Opinion
No. CV 94-0360659-S
November 9, 2004
MEMORANDUM OF DECISION
Background
The plaintiff Mark Urich, sold a boat to the defendant, Richard Fish, in 1993. Urich v. Fish, 261 Conn. 575, 577-78, 804 A.2d 795 (2002). In 1994, the plaintiff brought suit against the defendant, seeking to recover damages for the defendant's alleged breach of contact. Id., 578. The plaintiff alleged that there remained an unpaid balance on the purchase price of the boat. Id. The defendant filed a counterclaim, alleging, inter alia, that certain items were missing from the boat when he took possession of it and that the plaintiff's removal of the items constituted a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq. Id. The trial court, DeMayo, J., rendered judgment for the plaintiff on the complaint and for the defendant on the counterclaim. Id.
Both parties appealed to the Appellate Court, which affirmed the judgment for the plaintiff on the complaint and reversed the judgment for the defendant on the counterclaim. Id.; see also Urich v. Fish, 58 Conn.App. 176, 182-83, 753 A.2d 372 (2000). The Appellate Court remanded the case for a new final on the counterclaim. Urich v. Fish, supra, 261 Conn. 572. The Appellate Court directed that if the trial court, on retrial, "finds in favor of the defendant, it should determine whether the transaction between the plaintiff and defendant falls within the scope of CUTPA." Urich v. Fish, supra, 58 Conn.App. 181-82.
Following a new trial on counts two and three of the counterclaim, the trial court, Blue, I., rendered judgment in favor of the defendant. Urich v. Fish, supra, 261 Conn. 579. The trial court, in addition to finding that several items that should have been included in the sale of the boat had been removed, awarded damages to the defendant, including actual damages and prejudgment interest, as well as punitive damages and attorneys fees arising out of the plaintiff's violation of CUTPA. Id.; see also Urich v. Fish, Superior Court, judicial district of New Haven, Docket No. CV 94 0360659 (January 24, 2001, Blue, J.) Apparently, "[s]ome of the prices included in the court's calculations of damages . . . were based on items for which the defendant had laid no foundation." Urich v. Fish, supra, 579. The trial court's calculation of damages was also based in part on the estimates for replacement items that the court had ruled were admissible nonhearsay. Id., 579-80.
The plaintiff appealed, raising the following issues: "(1) did the trial court improperly conclude that the plaintiff violated CUTPA where the plaintiff argues that a single noncommercial transaction between private individuals does not fall within the scope of CUTPA; (2) if the transaction at issue in this case falls within the scope of CUTPA, did the trial court improperly award punitive damages and attorneys fees under CUTPA; (3) did the trial court improperly award the defendant punitive damages and attorneys fees under CUTPA where the common law limits recovery of punitive damages to attorneys fees; (4) if a party may recover punitive damages and attorneys fees under CUTPA, did the trial court improperly award the defendant punitive damages where the plaintiff argues that the CUTPA violation in the present case is not sufficient to support punitive damages; (5) did the trial court improperly rely on the defendant's exhibits that contained estimates from third parties of the replacement values of items missing from the boat that was the subject of the transaction at issue in this case and that the plaintiff claims were inadmissible hearsay; and (6) did the trial court improperly award prejudgment interest to the defendant where the damages recovered by the plaintiff on the complaint exceeded the damages recovered by the defendant on the counterclaim." Id., 577.
On May 8, 2002, the Supreme Court ordered Judge Blue to articulate the factual and legal basis for his determination that the plaintiff was liable under CUTPA. Id., 580. On May 10, 2002, Judge Blue submitted an articulation, stating that the plaintiff was liable under CUTPA because the transaction in this case was commercial in nature and that it was one in a series of transactions. Id. On appeal, the Supreme Court concluded as follows: "First, although the trial court properly excluded portions of the list offered by the defendant to establish the cost of replacing some of the items missing from the boat, the court nevertheless relied on those same inadmissible valuations in computing damages. Second, the trial court improperly admitted third-party estimates of the cost of replacing some of the missing items and also relied on those estimates in computing damages. The admission of this evidence was not harmless because the valuations were integral to the trial courts judgment in the case. Accordingly, a new trial is warranted." Id., 581. The rescript provides: "The judgment is reversed and the case is remanded for a new trial." Id., 585.
