Paul Antogiovanni v. LLC (2010)

MEMORANDUM OF DECISION

The plaintiff, Paul Antogiovanni, by way of writ, summons and complaint dated August 19, 2008, commenced this action against the defendants America's Homes & Communities Real Estate, LLC (AHC), Edward L. Parker and U.S. Bank National Association (Bank National).   The defendant Kate Porch was cited in as an additional party on September 18, 2008.   A default for failure to appear was entered against the defendant AHC on November 13, 2008.   The plaintiff withdrew as to the defendant Bank National on February 13, 2009.   The trial of this matter was heard before the court on February 3, 2010, and on February 4, 2010.   The court heard lengthy testimony from the parties, their witnesses and was presented with documentary evidence.   The court has also reviewed the parties' post-trial briefs.   The last post-trial brief was received on March 9, 2010.

At the time of trial, the plaintiff stipulated that three of the original counts no longer apply and six counts remain as to the defendants Parker and Porch.   These remaining counts set forth claims as to all defendants alleging fraud, interference with business opportunity, breach of fiduciary duty, breach of contract, breach of duty of good faith and fair dealing and violation of Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110 et seq.

Specifically, the plaintiff alleges that AHC was a licensed real estate broker subject to the laws of the State of Connecticut, that it advertised that it acted as a buyer's agent, had expertise in real estate transactions, had specific expertise in real estate negotiations and that it acted with complete honesty and integrity for all of its customers.   It also advertised that it was a realtor.   The amended complaint also alleges that the defendant Parker was the operating manager and employee of AHC, was not a licensed real estate broker but was subject to the laws of the State of Connecticut related to such license.   It further alleges that the defendant Parker advertised that he acted as a buyer's agent, that he had expertise in real estate transactions, the he had specific expertise in real estate negotiations and that he acted with complete honesty and integrity for all of his customers.   It is also alleged that the defendant Parker advertised that he was a Realtor.   The defendant Parker has admitted these allegations.

The plaintiff further alleges that the defendant Porch was the fiance of the defendant Parker at all relevant times, that her residence was also the business residence of the defendant AHC, and that the defendant Porch has a personal and business relationship with the defendant Parker and AHC. The defendant Parker, in his answer, denies that the defendant Porch has a business relationship with the defendants Parker and AHC.

The plaintiff also alleges that the subject property, 39 Stevens Lane, Middletown, Connecticut, was owned by Bank National when it came onto the market in August 2008, that the plaintiff entered into a written contract with the defendant Parker and the defendant AHC whereby the defendants Parker and AHC would act as the plaintiff's agent to secure the purchase of the 39 Stevens Lane which was listed at $90,000, that the plaintiff provided a $1000 check to be used as a deposit with instructions to start the negotiations with an offer of $78,000 to the seller, and further instructions that the plaintiff would be willing to pay the full asking price and would not rule out paying in excess of the full asking price.   The defendant Parker admits these allegations except that portion which alleges that the plaintiff would be willing to pay the full asking price.

In addition, the plaintiff alleges that he provided proof of the eligibility of funds and was advised by the defendant Parker that it looked like the seller was going to take the offer and that the plaintiff was then advised by the defendants Parker and AHC that the property was no longer for sale in that it had been purchased by another party at a price higher than $78,000.   The defendant Parker has denied these allegations.

The plaintiff alleges he was further advised by the defendant Parker that he could not make a counter-offer because the defendants Parker and Porch purchased the property, and that the property would be put in the defendant Porch's name.   These allegations have also been denied by the defendant Parker.

Additionally, the plaintiff alleges that the defendants Parker, AHC and Porch owed to him a fiduciary duty based on the fiduciary relationship of the parties in that the defendants Parker and AHC were agents of the plaintiff, and that the defendants Parker, AHC and Porch violated the fiduciary duty in failing to fulfill their fair dealing obligation by employing deceit, deception, fraud and self-dealing in that they:

a. failed to permit Antogiovanni to participate in negotiations regarding the property with the knowledge that Antogiovanni would ultimately offer up to or beyond the full asking price;

b. removed Antogiovanni as a party seeking to purchase the property by representing that they would negotiate on his behalf when in fact they stopped negotiating on his behalf;

c. failed to provide full and frank disclosure that they had an interest in purchasing the property;

d. failed to provide full and frank disclosure that they were negotiating on their own behalf;

e. received an unjust enrichment of purchasing the property at a value that was less than the value the property would have sold for had they negotiated for the property on their own behalf and permitted Antogiovanni to negotiate on his own behalf;

f. failed to adhere to the ethical directive that the obligation to the client, Antogiovanni, is primary under Article I of the Code of Ethics and Standard of Practice of National Association of Realtors (hereinafter “Code”);

