inter alia, an award of lost profits. Id., 599. In support of his claim for lost profits, the plaintiff testified that he “usually figure[d] on the liquor 100 percent [profit] and [on the]
The facts of Doeltz and the present case are similar in several important respects. First, both the plaintiffs testimony in Doeltz and Terry’s testimony in the present case were predicated upon unsupported claims of “usual” profit margins. Just as there was no evidence in Doeltz to support the claimed average of 75 percent profits, there was no evidence in the present case to support the claimed level of 8 to 10 percent profit. Moreover, the plaintiffs testimony in Doeltz contained speculation about usual profits earned in his business. Terry’s testimony in the present case, however, concerned speculative profit levels set forth in a bid, rather than speculation over past profits actually earned. If
This conclusion is buttressed by an examination of other cases in which this court has addressed awards for lost profits. In those cases where the award was affirmed, the plaintiff had presented specific evidence, beyond mere speculation, which supported the award. See, e.g., Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 29, 664 A.2d 719 (1995) (affirming award of lost profits where “trial court made meticulous findings of fact and clearly detailed its calculations regarding the plaintiffs damages” based on, inter alia, specific figures in evidence regarding average taxi fares, yearly rides and commissioner’s guidelines for fair rate of return);
Moreover, in other cases this court has found that awards for lost profits were not proved to a reasonable certainty, despite the fact that the plaintiff had presented more significant evidence than was presented by the plaintiff in the present case. See, e.g., Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 68 (vacating trial court’s award of $15.9 million in lost profits for prospective period of twelve years because not proved to reasonable certainty where testimony from plaintiffs expert on future sales
This court has stated that “[a] damage theory may be based on assumptions so long as the assumptions are reasonable in light of the record evidence.” (Internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 70.1 continue to adhere to the sentiments expressed in that statement. As the foregoing discussion illustrates, however, this court consistently has required a higher level of “record evidence” to support an award for lost profits than that which was submitted in the present case. The majority’s conclusion therefore represents a significant departure from our prior cases.
I recognize that my conclusion would mean that the defendant, whose antitrust violations caused the plaintiffs harm, would escape virtually unscathed. Although troubling, “[t]his outcome is a direct result of the plain
I therefore respectfully dissent, and would affirm the judgment of the trial court granting the defendant’s motion to set aside the verdict on the ground that the plaintiff failed to prove lost profits to a reasonable certainty.
I join fully in the reasoning and conclusion set forth in part I of the majority opinion. I agree with the outcome in part III of the majority opinion, yet I would reach that result based on my conclusion that the plaintiff, Cheryl Terry Enterprises, Ltd., had failed to present an adequate record for review. With regard to part IV of the majority opinion, I agree that “the trial court properly exercised its discretion in denying the relief requested.”
This court has articulated a number of factors to be taken into account when evaluating whether a plaintiff has proved lost profits to a reasonable certainty. Those factors include: a plaintiffs prior experience in the same business; the plaintiffs experience in the same enterprise subsequent to the interference; the experience of the plaintiff and that of third parties in a similar business when dealing with a new business; the average experience of participants in the same line of business as the injured party; and prelitigation projections. Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 72-74. We have emphasized, however, that “[t]he underlying requirement for each of these types of evidence is a substantial similarity between the facts forming the basis of the profit projections and the business opportunity that was destroyed.” Id., 74.
In testifying generally about the bid preparation process, Terry stated: “You can’t determine your price per bus until you have all [of your] costs factored in. This is how you come out with your cost per bus or cost per van when you have your driver pay scale and all of the above that I just
With regard to the bid submitted to the defendant, the following colloquy occurred during the plaintiffs direct examination of Terry:
“Q. And what was the net present value of the five years in the [bid submitted to the defendant]?
“A. $5,862,097.
“Q. And of that, what was your anticipated profit?
“A. It would have been about 8 to 10 percent that I would have hoped for.”
With regard to how she calculated the bid submitted to the defendant, Terry testified: “I took my costs, as I always do, and add[ed] a profit, and that is all I can tell you because that is the way you do it.”
