Opinion
No. CVH 5988
June 23, 2003
MEMORANDUM OF DECISION
This is an action brought by former tenants, Tom Haskins, Tracie Haskins, Steven Michaud, and Martin Liutermoza, the plaintiffs, against their former landlord, David A. Brown and David Brown Associates, the defendant. In the first count the plaintiffs allege a lockout as defined in General Statutes §§ 47a-43 (a); in the second count, conversion; and in the third count unfair trade practice, pursuant to General Statutes § 42-110a, et seq. The plaintiffs seek money damages, punitive damages, attorneys fees and costs.
The defendant denies the material allegations of the complaint and alleges abandonment as a special defense. In a counterclaim, the defendant seeks damages for back rent and breach of lease.
I have reviewed and considered all the testimony and exhibits presented during the eight days of trial, including six deposition transcripts which were made full exhibits. My factual findings follow.
In January 1996, the plaintiffs signed a lease for a small office unit in the basement of a building owned by the defendant in West Hartford, Connecticut. The lease period was from February 15, 1996 to February 28, 1998. The plaintiff's housed and operated a computer bulletin board service (BBS) at the office unit where they maintained numerous computers, modems and other equipment. They rarely went to the unit as they were able to operate and monitor the business from their home computers. Tom Haskins and Martin Liutermoza would go to the unit on Saturdays and evenings to make repairs or drop off the rental payment in the defendant's mail slot. In early 1997, the plaintiffs acquired additional equipment, principally a U.S. Robotics Total Control Unit, leased from GE Capital for three years with an option to purchase at the end of the lease term for one dollar.
In the spring of 1997, the plaintiffs felt that they could not compete CT Page 8185-bn with emerging on-line internet systems and decided to close down their business by August 1, 1997. They contacted another local provider to take over their accounts, and they contacted SNET to shut off the numerous phone lines as of August 1, 1997.
In May 1997, when the plaintiffs paid the May rent late, Cathy, the defendant's office manager, called Tracie Haskins at her home in West Hartford where she had recently moved. Again, on July 9, 1997, an employee in the defendant's office spoke with Tracie Haskins regarding the July rent which was overdue. Tracie Haskins advised that the rent would be paid by the next day. After not receiving payment on July 10, 1997, the defendant's office manager left a voice mail message with Tracie Haskins and then wrote to the plaintiffs on July 28th. Tom Haskins dropped off the rent in early August. On August 4, 1997, an employee of the defendant wrote to the plaintiffs, informing them that the July rent was short $7.50 and of a late fee. In fact, the rent check was not short.
On August 1, 1997, Martin Liutermoza went to the unit for the last time and removed his computer and a router. Tom Haskins went to the unit on Saturday, August 2, 1997. He observed that the SNET phone lines and cables had been disengaged. The equipment was off and was no longer emitting sounds or lights. Tom Haskins removed from the unit two computers which stored all the customer accounts. Nothing else was out of place. There were about twenty modems, several computers on tables, and the U.S. Robotics Total Control Unit in the office space.
The plaintiffs did not intend to move out of the office unit until the end of the lease period. They considered it the best place to store their equipment while they looked for a buyer for the equipment. Tom Haskins was seeking to sell all the equipment, including the U.S. Robotics Total Control Unit, for $33,000. He was also looking to sell the whole software package for $4,000 to $5,000, had obtained license transfers from the manufacturers, and was in the process of negotiating a price of $5,200 with an interested buyer.
In August 1997, Antonio Mendez, an employee of the defendant, entered the office space to clean it, noticed that the components were unplugged and that some of the items had been moved to the floor. He saw some computers and keyboards. Mendez questioned the defendant about whether the plaintiffs were moving out.
On August 7, 1997, Tracie Haskins told the defendant's office manager that the rent would be forwarded. On August 8, 1997, Mendez told the defendant that it looked like the plaintiffs were moving out. On August CT Page 8185-bo 10, 1997, Tracie Haskins informed the defendant's office manager that the plaintiffs intended to pay the August rent. On August 25, 1997, the defendant changed the lock on the door to the plaintiffs' unit.
