Opinion
No. CV 03 0826475 S
October 20, 2003
MEMORANDUM OF DECISION AFTER HEARING IN DAMAGES
This matter appeared before the court at the hearings in damages trial list on October 14, 2003. Previously, on August 12, 2003, the court (Hennessey, J.T.R.) found that the defendant had received actual notice of the pendency of this action (#103). The defendant was defaulted for failure to appear by order dated September 8, 2003 (#106). By order dated September 29, 2003, the court (Hennessey, J.T.R.) directed that judgment as to liability should enter against the defendant (#107).
Based on the military affidavit submitted by the plaintiff, the court finds that the defendant is not in the active military service of the United States.
After considering the testimony and submissions of the plaintiff at the hearing in damages, the court orders that judgment for the plaintiff may enter as follows. Pursuant to General Statutes § 52-564, the plaintiff is entitled to recover $7,384.41, representing treble damages for the losses incurred by the plaintiff as a result of the defendant's conduct in connection with the painting he offered for sale over the Internet. The plaintiff's claims under various statutes, including General Statutes § 53a-251 and § 52-570b, are based on the same underlying facts. At the hearing, the plaintiff did not pursue his damages claims under §§ 53a-259 and § 52-570b, or his request for punitive damages under § 42-110g(d).
Section 52-564 provides, "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages."
Here, attorneys fees were sought, in the prayer for relief, under General Statute §§ 52-570c(e) and 52-570c(2). An award of attorneys fees under General Statute § 52-570c is not warranted since this matter does not concern an unsolicited facsimile or telephone message. Attorneys fees under the Connecticut Unfair Trade Practices Act (CUTPA) were not sought in the prayer for relief. See General Statute § 42-110g(d). "[W]hen prosecuting a civil matter, the general rule is that a prayer for relief must articulate with specificity the form of relief that is sought . . . A party who fails to comply with this rule runs the risk of being denied recovery." (Internal quotation marks omitted.) Levesque Builders, Inc. v. Hoerle, 49 Conn. App. 751, 758, 717 A.2d 252 (1998).
Section 52-570c provided, in pertinent part, prior to its recent amendment, which was effective after the acts in question occurred, "(a) No person shall use a machine that electronically transmits facsimiles through connection with a telephone network or a device that automatically transmits a recorded telephone message to transmit unsolicited advertising material or an unsolicited telephone message which offers to sell goods or services. (b) Any person aggrieved by a violation of the provisions of subsection (a) of this section may bring a civil action in the Superior Court to enjoin further violations and to recover the actual damages sustained by reason of such violation, together with costs and a reasonable attorneys fee, or two hundred dollars, whichever is greater."
Section 42-110g(d) provides, in pertinent part, "[i]n any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of recovery."
There is no § 52-570c(e). Rather, an award of attorneys fees is provided for under § 52-570b(e). Clearly, the prayer for relief, by typographical error, referred to the wrong statute. See Haynes Construction Co. v. Cascella Son Construction, Inc., 36 Conn. App. 29, 38 n. 9, 647 A.2d 1015, cert. denied, 231 Conn. 916, 648 A.2d 152 (1994). Our Appellate Court has cautioned that form should not be elevated over substance in considering whether a plaintiff has properly claimed attorneys fees. See Levesque Builders, Inc. v. Hoerle, supra, 49 Conn. App. 759.
Section 52-570b(e) provides, "In any civil action brought under this section, the court shall award to any aggrieved person who prevails, reasonable costs and reasonable attorneys fees."
The defendant was on notice of the plaintiff's claims under § 52-570b, see Complaint, third count and prayer for relief, paragraphs 2-3, and that attorneys fees were claimed, under a different statute. Under the circumstances, the court finds that the plaintiff should not be barred from seeking attorneys fees as a result of a typographical error. The court finds that the amount requested for attorneys fees, $3,250.00, including time spent in appearing at the hearing, is reasonable and awards that sum as attorneys fees.
Accordingly, judgment may enter for the plaintiff in the total amount of $10,634.41, representing treble damages of $7,384.41 plus attorneys fees of $3,250.00. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT