Daphne B. Noyes v. LLC (2012)

MEMORANDUM OF DECISION

This case is an action by the plaintiff, Daphne B. Noyes, against the defendants, Thomas Degnan, and his company, Antiques at Pompey Hollow, LLC. In 2008, the plaintiff contracted with the defendants for the sale, at auction, of 333 items from her parents' large antique collection, which she had inherited upon their deaths.   She alleges that the defendants sold only a fraction of the items at the auction as agreed, and the rest were either sold contrary to the terms of the contract, or were never accounted for at all despite numerous requests.   The complaint is in ten counts, five counts against each defendant, for breach of contract, unjust enrichment, conversion, negligent infliction of emotional distress and violation of the Connecticut Unfair Trade Practices Act (CUTPA).   For the following reasons, the court enters judgment in favor of the plaintiff, and against both defendants, on the unjust enrichment and CUTPA counts only (Counts III, IV, IX and X).  Judgment is entered in favor of the defendants on all other counts.   The court awards damages in the amount of $17,673.25, plus costs and attorneys fees.   The amount of attorneys fees and costs shall be established at a later proceeding to be initiated by the plaintiff pursuant to Practice Book § 11–21.

I

This matter was tried to the court.   The court heard the testimony of Daphne B. Noyes, Newbold Noyes, Thomas Degnan and Ann Frink, and it reviewed nine exhibits consisting of, inter alia, a contract, various financial records, photographs and emails.   The parties also filed briefs and reply briefs.

The court finds the following facts:  After her parents died, the plaintiff, Daphne B. Noyes, inherited a large collection of antiques.   Her parents were avid antique collectors, and they passed down their collection as well as their enthusiasm and knowledge of the field to their daughter, and she does the same with her family.   Plaintiff's parents owned books about antiques, and the plaintiff helped research and study the items they purchased.   She and her parents kept careful records of the treasured objects in the collection.   The items were kept at her parents' home on Martha's Vineyard, MA.

After their deaths, Daphne decided to sell parts of the collection at auction.   She was referred to the defendants, Thomas Degnan, and his business, Antiques at Pompey Hollow, LLC of Ashford, CT, and she made arrangements with Degnan to have him visit Martha's Vineyard to view the collection.   He viewed the collection twice.   At the second visit, he prepared a consignment contract which Degnan and Noyes both signed.   The pertinent provisions were as follows:

# 1. The parties to this contract are Daphne Noyes ․ hereafter for the purposes of this contract to be referred to as the owner and Antiques at Pompey Hollow LLC hereafter for the purposes of this contract to be referred to as the broker.

# 2. Both parties agree that the owner consigns the listed property to the broker for the purpose of being sold at the broker's auction.

# 3. Both parties agree that the broker will offer the goods listed in section 2 of this agreement in his autumn 2008 auction to be held in Norwalk, CT.

# 4. Both parties agree that the broker will deduct commissions of 25% of the sales price of merchandise sold, for a hammer price of $5,000.00 or less, 15% of the hammer price of merchandise sold for $5,000.00 to $10,000.00, 10% of all merchandise sold for a hammer price of over $10,000.00 as compensation for his services.

# 5. Both parties agree that the broker will pay the owners all monies due owner, no more than ten days after the broker has received payment for goods sold.

# 6. Both parties agree that the broker will pay all expenses for the promotion and execution of the sale and that no additional charges for services such as moving and or insurance will be charged to or deducted from proceeds due owners.

# 7. Both parties agree that once signed this contract may not be broken, changed, amended, altered, added to or deleted from by either party, their heirs, relatives, family, legal representatives or others without the written agreement of both and only those parties identified in paragraph one of this agreement, further, additional items may be added at a later date by the initialing next to such items by both parties identified in paragraph # 1 of this contract.

# 8. The owner states here that she is the rightful owner of the consigned property subject to this agreement and or has the legal right to enter into an agreement to sell that property.