Tom forgot to drop off the August rent until just after Labor Day. On Saturday, September 6, 1997, when he went to pay the rent, he found the lock had been changed on the door to the unit. He left without dropping off the rent check. He later told Tracie, who handled matters with the landlord, about the changed locks. Tom continued to look for a buyer for the U.S. Robotics Total Control Unit and the software. He had no doubt that the equipment was safe, was still in the unit and would be there when it was time to sell.
In September 1997, Tracie Haskins called Cathy at the defendant's office about the problem with the lock and about bringing the rent current. Cathy told Tracie she needed to talk to the defendant before the plaintiffs could get back in: Cathy said she would let the defendant know that Tracie had called.
On October 6, 1997, Tracie Haskins went to the office space to pay the August, September and October rent. On that date, the defendant told her the plaintiffs had left nothing behind, and the unit was ready to re-rent. Tracie demanded to see the unit. She saw only a fan which belonged to the plaintiffs being used to dry the newly painted unit. Her request to use a phone to call the police was denied by the defendant and he told her to leave. Tracie then went to the West Hartford Police Department where she reported a theft. She provided Police Officer Mercure with a preliminary list of missing items, including the U.S. Robotics Total Control Unit.
On that same date, Officer Mercure contacted the defendant who told the officer that the plaintiffs had not paid him the August rent by August 10, 1997, so he went into the office space, found all of the computer equipment was gone and believed the plaintiffs had abandoned the unit. The defendant also told the officer that the only things left were some tables, chairs and fans, and that the plaintiffs could have those things back. Officer Mercure advised the defendant that because he and the plaintiffs denied taking the equipment, the case would be considered a burglary.
On October 10, 1997, the defendant spoke with Erik Chase of Computer Trades Limited. Chase had paid $300.00 to Eric Lopez, an employee of the defendant, for computer equipment that had been removed from the plaintiff's unit. Lopez told Chase that it had been abandoned by a tenant of Mr. Brown's and they wanted to see if any of it was worth selling. CT Page 8185-bp Lopez had brought to Computer Trades Limited "many boxes of computer equipment, cables, and some other items," including a piece of equipment that looked like "a giant black box." The defendant told Chase that the people came in and wanted the equipment. The defendant also said, "I got a call from the police and I need the equipment back." Chase returned the equipment to the defendant in exchange for the uncashed check. The defendant did not call the West Hartford Police or the plaintiffs to tell them that he had retrieved the equipment, rather he stored the equipment in one of his storerooms.
On November 24, 1997, the plaintiffs commenced this action by filing a Verified Lockout Complaint and Application for Temporary Injunction. On December 8, 1997, the parties appeared for a hearing on the plaintiffs' complaint, but the defendant made no assertion at the hearing that he was in possession of the plaintiffs' property. Not until a pretrial held on July 9, 1998, did the defendant indicate that he had any of the plaintiffs' property. The defendant attended a second pre-trial meeting on July 16, 1998, and brought with him two boxes and a handtruck containing some of the missing equipment, including the U.S. Robotics Total Control Unit in a damaged condition.
Additional facts found will be included where pertinent in the discussion of the claims.
FIRST COUNT: LOCKOUT
"The right of action for forcible entry and detainer is a creature of statute." Communiter Break Co. v. Scinto, 196 Conn. 390, 392, 493 A.2d 192 (1985). "A plaintiff suing under the forcible entry and detainer statute must prove his actual possession of the land or property from which he claims to have been dispossessed." (Emphasis omitted.) Id., 393.
Beyond the element of actual possession. General Statutes § 47a-43 requires certain action on the part of the defendant, although not necessarily violent action. Bourgue v. Morris, 190 Conn. 364, 367 (1983). General Statutes § 47a-43 affords redress when "any person enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor" or "when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession."
The defendant changed the lock of the unit leased to the plaintiffs while they were in possession of the space, and the defendant removed, detained and/or damaged the plaintiffs' personal property. The plaintiffs CT Page 8185-bq have sustained their burden to prove that the defendant violated General Statutes § 47a-43.
