Opinion
No. HHB CV 07-5006018-S
May 21, 2009
MEMORANDUM OF DECISION RE DEFANDANT'S MOTION TO SET ASIDE VERDICT AS TO COUNTS THREE AND FIVE AND RE AWARD OF PUNITIVE DAMAGES
In this case the plaintiff, Laura Belina, an 85-year-old single woman, sought damages from the defendant, Schaller Auto World, Inc., complaining that when she went to Schaller in New Britain, CT, to purchase a car in 2007, she was unscrupulously deceived into signing a lease costing nearly twice what she agreed to pay and obviously more than she could afford; and, when she protested, Schaller refused to void the contract and sent her away. When she went back again, Schaller called the police, and had her ejected from the premises. The jury rendered a verdict in favor of the plaintiff on Count Three of her complaint, finding an intentional violation of the Connecticut Unfair Trade Practices Act (CUTPA), making the plaintiff eligible for compensatory damages, attorneys fees and punitive damages, and in her favor on Count Five for negligent infliction of emotional distress for compensatory damages. Schaller has filed a Motion to Set Aside the verdict against it, arguing that the verdict cannot stand because it is against the facts and law. For the following reasons, the motion is denied and it is ordered that judgment is rendered in accordance with the jury's verdict for total compensatory damages in the amount of $3,640.00, punitive damages in the amount of $24,153.70, attorneys fees in the amount of $24,713.70, plus costs in the amount of $560.00.
I
General Statutes § 52-228b and Practice Book § 16-35 provide for Motions to Set Aside the Verdict to remedy erroneous jury verdicts. The standard of review governing such motions is well settled. "The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb." (Citations omitted; internal quotation marks omitted.) Edmands v. CUNO, Inc., 277 Conn. 425, 452, 892 A.2d 938 (2006).
While the court has broad discretion in this area, it is not without limits:
"Because in setting aside a verdict the court has deprived a litigant in whose favor the verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury; Rickert v. Fraser, 152 Conn. 678, 681, 211 A.2d 702 (1965); the court's action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined. `Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached.' Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846 (1940)." Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A2d 915 (1980). "[I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be draw from the evidence, the trial court should let the jury work their will." Id., 419.Wichers v. Hatch, 252 Conn. 174, 189, 745 A.2d 789 (2000) (en banc).
With particular regard to the constitutional rights at stake in this exercise, our Supreme Court said:
"The right to a jury trial is fundamental in our judicial system, and this court has said that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court." Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970). Because in setting aside the verdict, the trial court deprives the party in whose favor the verdict was rendered of his constitutional right to have factual issues resolved by the jury, our role generally is to examine the evidential basis of the verdict itself to determine whether the trial court abused its discretion. Palomba v. Gray, 208 Conn. 21, 25, 543 A.2d 1331 (1988).
Wichers v. Hatch, supra, 252 Conn. 188.
