Robinson v. Itt Continental Baking Co. , 2 Conn. App. 308 ( 1984 )

The defendant appeals¹ from a judgment rendered for the plaintiff in the amount of $22,500 after a jury trial, and from the denial of both its motion to dismiss and its motion to set aside the verdict.

In July of 1979, the plaintiff, Dona Robinson, commenced this action to recover damages for personal injuries which she suffered after swallowing a cupcake made by the defendant that contained slivers of glass. The plaintiff, who injured her throat, filed a four count complaint alleging negligence, breach of express and implied warranties and products liability. The plaintiff a resident of Maryland, purchased the cupcake in Maryland. The cupcake was manufactured in Massachusetts by the defendant, a corporation organized and incorporated under the laws of the state of Delaware. The defendant corporation was authorized to do business in Connecticut.

In August of 1979, the defendant's counsel entered an appearance, and thereafter filed answers to the complaint and engaged in extensive discovery proceedings as well as a pretrial conference. On February 24, 1982, approximately one and one half years after the suit was instituted, the defendant filed a motion to dismiss alleging a lack of both subject matter and personal jurisdiction. The trial court denied the motion to dismiss. In so doing, the court addressed only the claim regarding absence of personal jurisdiction while remarking that the motion to dismiss was somewhat "ambiguous as to the ground asserted."² The ckurt found that the defendant had waived any right to assert lack of personal jurisdiction because the issue of personal jurisdictioj was not raised by way of a motion to dismiss within thirty days of the filing of the defendant's appearance.³

On appeal, the defendant claims that the court erred (1) in holding that the motion to dismiss asserted only a lack of personal jurisdiction; (2) in failing to grant the motion to dismiss for either a lack of subject matter jurisdiction or under the doctrine of forum non conveniens; (3) in that the award of damages was clearly excessive and the motion to set aside the verdict should have been granted; and (4) in opening the judgment to add interest.

I Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. England v. Coventry, 183 Conn. 362, 364, 439 A.2d 372 (1981); Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co.,183 Conn. 108, 111-12, 438 A.2d 834 (1981). A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., supra, 112. In determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction shall be indulged. Connecticut Light Power Co. v. Costle, 179 Conn. 415, 421 n. 3, 426 A.2d 1324 (1980); Diaz v. Board of Directors, 2 Conn. App. 43,476 A.2d 146 (1984). The source of the jurisdiction of a court is the constitutional and statutory provisions by which the court is created. C.S.E.A., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 456, 334 A.2d 909 (1973). The Superior Court of Connecticut "shall be the sole court of original jurisdiction for all causes of action . . . ." General Statutes 51-164s; see LoBella v. LoBella, 134 Conn. 312, 316, 57 A.2d 627 (1948). The plaintiff's cause of action in this case is recognized under the statutes of this state. See General Statutes42a-2-313 through 42a-2-315 (breach of express and implied warranties); General Statutes 52-572l (negligence); General Statutes 52-572n (product liability). There is no question that the court had subject matter jurisdiction over this cause of action.

As to the claim regarding a lack of personal jurisdiction, the court quite properly found this claim to be waived as a result of the defendant's failure to raise it within thirty days from the filing of its appearance. Practice Book 142.

The defendant, however, further contends that the court should have granted the motion to dismiss under the doctrine of forum non conveniens. We find that the defendant cannot prevail on this claim for two reasons. First, the defendant asserts that under certain circumstances, after considering the probability that the court may be unable to enforce its decree and whether complete justice can be done in the present forum, the court may decline to accept jurisdiction over the case. The defendant cites Frick v. Hartford Life Ins. Co., 98 Conn. 251, 256, 119 A. 229 (1922), as support for this claim. Under this theory, the exercise of jurisdiction would be a matter of discretion, the abuse of which we do not find in this case.

Second, the defendant did not raise the issue of forum non conveniens in its motion to dismiss. The defendant's motion was based upon an express claim of lack of subject matter jurisdiction; yet, the substance of the defendant's argument, in its motion, reflected a claim of lack of personal jurisdiction. The defendant did not claim in its motion that the court did have jurisdiction but should decline it, in the interests of justice, on the ground that Connecticut was not the best forum for deliberation of the merits of the suit. We will not, therefore, consider this claim now. For this court to consider an issue on appeal, that issue must be distinctly raised below, not just briefly suggested. Practice Book 3063; McKiernan v. Caldor, Inc., 183 Conn. 164, 166,438 A.2d 865 (1981).

II The plaintiff was awarded $22,500 in damages for the injuries which she sustained. The defendant claims that this award was excessive and argues that the court, as a result, should either find error in the court's denial of the defendant's motion to set aside the verdict or, in the alternative, order a reasonable remittitur. The defendant did not request a remittitur below. The defendant contends that there was no evidence presented concerning the permanency of the injuries sustained by the plaintiff nor any evidence concerning the duration of pain. The plaintiff suffered a laceration to her left pyriform sinus and a swelling of the surrounding area including the larynx. Contrary to the defendant's contention, there was testimony concerning the effect of the injuries upon the strength, audibility and octave level of her voice. It is axiomatic that a resolution of the credibility of witnesses is strictly a matter for the trier of facts. Williams v. Salamone, 192 Conn. 116,123, 470 A.2d 694 (1984).

The matter of damages is peculiarly within the province of the trier of fact. Angelica v. Fernandes,174 Conn. 534, 535, 391 A.2d 167 (1978); Jonap v. Silver,1 Conn. App. 550, 560, 474 A.2d 800 (1984). The court should not interfere with the jury's determination except when the verdict is plainly excessive or exorbitant. Pisel v. Stamford Hospital, 180 Conn. 314,342-43, 430 A.2d 1 (1980); Jonap v. Silver, supra. "A trier of facts can conclude, by inference, that an injury will be permanent even though there is no medical testimony expressly substantiating permanency." Royston v. Factor, 1 Conn. App. 576, 577, 474 A.2d 108 (1984). Damages in personal injury cases cannot be computed mathematically, nor does the law furnish any precise, definite rule for their assessment. Royston v. Factor, supra. The trier of fact must evaluate the elements of damages relevant to the case and place a monetary value on them. Kiniry v. Danbury Hospital, 183 Conn. 448,461, 439 A.2d 408 (1981); Royston v. Factor, supra. The award of damages in this case was not excessive or exorbitant and in no way shocked the sense of justice. Kiniry v. Danbury Hospital, supra.

The defendant further asserts that in November of 1982, several months after the filing of this appeal, the plaintiff filed a motion to open and correct the judgment, requesting that the court add interest to the judgment pursuant to Practice Book 350. The court granted the motion over the defendant's objection and corrected the judgment to include interest in the amount of $2388 in the award.

A motion to open judgment is addressed to the discretion of the court. Celanese Fiber v. Pic Yarns, Inc.,184 Conn. 461, 466-67, 440 A.2d 159 (1981). Upon review, this court is limited to a determination of whether the trial court abused its discretion in opening the judgment and we must make every reasonable presumption in favor of its action. Id., 467.

It must be noted that this issue, the opening of the judgment for purposes of adding interest to the award, arose subsequent to the filing of the appeal. The record does not reflect the proceedings.⁴ The defendant, furthermore, failed to file an amended appeal pursuant to Practice Book 3062 or to file an amended preliminary statement of issues pursuant to Practice Book 3012.⁵ This court will not consider issues which are brought to the court's attention for the first time by way of the appellant's brief.

There is no error.

In this opinion the other judges concurred.