The majority claims that “the fact that the plaintiffs anticipated profit had ranged from 8 to 10 percent is not fatal to its claim for lost profits; that range of anticipated profit was sufficiently restrictive to permit the jury to determine the damages with reasonable certainty.” This statement misses the point. The fact that the plaintiff may have acjjusted its anticipated profit between 8 and 10 percent for varying bids it had made in the past is not relevant. What is relevant to the present case, however, is the profit level the plaintiff factored into the specific bid submitted to the defendant. Terry was unable to testily to that amount, and could only testily that in the past it had ranged from 8 to 10 percent. Indeed, the fact that Terry testified that it ranged from 8 to 10 percent indicates that it was always a firm number, and not a range, that she factored into a particular contract.
The record further reveals that the plaintiff had never provided busing services to the defendant before, and its prior contracts were with towns in the southeastern portion of Connecticut. The majority concludes that the fact that the plaintiff submitted the lowest bid indicates that “the plaintiffs bid was competitive in the industry.” Although that may be true, it also may be true that the fact that the plaintiff submitted the lowest bid is evidence that the plaintiff reduced its normal profit level in order to win this contract, and expand its business into the central portion of the state. In sum, the fact that the plaintiff submitted the lowest bid has no bearing on a determination as to what the plaintiffs profit would have been if it had been awarded the contract.
Specifically, the trial court stated: “My difficulty now is in [granting] a motion to strike if the trial isn’t over, so I can’t say that the testimony is not relevant, you know, as such. But I am telling you, counsel, in fairness to you, that unless it is tied up, I am going to have a problem, because one of the aspects of this case is a request for an injunction, and the other aspect of this case is a request for damages. . . . The law permits speculation, but in certain respects on future earnings, and the cases are pretty liberal. Like a claim for future earnings, but there has to be some foundational requirement. And [Terry] didn’t remember any costs of this contract, she didn’t remember maintenance, facilities, she had no access to these figures. And yet she says that she relies on these figures in determining what her bid price was and what her rate of profit is. . . . I can’t say that her testimony was completely irrelevant, but I am telling you, counsel, unless there is more offered in the way of facts and figures that [Terry] relied on, I may be in a position where I grant a motion for a directed verdict .... And in fairness to you, I will allow you to recall her if she has figures.”
See footnote 2 of this concurring and dissenting opinion.
Although $2500 is slightly less than 75 percent profit of $3750 in sales, the plaintiff stated that the lower amount was applicable because “[s]ometimes you give something away free of charge, and so forth, you know, the kids come in for ice cream cones and sometimes you give a drink away on the house.” (Internal quotation marks omitted.) Doeltz v. Longshore, Inc., supra, 126 Conn. 599.
The majority’s reliance on Westport Taxi Service, Inc. v. Westport Transit District, supra, 235 Conn. 1, in support of its conclusion is misplaced. To begin with, much of the discussion the majority cites to from Westport Taxi Service, Inc., is contained in the part of that opinion addressing the defendant’s challenge to the trial court’s award of $150,000 for the loss of the business, and not the part of that opinion addressing the defendant’s challenge to an award of $12,144 in lost profits. See id., 32-35. Second, within that part of Westport Taxi Service, Inc., addressing the award for lost profits, this court noted that the trial court, as the trier of fact in that case, had “sufficient evidence” from which to make “reasonable assumptions” concerning lost profits. Id., 32. That sufficient evidence included, inter alia, evidence that the plaintiff collected a $1.80 average fare, that the state commission would have approved a fare increase to the rate of $2.70, that surrounding communities were charging an average fare of $2.70, and that the commission considered a reasonable rate of return to be a ratio of operating costs to gross revenue of between 85 and 95 percent. Id., 30-31. That level of evidence simply was not presented by Terry in the present case. Thus, while the majority is correct that the owner in Westport Taxi Service, Inc., properly was allowed to testily that a fair rate of return on a
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