text:
    Web Press Services Corporation v. New London Motors, Inc.
    (12832)
    (12833)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.
    Argued December 5, 1986
    decision released May 5, 1987

      Jacques J. Parenteau, with whom, on the brief, was Mary E. Holzworth, for the appellant (plaintiff).

      Andrew Brand, with whom, on the brief, was Kerin M. Woods, for the appellee (defendant).
   Dannehy, J.

These two appeals were consolidated for argument. They raise identical questions. The appeal in Docket No. 12832 must be dismissed because it was prematurely brought. The appeal in Docket No. 12833 will be separately considered.

The plaintiff brought this action against the defendant, a corporation engaged in selling new and used automobiles. The complaint was in five counts. In the first count the plaintiff alleged that in July, 1984, the defendant sold to the plaintiff a used 1980 model Ford Bronco (the vehicle), to be used for off-the-road driving. The plaintiff paid the purchase price and took delivery of the vehicle. Mechanical defects developed in the vehicle almost immediately, substantially impairing the vehicle’s value to the plaintiff. The defendant several times attempted to remedy those defects, but without success. In October, 1984, the plaintiff tendered back the vehicle to the defendant and notified the defendant that it was revoking its acceptance pursuant to General Statutes § 42a-2-608. The plaintiff requested the return of the purchase price. The defendant refused to return the purchase price.

The four other counts claimed damages by specific reference to the first count. The second count sought damages on the ground that there was a breach of an implied warranty of merchantability, the third count, for breach of an implied warranty of fitness for a particular purpose, and the fourth count, for breach of express warranties. The fifth count sought damages on the ground that the defendant had engaged in unfair and deceptive practices in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendant, in its answer, denied most of the material allegations of the complaint and also set up a special defense charging that any mechanical defects in the vehicle resulted from the plaintiffs misuse and abuse of the vehicle.

At trial, there was evidence to show that during the time the plaintiff possessed the vehicle, it experienced various mechanical problems. These problems included leakage and a noise from the left rear of the vehicle and problems with the brakes, muffler, power steering and air conditioning. Most of these difficulties were remedied by ordinary repairs which the defendant performed without cost to the plaintiff. The trial court, in fact, characterized these problems as “mostly minor.” Clearly, however, a structural defect in the rear axle was hardly minor. The vehicle continued to present problems to the plaintiff, especially on the left rear side. The defect was not detected by the defendant, but was later discovered upon inspection by a certified mechanic.

The court’s basic finding was that the plaintiff had failed to prove that the defendant had violated General Statutes § 42a-2-608, had breached any express or implied warranties or that the defendant’s actions violated CUTPA.

General Statutes § 42a-2-608 provides in part that a buyer may revoke his acceptance of an item if there is a nonconformity in the item which “substantially impairs” its value to him. After considering the language of § 42a-2-608, and decisions interpreting that statute, the court concluded that the plaintiff could not revoke acceptance of the vehicle because “the defects in the vehicle did not substantially impair its value to the plaintiff.” The court further found that the plaintiff had not established a breach of any express or implied warranty except to the extent that a limited warranty provision in the sales agreement had been breached. The court also concluded that the plaintiff had failed to present sufficient evidence to sustain its CUTPA claim. As to the special defense asserted by the defendant, the court found that the evidence was insufficient to prove abuse or misuse of the vehicle by the plaintiff. The court subsequently heard evidence as to the cost of repairing the defective axle on the vehicle and awarded damages of one half of the cost of repairing the axle, or $300, plus costs to the plaintiff. The plaintiff appeals from this judgment. We turn then to the attacks upon the judgment made by the plaintiff.

The general rule with regard to appeals of this nature is that the judgment appealed from will not be reversed in matters of fact unless it clearly appears to be erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). The plaintiff first contends that the trial court committed reversible error in concluding that since the vehicle was “used,” its numerous defects did not substantially impair the value of the vehicle to the plaintiff. Particularly, it is urged that the trial court erred in applying a standard for substantial impairment different from the standard applicable to new vehicles. We disagree.

After the close of the evidence, the trial judge solicited the views of counsel regarding the issue of revocation of acceptance. Specifically, the court inquired whether § 42a-2-608 was applicable to used motor vehicles. The court invited counsel to submit briefs on this issue. Counsel accepted the invitation. In its memorandum, the court noted that our jurisdiction has not determined whether the revocation provision of the Uniform Commercial Code applies to the sale of used vehicles, but that other jurisdictions have concluded that the Uniform Commercial Code does apply. See, e.g., O’Neal Ford, Inc. v. Early, 13 Ark. App. 189, 681 S.W.2d 414 (1985); Jackson v. H. Frank Olds, Inc., 65 Ill. App. 3d 571, 382 N.E.2d 550 (1978). Accordingly, the court concluded that “§ 42a-2-608 may be applied to the sale of a used automobile.”

Section 42a-2-608 (1) provides in pertinent part that “[t]he buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it . . . (b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.” Whether the value of goods has been substantially impaired by a nonconformity is a question of fact. Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 121, 374 A.2d 144 (1976). The test for substantial impairment is both subjective and objective; it focuses first, on the needs and circumstances of the particular buyer seeking to revoke, and then considers whether, from an objective standpoint, the value of the goods to the buyer has in fact been impaired. See Keen v. Modern Trailer Sales, Inc., 40 Colo. App. 527, 578 P.2d 668 (1978); Jorgensen v. Pressnall, 274 Or. 285, 545 P.2d 1382 (1976).

In the present case, the court noted that all of the problems with the vehicle except for the defective axle, which was not immediately discovered, had been corrected at the defendant’s expense. The court reviewed the language of § 42a-2-608, articulated both the subjective and objective components of the substantial impairment test, and concluded that the defects in the vehicle did not substantially impair its value to the plaintiff. The court also found that the plaintiffs acceptance of the vehicle had not been induced by the seller’s assurances. Although the court noted that Conte v. Dwan Lincoln-Mercury, Inc., supra, involved a new vehicle whereas the one in the present case was used, there is nothing in the court’s memorandum which indicates that it utilized a test for substantial impairment different from that employed in the Conte decision. Although the court stated that a purchaser of a used vehicle does not have the same expectations as one who buys a new vehicle, this passing observation was made in the context of the court’s discussion of whether the plaintiff’s acceptance was induced by the seller’s assurance. It was not a part of the court’s discussion of the substantial impairment test. In short, the record does not indicate the use of an erroneous standard by the trial court.

We also hold that the court’s application of the substantial impairment test to the facts of the present case was not clearly erroneous. There was testimony that during the period in which the plaintiff possessed the vehicle, it was used for transportation connected with the plaintiffs business, pleasure trips to Canada and New Hampshire, and off-the-road driving on the beach.

The plaintiff’s next assignments of error involve the court’s failure to find a breach of either an express or implied warranty. The court found that the plaintiff had failed to establish any breach “except for the limited warranty as to certain parts for a period of thirty days.” Before addressing the merits of the plaintiff’s claim regarding express and implied warranties, we must first decide whether the court’s consideration of the limited warranty was proper.

In its memorandum, the court noted that the purchase order for the vehicle, which consisted of a one page document with information printed on both sides, contained the following warranty provision: “This motor vehicle is guaranteed by a limited warranty for 30 days ... on a 50-50 basis on motor, transmission and differential only, half of list price of parts and labor to be borne by seller and half to be paid by purchaser . . . .” On the reverse side of the purchase order, the defendant “disclaim[s] all warranties, either express or implied, including any implied warranty of merchantability.” The disclaimer provision appears in large print under the heading “Additional Terms and Conditions.” The court invoked the limited warranty provision in its order for relief and awarded the plaintiff $300, or one half of the stipulated cost of repairing the axle. It should be noted that the court did not rely on the disclaimer or limited warranty provisions to defeat the plaintiff’s claim for revocation of acceptance; rather, the court found that the substantial impairment test for revocation, as we have already indicated, had not been satisfied.