"Well established principles govern further proceedings after a remand by [the Supreme Court]. In carrying out a mandate of [the Supreme Court], the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion . . . This is the guiding principle that the trial court must observe . . . Compliance means that the direction is not deviated from. The trial court cannot adjudicate rights and duties not within the scope of the remand . . . It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered, even though it may be one that the appellate court might have directed. The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein." (Emphasis in original; internal quotation marks omitted.) Halpern v. Board of Education, 231 Conn. 308, 311, 649 A.2d 534 (1994); see also Higgins v. Karp, 243 Conn. 495, 502-03, 706 A.2d 1 (1998).
"Where [the Supreme Court] finds error upon the appeal and remands the case to be proceeded with according to law, the efficacy of the judgment rendered upon the original trial is destroyed and a new trial of all the issues in the case is required." (Emphasis added.) Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 796-97, 462 A.2d 1043 (1983). In Wendland, "a remand for 'further proceeding according to law' did not foreclose revisiting the amount of damages where the prior reversible error had lain in a negligence per se instruction. The court stated that where the remand is 'for further proceedings' according to law, the prior judgment is destroyed and a new trial of all the issues is required. If new evidence or new procedures are germane to the proceedings on remand, then they should be considered." Spector v. Konover, Superior Court, judicial district of Hartford, Docket No. CV 95 0554967 (August 15, 2001, Beach, J.) ( 30 Conn. L. Rptr. 390). It is also noted that "where the retrial of the single issue may affect the other issues to the prejudice of either party, the [appellate] court will not exercise its discretion in limiting the new trial but will grant it de novo." (Emphasis in original.) Wendland v. Ridgefield Construction Services, Inc., supra, 796, quoting Murray v. Krenz, 94 Conn. 503, 508, 109 A.2d 859 (1920). "An order restricting the issues [of a new trial] is the exception, not the rule." Niles v. Evitts, 16 Conn.App. 696, 699, 548 A.2d 1352 (1988).
In the present case, the Supreme Court remanded the case "for a new trial." Urich v. Fish, supra, 261 Conn. 585. The Supreme Court did not exercise its discretion by explicitly limiting the scope of a new trial or restricting the issues of a new trial.
Facts
On March 1, 1993, Fish executed a Sales Contract for the purchase of the Yacht Rainbow Connection, a 1991 Boat, 48 feet for the sum of $460,000 on March 5, 1993 Urich, the seller owner executed the agreement with a closing date of on or before May 1, 1993. (Exhibit B.) Added to the Sales Agreement were the following pertinent conditions.
Seller agrees to provide delivery of boat in water on or before May 1st, do winterized and in condition to sea trial.
Seller agrees to remove hot tub, dingy, neon, art work (8 wall paintings) water maker and inverter. No plumbing to be exposed and holes to be repaired.
Buyer will increase deposit to $75,000.00 total and acknowledges that he will close on or before May 1, 1993 regardless if his current boat is unsold.
Seller shall provide a copy of the survey performed by Ocean Yachts, and a signed commitment from Ocean Yachts to repair the deficiencies.
Starboard had outside wall, wall paper coming off. Leak will be located and corrected and wall paper repaired.
The contract was on a document prepared by Allied Marine, Coconut Grove, Florida.