II
The court finds that the jury could have reasonably found as follows: The plaintiff, Laura Belina, is an 85-year-old woman who lives alone on a fixed retirement income of about $1,500 per month from a pension. She has no children or grandchildren to help her. At the time of trial she was slow in her mental process and easily confused, obviously due to age, but alert and aware of when she was being taken advantage of and able to speak up for herself, in a polite way. Her correspondence and other evidence at trial indicated that she was the same on March 14, 2007. On that day she went to the defendant car dealer, without assistance, to purchase a new car. She had a 1996 Eagle Vision with about 80,000 mile on it and she wanted to trade it in for a Honda Accord with leather seats and a GPS. She found a car she liked, and told the salesman who was helping her, Edward Bonzczek, that she could only afford $250 per month with no money down, and the financial information she supplied certainly showed that to be true. He told her that the he could not sell it for that amount, but that she could get a lease for that amount. She agreed. Bonzczek then turned her over to Jorge Torres, the business manager. He prepared the paperwork for her which she thought carried out the agreement that she had discussed. He handed her numerous papers to sign, but did not explain them or show the content. While the papers were being processed, she read the lease that she had signed and it seemed to indicate she was to pay $490.80 per month and that she was to pay $140.24 cash at signing. She questioned the discrepancy because the terms were contrary to the agreement. Torres did not explain the discrepancy to her understanding. Her confusion was understandable. In fact, even at trial, none of the defendant's witnesses were able to explain the financial content of the various papers satisfactorily, and explanations that were given were incorrect, inconsistent, contradictory and unbelievable. However, it was true that she was being charged $490.80 per month. At the dealership, after she protested, a document to void the transaction was prepared, but it was not processed. The new car was registered with her as lessee before she even finished signing the documents, and her signature was notarized after the fact. Ms. Belina was still confused, but sent out the door with her new car before she realized it without even paying the $140.24 cash. Two days later, on March 16, 2007, after studying the materials and collecting her thoughts, she returned to demand that her questions be answered about what the papers meant and to get the lease cancelled if it was for more than she had agreed to pay. Schaller official Mark Smith met with her, refused to let her out of the contract, and told staff to call the police if she did not leave the office. Staff called the police. Ms. Belina thought she was going to be arrested and was upset. She was not arrested, but police drove her home. Schaller had the car delivered to her driveway, without the keys. She eventually took a taxi cab back to Schaller to get the keys. Subsequently, she wrote five letters to Schaller to get the matter corrected. Schaller did not respond. She complained to the Connecticut Attorney General and tried filing a small claims action by herself. She finally obtained counsel and filed the instant case in 2007. She ran out of money paying for the lease; and, in November 2008, the Honda was repossessed, leaving her without a car for transportation and mined credit. The instant case was tried to a jury starting on March 31, 2009.
The plaintiff sought damages on five counts: breach of contract, fraudulent misrepresentation, CUTPA, intentional infliction of emotional distress and negligent infliction of emotional distress. On April 2, 2009, the jury returned a verdict for the defendant on the breach of contract, fraudulent misrepresentation and intentional infliction of emotional distress counts. On the CUTPA claim, the jury rendered its verdict for the plaintiff, awarding $2,500.00 in damages representing its assessment of the actual damages and ascertainable loss sustained by the plaintiff in the lease transaction. Proof of the CUTPA violation made plaintiff eligible for attorneys fees in the discretion of the court. General Statutes § 42-110g(d). Her claimed attorneys fees in this case were $24,409.11. There was no contest to the calculation or reasonableness of that amount, and the court found it fair and appropriate to award attorneys fees under the circumstances in this case, and the amount requested reasonable in light of the documentation supplied, and awarded the plaintiff that amount on the day the verdict was accepted.
A sixth count, alleging unconscionability under the Uniform Commercial Code, was withdrawn.
The jury also answered "yes" to the question of whether the plaintiff should be awarded punitive damages for the CUTPA violation. Punitive damages are also available in the discretion of the court in appropriate cases under CUTPA. General Statutes § 42-110g(a). The court agrees that the facts justify an award of punitive damages in this case and it agrees to make an award. In awarding punitive damages under CUTPA, a variety of methods of calculation have been allowed. See Staehle v. Michael's Garage, Inc., 35 Conn.App. 455, 463, 646 A.2d 888 (1994). This court decided to use as the measure the same standards that are used in making an award of punitive damages under the common law in Connecticut. That is one method that has been used or sanctioned by Connecticut courts in CUTPA cases in the past. See Ford v. Blue Cross and Blue Shield of Connecticut, Inc., 216 Conn. 40, 59 n. 4, 578 A.2d 1054 (1990); R. Langer, J. Morgan and D. Belt, Unfair Trade Practices, (12 Conn. Practice Series, 2003, § 6.11 at p. 493 n. 95. Under that method, punitive damages are limited to the costs of litigation, including attorneys fees, less taxable costs; but, within that limitation, the extent to which they are awarded is in the sole discretion of the decision-maker. See, Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 335, 852 A.2d 703 (2004); Waterbury Petroleum Products, Inc. v. Canaan Oil and Fuel Co., Inc., 193 Conn. 208, 234-38, 477 A.2d 988 (1984). The parties in this case do not contest that method of calculation. The taxable costs in this case were $560.00 based on plaintiff's uncontested Bill of Costs, which are awarded. The reasonably documented costs of litigation sought in this case were limited to the attorneys fees in the amount of $24,409.11. The court calculates and awards the plaintiff a full $24,153.70 for punitive damages. There was no contest as to that calculation.
