Levine v. 418 Meadow Street Associates, LLC

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BARBARA LEVINE v. 418 MEADOW STREET
ASSOCIATES, LLC, ET AL.
(AC 36919)
Sheldon, Keller and Flynn, Js.
Argued October 13, 2015—officially released March 15, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Tyma, J.)
Michael S. Lynch, for the appellants (plaintiff and
counterclaim defendant).
Andrew M. McPherson, with whom, on the brief, was
William J. Kupinse, Jr., for the appellees (defendants).
Opinion
FLYNN, J. The plaintiff and counterclaim defendant,
Barbara Levine, and the counterclaim defendant, Steven
Levine, appeal from the judgment of the trial court,1 in
favor of the defendants and counterclaim plaintiffs, 418
Meadow Street Associates, LLC (Meadow), Michael
Weinshel, and Mark Wynnick.2 Barbara and Steven
Levine claim that the court erred by denying their
motions to set aside, and for remittitur of, the jury
verdict. We conclude that despite any perceived imper-
fections in the appeal form, we have jurisdiction to
adjudicate this appeal, and on the basis of the limited
record before us, that the appellants have not shown
that the court abused its discretion in denying their
motions. Therefore, we affirm the judgment of the
trial court.
The record reveals the following procedural history
and facts which the jury reasonably could have found.
The underlying action arose out of the ownership of a
commercial building located at 418 Meadow Street in
Fairfield (property). Barbara Levine and her husband,
Steven Levine, formed the limited liability company,
Meadow, in November, 1998, for the purpose of acquir-
ing and operating the property, which included an
income-producing building. Barbara and Steven Levine
were each 50 percent members of Meadow at the time
of its formation; Meadow’s only asset was the property.
On or about June 1, 2005, Weinshel and Wynnick collec-
tively purchased Steven Levine’s 50 percent interest
in Meadow, thereby becoming members with Barbara
Levine. Weinshel purchased 33.33 percent of Meadow
at a cost of $222,400.46, and Wynnick purchased 16.66
percent at a cost of $41,666.67.
Prior to and subsequent to the time Weinshel and
Wynnick became members of Meadow, it had tenants
which were associated with Steven Levine.3 After June,
2005, Meadow began having difficulty collecting rents
from those tenants. Steven Levine subsequently filed
for bankruptcy in October, 2005.
The members agreed to a Restated Operating
Agreement for Meadow designating Weinshel and Ste-
ven Levine as comanagers. The agreement required the
members’ approval of all leases. The relationship
between the Levines and Weinshel and Wynnick deteri-
orated during and after 2005, due to disagreements
regarding management and operations of the building.
Steven Levine signed a lease as comanager of Meadow
with One Solution Services, LLC (One Solution), effec-
tive July 1, 2006. However, he represented to Weinshel
and Wynnick that there was not a current lease between
Meadow and One Solution, but rather that negotiations
were continuing regarding a new lease. Meanwhile,
although Meadow was attempting to collect unpaid rent
from One Solution as a holdover tenant, Steven Levine
directed One Solution’s bookkeeper to ignore requests
from Weinshel and Wynnick for payment of rent to
Meadow.
Meadow subsequently brought actions against the
aforementioned tenants to obtain rents owed, which
Barbara Levine opposed. Meadow brought two separate
actions against One Solution for nonpayment of rents
and received judgments of $41,000 and $60,000 against
One Solution, which remained unsatisfied. Evidence
introduced during trial demonstrated that One Solution
owed Meadow $82,451.48. Meadow also brought an
action against Steven Levine for wrongful withholding
of security deposits, and received a judgment of
$20,762.83 plus costs of $139.40. Barbara Levine also
executed affidavits for the purpose of assisting One
Solution and Steven Levine to open judgments entered
against them in favor of Meadow. Additionally, Meadow
brought an action against Clean Air Group, Inc. (Clean
Air) for payment of rent, but at the time of trial in the
present action there was no judgment entered in the
case. Evidence introduced during this trial demon-
strated that Clean Air owed Meadow $100,048.57.
Meadow also brought an action against Eco Ion Tech-
nologies, LLC, resulting in a settlement agreement
under which Meadow was to receive $50,000. However,
Meadow received only $30,000 and placed a garnish-
ment on Clean Air to secure the remaining $20,000, but
Clean Air did not pay Meadow any money related to
the garnishment.
