Opinion
No. CV 06-5004334
February 11, 2009
MEMORANDUM OF DECISION ON PLAINTIFF'S COMPLAINT
PROCEDURE AND FACTS:
On or about September 20, 2005 the plaintiff (hereinafter also "Blackwell") and the defendant Tullat Mahmood (hereinafter also "Mahmood") entered into a written agreement for Mahmood to sell to Blackwell property known as 280-292 Broad Street and 19 Elm Street in Windsor, Connecticut for a purchase price of $1,800,000. The Agreement called for a deposit of $40,000 to be paid by Blackwell. In fact $20,000 was paid by Blackwell at the time of the signing of the Agreement, and although the Agreement stated that the $40,000 was acknowledged as being received on September 20, 2005, in fact the second $20,000 was paid on November 11, 2005 (plaintiff's exhibit eight). The Agreement is plaintiff's exhibit one.
Also involved in this transaction is First Rate Capital Corp., a mortgage broker in Hartford, Connecticut, (hereinafter also "First Rate").
Paragraph five (c) of the Agreement contained a mortgage contingency which called for Blackwell to obtain a mortgage loan in the amount of not less than $1,440,000 at prevailing interest rates. Although Mahmood maintained throughout the proceedings and the trial that his property was worth $2.2 million dollars, the appraisal ordered by the bank (Citicorp/Citibank) prepared by the Michaud Company (hereinafter also "Michaud"), plaintiff's exhibit two, set a value as of December 8, 2005 of $1,220,000. This was obviously not a sufficient value for the buyer, Blackwell, to obtain the mortgage from the bank as specified in the Agreement. Therefore, the mortgage contingency had not produced a mortgage commitment, and that should have relieved Blackwell from the Agreement, and Blackwell was, therefore, entitled to a return of his $40,000 deposit. Mahmood has refused and continues to refuse to return the $40,000 deposit.
Accordingly, by revised complaint dated December 13, 2006 the plaintiff brought this suit against Mahmood, Two Hundred Eighty Broad Elm, LLC and First Rate Capital Corp. Mahmood is the sole owner of Two Hundred Eighty Broad Elm, LLC, (hereinafter also "LLC").
The first count is for breach of contract by the defendant LLC; count two states that the defendant, Mahmood on behalf of LLC negligently made one or more misrepresentations of fact to Blackwell; count three is a claim against Mahmood on behalf of the defendant LLC for misrepresentation and making fraudulent statements because the misrepresentations that were made were not true and in fact were not true when they were made; count four is against both defendants, Mahmood and the LLC claiming that by retaining Blackwell's deposit the said defendants committed theft as it is defined in C.G.S. § 52-564 and under case law; count five appears to be a claim against both of said defendants for maintaining possession of Blackwell's money to the exclusion of Blackwell's ownership rights which appears to be a claim of conversion; count six contains an allegation that the defendant LLC acted in bad faith by failing to return Blackwell's deposit, by failing to produce and provide property that was environmentally sound that the said defendants refused to allow access for inspection of the property and failed to produce and provide a working functional theater that generated income despite misrepresentations to that effect; count seven is a claim that the two defendants committed theft in violation of § 52-564 and under case law and a claim that the LLC's unfair and/or deceptive acts and/or practices violated the Connecticut Unfair Trade Practices Act (CUTPA) C.G.S. § 42-110 et. seq.; count eight is a claim that the said defendants retained Blackwell's money, failed to tender the property in question for fair and reasonable price and in reasonable condition; count nine is a claim against First Rate Capital Corp. However, the case against First Rate Capital Corp., has been withdrawn; count ten is a claim against First Rate Capital Corp., that it made statements and representations to Blackwell that he was approved for a sufficient mortgage under sufficient terms that satisfied the mortgage contingency under the purchase agreement and a claim against Mahmood that he maintains possession of Blackwell's money to the exclusion of Blackwell's ownership rights. As to the claim against First Rate Capital Corp., that claim has been withdrawn. The plaintiff has claimed monetary damages, punitive and multiple damages under CUTPA, treble damages for theft, attorneys fees under common law and/or pursuant to C.G.S. § 42-110, CUTPA, and the theft statute and costs under common law and/or pursuant to violation of CUTPA and violation of the theft statute. To this complaint Mahmood and the LLC have set forth four special defenses. The first is that Mahmood did not act in his individual capacity but only as the managing member of the defendant Two Hundred Eighty Broad Elm LLC; the second special defense is that the plaintiff violated the agreement by not advising the defendants in writing within the time period of his inability to obtain the necessary funding and that the deposit was therefore forfeited; the third special defense claims a failure of consideration for the contract causing liquidated damages to the LLC; the fourth special defense is that the plaintiff purposely delayed in notifying the two defendants of his inability to fulfill the contract for over two months thereby causing money damages to the LLC by keeping the property contracted for off the open market giving rise to the damages clause of the contract that was breached.
A court trial was held before this Court on October 16, 17 and 21, 2008. Briefs and reply briefs have been submitted by the parties, the latest being filed January 27, 2009.
STANDARD OF REVIEW:
"The plaintiff in a civil case sustains his burden of proof as to any essential element in his cause of action if the evidence, considered fairly and impartially, induces in the mind of the trier, a reasonable belief that it is more probable than otherwise that the facts involved in that element are true." Busker v. United Illuminating Co., 156 Conn. 456, 458 (1968). This is also known as proof by a preponderance of the evidence.
In addition, this Court evaluates the credibility of the witnesses based upon their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case.
Also, the Court evaluates general credibility on the basis of other testimony in this case as well as documents in evidence as to their consistency or inconsistency with other evidence.
The burden is on the plaintiff (Blackwell) to prove his allegations by a preponderance of the evidence, and the defendants have the burden of proving their allegations in their special defenses by a preponderance of the evidence.
ISSUES AND FINDINGS: 1. Credibility
Based upon the testimony and exhibits, this Court finds that Mahmood was not credible during this trial and in various documents that are either part of the file or are exhibits in this case. Blackwell, on the other hand, the Court found and finds to be credible.
The reasons for the lack of credibility on the part of Mahmood are that:
1. In cross examination when he testified he made statements that contradicted several of the statements he made in his earlier deposition;
For example, in excellent cross-examination by Attorney Maki, it revealed that Mahmood stated in his deposition that he did talk to the plaintiff before Mahmood left for Pakistan, yet in his testimony in this trial he stated that he didn't talk to him until January of 2006.
2. The Agreement called for Attorney Scott Franklin, Mahmood's attorney, to hold the $40,000 deposit in escrow. Mahmood testified that he turned the checks made out to him over to Attorney Franklin, and Attorney Franklin gave them back to him and told him that he could keep them. However, Attorney Franklin when he testified before this Court, admitted that he had not held the $40,000 in escrow, did not recall the $40,000 being turned over to him and did not recall that he had returned the checks to Mahmood telling him that he could keep them. The Court believes Attorney Franklin's testimony;
3. Further, Mahmood should have at least kept the funds in escrow. The Court does believe that Mahmood certainly had the ability to come up, at any time, with the $40,000, but he should not have co-mingled said $40,000 with his other funds and should not have spent that money but instead should have held it in escrow if he did not give it to Attorney Scott Franklin which he should have done to be held in escrow;
4. When the two $20,000 checks for the deposit were paid, Mahmood requested that Blackwell make the deposits payable to him personally and assured him that they would be turned over to Attorney Franklin. Instead, he deposited them into the bank account of a different company he owned where he immediately spent the funds. Mahmood admitted that he knew this money should have gone to Attorney Franklin and also admitted that no matter who held the deposit, it was in escrow and he had no right to use it. This whole matter of Mahmood knowingly misusing the deposit negatively affects his credibility;
Defendants claim that Mahmood was not only not conversant in the English language, but had little education and was basically inexperienced. However, at trial it became clear from Mahmood's own statements that he had been involved in at least one-hundred transactions involving the sale and purchase of real estate including commercial real estate.
5. Additionally, the review of his answers to the plaintiff's request for admissions dated October 23, 2007 contradicts some of his testimony. Number two which states "Neither Attorney Scott Franklin nor his office held any of the monetary deposit paid by Marcus Blackwell for the subject transaction in escrow for any period of time." Mahmood denied that which is an admission that Attorney Scott Franklin did hold money in escrow which is contrary to what Mahmood said when he testified. The same thing is true as to request to admit paragraph two by the LLC.