# 9. The broker agrees to insure all consigned property subject to this agreement for the low estimate recorded in section 2 of this agreement.

# 10. By the signing of this agreement both parties agree that the broker has taken possession of the subject property listed in section 2 of this agreement.

Owner Daphne Noyes/s/ 6 October 2008

Broker Thomas G. Degnan/s/ 10/6/08

Contract dated October 6, 2008

Attached to the contract were 12 pages of lists of items with low/high value estimates.   Each item was assigned a lot number.   The lot numbers went from 1 to 334.   Four items had reserve values, indicating that it was agreed that the items would not be sold for less than the reserved value.   Lot number 276, a sampler, had a reserve value of $800.00;  lot number 278, a secretary, had a reserve value of $2,000.00;  lot number 282, a Heriz ¹ oriental rug, had a reserve value of $3,000.00;  lot number 320, a scrimshaw whalebone busk,² had a reserve value of $800.00.   However, there appeared to be pages missing from the list.   The lot numbers skipped from 70 to 186 and from 309 to 320.   Lot number 236 had a line drawn through it with an indication “NFS.” Thus, the record suggests a total of 333 items were given to the defendants, but documentation was missing for 126 items.   The parties never explained this discrepancy.   And, none could give an exact number of the items in dispute.   The plaintiff testified that the number of items consigned was “[i]n the neighborhood of 300 total.”   The defendant, Degnan, admitted that there were 220 items, or “somewhere thereabouts.”

The group packed up most of the items and put them in Degnan's van for transport off the island.   Daphne's ex-husband helped make arrangements with a mover to have the largest items, which could not fit into Degnan's van, shipped to Degnan's business in Connecticut or to Daphne's house in Cambridge, MA, or to her daughter's house in Newton, MA, for Degnan.   The items sent to Degnan were shipped COD.

The auction was conducted on November 21, 2008 in Norwalk, CT. It went poorly.   Degnan attributed the low interest to a concurrent stock market “crash.”   He withheld many items from sale in the hopes of better success later.   Sixty-four items were sold.   A total of $6,130.00 was collected.   Minus his 25% commission of $1,532.50, Degnan sent the plaintiff a check for $4,597.50 and a list of items sold by lot number, description and hammer price.   That left 269 items outstanding.

Along with the check, Degnan sent the following cover letter:

Antiques at Pompey Hollow LLC

12/01/08

Dear Daphne,

Please find enclosed results and check for the sales you realized in our Nov. 21st 2008 auction.   We were pleased with the results from those items sold, but would have preferred to sell a good deal more merchandise.   I hope you are pleased with the results.

We will continue to offer your remaining goods at the different venues we engage and will honor any reserves that were in the auction contract.   However, as no buyer's premium is charged at a retail sale we charge a commission of one third of the sales price for a direct sale.   Any proceeds due you from such sales will be paid monthly by the 5th of the month following the month in which the goods are sold.

If you have any questions or concerns, please feel free to call me at any time.

Thank you for your business,

/s/

Thomas G. Degnan

Letter dated December 1, 2008

The plaintiff testified that there was no such agreement as to such further business with Degnan, or that the agreement was different, however, she did not object to the failure of the defendant to return her property, and, instead, continued to inquire, cordially, as to the results of the subsequent auctions proposed.   Degnan was likewise courteous, but not prompt or thorough in his responses.   He supplied the plaintiff mostly with excuses for not keeping her up to date on results.   He did not give her an accounting of what items had been sold and what remained.   Eventually, on March 16, 2009, he sent her a listing of eleven items sold, giving the lot numbers and descriptions with bid amounts.   He indicated a sales total of $2,210.00, kept a commission of $224.00 and gave her a check in the amount of $1,896.00 for the remainder.   The plaintiff accepted the sales outcomes.   Next, on May 11, 2009, he sent her a list of five items sold showing lot numbers and descriptions and bid amounts showing a total sale $500.00.   He kept a commission of $125.00 and gave her a check in the amount of $375.00.   The plaintiff accepted the sales outcome.   Next, on June 17, 2009, he sent her a list of two items sold without lot numbers.   The items sold for $1,550.00.   He kept a commission of $312.50 and gave her a check for the balance of $1,237.50.   The plaintiff accepted the check.   Plaintiff continued to request an accounting of the property, but heard nothing further from the defendants other than excuses.   Degnan finally stopped communicating altogether.   Thus, as of June 2009, the defendants reported a total of 82 items sold. 251 items were unaccounted for.   This lawsuit was commenced by service on April 27, 2010.

