Associated Investment Co. Ltd. Partnership v. Williams Associates IV

Katz, J., with whom Berdon, J.,

joins, dissenting. The majority holds that the Connecticut Unfair Trade *165Practices Act (CUTPA); General Statutes § 42-110a et seq.; creates what is essentially an equitable cause of action not triable to a jury because CUTPA: (1) provides a more flexible and complete remedy than the common law; and (2) has its roots in the Federal Trade Commission Act (FTCA) and not in the common law. The majority concludes that CUTPA does not bear substantial similarity to a common law action triable to a jury prior to 1818 because an action under CUTPA proscribes a broader range of conduct than did the common law and affords greater remedies.

The majority’s conclusion represents a shift from the well established test we have articulated for determining whether the right to a jury trial in a particular case is constitutionally required. As we often have stated, the right to a jury trial “ ‘exists not only in cases in which it existed at common law and at the time of the adoption of the constitutional provisions preserving it, but also exists in cases substantially similar thereto . . . .’ ” Skinner v. Angliker, 211 Conn. 370, 374, 559 A.2d 701 (1989), quoting 47 Am. Jur. 2d 639, Jury § 17 (1969); see Swanson v. Boschen, 143 Conn. 159, 165, 120 A.2d 546 (1956). I recognize that there is nothing in either the legislative history or the language of CUTPA to suggest that the legislature was attempting to codify or supplant any existing common law claim when it enacted CUTPA, and that an action under CUTPA exists wholly independent of any common law claim. The separate statutory existence of a CUTPA claim is not, however, determinative of whether a party is entitled to a jury trial. “The test is not whether the cause of action is statutory. . . . The test is whether the issue raised in the action is substantially of the same nature or is such an issue as prior to 1818 would have been triable to a jury.” (Citations omitted.) Swanson v. Boschen, supra, 164-65. Although CUTPA may reach beyond traditional common law precepts, it is the *166nature of the action under CUTPA that determines whether the issue in the action is one justiciable at common law with a right to a jury trial. The test “requires an inquiry as to whether the course of action has roots in the common law, and if so, whether the remedy involved was one in law or equity. If the action existed at common law and involved a legal remedy, the right to a jury trial exists and the legislature may not curtail that right either directly or indirectly.” Skinner v. Angliker, supra, 376.1

The right to a jury trial extends beyond the common law forms of action recognized at 1818. As this court recently stated, “[w]e are not implying that the right to a jury trial does not exist in any cause of action that was not specifically recognized at common law in 1818. ‘The historical test we apply is flexible and may require a jury in a new cause of action, not in existence in [1818], if it involves rights and remedies of the sort traditionally enforced in an action at law or if its nearest historical analogue is an action at common law.’ ” Id., 377,2 quoting Goar v. Compania Peruana de Vapores, *167688 F.2d 417, 427 (5th Cir. 1982). “The cases that have required jury trials for new causes of action have involved legislative enhancement or creation of rights and duties in circumstances where the common law enforced similar rights and duties. See Pernell [v. Southall Realty, 416 U.S. 363, 370-76, 94 S. Ct. 1723, 40 L. Ed. 2d 198 (1974)]; Curtis [v. Loether, 415 U.S. 189, 195, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974)].” (Internal quotation marks omitted.) Skinner v. Angliker, supra, 211 Conn. 378.3

Under these principles, when a plaintiff identifies a violation of CUTPA that was substantially similar to conduct actionable at common law, the right to a jury trial must be preserved. CUTPA creates a streamlined,4 *168less cumbersome version of the common law in the interest of the protection of the rights of consumers and the remedial purpose5 of the statute, not a new body of law unknown at common law. Certainly “[t]he common law has long countenanced a cause of action sounding in tort for interference with another’s business practices and opportunities. ... ‘We, in this state, recognize that a cause of action does exist for unlawful interference with business and that it is not essential to that cause of action that it appear that the tort has resulted in a breach of contract to the detriment of the plaintiff. Wyeman v. Deady, 79 Conn. 414, 65 A. 129 [1906]; Skene v. Carayanis, 103 Conn. 708, 131 A. 497 [1926].’ Goldman v. Feinberg, 130 Conn. 671, 674, 37 A.2d 355 (1944). . . .‘Full, fair and free competition is necessary to the economic life of a community, but under its guise, no man can by unlawful means prevent another from obtaining the fruits of his labor.’ Skene v. Carayanis, supra, 714 . . . .” Sportsmen’s Boating Corp. v. Hensley, 192 Conn. 747, 753-54, 474 A.2d 780 (1984).