The plaintiff contends that the court’s consideration of the limited warranty was erroneous because there was no proof offered at trial as to the limited warranty. We note, however, that the limited warranty was part of the purchase order which was introduced in evidence by the plaintiff. The defendant made no objection to its introduction and in fact relied in part on the limited warranty provision in its posttrial brief. The plaintiff had the opportunity to and in fact did respond to the invocation of the provision in its posttrial brief. The record does not reveal that any motion for reconsideration based on an erroneous invocation of the limited warranty provision was presented to the trial court.

The plaintiff also argues that the court’s consideration of the limited warranty was erroneous because the defendant’s answer does not allege a special defense of a limited warranty. The defendant’s response is that its general denial of the allegations made in the plaintiff’s complaint was sufficient to raise the defense of the limited warranty. Even if we assume that the limited warranty should have been specially pleaded, the plaintiff, as we pointed out above, exhibited the purchase order containing the warranty as evidence upon which it relied to establish its claim. There was no limitation on its use. It is well established that “[t]he failure to file a special defense may be treated as waived when it appears that no objection was raised to the offer of evidence on the issue at trial.” Frager v. Pennsylvania General Ins. Co., 161 Conn. 472, 479, 289 A.2d 896 (1971); see Pepe v. New Britain, 203 Conn. 281, 286, 524 A.2d 629 (1987); Damora v. Christ-Janer, 184 Conn. 109, 112, 441 A.2d 61 (1981).

We are also unpersuaded by the plaintiff’s assertion that even if consideration of the limited warranty was proper, an award of damages under the provision was erroneous because the provision failed to provide adequate relief to the plaintiff. Under General Statutes § 42a-2-719 (2), a party may avail itself of remedies provided by the code “[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose . . . .” See Conte v. Dwan Lincoln-Mercury, Inc., supra, 123. It is the plaintiffs position that the limited warranty failed to provide adequate relief to the plaintiff and that the warranty therefore failed of its essential purpose. We disagree.

Both parties recognize that a seller has a right to attempt to cure defects. See § 42a-2-508 (1). The trial court noted that the defendant did, in fact, repair all of the defects in the vehicle except for the defective axle which was not immediately discernible. The plaintiff acknowledged at oral argument that when the defective axle was discovered, it made no attempt to have the axle repaired by the defendant but simply sought the return of the purchase price of the vehicle. We have previously stated that “ ‘[o]ne policy of the Code is to encourage the parties to work out their differences and so to minimize losses resulting from defective performance.’ White & Summers, [Uniform Commercial Code], § 8-2 n.15.” Conte v. Dwan Lincoln-Mercury, Inc., supra. While the right to cure defects does not last indefinitely; see id., 122; the defendant here was not allowed an opportunity to repair the axle once the defect was brought to its attention. The court could reasonably have determined that an award of one half of the cost of repairing the axle would be an adequate and fair form of relief for the plaintiff and would best promote the code’s policy of minimizing losses. We recognize that the plaintiff did not specifically request the form of relief ordered by the trial court. The plaintiff, however, did request in its prayer for relief “such further equitable relief as this court may deem just and proper.” We conclude, therefore, that under the circumstances of this case the trial court did not commit reversible error in invoking the limited warranty.

We next consider the plaintiffs claim that the court should have found a breach of an express warranty. According to the plaintiff, the defendant’s repeated statements to the effect that the vehicle was an “excellent” and “unusual” one, and that it was in “mint” and “very good” condition, amounted to an express warranty under General Statutes § 42a-2-313 (1) (a). That section provides that an express warranty is created by “[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain . . . .’’Subsection (1) (b) provides that “[a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods conform to the description.” In concluding that the defendant’s statements did not amount to an express warranty, the trial court relied on Mikula v. Lucibello, 17 Conn. Sup. 360 (1951). There, the court held that words such as “[t]his car is in A-l condition” did not create an express warranty but were merely “seller’s talk.” Id., 361.

The plaintiff bears the burden of proving the existence of an express warranty. The question of whether an express warranty exists is one of fact and we will not reverse a court’s finding on this matter unless it is clearly erroneous. Superior Wire & Paper Products, Ltd. v. Talcott Tool & Machine, Inc., 184 Conn. 10, 17, 441 A.2d 43 (1981). We are hard pressed to find that the court’s conclusion in this case was clearly erroneous.

The Uniform Commercial Code recognizes that some statements of sellers are merely “puffing” and do not create express warranties. Section 42a-2-313 (2), for example, provides that “an affirmation merely of the value of goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.” Drawing the line between puffing and the creation of a warranty is often difficult, but several factors have been identified as helpful in making that determination. See generally J. White & R. Summers, Uniform Commercial Code (2d Ed.) § 9-3. One such factor is the specificity of the statements made. A statement such as “this truck will give not less than 15.1 miles to the gallon when it is driven at a steady 60 miles per hour” is more likely to be found to create an express warranty than a statement such as “this is a top-notch car.” Id., p. 329. Statements to the effect that a truck was in “good condition” and that a motor was in “perfect running order” have been held not to create express warranties. See Pell City Wood, Inc. v. Forke Bros. Auctioneers, Inc., 474 So. 2d 694 (Ala. 1985); Miller v. Lentine, 495 A.2d 1229 (Me. 1985). Another factor to be considered in determining whether a statement creates an express warranty is whether it was written or oral, the latter being more likely to be considered puffing. J. White & R. Summers, supra.

The defendant in the present case made various oral statements to the effect that the vehicle was “excellent,” in “mint” condition and that it was an “unusual” one. These statements certainly cannot be considered specific in nature. Moreover, the plaintiff was allowed to examine and test drive the vehicle prior to purchase. Under the facts of this case the trial court’s failure to find an express warranty, except to the extent of the limited warranty discussed above, cannot be considered clearly erroneous.

The plaintiff next assigns error to the court’s failure to find that the defendant breached an implied warranty of merchantability. General Statutes § 42a-2-314 (1) provides that “[u]nless excluded or modified as provided by section 42a-2-316, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. . . .” The parties agree that the defendant is a merchant with respect to the vehicle sold to the plaintiff. To be merchantable, goods must be, inter alia, “at least such as (a) pass without objection in the trade under the contract description . . . and (c) are fit for the ordinary purpose for which such goods are used . . . .” General Statutes § 42a-2-314 (2).

In reaching its conclusion that no implied warranty had been breached, the trial court looked to the holding in Chamberlain v. Bob Matick Chevrolet, Inc., 4 Conn. Cir. Ct. 685, 692, 239 A.2d 42 (1967). In that case, the court found no implied warranty where the vehicle was sold “as is.” The Chamberlain court noted the inherent difference between a new and a used car and stated that “the express or implied warranties, if any, must be reflected in the newness or antiquity of the car sold.” Id., 695.

The defendant in the present case did not use an expression like “as is” in selling the vehicle to the plaintiff, and therefore the trial court’s reliance on the Chamberlain decision was misplaced. The court’s conclusion that no implied warranty of merchantability existed, however, is adequately supported by the record because the purchase order for the vehicle contained a provision expressly disclaiming any implied warranty of merchantability. This provision was conspicuously placed in large type on the reverse side of the purchase order. See General Statutes § 42a-2-316 (2). Although the trial court did not expressly rely on the disclaimer in reaching its conclusion, it did note the existence of the disclaimer provision. We cannot say, therefore, that the court’s failure to find a breach of an implied warranty constituted reversible error. See Superior Wire & Paper Products, Ltd. v. Talcott Tool & Machine, Inc., supra, 19.

The plaintiff contends finally that the court erred in refusing to find a violation of CUTPA, General Statutes § 42-110a et seq. CUTPA provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” General Statutes § 42-110b (a). A plaintiff who establishes a violation of CUTPA may recover not only actual damages, but in some cases attorney’s fees and punitive damages as well. See General Statutes § 42-110g (a) and (d). In enacting CUTPA, the legislature intended to create an expansive act which would provide relief to persons suffering “any ascertainable loss” as a result of an unfair or deceptive trade practice. General Statutes § 42-110g (a). To that end, the legislature expressly provided that “[i]t is the intention of the legislature that this chapter be remedial and be so construed.” General Statutes § 42-110b (d).