In his special defense the defendant claims that the plaintiffs abandoned the premises. Specifically, he alleges that the plaintiffs abandoned the premises because they removed substantially all of their possessions and effects from the premises, terminated telephone service to the rental unit and failed to pay the monthly rent payments for over three months.
The defendant has the burden of proving abandonment. Davis v. Gleeson, 5 Conn. Sup. 325 (1937); see also Gnandt v. DaCruz, Superior Court, judicial district of Fairfield Housing Session at Bridgeport, Docket No. CV B.R. 9403 02236 (April 27, 1994, Melville, J.), 11 Conn.L.Rptr. 500. Abandonment implies a voluntary and intentional relinquishment of a known right. Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 252 (1988); see also Cummings v. Tripp, 204 Conn. 67, 93 (1987). Where there is no intent to abandon, discontinuance of a use or nonpayment, is not enough to establish abandonment. See Daddona v. Liberty Mobile Home Sales, Inc., supra, 209 Conn. 253.
The defendant claims that he cannot be held liable under any theory of recovery because he acted reasonably and in good faith.
The defendant contends that the plaintiffs "removed substantially all of their possessions and effects from the premises" and left only trash. He told Officer Mercure that the plaintiffs had left "only tables and chairs." The credible evidence is that prior to the lockout, the plaintiffs had removed only four items from the unit, a router and computer removed by Liutermoza and two computers removed by Tom Haskins. The property remaining in the unit when the defendant changed the lock was of substantial quantity and value, as evidenced by photographs taken of equipment and furniture in the unit when the business was operational and photographs of equipment returned to the plaintiffs by the defendant in July 1998. An undisputably valuable piece of equipment, the USR Total Control Unit, along with several other pieces of equipment had not been removed from the unit when the lock was changed and ended up in the defendant's hands. The defendant also claims that it was reasonable for him to believe that the plaintiffs had abandoned the unit because they had "failed to pay the monthly rent payments due in accordance with their lease agreement for over three months." That argument is faulty because the lock to the plaintiff's unit was changed on August 25, 1997. That is when the lockout occurred.
The plaintiffs have proven their lockout claim and that entry and CT Page 8185-br detainer occurred in violation of General Statutes § 47a-43. The plaintiffs are entitled to recover damages for losses they suffered as a result.
A claimant seeking damages bears the burden of proving, with reasonable certainty, those damages sustained as a result of his injury. Conaway v. Prestia, 191 Conn. 484, 493-94 (1983). The owner of property is competent to testify to its value. Shane v. Tabor, 5 Conn. App. 363 (1985). "Mere difficulty in the assessment of damages is not a sufficient reason for refusing them where the right to them has been established." Grant v. West Haven Gardens Co., 181 Conn. 379, 388 (1980), citing Crowell v. Palmer, 134 Conn. 502, 511 (1948). Mathematical exactitude in the proof of damages is often impossible, but the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate. 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 309 (1996).
Much time during the eight-day trial was spent on the issue of damages. Tom Haskins, Martin Liutermoza, and Tracie Haskins each presented different totals for their losses, but all came within a few hundred dollars of $26,000.00. I find the plaintiffs to be credible and conservative in their damage claims. For instance, they did not include missing items for which they had no receipts, such as two computers and 16 to 18 courier modems. Their expert, Jerry Long, whom I also found to be a credible expert witness regarding market values, substantiated the plaintiffs' valuations, although he was higher on some items and lower on others. Long's values totaled $26,214.25.
The defendant called Erik Chase of Computer Trades Limited for valuations and Eric Robinson, an electrician who tested the functionality of the U.S. Robotics Total Control Unit. Chase, did not provide a value for the U.S. Robotics Total Control Unit, but opined a market value for the other items claimed by the plaintiffs to be $3,817.00, however, a seller such as Chase, with storage, a market and a way to advertise, would sell the items at a 300% markup. In August 1997, the plaintiffs were in the position of a seller such as Chase; they did have storage, business contacts, were actively marketing and, importantly possessed, the equipment. Applying the 300% markup to Chase's value results in a market value of $11,451.00, for the plaintiff's losses, excluding their loss on the U.S. Robotics Total Control Unit.
