Opinion
No. CV 04-4001761S
August 13, 2010
MEMORANDUM OF DECISION
This memorandum of decision addresses post-verdict motions filed by the cross complaint plaintiff, Margaret Carmichael Brushie, as well as the cross complaint defendant, John J. Stonkus. The original action was a foreclosure action (foreclosure action) brought by the named plaintiffs, Standrod and Marietta Carmichael, against the defendants, John Stonkus (Stonkus) and Margaret Carmichael Brushie (Brushie). Stonkus then filed a counterclaim against the original plaintiffs. Brushie filed a cross complaint against Stonkus, and Stonkus filed a counterclaim to Brushie's cross complaint. The court severed Brushie's cross complaint from the foreclosure action, and three of the counts, fraud, conversion, and statutory theft, were tried to a jury, while the equitable claims of quiet title and unjust enrichment were tried to the court. Because this matter is somewhat unusual, the court will first set forth the procedural history.
For the sake of ease, the court will refer to the cross complaint plaintiff as Brushie and the cross complaint defendant as Stonkus.
To further complicate matters, Brushie had brought an action against Louis S. Avitabile, Docket No. CV 05-500328, which arose out of the same facts as the present case. The court granted Brushie's motion to consolidate the two matters on January 31, 2006. (Robinson, J.) The two actions were scheduled to be tried together, but the court severed the cross complaint from the foreclosure complaint and determined that the cross complaint and counterclaims to the cross complaint would be tried with the matter of Margaret Carmichael Brushie v. Avitabile. (Swienton, J.). This action was to be tried to the court. On the eve of trial, the Brushie v. Avitabile matter was withdrawn.
The original complaint ("foreclosure complaint") was dated September 13, 2004, and was initiated by Standrod T. Carmichael and Marietta A. Carmichael. It alleged that on October 15, 1996, Brushie executed a note in the amount of $53,000 made payable to Standrod and Marietta Carmichael, which was secured by a mortgage on property known as 300 Stonegate Road, Southington, Connecticut ("Stonegate"). Second, it alleged that the note and mortgage were in default. Third, it alleged that Stonkus now held title to the property, and was in possession of it. The original plaintiffs were seeking a strict foreclosure on the property, possession of the house, and a deficiency judgment.
The foreclosure complaint set forth the following as parties having an interest in the property: (1) Mortgage in favor of John J. Stonkus, trustee and guardian, in the amount of $200,000; (2) Deed in lieu of foreclosure to John J. Stonkos; (3) Judgment lien in favor of St. Mary's Hospital for $200, plus interest and fees; (4) Judgment lien in favor Yale-New Haven Hospital for $19,144.45, plus interest and fees; (5) Judgment lien in favor of Yale-New Haven Hospital for $21,568.05, plus interest and fees; (6) Judgment lien in favor of Connecticut Department of Transportation for $946.08, plus interest and fees; (7) Judgment lien in favor of Bristol Hospital for $320.40, plus interest and fees; (8) Judgment lien in favor of Bradley Memorial Hospital for $782.30, plus interest and fees; (9) Judgment lien in favor of Bradley Memorial Hospital for $987.88, plus interest and fees; and (10) Judgment lien in favor of Bristol Hospital for $5,666, plus interest and fees. St. Mary's Hospital, Yale New Haven Hospital, Bristol Hospital, and Bradley Memorial Hospital were all defaulted for failure to appear on January 3, 2005. The defendant, Connecticut Department of Transportation filed a motion seeking foreclosure by sale.
On September 16, 2005, Brushie filed a cross complaint against Stonkus, claiming fraud, quiet title, conversion, statutory theft, fraudulent concealment, unjust enrichment, and intentional infliction of emotional distress. On January 29, 2007, Stonkus filed his answer, special defenses, and counterclaims in the foreclosure complaint. His special defenses to the foreclosure action were as follows: Plaintiffs' hands are unclean; insufficiency of complaint; fraudulent collusion; estoppel; and waiver. By way of counterclaims, Stonkus set forth "Special Defenses I-V are incorporated here."
Brushie withdrew the seventh count, intentional infliction of emotional damage on April 21, 2010.
In response to a request to revise filed by the plaintiffs, Standrod and Marietta Carmichael, Stonkus filed an amended answer, special defenses and counterclaims dated September 18, 2007. The special defenses and counterclaims were the same. On September 19, 2007, the Carmichaels filed a motion to strike all special defenses and counterclaims to the foreclosure action, which motion was granted in its entirety by the court on January 15, 2008 (Domnarski, J.). On February 4, 2008, the Carmichaels requested Stonkus to file a disclosure of defenses to the foreclosure action. Stonkus replied by filing a disclosure of defense, indicating that "there exists a bona fide defense to the plaintiffs' action and that such defense will be and, indeed, which plaintiffs know, has been made in his Amended Answer, Special Defenses and Counterclaims that is incorporated here." Those are the same special defenses and counterclaims that had been previously stricken by the court.
On May 9, 2007, Stonkus filed his answer, special defenses, and counterclaims to Brushie's cross complaint. Again he listed as his special defenses: unclean hands, legal insufficiency of cross complaint, fraudulent collusion, estoppel, and waiver and alleged his special defenses as his counterclaims.
