Opinion
No. CV 04 4003034 S
August 24, 2009
MEMORANDUM OF DECISION
This matter comes before the court by way of the plaintiff's complaint dated October 4, 2004, bearing a return date of October 26, 2004. The complaint alleges: (1) breach of contract; (2) wrongful eviction; (3) unjust enrichment; (4) negligent infliction of emotional distress; (5) intentional infliction of emotional distress; and (6) a violation of the Connecticut Unfair Trade Practices Act (CUTPA). The, defendant Burhan Yaglidere has filed a Revised Answer, Special Defenses and Counterclaim dated March 27, 2007. The Special Defenses allege: (1) the plaintiff lacks standing; (2) negligence by the plaintiff; (3) voluntary abandonment of the subject premises; and (4) a lack of a "demand" by the plaintiff. The Counterclaim sounds in three counts. Upon review of the Counterclaim it appears that the defendant, in sum, alleges a conversion of the defendant's monetary funds by the plaintiff and a violation of CUTPA by the plaintiff.
A court trial in this matter commenced on February 19, 2009 and concluded on February 24, 2009. The court heard testimony from the plaintiff, Balram Sethi, his sons, Deepak Sethi and Rastiv Sethi, his wife, Gurminder Sethi, the defendant, Burham Yaglidere, and the defendant's daughter, Senay Ulusoy. The court also received 44 full exhibits, one of which is a copy of the February 6, 2009, deposition testimony of Harminder Singh. Subsequently, each party submitted a memorandum of law regarding their respective claims.
I Summary of the Respective Claims A. Plaintiff's Complaint
The First Count of the plaintiff's complaint alleges that in April 2004, the defendant agreed to sell the delicatessen business to the plaintiff for a total price of $200,000. The plaintiff was to pay this price in installment payments as follow:
1. $20,000 in cash in April 2004;
2. $35,000 by check and $10,000 in cash on May 14, 2004, at which time, the defendant would transfer management of the deli to the plaintiff;
3. $5,000 in cash in June 2004;
4. The balance of the purchase price in the amount of $130,000, plus interest at a rate of 5% would be paid in monthly installments of $2,500, commencing November 25, 2004, at which time the defendant would transfer his ownership interest to the plaintiff's son, who would have then attained the age of twenty-one.
The plaintiff alleges he paid the sum of $20,000 to the defendant in April 2004, and he paid the defendant $35,000 by check and $10,000 in cash on May 14, 2004, pursuant to the aforesaid agreement. The plaintiff also alleges he paid the sum of $5,000 in cash, in June 2004, as agreed. The plaintiff then assumed the day to day operation of the deli business. The plaintiff also claims that at the defendant's request he hired the defendant's family members, as employees at the deli, including the defendant's daughter Sara. The plaintiff further alleges that the cause of deposit shortfalls were due to Sara appropriating deli funds for her personal use, and that, in fact Sara has admitted this. As a result, the plaintiff terminated Sara's employment at the deli. The plaintiff claims the defendant and his daughters had sole access to all business banking statements.
As a result of these events, the defendant accused the plaintiff of the misappropriation of the funds and promptly resumed operating the business, ordering the plaintiff to leave the business. Despite demand from the plaintiff, the defendant has refused to return the plaintiff's deposit funds totaling $70,000, and has refused to agree to an accounting of funds the plaintiff claims he added to the deli, as a result of his personal services. The plaintiff claims he was wrongfully evicted from the business and the premises and that the defendant has breached the contract for the sale of the deli business.
In the Second Count the plaintiff incorporates the claims of the First Count and additionally alleges that the defendant has been unjustly enriched by the payment of $70,000 from the plaintiff for the purchase of the deli. The plaintiff also claims the defendant is unjustly enriched by seizing the inventory and additional funds added to the deli by the plaintiff. In the Third Count, the plaintiff incorporates the allegations of the First and Second Count. He additionally alleges a negligent infliction of emotional distress in that the defendant knew or should have known that the wrongful eviction and refusal to return the deposit funds would deprive the plaintiff of all means of financial support, likely causing plaintiff severe emotional and financial stress. The plaintiff claims that the defendant's actions were "extreme and outrageous."
The Fourth Count alleges an intentional infliction of emotional distress. Again the plaintiff incorporates the allegations of the First Count and further alleges that the defendant's actions were the cause of financial and severe emotional distress.
The Fifth Count incorporates allegations contained in the prior four counts and further alleges a violation of CUTPA. The plaintiff claims the defendant was: (1) a "person," as defined in General Statutes § 42-110a(3); was engaged in commerce, as defined in General Statutes § 42-110(a)(4); and the defendant's conduct constitutes a violation of CUTPA.
B. Defendant's Special Defenses
The Special Defenses allege: (1) the plaintiff lacks standing; (2) negligence by the plaintiff; (3) voluntary abandonment of the subject premises; and (4) a lack of a "demand" by the plaintiff. The Counterclaim sounds in three counts.
The defendant claims that the Plaintiff has admitted under oath he was not the purchaser of the Deli. The defendant alleges that the plaintiff agrees that his son, Rajiv Sethi, was the purchaser and the agreement to sell the Deli was with his son, Rajiv Sethi, because the Plaintiff could not be an agent for the Connecticut Lottery, Western Union, and APS due to his poor financial and credit history and his recent bankruptcy filings. Ergo, the Plaintiff was not a party to the agreement and therefore cannot bring an action to enforce its terms or claim damages for its breach.
The defendant also alleges that there could not be a wrongful eviction, as there was never a landlord/tenant relationship between the parties. Moreover, the Defendant never removed the Plaintiff from the premises. The defendant claims the Plaintiff left the premises voluntarily and never demand that possession be returned to him. Moreover, there was no written lease between the parties.
The defendant claims that the plaintiff's own negligence was the proximate cause of the plaintiff's losses because of the plaintiff's negligent handling of the defendant's funds and the plaintiff's failure to account for said funds totaling approximately $128,000.00 all of which disappeared while the plaintiff was in exclusive control of the operations of the Deli.
C. The Defendant's Counterclaim
The defendant's counterclaim sounds in three counts. In the First Count, the defendant claims the plaintiff failed to remit payments to the utility companies; failed to accurately account for lottery ticket sales proceeds; and depleted the deli's inventory. These actions caused a deterioration of the business, thereby damaging the defendant's credit and reputation. The defendant claims he was forced to infuse additional monies of his own to reverse the damage done to the defendant and the deli business by the plaintiff.
For the purposes of simplicity and clarity, the court will continue to refer to Sethi as the plaintiff and Yaglidere as the defendant, rather than Sethu as a counterclaim defendant and Yaglidere as the counterclaim plaintiff.
The Second Count claims the plaintiff intentionally appropriated the receipts of the business for his own use and failed to account to the defendant for missing monies in conscious disregard of the defendant's rights. The defendant seeks actual and punitive damages.
The Third Count of the counterclaim alleges a violation of CUTPA in that the plaintiff was a person engaged in commerce as defined by CUTPA. The plaintiff's conduct is alleged to have been false, misleading, and/or deceptive, causing the defendant to suffer an ascertainable loss.
