Cathy A. Striegel et al v. LLC (2012)

MEMORANDUM OF DECISION

The plaintiffs, Cathy A. Striegel and David Heimbinder entered into an auction consignment contract (contract) with the defendant, Antiques at Pompey Hollow, LLC, which is owned and controlled by the defendant, Thomas G. Degnan.   The contract was signed on August 21, 2008;  at least thirty-nine items of personal property were described in the listing section of the contract.   The contract concerned an auction to be held on November 21, 2008.   The defendants took possession of the plaintiffs' personal property items prior to the November 21, 2008 auction date.   Several items were sold at the November 21, 2008 auction.   The contract provided that the defendants would pay the plaintiffs all monies due them no more than ten days after the defendants received payment for the items sold.   The plaintiffs received their first payment for the items sold at the November 21, 2008 auction on June 17, 2009.   By not making payment in accordance with its terms, the defendants breached the contract.   The plaintiffs have failed to prove damages resulting from the delayed payment for goods sold at the auction.   In count one the plaintiffs allege breach of contract.   The plaintiffs have proven that the defendants breached the contract.   Although they have not proven actual damages, they are entitled to nominal damages in the amount of $10.00.

The contract did not contain any provision regarding disposition of the plaintiffs' personal property that was not sold at the November 21, 2008 auction.   The defendants did retain possession of the plaintiffs' unsold property, with the acquiescence of the plaintiffs, for a period of time.   The possession of the plaintiffs' property by the defendants created a bailment.

“A bailment involves a delivery of the thing bailed into the possession of the bailee, under a contract to return it to the owner according to the terms of the agreement ․ A relationship of bailor-bailee arises when the owner, while retaining general title, delivers personal property to another for some particular purpose upon an express or implied contract to redeliver the goods when the purpose has been fulfilled, or to otherwise deal with the goods according to the bailor's directions ․ In a bailment, the owner or bailor has a general property [interest] in the goods bailed ․ The bailee, on the other hand, has mere possession of items left in its care pursuant to the bailment ․” (Citations omitted;  internal quotation marks omitted.)  B.A. Ballou & Co. v. Cititrust, 218 Conn. 749, 753, 591 A.2d 126 (1991).

During the period of the bailment, the defendants sold various items of the plaintiffs' property at various auctions and venues.   Although not always promptly, the defendants did pay the plaintiffs the amounts due from the sales.   In most cases, the defendants gave summary details of the sale.   In February 2009 the plaintiff Cathy Striegel stated that she wanted the defendants to return the unsold property.   The defendants agreed to deliver the unsold property to the plaintiffs in return for a $300 delivery charge, which the plaintiffs agreed to pay.   The defendants never delivered the items.   In March of 2010 Striegel went to the defendants' place of business to retrieve her property, but was able to reclaim only one floor lamp.   On September 21, 2011, after this litigation commenced, the defendants tendered, through their attorney, thirteen lots of the plaintiffs' property.   The defendants did not return or account for all of the plaintiffs' property.

The plaintiffs were able to construct an accounting spread sheet, Plaintiffs' Exhibit 25, which lists all of the items given to the defendants, the date they were sold or returned, and the date and amount of payments for sold items.   The exhibit also shows that nine items were not sold and have not been returned.   The plaintiffs have valued these nine items at $2,495.00.   The court accepts the plaintiffs' values for these nine items.

At the trial, the defendants attempted to pay the plaintiff's $250.00 for five of the missing items.   The defendants claimed they were sold for a total value of $360.00.   The court does not find the defendants' claims on this point credible.   The defendants have failed to account for or return all of the plaintiffs' property.   The plaintiffs are entitled to damages for the defendants' failure to return the bailed property.   The plaintiffs are entitled to damages on the second count, bailment, in the amount of $2,495.00.

In count three, the plaintiffs claim that the defendants have breached a fiduciary duty to the plaintiffs.   A bailment does create a fiduciary relationship and hence, the defendants did owe the plaintiffs a fiduciary duty.   See Falls Church Group v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84 (2007).   The plaintiffs have established breach of fiduciary duty, however the damages due the plaintiffs under this count have been awarded in the bailment count.

In the fourth count, the plaintiffs claim they are entitled to an accounting from the defendants.   The defendants did provide sufficient information to the plaintiffs to enable them to construct the personal property accounting, Exhibit 25.   Furthermore, the court accepts the defendant's testimony that he does not have any additional information regarding the items he claims to have sold.   For the foregoing reasons, the court concludes the plaintiffs have not sustained their burden of proof regarding their claim for an accounting.

In their fifth count, the plaintiffs claim that the defendants violated the Connecticut Unfair Trade Practices Act (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 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 ․ Thus a violation of CUTPA may be established by showing either an actual deceptive practice ․ or a practice amounting to a violation of public policy ․ In order to enforce this prohibition, CUTPA provides a private cause of action to [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 [prohibited] method, act or practice.”   (Citations omitted;  internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 18–19, 938 A.2d 576 (2008).

The breach of contract found earlier, alone, would not be enough to support a violation of CUTPA.   The defendants' actions during the bailment, a fiduciary relationship, are another matter.   As noted earlier, the defendants did not deliver the plaintiffs' property when requested in February 2009.   The defendants did not return the property when the plaintiffs requested it in March 2010.   A portion of the property was not tendered until September 2011.   Nine items of the plaintiffs' property have never been returned.   The defendants' actions are unfair and unethical and have caused substantial injury to the plaintiff consumers;  these actions support a finding that the defendants have violated CUTPA.   Damages have already been awarded for the injury, however the plaintiffs are entitled to attorneys fees and costs.   If the plaintiffs seek attorneys fees and costs they should timely file a motion pursuant to Practice Book § 11–21.

Judgment may enter for the plaintiffs on count one in the amount of $10.00 and on counts two, three and five in the amount of $2,495.00, for total damages of $2,505.00.   Attorneys fees and costs on count five may be awarded at a later date.   Judgment may enter for the defendants on count four.

Domnarski, J.

Domnarski, Edward S., J.