2. Was and is Blackwell Entitled to the Return of the $40,000 Deposit?
This case is about whether the plaintiff's deposit of $40,000 should have been returned. That is the major if not the sole issue. Issues about whether the theater was in good shape, whether Mahmood allowed inspection, etc. are all irrelevant to the main issue.
The short answer is yes.
First, the Court should note that this Agreement was followed loosely. For example, half of the $40,000 deposit wasn't paid until November 2005 as aforesaid, yet the paragraph regarding the deposit showed an acknowledgment of receipt of the entire $40,000 on the date of the contract September 20, 2005.
Mahmood admitted in testimony that he gave extensions of time some in writing and some orally to the plaintiff regarding the mortgage contingency Mahmood claims that the reason he did not turn over the $40,000 was because he did not receive written notification of Blackwell's inability to get a proper mortgage, that it should have been given within 30 days of being notified that he would not be able to get the mortgage. All parties were waiting for the appraisal to be done by Mr. Michaud. The appraisal was completed on December 8, 2005, plaintiff's exhibit two, and the plaintiff became aware of it on or about December 12, 2005 knowing from said appraisal that he would not be able to get the mortgage required. Mahmood gave him until the end of December to see what he could do about still obtaining the mortgage. When Blackwell approached him at the end of December to discuss where the parties should go from there to see if the deal could still be resurrected, he did not notify Mahmood in writing at that time because Mahmood testified that he told him that he was leaving for Pakistan and they would talk about it when he got back. Mahmood returned at the end of January 2006, and when the parties talked and realized they could not come to an agreement on an alternate agreement, it only then became clear that Blackwell could not resurrect the contract. He then went to his attorney, Attorney Hurvitz, who sent a letter (a written document) to Mahmood seeking a return of the $40,000. This was dated February 8, 2006 which was well within the 30 days of Mahmood's return to the United States. Because Mahmood gave extensions right up to and including December 31, 2005 regarding notification of the mortgage contingency and putting off further discussion until he returned from Pakistan at the end of January 2006, and Blackwell obviously relied on Mahmood's extensions up to and including December 31, 2005 and up to and including when Mahmood returned from Pakistan, Mahmood is, therefore, estopped from claiming that the 30 days began to run at the end of December 2005.
The defendants have claimed that the plaintiff is barred by the Statute of Frauds from claiming estoppel based on verbal statements by Mahmood. Defendants rely on the case of Glazer v. Dress Barn, Inc., 274 Conn. 33 (2005). The Court accepts the plaintiff's argument on Glazer, supra. Plaintiff claims that the parties did not add some new term to the Agreement; and plaintiff contends that Mahmood through his acts and statements waived the mortgage contingency provision of the Agreement and is now estopped from attempting to enforce that provision. Mahmood made it clear he would not enforce the provision. The Court notes from the evidence that Mahmood agreed to wait until the appraisal from the bank which was on or about December 20, 2005. Then, when the appraisal did come in and showed that the property was not worth the amount of money that was needed to obtain the mortgage, the plaintiff asked for a further extension of time to try to work things out. He requested the return of his $40,000 deposit, which Mahmood refused and claimed that the parties should talk about it when he returned from his trip to Pakistan at the end of January 2006. Meanwhile, the plaintiff tried to work things out as to financing, etc. However, when Mahmood returned and they tried to work it out it was unsuccessful, at which time again the plaintiff requested his $40,000 back. The concept of estoppel may be applied regardless of a Statute of Frauds claim. Greenwich Plaza, Inc. v. Whitman Ransom, et al., 1996 W.L. 240458, Conn.Sup. 1996, which cites S.H.V.C., Inc. v. Roy, 37 Conn.Sup. 579, 583 (1981).
