Summary
disagreeing withMiller, yet "follow[ing] the rule set forth therein"
Summary of this case from Charts v. Nationwide Mut. Ins. Co.Opinion
No. 566915
October 1, 2004
MEMORANDUM OF DECISION
In an earlier, clarified memorandum of decision, the court found that the defendant had violated the Connecticut Unfair Trade Practices Act (CUTPA), awarded compensatory damages of $357,000, and retained jurisdiction to determine whether punitive damages and/or attorneys fees should be awarded. Oral argument was heard on these issues and the parties submitted briefs to the Court.
In addition to these issues, the defendant has moved the court for remittitur by way of rescission.
The court will address the latter issue first.
The defendant has requested this equitable remedy and that the plaintiff opposes it. Remittitur is usually a remedy sought and alleged as a possible means of recovery by a damaged plaintiff. The defendant seeks this remedy after a court trial and bases his motion on Conn. Gen. Stat. Sec 52-228 and P.B. Sec. 17-3. These sections authorize remittitur when a judgment is entered, by mistake or clerical error, for a larger amount than is due. No mistake was made as to the amount already entered by the Court, nor is rescission, never pled, an appropriate remedy. The motion is denied.
The plaintiffs seek punitive damages pursuant to Conn. Gen. Stat. Sec. 42-110g(a). It provides that a court may, "in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper." An award of punitive damages under CUTPA requires that the evidence exhibit a reckless indifference to the rights of others, or an intentional and wanton violation of those rights. The defendant asserts that the Plaintiff did not, in its pleadings, make an allegation of recklessness nor one of intentional and wanton conduct, and that such pleading is a prerequisite to an award of damages, even where a CUTPA violation is alleged and found. For this proposition the defendant relies on Tang v. Bou-Fakhreddine, 75 Conn.App. 334, 339 (2003). His reliance is misplaced.
Tang was an appeal from a judgment rendered after a default and hearing in damages. The trial Court had made no award under CUTPA because it determined that the Plaintiff had not met his burden of proof. The Appellate Court reversed, holding that at least nominal damages should have been awarded because the plaintiff had appropriately alleged CUTPA and the defendant had been defaulted. The defendant relies on the decision's dicta for his position, which has no bearing in the instant case, where a full trial on the merits was held; where there had been no pleading filed to request the revision or striking of the complaint; and where the evidence of the CUTPA violation was heard without objection.
The plaintiffs herein alleged violation of the New Home Construction Act in one count, as well as CUTPA in another, and claimed punitive damages. Evidence of the defendant's reckless indifference to the rights of the plaintiffs was heard at trial. The defendant knew that a CUTPA claim was being made, and defended that claim on its merits. There was no prejudice to the defendant. "If parties . . . insist on going to trial on issues framed in a slovenly manner, they must abide by the verdict; judgment will not be arrested for faults in statement when facts sufficient to support the judgment have been substantially put in issue and found. Want of precision . . . is waived by contesting the case on its merits without questioning such defect." Tedesco v. City of Stamford, 215 Conn. 450, 457 (1990).
The Court has already found that the defendant's breach of contract was an intentional and not a negligent act. The court found that his actions were egregious, deceptive and unfair.
The defendant made deliberate and secret changes to the building plan he contracted to complete and compromised the structural integrity of the plaintiffs' home. The court concurs with the plaintiffs in their assessment that the actions of the defendant in this matter are even more egregious that those found in Tessmann v. Tiger Lee, 228 Conn. 42 (1993).
CUTPA allows for treble damages. The facts found in this matter: the intentional, reckless, and complete disregard by the defendant on the rights of the plaintiffs, justify such an award. The Court therefore awards punitive damages in the amount of $714,000.00. In addition, the Court finds that the request for attorneys fees is reasonable and award attorneys fees in the amount of $16,285.80.
The defendant has objected to the award of expert witness fees as costs, citing Conn. Gen. Stat. Sec. 52-260 which does not list engineers among the witnesses for whom costs may be sought.
It is also true that the CUTPA case cited by the defendant, Miller v. Guimaraes, 78 Conn.App. 760 (2003), disallowed the award of expert witness fees under 52-260. It did not consider whether expert witness fees can be awarded as costs, pursuant to Conn. Gen. Stat. Sec. 42-110g(d). At the start, it should be noted that the unfair trade practices action began as a federally enacted statute. The act itself directs us to the rulings of federal agencies and courts in enforcing Conn. Gen. Stat. Sec. 42-110b(a) "No person shall engage in unfair methods of competition or unfair or deceptive acts or practices in the conduct of any trade or commerce." Conn. Gen. Stat. Sec. 42-110b(b).
CUTPA is a remedial act which encourages litigants to act as private attorneys general. In the case at hand, as in many other such cases, the CUTPA violation itself could not have been proven without the testimony of expert witnesses. Structural engineers and builders were necessary to discover and delineate the defendant's deceptive actions. In Boulevard Assoc. v. Sovereign Hotels, Inc., 868 F.Sup. 70, 73 (S.D.N.Y. 1994,) rev'd on other grounds 72 F.3d 1029 (2d Cir. 1995), the court awarded attorneys fees which included expert witness fees. In Bristol Technology, Inc. v. Microsoft, 127 F.Sup.2d 64 (2000), the court awarded expert witness fees and addressed the issue raised here. In Bristol, the defendant argued that federal law limited taxable costs and did not permit the award of expert witness fees. The court rejected this argument:
As noted above, CUTPA expressly provides that "the court may award, to the plaintiff, . . . costs and reasonable attorneys fees. Conn. Gen. Stat. Sec. 42-110g(d). Microsoft, however, argues that Bristol may only be awarded taxable costs in accordance with federal law. The court is, of course, aware that the parties are awarded costs in federal court in accordance with 28 U.S.C. Secs. 1821 and 1920-23, Fed.R.Civ.P 54(b) and Local R.Civ.P. 17. In state court, Conn. Gen. Stat. Sec. 52-257(b) provides for taxable costs. CUTPA, however, authorizes the award of costs over and above these taxable cost provisions. Id. at p. 82.
The court awarded expert witness fees pursuant to the costs provision of CUTPA itself. This is logical given the legislative intent of CUTPA, which was to empower consumers and to encourage them to bring actions to enforce the law. In an era of complex litigation, the teeth would be taken out of the act if the cost associated with diverse and necessary expert witnesses is not recoverable. But in the face of the Appellate Court decision in Miller, supra, the court is bound to follow the rule set forth therein, until a higher court chooses to revisit the issue. The court, therefore, does not award the reasonable expert witness fees, in the amount proven to the Court, $16,001.89.
Judgment shall enter as follows: compensatory damages: $357,000.00; punitive damages: $714,000.00; and attorneys fees of $16,285.20.
BY THE COURT,
Elaine Gordon, Judge