I. failed to submit offers and counter-offers and otherwise violated Standard 1-8 of the Code;

j. used confidential information of the client, Antogiovanni, to the client's disadvantage and otherwise violated Standard 1-9 of the Code;

k. used confidential information of the client, Antogiovanni, to the advantage of third parties and otherwise violated Standard 1-9 of the Code;

1. presented offers from themselves in violation of Article 4 and Standard 4-1 of the Code;

m. undertook to provide professional services where they had a contemplated interest in violation of Article 5 of the Code;

n. failed to conform to the standards of practice and competence which are reasonable expected and otherwise violated Article 11 of the Code;

o. misrepresented or concealed material facts in the transaction in violation of Section 20-328-2a(a) of the Connecticut Administrative Code;

p. undertook to provide professional services where they had a contemplated interest in violation of Section 20-328-2a(a) of the Connecticut Administrative Code;

q. presented offers from themselves in violation of Section 20-328-2a(b) of the Connecticut Administrative Code;

r. failed to submit all offers and counter-offers and otherwise violated Section 20-328-2a(e)(2) of the Connecticut Administrative Code;  and

s. aggrieved Antogiovanni by reason of fraud, misrepresentation and deceit in violation of Connecticut General Statutes Section 20-324a.

These allegations were denied by the defendant Parker.   The defendant Parker denied the remaining allegations or left the plaintiff to his proof.

The defendant Porch, filed a responsive pleading entitled “Answer and Counterclaim.” ¹  In it she admits that AHC is a limited liability corporation organized under the laws of Connecticut and that the defendant Parker is a resident of Connecticut.   She also admits she made an offer to purchase the subject property but denies that the defendant Parker or AHC was going to purchase the property or had purchased the property.   She admits that she and Bank National executed an agreement to terminate the purchase and sales agreement contract.   She filed the following special defenses:

1. The Plaintiff has identified no fiduciary relationship with or to the Defendant Kate Porch.

2. The Defendant Porch does not now own or have a right to purchase 39 Stevens Lane in Middletown, Connecticut.

3. The property in question, 39 Stevens Lane, has been sold by U.S. Bank National Association to a third party unrelated to the Defendant Kate Porch on or about March 20, 2009.

4. The consideration stated in the deed for the third party sale was $85,000.

5. The Plaintiff filed a lis pendens in the Middletown Land Records against the property known as 39 Stevens Lane in connection with this legal action.

6. US Bank National Association cancelled the Defendant Porch's contract to purchase 39 Stevens Lane from U.S. Bank National Association because it stated it could not deliver clear title to the property on account of the lien.

7. Defendant Porch signed the Release Exhibit D in order to obtain the release of her $5,000 deposit.

8. The Defendant Porch has received and will receive no economic benefit in connection with her cancelled contract to purchase 39 Stevens Lane.

9. The Defendant Kate Porch has no assets, interests or rights over which the Plaintiff can assert a constructive trust.

In his prayer for relief, the plaintiff seeks compensatory damages, punitive damages, attorneys fees and interest, and such other relief as at law or equity may appertain.

The court finds that the following facts were proven at trial.   The plaintiff, Paul Antogiovanni, was an adjacent neighbor to real property located at 39 Stevens Lane, Middletown, Connecticut.   The defendant AHC was a licensed real estate broker subject to the laws of Connecticut and was a realtor subject to the Code of Ethics and Professional Standards promulgated by the National Association of Realtors.   In August 2008, the defendant Parker, as the operating manager of the defendant AHC, came to the plaintiff's residence to advise him that 39 Stevens Lane had just come onto the market and that he was the listing agent.   Parker was not the listing agent.   Parker was aware of the plaintiff's prior interest in purchasing the property and had had business dealings with him in the past.   At the time that Parker went to the plaintiff's residence, the adjacent property did not have a “For Sale” sign and the plaintiff was unaware that the property was for sale until so informed by Parker.   Parker went to 39 Stevens Lane to look at the property and spoke to the plaintiff's wife who advised her husband, the plaintiff, that Parker was at the subject premises and that it was on the market.   Shortly thereafter, the plaintiff arrived at 39 Stevens Lane and spoke with the defendant Parker.   He was advised by Parker that he was the broker for the sale of the property.   At said time, the plaintiff met the defendant, Kate Porch, who was introduced as the defendant Parker's wife, but who was only engaged to the defendant Parker at that time.   Parker considered the defendant Porch, a “family member” at that time and referred to Porch as his “wife” at all relevant times.   Parker and Porch had resided together for sometime prior to this meeting and had a personal as well as a business relationship concerning properties owned by Porch that were managed by Parker.   The plaintiff and the defendants, Parker and Porch, inspected 39 Stevens Lane. The plaintiff advised Parker that he was interested in purchasing the property and requested a later meeting when his son would be present.   Said meeting was held the following Saturday morning and the plaintiff conveyed Parker that he wanted the property as a business opportunity and advised that his starting offer for property was $78,000 but that he would go to the full asking price of $90,000.   Parker, on behalf of the defendant AHC, and the plaintiff signed the form entitled “Exclusive Right To Represent Buyer” on August 9, 2008, whereby Parker and AHC contractually agreed to act as the plaintiffs agent to secure the purchase of 39 Stevens Lane. The plaintiff provided a deposit check in the amount of $1000 to Parker and expected said offer to be conveyed immediately to the seller.   The plaintiff also advised Parker that he would pay full asking price for the subject property.   Parker advised the plaintiff that the seller was interested in his offer and requested proof of funds to show that the plaintiff was financially able to purchase the property.   The plaintiff provided said proof to Parker the following Monday.

After meeting with the plaintiff and his son, Parker advised Porch of the plaintiff's offer of $78,000 on the subject property.   Based on that information, Porch made an offer of $90,000 through Parker and on August 11, 2008, she signed a Real Estate Purchase Agreement with regard to the subject property.   Parker had a business interest in Porch's purchase of the property in that he intended to manage the property or sell the property at some future date.

Parker advised Porch that he could represent both her and the plaintiff and submit offers on behalf of both without a conflict.   The defendants, Parker and Porch, signed a buyer broker agreement dated August 8, 2008 at some point in time.   The agreement was not produced until the second day of trial.   At no time did Parker give the plaintiff written or oral notice disclosing that he and the defendant AHC were representing a family member.

Parker advised the plaintiff that the seller would probably accept the first offer.   Parker conveyed Porch's offer to the seller prior to the presentment of the plaintiff's offer.   The seller accepted Porch's offer.

Parker, when returning the plaintiff's deposit check, advised the plaintiff's son that the seller had accepted another offer, that he had purchased the property and was putting into his wife's name.   Parker advised the plaintiff that he could not make a counter-offer.   The plaintiff filed a lis pendens on the property on August 20, 2008, in addition to this lawsuit.   Porch's offer was accepted by the seller on August 21, 2008.   As a result, the plaintiff lost his opportunity to purchase the subject property for investment purposes once the contract was accepted.   The plaintiff then explored other investment opportunities and was not able to purchase the subject property when it came back onto the market some time later.