Under the test established by this court to evaluate whether there is a constitutional right to a jury trial, in each instance that a party claims a jury trial in an action brought under CUTPA, the court must conduct an examination of the substantive prohibitions being *169pursued and the historical antecedent, if any, of the claim. It is clear that statutory adjustments to common law causes of action are not determinative of whether a right to trial by jury is mandated by article first, § 19, of the Connecticut constitution. This case by case determination of the relationship of the claim to its historical antecedent is consistent with the public policy prong of CUTPA that authorizes other bodies of law, including the common law, to be incorporated by reference in whole or in part. See Conaway v. Prestia, 191 Conn. 484, 492-93, 464 A.2d 847 (1983), quoting Federal Trade Commission v. Sperry & Hutchinson Co., 405 U.S. 233, 244-45 n.5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972) (in determining if a practice is unfair we look to see: “(1) whether 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 [or competitors or other businessmen]” [internal quotation marks omitted]).

This case by case analysis is also consistent with the position taken in other jurisdictions. Reference to one of these cases is instructive.6 In Waggener v. Seever Sys*170tems, Inc., 233 Kan. 517, 520-22, 664 P.2d 813 (1983), the Supreme Court of Kansas examined whether the Kansas Consumer Protection Act (Kan. Stat. Ann. § 50-623 et seq.) provides for a jury trial. Although § 5 of the Bill of Rights of the Kansas constitution provides that “ ‘[t]he right of trial by jury shall be inviolate,’ ” the court acknowledged that the right was not absolute. Because, in Kansas, there is no statute defining *171what issues are triable to a jury as a matter of right, the court applied the well established guiding principles that it routinely follows in assessing whether a jury trial is mandated. The court reasoned: “(1) The right of trial by jury is a substantial and valuable right. The law favors trial by jury and the right should be carefully guarded against infringement. ... (2) The constitutional right to a jury trial guaranteed by Section 5 . . . refers to that right as it existed at common law. ... (3) At common law and under the Kansas constitutional provision in a suit in equity a party is not entitled to a trial by jury as a matter of right. ... (4) In determining whether an action is one in equity the test is whether the essential nature of the action is grounded on equitable rights and is one in which equitable relief is sought. ... (5) The issues raised by the pleadings or as modified by the pretrial order determine the nature of the action, and where the issue is not one justiciable at common law, a jury trial is not available. ... (6) The substance of the pleadings, not the form of the pleadings, determines the character of an action as equitable or legal in nature. . . . (7) Where a court of equity obtains jurisdiction of an action for the purpose of granting some distinctively equitable relief, the court will take jurisdiction for all purposes and determine all issues in the case so that a full, effective, and determinative decree adjusting the rights of the parties may be entered and enforced.” (Citations omitted; internal quotation marks omitted.) Id., 520-21. Applying these criteria, the court concluded that a claim that an action is unconscionable7 *172is a question for the court but that a claim that an action is deceptive is a question for a jury. Id., 522. The court further concluded that because the plaintiff sought rescission of the contract, an equitable remedy inconsistent with a claim for damages under the contract, he was not entitled to a jury trial. Id., 523.

This case by case analysis proposed by the Waggener court is both comprehensive and manageable and is, I believe, suitable for our trial courts to implement. A case by case approach considers the common law and statutory roots of CUTPA and also promotes a full analysis of the specific claim in relation to its historical origins. By applying a flexible test we could continue to recognize, consistent with our own case law, that CUTPA reaches a wide range of conduct. For example, an unfair method of competition may include conduct as diverse as actual or incipient violations of the antitrust laws to common law business torts, including interference with business expectancies. Sportsmen’s Boating Corp. v. Hensley, supra, 192 Conn. 755-56; see generally D. Belt, “Private Actions Under the Connecticut Unfair Trade Practices Act,” 64 Conn. B.J. SI-3, SI-11-12 (1990); J. Morgan, “The Connecticut Unfair Trade Practices Act: Determining Standards of Conduct,” 62 Conn. B.J. 74, 94-95 (1988); A. Neigher, “On the Connecticut Unfair Trade Practices Act,” 4 Conn. L. Trib., No. 30, p. 6 (July 24, 1978). I therefore would continue to recognize the distinct and diverse causes of action under the CUTPA umbrella and allow our trial courts to act on a case by case basis.