II Facts
The presentation of evidence and the testimony presented many challenges for the court. While the plaintiff and the defendant testified in the English language, neither party was especially proficient. They were both were heavily accented, and at times each struggled to understand the questions of their attorneys arid those of the court. The testimony required numerous clarifications by the witnesses and interruptions by the court to allow the court to grasp the significance and content of the offered testimony. Neither party chose to avail itself of the services of an interpreter who was fluent in the parties' respective native languages.
The court was also concerned because the official court monitor informed the court on several occasions that she could not understand the testimony. Where the court found it necessary to do so, the court politely requested that the responses of the parties be repeated and clarified, as the court recognized the parties' right to have access to our court system and to have their claims decided in a fair and just manner. To achieve this goal, the court needed to understand the testimony of the witnesses so as to judge the reliability and credibility of the testimony being offered. During the course of the trial, the court compiled approximately forty-five pages of handwritten notes and has heavily relied upon those notes and the summaries of respective counsel for the parties in finding the facts, as well as, the court's ultimate decisions regarding the respective claims of the parties.
The Defendant, Burhan Yagildere, was the owner of an establishment known as the "Bereket Deli" located at 4031 Main Street Bridgeport, Connecticut (the "Deli"). The business of the Deli was the sale of groceries, snacks, cigarettes, and phone cards to the general public. The Deli also served as an agent for the Connecticut Lottery, Western Union, and American Payment Systems ("APS"), whose machines and/or vending terminals were located within the deli business premises. APS is a program by which customers of United Illuminating, Southern Connecticut Gas, and other utility providers can make payments due for their utility services at the Deli through APS, who in turn, for a fee, pays the utility servicer. Like the Connecticut Lottery Agency Agreement and the Western Union Agency Agreement, the Defendant had a contract with APS which permitted him to offer his customers this service. To qualify as an agent for the Connecticut Lottery, Western Union, and APS the applicant was required, among other things, to demonstrate financial and credit worthiness.
In early 2004, the defendant approached the plaintiff, Balram Sethi concerning the defendant's willingness to sell the Deli. The purchase of the Deli contemplated, among other things, an assignment of the Connecticut Lottery, Western Union, and APS agreements to the Plaintiff. However, the Plaintiff could not be assigned these agreements because he did not meet the credit worthiness standard due to prior credit problems. As a result, the Plaintiff proposed that he purchase the defendant's business in the name of his son, Rajiv Sethi. Thereafter, the plaintiff and the defendant negotiated for the purchase and sale of the Deli with the understanding that the business would be in the name of the plaintiff's son Rajiv Sethi.
Pursuant to an unsigned written agreement, the purchase price for the deli business was agreed to be $200,000.00 plus additional sums for the cigarette and phone card inventory. The proposed sale also contemplated a lease of the space occupied by the Deli which was owned by the Defendant. The terms of the payments for the purchase of the business were as follows: (1) Rajiv Sethi would pay $75,000.00 in cash or by check toward the purchase price; (2) the balance of the purchase price ($125,000.00) would be paid by way of a promissory note from Rajiv Sethi in favor of the Defendant; (3) the price for the cigarette inventory and phone card inventory were to be paid separately. In contemplation of the purchase and sale of the business, the defendant had a proposed written agreement drafted by his legal counsel for review by the plaintiff. The plaintiff requested several changes and returned the draft agreement to the defendant without he or his son signing it. Despite the lack of any written agreement, contract, lease or promissory note, the parties proceeded to enter into a landlord and tenant business relationship business arrangement described hereinafter.
The draft copy of the unsigned "Agreement" is dated May 1, 2004. Attached to this Agreement is a copy of a proposed lease for the premises and a proposed Promissory Note. The draft Agreement lists the purchasers as Rajiv Sethi and the plaintiff. The Lease identifies the plaintiff and the son as the proposed tenants and the proposed Promissory Note identifies the plaintiff and his son as the borrowers.
Among the changes proposed by the plaintiff was that the purchaser was to be listed as Oxford Foods, LLC. According to Trial Ex. 3, proposed Articles of Organization for a Domestic Limited Liability Company, the sole member of Oxford Foods, LLC was to be Rajiv Sethi. There was no evidence that this limited liability company was ever formed or was registered with the Connecticut Secretary of State.
On or about April 1, 2004, the Defendant, at the Plaintiff's request, permitted the Plaintiff and Rajiv Sethi entry into the Deli to learn and observe its operations. On or before May 14, 2004, the plaintiff's son paid the defendant the sum of Seventy Thousand Dollars ($70,000) towards the purchase price for the business, utilizing funds of the plaintiff's son, Rajiv Sethi. Thereafter, on approximately May 15, 2004, in contemplation of finalizing the sale of the business in November 2004, the Defendant, as landlord, turned over the exclusive operations of the Deli to the plaintiff, as tenant. The parties had an understanding that Rajiv Sethi would apply for and obtain the necessary approvals to act as an agent for the Connecticut Lottery, Western Union, and APS when he turned twenty-one years old in November 2004. Until that time, the owner and duly authorized agent for the accounts and agreements Connecticut Lottery, Western Union, and APS. The defendant leased the deli business to the plaintiff and his son on a month-to-month basis, as evidenced by the fact that the defendant commenced charging rent to the plaintiff in the amount $3,250.00 per month. The defendant relinquished control of the day to day operation of the deli business and allowed the plaintiff to hire his own employees. The defendant, as noted, retained control of the accounts and agreements with the Connecticut Lottery, Western Union, and APS, and was the sole recipient of any profits or fees gained by being a duly authorized vendor for these accounts. The defendant relied upon the plaintiff to service these accounts each day, by collecting all monies due for the accounts and subsequently depositing the collected funds in various bank accounts maintained for these vendors. The daily amounts to be deposited in each account by the plaintiff was determined by a daily print out report of activity for each vendor's machine or terminal. Once a deposit was made, the plaintiff would receive a deposit receipt from each bank for each account. The plaintiff could only deposit into the accounts. He could not withdraw any funds.
Monthly rent was paid by the plaintiff to the defendant with the exceptions of the months of August 2004 and September 2004. The defendant admitted to this and stated that he was not pursuing the rent for August and September for the moment.
At the time the Defendant relinquished control of the operations of the Deli to the plaintiff, on May 15, 2004, the vendor bank accounts carried a balance $42,676.39. The parties agree that the cigarette inventory was valued at $6,300.00. The plaintiff paid the defendant $3,300.00 for the cigarette inventory, with the balance of $3,000.00 to be paid at an uncertain date in the future. After May 15, 2004, the Plaintiff, as tenant, ran all day to day operations at the Deli and paid himself from the gross receipts generated by the deli business. He was also primarily responsible for accounting for its activities of the Connecticut Lottery, Western Union, and APS accounts, which remained in the name of the Defendant. While the plaintiff received no profits, fees or commissions from these accounts, the Plaintiff was making the daily deposits into the appropriate accounts from these transactions. Plaintiff was aware of the practices and procedures involved with the Connecticut Lottery, Western Union, and APS. The Defendant would regularly confirm the accuracy of these activities by reviewing the daily register tapes and deposits into the accounts. The defendant never complained to the plaintiff regarding the plaintiff's handling of these monies until mid-September 2004, and never complained of any missing monies from any source until that time.
On or about September 4, 2004, the Defendant left for Turkey on vacation. The defendant testified that all accounts were in order at that time and deposits in the various accounts had been made by the plaintiff since May 15, 2004, when the plaintiff had commenced running the day to day operations of the deli business. There had been no claims of missing deposit monies or missing cash from the defendant's safe prior to the defendant's departure for Turkey.