Turning to the plaintiff's claim of fraud, the plaintiff has the burden of proving fraud by clear and convincing evidence.  Stuart v. Stuart, 112 Conn.App. 160, 177, 962 A.2d 842, cert. granted on other grounds, 290 Conn. 920, 966 A.2d 237 (2009);  Ruotolo v. Ruotolo, Superior Court, judicial district of New Haven, Docket No. 09 5026804 (Dec. 29, 2009, Jones, J.).   Nevertheless, a claim of fraud coupled with a breach of fiduciary duty, as alleged here, requires that the plaintiff prove only that the other party owed him a fiduciary duty.   The fiduciary relationship is characterized by “a unique degree of trust and confidence between the parties, one of whom who has superior knowledge, skill or expertise and is under a duty to represent the interests of the other ․ The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him.”  (Citations omitted.)  Dunham v. Dunham, 204 Conn. 303, 322, 528 A.2d 1123 (1987), overruled on other grounds by, Santopietro v. New Haven, 239 Conn. 207, 682 A.2d 106 (1996).   Once the fiduciary relationship is proven, the burden of proof is placed upon the fiduciary to prove that his conduct was fair and equitable.  Stuart v. Stuart, supra, 177.  “Fraud involves deception practiced in order to induce another to act to her detriment, and which causes that detrimental action ․ The four essential elements of fraud are (1) that a false representation of fact was made;  (2) that the party making the representation knew it to be false;  (3) that the representation was made to induce action by the other party;  and (4) that the other party did so act to her detriment.”  (Internal quotation marks omitted).  Chase Manhattan Mortgage Corp. v. Machado, 83 Conn.App. 183, 188, 850 A.2d 260 (2004), affd, 92 Conn.App. 904, 884 A.2d 22 (2005);  Giulietti v. Giulietti, 65 Conn.App. 813, 836, 784 A.2d 905, cert. denied, 258 Conn. 946, 788 A.2d 95 (2001);  Whitaker v. Taylor, 99 Conn.App. 719, 730, 916 A.2d 834 (2007).   “[T]he intent to defraud involve[s] the state of mind, and usually must be proven by circumstantial evidence.   Intention is a mental process, and of necessity, it must be proved by the statements and acts of the person whose conduct is being scrutinized.”  (Internal quotation marks omitted.)  Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982).   The plaintiff contends that the defendants committed fraud against him by employing deceit, deception and self-dealing.   The court agrees and finds that Parker committed fraudulent acts against the plaintiff by failing to give full disclosure of his representation of Porch, a family member, by failing to allow the plaintiff to submit a counter-offer, by providing confidential information to Porch and by misrepresenting and concealing material facts from the plaintiff in addition to violating General Statutes § 20-324a and § 20-328-2a(e)(2) of the Regulations of Connecticut State Agencies.   Further, the plaintiff relied on these representations to his financial detriment.   Parker had no intention to present the plaintiff's offer first as he clearly intended to convey Porch's offer prior to the plaintiff's offer and intended to deceive and defraud the plaintiff.   Therefore, the court finds that the plaintiff has met his burden of proof as to his claim of fraud as to the defendants Parker and AHC. With regard to the defendant Porch, the court finds that the plaintiff has failed to meet his burden of proof with regard to his claim of fraud and finds in her favor.

With regard to the plaintiff's claim of intentional interference with a business opportunity, the plaintiff must prove that a business relationship between the plaintiff and another party exists, that the defendant intentionally interfered with the business relationship while knowing of the relationship and as a result of the interference, the plaintiff suffered an actual loss.   IN Energy Solutions, Inc. v. Realgy, LLC, 114 Conn.App. 262, 272, 969 A.2d 807 (2009);  Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985).   The plaintiff is required to “plead and prove at least some improper motive or improper means.  IN Energy Solutions, Inc. v. Realgy, LLC, supra, 272.   In order to prove intentional interference with a business opportunity, the plaintiff “must prove that ․ the defendant was guilty of fraud, misrepresentation, intimidation or molestation or that the defendant acted maliciously ․ In other words, the [plaintiff] bears the burden of alleging and proving lack of justification on the part of the [defendant].”  (Internal quotation marks omitted.)  Id. The plaintiff entered into the “Exclusive Right to Represent Buyer Contract” with Parker to purchase the subject property.   Parker was aware of the plaintiff's desire to purchase the property as an investment property.   The plaintiff relied on Parker's expertise as a broker and further relied on his requirement to adhere to the Code of Ethics and Standards of Practice of the National Association of Realtors (Code of Ethics) in assisting him in obtaining the property.   The defendant Parker interfered with the plaintiff's ability to purchase the property when he agreed to represent the defendant Porch, an acknowledged “family member” in the purchase of the property.   Further, Parker advised Porch of the amount of the plaintiff's offer prior to his presentment of the plaintiff's offer, thereby intentionally interfering, and preventing, the plaintiff from purchasing the property.   As such, said fraud and misrepresentation directly interfered with the plaintiff's business pursuit in the purchase of the property.   As a result, the plaintiff was unable to make a counter-offer of the full asking price of $90,000 and therefore, unable to have a fair shake at purchasing the property.   This resulted in his inability to make improvements to the property and sell it for a profit, thereby resulting in an economic loss to the plaintiff.   The court, therefore, finds the evidence in favor of the plaintiff with regard to the claim of intentional interference with a business opportunity as to the defendants Parker and AHC. The court further finds that the plaintiff has not met his burden of proof as to this allegation as to Porch and finds in her favor.