There is no dispute that the U.S. Robotics Total Control Unit had a value of at least $18,000.00 on August 25, 1997. The disputed issue is its value when it was returned to the plaintiffs on July 16, 1998, over ten months later, visibly damaged and without its fan. Jerry Long would CT Page 8185-bs not pay anything for the unit if there were missing or damaged parts. He would not buy this unit in its present state. There would have been a market for the U.S. Robotics Total Control Unit in 1997 and in 1998. Liutermoza could have sold the U.S. Robotics Total Control Unit, undamaged, for $18,000.00 to his then employer in 1998. He could not, however, have sold it in its damaged condition. Chase was unable to offer on opinion as to the value of the U.S. Robotics Total Control Unit. The defendant's electrical expert, Eric Robinson who tested the unit and considered the damage to be cosmetic, but equivocated about the price. When asked if cosmetic damage was important to this type of equipment, he responded, "I guess it depends on the buyer." According to him, the item is saleable, but "the price would be the only issue."
The defendant claims that the plaintiffs failed to mitigate damages with regard to the U.S. Robotics Total Control Unit. After the lockout, but before the defendant returned the U.S. Robotics Total Control Unit to the plaintiffs, GE Capital attempted, in October 1997, to repossess the unit. The plaintiffs continued to make payments on the lease and through July 1998, they had paid an additional $3,020.00 to GE Capital. After the defendant returned the U.S. Robotics Total Control Unit to the plaintiffs, GE Capital again attempted to repossess the unit; however, the plaintiffs refused to give it up during the pendency of this action. The defendant claims that the plaintiffs would have been released from their lease obligations to GE Capital had they done so. In addition, the defendant claims that if the plaintiffs had tested the unit when it was returned to them, they would have determined that it was fully functional. At that point they could have sold it for $18,000.00 or returned it to GE Capital and been released from their lease obligations. This argument ignores the fact that the U.S. Robotics Total Control Unit was returned to the plaintiffs not eight months into the lease, but 18 months into the lease. It was returned with damage and without its fan. There was no evidence that in July 1998, GE Capital would have accepted the U.S. Robotics Total Control Unit in its damaged condition or would have offered any relief on the lease. Finally, the credible evidence is that in its damaged condition the U.S. Robotics Total Control Unit was not marketable. The defendant offered no expert witness to proffer a value for what a willing buyer would pay for the damaged unit. The defendant did not sustain his burden to prove failure to mitigate damages.
The plaintiffs have provided sufficient credible evidence for me to make a fair and reasonable estimate that they sustained damages in the amount of $26,000.00.
The plaintiffs have included in their prayer for relief a claim under CT Page 8185-bt General Statutes § 47a-45a which provides that a complainant shall be awarded a writ of restitution and shall recover costs from the person complained of if a violation of General Statutes § 47a-43 has been found. The plaintiffs have not pursued a writ of restitution but they are entitled to their costs pursuant to General Statutes § 47a-45a.
General Statutes § 47a-46 permits a court to award double damages in a civil action if it is found that the defendant violated General Statutes § 47a-43, which under the circumstances of this case would seem most appropriate. The first count, however, does not contain reference to General Statutes § 47a-46 or to double damages. Nor does the prayer for relief. Practice Book § 10-3(a) provides: "When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number." There is nothing in the complaint to inform or provide notice to the defendant that the plaintiffs would seek double damages. Double damages are not awarded.
Judgment may enter for the plaintiffs on Count 1 in the amount of $26,000.00 plus costs.
SECOND COUNT: CONVERSION
"[C]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's fights." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 43 (2000); see also Aetna Life Casualty Co. v. Union Trust Co 230 Conn. 779, 790-91 (1994); Falker v. Samperi, 190 Conn. 412, 419 (1983).