On or about Wednesday, September 15, 2004, the Defendant's daughter, Senoy Ulusoy, who was responsible for monitoring the daily deposits for the Connecticut Lottery, Western Union, and APS transactions for her father while he was away on vacation, notified the defendant in Turkey and alleged the Plaintiff was not making the required deposits for the daily Connecticut Lottery, Western Union, and APS transactions and that said monies for the deposits were missing. After receiving this call from his daughter, the Defendant returned from his vacation in Turkey on Friday, September 17, 2004.
On the morning of Saturday, September 18, 2004, the Defendant arrived at the deli business and questioned the Plaintiff about the allegations concerning late and/or missing deposits. The plaintiff denied any knowledge of any missing funds. The defendant then ordered the plaintiff, who was a tenant, by virtue of his month-to-month tenancy, to turn over the keys to the business. The defendant informed the plaintiff that the defendant was taking over the operation of the deli business immediately. The plaintiff would be allowed to remain on the premises only for the remainder of the afternoon until 5 p.m. Following his discussion with the Plaintiff, the Defendant claimed he reconciled all of the Deli's accounts for the time period in which the Plaintiff had exclusive control of the operations of the Deli. However, despite requests from the plaintiff, the defendant has never shared the methods or the results of this accounting with the plaintiff and has not produced any records for the vast majority of the time that the plaintiff was a tenant. The defendant threatened to have the plaintiff arrested.
The defendant has alleged he discovered that approximately $128,000.00 was missing and unaccounted for. This sum includes cash monies missing from his safe at the deli premises. However, the defendant has failed to provide credible evidence as to money missing from his safe. The defendant has not provided specific documentation or information regarding the cash funds allegedly kept in his safe, including the sources of this money and the dates or amounts of money supposedly deposited in the safe. The defendant has not provided any documentation as to the amount of money in the safe at the time he departed on his vacation to Turkey. Nonetheless, the defendant claims that as a result of the alleged $128,000.00 shortage resulting from the Plaintiff's actions, on or about September 20, 2004, the Defendant used the $70,000.00 he was holding for the purchase price of the Deli, along with other funds, to make deposits for the daily Connecticut Lottery, Western Union, and APS transactions. The defendant claims these deposits were to correct shortages in the accounts allegedly created by the Plaintiff. Thereafter, the Defendant continued to run the Deli business to the exclusion of the plaintiff. The plaintiff commenced the instant action by way of a complaint dated October 4, 2004, bearing a return date of October 26, 2004, within two weeks of his eviction on September 18, 2004.
The defendant has since sold 49% of his share in the deli business for $65,000.
III Breach of Contract
There is no evidence to support a finding that there was a binding agreement between the Plaintiff and the Defendant for the purchase and sale of the Deli. "The rules governing contract formation are well-settled. To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding of the parties . . . If the minds of the parties have not truly been met, no enforceable contract exists . . . An agreement must be definite and certain as to its terms and requirements . . . So long as any essential matters are left open for further consideration the contract is not complete." Geary v. Wentworth Labs., Inc., 60 Conn.App. 622 (2000). "A basic tenet of contract law is that there must be a meeting of the minds for a contract to be found." Zahornacley v. Edward Chevrolet, Inc., 37 Conn.Sup. 751 (1981). "The burden is upon the plaintiff to prove a meeting of the minds to establish its version of the claimed contract." Bridgeport Pipe Finishing, Co. v. DeMatteo Construction Company, 159 Conn. 242 (1970).
Based on the evidence and testimony presented at trial it is clear that an agreement to purchase the Deli did not exist between the Plaintiff and the Defendant. The terms and conditions of the agreement to purchase the Deli were never finalized. The Plaintiff testified that he reviewed a preliminary draft of a purchase and sale agreement, lease and promissory note and gave it back to the Defendant because the terms were not acceptable. In addition, the parties to the agreement were never ultimately determined. First the Plaintiff was going to purchase the Deli. Then the Plaintiff's son, Rajiv Sethi, was going to purchase the Deli. Then it was determined the Plaintiff's other son, Deepak Sethi, would purchase the deli when he turned 21, so he could apply for the agency agreements with the Connecticut Lottery, Western Union, and APS and sign the promissory note. The Plaintiff testified that he was unable to become an agent for the Connecticut Lottery, Western Union, and APS. The Plaintiff testified that he was not going to be the owner of the Deli, but that his son was going to be the owner. In fact, Rajiv Sethi testified that he completed and submitted a Western Union North America Agency Agreement Application in which he listed himself as 100% owner of the Deli (Defendant's Exhibit DD). The Plaintiff testified that the money used to pay the Defendant came from his son, Rajiv Sethi, and Rajiv Sethi testified that it was his money. The Plaintiff testified that he never signed any purchase and sale agreement, lease or promissory note. The Plaintiff himself gave nothing of value to the Defendant toward the purchase of the deli, although he did partially pay for a portion of the cigarette inventory.
At all times relevant to the transaction, the Defendant testified that he understood the transaction to be between himself and Rajiv Sethi and never between himself and the Plaintiff. It was only after learning that Rajiv Sethi also could not qualify as an agent for the Connecticut Lottery, Western Union, and APS that the Defendant acknowledged the possibility of Deepak Sethi purchasing the Deli. This, however, was conditional and never final. Both Rajiv Sethi and Deepak Sethi testified that they never signed any purchase and sale agreement, lease or promissory note. Based on the foregoing it is clear that an agreement to purchase the Deli business outright did not exist between the Plaintiff and the Defendant. The plaintiff instead became a tenant with a right to run the deli business. From the testimony given, it is clear that there was not a mutual understanding of the definite terms of any purchase and sale agreement. At all times the Defendant believed that Rajiv Sethi or perhaps Deepak Sethi, was going to purchase the Deli, but not the Plaintiff. The Plaintiff testified at trial that he was going to be the owner, but he testified at his Deposition that he could not be the owner, and that his son was going to be the owner. Based on his own testimony it is clear that the Plaintiff himself did not have an understanding of the agreement.
The offer and acceptance elements of a contract do not exist in this case because neither can be found based on the understanding of the parties. Again, the testimony of the parties and of Rajiv Sethi and Deepak Sethi demonstrates that there was no mutual understanding as to who was to be the purchaser of the Deli. While the testimony presented demonstrates that the Defendant was willing to sell the Deli, it does not clearly demonstrate who was to buy the Deli or that someone had agreed to purchase it on mutually agreeable terms. Clearly, in this case there was no meeting of the minds between the Plaintiff and the Defendant because the Plaintiff was never a party to any agreement. Without a meeting of the funds, no enforceable contract exists between the Plaintiff and the Defendant. Accordingly, the court finds in favor of the defendant as to the plaintiff's claims of a breach of contract for the purchase and sale of the deli business.
IV Wrongful Eviction A. Standing
The defendant argues that there is undisputed evidence establishes that the Plaintiff is not the proper party to bring this action and that the Plaintiff lacks standing to maintain the claims asserted in the complaint. The court disagrees.