With regard to the plaintiff's claim of a breach of fiduciary duty, he has the burden of proving that the defendant owed a duty to him.   Once that burden is met, the defendant then has the burden of proof, by clear and convincing evidence, that such duty was not breached.  Spector v. Konover, 57 Conn.App. 121, 127, 747 A.2d 39, cert. denied, 254 Conn. 913, 759 A.2d 507 (2000).   The plaintiff must show that the a fiduciary or confidential relationship exists.  “[A] fiduciary duty springs not from a simple duty of care, but from a duty of loyalty to the party claiming the fiduciary relationship.   A party claiming a fiduciary relationship must plead and prove that the party it characterizes as a fiduciary had a duty to represent his or her interests.”   MVB Custom Design & Construction v. Jones, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0183779 (January 29, 2002, Lewis, JTR.).  “A real estate broker is a fiduciary ․ As such, he is required to exercise fidelity and good faith, and cannot put himself in a position antagonistic to his principal's interest by fraudulent conduct, acting adversely to his client's interests, or by failing to communicate information he may possess or acquire which is or may be material to his principal's advantage.”  (Citations omitted;  internal quotation marks omitted.)  Licari v. Balckwelder, 14 Conn.App. 46, 53-54, 539 A.2d 609, cert. denied, 208 Conn. 803, 545 A.2d 110 (1988).   The “rule requiring a broker ․ to act with the utmost good faith towards his principal places him under a legal obligation to make a full, fair and prompt disclosure to his employer of all facts within his knowledge which are, or may be material to the matter in connection with which he is employed, which might affect his principal's rights and interests or his action in relation to the subject matter of the employment, or which in any way pertains to the discharge of the agency which the broker has undertaken.”  Id., 54.

Here, the defendant Parker, as the operating manager of AHC, owed the plaintiff a fiduciary duty.   Thus, the defendant Parker and AHC were agents of the plaintiff based upon a fiduciary relationship.   Further, § 20-328-2a of the Regulations of Connecticut State Agencies provides in relevant part:

(a) A licensee shall not undertake to provide professional services concerning a property or its value where the licensee has a present or contemplated interest unless such interest is specifically disclosed to all affected parties. (b) A licensee shall not acquire an interest in or buy for himself or herself, any member of the licensee's immediate family, the licensee's firm or any member thereof, or any entity in which the licensee has a substantial ownership interest, property listed with the licensee, without disclosing to the listing owner the licensee's relationship to the prospective buyer or lessee.   In selling or leasing property owned by the licensee or in which the licensee has any interest, the licensee shall reveal the extent of his or her ownership or interest to the prospective buyer or lessee ․ (Emphasis added).

The court finds that the plaintiff had a relationship of trust and confidence with Parker who had superior knowledge or expertise and a duty to represent the interest of the plaintiff.   Further, Parker's familial relationship with Porch and his failure to disclose Porch's intent to make an offer on the same subject property the same to the plaintiff was a clear breach of the defendant's fiduciary duty owed to the plaintiff.   Parker had a personal interest in the property to the extent that, had Porch purchased the property and utilized it as a rental property, Parker would act as the manager of the property.   Further, Parker, who concedes his fiduciary relationship with the plaintiff, breached that fiduciary duty to the plaintiff by disclosing the amount of the plaintiff's offer to Porch.   The court finds in favor of the plaintiff as to the breach of fiduciary duty.   The court further finds that Porch did not owe a fiduciary duty to the plaintiff and finds in her favor as to that allegation.

Turning to the plaintiff's claim of breach of contract as to the defendants, the plaintiff has the burden of proving a meeting of the minds between the parties.  LeBlanc v. New England Raceway, LLC, 116 Conn.App. 267, 271, 976 A.2d 750 (2009).   The necessary elements for a cause of action sounding in breach of contract are:  (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party and (4) damages and causation.  McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).   As previously noted, Parker and the plaintiff entered into a contract whereby Parker agreed to act as the plaintiff's broker with regard to the purchase of 39 Stevens Lane, and that Parker was acting as a real estate broker for AHC. The contract, “Exclusive Right to Represent Buyer Contract-Greater Hartford Association of Realtors, Inc.,” was entered into solely for the plaintiff's purchase of 39 Stevens Lane. The plaintiff made an offer for the purchase of the property via a deposit check, provided proof of funds to purchase the property and advised the defendants Parker and AHC of his intent to pay the full asking price of the property, if necessary.   Parker breached said contract by failing to adhere to the Code of Ethics by self-dealing and representing a family member and by failing to properly disclose the same to the plaintiff and by failing to submit the plaintiffs offer as quickly as possible and prior to Porch's offer.   As a result, the plaintiff was unable to purchase the property, rehabilitate it and sell it for a profit.   The court, therefore, finds in favor of the plaintiff with regard to the breach of contract claim against the defendant Parker.   The court further finds that no contract existed between the defendants Parker and Porch.   The plaintiff has not met his burden of proof as to the defendant Porch and finds in her favor.