Further, the Statute of Fraud itself does not require a written modification of nonessential clauses. Lynch v. Davis, 181 Conn. 434, 441 (1980). Essential clauses in the agreement would include the purchase price, the parties to the agreement and the particular real estate being sold. Oral modification of the mortgage contingency deadline — or indeed a wholesale waiver of that deadline by Mahmood, is not an essential term of the contract and does not require a writing to satisfy the Statute of Frauds.
Additionally, the Statute of Frauds cannot be a defense to a claim of equitable estoppel if part performance is shown. See Glazer, supra. Part performance entails a party showing "acts [that] alter the relations of the parties and [are] of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract." Id. at 67. As for part performance, the following can substantiate that there was part performance. Plaintiff says and Mahmood admits that Mahmood verbally agreed to await the results of the December 2005 appraisal. Subsequent to that verbal agreement, the parties agree the mortgage company conducted the real estate appraisal paid for by plaintiff, the parties met in late December 2005 and late January 2006 to further discuss the deal in light of the low appraisal. Plaintiff's part performance consists of both of his actions — moving ahead with the appraisal of the subject property and meeting twice with Mahmood to discuss the deal. If there had been no agreement to extend the mortgage contingency deadline these meetings between Mahmood and the plaintiff would have been absolutely pointless. In a case cited by the defendants, Union Trust Co. v. Jackson, 42 Conn.App. 413 (1996), the Appellate Court held that the borrower must prove mutual assent to the modification, and must also prove that borrower partially performed the terms of the modification. In the case at bar, the evidence is clear that there was mutual assent to the modification of the mortgage contingency deadlines and as shown, the borrower, the plaintiff, partially performed the terms of the modification which was to continue as stated above, further actions in getting the appraisal by the end of December to which Mahmood assented and to work to resurrect the Agreement while the defendant Mahmood was in Pakistan and when he returned.
In fact the 30 days began to run when he returned from Pakistan in late January 2006, so, therefore, written notification was given by Blackwell to Mahmood on February 8, 2006 well within the 30-day time limit from Mahmood's return. Accordingly, this Court finds that the $40,000 was due and is due to the plaintiff from the LLC. There was substantial testimony as to the negotiations that took place following the rejection of Blackwell's mortgage application, but these deliberations which did not produce any agreement are really irrelevant to the issue of the return of the $40,000 deposit.
It is more likely that Mahmood refused to return the $40,000 deposit because as he stated on cross examination, there were many instances in which he did not get a return of deposit. The claim that his attorney told him that he could keep the deposit is not supported by any evidence including testimony from his attorney.
It should be noted that the words "time is of the essence" are not contained in the Agreement. Therefore, the writing formally notifying Mahmood of the inability to obtain a mortgage and asking for the return of the deposit on February 8, 2006 was a reasonable time from December 31, 2005 and certainly a reasonable time from the time Mahmood returned from Pakistan in late January 2006.
3. Did the Defendant, LLC, Violate C.G.S. § 42-110b, Commonly Known as The Connecticut Unfair Trade Practices Act?
The short answer is yes.
In the case of Williams Ford Inc. v. Hartford Courant Co., 232 Conn. 559, 591-92 (April 1995), the Court set forth the elements for a violation of CUTPA.
Section 42-110b(a) provides: `no person shall engage in unfair methods of competition and unfair deceptive acts or practices in the conduct of any trade or commerce.' In determining whether certain acts constitute a violation of this act, `we have adopted the criteria set out in the cigarette rule by the Federal Trade Commission . . . (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 — whether, 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 a moral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [(competitors or other businessmen)] Conaway v. Prestia, 191 Conn. 484, 492-93 (1983).