The parties did not object to the use of the jury inquiry on the verdict form.
On the negligent infliction of emotional distress claim, the jury rendered a verdict for the plaintiff, and awarded $1,140.00 damages for the incident where police were called to remove the plaintiff on March 16, 2007.
III
Defendant argues that the verdict should be set aside, and judgment should be entered in its favor instead with respect to the CUTPA claim because (1) the plaintiff's complaint does not allege violations of CUTPA consistent with the evidence; (2) the evidence presented to the jury, even when reviewed in a light most favorable to the plaintiff, was legally insufficient to support a claim under CUTPA, as required by our caselaw; and (3) the court should exercise its discretion in setting aside the verdict as to punitive damages on the CUTPA claim because the evidence presented at trial was legally insufficient to support such an award. It also advocates that the verdict on the negligent infliction of emotional distress claim be set aside as against the law and facts. The court does not agree and, therefore, denies the defendant's motion.
CT Page 8577
A
With respect to the CUTPA issues, defendant's first argument rests on the logic that since plaintiff's CUTPA claim was based on the same facts as alleged with respect to the breach of contract claim and fraudulent misrepresentation claim, and since the jury found in its favor on the breach of contract claim and fraudulent misrepresentation claim, then the CUTPA claim must fail as well. While there is logic to that formula, the argument is not persuasive in this case. While the CUTPA claim alleged the same facts, plus others, the fact that the jury did not find a breach of contract or fraudulent misrepresentation did not, as a matter of law, necessarily preclude it from finding of a CUTPA violation. See, Sportsmen's Boating Corp. v. Hensley, 192 Conn. 747, 756-57, 474 A.2d 780 (1984); PAR Printing, Inc. v. Greenhorne Omara, Inc., 61 Conn.App. 317, 328, 763 A.2d 1078, cert. denied, 255 Conn. 951, 770 A.2d 31 (2001). In this case, plaintiff alleged, and substantially proved "the defendant conducted dealings with the plaintiff in an unfair and deceptive manner in such a way that offends public policy in that they took advantage of an elderly and unsophisticated consumer by (a) unduly influencing the plaintiff into a lease agreement; (b) intentionally and deceptively misrepresenting the terms of the Written Agreement to induce the plaintiff to sign; (e) refusing to answer and/or explain the discrepancies in the Written Agreement; (d) treating the plaintiff deceitfully, rudely and disrespectfully." Complaint, Count Three, para. 31. That other allegations were made that were either not proven or were only advanced with respect to the other counts does not defeat the CUTPA claim. The above allegations and the substantial proof thereof at trial were sufficient to establish a CUTPA violation.Our jurisprudence regarding CUTPA is 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 a 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 thee 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.
The evidence in the instant case showed an intentional business practice of deceit and deception to the harm of an elderly person. A CUTPA violation was alleged and proven. It was also proven that the violation was intentional. The amount awarded — $2,500.00 fairly reflected the actual damages and ascertainable loss sustained by the plaintiff caused by the violation.
