Opinion
CV136019988S
11-25-2015
Bruce A. Wessels v. Paul Bialobrzeski
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Marcia J. Gleeson, J.
I
STATEMENT OF THE CASE
This is an action by the plaintiff, Bruce Wessels, against the defendant, Paul Bialobrzeski. The operative complaint dated April 10, 2015 contains five remaining counts, alleging negligence, fraud, breach of fiduciary duty, theft, and identity theft. On June 23, 2015, the defendant filed an answer in which he denies the material allegations of the complaint and asserts several special defenses alleging that the plaintiff's various claims are barred by the applicable statutes of limitations. The plaintiff replied on June 23, 2013, denying each special defense.
The case was tried to the court on June 25, 2015. At that time the parties submitted the following stipulation of facts:
1. Plaintiff, Bruce A. Wessels, is an individual who at all relevant times resided at 64 Lawndale Ave., Bristol, CT.
2. Defendant, Paul Bialobrzeski, at all relevant times was an attorney licensed to practice law in the State of Connecticut. He maintained an office in Waterbury, CT and resided at 121 Colonial Ave. Middlebury, CT.
3. The Plaintiff and the Defendant were close friends during the relevant transactions.
4. In 1998 the Plaintiff mortgaged his home at 64 Lawndale Ave. Bristol, CT with Pinnfund USA (hereinafter " Pinnfund"). Through various assignments this mortgage came to vest in Citifinancial Mortgage, Inc in 2010 (hereinafter the " Citifinancial Mortgage").
5. In 2004, the plaintiff sought to refinance his home with Novastar Mortgage. The Plaintiff hired the Defendant to act as his attorney and represent the Plaintiff in the refinance.
6. The closing took place on or about February 26, 2004 with the Defendant representing the Plaintiff as his attorney.
7. On or about February 26, 2004, the Plaintiff and the Defendant met in the Plaintiff's home and signed relevant documents to close a $110,400.00 loan from Novastar Home Mortgage, Inc.
8. The right of rescission period for the refinance to Novastar was on March 2, 2004.
9. Immediately after the right of rescission date of March 2, 2004 for the refinance with Novastar, the Defendant, Paul Bialobrzeski was suppose to immediately pay off the following debts in accordance with the HUD:
a. Citifinancial Mortgage in the amount of $89,361.54;
b. Edward Hobbs in the amount of $4,225.58; and
c. City of Bristol, Taxes in the amount of $9,526.41.
10. The Defendant conducted the closing in such a manner that the Plaintiff believed it to be routine.
11. The Defendant, Paul Bialobrzeski, did not immediately pay off the debts in accordance with the HUD. The Debts were paid off as follows:
a. Citifinancial Mortgage in September 2012;
b. Edward Hobbs in June 2007; and
c. City of Bristol, Taxes in February 2005.
12. The Defendant also did the following:
a. Paid the monthly mortgage bill each month for a time as rendered by Citifinancial Mortgage, although that payment was frequently late.
b. Failed to record the Novastar mortgage until October 5, 2009.
c. At a later point in time stopped paying the Citifinancial Mortgage payments altogether.
13. The Novastar Mortgage was subsequently assigned to Bank of New York Mellon, Ocwen and Commonwealth Title Insurance Company.
14. The Plaintiff, Bruce Wessels, was the Defendant in the matter known as CitiMortgage, Inc. v. Bruce Wessels et al., which was filed in October 2010, under Docket Number HHB-CV10-6007448-S in the Superior Court for the Judicial District of New Britain. Said matter was brought to foreclose the mortgage for which the Defendant, Paul Bialobrzeski, had failed to pay with the funds from the Novastar refinance;
15. The Defendant in conducting and agreeing to conduct the closing for the Plaintiff had a duty to represent the Plaintiff with the reasonable care, skill and diligence possessed and exercised by the ordinary attorney in similar circumstances.
16. In conducting the closing as described in paragraph 6 above, the Defendant negligently failed to meet the reasonable care, skill and diligence required of the ordinary attorney in similar circumstances.