"Where a plaintiff lacks standing to sue, the court is without subject matter jurisdiction." (Internal quotation marks omitted.) Dime Savings Bank of Wallingford v. Arpaia, 55 Conn.App. 180, 183, 738 A.2d 715 (1999). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action; or a legal or equitable right, title or interest in the subject matter of the controversy." (Citations omitted.) (Internal quotation marks omitted.) Cottman Transmission v. Hocap Corp., 71 Conn.App. 632, 637-38 (2002) 803 A.2d 402. "[S]tanding does not hinge on whether the plaintiff will ultimately be entitled to obtain relief on the merits of an action, but on whether he is entitled to seek the relief." (Internal quotation marks omitted.) Id.
"Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved . . . The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action] . . . Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Citation omitted; internal quotation marks omitted.) Id., quoting, Avalon Bay Communities, Inc. v. Orange, 256 Conn. 557, 568, 775 A.2d 284 (2001).
While the court has found there was no contract between the parties for the purchase and sale of the deli business, as discussed herein, the court finds the plaintiff has standing to pursue the remaining counts of his complaint. There is credible and reliable evidence that the plaintiff and the defendant had a landlord and tenant relationship for a month-to-month lease for the deli business. The remaining counts for wrongful eviction, unjust enrichment, negligent and intentional infliction of emotional distress and a violation of CUTPA can apply to the landlord and tenant relationship.
The court has found that no contract existed between the parties for the purchase and sale of the deli. The court also has found that the $70,000 deposit funds belonged to the plaintiff's son and not the plaintiff. Nonetheless, the plaintiff did have a landlord tenant relationship with the defendant regarding the deli. The plaintiff alleges that as a result of a wrongful eviction by the defendant, the defendant has been unjustly enriched by the seizing of the deli, its inventory and other assets allegedly belonging to the plaintiff. It is these claims, rather than the issues surrounding the $70,000 deposit, which confer standing on the plaintiff to pursue an unjust enrichment claim.
The defendant admits that he began charging the plaintiff a monthly rent in May 2004 to allow the plaintiff to solely run the deli business beginning in May 2004. Thereafter, the plaintiff paid the defendant rent for the months of May, June and July 2004. When the plaintiff failed to pay rent for August and September 2004, the defendant took no action to regain possession of the premises and did terminate the lease or begin summary process proceedings. The defendant testified that despite the unpaid rent for August and September, he had no intent to evict the plaintiff. Clearly, the parties had a landlord and tenant relationship on September 18, 2004.
The plaintiff now claims that his interest in the deli had been harmed by a wrongful and illegal eviction by the defendant. The plaintiff is an aggrieved party who has standing to maintain counts for wrongful eviction, unjust enrichment, negligent and intentional infliction of emotional distress and a violation of CUTPA.
B. Illegal Entry and Detainer
The complaint further alleges that the plaintiff began his tenancy at the deli property on May 15, 2004, and was in actual possession of the deli rental unit until the defendant carried out a "self-help" eviction on September 18, 2006 and essentially locked the plaintiff out of the property by seizing the plaintiff's keys to the deli. The defendant is alleged to also have seized the plaintiff's store inventory. This alleged action was without benefit of the institution of summary process proceedings by way of a notice to quit or court proceedings despite the plaintiff's month-to-month lease.
General Statutes § 47a-43, provides in relevant part:
When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand or (3) enters into any land, tenement or dwelling unfit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace n order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.
The plaintiff's complaint does not specifically state that the action is brought pursuant to § 47a-43. The defendant, however, has not objected and has addressed the merits of the plaintiff's claim for wrongful eviction and an illegal entry and detainer, at trial, and in his post-trial memorandum of law. The court, therefore, proceeds with its analysis of these claims pursuant to § 47a-43. Additionally, the defendant has not pleaded a special defense of General Statutes § 52-589 which requires that an action for forcible entry and detainer be brought within six months of the entry complained of.
The remedy of forcible entry and detainer originated in England in 1382. 3 Blackstone Commentaries, 179. These remedies were introduced in Connecticut in 1722. Conn. Gen. Stat. (1808), p. 347 n. 1. "By enactments dating back to colonial times, our legislature has proscribed the use of self-help remedies in obtaining possession of demised premises. A colonial enactment from 1722, for example, established fines and a cause of action to remedy any Forceable Entry made into any lands, tenements or other Possessions . . . or of any wrongful detainer of any lands, tenements, or other possessions, with force and strong hand. These legislative enactments were designed to protect . . . peaceable possession . . . from disturbance by any but lawful and orderly means, and to protect the peace of the neighborhood." (Internal citations omitted) (internal quotation marks omitted). Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257-58, 550 A.2d 1061 (1988); see. 6 Colonial Records of Connecticut 1717-25, p. 343.
"The tenant's remedy for a lock-out, an illegal or self-help eviction by the landlord or others, is the remedy of entry and detainer." (Citations omitted.) Karatonis v. East Hartford, 71 Conn.App. 859, 862, 804 A.2d 861 (2002); see R. Burke, Connecticut Real Property Law (1994) § 47, p. 126. "The process of forcible entry and detainer, provided by our statutes, is in its nature an action by which one in the possession and enjoyment of any land, tenement or dwelling unit and who has been forcibly deprived of it, may be restored to the possession and enjoyment of that property. This process is for the purpose of restoring one to a possession which has been kept from him by force . . . For a plaintiff to prevail, it must be shown that he was in actual possession at the time of the defendant's entry." (Citation omitted.) Id. The plaintiff was in actual possession of the deli business and had a right to occupy the deli business by virtue of his month-to-month tenancy.
The Plaintiff and the Defendant both testified no written lease was ever executed by the parties or either of the Plaintiff's sons and the Defendant. The Plaintiff and the Defendant both testified that the Defendant did receive $3,250.00 in rent on or about the fifteenth of each month for the months of May 2004, June 2004, and July 2004, but that the Defendant did not receive rent for the months of August 2004 and September 2004. Based on this testimony, a month-to-month tenancy was established. General Statutes § 47a-3b provides in pertinent part that "[u]nless the rental agreement fixes a definite term, the tenancy is month-to-month . . ."
The credible evidence reveals that on September 18, 2004, the plaintiff was in lawful and actual possession of the deli in accordance with his month-to-month tenancy. Even if the rent was two months in arrears, the arrangement between the parties would be a tenancy at sufferance. On that date, the defendant entered the deli and took possession of the deli without the benefit of summary process proceedings in accordance with General Statutes §§ 47a-23 and 47a-23a.
If there had been a written lease, the tenancy would have been a tenancy at will for a month-to-month Welk v. Bidwell, 136 Conn. 603, 608, (1950); see also, Bushnell Plaza Development Corp. v. Fazzano, 38 Conn.Sup. 683, 685 (1983).
Sec. 47a-23. (Formerly Sec. 52-532) regarding a Notice to Quit reads in relevant part:
(a) When the owner or lessor, . . . desires to obtain possession or occupancy of any land or building, and (1) when a rental agreement or lease of such property, whether in writing or by parol, terminates for any of the following reasons: (A) By lapse of time; (B) by reason of any expressed stipulation therein; (C) violation of the rental agreement or lease or of any rules or regulations adopted in accordance with section 47a-9 or 21-70; . . . (E) nonpayment of rent when due for commercial property; . . . or (3) when one originally had the right or privilege to occupy such premises but such right or privilege has terminated; . . . such owner or lessor, or such owner's or lessor's legal representative, or such owner's or lessor's attorney-at-law, or in-fact, shall give notice to each lessee or occupant to quit possession or occupancy of such land, building, apartment or dwelling unit, at least three days before the termination of the rental agreement or lease, if any, or before the time specified in the notice for the lessee or occupant to quit possession or occupancy.