As to the elements of the cigarette rule, the Court finds that: (1) the deliberate withholding of the $40,000 by the LLC, acting by Mahmood, was an unwarranted refusal to return the $40,000 that offends public policy as it has been established by statute, by the common law by the established concept that wrongfully withholding money that was due knowing that it was due amounts to unfairness; (2) deliberately withholding the $40,000 deposit when the LLC acting through Mahmood knew that the $40,000 should have been paid to Blackwell is immoral, unethical and unscrupulous; (3) this wrongful withholding of the $40,000 caused substantial injury to the plaintiff, Blackwell, (i.e., the loss of $40,000) who is in the category of either consumers or other businessmen; (4) the injury to the plaintiff also satisfies the three tests set forth in Williams Ford v. Hartford Courant Co., supra at page 592. It is substantial as stated above, it is clearly not outweighed by any counterveiling benefits to consumers or competition that the practice produces and it is not an injury the plaintiff could reasonably have avoided. Accordingly, the Court finds that the defendant LLC violated the Connecticut Unfair Trade Practices Act (CUTPA) for the reasons stated above and the plaintiff has suffered an ascertainable loss as a result thereof, $40,000. Damages are awarded against the LLC for violation of CUTPA in the amount of $40,000 plus interest at the statutory rate of 10% per annum (Conn. Gen. Stat. § 37-3a) from the date it should have been paid namely February 9, 2006. Interest from February 10, 2006 to February 10, 2009 is in the amount of $12,000 for a total of $52,000 in damages.
Blackwell is well educated and experienced in dealing in real estate and mortgages and Mahmood, by his own admission, has bought and sold and been involved in more than one-hundred purchases and sales of real estate.
FINDINGS BY COUNT:
CT Page 3438
1. Count One — Breach of Contract
For the reasons stated above, the Court finds for the plaintiff on the first count, breach of contract, the sum of $40,000 plus interest as described of $12,000 for a total of $52,000. This judgment is against both defendants, Mahmood and the LLC. It is clearly against the LLC and, and it is against Mahmood because he was named as a defendant, and because he did all actions on behalf of the LLC. The evidence has shown that he is the sole owner of the LLC, and all decisions and actions were taken by the LLC by Mahmood who had total control of the LLC to the extent that the LLC had no independent mind of its own. Therefore, even though the plaintiff did not allege piercing the corporate veil, this Court is piercing the corporate veil also known as the LLC veil, for the reasons stated above, as a result of which Mahmood is equally liable on this count and all subsequent counts when a judgment is filed against the LLC. Accordingly, on count one, judgment for $52,000 is entered against both defendants. See United Electrical Contractors, Inc. v. Progress Builders, Inc., 26 Conn.App. 749, 755, 756 (1992). The court stated that "The corporate veil will be pierced when `the corporate intent entity has been so controlled and dominated that justice requires liability to be imposed on the real actor.'" The court stated that the corporate veil may be pierced under the "instrumentality rule" upon proof of three elements:1. "Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect the transaction attack so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own;
2. That such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonor or unjust act in contravention of plaintiff's legal rights. (Emphasis added);
3. That the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of." (Citations omitted.) The plaintiff has proved all three elements.
See Jones v. Ippoliti, judicial district of Tolland at Rockville, no. CV 93-53116-S, August 11, 1995, Rittenband, J.
2. Count Two — Negligent Misrepresentations
The alleged misrepresentations of fact to the plaintiff are all prior to the payment of the deposit and were followed by a written agreement which takes precedence. Accordingly, the Court finds for the defendants on the second count.
3. Count Three
Count three is a claim against the defendants for misrepresentation and making fraudulent statements to induce the plaintiff to pay a deposit and to agree to purchase the property. These statements all preceded payment of deposit and execution of the purchase agreement which takes precedence. Accordingly, the Court finds for the defendants on this count.
4. Count Four — Theft
Under Conn. Gen. Stat. § 52-564 calling for triple damages for statutory theft see Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 44 (2000). "Similarly `[s]tatutory under [General Statutes] § 52-564 is synonymous with larceny [as] provided in General Statutes § 53a-119 . . . Pursuant to § 53a-119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [ withholds] such property from [t]he owner." (Citations omitted, emphasis added.) Mahmood and the LLC did withhold the $40,000 deposit with the intent to deprive the plaintiff of the $40,000. Accordingly, judgment is entered on this count against both defendants in the amount of $120,000 less the $40,000 which is to be returned for a judgment of $80,000 plus interest of $12,000 for a total of $92,000.
5. Count Five — Conversion
Count five is a claim for conversion against both defendants. In Hi-Ho Tower, supra at p. 43, the court stated as follows: "The tort of `[c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another to the exclusion of the owner's rights.'" (Emphasis added.) When the defendants received the $40,000 deposit it was with authorization. However, on February 6, 2006, and thereafter, the ownership by the defendants was then without authorization. Judgment is entered on the conversion count against both defendants. The damages are the $52,000 mentioned in count one.