At trial, the plaintiff attempted to show that certain statements and conduct of the defendant in selling the vehicle to the plaintiff amounted to a CUTPA violation. The trial court disposed of the plaintiffs claim summarily by stating in its memorandum simply that the plaintiff had failed to present “sufficient evidence to support its burden of proof as to violations” of CUTPA. The plaintiff attacks the trial court’s disposition of its CUTPA claim on four grounds. It argues that the court erred in refusing to allow inquiry into the defendant’s conduct following the final return of the vehicle, in failing to consider allegedly deceptive statements made by the defendant following the sale of the vehicle, in not permitting the plaintiff to amend its complaint, and in requiring proof that the defendant had knowingly made a deceptive statement. We will consider each claim in turn.

It is well settled that in determining whether a practice violates CUTPA, the following criteria are to be employed: “ '(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [(competitors or other businessmen)].’ Conaway v. Prestia, [191 Conn. 484, 492-93, 464 A.2d 847 (1983)], quoting FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244-45 n.8, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972) . . . .” McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 568, 473 A.2d 1185 (1984); see also Sportsmen’s Boating Corporation v. Hensley, 192 Conn. 747, 756, 474 A.2d 780 (1984). Thus, a violation of CUTPA may be established by showing either an actual deceptive practice; see, e.g., Sprayfoam, Inc. v. Durant’s Rental Centers, Inc., 39 Conn. Sup. 78, 468 A.2d 951 (1983); or a practice amounting to a violation of public policy. See, e.g., Sportsmen’s Boating Corporation v. Hensley, supra. The plaintiff here was precluded from questioning the defendant’s representative, Richard Antupit, as to whether Antupit had examined the vehicle following its final return by the plaintiff, and as to whether he had sought to avoid the plaintiff. It is the plaintiff’s position that it wished to introduce Antupit’s testimony to show that the defendant’s conduct violated the Uniform Commercial Code and/or public policy, and as such was evidence of a violation of CUTPA.

It is beyond dispute that the trial court has broad discretion in determining the relevancy and materiality of evidence. Hardisty v. Hardisty, 183 Conn. 253, 257, 439 A.2d 307 (1981). When the defendant objected to the plaintiffs inquiry as to whether Antupit had inspected the vehicle upon its final return, the plaintiff cited General Statutes § 42a-2-608 as support for its question. The trial court noted that § 42a-2-608, which deals with revocation of acceptance, does not discuss the duties of a seller after the buyer has attempted to revoke acceptance. Therefore, the provision did not provide support for the plaintiffs question. In addition, Antupit had already testified that after the return of the vehicle, he had received two letters instructing him “not to touch” the vehicle. He testified that pursuant to these instructions, he “didn’t do a thing” to the vehicle. It is certainly well within the court’s discretion to disallow a question which had essentially already been answered. See State v. Gooch, 186 Conn. 17, 24, 438 A.2d 867 (1982).

The plaintiff also attempted to question Antupit regarding telephone calls made by the plaintiff to the defendant which were allegedly unreturned. Antupit testified that he could not recall whether he had received telephone calls from or had returned telephone calls to the plaintiff but that his usual practice was to return such calls. The plaintiff then started to ask “So you’re not saying that [the plaintiff’s representative] is lying . . . .” Upon objection by the defendant, the court disallowed further inquiry on this matter. Once again we are hard pressed to find an abuse of the court’s discretion. Antupit had already testified as to his inability to recall the telephone calls. We fail to discern how further inquiry could have revealed anything relevant to the claim of unfair trade practices.

The plaintiff’s second and third grounds for attacking the court’s treatment of his CUTPA claim involve certain alleged representations made by the defendant after the sale of the vehicle to the plaintiff. The plaintiff took delivery of the vehicle on July 17, 1984, but had to return it to the defendant for repairs on several occasions, one being on July 26,1984. At trial, the plaintiff attempted to elicit testimony as to representations made by the defendant on July 26, 1984, that a new rear end had been placed on the vehicle and that the vehicle was safe to drive. The court refused to allow the inquiry on the ground that the plaintiff’s complaint did not allege any representations except for those made at the time of sale. The plaintiff argued that the general allegations in his complaint with respect to the “defendant’s representations regarding the mechanical state of the vehicle,” combined with various factual allegations made earlier in his complaint, were broad enough to encompass all representations which occurred. The trial court disagreed. The plaintiff then moved to amend its complaint but the motion was denied.

A plaintiffs right to recover has traditionally been based on the allegations made in his complaint. “A plaintiff may not allege one cause of action and recover upon another.” Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952). While this principle still remains in force today, courts now follow a more liberal policy in passing on claims of variance between the pleadings and the proof offered. Francis v. Hollauer, 1 Conn. App. 693, 696, 475 A.2d 326 (1984). A court will overlook a variance between the pleadings and proof unless that variance is so material as to prejudice the other party in the presentation of its case. Practice Book § 178; Strimiska v. Yates, 158 Conn. 179, 184, 257 A.2d 814 (1969).

The trial court in the present case did not expressly find that the variance between the pleadings and proof offered by the plaintiff was material. This conclusion is implicit, however, in the court’s refusal to allow into evidence the alleged representations made on July 26, 1984. When a material variance exists, the court may allow a party to amend its complaint. Practice Book § 178. “The trial court has wide discretion in granting or denying amendments,” and its determination will not be reversed absent an abuse of discretion. Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980). Our jurisdiction generally follows a liberal policy in allowing amendments to complaints. Id. Factors to be considered in determining whether leave to amend should be granted are the length of the delay, the fairness to the opposing party, and the negligence, if any, of the party offering the amendment. Beckman v. Jalich Homes, Inc., 190 Conn. 299, 302-303, 460 A.2d 488 (1983).

The court here refused to allow the plaintiff to amend its complaint to allege representations made after the sale of the vehicle. From our review of the record, the court’s action was not an abuse of its discretion. The trial was nearly completed at the time the variance emerged, and the trial judge could reasonably have believed that allowing the plaintiff to present proof of statements made after the sale of the vehicle would have unreasonably prejudiced the defendant. In short, we find no abuse of discretion. McLaughlin Ford, Inc. v. Ford Motor Co., supra, 564; Lawson v. Godfried, supra.

The plaintiff finally alleges that the court applied an incorrect standard in determining whether a violation of CUTPA occurred. At the close of the evidence, the court made the following statements: “I don’t think that the factual pattern is such where I can find that the behavior of the [defendant] violated the Unfair Trade Practices Act. . . . There’s no evidence that [it] knew or should have known that the—that there were defects in this vehicle, no indication that [it] knowingly had sold a vehicle which was defective or should have known it was defective.” Although the court’s memorandum of decision is silent as to the standard it applied in evaluating the CUTPA claim, the plaintiff argues that the above quoted language indicates that the court required the plaintiff to establish actual or constructive knowledge of the defects on the defendant’s part. The plaintiff contends that scienter is not required for the establishment of a CUTPA violation, citing Bailey Employment System, Inc. v. Hahn, 545 F. Sup. 62, 67 (D. Conn. 1982), aff’d, 723 F.2d 895 (2d Cir. 1983), and that the court therefore committed reversible error in requiring that the plaintiff show that the defendant knew the vehicle was defective.

It is now well established that CUTPA proscribes a broader range of conduct than did the common law action for innocent misrepresentation. Sportsmen’s Boating Corporation v. Hensley, supra, 756; Hinchliffe v. American Motors Corporation, 184 Conn. 607, 617, 440 A.2d 810 (1981). In. Hinchliffe v. American Motors Corporation, supra, 616, we explained that the common law action for innocent misrepresentation came to be known as an action sounding in warranty. In cases involving goods, we noted, common law warranty actions have been displaced by provisions of the Uniform Commercial Code. See Johnson v. Healy, 176 Conn. 97, 100-101, 405 A.2d 54 (1978). Under the common law action, and under several of the warranty provisions of the code, however, a plaintiff still must prove reliance and that the representation became part of the basis of the bargain. See General Statutes §§ 42a-2-313, 42a-2-315; Johnson v. Healy, supra, 101. In Hinchliffe v. American Motors Corporation, supra, 617, we held that under CUTPA it was not necessary for a plaintiff to prove reliance or that representation became part of the basis of the bargain.