Sec. 47a-23a. reads in relevant part:
(a) If, at the expiration of the three days prescribed in section 47a-23, the lessee or occupant neglects or refuses to quit possession or occupancy of the premises, any commissioner of the Superior Court may issue a writ, summons and complaint which shall be in the form and nature of an ordinary writ, summons and complaint in a civil process, but which shall set forth facts justifying a judgment for immediate possession or occupancy of the premises and make a claim for possession or occupancy of the premises. If the claim is for the possession or occupancy of nonresidential property, the writ, summons and complaint may also make a claim for the forfeiture to the plaintiff of the possessions and personal effects of the defendant in accordance with section 47a-42a . . .
While the defendant made a peaceful entry into the deli premises, his demand for the keys and his demand that the plaintiff leave constitutes force and a strong hand. On September 20, 2004, the defendant raised claims of missing monies and threatened to have the plaintiff arrested adding to the court's conviction that the defendant utilized force and a strong hand. The defendant retained the inventory of the deli, some of which was paid for and belonged to the plaintiff. The plaintiff would have been required to subject himself to a breach of the peace to physically maintain and/or regain possession of the premises on September 18, 2004 and in the several days following September 18, 2004. The defendant's special defenses that the plaintiff voluntarily abandoned the premises and has never made a demand for its return fails. The plaintiff commenced the subject legal action by way of his complaint dated October 4, 2004, less than two weeks after the wrongful eviction. Accordingly, the court finds for the plaintiff on his claim that the defendant wrongfully evicted him by way of an illegal entry and detainer.
V Unjust Enrichment
"Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract . . . Recovery is proper if the defendant was benefitted, the defendant did not pay for the benefit and the failure of payment operated to the detriment of the plaintiff . . . Although restitution for unjust enrichment often applies to situations in which there is no written contract, it can also apply to situations in which there is a written contract and the party seeking restitution has breached the contract." (Citations omitted; internal quotation marks omitted.) The Final Cut, LLC v. Sharkey, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 085007365 (May 5, 2009, Adams, J.).
"Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract . . . A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment . . ." (Citations omitted; internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).
There is little doubt that as a result of the illegal entry and detainer, the defendant unlawfully seized property of the plaintiff that was contained within the deli. As a result the defendant has been unjustly enriched, as he never compensated the plaintiff for this loss. The defendant refused to conduct an inventory with the plaintiff and refused to review the books and records of the deli with the plaintiff. The plaintiff made no immediate effort to regain possession of the store citing a fear of the defendant who he described as short-tempered and the defendant's threat that he would have the plaintiff arrested.
However, the plaintiff presented no evidence as to the value of the seized property. The plaintiff argues that the $70,000 deposit, paid by his son to the defendant as part of the proposed purchase and sale of the deli unjustly enriched the defendant. Though there may be merit to that argument, the plaintiff, as discussed earlier herein, was not a party to any contract with the defendant. As admitted by the plaintiff, the $70,000 was not his money. Thus, the court does not consider the retention and expenditure of the $70,000 by the defendant when addressing the merits of the plaintiff's claim for unjust enrichment. The court finds in favor of the plaintiff regarding his claim of unjust enrichment. An award of nominal damages on this count will be discussed later in this decision.
VI Negligent Infliction of Emotional Distress
A cause of action for negligent infliction of emotional distress requires the plaintiff to prove that: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). "In order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that the distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Id., 446.
The plaintiff testified that he was stunned, shocked and sickened by the defendant's actions in wrongfully evicting him. However, the plaintiff sought no treatment for physical or emotional distress that can be related to this incident. The plaintiff admitted he sought no medical treatment for depression, anxiety or other physical ailments in the months following this incident. In January 2005, he saw his doctor for treatment regarding a pre-existing heart condition, but the plaintiff presented no evidence that any aggravation of this condition was caused by this incident within a reasonable degree of medical certainty. The plaintiff has met the burden of showing that the defendant's conduct was unreasonable and created a risk of emotional distress, and that the plaintiff's distress at losing his business was forseeable. However, the plaintiff has failed to prove that any emotional distress was severe enough that it might result in illness or bodily harm, and the defendant's conduct was the cause of any emotional distress. Accordingly, the court finds for the defendant as to this count.
VII Intentional Infliction of Emotional Distress
To establish a claim of intentional infliction of emotional distress, the plaintiff must plead and prove the following four elements: "(1) that the [defendant] intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." Tracy v. New Milford Public Schools, 101 Conn.App. 560, 568, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). "Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause; and does cause, mental distress of a very serious kind . . . [I]t is the intent to cause injury that is the gravamen of the tort." (Internal quotation marks omitted.) Id., 569. "[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gate keeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847, 888 A.2d 104 (2006).
For reasons discussed in the previous section regarding negligent infliction of emotional distress, the court finds that the plaintiff has failed to prove that: "(1) the conduct was extreme and outrageous; (2) that the defendant's conduct was the cause of the plaintiff's distress; and (3) that the emotional distress sustained by the plaintiff was severe."
Regarding allegations of extreme and outrageous behavior, there is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to prevail. The court looks to the specific facts and circumstances of each case in making its decision. Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. Bell v. Board of Education, 55 Conn.App. 400, 410, 739 A.2d 321 (1999). "Liability has been found only where the conduct has been so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim "Outrageous!" . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form a basis for an action based upon intentional infliction of emotional distress." Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). "Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." DeLaurentis v. New Haven, 220 Conn. 225, 267, 597 A.2d 807 (1991).
In considering whether such conduct is extreme or outrageous, the court notes that there is a strong public policy expressed by statute in our state, dating to colonial times, prohibiting illegal entry and detainer. It is also noted that this public policy is expressed by the provisions of General Statutes § 47a-46, which allows an aggrieved party to recover double damages if such party prevails in an action brought pursuant to § 47a-43. The allegations of the plaintiff's complaint regarding entry and detainer are also public policy considerations addressed in CUTPA.
In the context of the confusing and convoluted business dealings between these parties, the defendant's act of walking into the deli and demanding the keys and evicting the plaintiff at the end of the day, reflects a loose unstructured business deal gone sour, more than rising to the level of extreme and outrageous behavior. This is not a situation involving a residential tenancy, where the illegal entry and detainer, places one in the streets without the benefit of their furnishings and personal property. The court finds for the defendant as to the allegations of intentional infliction of emotional distress.
VIII CUTPA
"To state a claim under CUTPA, the actions of the defendant need to have been performed in the conduct in the form of trade or commerce" Muniz v. Kravis, 59 Conn.App. 704 (2000). "General Statutes § 42-110a(4) defines `trade' or `commerce' to include `the sale, or rent or lease . . . of any . . . property . . . real, personal or mixed." Id., at 712. There was a violation of the Connecticut Unfair Trade Practices Act by the defendant when the undisputed evidence clearly shows that the Defendant was engaged in trade or commerce as it relates to his landlord and tenant relationship.