The property was initially valued between $3.4 mil-
lion and $3.55 million, and was subject to a mortgage
of approximately $2.5 million held by People’s Bank.
Meadow subsequently defaulted on the mortgage for
the property, and, ultimately in May, 2008, Meadow’s
interest in the property was extinguished when the bank
obtained a foreclosure judgment against Meadow and
a sale was ordered. An appraisal performed on May 28,
2009, valued the property at $2 million at the time the
final foreclosure judgment was entered. In December,
2009, the property sold at a foreclosure sale for
$1,550,000.
The action that generated the counterclaims at issue
in this appeal was commenced in September, 2007,
when Barbara Levine brought suit seeking dissolution
of Meadow and claimed money damages, alleging that
Weinshel and Wynnick breached fiduciary duties owed
to her, and that as a result she suffered damages. Weins-
hel and Wynnick denied the claims and filed counter-
claims against Barbara and Steven Levine, claiming that
the Levines breached fiduciary and other duties owed
to them, causing them to suffer money damages. In
their amended counterclaims, Weinshel and Wynnick
alleged breaches of fiduciary duty, breaches of statutory
duties under General Statutes § 34-141, and violation
of the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq. Barbara Levine filed
a second amended complaint against the defendants
on September 24, 2012, in which she sought dissolution
of Meadow and a winding up of the affairs of the com-
pany. Barbara also alleged that Weinshel and Wynnick
breached the covenant of good faith and fair dealing
and their fiduciary duties owed to her under the
operating agreement.4
Following trial, the jury returned its verdict and found
against Barbara Levine on her breach of fiduciary duty
claims as well as her breach of the covenant of good
faith and fair dealing claims. The jury further found
for Weinshel and Wynnick on their counterclaims that
Barbara and Steven Levine breached fiduciary duties
as well as statutory duties owed to them under § 34-
141, but rejected their CUPTA counterclaim against the
Levines. The jury awarded damages to Weinshel and
Wynnick in the amounts of $222,400 and $41,667,
respectively, on their breach of fiduciary duty and statu-
tory duty claims.
Barbara and Steven Levine subsequently filed a
motion to set aside the verdict and a motion for remitti-
tur of the verdict, to which the defendants filed objec-
tions. The court, Tyma, J., denied both motions without
issuing written memoranda of decision. This appeal
followed.
I
As a preliminary matter, the defendants argue that we
should decline to review Barbara and Steven Levine’s
appeal because they have not properly invoked this
court’s jurisdiction. The defendants assert that this
court lacks jurisdiction because Barbara and Steven
Levine did not file an appeal form indicating that they
sought review of the court’s decisions denying their
motions to set aside the verdict and for remittitur of
the verdict. We disagree and conclude that this court
has jurisdiction to review this appeal.
Because the subject matter jurisdiction of this court
is challenged, we commence our review by addressing
that claim. ‘‘Whenever a claim of lack of jurisdiction is
brought to the court’s attention, it must be resolved
before the court can proceed.’’ Gallant v. Cavallaro, 50
Conn. App. 132, 134, 717 A.2d 283, cert. denied, 247
Conn. 936, 722 A.2d 1216 (1998), cert. denied, 528 U.S.
1005, 120 S. Ct. 500, 145 L. Ed. 2d. 386 (1999). ‘‘It is
axiomatic that unless the jurisdiction of this court is
properly invoked, we cannot exercise our appellate
jurisdiction.’’ Rocque v. DeMilo & Co., 85 Conn. App.
512, 527, 857 A.2d 976 (2004). ‘‘[I]n determining whether
a court has subject matter jurisdiction, every presump-
tion favoring jurisdiction should be indulged.’’ (Internal
quotation marks omitted.) Pritchard v. Pritchard, 281
Conn. 262, 275, 914 A.2d 1025 (2007).