Nevertheless, defendant argues that, at most, it was careless in some paperwork administration, but that negligence is not a basis for a CUTPA claim. The principle is correct. See A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 215, 597 A.2d 69 (1990). However, plaintiff did not plead or argue that negligence was sufficient for a CUTPA claim, and the facts showed more than a few honest errors in this case. It showed an intentional unfair and deceptive trade practice in violation of CUTPA. Also, defendant argues that plaintiff's failure to detect that she was being deceived into being charge nearly twice what she could afford was an injury she reasonably could have avoided, and that it owed no duty to help the plaintiff understand what it was doing to her, so, it cannot be held liable for a CUTPA violation. However, under the evidence, the jury could fairly find that defendant did not show her the content of the documents, did not answer her questions, processed the deal before she signed, and then refused to answer questions or cancel the deal when she protested and sent her out the door in financial jeopardy. In this context, defendant's argument that it had no liability under these facts would render the CUTPA's proscription against "unfair or deceptive" trade practices superfluous. A statute cannot be so interpreted. "We presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous." (Internal quotation marks omitted; citation omitted.) Byars v. FedEx Ground Package System, Inc., 101 Conn.App. 44, 48, 920 A.2d 352 (2007).
Additionally, the defendant argues that there was no causual connection between the act of the defendant and the injuries of the plaintiff because it committed no actionable wrongs and plaintiff cannot complain because she voluntarily signed a lease that she did not read. To the contrary, the facts in evidence in this case fairly persuaded this jury that the defendant engaged in a deliberate unfair, deceptive, callous mistreatment of a confused, elderly women, failed to disclose or explain what it was doing, drained her of her meager pension and rushed her out the door when she protested. Thus, there was a valid basis for the compensatory damages award and a discretionary award of attorneys fees available under CUTPA, the calculations of which are not disputed.
As to the award of punitive damages for the CUTPA violation, defendant argues that this should be set aside as the evidence was legally insufficient to support such an award. As noted earlier, punitive damages are available under CUTPA in the discretion of the court in appropriate cases. See General Statutes § 42-110g(a). In order to award punitive damages in a CUTPA case, the evidence must reveal a reckless indifference to the rights of others or an intentional or wanton violation of those rights. Votto v. American Car Rental, Inc., 273 Conn. 478, 486, 871 A.2d 981 (2005). The evidence in this case certainly disclosed conduct in violation of CUTPA. As in most cases, the behavior of the witnesses on the stand tells the trier of fact much about the witnesses' credibility and the true flavor of their conduct. That element of human behavior does not always reveal itself to a reader of a transcript of trial testimony. In the instant case, the defendant's witnesses' on-the-stand testimony appeared evasive and duplicitous when confronted with claim that they had cheated an elderly woman out of her pension. They failed to achieve credibility. The jury could fairly conclude that defendant committed a CUTPA violation, and did it intentionally and callously. This court agrees that the defendant's conduct was proven to be predatory, abusive, and outrageous, particularly in this case involving an elderly person. The award of punitive damages under CUTPA shall stand. The calculation method is not disputed.
B
Defendant's argument with respect to the jury verdict on the negligent infliction of emotional distress claim rests on the assertion that the distress sustained by the plaintiff in this case was not reasonable. The facts that the jury could correctly find in this case, however, proved the contrary.
"[I]n order to prevail on a claim of negligent infliction of emotional distress, the 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 . . . This . . . test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Citations omitted; internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005). That illness or bodily harm occurred is not a requirement. "The only requirement is that the distress might result in illness or bodily harm." (Emphasis in original.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 448, 815 A.2d 119 (2003).
In the instant case, the jury could reasonably have found that the plaintiff, an elderly, easily confused woman, went to the defendant without assistance to have her car lease explained or cancelled. Instead of helping, the defendant failed to explain the lease to her, refused to cancel the lease, and called the police to have her ejected from the premises. The plaintiff testified that after she talked to Mr. Smith, she got no answer, but was told to go to the lounge because he called the police. She thought she was being arrested. She testified that she was stunned. Thus, there was sufficient evidence to prove that distress was caused, and that it was reasonable for this plaintiff to have experienced distress that might have resulted in illness or bodily harm. The amount of damages awarded on this claim — $1,140.00 — fairly corresponded to the temporary nature of the injury.