A survey was done by Marine Surveyors dated December 4, 1992 which was faxed to Compton and Associates (Exhibit C) to the attention of Robert Compton Esquire. Robert Compton on March 3, 1993 faxed under letterhead Compton Associates P.A. of Fort Pierce, Florida that Ocean Yachts that originally built the Rainbow Connection under the supervision of Urich for Urich would agree to repairs necessitated by the survey except for certain exceptions. The message contained in that fax was that Ocean Yachts will honor the attached letter for buyer Richard Fish. Urich testified that Ed Barteet who was an agent for Ocean Yachts of Palm Beach sold the vessel (Rainbow Connection) to him. Urich testified that Ed Barteet was a franchisee of Ocean Yachts with a place of business in Florida. Urich testified that the Rainbow Connection was built in New Jersey and that he visited Ocean Yachts weekly to check on the progress. Urich admitted that he built and sold eight yachts and sold a yacht every two years. The court concludes from such a record of building and selling boats for about fifteen years that Urich was in the trade of selling boats. Urich testified that he chose all the components that were put on the "Rainbow Connection." Urich told Fish when Fish and his daughter visited the boat that everything was custom built and that he paid extra for all the custom items that went on the boat and that his purchase price was $560,000. Fish testified that Urich told him that he did not even put everything on the list (Chas Irwin) and he didn't inventory all the equipment at the time Urich showed the boat to Fish in March 1993. Urich testified he listed the vessel for sale with Ed Barteet of Sea Island Yacht Sales of Charleston, South Carolina. Urich testified he knew that Allied Marine was the co-broker for the sale of Rainbow Connection and that he knew that Allied Marine had the deposit of $75,000. Urich further testified (T-6/15/04 p. 62) that it went to another listing broker Charles Irwin. Irwin called Urich to tell him someone was interested in the boat (Rainbow Connection) to line up an appointment. Counsel for Urich objected to the introduction of a document marked Exh. A. for identification on grounds of hearsay, which the court sustained, which listed items on the boat Rainbow Connection under Chas Irwin listing.
Fish testified he intended to sell a 40 foot Hatteras Boat that he listed with Irwin and intended to buy a larger boat. Fish saw a 48 foot Ocean Motor Yacht in 1992 at Irwin Yacht Brokerage which did not go through for him. Fish spoke to Urich by telephone to view the Rainbow Connection in March 1993. Urich was firm in his asking price and invited Fish to view the Rainbow Connection in Poughkeepsie, New York in March 1993. Irwin Yacht had given Fish a copy of the listing agreement when he sold his 40 foot Hatteras which he took with him to view Rainbow Connection.
Fish and his daughter, Amy Daum, who accompanied him visited the Rainbow Connection at Poughkeepsie where they met Urich. The Rainbow Connection was kept in a building. The day of their visit it was extremely cold. Daum saw a listing that Fish had with them on her visit. Daum noticed that most everything was covered with sheets to protect furnishings from birds. Daum told the more credible story as to what she saw on the Rainbow Connection. Daum testified she saw a hi low table, a barrel chair that matched a sofa in the salon and a box containing lines for the vessel, life buoys and life jackets. Daum testified that the hi low table and barrel chair were of top quality which was a beautiful leather. Urich lifted the sheet to show them the hi low table. Daum left the boat because it was too cold for her to stay for the rest of the inspection.
Fish testified he had the listing agreement that he received from Irwin in his hand when they saw the boat. Daum said she saw Urich and her father looking at the listing agreement when they were on board.
Fish testified that Urich boasted to him about the barrel chair and the hi low table and that Urich said that he had two radios and one single band radio, a custom steering wheel, custom braided lines, a 35" television set with surround sound, and wet bar, a bait freezer.
The testimony of Fish and that of his daughter this court finds as being more credible than the denials of the existence of the equipment and furnishings testified to by the plaintiff Urich.
Fish testified the Rainbow Connection was worth more money than the Ocean Yachts of 48' that he had considered purchasing because of the additional equipment and the beautiful decor.
Fish offered $450,000 for the Rainbow Connection after the first meeting in March. It was finally agreed on a purchase price of $460,000 subject to certain repairs to the boat one of which was the removal of a "hot tub." The final sales price of $474,000 was arrived at because it included the price of a dingy small tender. Although Urich in his Post Trial Brief states that the payment of Urich was made to his broker less $20,000 and that the broker inadvertently delivered title to Fish such is not the case. Judge DeMayo found that Urich was entitled to $24,000 as the balance due for the sale on the First Count of the complaint. The First Count of the complaint was never appealed and judgment entered by DeMayo, J. on that count March 30, 1998. Which the Appellate Court affirmed in 58 Conn.App. 175.