If a representation was not made innocently, the common law allowed a plaintiff to sue for fraud, deceit or “ordinary” misrepresentation. Under our common law, a person claiming to be a victim of fraud or misrepresentation had to prove “that a false representation was made as a statement of fact; that it was untrue and was known to be untrue by the party making it; that it was made to induce the other party to act on it; and that he did so to his injury.” Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970). Because Hinchliffe compared an action under CUTPA to an action for innocent misrepresentation, it did not expressly discuss whether it was necessary under CUTPA to prove knowledge of the falsity or an intention to deceive. Johnson v. Healy, supra, 100-103.

In deciding whether a particular practice is unfair or deceptive under our statutes the legislature has indicated that “the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5 (a) (1) of the Federal Trade Commission Act (15 U.S.C. 45 (a) (1)) . . . .” General Statutes § 42-110b (b). The United States District Court for the District of Connecticut has determined that for a representation to be unlawfully deceptive, it is not necessary that the seller intended to deceive. Bailey Employment System, Inc. v. Hahn, supra, 67; see also Porter & Dietsch, Inc. v. F.T.C., 605 F.2d 294, 308-309 (7th Cir. 1979). In keeping with the remedial purpose of the federal Unfair Trade Practices Act, other courts and commentators have interpreted the act not to require proof that the actor or declarant knew of the falsity of his statement or act. See generally D. Ormstedt & R. Langer, “The Connecticut Unfair Trade Practices Act,” 52 Conn. B. J. 116, 124 (1978), and authorities cited therein. Finally, we note that in Sportsmen’s Boating Corporation v. Hensley, supra, 755, we explained that the difference between a tort claim of interference with business expectations and a claim under CUTPA is that under the former, the plaintiff must prove a malicious or deliberate interference with a competitor’s business expectancy while under the latter it need only be shown that the defendant engaged in unfair competition or in an unfair or deceptive act. On the basis of these prior holdings, we conclude that knowledge of falsity, either constructive or actual, need not be proven to establish a violation of CUTPA.

The defendant argues that the trial court here did not require that the plaintiff demonstrate knowledge on the defendant’s part. Instead, the defendant claims that the statements concerning knowledge were made by the court during a general discussion with the parties in which the court noted its uncertainties as to the law in this area. We are unable to determine whether, in evaluating the CUTPA claim, the court applied the warranty standards of the code, the common law standard of misrepresentation or the broad CUTPA standard. The memorandum of decision, as we noted above, disposes of the CUTPA claim summarily by stating merely that the plaintiff had not presented sufficient evidence to establish a violation of CUTPA. We are also unable to determine the factual basis on which the court concluded that no CUTPA violation was presented. Thus, even if the court did apply the correct standard, we are unable to evaluate whether its application of the standard to the facts of the present case was clearly erroneous. We therefore must remand this case to the trial court for further articulation of (1) the legal standard it employed in determining that the plaintiff had not established a violation of CUTPA, and (2) the factual grounds upon which it relied to reach its conclusion. See Practice Book § 4061 (formerly § 3060D); State v. Lafferty, 189 Conn. 360, 363, 456 A.2d 272 (1983).

The case is remanded to the trial court with direction to file a memorandum of decision articulating the legal and factual basis upon which it found that the plaintiff had not established a violation of CUTPA.

In this opinion the other justices concurred.

       The first appeal (Docket No. 12832) was filed on July 10, 1985, following the trial court’s issuance of a written memorandum of decision. The second appeal (Docket No. 12833) was filed on September 4, 1985, after judgment was entered. Because the first appeal was brought before final judgment was entered, it may be dismissed. See Practice Book §§ 4000, 4056 (formerly §§ 3000, 3110).

       “[General Statutes] Sec. 42a-2-608. revocation of acceptance in whole or in part. (1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it (a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or (b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.”

       We find nothing erroneous in the court’s invocation of the limited warranty even though the thirty day period of the warranty had obviously expired at the time of trial. The court pointed out that the problem with the axle occurred during the warranty period, and because the problem was not immediately detected, the vehicle was improperly repaired during the warranty period.

       For purposes of § 42-110b, a “person” includes a corporation. See General Statutes § 42-110a (3).

       The pertinent portion of the colloquy was as follows:
      “Q. Now, did you do anything to confirm the things that were stated in that letter? Did you check out the rear axle?
      “Mr. Brand: I object, Your Honor. What’s the purpose of this?
      “Mr. Parenteau: Your Honor, I’m trying to determine what they—what they did in response to the complaint, whether they attempted to confirm the condition of the vehicle and act the way they were supposed to according to the Uniform Commercial Code. I think it’s relevant to that aspect of it, that parties should settle their differences themselves. If he did nothing, then let him say he did nothing.
      “Mr. Brand: I don’t understand what that response just meant, but I object to the question. It is not pertinent to what’s in the plaintiff’s complaint.
      “The Court: Would you again tell me the basis for this questioning.
      “Mr. Parenteau: I’m — the basis of it, Your Honor, is that the Uniform Commercial Code imposes a duty on purchasers and sellers to act in a certain way. I’m trying to determine if he acted in accordance with the policy therein; that is, to settle the disputes between the parties. I want to know if he inspected to see if we were right.
      “The Court: To what are you referring in the Uniform Commercial Code? To what section?
      "Mr. Parenteau: 2-608, the one we’re — revocation of acceptance.
      “The Court: 42a-2-608.
      “Mr. Parenteau: That’s correct. Right. Subsections 1 and 2 would require the seller, after he receives reasonable notice of the nonconformity of the vehicle, to take it upon himself to inspect it to determine if the goods were nonconforming or conforming; and if so, if he found them to be nonconforming, his obligation is to return the purchase price.
      “I want to see what steps he took to find out if that was so.
      “Mr. Brand: Am I reading a different statute, Judge. Do I not have it all here perhaps?
      “The Court: ‘The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it (a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or (b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.’
      “Now, based upon what I have just read, I still don’t know the pertinence.
      “Mr. Parenteau: Now, the second section says the buyer shall give reasonable notice.
      “The Court: ‘Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.’
      “Sustain the objection.
      “Mr. Parenteau: May I have an exception, Your Honor.
      “The Court: Exception may be noted.”

       The pertinent portion of the dialogue between the court and the plaintiff’s counsel on this issue was as follows:
      “Q. Now, on July 26th when they in fact took the axle out and pressed a bearing onto it, at that point they could have discovered whether or not that axle was in a defective condition or not.
      “A. Yes.
      “The Court: Whether it was in a defective condition on July 26th, not on the day that it was sold.
      “Mr. Parenteau: Right.
      “The Court: All right, that’s — I’m just confining my questions to the day that it was sold because there’s an allegation here in your complaint that there were representations made and that there was a defective vehicle sold to your client.
      “Mr. Parenteau: And, Your Honor, there were also representations made on July 26th that a new rear end had been put into that vehicle and it was safe to drive.
      “The Court: You don’t allege that. You don’t allege that anywhere.
      “Mr. Parenteau: I think, Your Honor, with all due respect —
      “The Court: I’m talking now about representations.
      “Mr. Parenteau: There were representations made the whole —
      “The Court: I’m talking about representations with regard to July 26th. I’m not talking with regard to representations made on July 16th. Where in your writ do you allege that there were misrepresentations made on July 26th?