At trial, the plaintiff compiled a list of 141 missing items, or items incorrectly sold, most with lot numbers, and with evaluations estimating that they were worth, conservatively, $23,565.00 at auction.   It is unexplained why the list accounted for less than the full total missing, although the plaintiff testified that she put together the list to the best of her ability.   The court finds her list and valuations to be credible.

At trial, the defendant supplied a list of 108 additional items he claims he sold in January and February 2009 for a total of $2,600.00.   He testified that this was an actual list of items sold at auction, in addition to the 82 items previously reportedly sold as of June 2009, but he said that he did not make that list.   He also testified that he sold the secretary sometime in the first quarter of 2009 after an auction, but he provided no records documenting that transaction.   The secretary, which was reserved at $2,000.00, was purportedly sold for $500.00.   His records and the testimony purportedly showed that the sampler, which was reserved at $800.00, was sold for $300.00.   The rug, which was reserved at $3,000.00, was purportedly sold for $1,300.00.   The busk, which was reserved at $800.00, was purportedly sold for $400.00.   Degnan testified that the plaintiff agreed with his judgment to sell those items at less than the reserve, and he used his best efforts to liquidate the items at weekly auctions, or by sale other than at auction.   The plaintiff denied any such agreement.   Degnan testified that he sold all items consigned to him, except for two items currently in the trunk of his car:  an etching and a set of mirrors.   He testified that he did not send any additional proceeds to the plaintiff after the June 2009 check, because he could not profitably absorb the costs of the items that had been shipped and charged to him, and due to other time consuming disagreements with the plaintiff.   Degnan's testimony as to his sale of the 108 items in January and February 2009, and his testimony that he sold all but two items consigned to him, was not credible.   His list was less than the full total of items missing, his list does not contain lot numbers, and most descriptions of items do not match the descriptions in the original contract.   His explanation for selling items below reserve was inconsistent with his December 1, 2008, proposal letter.   His claim for costs of shipment was inconsistent with paragraph # 6 of his contract.   The court finds the Degnan list of 108 items and the related testimony to be not credible at all.

The defendants do not contest that the plaintiff contracted with, and conducted her business with, both Degnan and Antiques at Pompey Hollow, LLC at all times pertinent in this matter.   There was also evidence in this case that the defendants were experiencing financial difficulties in this time period.

II

Counts I and II of the plaintiff's complaint allege causes of action for breach of contract.   The elements of a breach of contract action are:  the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.  Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004);  T. Merritt, Connecticut Elements of an Action (2010–2011 Ed.) § 4:1.

The evidence in this case established that the parties entered into an enforceable consignment contract on October 6, 2008.  “A delivery of goods to a merchant ‘on consignment’ is deemed a sale with respect to claims of creditors of the merchant.   Where a bailee converts property by actual sale to third parties the bailor may waive the tort and affirm the sale.  Jones v. Hoyt, 23 Conn. 157, 166;  Rock–Ola Manufacturing Corporation v. Music & Television Corporation, 339 Mass. 416.   A consignor may sue in contract where a merchant wrongfully retains goods delivered to him on consignment.  Felder v. Reeth, 34 F.2d 744, 746 (9th Cir.);   see annot., 97 A.L.R. 250.   In the latter case the merchant is not charged as for money had and received but as for goods sold and delivered, and the contract implied is one to pay the reasonable value of the property delivered.  Terry v. Munger, 121 N.Y. 161.”