‘‘The right to an appeal is not a constitutional one. It
is but a statutory privilege available to one who strictly
complies with the statutes and rules on which the privi-
lege is granted.’’ Chanosky v. City Building Supply
Co., 152 Conn. 449, 451, 208 A.2d 337 (1965). However,
our Supreme Court stated in Pritchard v. Pritchard,
supra, 281 Conn. 275, that ‘‘the forms for appeals and
amended appeals do not in any way implicate appellate
subject matter jurisdiction. They are merely the formal,
technical vehicles by which parties seek to invoke that
jurisdiction. Compliance with them need not be perfect;
it is the substance that matters, not the form.’’ Cf.
Rocque v. DeMilo & Co., supra, 85 Conn. App. 527 (claim
not listed on appeal form but raised initially in appellate
brief distinguished from technical defect and consid-
ered ‘‘a defect of substantive dimension that implicates
this court’s jurisdiction to entertain the claim’’).
The appeal form, JD-SC-28, indicates that the appeal
is taken from the ‘‘motion to dismiss granted in favor
of defendants (see jury verdict (#174), memorandum
of decision (#196); and judgment of dismissal (#197).’’
Although the appeal form does not indicate that Barbara
and Steven Levine have appealed from the court’s deci-
sions denying the motions to set aside the verdict or
for remittitur, their intention to appeal from those deci-
sions was made clear in the preliminary statement of
issues filed with this court. That preliminary statement
of issues included, in relevant part: ‘‘Did the trial court
err in failing to set aside the jury verdict where the
damages awarded to the counterclaim plaintiffs Michael
Weinshel and Mark Wynnick were not supported by the
evidence at trial, and were not in conformance with
Connecticut law of damages.’’
‘‘In accordance with [its] policy not to exalt form
over substance, [our Supreme Court has] been reluctant
to dismiss appeals for technical deficiencies in an appel-
lant’s appeal form. See State v. Findlay, 198 Conn. 328,
329 n.2, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106
S. Ct. 2279, 90 L. Ed. 2d 721 (1986) (disregarding error
on appeal form mistakenly indicating that appeal was
being taken from jury verdict rather than judgment,
concluding that defect in form is not jurisdictional in
nature); see also Brown v. Rosen, 36 Conn. App. 206,
210, 650 A.2d 568 (1994) (disregarding appellant’s fail-
ure to indicate on appeal form that appeal was being
taken from final judgment).’’ Rocque v. DeMilo & Co.,
supra, 85 Conn. App. 527. Barbara and Steven Levine
referenced the jury verdict itself on the appeal form,
which can be interpreted as an intention to appeal from
the judgment. See State v. Kurvin, 186 Conn. 555, 556
n.1, 442 A.2d 1327 (1982) (‘‘[a]lthough the defendant
purported to appeal from the verdict rather than the
judgment as required by General Statutes § 52-263, this
defect in form not being jurisdictional in nature . . .
may be disregarded’’ [citation omitted]).
In Pritchard v. Pritchard, supra, 281 Conn. 275–76,
our Supreme Court held that although the wrong judg-
ment date was listed on the appeal form, it was clear
from the attached amended preliminary statement of
issues that the appeal was intended to be taken from
the correct judgment date. The court distinguished
Rocque v. DeMilo & Co., supra, 85 Conn. App. 527,
noting that in Rocque, the ‘‘claim was not raised in
the defendants’ preliminary statement of issues, but
appear[ed] for the first time in their appellate brief.’’
(Internal quotation marks omitted.) Pritchard v. Pritch-
ard, supra, 275. Here, as in Pritchard, the intent of
Barbara and Steven Levine to appeal from the court’s
decision denying their motion to set aside the verdict
was apparent from the preliminary statement of issues.
See id., 262. It is a fair inference from what the Levines
did state in their preliminary statement of issues,
namely, that the verdict was not in accordance with
the evidence at trial, that if the entire verdict were not
set aside, that they sought review of their motion for
remittitur, claiming that its amount should at least be
lessened. In State v. Lanasa, 141 Conn. App. 685, 687
n.1, 62 A.3d 572, cert. denied, 308 Conn. 945, 66 A.3d
885 (2013), although the appeal form indicated that the
defendant was appealing from the denial of a motion
for waiver of fees and costs, which is not an appealable
judgment, subject matter jurisdiction existed on appeal
because it was clear from the preliminary statement of
issues that the defendant was challenging the judgment
of conviction. Therefore, despite the imprecise lan-
guage used on the appeal form, viewing the substance
of Barbara and Steven Levine’s amended appeal, they
have sufficiently invoked this court’s jurisdiction, and
we will review their claims on appeal.