With regard to the plaintiff's claim of the breach of good faith and fair dealing, it is a duty that is implied into a contract or contractual relationship.  Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 638, 804 A.2d 180 (2002).  “The covenant of good faith and fair dealing presupposes that the terms and purpose of the contact are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term.”  (Internal quotation marks omitted.)   Id. Thus, the plaintiff must show proof of the existence of a fiduciary or confidential relationship between the plaintiff and the defendant.   See Id. The relationship “is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other ․ The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him ․” Cadle Co. v. D'Addario, 268 Conn. 441, 455, 844 A.2d 836 (2004).   Once such a relationship is found to exist, “the burden of proving fair dealing properly shifts to the fiduciary ․ Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence.”  (Internal quotation marks omitted.)  Id., 455.

As evidenced by the document entitled “Exclusive Right to Represent Buyer Contract-Greater Hartford Association of Realtors, Inc.,” a contract existed between the plaintiff and the defendants Parker and AHC. The contract specifically provided that the plaintiff granted to Parker the exclusive right to represent him as buyer and assist him in the purchase of the real property located at 39 Stevens Lane, Middletown on terms and conditions acceptable to the plaintiff.   In addition, the contract incorporated the Code of Ethics.   The plaintiff relied on Parker as a realtor who would abide by the Code of Ethics in his representation of him in the purchase of the subject property.   Thus, Parker had a contractual obligation to act in the plaintiff's best interests.   The court, therefore, finds that the duty of good faith and fair dealing is imposed upon Parker by virtue of his contract with the plaintiff.   See Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 566, 479 A.2d 781 (1984) (implied covenant of good faith and fair dealing in every contract without limitation).   The defendant Parker failed to do so and, therefore, breached his duty of good faith and fair dealing.   The court finds that Porch did not owe a duty of good faith and fair dealing to the plaintiff and finds in the favor of the defendant Porch.

With regard to the plaintiff's claim the defendants Parker and AHC violated CUTPA.  “[General Statutes § ]42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.   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 business persons] ․ 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.)   Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154-55, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006);  see also Tumosa v. Curtis, Superior Court, complex litigation docket at Hartford, CV 08 5023851 (August 24, 2009, Berger, J.).   A single act of misconduct by the defendant may constitute a violation of CUTPA.  Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn.App. 342, 353, 72 A.2d 342, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002).  “CUTPA, by its own terms, applies to a broad spectrum of commercial activity.”  (Internal quotation marks omitted).  Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 380, 880 A.2d 138 (2005).  “[A] breach of fiduciary duty in any relation covered by CUTPA is likely to be deceptive or unfair.”  (Internal quotation marks omitted.).   Giordano v. Bittner, Superior Court, judicial district of New Britain, Docket No. CV 05 77552 (July 2, 1998, Teller.J.).

The court finds that the defendant Parker, in acting as the plaintiff's broker, was in a fiduciary relationship with the plaintiff and that he breached his fiduciary duty to the plaintiff.   Parker, acting on behalf of AHC was a duly licensed real estate broker during these transactions and, as such, his conduct was governed by the Code of Ethics and the Regulations of State Agencies.   The disclosure by Parker of the details of the plaintiff's offer on the subject property to Porch was unethical and deceptive, and caused a substantial injury to the plaintiff.   Parker acted in an unscrupulous manner and violated public policy.   The court finds that the evidence clearly establishes a causal connection between Parker's failure to convey the plaintiff's offer in a timely manner and the divulging of the plaintiff's confidential information to Porch, and his concealment of that fact, and these acts caused injury to the plaintiff.   Having determined that the plaintiff sustained his burden of proof, the court finds that Parker violated CUTPA and the court finds for the plaintiff.   The court finds that the plaintiff has not met his burden of proof with regard to the CUTPA claim as to the defendant Porch and finds in her favor.

Having found in favor of the plaintiff as to the defendant Parker and AHC, the court turns to the issues of damages.  “It is incumbent on the party asserting damages to provide sufficient evidence to prove such damages.   However, “the trial court has broad discretion in determining damages ․ The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.”(Citations omitted;  internal quotation marks omitted).   IN Energy Solutions v. Realgy, LLC, supra, 267.