        “Mr. Parenteau: I don’t allege a specific date, Your Honor. I say in Count 5, Paragraph 12 that ‘defendant’s representations regarding the mechanical state of the vehicle.’ I submit, Your Honor, that that statement is broad enough to encompass everything that occurred.
      “The Court: Count 5?
      “Mr. Parenteau: Count 5, Paragraph 12.
      “The Court: Well, that doesn’t—that doesn’t encompass a July 26th representation. All right, you may stand down, sir.
      * ** *
      “Mr. Parenteau: Your Honor, in light of your indications that my complaint is not sufficiently broad to encompass the type of representations that I —
      “The Court: It has to do with the unfair trade practices?
      “Mr. Parenteau: It does, Your Honor.
      “The Court: Is that the only one count that it has to do with?
      “Mr. Parenteau: Yes, Your Honor.
      “The Court: Are you asking to —
      “Mr. Parenteau: Your Honor —
      “The Court: What?
      “Mr. Parenteau: Your Honor, the last count incorporates by reference all of what’s in Count 1. In Count 1, I discuss all of these defects.
      “The Court: Count 5 is the only place you claim where you are covering representations. I’m referring now only to representations made with regard to the July 26th repairs. Is that right?
      “Mr. Parenteau: Right, including Count 1.
      “The Court: And are you moving to amend it?
      “Mr. Parenteau: I am moving to amend the complaint to add what I believe would be —
      “The Court: Motion is denied.
      “Mr. Parenteau: —evidentiary allegations. May I have an exception, Your Honor.
      “The Court: You may have an exception.”

         The court stated: “Well, I’m not—I don’t think that the factual pattern is such where I can find that the behavior of the defendants violated the Unfair Trade Practices Act. I don’t think they — I feel that they did what they had to do.
      “There’s no evidence that they know or should have known that the — that there were defects in this vehicle, no indication that they knowingly had sold a vehicle which was defective or should have known that it was defective. There seems to me to have been an at-arms’-length transaction where it is a used vehicle four or five years old, and I don’t think anybody in his right mind buys a vehicle that’s used expecting it to be perfect. I don’t think I would. I don’t know about other people. I personally don’t feel that every new car is perfect, but — from what I read in the paper where these — General Motors and Ford are calling — and Chrysler are calling back cars to have them fixed.”


source: Caselaw Access Project

author: Dupont, J.

license: Public Domain

text:
    Transportation Plaza Associates v. Arthur B. Powers, Commissioner of Transportation, et al.
    (12750)
    (12751)
    (12752)
    Peters, C. J., Shea, Santaniello, Dupont and F. Hennessy, Js.

      Argued February 4
    decision released May 5, 1987

      Mark S. Shipman, with whom were I. Milton Widem and, on the brief, Leonard M. Bieringer, Edith S. Rosen and Cindy S. Schwartz, for the appellant-appellee (defendant city of Stamford).

      Brewster Blackall, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant-appellee (named defendant).

      Joseph Adinolfi, Jr., with whom were Joseph C. Morelli and., on the brief, John D. Miletti, for the appellee-appellant (plaintiff).
   Dupont, J.

The named defendant, Arthur B. Powers, commissioner of transportation (commissioner), took property known as the Stamford Railroad Station from the plaintiff, Transportation Plaza Associates (TPA), in an eminent domain proceeding and assessed damages in the amount of $3,230,000. TPA thereafter appealed to the Superior Court from that assessment. The case was referred to a panel of three state trial referees. See General Statutes §§ 52-434, 52-434a (b). At the commencement of the trial, the city of Stamford was allowed to intervene as a defendant. After- a lengthy trial, the panel, sitting as the trial court, rendered judgment for the plaintiff in the amount of $6,500,000, plus appraisal fees and statutory interest. The defendants have appealed from that judgment and TPA has cross appealed. We find no error on the appeals or on the cross appeal.

The trial court’s memorandum of decision contains an exhaustive discussion of the facts proved by TPA, as well as a discussion of the failure of the defendants to rebut those facts. The court made findings of facts, stated its conclusions, and discussed, in well reasoned terms, its review of the testimony of the appraisers of the parties and its reasons for its determination of the damages to be awarded to TPA. The court’s decision is well written and thorough in its analysis.

The factual background of this appeal is stated in the court’s decision. The property condemned was acquired by TPA in 1968 and consists of two parcels of land, totalling 5.48 acres or 238,760 square feet. The parcels are divided by the east and westbound tracks of the Metro North railroad. In addition to the land itself, TPA owned the air rights above the railroad tracks, beginning at a level of forty-seven feet above the top of the rails, as well as the right to use an existing tunnel underneath a railroad right-of-way which connects the two parcels.

After acquiring the land, TPA engaged in a number of activities in preparation for its development. Between 1969 and 1971, TPA made four applications to the Stamford planning and zoning board, seeking changes to improve the zoning conditions governing the parcels. In 1971, the last application was granted, resulting in a change in the zoning regulations as they applied to the area, height and bulk of the buildings which could be located thereon. The change in zoning regulations allowed TPA to develop a maximum sized office complex of 966,978 square feet with a similar amount of square footage for parking. From 1972 to 1976, TPA conducted negotiations with the Connecticut department of transportation, rail division, in an attempt to obtain air rights beginning at a twenty-three foot level instead of the forty-seven foot level. These negotations were not fruitful.

Between 1970 and 1980, prospective tenants contacted TPA concerning the construction of an office building. TPA conducted a design contest among several architectural firms in order to develop a set of plans for a structure which would be feasible on the site. In 1973 and in 1977, TPA retained architects who developed plans for an office building and a parking structure. In early 1980, TPA again retained architects to develop a plan which would demonstrate the highest and best use of the property.

TPA became aware in 1976 that the state wanted to develop the property as a central transportation center. In the 1977 session of the legislature, a special act was passed concerning the state’s taking of the land which was never implemented, and in 1979, the legislature passed another special act empowering the state to acquire the property by eminent domain. In 1980, TPA brought an inverse condemnation action for damages, alleging a de facto taking of its property without compensation. The commissioner subsequently filed a notice of taking and statement of compensation, pursuant to an agreement with TPA that its action would be withdrawn. The commissioner based his statement of compensation on the assumption that the property taken was subject to an eighty foot right-of-way, which he claimed was depicted on a map referred to in the description of the property filed with his statement.

The defendants claim that the trial court erred in its reassessment of the amount of compensation to be paid to TPA because it: (1) exceeded the scope of its jurisdictional reference pursuant to General Statutes §§ 8-132 and 52-434a; (2) found that there was a reasonable probability that TPA could have erected a particular structure on the land as the highest and best use of the land but for the condemnation; and (3) concluded that an eighty foot wide right-of-way did not exist on the property. TPA’s cross appeal claims that the court, in arriving at its determination of value, twice deducted the sum of $1,000,000 for special costs from the fair market value of the property.

I

The defendants, in their first claim of error, assert that a trial court consisting of state trial referees may not consider title issues, absent a specific reference to do so, because the consideration of such issues exceeds the scope of its jurisdictional reference pursuant to General Statutes §§ 8-132 and 52-434a. They therefore claim that the trial court was without jurisdiction to determine that an eighty foot right-of-way did not exist on TPA’s property.

The trial court consisted of state trial referees who have the same powers as judges of the Superior Court. General Statutes § 52-434 provides that “[t]he superior court may refer any civil, nonjury case ... in which the issues have been closed to . . . a state referee who shall have and exercise the powers of the superior court in respect to trial, judgment and appeal in the case.” General Statutes § 52-434a (b) specifically provides for the appointment of three state trial referees by the chief court administrator in condemnation proceedings in which damages exceed $200,000. These referees “shall have and may exercise with respect to any civil matter . . . the same powers and jurisdiction as does a judge of the court from which the proceedings were referred.” General Statutes § 52-434a (a).

The defendants argue that General Statutes § 8-132 limits the jurisdiction of the trial court to a revision of the statement of compensation. The defendants interpret § 8-132 as meaning that state trial referees, absent a more specific statutory reference, may revise a statement of compensation only as to the amount of damages assessed, but not as to the description of the property taken.