Accordingly, in determining whether the defendants are entitled to a jury trial the court must review the underlying causes of action. The bases for the unfair trade practices for which the defendants seek relief are: fraud in the inducement, usury, breach of contract, tor-tious interference with a contractual obligation, vexatious litigation, slander and intentional infliction of *173emotional distress. All of these are common law actions upon which there was a right to trial by jury before 1818.

In closing, there are two additional points that deserve mention. The first relates to my skepticism regarding the majority’s characterization that CUTPA is essentially equitable in nature. The majority points to two separate parts of CUTPA that provide for equitable relief; General Statutes § 42-110g (a) and (d); as support for its position that CUTPA is equitable in nature. This inclusion of provisions addressing equitable relief demonstrates that in certain instances, as when a victimized consumer cannot put a precise dollar figure on his or her loss, a CUTPA remedy will nevertheless be available; Hinchliffe v. American Motors Corp., 184 Conn. 607, 617-19, 440 A.2d 810 (1981); and is merely consistent with the remedial purpose of the statute. To state that because CUTPA provides for equitable relief supports the conclusion that CUTPA is primarily equitable in nature is as myopic as stating that because a party who brings an action for breach of contract asks only for specific performance means that no action for breach of contract seeking monetary damages is ever entitled to a trial by jury. Additionally, the majority’s assessment runs contrary to our conclusions regarding other statutes that contain provisions for equitable and legal claims. For example, in Miles v. Strong, 68 Conn. 273, 286, 36 A. 55 (1896), we were required to decide whether the statute authorizing an action to quiet title, chapter 66 of the Public Acts of 1893 (Act), was unconstitutional because it denied the right of trial by jury. We stated that “[u]nder section one of the Act, the claims to be tried and determined in proceedings brought under the Act, may plainly include legal claims proper to be tried by a jury, as well as equitable claims proper to be tried by a court of equity; and in the absence of any provi*174sions in the Act which either expressly or by necessary implication prohibit trial by jury, the fair presumption is that the right to try the former class of questions to a jury is preserved to the parties.” Id. We further noted that the Act neither expressly provided for, nor expressly, or by implication, prohibited a trial by jury. Id. Accordingly, we concluded that other provisions of existing law, including common law, controlled. Id. We therefore rejected the claim that the Act of 1893 was unconstitutional because it denied parties the right of a trial by jury. Id., 287.

Finally, I am unpersuaded that CUTPA draws its strength exclusively from the FTCA. Although “[i]n deciding what constitutes an unfair or deceptive act or practice, courts of this state are encouraged to look to interpretations of the [FTCA]; 15 U.S.C. [§] 45 (a) (1); rendered by both the federal trade commission and the federal courts”; Hinchliffe v. American Motors Corp., supra, 184 Conn. 617; the historical antecedent is as much the common law of Connecticut. General Statutes § 42-110b (b) requires that our interpretation of CUTPA be guided by the FTCA; Connelly v. Housing Authority, 213 Conn. 354, 363, 567 A.2d 1212 (1990); however, CUTPA provides a private cause of action and therefore achieves the protection of the rights of consumers in a fundamentally different manner than the FTCA. Moreover, the legislature, in its earlier amendments to CUTPA, was attempting “to find methods, acts or practices not heretofore specifically declared unlawful by the [Federal Trade Commission] or the federal courts to be prohibited by . . . CUTPA.” R. Langer & D. Ormstedt, “The Connecticut Unfair Trade Practices Act,” 54 Conn. B.J. 388, 391 (1980). I am therefore unpersuaded by the fact that the “Federal Trade Commission acts like [a] court of equity when it defines and applies the prohibition of FTCA against unfair or deceptive business practices.”