On June 9, 1993 a letter by counsel for Fish (Exhibit B), addressed to Urich, forwarded a certified check in the amount of $379,000 towards the agreed purchase price of $474,000. Urich was further notified that Allied Marine, that held the $75,000 deposit was to release that amount to Urich. Further the balance of $20,000 "due under the purchase" was being withheld at the office of the Fish attorney in escrow "pending resolution of the missing items removed from the Rainbow Connection together with remedial engine work which was required to be performed on the boat prior to delivery. Contained in that letter of June 9, 1993 the following items listed were missing upon inspection of the boat after delivery:
1. 500 watt spot light;
2. Steering wheel;
3. Pressure wash-down system;
4. All life jackets (8);
5. Life ring;
6. All custom towels;
7. Six sets of custom sheets;
8. 3 soap dispensers;
9. Spare barbecue fuel tank;
10. Damage on veneer paneling where tearing off of two small picture frames occurred;
11. Light fixture that was mounted on port side of wall salon; CT Page 16761
12. Single side band radio;
13. 6" x 2" portable spotlight;
14. Chain anchor for small Danforth;
15. Missing air horn system.
Fish testified that the boat was delivered to him from Ocean Yacht on June 6, 1993 on a rough day and that it was delivered by Ocean Yacht with their Captain and that Ocean Yacht called him to pick up the boat with his Captain in New York prior to the closing. The closing was handled through attorneys for the parties. Fish and his Captain were unable to tie up the boat because of missing lines and they were required to jump onto the Rainbow Connection in a rough sea. Fish was unable to take an inventory of the equipment that was missing but a quick pass through the vessel revealed that there were no life jackets on board, no life raft, no flashlight or other safety equipment. The ship's bell was missing. Fish made a quick inspection saw the hi low table missing as well as other items. Fish instructed his lawyer (Bohonon) to send the letter marked Exhibit E. Also Urich was advised that $832.39 was the cost for replacement of a starter. After a more careful inspection dated August 31, 1993, counsel for Fish wrote to counsel for Urich who had requested an itemized list of the fixtures removed. (See Exhibit G).
500 watt spot light (remote)
steering wheel
pressure was down system
8 life jackets, 1 life ring
custom towels, 125 per set, 3 sets
6 sets custom sheets @ 165 + tax
3 custom soap, shampoo, and conditioner dispenser
spare barbeque tank
damaged veneer paneling
wall mounted light fixture salon
single side band radio Sea #322
(labor, tax)
6" to 2" portable spot lites
anchor
(installation)
replaced starter
horns to be replaced
anchor lite
4 dock lines, 2 spring lines
2 boat hooks
install port lite (factory)
hose and nozzle
The letter Exhibit F stated value of missing items in excess of $11,404.40. The replacement costs were provided. Such replacement costs were not allowed in the two prior trials because the costs were obtained by Fish from marine manuals, marked in this case as Exhibits O and P. Later in this decision an expert produced at this trial will testify as to the costs for the replacement fixtures. The expert, Paul Barton, testified in a deposition as well as the trial, who is the Harbor Master of Harbor One in Old Saybrook, where the Rainbow Connection was first docked by Fish after he took possession of the boat. Mr. Barton qualified as an expert and had been involved in repairs and maintenance of a 48' Ocean Yachts is now involved also in sales.
Fish testified that after the Rainbow Connection was delivered to him, he opened the cabinet where a single band radio would have been housed and all it contained was a maze of bare wires disconnected from what was supposed to be in the cabinet. Urich sued Allied Marine in Florida asserting a breach of fiduciary responsibility.
The court was not impressed by Urich's claim that he was going to produce a witness, Ed Barteet, who he claimed would testify as to what was listed on the boat with Allied who co-brokered the sale with Chas Irwin where Fish had his own boat for sale.