“A consignment bears some resemblance to a sale or return and to a sale on approval.   As in the former, the goods are delivered for the purpose of resale.   As in the latter, unsold goods are expected to be returned to the consignor.   In the case of a sale on approval, acceptance completes the transaction.   One method of acceptance, under General Statutes § 42a–2–327, is the failure seasonably to notify the seller of an election to return the goods.   If the same principle is applied to a consignment, the failure of the consignee, at the termination of the consignment period, seasonably either to return the goods or to notify the consignor of his election to return would permit the consignor to treat the transaction as a completed sale.”   International Looms, Inc. v. Jono Textile Co., 34 Conn.Sup. 599, 600–01, 379 A.2d 3, cert. denied, 172 Conn. 719 (1977);  see also Meriden Trust & Safe Deposit Co. v. H & R Litho Sales & Services, Inc., Superior Court, judicial district of New Haven, Doc. No. CV 93–243143 (November 18, 1994, Gaffney, J.).

In the instant case, the defendants complied with the contract with respect to the items sold at auction on November 21, 2008 in Norwalk, CT. With respect to the rest and remainder, the defendants did not return the goods or notify the plaintiff of their election to return them.   Such a retention of the goods ordinarily would have converted the transaction from a consignment into a sale at the election of the consignor.  International Looms, Inc. v. Jono Textile Co., supra, 34 Conn.Sup. 602.   However, neither the plaintiff nor the defendants made any election.   Instead, they converted to a new course of dealing roughly intending to liquidate the remaining items.   However, the manner, terms, duration and commissions were uncertain and continuously changing.   Under these circumstances, the court finds that the plaintiff has failed to prove that the defendants breached their contract after the November auction.   It also finds no new enforceable contract after the November auction.

In Connecticut, the basic requirements for the formation of a contract are well settled.   As our Supreme Court observed in Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 268 A.2d 391 (1970):

It is elementary that to create a contract there must be an unequivocal acceptance of an offer.   In the case of a bilateral contract, the acceptance of the offer need not be express but may be shown by any words or acts which indicate the offeree's assent to the proposed bargain.  W.G. Maltby, Inc. v. Associated Realty Co., 114 Conn. 283, 288, 158 A. 548;  Frederick Raff Co. v. Murphy, 110 Conn. 234, 239, 147 A. 709.   The acceptance of the offer must, however, be explicit, full and unconditional.  Woodbridge Ice Co. v. Semon Ice Cream Corporation.   81 Conn. 479, 487, 71 A. 577.   And the burden rested on the plaintiff to prove a meeting of the minds to establish its version of the claimed contract.  Lucier v. Norfolk, 99 Conn. 686, 699, 122 A. 711.

Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., supra, 159 Conn. 246.

To have a valid and binding contract, there must be a bargain in which there is a manifestation of mutual assent.  Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981).   Otherwise stated, the parties must have an “identical understanding” of the matters to which they have mutually agreed in their offer and acceptance.  Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., supra, 159 Conn. at 249;  Shulman v. Hartford Public Library, 119 Conn. 428, 433, 177 A. 269 (1935).   If the minds of the parties have not truly met, no enforceable contract exists.  Fortier v. Newington Group, Inc., 30 Conn.App. 505, 510, 620 A.2d 1321, cert. denied, 225 Conn. 922, 625 A.2d 823 (1993).  “If the parties have not agreed to all the essential terms, but have merely engaged in preliminary negotiations, there is no contract.”   17A Am.Jur.2d, Contracts § 37 (2004).

In the instant case, the court finds that after the November auction, the parties sought to continue a relationship to liquidate the plaintiff's inherited antiques, but never achieved a meeting of the minds on the terms sufficient to establish a binding contract.   Therefore, the plaintiff has failed to prove that the contract was breached by the defendants.