*175For all these reasons, I respectfully dissent with the majority’s holding that the state constitution does not give rise to a right to a jury trial for claims brought under CUTPA.8

In Skinner v. Angliker, supra, 211 Conn. 378, we held that this flexible approach did not mandate a jury trial for a person asserting a claim against the sovereign because the state had been immune from suit in 1818 under the doctrine of sovereign immunity. Therefore, we concluded that the right to a jury trial under General Statutes § 31-51q would exist only if the legislature provided for it. Id.

“In determining whether there is a right to jury trial under the seventh amendment, the United States Supreme Court applies a historical test in which it looks to see whether a similar cause of action was triable to a jury when the constitution was adopted in 1791. Pernell v. Southall Realty, 416 U.S. 363, 94 S. Ct. 1723, 40 L. Ed. 2d 198 (1974); Curtis v. Loether, 415 U.S. 189, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974); National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 48, 57 S. Ct. 615, 81 L. Ed. 893 (1937). Although the seventh amendment constitutional guarantee of a right to a jury trial applies only in the federal courts; Gluck v. Gluck, 181 Conn. 225, 227, 435 A.2d 35 (1980); the similarity between the state and federal tests was recognized by this court in Swanson v. Boschen, [supra, 143 Conn. 162-63].” Skinner v. Angliker, supra, 211 Conn. 379 n.9.

This court has applied a similar analysis in evaluating whether a particular statute unconstitutionally deprives a plaintiff of the right to bring actions at common law. See Gentile v. Altermatt, 169 Conn. 267, 286, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976) (“all rights derived by statute and the common law extant at the time of the adoption of article first, § 10, are incorporated in that provision”). When the legislature crafts “a new remedy in order to displace an old one . . . [i]t is enough if there exists an adequate ‘remedy by due course of law’ for the underlying injury.” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 197, 592 A.2d 912 (1991). The right to redress under the new statute need not be coextensive with the rights afforded under the old one; the redress must be commensurate. The use of the reasonable alternative test to determine whether the legislature has unconstitutionally abolished a cause of action at common law reflects the same flexibility that we use to ascertain whether the legislature has created a cause of action that is reasonably similar to one that existed at common law.

For example, in Sportsmen’s Boating Corp. v. Hensley, 192 Conn. 747, 755-57, 474 A.2d 780 (1984), we pointed out the “the essential difference between a tort claim for interference with business expectancies and a claim under CUTPA is the standard by which the alleged acts are measured. . . . Conduct that might be actionable under CUTPA may not rise to a level sufficient to invoke tort liability. The reverse of that proposition, however, is seldom true. Provided a plaintiff shows that his or her claim is cloaked with the necessary public interest, it is difficult to conceive of a situation where tortious interference would be found but a CUTPA violation would not.”

Similarly, CUTPA proscribes a broader range of conduct than did the common law action for innocent misrepresentation. Accordingly, proof of *168knowledge of the falsity and reliance on the misrepresentation are not necessary to prevail under CUTPA although they are required to sustain a cause of action for fraud, deceit or misrepresentation under the common law. Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 362-63, 525 A.2d 57 (1987). These cases suggest that the plaintiff who prevails under a common law action for tortious interference or misrepresentation will also prevail under CUTPA provided the claim is cloaked with the necessary public interest.

It also strikes me as incongruous for the court to preclude jury trials under CUTPA in light of the well recognized remedial aims of the statute. See General Statutes § 42-110b (d) (“[i]t is the intention of the legislature that this chapter be remedial and be so construed”). The hallmark of CUTPA is the creation of a private cause of action and the encouragement of its use.