Barton had been deposed as an expert by Attorney Brunswick, who had filed a motion in limine pleading number 140 which this court denied, on November 20, 2002.
Barton saw the Rainbow Connection a day after it was brought to Harbor One in June 1993. Fish was proud of his new boat and wanted Barton to see it. Barton described the boat as very well appointed. He described the boat as "an upscale design and decor" custom made for the owner. Barton testified that the Rainbow Connection, from his experience, was not a standard stock 48' Ocean Yacht. Embroidered towels and sheets would be a custom feature, which the boat probably had. Barton saw antenna on the port and starboard sides of the flying bridge of the boat. The antenna could be used for both VHF radio or single side band radio which is designed for longer distances from shore. Barton did not see communication equipment on board. Barton testified that a company P. Rheinhardt normally provides Ocean Yachts with hi low tables. Fish had testified that he had items missing that were not replaced and the hi low table was such an item. The hi low table, which was of Lucite material, as well as two ottomans of the same material and a barrel chair would have fitted in the salon of a 48' Ocean Yacht. The dimension of a salon in a 48' Ocean Yacht is 14' by 15'. Daum also testified she saw a box in the salon three feet by three feet in which there was life preservers and lines (to secure a boat) in that box.
In 1993 Fish showing the boat to Barton said there was certain items missing from the boat when he received it then what he saw when he bought the boat.
Fish told him the hi low table, the barrel chair and a single side band radio was missing. At the time Fish informed him there was no lawsuit pending. Barton stated that a hi low table could be moved from place to place in the salon. When Fish and his daughter saw it it was in front of the couch and the ottomans shown in Exhibits J 1 and 4 were not so placed in the salon.
Fish described the hi low table to Barton as a Lucite top table and that the base matched the white wood work of the boat. The table had brass trim. Fish told Barton the table was roughly three to four feet long and about two feet wide. Barton testified that he met with Fish again in October 2002 when Fish related that other items were missing and had quotes of the value of the items missing from the boat. Fish showed him quotes and catalog picture and prices for the missing items. The missing items and the list was used by counsel for Urich in the deposition of Barton at which time Attorney Brunswick had an opportunity to cross-examine the expert of the values of the missing items. The court allowed the expert to give his opinion as to value of the missing items. (Colloquy pages 23 thru 26 transcript June 10, 2004).
The Court:
Subject to Mr. Brunswick being given an opportunity to question the weight rather than the admissibility of this opinion, during the course of the deposition — not that it is in any way a substitute — he had a right to examine him and question him and put a value on the item under questioning during the discovery process.
I'm not suggesting by any rule of evidence that in and of itself makes what he has to say admissible in view of his position about hearsay. But I'm questioning the parties in the interest of justice. And the thing that comes to the court's mind is that he's — he's been qualified as an expert, and he did an evaluation as an expert. And I assume at some point he gave that evaluation to Mr. Brunswick, although it — the court doesn't have it in writing, but he did give you an evaluation, Mr. Brunswick? Just answer yes or no? At the time of the deposition.
MR. BRUNSWICK: I think he gave me a range of values.
THE COURT: Huh?
MR. BRUNSWICK: He gave me a range.
THE COURT: He gave you a range?
MR. BRUNSWICK: Right.
THE COURT: So other than the range, did he give you an opinion?
MR. BRUNSWICK: That was his opinion. He gave me an opinion as to a range.
THE COURT: He gave you an opinion as to a range.
MR. BRUNSWICK: Right.
THE COURT: And that's the only thing he gave you; is that correct? CT Page 16771
MR. BRUNSWICK: That's my recollection.
THE COURT: All right. Now, what I'm trying to get through or over if he's an expert and he's an expert in his field, my experiences in court have been in the area of appraisals that are provided to the court for its determination only for purposes of use in coming at its own decision is when real estate people come to court and they testify as to what their values are or that during a condemnation proceeding an expert is allowed to give an opinion as to what the value is and the expert is questioned and a presentation of that value as to what he considered in arriving at the value.
