DiNapoli v. Cooke

SPEAR, J.,

dissenting. I concur with that part of the majority opinion that affirms the judgment of the trial court on the defendants’ counterclaim. I respectfully dissent with respect to the trial court’s judgment on the plaintiffs’ complaint. I conclude that it was plain error 1 for the court to award nominal damages on the plaintiffs’ claim of tortious interference with a business relationship after finding that no actual damages were proven. Accordingly, I would reverse the judgment on the complaint.

The majority correctly points out that “[u]nlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss ... it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss.” (Citation omitted; emphasis added.) Taylor v. *432 Sugar Hollow Park, Inc., 1 Conn. App. 38, 39 , 467 A.2d 935 (1983); see also Conrad v. Erickson, 41 Conn. App. 243, 246-47 , 675 A.2d 906 (1996). I view Taylor as standing for the proposition that it is impermissible to award nominal damages in a case involving tortious interference with business relations where actual damages have not been proven. The trial court’s failure to find actual damages is thus fatal to the plaintiffs’ cause of action here.

The precedent on which Taylor rests includes Goldman v. Feinberg, 130 Conn. 671 , 37 A.2d 355 (1944). In Goldman , our Supreme Court stated with respect to a case involving tortious interference with business relations: “In other words, it does not appear that the plaintiff has sustained any damage as a result of those acts. For that reason the plaintiff has not made out a complete cause of action for unlawful interference with his business.” Id., 676 . “A plaintiff states an actionable cause by alleging that the defendant intentionally interfered with a business or contractual relationship of the plaintiff and that the plaintiff, as a result, has suffered an actual loss.” Herman v. Endriss, 187 Conn. 374, 377 , 446 A.2d 9 (1982).

The majority addresses our holding in Taylor by stating that the trial court found that the plaintiffs had suffered actual damage, but the court could not mathematically compute the “precise or approximate pecuniary compensation, or damages, for their loss. The actual damage was some or all of the nine month and five day delay in consummating the almost three million dollar transaction pursuant to the stipulated judgment.” I disagree.

The trial court stated: “However, a mathematical computation does not necessarily establish damages, despite the nature of the defendants’ interference and despite the fact that the tort had been made out and *433 damages have occurred. In view of the lack of persuasive evidence on the measure of damages, the court finds certainly that the trastees are entitled to nominal damages and awards the sum one ($1) dollar.” (Emphasis added.) It is clear that it was the lack of evidence that led the court to deny compensatory damages to the plaintiffs and not the difficulty of mathematically computing the loss. More important, the plaintiffs point to no evidence that the defendants were responsible for the delay in closing the sale of their land to the state. They simply assert that the transaction would have closed by April 21, 1989, had Torrey Cooke not brought suit to prohibit the transfer. The plaintiffs then reason that they are entitled to interest on $2,800,000 from April 21, 1989, to January 26, 1990, the date of the closing with the state.

My review of the evidence discloses that the town filed suit by way of a complaint dated April 17, 1989, for a declaratory judgment seeking to authorize the transfer of parcel A to the plaintiffs in exchange for parcel B. The matter was returnable to the Superior Court on May 2, 1989, and was apparently pending during the entire period of time that the plaintiffs claim that the defendants were responsible for the delay in closing. This action could well have caused the trial court to conclude that the defendants were not responsible for any part of the delay in closing the transaction. Obviously, the plaintiffs could not convey parcel A to the stale until they acquired it from the town and the town, by its own action, decided that a court ruling was necessary prior to conveying parcel A to the plaintiffs.

In its lawsuit, the town alleged that parcel A is “open space and therefore public, and thus governed by the charitable use statute section 47-2 of the Connecticut General Statutes.” The town, thus, agreed with the defendant Torrey Cooke’s claim in her lawsuit that parcel A was open space that was governed by General *434 Statutes § 47-2. The town’s action was dismissed on December 7,1990, for failure to prosecute with reasonable diligence, a time well after the closing of January 26,1990. In view of the evidence, the trial court’s conclusion that the plaintiffs failed to prove damages is certainly supported in the record. It is clear that four days before the April 21, 1990 closing deadline the town had decided that it would not convey parcel A without a declaratory judgment ruling from the Superior Court. That decision apparently did not change during the nine month, five day period in question and parcel A was never transferred to the plaintiffs.

I conclude that plain error review and reversal is proper here because the judgment for the plaintiffs on the complaint is directly contrary to the holding of Taylor . It is axiomatic that Supreme and Appellate Court precedent that is directly on point binds the Superior Court. Plain error review may be appropriate “where consideration of the question is in the interest of public welfare or of justice between the parties.” (Internal quotation marks omitted.) Skrzypiec v. Noonan, 228 Conn. 1, 15 , 633 A.2d 716 (1993). To allow the judgment to stand would constitute an injustice between the parties because the improper award of nominal damages was the predicate for the award of punitive damages consisting of the plaintiffs’ attorney’s fees of $21,080. Because the award of nominal damages was improper, the punitive damage award is also improper.

I would reverse the judgment for the plaintiffs on the complaint and remand the case to the trial court with direction to render judgment for the defendants on the plaintiffs’ complaint.

The majority has properly stated the plain error rule and noted that the parties were given the opportunity to file supplemental briefs on the question of plain error.