The condemnation proceeding was filed by the commissioner pursuant to General Statutes § 8-129, which requires the taking authority to determine the compensation to be paid and to file a statement of compensation. Section 8-129 further requires that the statement of compensation contain a description of the property to be taken by eminent domain. Section 8-132 specifically enables persons claiming to be aggrieved by the statement of compensation to obtain a review of such statement. This statute does not limit the review afforded to the plaintiff to merely the amount of damages assessed, but rather extends such a review to the entire statement of compensation. Since the statement of compensation contains a description of the real estate, it would be a strange and strained interpretation of § 8-132 to consider it as standing in isolation from § 8-129 and therefore as being unrelated to the description of the land condemned. A description of land, of necessity, encompasses the precise amount of land involved. It is difficult to understand how a panel of state trial referees could revise a statement of compensation without first determining, if necessary, the precise amount of land taken. In any condemnation proceeding involving the assessment of damages, one of the main issues that must necessarily be resolved by the court is the amount of land taken. See Kelly v. Waterbury, 108 Conn. 205, 207, 143 A. 96 (1928). Moreover, § 8-132 requires the referees, in reviewing the statement of compensation, to view the property. A parcel of land cannot be viewed without ascertaining its boundaries. Finally, § 8-132 empowers the trial referees, after hearing the parties and viewing the property, to revise such statement in any manner as they deem proper. This broad power afforded to the referees clearly includes the power to revise the description of the property.

The defendant city represented to the court that if the issues of title and damages were bifurcated, it would be willing to have the same court listen to both issues. Accordingly, it was not harmed by the same court listening to the entire case at once.

The defendants also argue that the court should first have obtained a specific reference in order to determine questions of title. This argument ignores the fact that the court already had all the powers and jurisdiction of the Superior Court, ignores a reasonable interpretation of §§ 8-129 and 8-132, and ignores existing case law. Several cases, expressly or implicitly, indicate that title questions may be considered at the same trial in which the assessment of damages is reviewed. Laurel, Inc. v. Commissioner of Transportation, 180 Conn. 11, 428 A.2d 789 (1980) (lack of access to a highway when that access is not described or shown in the certificate of taking or on its accompanying map is an element of damages); Kelly v. Waterbury, supra, 208 (evidence of whether a portion of land taken was owned by the plaintiff was relevant to an assessment of damages and should not have been excluded); Campbell v. New Haven, 101 Conn. 173, 125 A. 650 (1924) (claim that additional parcel of land was obtained by adverse possession was too speculative to be considered in the assessment).

The cases cited by the defendants in support of their position are inapposite to the present case. All of these cases; Hanson v. Commissioner of Transportation, 176 Conn. 391, 408 A.2d 8 (1979); D’Addario v. Commissioner of Transportation, 172 Conn. 182, 374 A.2d 163 (1976); Plunske v. Wood, 171 Conn. 280, 370 A.2d 920 (1976); relate to partial takings of a plaintiffs land for state highway purposes. See General Statutes §§ 13a-73, 13a-76. None of these cases relates to issues of title or is concerned with the precise amount of land taken.

The title issue of this case has no independent significance outside the bounds of the revision of the statement of compensation. The only significance of the title issue relates to the amount of compensation to be awarded. The state has taken all of the land of TP A, and whatever the footage of the right-of-way, both the dominant and servient title interests had merged and vested in the state upon the taking. It would make no sense, therefore, to litigate a title issue in an independent proceeding.

The determination of the width of the right-of-way cannot be divorced from the determination of the fair value of the land taken, and we hold that the court did not exceed its jurisdiction in making that determination.

II

Once the claim, relating to the jurisdiction of the court to determine the title issues at the same time as damages, is resolved, the case becomes the stereotypical one in which a party claims that the trial court’s decision was clearly erroneous. In spite of its voluminous record, this case is, very simply, one in which the defendants challenge the legal or factual conclusions of the court and the findings of fact upon which those conclusions rest.

The court found that the highest and best use of the property was to construct a large office building with garage structures on it and concluded that it was reasonably probable that the land, but for the taking, would have been devoted to that purpose by a prudent investor in the near future. Four schemes of development of the parcel were introduced into evidence by TPA. The court relied upon only one of them in determining damages. That plan was based upon the existence of a fifty foot right-of-way across the parcel and the elimination of a spur track.

The defendants claim that TPA failed to prove that there was a reasonable probability that, but for the condemnation, it could have erected the specific structure depicted on the plan chosen by the court, and that, therefore, the court could not award damages based upon a finding of such probability. The defendants view the particular structure as shown on the plan of TPA as a “mythical structure.” The court, in its careful analysis of the evidence, concluded that the plan could have been a reality but for the condemnation. The court found that TPA’s plan complied with existing zoning regulations, that the overhead transmission lines could feasibly be removed, and that the catenary system of the railroad could be relocated at an economically feasible cost. The court further found that the building could be constructed in a reasonable time at a construction price which TPA could finance. Furthermore, it was reasonably probable that the plan would have been approved under the Coastal Management Act; General Statutes §§ 22a-90 through 22a-112; and that an air quality permit could have been obtained. The trial court also reasonably found that the structure’s effect on air quality would have been within the maximum allowable limits of the state and federal governments, and that the traffic generated by the project would not have caused the state or city to deny approval of the project. Moreover, TPA did not have to provide commuter parking for users of the railroad, and could have complied with any railroad requirements necessary for blasting and construction at an economically feasible cost.

The basic disagreement of the parties revolves not around the law to be applied as expressed in the cases cited by both, but in the application of that law to the facts of this case. The defendants claim that TPA’s architectural plans, which were introduced into evidence to show the highest and best use of the land, were erroneously admitted because they were speculative and were introduced without a proper foundation.

The general rule, as stated in numerous cases, is that evidence of the probability of a zoning change is admissible because it is a factor which would be considered by a buyer in the determination of market price. Laurel, Inc. v. Commissioner of Transportation, supra, 33; Heath v. Commissioner of Transportation, 175 Conn. 384, 398 A.2d 1192 (1978); Levine v. Stamford, 174 Conn. 234, 386 A.2d 216 (1978); Talarico v. Conkling, 168 Conn. 194, 362 A.2d 862 (1975); Lynch v. West Hartford, 167 Conn. 67, 355 A.2d 42 (1974); 4 P. Nichols, Eminent Domain (3d Ed.) § 12.3142 [2]; 1 L. Orgel, Valuation Under Eminent Domain (2d Ed.) § 31. The determination of whether there is a reasonable probability of a zoning change is a question of fact for the trier, and will not be disturbed if the facts amply support its conclusion. Heath v. Commissioner of Transportation, supra, 390. Evidence of the special adaptability of land for a particular purpose is properly admitted if there is a reasonable probability that the land could be so used within a reasonable time and with economic feasibility. Russo v. East Hartford, 179 Conn. 250, 256, 425 A.2d 1282 (1979), cert. denied, 445 U.S. 940, 100 S. Ct. 1334, 63 L. Ed. 2d 773 (1980); Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 270 A.2d 549 (1970); Campbell v. New Haven, supra; 27 Am. Jur. 2d, Eminent Domain § 280; 4 P. Nichols, supra. The fair market value of realty is determined in light of the use to which it is being put at the time of the taking or to which it could be put most advantageously. Gray Line Bus Co. v. Greater Bridgeport Transit District, 188 Conn. 417, 420, 449 A.2d 1036 (1982). The use to which land can be put with reasonable probability is part of the standard scenario of hypothetical negotiations between a willing buyer and seller.

The leading case of Budney v. Ives, 156 Conn. 83, 239 A.2d 482 (1968), upon which the defendants rely, elaborates on the holding of Campbell v. New Haven, supra. The latter case holds that the plans of the plaintiff showing the adaptability of the land’s development in accordance with those plans was admissible to show the plaintiff’s contemplated use of his property. The former case holds that if a zoning change is reasonably probable, that fact may be considered in determining fair value. The value is to be determined as of the taking date, but that value should contain a factor for the likelihood of the zoning change, because that factor would affect the market value. Lynch v. West Hartford, supra, 74.