II
We next turn to the merits of the Levines’ appeal.
They claim that the court erred by denying their motions
to set aside, and for remittitur of, the jury verdict. We
are not persuaded.
We first address the defendants’ argument that the
record for reviewing Barbara and Steven Levine’s
claims is inadequate. The defendants argue that the trial
court’s judgment should be affirmed because the case
of Murcia v. Geyer, 151 Conn. App. 227, 230, 93 A.3d
1189, cert. denied, 314 Conn. 917, 100 A.3d 406 (2014),
is analogous to the present case. We agree that Murcia
is relevant to our inquiry, however, we disagree that the
record is so inadequate as to prevent review. Instead, as
in Murcia, we review the appellants’ claims on the
limited record provided. See id., 231 n.1. Given our duty
to make every reasonable presumption in favor of the
correctness of the court’s decision; id., 231; our review
of the limited record before us leads us to conclude
that the court acted reasonably and did not abuse its
discretion in denying their motions to set aside, and
for remittitur of, the verdict.
In the present case, we do not decline to review
Barbara and Steven Levine’s claims, rather we review
the claims on the record provided. See id. Nor is our
resolution founded solely upon the failure of Barbara
and Steven Levine to seek an articulation, but also upon
their failure to procure memoranda of decision.5 See id.When reviewing both a motion to set aside the verdict
and a motion for remittitur, the trial judge must review
the evidence from the viewpoint of sustaining the ver-
dict. Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276,
281, 32 A.3d 318 (2011); Kregos v. Stone, 88 Conn. App.
459, 468, 872 A.2d 901, cert. denied, 275 Conn. 901, 882
A.2d 672 (2005). On such an appeal, ‘‘the conclusion of
the trial court from the vantage point of the trial bench
cannot be disturbed unless there is a clear abuse of
discretion. . . . An appellate court cannot retry the
facts of a case or pass upon the credibility of the wit-
nesses. . . . The trial court’s refusal to set aside a ver-
dict is entitled to great weight and every reasonable
presumption should be given in favor of its correctness.
. . . If, on the evidence, the jury could reasonably have
decided as they did, [the reviewing court] will not find
error in the trial court’s acceptance of the verdict
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Malmberg v. Lopez, 208 Conn. 675, 679, 546
A.2d 264 (1988).
Appellate review of motions for remittitur is even
more restrictive. Remittitur should be both rare and
exceptional. ‘‘[R]eview of the trial court’s grant of
remittitur is dictated by, on the one hand, the high bar
that must be met before a trial judge may set aside a
jury verdict, and, on the other hand, the necessarily
broad authority that the trial judge has to oversee the
trial process. The right of trial by jury is of ancient
origin, characterized by Blackstone as the glory of the
English law and the most transcendent privilege which
any subject can enjoy . . . . [Our Supreme Court has]
repeatedly . . . stated that the award of damages, in
particular, is a matter peculiarly within the province of
the trier of facts. . . . For that reason, [our Supreme
Court has] consistently . . . held that a court should
exercise its authority to order a remittitur rarely—only
in the most exceptional of circumstances.’’ (Citations
omitted; internal quotation marks omitted.) Saleh v.
Ribeiro Trucking, LLC, supra, 303 Conn. 280.
When considering a motion to set aside a verdict,
Malmberg teaches us that the evidence before the jury
is vital. See Malmberg v. Lopez, supra, 208 Conn. 679–80.
There was abundant evidence from which the jury could
have concluded that Barbara and Steven Levine
engaged in a long pattern of self-dealing and obstructive
conduct that frustrated the purpose of successfully
operating Meadow, whose sole purpose was the owner-
ship of the single commercial building. There was also
evidence from which a jury might have concluded that
the defendants, Weinshel and Wynnick, lost invest-
ments of $222,400.46 and $41,666.67, respectively,
which were irretrievable when the property that was
Meadow’s sole asset was foreclosed by People’s Bank.