17. In acting as the Plaintiff's attorney the Defendant had the fiduciary duty to act at all times in the best interest of the Plaintiff.
The plaintiff admits that the defendant paid off the entire mortgage and all costs and fees associated with the closing referenced above, but claims that, as a result of the defendant's actions, he suffered the following additional damages: embarrassment and ridicule in the community, a loss of credit rating with the credit bureaus, the expenses of hiring an attorney to represent him in negotiating with mortgage holders and insurance carriers to pay off or renegotiate the terms of the loans, and the inability to obtain financing to expand his livery business, resulting in a substantial loss of business and the inability to expand. The defendant admits that, in conducting the closing as set forth above, he negligently failed to exercise the reasonable care, skill, and diligence required of the ordinary attorney in similar circumstances. The defendant denies, however, that the plaintiff was damaged in the additional ways alleged. By agreement of the parties at the time of trial, the issues before the court were limited to whether the defendant is responsible for the additional injuries complained of and, if so, the amount of damages.
During the plaintiff's case, the court heard testimony from Stephen Coan, Jamil Mohammed, Brian Hobbs, and the plaintiff, Stephen Coan. During the defendant's case, the court heard testimony from the defendant. The plaintiff testified again in rebuttal, and both parties introduced several exhibits. Thereafter, the parties filed post-trial briefs with the court, the last of which was filed on August 3, 2015.
II
DISCUSSION
A
STANDARD OF PROOF
The standard of proof in civil actions, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence. Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992). Failure to do so will result in a judgment for the defendant. Id. While the " plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence; and . . . has the same right to submit a weak case as . . . a strong one, " the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it." Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981).
B
CREDIBILITY
" [T]he trier of fact's assessment of the credibility of the witnesses . . . is made on the basis of its firsthand observation of their conduct, demeanor and attitude . . . The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact." (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 A.2d 622 (2006). " It is well established that [t]he trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what--all, none, or some--of a witness's testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).
In evaluating the credibility of the witnesses, this court considered their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events; their manner in responding to questions and whether they were candid and forthright or evasive and incomplete, their interest or lack of interest in the case, and the consistency or inconsistency of their testimony in relation to other evidence, including exhibits in the case.
C
FACTS
In addition to the stipulated facts, the court also finds the following facts from the credible evidence presented at trial.
At the time of the events complained of, the plaintiff was self-employed as a taxi driver. This was a second career for him after having been a contractor for over twenty years. In 2004, he operated his business by leasing a taxi plate from another business, Yellow Cab, which also held the title to the plaintiff's vehicle, a 1990 Lincoln Town Car, and leased it back to him. In 2004, he applied to refinance his home mortgage to obtain a lower interest rate, to pay off City of Bristol tax liens and another lien resulting from a personal loan from Hobbs, and to obtain additional funds that he hoped to use to expand his business. The plaintiff wanted to obtain about $15,000 over the payoff amount: $5,000 with which to buy a used vehicle to replace the " worn out" Lincoln, which had about 420, 000 miles on it, and an additional $10,000 so he would " have money in the bank" and be able to apply for a livery plate from the Department of Transportation (department). The plaintiff was unable to recall at trial the amount of the loan he applied for, but variously testified that he thought the amount was $125,000 or $130,000. At the closing, he learned that the principal amount of the new loan offered by the lender was $110,400, which would allow him to pay off his debts as set forth above, but no more. Despite his disappointment, he accepted the amount and terms offered by the lender and executed the settlement documents. After the closing, the defendant obtained a " new" used 1998 Lincoln Town Car for the plaintiff to drive in his business. Between 2004 and 2010, the plaintiff continued to operate his car service business, and at times he referred business to other drivers. The defendant continued to represent the plaintiff in matters concerning his taxi business, as well as a used car business, Phoenix Motors, with which the plaintiff and his son were associated. The plaintiff testified that he did not know about the defendant's failure to pay off the plaintiff's mortgage debts until he was served with a foreclosure action in 2010. During those years, the defendant paid to the plaintiff or on his behalf sums totaling at least $191,964.02, which included the payments the defendant made on the mortgage. Additional facts are found as necessary below.