As has been previously discussed herein, the parties had a business relationship. The deli was not the only business run by the defendant, as he maintained a restaurant and a gas station business, as well. The defendant was engaged in trade or commerce as it relates to his relationship with the Plaintiff. An oral lease existed between the parties at the time the plaintiff was wrongfully evicted by the defendant. The illegal entry and detainer by the defendant violated General Statutes § 47a-43 and offends the public policy of our state. It also caused injury to a fellow businessman, the plaintiff.
Connecticut applies the so-called cigarette rule, which sets out the standard for a CUTPA violation: "(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]." Williams Ford, Inc. v. Harford Courant Co., 232 Conn. 559, 591-92, 657 A.2d 212 (1995). "All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 106, 612 A.2d 1130 (1992). "Whether a practice is unfair and thus violates CUTPA is an issue of fact." DeMotes v. Leonard Schwartz Nissan, Inc., 22 Conn.App. 464, 466, 578 A.2d 144 (1990); Tarka v. Filipovic, 45 Conn.App. 46, 55-56, 694 A.2d 824 (1997).
The court has already determined that the plaintiff has prevailed in his action for entry and detainer pursuant to § 47a-43. A violation of the entry and detainer statute, § 47a-43, can be the basis for a violation of CUTPA. Daddona v. Liberty Mobile Home Sales, Inc., supra, 209 Conn. 257; Freeman v. Alamo Management Co., 24 Conn.App. 124, 586 A.2d 619 (1991); rev'd on other grounds, 221 Conn. 674, 607 A.2d 370 (1992). Accordingly, the court finds for the plaintiff regarding the defendant's violation of CUTPA.
VIII Defendant's Counterclaim (Conversion and CUTPA)
As noted earlier herein, the defendant claims in the First Count that the plaintiff failed to remit payments to the utility companies; failed to accurately account for lottery ticket sales proceeds; and depleted the deli's inventory. These actions caused a deterioration of the business, thereby damaging the defendant's credit and reputation. The defendant claims he was forced to infuse additional monies of his own to reverse the damage done to the defendant and the deli business by the plaintiff.
The Second Count claims the plaintiff appropriated and coverted the receipts of the business for his own use and failed to account to the defendant for missing monies in conscious disregard of the defendant's rights. The defendant seeks actual and punitive damages.
The Third Count of the counterclaim alleges a violation of CUTPA in that the plaintiff was a person engaged in commerce as defined by CUTPA. The plaintiff's conduct is alleged to have been false, misleading, and/or deceptive, causing the defendant to suffer an ascertainable loss.
In his post-trial memorandum of law, the defendant only addresses a claim of conversion of monies by the plaintiff. The defendant has alleged a conversion of monies. "Conversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights . . . It is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Internal quotation marks omitted.) Aetna Life Casualty Co. v. Union Trust Co., 230 Conn. 779, 790-91, 646 A.2d 799 (1994). For the tort of conversion, plaintiff was required to prove the allegation by the usual civil standard, a fair preponderance of the evidence.
The defendant has requested punitive damages, as well. A review of the counterclaim reveals that the defendant has not pleaded larceny or statutory theft. Statutory theft (§ 52-564), requires a plaintiff prove the additional element of intent over and above what must be demonstrated to prove conversion. Whitaker v. Taylor, 99 Conn.App. 719, 732 (2007) (Citation omitted). Statutory theft would also require a higher standard of proof of clear and convincing evidence. Clear and convincing evidence is defined as that evidence which "introduces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." Chernick v. Johnston, 100 Conn.App. 276, 280 (2007). The remedy of punitive damages under § 52-564 is not available where the complaint has not expressly invoked that statute (See e.g., Alaimo v. Royer, 188 Conn. 36, 43 (1982).
"Statutory theft under [General Statues] § 52-564 is synonymous with larceny under General Statutes § 53a-119." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006). Section 53a-119 defines the crime of larceny as follows: "A person commits larceny when with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." General Statutes § 53a-119.
Regarding the request for punitive damages for conversion, the court is unaware of any provision of an award of punitive damages if the defendant prevails on a conversion allegation. The legislature has enacted numerous statutes permitting the award of attorney fees. When the General Assembly wants to authorize the award of attorney fees, it knows how to do it. Ames v. Comm'r of Motor Vehicles, 267 Conn. 524, 533 (2004). Absent contractual or statutory authorization, there cannot be recovery of such fees. Gionfriddo v. Avis Rent-A-Car System, Inc., 192 Conn. 280, 297 (1984). Connecticut has adopted this general rule of law — known as the American rule. See Broadnax v. New Haven, 270 Conn. 133, 178 (2004).
The court now considers the merits of the defendant's conversion claim. The defendant argues the evidence clearly shows that the plaintiff converted the money of the defendant for his own use when he did not make timely deposits, by his misappropriation of the receipts of the Deli business to the detriment of the Defendant, and that Defendant was required to use his own money, the money the Defendant was holding toward the purchase price of the Deli and money borrowed from others to cover the shortages in the Deli accounts created by the Plaintiff's conversion.
On May 15, 2004, the date the plaintiff took over operations of the Deli, the balances in the bank accounts were as follows: (i) Chase Bank Account Number 531-5005620-65 had a balance of $24,531.08 (defendant's Exhibit H); (ii) People's Bank Account Number 002-7013911 had a balance of $8,077.55 (defendant's Exhibit I); and (iii) People's Bank Account Number 005-7010201 (Connecticut Lottery account) had a balance of $10,067.76 (defendant's Exhibit J). As testified to by both the plaintiff and the Defendant, the defendant had exclusive ownership of these accounts and was the only person who could have made any withdrawals from them.
The defendant argues that if the plaintiff made the deposits as required by each vendor specific to the account, then the account balances would have been the same on September 18, 2004, the day the Defendant returned to the Deli, as they were on May 15, 2004. The defendant reasons, that the only differences in the accounts would be for any withdrawals made by the Defendant or checks written by him, because the only amounts which would need to be withdrawn would be the amounts which corresponded to the deposits for vendor specific transactions (this of course assumes that the deposits were actually being made). However, on September 18, 2004, the date the Defendant returned to the Deli, the balance in the Chase Bank Account was $9.99 (Defendant's Exhibit H) and the balance in the People's Bank Account (Connecticut Lottery Account) was $350.76 (Defendant's Exhibit J) with no withdrawals being made by the Defendant or checks written from either account.
The plaintiff had no ability to withdraw from these accounts, and the defendant makes no claim that the plaintiff made any such withdrawals. In fact, despite the defendant's claims, there is no evidence that the plaintiff did not fulfill his obligations to the defendant, as recently as the day the defendant left for vacation in Turkey on September 4, 2004. Prior to his return to Connecticut on September 17, 2004, the defendant was fully satisfied with his business arrangement with the plaintiff regarding the subject accounts. This is evidenced by the defendant's testimony that he was not going to terminate the month-to-month lease, despite the plaintiff being several months in arrears, and by the fact that the defendant was still hopeful of selling the deli business to the plaintiff or the plaintiff's son.