Under the circumstances, the court enters judgment for the defendants on Counts I and II.

III

Counts III and IV allege unjust enrichment.  “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 benefited, (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);  Laser Contracting, LLC v. Torrance Family Ltd. Partnership, 108 Conn.App. 222, 230, 947 A.2d 989 (2008).

“[T]he measure of damages in an unjust enrichment case ordinarily is not the loss to the plaintiff but the benefit to the defendant.”  Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 285, 649 A.2d 518 (1994).   It is the plaintiffs' burden to prove the elements of a claim of unjust enrichment, including that the defendants were benefited.   See New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 451–52, 970 A.2d 592 (2009).   Exact evidence of the value of the benefit is often unavailable in these cases.   Our decisional law requires only a “reasonable approximation” of the benefit.  “Where damages are appropriate but difficult to prove the law eschews the necessity of mathematical exactitude.   Such exactitude in the proof of damages is often impossible, and ․ all that can be required is that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation which will enable the trier to make a fair and reasonable estimate.”  (Citation omitted;  internal quotation marks omitted.)  Schirmer v. Sousa, 126 Conn.App. 759, 773, 12 A.3d 1048 (2011).

In the instant case, despite the lack of enforceable contract, the plaintiff demonstrated, and the court so finds, that the defendants received at least 141 items of property from the plaintiff for liquidation that could have fetched, conservatively, $23,565.00 at auction during the relevant time period.   Degnan's explanation as to what he did with those items, and his documentation of their actual sale at auction or otherwise, where supplied, was not credible.   Those items remain unaccounted for.   The value of that property, as testified to by the plaintiff, is accepted by the court at $23,565.00.   The unjust benefit to the defendant, however, must take into account the debits involved in realizing that value.   The plaintiff expected to pay, and the defendants expected to earn, some fair commission to liquidate the property The evidence in this case showed that the plaintiff could probably expect to pay, and the defendants expect to earn, at least a commission of 25 per cent in that effort, which should be subtracted from the value of the property to correctly calculate the value of the unjust benefit.   Thus, the plaintiff has proven that the defendants received an unjust benefit amounting to the value of the property at auction minus a 25 per cent commission.   That amounts to $17,673.25.   Therefore, on Counts III and IV, the court renders judgment for the plaintiff and against the defendants in the amount of $17,673.25.

IV

Counts V and VI allege conversion and statutory civil theft.   Conversion is an unauthorized assumption and exercise of the right of ownership over property belonging to another, to the exclusion of the owner's rights.   See, e.g., Deming v. Nationwide Mutual Ins. Co 279 Conn. 745, 770, 905 A.2d 623 (2006);  Hi–Ho Tower, Inc. v. Com–Tronics, Inc., 255 Conn. 20, 43, 761 A.2d 1268 (2000);  Devitt v. Manulik, 176 Conn. 657, 660, 410 A.2d 465 (1979).   Similarly, statutory theft is the stealing of another's property or the knowing receipt and concealment of stolen property.   See General Statutes § 52–564 (“[a]ny person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages”).   Statutory theft, however, requires an element over and above what is necessary to prove conversion, namely, that the defendant intentionally deprived the complaining party of his or her property.  Suarez–Negrete v. Trotta, 47 Conn.App. 517, 521, 705 A.2d 215 (1998).   To prevail on either claim, the party alleging conversion or statutory theft must prove a sufficient property interest in the items in question.   See Falker v. Samperi, 190 Conn. 412, 419–20, 461 A.2d 681 (1983) (plaintiff's property rights are at heart of conversion, and proof of ownership is plaintiff's burden);  Discover Leasing, Inc. v. Murphy, 33 Conn.App. 303, 309, 635 A.2d 843 (1993) (prima facie case for conversion and statutory theft requires proof that property in question “belonged to” plaintiff).   Accordingly, a claim for conversion may be brought when the relationship is one of bailor and bailee but not when it is one of debtor and creditor.   See United States v. Johnston, 268 U.S. 220, 226–27, 45 S.Ct. 496, 69 L.Ed. 925 (1925).   This distinction is especially important in cases involving auctioneers.   If the property transferred to the auctioneer is treated as a bailment, it constitutes property that belongs to the plaintiff, and, therefore, actions in violation of the bailment relationship may give rise to claims for conversion and statutory theft, but a claim for money owed on a debt is not sufficient to establish such causes of action.  Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 421, 934 A.2d 227 (2007).