A livery plate, unlike a taxi plate, allows the use of unmarked vehicles and interstate pick-up and delivery.
D
ANALYSIS
As to the plaintiff's claim that the actions of the defendant caused him embarrassment and ridicule in the community, there was simply no evidence of this introduced at trial. The plaintiff's brief is silent on such embarrassment and ridicule, but points to the testimony of Hobbs in support of the plaintiff's related argument that as a result of the defendant's actions, the plaintiff's reputation in the community was damaged. The plaintiff argues in his brief that Hobbs' opinion of the plaintiff " changed completely" and " Hobbs began to look at the Plaintiff as a dishonest individual that lacked character." Hobbs' testimony, however, was to the contrary; when asked directly whether he thought less of the plaintiff after these events, Hobbs testified that he told the plaintiff, " I understand what happened, you were mislead and ultimately it did get paid off, so no harm, no foul." There was no other evidence introduced on this claim.
As to the plaintiff's claimed damages for a loss of credit rating with the credit bureaus, there was no evidence at trial establishing the plaintiff's credit rating before, after, or at any time during the events complained of, or any other evidence of his credit rating.
As to the plaintiff's claimed damages for the expenses of hiring an attorney to represent him in negotiating with mortgage holders and insurance carriers to pay off or renegotiate the terms of the loans, there was no evidence of any such expenses introduced at trial.
Finally, the plaintiff claims damages based on the " inability to obtain financing in order to expand his livery business, resulting in a substantial loss of business and the ability to expand." This claim fails for several reasons.
First, there was no evidence at trial that the defendant's failure to timely pay off the plaintiff's debts after the closing caused the plaintiff to be unable to obtain such financing, and the plaintiff's brief is silent in this respect. Moreover, there is simply no evidence that the plaintiff applied for and was denied financing during the period complained of.
It should be noted that courts have interpreted the inadequate briefing of an issue to constitute its abandonment. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (" We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned . . . These same principles apply to claims raised in the trial court." [Citation omitted; internal quotation marks omitted.]).
Rather, in his brief, the plaintiff argues that " [i]t was not until the actual closing at the Plaintiff's house that the Defendant told the Plaintiff that the refinance would not net the Plaintiff any funds . . . As a result, the Plaintiff could not expand his livery business." Although not so pleaded in his complaint, the plaintiff claims that if the lender had financed an additional $15,000 at the time of the finance, he would have used the money to obtain a " new" used car and to qualify for and apply for a livery plate. The plaintiff further claims that once he obtained said livery plate, he then would have expanded his business, and, after operating the expanded business successfully for one or two years, he would have applied for and obtained two additional livery plates, bought two additional cars, hired three drivers, and retired from driving to manage the business. The plaintiff claims lost revenues in the amount of $100,000 a year for the years 2004 through 2011--totaling $700,000--due to his inability to expand his business according to the above plan.
The linchpin of this claim is apparently the plaintiff's belief that it was somehow the defendant's fault that the bank did not offer him a larger loan; however, there was no credible evidence of this introduced at trial. The plaintiff could not even say with certainty the amount of the loan he applied for, nor did he offer the application into evidence. There was no evidence that the defendant negotiated the loan on the plaintiff's behalf, interfered with the plaintiff's application, or made an error that adversely affected the process. Nor was there evidence that the plaintiff qualified for the larger loan he desired; of the amount of the plaintiff's equity, if any, at the time of the application; or of the appraised value of the property being mortgaged. Moreover, the plaintiff was fully aware at the closing that he would not net any funds, but he went ahead with the closing and executed the loan documents anyway.
" [A] causal relation between the defendant's wrongful conduct and the plaintiff's injuries is a fundamental element without which a plaintiff has no case . . ." (Internal quotation marks omitted.) Right v. Breen, 88 Conn.App. 583, 587, 870 A.2d 1131 (2005), rev'd in part on other grounds, 277 Conn. 364, 890 A.2d 1287 (2006).