In the present case, the probability of obtaining the necessary administrative approvals for the construction of a project which was the highest and best use of the land was interwoven with the introduction into evidence of the plan for the project. The defendants argue that there was no proper foundation for such introduction. It would be impossible to lay a foundation for the introduction of the particular plan by first establishing the probability of receiving a myriad of specific administrative approvals. Approvals and permits do not exist in a vacuum, but rather relate to and allow particular things. The case of Rushchak v. West Haven, 167 Conn. 564, 356 A.2d 104 (1975), relied upon by the defendants, required a showing of the probability of a zone change to a multifamily zone as a foundation for the introduction into evidence of a plan for multifamily dwellings. Id., 568-69. That case differs factually from this case. Here, the probabilities of obtaining a host of administrative approvals for a specific plan cannot be divorced from that plan, and the plan had to be admitted into evidence in order to determine the probability of its fruition.

The defendants claim both that TPA did not prove that it could have obtained all of the necessary state and local approvals from the administrative agencies involved because those persons in a position to actually grant the approval involved did not testify, and that the only such person who did so testify believed that approval would not be forthcoming. Proof of the reasonable probability that land could be put to a particular use need not be established by the testimony of the particular administrative officials involved. In Lynch v. West Hartford, supra, two appraisers testified that in their opinion, a zone change would have been granted, and in Campbell v. New Haven, supra, the landowner himself testified as to his proposed use of the land and its adaptability to that use. Furthermore, the testimony of the official in the present case who believed approval would not be given was seriously discredited on cross-examination. A trial court may accept or reject the opinion of expert witnesses. Here, it chose to accept the opinions of TPA’s witnesses regarding the probability of obtaining the various administrative approvals. That acceptance lay within its discretion. Ferri v. Pyramid Construction Co., 186 Conn. 682, 443 A.2d 478 (1982).

The court had sufficient evidence from which it could have concluded that it was reasonably probable that TPA’s land, but for the taking, could have been devoted to the proposed use, as shown on the architectural plan submitted to it, by a prudent investor in the near future. Tandet v. Urban Redevelopment Commission, 179 Conn. 293, 299, 426 A.2d 280 (1979). That use was reasonably probable and affected the market value of the land as of the date of the taking.

In its memorandum of decision, the court extensively discussed the testimony and exhibits which led to its conclusion that only a fifty foot right-of-way encumbered TPA’s land. It chose to find TPA’s title expert more convincing than the defendants’ title expert. Additionally, the court discussed at length the testimony of the real estate appraisers of the parties. It concluded that the testimony of TPA’s appraiser was more convincing. “The credibility of ‘expert witnesses and the weight to be accorded to their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible. ’ New Haven Water Co. v. Board of Tax Review, 166 Conn. 232, 240, 348 A.2d 641 (1974).” Ferri v. Pyramid Construction Co., supra, 690.

The court found that the fair market value of the land, calculated at $31.50 per square foot for 238,760 square feet was $7,520,940, and then deducted $1,000,000 to cover the reasonable estimate of the cost of railroad electrification and catenary relocation. It rounded off the sum of $6,520,940 to find that the fair market value was $6,500,000.

The trial court’s legal and factual conclusions are not clearly erroneous because they are supported by the facts stated in its memorandum of decision, and the subsidiary facts themselves are supported by the evidence. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Heath v. Commissioner of Transportation, supra, 390.

III

TPA claims in its cross appeal that the court erroneously deducted the same sum twice as “special deductions” from the fair market value. After a lengthy discussion of the testimony of the parties’ appraisers, the court reached its own conclusion of the market value per square foot. The court was “charged . . . with the duty of making an independent determination of value and fair compensation in light of all the circumstances, the evidence, [its own] general knowledge and [its] viewing of the premises.” Birnbaum v. Ives, 163 Conn. 12, 21, 301 A.2d 262 (1972). It did so. It multiplied the square footage by the price found by it as the market value per square foot and deducted a sum for special costs.

If TPA believed that there was an ambiguity in the trial court’s reasoning or in the calculation of the damages awarded to it, it should have moved for an articulation of the memorandum of decision. Carpenter v. Carpenter, 188 Conn. 736, 739 n.2, 453 A.2d 1151 (1982); Pointina Beach Assn., Inc. v. Stella, 1 Conn. App. 341, 343, 471 A.2d 970 (1984). This case does not involve a mathematical error, as TPA claims, and should not be remanded to the trial court for a correction since none is necessary. Cf. Feneck v. Nowakowski, 146 Conn. 434, 151 A.2d 891 (1959).

There is no error on the appeals or on the cross appeal.

In this opinion the other justices concurred.

       The parties agree that the land is encumbered by at least a fifty foot right-of-way. The defendants claim that this fifty foot right-of-way lies within the eighty foot right-of-way.

       During oral argument, the defendant city also claimed that the allegations of TPA’s complaint did not conform to the proof, and that, therefore, the court was precluded from considering the question of whether TPA’s title was encumbered by a right-of-way less than eighty feet in width. The only reference to the pleadings in the defendants’ brief is one sentence which states that no quiet title issues were raised in the pleadings. The thrust of the defendant city’s oral argument was that the court was bound by the description of the realty used in the complaint which referred to a map showing an eighty foot right-of-way. The parties agreed during oral argument, however, that during the discovery process, the issue of the width of the right-of-way was raised. The defendants did not raise with any specificity any issue in the trial court as to the failure of the pleadings to conform to the proof; and such an issue need not be reviewed here. See DeFonce Construction Corporation v. State, 198 Conn. 185, 186 n.1, 501 A.2d 745 (1985); State v. Tyler-Barcomb, 197 Conn. 666, 672, 500 A.2d 1324 (1985). Furthermore, it is extremely likely that the court would have granted a motion to amend the pleadings had TPA so moved.

       The defendants also claim that the court had no jurisdictional power to state that a particular spur track “appeared [to be] abandoned” and not used by the railroad because that determination was also a title issue. The discussion in the text of this opinion relating to the right-of-way applies equally to the court’s jurisdiction to determine whether the location of the spur track encumbered the subject property. The court found that this track could be removed by TPA because it extended onto its property and was not specifically reserved by deed.

       Two of the cases relied upon by the defendants, D’Addario v. Commissioner of Transportation, 172 Conn. 182, 874 A.2d 163 (1976), and Plunske v. Wood, 171 Conn. 280, 370 A.2d 920 (1976), relate to the proper measure of damages to be awarded for the depreciation in market value of the land remaining after the taking. These decisions make it clear that expenses arising from curing injuries sustained by the remaining land which was not condemned are not recoverable per se in an appeal pursuant to General Statutes § 13a-76, but may be evidence which would sustain a finding that the remaining land has suffered a decrease in market value which was foreseeable and which was the proximate result of the taking. If the diminution in market value of the remaining land was not the proximate and foreseeable result of the taking but of an injury caused by the negligence of a contractor hired by the condemnor to effectuate the project, damages for such negligence are ordinarily not recoverable in the reassessment of damages proceedings of § 13a-76, but in an independent proceeding against the contractor. See Plunske v. Wood, supra, 284. Hanson v. Commissioner, 176 Conn. 391, 408 A.2d 8 (1979), involved the jurisdictional authority of a committee of three state trial referees to consider “the amount or value of all benefits” resulting from a taking for highway purposes when the commissioner had not previously made any finding of benefits. See General Statutes § 13a-73 (b). In that case, the landowner had no notice that the state intended to assess the owner with payment to the state for the value of any benefit to its remaining land.
      It should be noted that these cases involved appeals filed pursuant to § 13a-76, which enables aggrieved parties to obtain a reassessment of damages and empowers the trial court to “reassess such damages and benefits so far as they affect such applicant.. ..” The present case, however, was filed pursuant to General Statutes § 8-132, which specifically empowers the trial court to “revise [the] statement of compensation in such manner as [the court] deems proper. ...”

       TPA claims that any one of the four plans was feasible, including one which assumed the existence of an eighty foot right-of-way and the existence of part of a spur track on its land. The court considered only one of the plans because it concluded that neither assumption was true.