In the instant case, after the November 21, 2008 auction, the conduct of the parties blurred into an undefined and frequently changing relationship.   The court cannot conclude that the status of the parties was that of bailor and bailee after that date.   Moreover, the status of the property after that date was insufficiently established at trial.   Most of it was simply unaccounted for.   The plaintiff failed to prove that this circumstance was intentional.   Notwithstanding these failures of proof, it cannot be doubted that the plaintiff fairly expected and is owed money from the defendants.   But, she seeks proceeds, not property.   Such a claim does not give rise to a claim for conversion or statutory theft in this context.  Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, Id.

Accordingly, the court enters judgment for the defendants on Counts V and VI.

V

Counts VII and VIII allege negligent infliction of emotional distress.  “To prevail on a claim of negligent infliction of emotional distress, a plaintiff is required 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.”  (Citation omitted;  internal quotation marks omitted.)  Szekeres v. Szekeres, 126 Conn.App. 829, 844–45, 16 A.3d 713, cert. denied, 300 Conn. 939, 17 A.3d 475 (2011).  “Thus, [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.”   (Citations omitted;  internal quotation marks omitted.)  Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 1221 (2010).

“The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm ․ In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm.”  (Citations omitted;  internal quotation marks omitted.)  Stancuna v. Schaffer, Id. “[T]he foreseeability of the precise nature of the harm to be anticipated [is] a prerequisite to recovery even where a breach of duty might otherwise be found.”  (Citation omitted;  internal quotation marks omitted.)  Perodeau v. City of Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002).

In the instant case, the plaintiff has failed to prove that the defendants should have foreseen that their conduct would cause an unreasonable risk of a health-injuring type of distress required by this cause of action.   To the contrary, the plaintiff continued to do business with the defendants, and the parties engaged in cordial communication, long after the expiration of their written consignment contract, and long after the defendants' purported efforts to liquidate plaintiff's antiques failed to produce results.   Moreover, the court does not find credible plaintiff's argument that she was severely distressed by the defendants' failure to account for the treasures that had been in her family for generations.   Plaintiff shipped those treasures away COD. She did not want the property, she wanted the cash.   She was distressed by, in her own words, the “indignity and injustice of not having received payment” and having to sue to get paid.   Being drawn into litigation is inherently distressing, and does not give rise to a negligent infliction of emotional distress claim.   See Stancuna v. Schaffer, supra, 122 Conn.App. 491.

VI

Counts IX and X allege CUTPA violations.   The criteria for a CUTPA action are well settled.   It is “remedial in character ․ and must be liberally construed in favor of those whom the legislature intended to benefit.”  (Citations omitted;  internal quotation marks omitted.)  Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 379, 880 A.2d 138 (2005).   “CUTPA, by its own terms, applies to a broad spectrum of commercial activity.   The operative provisions of the Act, General Statutes § 42–110b(a), states merely 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.”   Trade or commerce, in turn, is broadly defined as “the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state.”   General Statues § 42–110a(4);  Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 492, 656 A.2d 1009 (1995).   The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce, and “whether a practice is unfair depends upon the finding of a violation of an identifiable public policy.”  Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257, 550 A.2d 1061 (1988).   A CUTPA claim may be brought in the Superior Court by “[a]ny 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 or practice prohibited by section 42–110b ․” General Statutes § 42–110g(a).  “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 ․ 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.”  (Citation omitted;  internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 19, 938 A.2d 576 (2008).  “This language has been the foundation of the analysis defining the meaning of ‘unfair acts or practices' under CUTPA and has been cited repeatedly by the Connecticut Supreme Court.”   R. Langer, J. Morgan and D. Belt, Unfair Trade Practices (12 Conn. Practice Series, 2003) § 2.2. Under CUTPA, a plaintiff can recover actual damages for any ascertainable loss of money or property.  General Statutes § 42–110g(a).   Costs, attorneys fees and punitive damages may also be awarded in appropriate situations.  General Statutes § 42–110g(a) and (d).

