USA v. Jeffrey Olgin (2014)

MEMORANDUM OF DECISION

Plaintiff's three-count complaint was tried over two days before the court.   Post-trial briefs were filed by both parties and closing arguments were heard by the court on January 7, 2014.   This action arose out of two credit card debts owed by the defendant to the plaintiff.   There is no dispute as to liability on those two debts.   Count one is an action for account stated.   Summary judgment was granted on Count One in favor of the plaintiff as to liability on July 29th 2011.   The parties agree that the plaintiff is entitled to $1,707.57 in damages on count one.   The remaining counts are a breach of contract claim and a CUTPA claim arising out of plaintiff's attempt to collect the two credit card debts in small claims court.

The court, having carefully considered the credible evidence presented at trial, the relevant statutory and case law, as well as having observed the demeanor of the parties and witnesses, hereby makes the following findings of facts and law.

This dispute arose from the plaintiff's attempts to collect the two credit card debts owed by the defendant in small claims court on July 29, 2009.   The defendant is a licensed attorney whose practice has included representing debtors in small claims court.   He has had a history of representing defendant debtors in actions brought by Capital One wherein, on behalf of his client, he disputed the debt.   If Capital One did not have a witness available to testify as to the validity of the debt in those matters, Capital One was not able to prevail.   Capital One, aware of Mr. Olgin's past practices, brought a witness to the small claims proceeding to recover the debt from the defendant on his two credit card accounts, assuming that he would dispute the debt.   When the defendant realized that the plaintiff had a witness prepared to testify as to the underlying debt, the defendant entered into settlement discussions with plaintiff's attorney which were then memorialized in writing and signed by the defendant and the representative of the plaintiff.   The agreements provided that for each account, Mr. Olgin could make payments over a period of time, and if the total agreed upon sums of $1,097.53 and $1,285.93 respectively, which included costs, were paid in full by September 30, 2009, the small claims matters would be withdrawn by the plaintiff and the payment would constitute satisfaction in full of the amount due on each account.   In addition, the agreements provide that both matters would be continued for ninety days, and if the defendant failed to make the payments specified, judgment would enter by agreement of the parties for the amounts stated in the agreement, minus payments made by the defendant.   Finally, the agreements provided that “no witness will be required to appear on behalf of plaintiff at a later date, and the plaintiff shall not be prejudiced by the absence of a witness.”   The defendant testified that he reviewed these agreements before he signed them.

The defendant did not make payment within the period specified.   The matter had been continued to December 17th pursuant to the agreement.   On that date, Mr. Olgin contested the validity of the settlement agreements, arguing that the agreements did not represent the entire agreement of the parties.   He argued that there were subsequent agreements of the parties that rendered the July 30, 2009 agreements incomplete.   The small claims magistrate gave the parties an opportunity to brief the matters and found that, as to each agreement, there was an issue of fact as to whether the agreement constituted the complete agreement of the parties.   As a result, the two small claims actions were set down for a small claims hearing, at which time, the defendant objected to the introduction of documents substantiating the debts.   The plaintiff did not have a witness present and instead withdrew the small claims actions and filed this three-count complaint.   On count two, breach of contract, the plaintiff seeks the damages set forth in the settlement agreements totaling $2,364.02.

In count three, the plaintiff seeks actual damages as well as attorneys fees and costs.   Plaintiff argues that the defendant's practice of disputing a valid claim to force the plaintiff to bring a witness, and his conduct of entering into a valid settlement agreement when the plaintiff's witness was present and disavowing the agreement when the witness was no longer present, rise to the level of an “unfair or deceptive act or practice in the conduct of a trade or commerce” within the meaning of CUTPA, Connecticut General Statutes § 42–110b(a).

The defendant testified that he would have paid the amounts due, however, the plaintiff refused to give him simultaneous releases.   He also claims that the agreements were “proposed” and not final agreements.   He claims that this court cannot determine the validity of the agreements because the magistrate has already ruled that there was “an issue of fact” and that issue should have been determined in the court it was brought in, namely small claims, although he acknowledges that the validity of the written settlement agreements was not determined by the magistrate.   He also claims that his representation of his clients is separate and apart from his self-representation and that the plaintiff had other choices than to present its own witness to lay a foundation for the debt by simply calling the defendant to the stand and asking him to acknowledge the credit card debt.   He denies that his defense of his indebtedness can be the basis for a CUTPA claim.¹

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 134 Conn.App. 785, 790, 41 A.3d 674, cert. granted on other grounds, 305 Conn. 920, 47 A.3d 881 (2012.)