" [L]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct . . .
" The second component of legal cause is proximate cause, which we have defined as [a]n actual cause that is a substantial factor in the resulting harm . . . The proximate cause requirement tempers the expansive view of causation [in fact] . . . by the pragmatic . . . shaping [of] rules which are feasible to administer, and yield a workable degree of certainty . . . Remote or trivial [actual] causes are generally rejected because the determination of the responsibility for another's injury is much too important to be distracted by explorations for obscure consequences or inconsequential causes . . . In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice . . .
" We have held, moreover, that the test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant's conduct] . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . This causal connection must be based upon more than conjecture and surmise." (Citations omitted; internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 24-26, 734 A.2d 85 (1999).
In sum, the court concludes that the plaintiff has failed to prove a causal relation between the defendant's wrongful conduct and the plaintiff's inability to expand his business.
Moreover, even if the plaintiff had proven a causal connection between the actions of the defendant and the plaintiff's inability to expand his business, the plaintiff's claim would still fail because the plaintiff has not sustained his burden of proving an entitlement to damages for the lost profits he claims.
The general rule as to lost profits is that they will be allowed only if their loss is capable of being proved, and is proved, with a reasonable degree of certainty. No recovery can be had for loss of profits which are determined to be uncertain, contingent, conjectural or speculative. 22 Am.Jur.2d, Damages § 825, p. 776 (2013).
The " plaintiff cannot recover for the mere possibility of making a profit . . . A damage theory may be based on assumptions so long as the assumptions are reasonable in light of the record evidence." (Citation omitted; internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 70, 717 A.2d 724 (1998). The burden is upon the plaintiff to " present sufficiently accurate and complete evidence for the trier of fact to be able to estimate those profits with reasonable certainty." Id. This the plaintiff has failed to do.
The plaintiff's ability to successfully achieve his long-term goals for expanding his business necessarily depended on a series of indefinite assumptions and contingencies. The plaintiff claims that if he had been given the extra money at the 2004 closing, he would have used part of the money to replace his car and the rest to qualify for and apply for a livery plate. The plaintiff further claims that once he obtained said livery plate, he then would have expanded his business and, after operating the expanded business successfully for one or two years, he would have applied for and obtained two additional livery plates, bought two additional cars, hired three drivers, and retired from driving to manage the business. On the basis of the evidence at trial, it is far from clear that, had the plaintiff obtained the extra funds and used a portion of them to replace his car, the remainder would have been sufficient to meet the financial stability and other requirements imposed by the department, or the plaintiff would have otherwise successfully navigated the process.
General Statutes § 13b-103 provides in pertinent part:
(a)(1) No person, association, limited liability company or corporation shall operate a motor vehicle in livery service until such person, association, limited liability company or corporation has obtained a permit from the Department of Transportation, specifying the nature and extent of the service to be rendered and certifying that public convenience and necessity will be improved by the operation and conduct of such livery service. Such permits shall be issued only after a written application for the same has been made and a public hearing has been held thereon. Upon receipt of such application, together with the payment of a fee of two hundred dollars, the department shall fix a time and place of hearing thereon, within a reasonable time, and shall promptly give written notice of the pendency of such application and of the time and place of such hearing to each applicant, the mayor of each city, the warden of each borough and the first selectman of each town, within which any such applicant desires to maintain an office or headquarters, to any carrier legally operating motor vehicles in livery service within the same territory and to other interested parties as determined by the department. (b) In determining whether or not such a permit will be granted, the Department of Transportation shall take into consideration the present or future public convenience and necessity for the service the applicant proposes to render, the suitability of the applicant or the suitability of the management if the applicant is a limited liability company or corporation, the financial responsibility of the applicant, the ability of the applicant efficiently and properly to perform the service for which authority is requested and the fitness, willingness and ability of the applicant to conform to the provisions of this chapter and the requirements and regulations of the department under this chapter.