In the instant case, much of the same conduct of the defendants that persuaded the court that they should be liable for unjust enrichment, also establishes their liability under CUTPA.   See Associated Investment Co., Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 159, 645 A.2d 505 (1994) (discussing the essential equitable character of CUTPA).   Despite the lack of a certain contract, the defendants retained the plaintiff's property and led her to believe that they were working on liquidating it.   However, they never produced an accounting or explanation of the disposition of over 140 items and produced only excuses until after she brought suit.   After that, their explanation and purported documentary proof of disposition lacked credibility.   To date, the court concludes that the property is unaccounted for.   While a simple breach of contract or carelessness might not result in liability under CUTPA, the defendants have left a trail of deceit and deception in addition to their mishandling of the plaintiff's property.   The court finds them liable under CUTPA on Counts IX and X. The plaintiff's ascertainable losses are the same as those found under the unjust enrichment counts.

Having already awarded damages for this injury earlier, the court will not award damages twice for the same injury.

However, in addition to the award of damages, the plaintiff is eligible for an award of attorneys fees and costs under CUTPA.  Barco Auto Leasing Corp. v. House, 202 Conn. 106, 120, 520 A.2d 162 (1987).   The amount of attorneys fees and costs will be established in a later proceeding to be initiated by the plaintiff pursuant to Practice Book Sec. 11–21.

The plaintiff also requests punitive damages.   Those awards are discretionary.  “A court may exercise its discretion to award punitive damages to a party who has suffered any ascertainable loss pursuant to CUTPA.   See General Statutes § 42–110g(a).   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 ․ Accordingly, when the trial court finds that the defendant has acted recklessly, [a]warding punitive damages ․ under CUTPA is discretionary ․ 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.”  (Citations omitted;  internal quotation marks omitted.)  Thorsen v. Durkin Development, LLC, 129 Conn.App. 68, 76–77, 20 A.3d 707 (2011).

Pursuant to the applicable legal tests, the court declines to issue such an award in this case.   The court attributes the defendants' conduct to poor record keeping and economic distress.   Also, the damages and attorneys fees and costs being awarded will sufficiently remedy the wrong committed and compensates the plaintiff for her costs of litigation in this case.

VII

For all of the foregoing reasons, the court renders judgment in favor of the plaintiff and against the defendants on Counts III, IV, IX and X in the amount of $17,673.25, plus attorneys fees and costs to be established in the appropriate post-trial proceeding to be initiated by the plaintiff.   On all other counts, the court renders judgment in favor of the defendants.

THE COURT

Robert F. Vacchelli

Judge, Superior Court

FOOTNOTES

FN1. A Heriz rug is “[a] durable, finely woven Persian rug typically having a large central, often diamond-shaped medallion design with intricate background decoration.”   American Heritage Dictionary (5th Ed., 2011)..  FN1. A Heriz rug is “[a] durable, finely woven Persian rug typically having a large central, often diamond-shaped medallion design with intricate background decoration.”   American Heritage Dictionary (5th Ed., 2011).

FN2. A rigid element of a corset.   See Busk, Wikipedia, http:// en.wikipedia.org/wiki/Busk..  FN2. A rigid element of a corset.   See Busk, Wikipedia, http:// en.wikipedia.org/wiki/Busk.

Vacchelli, Robert F., J.