And most instances on cases of that type — I'm just saying I don't know if cases of that type he gives an opinion as to what that value may be and the court can accept it or reject it. I'm comparing this to a real estate appraiser that I've have a great deal of experience on the bench with respect to tax appeals, condemnation matters, where the appraiser's information issued by the court as an independent opinion as to what the value is.
Now, I don't know what he gave but he certainly has the right to ask him has he formed an opinion based upon the information that he had, which I believe he can use as an expert if he's in this field; he can use hearsay information together to support his opinion and then you have a right to test that opinion as to what weight the court should give it but merely on the fact that it was gotten by hearsay, although not admissible by the witness, he brought this man in as an appraiser and he established that this — what his experiences were with appraising boats and his opinion may be worthless but I think he has a right to ask him if he has an opinion and I — and then you have a right to butcher it up. But I think it would get over the hurdle of hearsay.
MR. BRUNSWICK: I agree. The only —
THE COURT: Huh?
MR. BRUNSWICK: I agree, your Honor.
THE COURT: You agree?
MR. BRUNSWICK: Yes. The only point I was making —
THE COURT: Well, I finally got an agreement out of Mr. Brunswick.
MR. BRUNSWICK: That —
THE COURT: And I'm sure that Mr. Brunswick is going to tell me it's worthless, right?
MR. BRUNSWICK: Of course.
The court concluded that the expert can give his own independent opinion on information he gathered.
The expert determined who made hi low tables for Ocean Yacht. In Tait and La Plante, § 11.25. "Connecticut has quietly adopted an open-ended approach to exceptions to the hearsay rule that permits a court to admit statements that are technically hearsay and not within traditional exceptions provided there is a reasonable necessity for admissions of such statement and the statement is supported by an adequate basis of assurance that the evidence has those qualifies of reliability and trustworthiness attributed to other evidence admissible under the long established exceptions to the hearsay rule."
Expert testimony should be admitted when: (1) the witness has special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the Court or jury in considering the issues." Hayes v. Decker, 263 Conn. 677, 686; Conn. Code of Evidence § 7-2.
Barton determined that P. Reinhardt made the hi low table. Barton testified in his opinion the value of the hi low table was $4,200. Barton testified that his opinion of the value of the Barrell Chair was $1,200. The value he opined as to the Barrell chair was based on his experience in buying Barrell chairs for Yachts. Fish told him that a single side band radio was missing, Barton viewed the cabinet and dangling wires for connection to the radio. The expert opined that a side band radio would fit in the cabinet and the antenna he saw on the boat would be appropriate for such a radio. The expert testified that there were four different types of side band radios. The number of wires in the cabinet would support a single side band radio. The expert could not tell which of four types of radios would attach to the dangling wires. Even having seen the mount and other information the expert could give no opinion as to the value of the single side band radio or the costs of installation for a sideband radio because he did not know the type of radio. The attempt to get information about a single side band radio out of a discovery deposition was disallowed by the court. Fish did not testify as to the type or that Urich ever admitted there was a single side band radio on the Rainbow Connection.
Fish told Barton at the time of his inspection of the boat that there were linens and sheets missing; a bait freezer and other items. Barton and Fish went over the smaller items that Fish claimed to Barton was missing from the boat. A list was compiled which was introduced earlier as Exhibit G.
The expert Barton went down the list of items that were missing from the boat, reviewed the manuals that Fish used to determine values of the missing items. Barton testified he used the manuals to confirm his opinion of value of the missing items although in many instances would have used higher and costlier items. Barton used the books used by Fish plus his own research to reach his opinion of values of the missing items.
Barton testified he had an independent opinion for each of the items that appeared on Exhibit G. Fish gave Barton the list of the missing items and Barton compared the prices that he placed on the missing items. Barton stated it was his opinion of the fair price for the claimed missing items that Attorney Brunswick used the values of the missing items in his deposition of Barton. The list opined by Barton was introduced as Exhibit Q which was his opinion of the confirmed value of the missing items on the boat Rainbow Connection.