       The court found that the parcels were one contiguous buildable piece of land, including the air rights, and as such, qualified under the zoning regulations for a maximum site coverage of 90 percent even though the parcels were divided by railroad tracks. Based upon the plan relied upon by the court, even if only one of the parcels were considered a “corner site” under the zoning regulations, the site coverage would not exceed 80 percent. The court, however, found that the two parcels did constitute a “corner site.” The court further found that the zoning regulations did not prohibit the use of air rights, that others in the city had been allowed to utilize air rights, and that air rights are a property interest which may be assessed and taxed by the city.

       TPA claimed that, in any event, users would have 769 parking spaces under the plan chosen by the court as feasible.

       The plaintiff filed a motion for articulation in connection with the award of appraisal fees and was, therefore, cognizant of the procedure.


author: Peters, C. J.

text:
    In re Peter J. Weissman
    (13085)
    Peters, C. J., Healey, Shea, F. Hennessy and Barall, Js.
    Argued April 3
    decision released May 5, 1987

      Seymour N. Weinstein, for the appellant (statewide bar counsel).

      Peter J. Weissman, pro se, the appellee (respondent).
   Peters, C. J.

This case involves the discipline, under state law, of an attorney who has been suspended for one year from the practice of law before the United States District Court for the District of Connecticut. Relying on that order of suspension and its underlying history, the statewide bar counsel petitioned the Superior Court to take commensurate action against the respondent, Peter J. Weissman, with regard to his practice as a member of the bar of the state of Connecticut. After the issuance of an order to show cause by the trial court, Cioffi, J., there was a full hearing by the trial court, Emmett, J., which resulted in an order that the respondent be suspended from state practice for a period of one month. The petitioner, the statewide bar counsel, has appealed. We find no error.

The facts are undisputed. The respondent’s suspension from practice in the federal court resulted from his conviction, by a plea of guilty, for the crime of wilfully failing to file a federal income tax return for the calendar year 1980 in violation of 26 U.S.C. § 7203, a misdemeanor. As a result of this conviction, the respondent was sentenced, on October 24,1984, to a term of one year incarceration, but the execution of this sentence was suspended and the respondent was placed on probation for two years. In July, 1985, the federal grievance committee reviewing this conviction recommended that the respondent be suspended from federal practice for one year. The respondent acquiesced in this recommendation. A formal order of suspension was issued by the federal court on December 27,1985.

The petitioner initiated the state disciplinary proceeding on February 4,1986, in reliance upon the reciprocity provisions of Practice Book § 26C, which had become effective on October 1,1985. That section requires that the statewide bar counsel, “[u]pon being informed that a lawyer admitted to the Connecticut bar has resigned, been disbarred, suspended or otherwise disciplined . . . in another jurisdiction . . . shall obtain a certified copy of the [disciplinary] order and file it with the superior court for the judicial district wherein the lawyer maintains an office for the practice of law in this state . . . .” Practice Book § 26C (a). Thereafter, the lawyer must respond to an order to show cause with “an answer admitting or denying the action in the other jurisdiction and setting forth, if any, reasons why commensurate action in this state would be unwarranted.” Practice Book § 26C (b). Under the rule, “[the] certified copy will constitute prima facie evidence that the order of the other jurisdiction entered and that the findings contained therein are true.” Practice Book § 26C (b). Finally, the rule provides that, “[a]fter hearing, the court shall impose commensurate action unless it is found that any defense set forth in the answer has been established by clear and convincing evidence.” Practice Book § 26C (c).

In the trial court, the respondent asserted that commensurate discipline was unwarranted for two reasons: (1) Practice Book § 26C should not be applied in his case because it was not yet effective at the time when he agreed not to contest his federal suspension; and (2) commensurate discipline would subject him to undue hardship because, in light of the location of his practice, state suspension would have a more severe impact than his federal suspension. In the latter regard, the respondent also relied on personal factors of a mitigating nature which, he claimed, contributed to his federal conviction.

The trial court agreed with the major part of the respondent’s first defense, concluding that it would be arbitrary to apply to this respondent the provisions of § 26C that shift to him, upon the conclusion of federal disciplinary proceedings, the burden of proof in a disciplinary hearing in this state. Nonetheless, the court determined that the underlying facts leading to the federal disciplinary order were properly before the court, despite the delay in the completion of the federal proceedings.

The trial court then addressed its own responsibility, apart from the reciprocity provisions of § 26C, for the discipline of a lawyer who has admitted to and been convicted of the crime of wilfully failing to file a federal income tax return. The court considered the seriousness of the respondent’s misconduct, as well as the relative lack of harm thereby caused to his clients, and ordered that he be suspended from state practice for a period of one month.

The petitioner’s appeal urges us to overturn the judgment ordering a one month suspension on the ground that the trial court erred in failing to apply § 26C of the Practice Book to the petition for reciprocal discipline of the respondent. The petitioner claims that application of § 26C in this case would not be retroactive, because the petition for reciprocal discipline was premised on a federal court order of suspension, dated December 23, 1985, which postdated the October 1, 1985 effective date of § 26C. In the alternative, the petitioner claims that the changes embodied in § 26C, because they are procedural in nature, could appropriately be applied retroactively to actions accruing before the effective date of the section. We are unpersuaded that retroactive application of § 26C was an issue on the record of this case, and therefore find no error in the judgment of the trial court.

The provisions of § 26C were intended to create a basis for the reciprocal discipline of Connecticut lawyers who have been held to have engaged in misconduct in other jurisdictions. To that end, a certified copy of the official disciplinary order of another jurisdiction establishes, prima facie, the validity of the order arid the accuracy of its underlying findings. In this respect, § 26C parallels a number of state statutes that give effect to foreign judgments. See, e.g., General Statutes §§ 46b-70 through 46b-75 (foreign matrimonial judgments); General Statutes §§ 46b-179 through 46b-179d (foreign paternity judgments); General Statutes §§ 46b-180 through 46b-211 (reciprocal enforcement of support); General Statutes §§ 52-604 through 52-609 (enforcement of foreign judgments). Under § 26C (c), a lawyer who offers a defense to the disciplinary order of the other jurisdiction is obligated to prove such a defense “by clear and convincing evidence.” In the absence of such a rebuttal of the disciplinary order of the other jurisdiction, the trial court in this state must, after a hearing, “impose commensurate action.”

In the circumstances of this case, however, it was irrelevant that § 26C establishes the prima facie validity of the federal order suspending the respondent from federal practice. The respondent challenged neither the federal order itself nor the findings of fact relating thereto. That order was simply a given in the present proceedings before the trial court.

The basic issue in the trial court was what state action was appropriate in view of the federal order of suspension. As counsel for the petitioner conceded at oral argument before this court, “commensurate action” under § 26C (c) does not mean “identical action.” The trial court had inherent judicial power, derived from judicial responsibility for the administration of justice, to exercise sound discretion to determine what sanction to impose in light of the entire record before it. Grievance Committee v. Sinn, 128 Conn. 419, 422, 23 A.2d 516 (1941); Grievance Committee v. Broder, 112 Conn. 263, 266, 152 A. 292 (1930); Grievance Committee v. Ennis, 84 Conn. 594, 602, 80 A. 767 (1911); In re Durant, 80 Conn. 140, 147-48, 67 A. 497 (1907). That record included, in this case, the federal order of suspension, its underlying facts, and the mitigating circumstances presented by the respondent. Once it is conceded that “commensurate action” does not require “identical action,” the petitioner’s claim of error is reduced to a claim that the sanction imposed by the trial court was an abuse of its discretion. The petitioner has not sustained his burden of proving such a claim, and we therefore conclude that there was no abuse of discretion. In these circumstances, whether or not § 26C were to be applied in this case, the trial court was justified in ordering the respondent suspended from his state practice for a period of one month.

There is no error.

In this opinion the other justices concurred.

       After the petitioner initiated this proceeding, Practice Book § 26C was amended and renumbered as § 28A, effective July 1, 1986.