Regarding the time period from September 4, 2004 to September 20, 2004, the defendant resumed operation of the deli on September 18, 2004. A review of the evidence narrows the conflict further to the dates of September 14, September 15, September 16 and September 17, 2004. The defendant claims the plaintiff never made the subject deposits for the vendors, as required. The defendant claims that if the Plaintiff had taken the money received and deposited it into the appropriate accounts there would be no insufficient funds notifications and the account balances would have remained the same. The defendant claims that as a result of a $128,000.00 shortage allegedly resulting from the plaintiff's actions, the defendant used the $70,000.00 he was holding for the purchase price of the Deli, his own personal funds, and money borrowed from friends and relatives (collectively, the "Defendant's Money"), made the appropriate deposits for the daily Connecticut Lottery, Western Union, and APS transactions to correct the shortages in the accounts created by the Plaintiff for September 16, 2004, September 17, 2004, and September 18, 2004 (Defendant's Exhibits I, K though AA and CC).
Deposit of any receipts for September 18, 2004, would have been the defendant's responsibility, as earlier that day, he evicted the plaintiff from the deli.
Defendant's Exhibit L, the September 16, 2004 Western Union Money Transfer Report, shows transactions for that day in the amount of $5,254.66. The Plaintiff testified that he did not make the required deposit for these transactions. The plaintiff also testified that he did not know what happened to the money from these transactions. The defendant testified he used a portion of the defendant's money to make the corresponding deposit for these transactions. Such deposit is evidenced by defendant's Exhibit K which shows that a deposit of $5,254.66 dated September 16, 2004 was made into the Chase Bank Account Number 531-5005620-65 on September 20, 2004.
Defendant's Exhibit N, the September 17, 2004 Western Union Money Transfer Report, shows transactions for that day in the amount of $3,113.77. The plaintiff testified that he did not make the required deposit for these transactions. The plaintiff also testified that he did not know what happened to the money from these transactions. The defendant testified he used a portion of the defendant's money to make the corresponding deposit for these transactions. Such deposit is evidenced by defendant's Exhibit M which shows that a deposit of $3,113.77 dated September 17, 2004 was made into the Chase Bank Account Number 531-5005620-65 on September 20, 2004.
Defendant's Exhibit Q, the Western Union Money Order Closeout Reports for September 16, 2004, and September 17, 2904 shows transactions for those days. However, the amount which needed to be deposited for each day is the total of the sales plus .19 cents for every transaction. The plaintiff testified that he did not make the required deposits for these transactions. The plaintiff also testified that he did not know what happened to the money from these transactions. The defendant testified he used a portion of the defendant's money to make deposits in certain amounts which when added to the money already in the People's Bank Account Number 002-7013911 would provide enough funds to cover these transactions. Such deposits ate evidenced by defendant's Exhibit I which shows deposits in the amounts of $1,548.41, and $1,650.00 on September 20, 2004.
By way of illustration the total number of sales on September 16, 2004 totaled $3,894.49 and there were 28 transactions (sales), so the amount which needed to be deposited for September 16, 2004 was $3,899.81 ($3,894.49 + $5.32 [.19 x 28]).
Defendant's Exhibit R, the APS Quick Pay Transaction Receipt for September 16, 2004, shows transactions for that day in the amount of $4,661.99. The plaintiff testified that he did not make the required deposit for these transactions. The plaintiff also testified that he did not know what happened to the money from these transactions. The defendant testified he used a portion of the defendant money to make the corresponding deposit for these transactions. Such deposit is evidenced by defendant's Exhibit S which shows that a deposit of $4,661.99 dated September 16, 2004 was made into the Fleet Bank Account Number 9361492937 on September 20, 2004.
Defendant's Exhibit T, the APS Quick Pay Transaction Receipt for September 17, 2004, shows transactions for that day in the amount of $5,587.39. The plaintiff testified that he did not make the required deposit for these transactions. The plaintiff also testified that he did not know what happened to the money from these transactions. The defendant testified he used a portion of the defendant's money to make the corresponding deposit for these transactions. Such deposit is evidenced by defendant's Exhibit U which shows that a deposit of $5,587.39 dated September 17, 2004 was made into the Fleet Bank Account Number 9361492937 on September 20, 2004.
Defendant's Exhibit X, the APS Transaction Receipt for September 17, 2004, shows transactions for that day in the amount of $30,252.21 of which $22,471.01 was received as cash. The plaintiff testified that he did not make the required deposit for these transactions. The plaintiff also testified that he did not know what happened to the cash portion of these transactions. The defendant testified he used a portion of the defendant's money to make the corresponding deposit for these transactions, such deposit is evidenced by defendant's Exhibit Y which shows a total deposit of $30,252.21, of which $22,471.01 was cash, dated September 17, 2004 made into the Fleet Bank Account Number 9361492937 on September 20, 2004.
Lastly, defendant's Exhibit CC, a copy of People's Bank Account Number 005-7010201 Lottery Account Deposit Slip dated September 21, 2004 in the amount of $10,600.00, shows the amount of money deposited by the defendant to cover the Connecticut Lottery transactions for the previous seven days of which the plaintiff was responsible for the handling of these monies for three days of this time period. The defendant testified that he would know how much to deposit by reviewing the transaction receipt generated for the previous seven days transactions. The plaintiff testified that he did not make the required deposit for the previous seven days transactions. The Plaintiff also testified that he did not know what happened to the money for these transactions. The defendant testified he used a portion of his own money to make the $10,600.00 deposit.
The defendant's claims suffer from an alarming lack of documentation, which hurts the credibility of his claims. The plaintiff requested, through discovery, all records, bank statements and daily receipt printouts for the respective vendors and the corresponding bank accounts. The defendant provided scant documentation to enable the plaintiff and the court to undertake an analysis of the defendant's claims. The plaintiff testified that the daily activity printouts for each vendor machine were kept at the store, yet the defendant has been unable to produce them especially for the dates of September 4, 2004 until September 17, 2004, the last day the plaintiff ran the deli business. The defendant also testified that all accounts appeared in order when he left for Turkey on September 4, 2004.
In response to Interrogatories and Production Requests the defendant identified only himself as the person in possession of all business records when asked to identify all persons who had possession of the books and records (including bank deposits, payroll; lottery, utility payment and tax records), for the business in 2002, 2003 and 2004 and who currently has possession thereof.
The defendant testified that he only kept the previous three months receipts and then would destroy them.
Regarding the allegations of missing money from the safe, the plaintiff was not the only person who had access to the safe. The defendant testified that when he returned from Turkey there was $18,965 in the safe. There had been testimony that at anytime during the period from May 15, 2004 to September 18, 2004, the safe could contain $50,000 in cash or more. However, the defendant never testified how much money was in the safe when he left for vacation. The court also cannot determine if the defendant's testimony that the $50,000 or more in cash that could be in the safe on any given day, were funds of the defendant or receipts collected from vendor transactions. The defendant could not document or testify to the sources of such monies or from where or whom they were received. The defendant testified that he had a round number that the estimated amount of missing money was $80,000 to $100,000, but has not satisfactorily explained though business records, bank documentation, additional documentation or testimony, how he has arrived at the sum of the present claim in the amount of $128,000. Regarding the missing vendor deposits for September 15, 2004, though September 17, 2004, the credibility of both parties is questionable. The court has listened to the explanations of both parties, as well as, the defendant's daughter and finds little of it credible. The plaintiff adamantly denies any knowledge of their disappearance, and the defendant provides only his word that the money was missing and he had to borrow and use the $70,000 deposit to make up the alleged shortfall. There is no documentation regarding any funds borrowed or withdrawals of the defendant's own funds to make the deposits. Given the conflicting testimony and the lack of any documentation, the court relies on the fact that the defendant has the burden of proving the plaintiff converted his monies. Due to the lack of documentation presented by the defendant, it is difficult for the court to conclude that the defendant has satisfied his burden by a fair preponderance of the evidence, much less the burden of clear and convincing evidence which would be necessary for a claim of statutory theft.