In Murcia, this court stated that ‘‘pursuant to Practice
Book § 64-1 (a), the court was required to state, either
orally or in writing, a decision that encompassed its
conclusion as to each claim of law raised by the parties
and the factual basis therefor. . . . If an oral decision
is rendered, a signed transcript of the oral decision
should be created and filed for use in any appeal. If
the court fails to file an oral or written decision, the
appellant, who has the duty to provide an adequate
record for appellate review; see Practice Book § 61-10;
must file a notice to that effect with the appellate clerk
in accordance with Practice Book § 64-1 (b).’’ (Internal
quotation marks omitted.) Murcia v. Geyer, supra, 151
Conn. App. 230. In the present case, the court’s denial
of Barbara and Steven Levine’s motions to set aside,
and for remittitur of, the verdict thereby rendering judg-
ment in accordance with the jury verdict, constituted
an appealable issue pursuant to General Statutes § 52-
263.6 Similar to Murcia, the court in this case did not file
written memoranda of decision explaining its rulings on
Barbara and Steven Levine’s motions, nor did it prepare
and sign a transcript of any oral rulings. See id. Also
analogous to Murcia, Barbara and Steven Levine failed
to file a notice with the appellate clerk’s office pursuant
to Practice Book § 64-1, or a motion requesting the
court to articulate the factual and legal basis for its
ruling. See id.; see also Practice Book § 66-5.
This court, in Murcia, concluded that although ‘‘the
record . . . include[d] the trial transcript, [it could not]
readily identify any portion of it that encompasse[d] the
court’s factual findings with respect to the defendants’
claim . . . .’’ Murcia v. Geyer, supra, 151 Conn. App.
230. In any review of a motion to set aside the verdict
and/or a motion for remittitur, given the deference our
standard of review requires to the trial court’s decision,
it is especially important to know what evidence before
the jury justified the verdict in the court’s mind. Similar
to Murcia, in the present case, although we have the
trial transcript, there is no indication of the specific
facts which the court found reasonably supported the
denial of Barbara and Steven Levine’s motions to set
aside, and for remittitur of, the verdict.7 See id.The essence of the defendants’ claim briefed on
appeal is that the jury could not have awarded damages
for the defendants’ capital contributions to Meadow
because the complaint only referenced, in all of its
counts, losses due to the foreclosure of Meadow’s prop-
erty by People’s Bank, and the value of the property at
the time of foreclosure was less than the amount of the
mortgage at the time of foreclosure. However, it was
possible for the jury to have found that Meadow’s prop-
erty became less valuable, not enough rent was col-
lected to satisfy mortgage payments, and the property
was subsequently foreclosed because of the self-dealing
and obstructive behavior of Barbara and Steven Levine.
The jury also could have concluded that the defendants,
Weinshel and Wynnick, lost the entire amount of their
investments in Meadow when the property was fore-
closed. Therefore, it would have been reasonable for
the jury to conclude that absent the self-dealing and
obstructive behavior of Barbara and Steven Levine,
Meadow’s property might not have been foreclosed,
and the defendants, Weinshel and Wynnick, would not
have lost their investments in Meadow.
We are ‘‘[c]ognizant that we must make every reason-
able presumption in favor of the correctness of the
court’s decision . . . .’’ Id., 230–31. Therefore, on the
basis of our review of the limited record provided to
us, we conclude that the Levines have not shown that
the court acted unreasonably or abused its discretion
in denying their motions to set aside, and for remittitur
of, the verdict thereby rendering judgment in favor of
the defendants on their counterclaims, in accordance
with the jury verdict. See id., 231.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendants, who were also counterclaim plaintiffs, originally filed
a cross appeal, but later withdrew it.
2
Although both Weinshel and Wynnick were also counterclaim plaintiffs,
we refer to them throughout the opinion as the defendants.
3
The tenants associated with Steven Levine were (1) One Solution Ser-
vices, LLC, (One Solution), (2) Clean Air Partners, LLC, now known as Clean
Air Group, Inc., (Clean Air), and (3) Eco Ion Technologies, LLC (Eco). Prior
to filing for bankruptcy, Steven Levine had an ownership interest in Indoor
Air Quality Partners, LLC, which had an ownership of 34 percent in Eco.