In his amended complaint, the plaintiff has claimed that he has been injured as the result of the defendant Porch's fraudulent acts, breach of contract, breach of his fiduciary duty, breach of good faith and fair dealing flowing from his contract with the plaintiff, and suffered actual damages and ascertainable loss as the result of his violation of CUTPA.   The plaintiff testified that, as the result of the defendant Porch's wrongful acts, he lost his opportunity to purchase the subject property as well as his opportunity to rehabilitate the subject property, and sell it for a profit.   As previously noted, the plaintiff here is seeking compensatory damages in addition to punitive damages, attorney fees and interest, as well as “such other and further relief as at law or equity may appertain.  “Since the plaintiffs have proven the defendants' liability under both contract and tort theories, the proper measure of damages are those which were proximately caused by the defendants' negligent conduct.”   Winsted Land Development v. Design Collaborative Architects, P.C., Superior Court, judicial district of Litchfield, DocketNo.   CV 960081571 (August 12, 1999, Wiese, J).  “The requirement of proximate cause is a less severe limitation of liability ․ A proximate cause is [an] actual cause that is a substantial factor in the resulting harm.”  Id. Thus the test is what damages were reasonably foreseeable because they were within the scope of the risk created by the defendants' wrongful conduct.  Id.

“The burden of proving damages is on the party claiming them ․ Claimed damages ․ must be proved with reasonable certainty.”  (Citation omitted.)   DiNapoli v. Cooke, 43 Conn.App. 419, 430, 682 A.2d 603 (1996), cert. denied, 520 U.S. 1213, 117 S.Ct. 1699, 137 L.Ed.2d 825 (1997).   Indeed, courts “have looked to a number of factors in evaluating whether the plaintiff has proved lost profits to a reasonable certainty ․ The underlying requirement for each of these types of evidence is a substantial similarity between the facts forming the basis of the profit projections and the business opportunity that was destroyed.”  (Citations omitted.)  Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff & Kotkin, 247 Conn. 48, 72-74, 717 A.2d 724 (1998).  “Evidence is considered speculative when there is no documentation or detail in support of it and when the party relies on subjective opinion.”  Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 163, 976 A.2d 723 (2009).   In the present case, the evidence before the court is speculative and no similarity was shown between the facts forming the basis of the projections and the business opportunity that was destroyed.   Nor were the underlying facts forming the basis of the witness' assertions discussed substantively, instead the testimony consisted only of bold assertions of what profits and costs the parties expected if they had purchased the property.   Particularly with respect to the costs of rehabilitating the property, there was no mention of what facts formed the basis of the projections.   The plaintiff has failed to prove the amount of the loss to a reasonable certainty.

Although the court finds that the plaintiff has not proven damages to a reasonable certainty, nominal damages, and punitive damages may still be granted.   Frequently, to be awarded nominal damages, a plaintiff need only show the illegal invasion of a legal right.   See News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 535, 862 A.2d 837, aff'd, 276 Conn. 310, 885 A.2d 758 (2004) (“A failure of the agent to perform his duties which results in no loss to the principal may subject the agent to liability for nominal damages for breach of contract”);  Tang v. Bou-Fakhreddine, 75 Conn.App. 334, 340, 815 A.2d 1276 (2003) (at least nominal damages were appropriate under CUTPA based on the defendant's violation of the Home Improvement Act and his wilful and wanton violation of the plaintiff's contractual rights).   Nevertheless, unlike other intentional torts in which liability alone gives rise to nominal damages even in the absence of proof of actual loss, it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss.  Right v. Breen, 277 Conn. 364, 375-77, 890 A.2d 1287 (2006).²

“[P]roof that some damage has been sustained is necessary to [support a cause of action for tortious interference] ․ A major problem with damages of this sort, [however], is whether they can be proved with a reasonable degree of certainty ․ If the question is whether the plaintiff would have succeeded in attaining a prospective business transaction in the absence of [the] defendant's interference, the court may, in determining whether the proof meets the requirement of reasonable certainty, give due weight to the fact that the question was made hypothetical by the very wrong of the defendant.   Sometimes, when the court is convinced that damages have been incurred but the amount cannot be proved with reasonable certainty, it awards nominal damages ․ Thus, an award of compensatory damages is not necessary to establish a cause of action for tortious interference as long as there is a finding of actual loss, and a finding of actual loss may support an award of punitive damages.”   (Citations omitted;  internal quotation marks omitted.)  Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 33-34, 761 A.2d 1268 (2000).  “[I]t must appear that, except for the tortious interference of the defendant, there was a reasonable probability that the plaintiff would have entered into a contract or made a profit.”  (Internal quotation marks omitted.)  American Diamond Exchange, Inc. v. Alpert, 101 Conn.App. 83, 98, 920 A.2d 357, cert. denied, 284 Conn. 901, 931 A.2d 261 (2007).