The Connecticut Appellate Court has stated that “[a] settlement agreement is a contract among the parties.”  (Internal quotation marks omitted).  Amica Mutual Ins. Co. v. Welch Enterprises, 114 Conn.App. 290, 294, 970 A.2d 730 (2009).   Therefore, the court's analysis is informed by well settled principles of contract law.  “In ascertaining the contractual rights and obligations of the parties, we seek to effectuate their intent, which is derived from the language employed in the contract, taking into consideration the circumstances of the parties and the transaction.”  Cantonbury Heights Condominium Ass'n, Inc. v. Local Land Development, LLC, 273 Conn. 724, 734, 873 A.2d 898 (2005).   The Supreme Court has noted that, “in construing the meaning of terms in a contract, the conduct of the parties regarding their use is a proper consideration ․ Indeed, their conduct is given great weight in the interpretation of the agreement ․ This is so because the parties to an agreement know best what they meant, and their action under it is often the strongest evidence of their meaning.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Levine v. Massey, 232 Conn. 272, 290, 654 A.2d 737 (1995).

This court need not look beyond the four corners of the agreement to determine the intent of the parties.  “It is well settled that where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms ․ Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact ․ [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.”  (Citations omitted;  internal quotation marks omitted.)  Amica Mutual Ins. Co. v. Welch Enterprises, supra, 114 Conn.App. 294.   The questions of whether a contract includes an ambiguity requiring the court to look beyond the four corners of the contract is governed by well established principles.

“A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself ․ Accordingly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 13, 938 A.2d 576 (2008).  “A contract is unambiguous when its language is clear and conveys a definite and precise intent ․ The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity ․ Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.”  (Internal quotation marks omitted.)  Cantonbury Heights Condominium Ass'n, Inc. v. Local Land Development, LLC, supra, 273 Conn. 735.

Here, the court finds that the language of the two settlement agreements of July 30, 2009, was clear and unambiguous, and there was no need to look beyond the four corners of the agreements to determine the parties' intent to be bound by the obligations set forth in the agreement.   The issues of fact the defendant raised in the magistrate court and in this court, in addition to his claim that he did not intend to be bound by the written agreement, were his claims that there were subsequent or superseding agreements that rendered the written agreements invalid or incomplete.   There was credible evidence that there was correspondence between the parties in December of 2009, prior to the December 17th court date.   However, that correspondence did not result in a meeting of the minds as to any modification of the original agreements.  “For a valid modification to exist, there must be a mutual assent to the meaning and conditions of the modification and the parties must assent to the same thing in the same sense ․ Modification of a contract may be inferred from the attendant circumstances and conduct of the parties.”  LaVelle v. Ecoar Corp., 74 Conn.App. 710, 716 (2003).   The court finds that the defendant's testimony regarding the written settlement agreements, as well as his testimony regarding any subsequent proposed modification, was contradictory and not credible.   Moreover, the court finds that the subsequent discussions between the parties never resulted in a meeting of the minds as to the terms of any modification of the July 30th, 2009 agreements.   Accordingly, the court finds that the two written settlement agreements were valid and the plaintiff is entitled to damages on the contracts.

CUTPA

Plaintiff asks the court to award damages under Connecticut's Unfair Trade Practices Act as a result of the defendant's actions as an attorney before the court representing himself.   The plaintiff claims that the practice of law is a trade covered under the Act and the defendant's conduct is the type of conduct covered under the act.   However, our courts have consistently held that, “[i]n general, CUTPA applies to attorney conduct, but only as to the entrepreneurial aspects of legal practice.”  (Internal quotation marks omitted.)  Kosiorek v. Smigelski, 138 Conn.App. 695, 712, 54 A.3d 564 (2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013).  “The entrepreneurial exception is just that, a specific exception from CUTPA immunity for a well-defined set of activities—advertising and bill collection, for example ․ It is not a catch-all provision intended to subject any arguably improper attorney conduct to CUTPA liability.   Therefore, the mere fact that the actions of the attorney and the law firm might have deviated from the standards of their profession does not necessarily make the actions entrepreneurial in nature.”  (Citations omitted, internal quotation marks omitted.)  Suffield Development Associates, Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 782 (2002).

Plaintiff's CUTPA claim does not fall within the entrepreneurial exception, and accordingly, plaintiff's claims as to count three are denied.

The defendant also claims he is entitled to damages.   The court finds no merit or basis for his claim and it is hereby denied.

Accordingly, judgment shall enter for the plaintiff in the amount of $2,364.02.

MAUREEN M. MURPHY, J.

FOOTNOTES

FN1. The defendant also seeks damages, claiming that he had to expend unnecessary time and effort in a lengthy deposition on a frivolous claim..  FN1. The defendant also seeks damages, claiming that he had to expend unnecessary time and effort in a lengthy deposition on a frivolous claim.

Murphy, Maureen M., J.