In determining this, the court takes into account that the plaintiff, upon his eviction by the defendant, applied for Social Security Disability payments and food stamps shortly thereafter. This does not appear to be the actions of a person who allegedly converted $128,000 in cash of the defendant's money during one to two weeks in September 2004. The court also takes into account that the defendant took the $70,000 deposit for the sale of the deli to the plaintiff's son and applied it to satisfy his financial obligations to the vendors. The defendant has strongly argued that the $70,000 was not the money of the plaintiff, but rather, was the money of the plaintiff's son. Yet, the defendant had no hesitation in appropriating the plaintiff son's money to satisfy the defendant's purported claims against the plaintiff. Accordingly, the court finds for the plaintiff as to claims of conversion and/misappropriation of the defendant's funds.
Regarding the defendant's claims that the plaintiff depleted the inventory and caused harm to the deli business, the defendant has offered no proof. "It is axiomatic that the burden of proving damages is on the party claiming them . . . When damages are claimed, they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Citations omitted; internal quotation marks omitted.) Rossman v. Morasco, 115 Conn.App. 234, 249 (2009); Stamford Landing Condominium Assn., Inc. v. Lerman, 109 Conn.App. 261, 272, 951 A.2d 642, cert. denied, 289 Conn. 938, 958 A.2d 1246 (2008).
There was no testimony that the vendors involved in this case cancelled or terminated their business arrangement with the defendant for the defendant to be an authorized sales agent. There is no evidence that the Connecticut Lottery terminated the defendant as an authorized agent. There are no records or documents relating to any such inventory loss. The defendant had refused to meet with the plaintiff to conduct such an inventory within days after the eviction of the plaintiff. Lastly there are no profit loss statements or tax returns from the defendant regarding the deli business from years prior to 2004; the year 2004; or subsequent years.
The plaintiff has offered his tax return for 2004, including a profit and loss statement for the deli business for the five months he ran the business.
As to the defendant's CUTPA claim, that claim must also fail. By failing to satisfy his burden of proof on the preceding counts the defendant has not proved any ascertainable loss from his claims of conversion, misappropriation of funds or negligence of the plaintiff. "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). Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 354, 525 A.2d 57 (1987) "A party seeking to recover damages under CUTPA must meet two threshold requirements. First, [the party] must establish that the conduct at issue constitutes an unfair or deceptive trade practice . . ." Second, [the party] must [allege facts] providing the court with a basis for a reasonable estimate of the damages suffered . . . Richey v. Stafford, 110 Conn.App. 209, 221, 954 A.2d 889 (2008). The defendant has been unable to prove a violation of CUTPA by the plaintiff and has not provided the court with a basis for a reasonable estimate of his claimed damages.
IX Plaintiff's Damages
The burden of proving damages rests on the party claiming them. Gargano v. Heyman, 203 Conn. 616, 620 (1987). Mathematical exactitude is not required where precise proof is not feasible. Hassane v. Lawrence, 31 Conn.App. 723, 727 (1993)."Nominal damages are recoverable where there is a breach of duty or the invasion of a legal right and no actual damages result." Palmieri v. Cirino, 90 Conn.App. 841, 852, 880 A.2d 172 (2005).
By statute (47a-46), a plaintiff who has proved a case under the wrongful entry and detainer statute (47a-43) may be entitled to recover double damages. Before a trial court may double an award of damages pursuant to General Statutes 47a-46, the underlying violation of General Statutes 47a-43 must have been established by clear and convincing evidence, and that, if the evidence satisfies only the fair preponderance standard, damages cannot be doubled. Freeman v. Alamo Management Co., 24 Conn. App, 124, 132, 586 A.2d 619 (1991).
General Statutes 47a-46 provides "WHEN DOUBLE DAMAGES ALLOWABLE. The party aggrieved may recover in a civil action double damages and his costs against the defendant, if it is found on the trial of a complaint brought under section 47a-43 that he entered into the land, tenement or dwelling unit by force or after entry held the same by force or otherwise injured the party aggrieved in the manner described in section 47a-43."
A plaintiff who has proven a claim under CUTPA may be entitled to attorneys fees pursuant to § 42-110a et seq., as well as taxable costs. Id. "The public policy underlying CUTPA is to encourage litigants to act as private attorneys general and to engage in bringing actions that have as their basis unfair or deceptive trade practices. In order to encourage attorneys to accept and litigate CUTPA cases, the legislature has provided for the award of attorneys fees and costs. Once liability has been established under CUTPA, attorneys fees and costs may be awarded at the discretion of the court." (Internal citations omitted.) Id., at 133.
General Statutes 42-110g provides:
(a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.
(d) In any action brought by a person under this section, the court may award to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery . . .
The plaintiff's claims for damages suffer from deficiencies similar to the defendant's. There is a lack of documentation and testimony as to how and what extent the plaintiff was damaged. The plaintiff emphasized the return of the $70,000 deposit, but the court has found that the $70,000 did not belong to the plaintiff, and there was no contract between the plaintiff and the defendant for the purchase and sale of the deli business. The plaintiff claims approximately $6,000 for the cigarette inventory left at the deli when the defendant evicted him, but there is no documentation or records regarding this claim or any claim as to the value of any inventory therein. The plaintiff claims that he is owed $8,537.00 in credit card charges that the defendant's restaurant processed through the plaintiff's credit card machine between May 15, 2004 and September 17, 2004, but again, there is no documentation.
While the lack of documentation presents difficulty for the court in calculating damages, it is not a fatal flaw; especially in light of the fact that the defendant wrongfully entered the deli premises and seized control and possession of the premises with no advance warning to the plaintiff. The defendant also refused to conduct an inventory with the plaintiff within days of the illegal entry and detainer. The court can award nominal damages for the inventory and belongings that were seized from the plaintiff from inside the deli. While exact figures are not available, the court can reasonably infer that the seized inventory and cigarettes had some monetary value. The court hereby awards the plaintiff the sum of $1,000 on the count alleging unjust enrichment.
See the value of the cigarette inventory that was present when the plaintiff assumed control of the business on May 15, 2004.
Regarding the illegal entry and detainer pursuant to § 47a-43, the court finds the plaintiff has proven this count by clear and convincing evidence, thus, allowing a doubling of damages pursuant to § 47a-46. A review of the 2004 Internal Revenue Service Tax Return filed by the plaintiff and entered in evidence as Exhibit 5, reveals a net profit from the deli business of $14,725. The plaintiff ran this business for five months in 2004. Therefore, the average profit was $2,945.00 per month. The plaintiff was a month-to-month tenant who was two months in arrears on his monthly rental payments. Accordingly, the court awards the plaintiff the sum of $5,890, representing one month's profit, doubled pursuant to § 47a-46.
Regarding the violation of CUTPA, the court awards the sum of $1,000 as punitive damages along with the plaintiff's taxable costs. The court also awards the plaintiff a reasonable attorneys fee pursuant to § 42-110g(b) to be determined by the court following an evidentiary hearing. The total award to the plaintiff to date, is $7,890 exclusive of the court's determination of a reasonable attorneys fee.
THE COURT