Urich's argument is well taken with regards to the conclusion of the value for a single side band radio. The argument and introduction of the so called sheets Exhibit 5 is totally rejected. It is hard to believe the testimony of Urich that he bought sheets from discount stores and, that he would have put on such sheets such as introduced on such a well-appointed Yacht. Urich's objection to the value of the towels is also rejected by the court.
The court concludes that the items as they appear on Exhibit Q is the value of the missing items from the sale of the boat (excepting the single side band radio, the hi low table and barrel chair). Again the testimony of Fish and his witnesses is far more credible than that presented by Urich.
Urich even testified he removed items from the boat prior to delivery. These items included a toaster oven, coffee maker, custom steering wheel, pillowcases and sheets forks and knives pots and pans. The evidence shows that Urich removed an anchor and replaced it (Exhibit H-AA).
Barton's opinion of the value of the items claimed by Fish to have been taken totals $11,595.02. Plus the value of a starter for a total of $12,427.41.
6 sets of custom sheets and towels $865.72.
Bow cushion and over 1,255.04.
Toaster oven and coffee maker 63.52.
Anchor 346.74.
Hoses, lines and 2 boat hooks 227.26.
Life jackets and ring buoy 523.16.
Anchor and mast lights (including labor) 589.91.
2 fenders 50.86.
2 portable spotlights 100.68.
Flare kit 125.07.
Automatic battery charger 148.39.
Solar mini charger 26.49.
Bait freezer 573.39.
Hi-low coffee table 4,200.00.
Barrel chair 1,200.00.
Light fixture 230.00.
3 custom soap dispensers 190.80.
Horn 285.00.
Propane tank 38.00.
Remote spotlight 354.99.
Custom steering wheel 200.00.
$11,595.02.
add to that amount is $832.39 replacement cost of a starter for the port side engine (Exhibit B) for the total amount of damages $12,427.41.
The defendant Fish has not persuaded the court, nor has he met his burden of proof to establish the value for the single side band radio.
The Second Count seeks damages for the missing items which the court concludes that the defendant has proven by a fair preponderance of the evidence in his counterclaim, and accordingly enters judgment in favor of the defendant Fish in the amount of $12,427.41 plus interest from the date of delivery on June 9, 1993 at the rate of 10% to the present date in accordance with C.G.S. § 37-3a. The amount of interest is $1,243 per year from June 9, 1993 to November 9, 2004 which equals $14,395.
The Third Count of the counterclaim alleges a violation of CUTPA pursuant to C.G.S. § 42-110b(a) which provides:
"No person shall engage in unfair methods of competition and unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or business." "It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (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 — 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 businesspersons] . . . 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." (Internal quotation marks omitted.) Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 367-68, 736 A.2d 824 (1999). "[B]ecause CUTPA is a self-avowed remedial measure . . . it is construed liberally in an effort to effectuate its public policy goals." Shiffrin v. IV. Services of America, Inc., 53 Conn.App. 129, 138, 729 A.2d 784 (1999).
The defendant argues in his post trial brief:
"The expansive nature of the CUTPA scheme was recently affirmed in Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 157-18 (1994):
Likewise, our General Assembly, in adopting the sweeping language of 5(a)(1) of the FTCA, "deliberately chose not to define the scope of unfair or defective acts proscribed by CUTPA so that courts might develop a body of law responsive to the marketplace practices that actually general such complaints." Sportsmen's Boating Corp. v. Hensley, 192 Conn. 747, 755, 474 A.2d 780 (1984). "Predictably, [therefore,] CUTPA has come to embrace a much broader range of business conduct than does the common law tort action." Id. 756. Moreover, "[b]ecause CUTPA is a self-avowed 'remedial' measure, General Statutes 42-110b(d), it is construed liberally in an effort to effectuate its public policy goals." Id. Indeed, there is "no . . . unfair method of competition, or unfair [or] deceptive act or practice that cannot be reached [under CUTPA]." Conn. Join Standing Committee Hearings, General Law, Pt. 2, 1973 Sess., p. 705, remarks of Attorney Robert Sils, Dept. of Consumer Protection.