As the majority recognizes, there is a split among the jurisdictions as to whether statutory causes of action for unfair or deceptive trade practices give rise to a state constitutional right to a jury trial. For example, in State v. Credit Bureau of Laredo, Inc., 530 S.W.2d 288, 291-92 (Tex. 1975), the Texas Supreme Court, relying on a constitutional provision comparable to article first, § 19, of the Connecticut constitution, held that the plaintiff who claimed civil penalties was entitled to a jury trial for a violation of the Texas Deceptive Practices Act. Because that act is silent about the right to a jury, the court looked to see if the Texas constitution establishes the right. Id. Citing to article I, § 15, of the Texas constitution, which provides in part “that ‘the right of trial by jury shall remain inviolate,’ ” the court noted that the state has protected the right to a trial by jury in those *170cases where a jury would have been proper at common law. Id., 291. The court further remarked that “[t]he right to a trial by jury is not limited to the precise form of action in which civil penalties were enforceable at common law. The right exists when ‘the action involves rights and remedies of the sort typically enforced in an action at law.’ Curtis v. Loether, 415 U.S. 189, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974); 5 Moore’s Federal Practice, § 38.11[7], 128 (2d ed. 1974).” (Emphasis added.) Id., 292. Following that determination, the court looked to article V, § 10, of the Texas constitution which extended the right to a trial by jury to causes in equity. Id.

I note that other jurisdictions, although not directly confronting the issue, have allowed jury trials in which state unfair or deceptive trade practices or consumer protection act claims were involved. Although none of these cases directly discuss the issue of whether a right to a jury trial exists,'in each, a jury trial was held, thereby at least arguably implying that a right to a jury is viable. See, e.g., Lexton-Ancira Real Estate Fund v. Heller, 826 P.2d 819 (Colo. 1992) (jury trial used under state deceptive practices act where damages were awarded plaintiff on deceptive trade practice claim); Georgia Society of Plastic Surgeons, Inc. v. Anderson, 257 Ga. 710, 363 S.E.2d 140 (1987) (utilizing jury trial in claim of unfair trade practices under state uniform deceptive trade practices act); Stevens v. Motorists Mutual Ins. Co., 759 S.W.2d 819 (Ky. 1988) (implied right to jury trial under state consumer protection act for issue of fact dealing with unfair, false, misleading or deceptive act where relief being sought was damages); Baird v. Norwest Bank, 255 Mont. 317, 843 P.2d 327 (1992) (using jury trial in case involving state unfair trade practices act claims mixed with common law contract claims); Stevenson v. Louis Dreyfus Corp., 112 N.M. 97, 811 P.2d 1308 (1991) (using jury trial where one of claims involved violation of state unfair trade practices act); State ex rel. James A. Redden v. Discount Fabrics, Inc., 289 Or. 375, 615 P.2d 1034 (1980) (jury used in state unfair trade practices act case alleging misrepresentation where relief on second count was for injunction, restitution and attorney’s fees); Schmidt v. Cornerstone Investments, Inc., 115 Wash. 2d 148, 795 P.2d 1143 (1990) (allowing jury trial on state consumer protection act claim in which damages were sought); Industrial Indemnity Co. of the Northwest, Inc. v. Kallevig, 114 Wash. 2d 907, 792 P.2d 520 (1990) (jury trial held under state consumer protection act claim, involving unfair trade practice).

The decision by the court in Waggener v. Seever Systems, Inc., supra, 233 Kan. 522, that a claim that certain conduct was unconscionable is equitable in nature was based on Kansas’ jurisprudence and has little or no bearing on whether in our jurisdiction that is the case. As even the state in its amicus curiae brief acknowledges: “Because the public policy prong of the unfairness doctrine can include both common law and non-common law claims . . . [ejach unfairness count will require a case by case determination of the relationship of the claim to its historical antecedent . . . .”

As the majority acknowledges, there is authority for the proposition that in some jurisdictions at common law a claimant must, at a minimum, plead and prove either compensatory or nominal damages in order to recover punitive damages. See 4 Restatement (Second), Torts § 908, p. 465 (1979); 5 M. Minzer, J. Nates, C. Kimball & D. Axelrod, Damages in Tort Action (1994) § 40.31; annot., 40 A.L.R.4th 18 (1985). It is unclear under Connecticut common law, however, whether: (1) it is necessary to plead and prove nominal damages in order to recover punitive damages; and (2) nominal damages are the equivalent of “ascertainable loss.” In this case, the defendants had to plead an ascertainable loss in their counterclaim in order to state sufficiently a claim under CUTPA. Hinchliffe v. American Motors Corp., supra, 184 Conn. 612-13. Because it is yet unresolved under Connecticut common law whether doing so entitles the defendants to punitive damages, I withhold judgment as to whether the claims for relief in this case have a common law analogue, thereby entitling the defendants to a jury trial.