6. Count Six
Count six claims that the defendants acted in bad faith by, among other things, failing to return Blackwell's deposit. Paragraph 12d. The remaining allegations do not rise to a conclusion of bad faith. However, as the Court has concluded that the main reason Mahmood did not return the $40,000 is that as he stated in his testimony, he previously in other transactions had not received back his deposit, and, therefore, that is the main reason he did not and has not returned the deposit even though he has been and is legally required to return it. That amounts to bad faith. Accordingly, the Court enters judgment on the sixth count against both defendants, the damages being the same as in count one, $52,000.
7. Count Seven — Violation of the Connecticut Unfair Trade Practices Act (CUTPA)
Count Seven is violation of the Connecticut Unfair Trade Practices Act (CUTPA) which this Court has previously addressed and found that said defendants did violate CUTPA. The damages for CUTPA will be set forth hereafter, but judgment is entered for the plaintiff against both defendants for violation of CUTPA.
8. Count Eight
Count eight is merely a repetition of some of the previous counts, and the Court will not enter judgment for any of the parties.
9. Count Nine
Count nine is against First Rate, and the case against First Rate has been withdrawn.
10. Count Ten
The tenth count appears to be a claim against First Rate and the other defendants. As stated, the claim against First Rate has been withdrawn, and the claim against Mahmood and the LLC is repetitious of previous counts. Accordingly, the Court will not enter judgment against any of the parties.
SPECIAL DEFENSES:
Mahmood and the LLC have set forth four special defenses as follows:
1. The first special defense is that Mahmood did not act in his individual capacity but only as the managing member of the defendant, LLC. The Court has already ruled on this issue, finding that there was a piercing of the LLC veil as set forth above. Judgment then does enter for the plaintiff on the first special defense.
2. The second special defense is that the plaintiff violated the agreement by not advising the defendants in writing within the time period of his inability to obtain the necessary funding and that the deposit was therefore forfeited. The Court has already ruled against the defendants on this issue and in favor of the plaintiff. Accordingly, this special defense is denied.
3. The third special defense claims a failure of consideration for the contract causing liquidated damages to the LLC. Since the Court has already found that it is the two defendants who are liable under the contract and not the plaintiff, this special defense is denied.
4. The fourth special defense is that the plaintiff purposely delayed in notifying the two defendants of his inability to fulfill the contract for over two months thereby causing money damages to the LLC by keeping the property contracted for off the open market, giving rise to the damages clause of the contract that was breached by the plaintiff. Based upon the evidence described above, the Court finds that the plaintiff could not obtain the necessary mortgage funding and did not delay notifying the two defendants of his inability to fulfill the contract. The Court has already found that the delay was caused by the two defendants. Accordingly, the fourth special defense is denied.
CONCLUSION:
1. The Court enters judgment in favor of the plaintiff against both defendants on count one in the amount of $52,000.00.
2. Count two — negligent misrepresentations, the Court finds for the defendants on this count.
3. Count three — the Court finds for the defendants on this count.
4. Count four — statutory theft, the Court finds for the plaintiff against both defendants in the amount of $80,000.00 plus interest of $12,000 for a total of $92,000.
5. Count five — conversion, the Court finds for the plaintiff against both defendants in the amount of $52,000.00.
6. Count six — the Court enters judgment for the plaintiff against both defendants in the amount of $52,000.00.
7. Count seven — violation of CUTPA, the Court enters judgment in favor of the plaintiff against both defendants in the amount of $80,000.00 plus interest of $12,000.00 for a compensatory judgment of $92,000.00, plus attorneys fees of $34,930.41, plus punitive damages of $10,000.00, for a total judgment in favor of the plaintiff against the defendants of $136,930.41.
The findings of counts 4, 5, 6 and 7 are by clear and convincing evidence.
The Court notes that defendants' attorney has indicated that if the Court were to award attorneys fees, the Court would hold a separate hearing thereon. The Court grants such a hearing which can be called a motion to reargue to take up the issue solely of attorneys fees.