Ahmed Salem v. Eugene Krygowski, et al, 1994 WL 797729 (Conn.Super.); see Kenneth Leonard v. Melvin Goldman, 2000 WL 805224 (Conn.Super.).
The plaintiff Urich in his post trial brief asserts that the issues in this case are as follows:
1. Has the defendant met his burden of proof to establish that the items he claims were to be included in the sale and were missing when he purchased the boat were ever on the boat or were represented by the plaintiff to be on the boat?
2. If the plaintiff recovers anything, is he entitled to interest?
3. Assuming arguendo that the defendant has met his burden to establish that some items were missing from the boat that he was entitled to, has the defendant established that the actions of the plaintiff fall within the scope of the Connecticut Unfair Trade Practices Act (CUTPA).
In answer to question number one: the defendant has met his burden of proof to establish that the items he claims were to be included in the sale and were missing when he purchased the boat. Urich boastfully represented that the boat included not only standard equipment on the Rainbow Connection and even more.
In answer to question number two the court has already in this decision made a positive finding in favor of the defendant in his counterclaim and finds interest in the amount of $14,395.
With respect to the third question: this court finds from all the evidence adduced at trial and from the credible evidence of the defendant in his counterclaim that the actions of Urich was wilful, wanton, and malicious in the sale of the Rainbow Connection to the defendant Fish.
The defendant argues in his reply brief that by delivering the boat without the equipment constituted a "bait and switch" ploy which violated public policy and was clearly immoral and unethical causing substantial injury to the defendant as alleged in his counterclaim.
The defendant further argues that Urich admitted he took items off the boat and offered no evidence to overcome the value stated by the expert for the missing items. Urich's conduct was reckless, intentionally wanton and malicious and not to be believed by this court.
Accordingly as to the Third Count the court finds that the defendant Fish has met his burden of proof on his claim for a CUTPA violation.
Awarding punitive damages and attorneys fees under CUTPA is discretionary; General Statutes 42-110g(a) and (d); see Bailey Employment System, Inc. v. Hahn, 545 F.Sup. 62, 73 (D. Conn. 1982), aff'd, 723 F.2d 895 (2d Cir. 1983); and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done. Sturman v. Socha, 191 Conn. 1, 7, 463 A.2d 527 (1983); Long v. Schull, 184 Conn. 252, 258, 439 A.2d 975 (1981); Lamont v. New Hartford, 4 Conn.App. 303, 307, 493 A.2d 298 (1985). "In order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights. Collens v. New Canaan Water Co., 155 Conn. 477, 489, 234 A.2d 825 (1967). In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence. Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 128, 222 A.2d 220 (1966)." Venturi v. Savitt, Inc., 191 Conn. 588, 592, 468 A.2d 933 (1983).
The court awards punitive damages in the amount of $29,000. The defendant seeks an award of attorneys fees in the amount of $34,791. The court has reviewed the affidavit and time sheet attached to the defendant's post trial brief. The court can only consider the attorneys fees as to the trial ordered by the Supreme Court in this case. Urich only filed a claim in his post trial brief that the amounts sought by Attorney Bohonon is unreasonable. The court has examined the amounts per the affidavit attached to the defendant's post trial brief. The billable hours of 113.75 is not unreasonable. However, the court disagrees with the hourly rate and awards the sum of $25,000 as attorney fees.
In summary, Judgment is entered in favor of the defendant on the counterclaim as follows: Damages in the amount of $12,427.41. Interest in the amount of $14,395 as to the Second Count. Punitive damages in the amount of $20,000, attorneys fees in the amount of $25,000 on the Third Count. The total being $71,822.41 on the Second and Third Counts of the counterclaim.
Frank S. Meadow Judge Trial Referee