In the landlord tenant context it is conversion for a landlord to distrain a tenant's furniture. See Mathews v. Livingston, 86 Conn. 263 (1912). It is not a conversion to sell abandoned personalty; but to constitute an abandonment there must be an intention to abandon accompanied by some act or omission by which such an intention is manifested. Mathews v. Livingston, supra.
The defendant's claim that he cannot be held liable because the plaintiffs had abandoned the property or because he reasonably and in good faith believed they had abandoned it is, for the reasons stated in the discussion of the lockout claim, unavailing, as well, as to the conversion claim. The plaintiffs had no intention of abandoning the property. Moreover, the evidence is sufficient to support an inference, which I draw, that the defendant changed the lock, not because he believed the plaintiffs had abandoned the unit, but because he intended CT Page 8185-bu to detain their property when Mendez asked whether the plaintiffs might be "in the process of moving out." The defendant's claim that he was unable to contact the plaintiffs because they did not leave him current information is contrary to the evidence that his office had written to or called the Tracie Haskins at her current address in May, July and August. The defendant's claim that he left the equipment in the unit until September 25, 1997, is also not supported by credible evidence. Rather, the evidence suggests that before that date, much of the plaintiff's furniture and equipment had been removed from the unit. When the defendant's accountant, James Mitchell, was shown the unit on September 23, 1997, he saw a table and some empty computer boxes but he did not see any equipment, except perhaps a monitor. Likewise, when Lopez went to the unit in September, he saw only one table with nothing on it; there was no bookshelf; there was no furniture. There were empty boxes and piles of empty coffee cups and paper. At the defendant's instruction, Lopez cleaned the unit out on September 25, 1997. He swept the trash into bags, put some equipment on the floor in "a little box" and brought the bags and box to Computer Trades Limited. What Lopez and Mitchell describe as remaining in the unit does not jibe with what was in the unit when it was locked, what was brought in several cartons to Computer Trades Limited and what was brought to the court and returned to the plaintiffs in two boxes on a hand-trolley in July 1998.
It is generally acknowledged that the measure of damages in a conversion matter is the value of the goods at the time they were converted, with interest from the date of the wrongful act. Plikus v. Plikus, 26 Conn. App. 174, 178 (1991); Griffin v. Nationwide Moving Storage Co., 187 Conn. 405, 419-20 (1982).
Practice Book § 10-28 provides: "Interest and costs need not be specially claimed in the demand for relief, in order to recover them." Connecticut General Statutes § 37-3a authorizes the discretionary award of interest at the rate of ten percent per year on money wrongfully withheld from the owner. "Prejudgment interest pursuant to § 37-3a is appropriate only where the essence of the action itself involves the wrongful withholding of money due and payable to the plaintiff.
After the lockout, the defendant proceeded to dispose of valuable items, to throw out other items, to obfuscate to the plaintiffs and the police about what had happened to the property, and to keep the equipment in one of his storage spaces for over nine months. The defendant acted wrongfully and with reckless indifference to the rights of the plaintiffs.
The plaintiffs are awarded $26,000.00 for the conversion plus interest CT Page 8185-bv at the rate of ten per cent per year from August 25, 1997 to this date.
The plaintiffs in their post-trial brief argue that they are entitled to punitive damages for the conversion and treble damages for statutory theft pursuant to General Statutes § 52-564. The defendant rightfully points out that the plaintiffs did not plead the statute in accordance with the rules of practice. Practice Book § 10-3(a) provides: "When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number." The prayer for relief contains no reference to § 52-564 or to treble damages. There is nothing in the complaint to inform or provide notice to the defendant that the plaintiffs would seek treble damages. Therefore, the plaintiffs are not entitled to recover treble damages.
The defendant also argues in his brief that the plaintiffs' complaint fails to support a claim for punitive damages under count two, the conversion count. To furnish a basis for recovery of such damages, the pleadings must allege and the evidence must show wanton or wilful misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought." Markey v. Santangelo, 195 Conn. 76, 77 (1985).
Practice Book § 10-20 provides: "The first pleading on the part of the plaintiff shall be known as the complaint. It shall contain a concise statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for relief which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall include the information required by General Statutes § 52-91."