Steven Levine also had an ownership interest in One Solution, which he
sold to third parties, who then sold to his father. Although it is unclear what
Steven Levine’s job title was at One Solution, from 2005, until the date of
foreclosure, he received compensation and loans from One Solution. Steven
Levine has an ownership interest of approximately 20 percent in Clean Air,
and also received compensation from Clean Air from 2005, until the date
of the foreclosure.
4
These claims were tried to a jury before the court, Tyma, J., in September,
2012, and the parties and court agreed that the statutory dissolution claims
would be tried at a later date to the court. In November, 2013, the defendants
filed a motion to dismiss the remaining counts of the complaint, which the
court granted on May 16, 2014. Those claims are not at issue in this appeal.
5
‘‘Pursuant to Practice Book § 61-10, which was amended October 18,
2012, to take effect January 1, 2013, this court will not decline to review a
claim on appeal solely on the basis of a party’s failure to seek an articulation.
See Practice Book § 61-10 (b). As stated in the commentary to the rule,
however, the new subsection (b) that was created by the amendment was
not intended to preclude this court from declining to review an issue where
the record is inadequate for reasons other than solely the failure to seek
an articulation, such as, for example, the failure to procure the trial court’s
decision pursuant to [Practice Book §] 64-1 (b) . . . . Practice Book § 61-
10, commentary. . . . Gordon v. Gordon, [148 Conn. App. 59, 68 n.10, 84
A.3d 923 (2014)].
‘‘The new subsection also in no way alters the responsibility of an appellant
to ensure that the appellate record is perfected for proper presentation of
all claims raised. See Macricostas v. Kovacs, 67 Conn. App. 130, 133, 787
A.2d 64 (2001) (The duty to provide this court with a record adequate for
review rests with the appellant. . . . It is incumbent upon the appellant to
take the necessary steps to sustain its burden of providing an adequate record
for appellate review. Practice Book § [60-5] . . . . It is not the function of
this court to find facts. . . . Our role is . . . to review claims based on a
complete factual record developed by a trial court. . . . Without the neces-
sary factual and legal conclusions furnished by the trial court . . . any
decision made by us respecting [the defendant’s claims] would be entirely
speculative. . . . Where the transcript does not reveal the basis of the
court’s factual conclusion, we will not review the appellant’s claims. . . .
‘‘In the present case, we do not decline to review the defendants’ claim,
rather we review the claim on the record provided. Nor is our resolution
founded solely upon the defendants’ failure to seek an articulation, but upon
their failure to procure a memorandum of decision.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.) Murcia v. Geyer,
supra, 151 Conn. App. 231 n.1.
6
General Statutes § 52-263 states: ‘‘Upon the trial of all matters of fact in
any cause or action in the Superior Court, whether to the court or jury, or
before any judge thereof when the jurisdiction of any action or proceeding
is vested in him, if either party is aggrieved by the decision of the court or
judge upon any question or questions of law arising in the trial, including
the denial of a motion to set aside a verdict, he may appeal to the court
having jurisdiction from the final judgment of the court or of such judge,
or from the decision of the court granting a motion to set aside a verdict,
except in small claims cases, which shall not be appealable, and appeals
as provided in sections 8-8 and 8-9.’’
7
At oral argument before this court, counsel for Barbara and Steven
Levine made the following representations about matters that Judge Tyma
had put on the record. ‘‘And Judge Tyma made it very clear that he thought
the jury did a very good job. He thought they got it right, and he said that
on the record. And so he said he’s going to deny the motions for that reason.
He thought the jury did a very good job and they got it right. . . . [Judge
Tyma] explained only that he thought that the jury awarded damage where
damage wasn’t—was appropriate under the circumstances. He thought the
jury fairly assessed the situation and did not agree with me that only a
nominal damage should be awarded.’’ However, we were not provided with
a transcript or record of any of this.
Barbara and Steven Levine supplied records of the trial in the Superior
Court for the following dates: September 19, 2012; September 20, 2012;
September 25, 2012; September 27, 2012; September 28, 2012; and October
2, 2012. All of these dates preceded the dates of the motions to set aside,
and for remittitur of, the verdict, which were both dated October 12, 2012.
We were provided no transcripts for proceedings in the Superior Court
before Judge Tyma after October 12, 2012, that would shed light on his
reasoning for refusing to set aside the verdict and denying any remittitur
of its amount.