The plaintiff himself testified that the requirements for livery plate ownership were " very adversarial" and " very difficult, " and that he had never applied for a livery plate from the department through its hearing process because " they are very adversarial. [He] just didn't have the time or the ability to do that. [He would] have had to hire a lawyer and it would have been difficult."
Plaintiff's witness, Stephen Coan, is the owner of a fleet of twenty cars operating with twenty various types of plates, to whom the plaintiff regularly referred overflow business, and the originator of the plaintiff's idea to expand his business. Coan testified that the plaintiff had approached him for assistance in obtaining a livery plate, but, in addition to the plaintiff having no " start up money, " there were a number of other impediments to the plaintiff being awarded a livery plate by the department. Coan testified that in addition to start up money, the department wants to see that an applicant " has financial backing . . . [and] the financial wherewithal to operate his company" over time; having an established client base, Coan testified, would not have been enough. Coan also testified that the plaintiff was too busy driving his car and juggling his referrals to deal with the application process, and that Coan was himself too busy to assist the plaintiff.
Each remaining element of the plaintiff's plan to expand his business depends upon and assumes the success of a series of contingencies: having acquired a livery plate, the plaintiff then would have adequately expanded his business and, after operating the expanded business successfully for one or two years, he would have applied for and obtained two additional livery plates, bought two additional cars, hired three drivers, and retired from driving to manage the business. There are simply too many factors and conditions that would have to be assumed, and the court cannot award damages for losses rendered remote and speculative by such indefinite contingencies, as is the case here. See Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 35-36, 889 A.2d 785 (2006) (lost profits unrecoverable when supported by unresolved contingencies); Malloy v. Colchester, 85 Conn.App. 627, 634-35, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004) (proximate cause cannot be found when premised on conjecture and attenuated assumptions).
In addition, even if the plaintiff had proven that, but for the defendant's actions, he would have successfully expanded his business in the ways alleged, the court would still be unable to make a fair and reasonable estimate of lost future profits. The plaintiff failed to submit any credible evidence of his income or expenses, such as federal or state tax returns, financial statements, or other business records from the years at issue. Nor did the plaintiff introduce credible evidence of the anticipated expenses involved in expanding his business, such as salary and employee benefits for three drivers; the attendant costs of recruitment and training; overtime expenses; the acquisition costs for the additional cars and the attendant expenses, including taxes, insurance, gasoline, oil, maintenance, repairs, cleaning, garaging and replacement costs; or the costs of payroll, accounting or bookkeeping services. The plaintiff did introduce a number of bank statements for some of the years at issue, but these were incomplete and were not discussed in the plaintiff's postural brief. Without any analysis from the plaintiff, the bank statements were of no assistance in establishing the plaintiff's income, expenses, or profits for any given year.
See supra, note 2.
Moreover, it was difficult to credit the plaintiff's testimony in a number of related areas. At different times during his testimony, the plaintiff variously estimated that, during the years in question, he was grossing $20,000 a year, between $30,000 and $40,000 a year, or " probably 40-60 thousand dollars a year." Also, his testimony regarding his estimated overhead varied from 40% to 50%. When asked whether he filed income tax returns for the years 2004 through 2010, the plaintiff testified that he " probably did, " but that he did not bring them to court. Later, on cross-examination, he admitted that had not timely filed income tax returns for those years, instead filing them " all at one time, " and that he did not know where they were. When asked whether his testimony regarding the amount of his income was the same as the income reflected in his income tax returns, he appeared evasive and testified that he " took deductions, " and that it was a long time ago and he did not remember.
" 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 . . ." (Citations omitted.) Falco v. James Peter Associates, Inc., 165 Conn. 442, 445, 335 A.2d 301 (1973). " It is axiomatic that the burden of proving damages is on the party claiming them." (Internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 308, 685 A.2d 305 (1996).
For all of the foregoing reasons, the court finds that the plaintiff has not met his burden of proof and accordingly finds the issues for the defendant.
III
CONCLUSION
For all of the foregoing reasons, judgment shall enter in favor of the defendant on the complaint.