In their prayer for relief the plaintiffs seek punitive damages and have alleged that the defendant acted with "willful and egregious conduct" and flagrantly violated the plaintiff's statutory rights. The complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it is proceeded. As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery." (Internal quotation marks omitted.) Traveler's Ins. Co. v. Namerow, 261 Conn. 784, 795 (2002); Maloney v. PCRE, LLC, supra, 68 Conn. App. 747. The pleading and the evidence in this case provide support for a finding that the defendant acted with reckless indifference or in a wanton manner with respect to the plaintiff's fights. CT Page 8185-bw
Punitive damages may be awarded where the evidence reveals a reckless indifference to the rights of others or an intentional and wanton violation of those rights. If this element is present, an actual intention to do harm to the plaintiffs is not necessary. West Haven v. Hartford Ins. Co., 221 Conn. 149, 160-61 (1992); see also Collens v. New Canaan Water Co., 155 Conn. 477, 489 (1967).
For the reasons stated above, I find the defendant acted with reckless indifference to the rights of the plaintiffs. Accordingly, punitive damages, that is, attorneys fees and costs, are awarded.
Judgment may enter for the plaintiffs on the second count against the defendant in the amount of $26,000.00 plus interest thereon in the amount of $15,150.24 and a reasonable attorneys fee and costs.
THIRD COUNT: UNFAIR TRADE PRACTICE
"Whether a practice is unfair and thus violates CUTPA is an issue of fact." DeMotses v. Leonard Schwartz Nissan, Inc., 22 Conn. App. 464, 466 (1990). The well-settled criteria for determining when a practice is unfair are (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 immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen]. Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 695 (2002).
The plaintiffs allege that the conduct of the defendant was deceptive, violative of public policy, immoral, unethical, oppressive, and/or unscrupulous, and caused substantial injury and ascertainable loss to the plaintiffs.
CUTPA violations are frequently found where liability is established in entry and detainer actions. Ensign-Bickford Realty Corp. v. Hop Brook Corp. et al., Superior Court, judicial district of Hartford-New Britain, at New Britain Housing Session, Docket No. CVH 5363 (November 26, 1996 Beach, J.); Slaughter v. McFarlane, Superior Court, judicial district of New Haven Housing Session, Docket No. CVNH 9112-4893 (September 25, 1992, Vertefeuille, J.); Viera v. Wirth, 12 CLT No. 45 (November 17, 1986); John Hay Benevolent Association v. Gelinas, 16 CLT (Jan. 8, 1990). The Connecticut Supreme Court has held that a CUTPA violation CT Page 8185-bx "certainly" can be found based on a violation of Connecticut General Statutes 47a-43 (a). Daddona v. Liberty Mobile Home Sales, Inc., supra, 209 Conn. 257.
In this case, the defendant violated public policy when he entered the plaintiffs' unit without their consent, when he damaged and converted their property, and when he locked them out of the premises on August 25, 1997. The defendant acted in an oppressive, unethical and unscrupulous manner when he reported to the plaintiffs that they had left only trash in the unit, when he told the police that the plaintiffs had left only furniture and trash in the unit, when he created the impression that one or some among the plaintiffs themselves had removed the equipment and when he failed to inform either the police or the plaintiffs that he was in possession of the equipment. The defendant caused the plaintiffs substantial damage. He compounded the damage when he recovered the plaintiffs' property and stored it for over nine months without informing the plaintiffs or the police that it had been recovered.
In their prayer for relief the plaintiffs seek "attorneys fees and costs pursuant to General Statutes § 42-110g (d) as to count three." They also seek "punitive damages on account of the willful and egregious conduct of the defendant and his flagrant violation of the plaintiffs' statutory rights as tenants." General Statutes § 42-110g (a) provides in relevant part that "[t]he court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.
Under the circumstances of this case, I award punitive damages of $75,000.00 along with reasonable attorneys fees and costs as allowed under CUTPA. The award of punitive damages in this count is in addition to damages awarded to the plaintiffs in the first and second counts. Judgment may enter in favor of the plaintiff on the complaint as follows:
Count I: 26,000.00 plus costs;
Count II: 41,150.24 including interest in the amount of $15,150.24 plus attorneys fees
Count III: $75,000.00 plus attorneys fees and costs.