The court finds that there has been an invasion of the plaintiff's legal rights, and actual loss or damage sustained, but that the amount of damages cannot be calculated.   There is no evidence of other bidders on the property other than Porch and the plaintiff;  and, therefore, the plaintiff demonstrated to a reasonable certainty that the plaintiff would have purchased the property but for the tortious interference of the defendant.   In coming to this conclusion, the court gives weight to the fact that the question of the plaintiff's success in bidding on the house was made hypothetical by the defendant's misconduct.   As a result, the plaintiff is entitled to nominal and punitive damages.

With regard to the plaintiff's request for attorneys fees, the plaintiff has filed a claim under CUTPA and the court has found in favor of the plaintiff on that claim.   Thus, there is statutory authorization for attorneys fees under CUTPA.  Service Road Corp. v. Quinn, 241 Conn. 630, 644, 698 A.2d 258 (1997).   Attorneys fees may also be awarded as a component of common law punitive damages, which the plaintiff has claimed.   See Markey v. Santangelo, 195 Conn. 76, 80, 485 A.2d 1305 (1985).   For example, punitive damages may be awarded upon establishing a claim based on tortious interference with a business opportunity.  Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 33-34.

The court has reviewed the plaintiff's attorney's affidavit and billing statements submitted to support the claim for attorneys fees.   Attorney Dowling has submitted a bill totaling $24,571.50 for attorneys fees incurred by the plaintiff in connection with this action.   While the reasonableness of attorneys fees must be proven by an appropriate evidentiary hearing, it is noted that courts have a general knowledge of what would be reasonable attorneys fees for services provided and courts may rely on their general knowledge as to the attorneys fees presented and what has occurred before the court as evidence in support of an award of attorneys fees.  Smith v. Snyder, 267 Conn. 456, 471-72, 839 A.2d 589 (2004).   The court finds said attorneys fees reasonable.

The plaintiff is, therefore, awarded attorneys fees as punitive damages in the amount of $24,571.15 as to the defendants Parker and AHC. Pursuant to Practice Book § 17-14 and General Statutes § 52-192a, the plaintiff filed an offer of compromise for $18,000 on January 21, 2010.   The amount recovered by the plaintiff, $24,571.15, is greater than the amount certified in the plaintiff's offer of compromise, therefore, the plaintiff is entitled to eight percent annual interest on the amount recovered.  General Statutes § 52-192a.   The offer of compromise was filed less than eighteen months from August 29, 2008, the date on which the complaint was filed.   Therefore, the plaintiff is entitled to interest accruing from August 29, 2008, until the date of this judgment.

The court calculates the interest as follows:  Eight percent simple interest on $24,571.15 from August 29, 2008 to June 15, 2010.   Using these dates, 655 days passed between the filing of the complaint and the entry of this judgment.   The court further uses a 360-day accounting year to determine a per diem of $5.46.   See Hughes v. U-Haul Co., Superior Court, judicial district of New Haven, Docket No. CV 96 0396218 (January 21, 2003, Robinson, J.) (calculating simple interest based on 360-day calendar year).   The total amount of interest awarded to the plaintiff is $3,576.47.

FOOTNOTES

FN1. No counterclaim exists within this pleading..  FN1. No counterclaim exists within this pleading.

FN2. It may be useful to note the distinction between injury, damage, and damages.  “Injury is the illegal invasion of a legal right;  damage is the loss, hurt, or harm which results from the injury;  and damages are the recompense or compensation awarded for the damage suffered.”  Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff & Kotkin, 247 Conn. 48, 78, 717 A.2d 724 (1998)..  FN2. It may be useful to note the distinction between injury, damage, and damages.  “Injury is the illegal invasion of a legal right;  damage is the loss, hurt, or harm which results from the injury;  and damages are the recompense or compensation awarded for the damage suffered.”  Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff & Kotkin, 247 Conn. 48, 78, 717 A.2d 724 (1998).

Burgdorff, Mary-Margaret D., J.