OFFER OF JUDGMENT
On December 21, 1998, the plaintiffs filed an offer of judgment, CT Page 8185-by offering to settle their claim and to stipulate to a "Judgment for the sum of Thirty Thousand ($30,000.00) Dollars." The offer of judgment was filed within eighteen months of the filing of the complaint on November 24, 1997.
The plaintiffs are entitled to interest at twelve percent per annum on the judgment pursuant to General Statutes §§ 52-192a. This interest is mandated when the amount recovered is greater than or equal to the offer of judgment; see General Statutes § 52-192a (b); and that amount can include interest and attorneys fees; Crowther v. Gerber Garment Technology, Inc., 8 Conn. App. 254, 270-71 (1986); as well as double or treble damages. Gionfriddo v. Avis Rent A Car System, Inc. 192 Conn. 301, 307 (1984). See also Gillis v. Gillis, 21 Conn. App. 549, 554, cert. denied, 215 Conn. 815 (1990). The offer of judgment statute was `enacted to promote fair and reasonable pretrial compromises of litigation' by penalizing defendants who do not settle cases prior to trial. Paine Webber Jackson Curtis, Inc. v. Winters, 22 Conn. App. 640, 651, cert. denied, 216 Conn. 820 (1990). "By awarding [twelve] percent interest on all amounts recovered, including interest and attorneys fees, § 52-192a `imposes a penalty for wasting this state's judicial resources . . .' [and serves as] an indigenous procedural device for promoting judicial economy." Nunno v. Wixner, 257 Conn. 671, 684 (2001); Cardenas v. Mixcus, 264 Conn. 314, 321 (2003) ("It is the punitive aspect of the statute that effectuates the underlying purpose of the statute and provides the impetus to settle cases").
Because the plaintiffs are entitled to an award of attorneys fees under CUTPA and because such fees, as well as interest, costs, punitive and double damages, are included in the judgment for the purpose of calculating interest, that calculation will be deferred until after the parties have been heard on the reasonableness of the fees. The court has been provided with affidavits from both counsel setting forth their attorneys fees through trial. Both have indicated that the submissions are to be supplemented. The court will hold a hearing on the reasonableness of attorneys fees on July, 16, 1997 at 3:00 p.m.
COUNTERCLAIM FOR BACK RENT AND FEES
The defendant has asserted that the plaintiffs have failed to pay any of the monthly rent payments after July 1997, as required by the lease. The lease which commenced on February 15, 1996, and was to end on February 15, 1998, designated monthly rent payments of $250 for the period from March 1, 1996 to February 28, 1997, and of $262.50 from the period from March 1, 1997 to February 28, 1998, payable in advance on the first day of each month. CT Page 8185-cz
The lease was terminated by the defendant when he locked the plaintiffs out of the unit. After that point no rent was due from them. See Rokalor, Inc. v. Commercial Eating Enterprises, Inc. 18 Conn. App. 384, 388-39 (1989). The plaintiffs, however, may be held liable for breach of contract. See Rokalor, supra, 389-90. The lease provides in Paragraphs 4 and 23(b) (3) that rent was due in the amount of $262.50 on the first day of the month in advance. The plaintiffs defaulted on their obligation. Absent evidence of failure to mitigate, and there was no such evidence, the defendant is entitled to recover damages for his losses from August 1997 through February 1998, a period of seven months. The defendant is entitled to an award of $1,837.50. The plaintiffs also owed the defendant a late fee of $155.00. The defendant's claim that the plaintiffs owed $7.50 for July rent is not supported by the evidence, which shows that the plaintiffs overpaid that month.
Judgment may enter in favor of the defendant on the counterclaim in the amount of $1992.50.
The lease provides for a reasonable attorneys fee and expenses and that amount, if any, will be determined after hearing the parties, as indicated above, on July 16, 2003 at 3:00 p.m.
Tanzer, J. CT Page 8185-ca