On February 26, 2010, Standrod and Marietta Carmichael moved for a judgment of strict foreclosure, and submitted an Affidavit of Debt as well as an Affidavit of Appraiser. The Affidavit of Debt indicated a total debt as of that date of $94,508.99, and the Affidavit of Appraiser indicated a fair market value of the property to be $255,000. Stonkus filed an objection to the motion for strict foreclosure. Brushie filed a motion to strike the foreclosure action from the jury docket and moved to have the foreclosure action tried to the court in advance of the companion cases, arguing that the foreclosure is purely equitable, and as a matter of law must be tried to the court. All special defenses and counterclaims made by Stonkus in the foreclosure action were stricken by the court. (See footnote 5.)
All matters were scheduled for trial commencing with jury selection on April 14, 2010. At the trial management conference held on April 6, 2010, the court asked the parties to file a memorandum of law as to their positions on how the respective actions should proceed, and whether the cross complaint should be severed from the foreclosure action or even stricken in its entirety. After reviewing the filed memoranda and considering the argument of the parties, the court severed the cross complaint from the foreclosure action, and ordered the jury trial on the cross complaint as well as the court trial in the companion file, Carmichael v. Avitabile, to commence April 28, 2010. The equitable actions of quiet title and unjust enrichment would be tried to the court immediately following the jury trial, and the foreclosure court trial would be scheduled thereafter.
As indicated in footnote 2, this matter was withdrawn on the eve of trial.
The foreclosure trial was scheduled for May 26, 2010. Unfortunately, one of the plaintiffs died before the trial commenced, and that matter has been continued for an estate to be opened.
The jury in this matter returned a verdict in favor of Brushie on three counts: fraud, conversion, and statutory theft. The court then entered its findings on the remaining two counts of quiet title and unjust enrichment, finding for the plaintiff on the quiet title action only.
The court instructed the parties that it would be submitting three counts to the jury on behalf of the plaintiff, and the remaining counts of quiet title and unjust enrichment would be determined by the court. The counts of fraudulent concealment and intentional infliction of emotional damage were withdrawn by the plaintiff. As to Stonkus' counterclaims to the cross-complaint, he withdrew the claims of legal insufficiency of the cross-complaint, estoppel, and waiver. The court ordered Stonkus to provide the court with the elements of the remaining causes of action — unclean hands and fraudulent collusion. Stonkus failed to do so, and later amended his counterclaim of fraudulent collusion to read civil conspiracy. The court then disallowed the causes of actions of unclean hands and civil conspiracy.
Based upon the evidence, the verdict, and the jury's answers to interrogatories, the jury could have reasonably found the following facts.
Brushie purchased Stonegate in 1996, for $176,500. Her father and stepmother, Standrod and Marietta Carmichael, loaned her $53,000 for the purchase of the property, and the remainder of the money for the purchase came from an inheritance from her mother. She signed a promissory note and mortgage deed in exchange for the money borrowed. Approximately two years before she purchased the property, she had met John Stonkus at an Alcoholics Anonymous meeting. She was married at the time, with three children, and she was attempting to stop drinking, while Stonkus had been sober for about seven or eight years. They began to have a relationship, and had a child together, John Tucker, who was born June 5, 1996. Stonkus did not contribute any money to the purchase of the Stonegate property, and the couple never lived together.
Tucker was born premature, and had significant health issues that required extensive hospitalizations and medical treatment. Stonkus was notified that one of the hospitals was owed a substantial sum of money, and was intending to place a lien on the Stonegate property unless the bill was paid. He and his attorney, Louis Avitabile, came up with a scheme to defraud the creditors and convinced Brushie to sign a mortgage deed in the amount of $200,000 in favor of John J. Stonkus, Trustee and Guardian of Michael Drew Donofrio, Margaret Fairlie Donofrio, Molly Ellen Donofrio, and John Tucker Carmichael. At no time did Stonkus ever loan Brushie any money, and she never signed any note evidencing the same. On May 16, 1997, Avitabile came to her home and had her sign the mortgage deed. Brushie's understanding was that the lien would protect the equity in her home from potential creditors.
No formal trust document was ever signed nor was there ever any appointment of Stonkus as the guardian for Brushie's four children, only one of which was Stonkus' biological child.
Brushie married again, and had a fifth child in 1999. She was still battling her alcoholism when, in April 2002, she went to meet one of her children at the bus stop, had her youngest child in her arms, and was intoxicated. She was arrested and sentenced to a year in jail. While she was in the prison, Stonkus came to see her. He indicated that he was willing to help her leave jail under transitional supervision, and would be willing to sponsor her release so that she would go and live at his house in Waterbury. Brushie testified that Stonkus told her to lease the Stonegate property to him and put the utilities in his name, so that he could make repairs to the home. When she completed her transitional supervision, she could return to Stonegate where she would have a place to live with her children, two of whom were in foster care at the time. As soon as she signed the "lease agreement," he would submit the papers for the transitional supervision.
The next day, Avitabile came to the prison with papers for her to sign. The first page of the document which she saw that day allowed Stonkus to lease her home, make repairs, and put the utilities in his name. Unbeknownst to Brushie, the document was in fact a deed in lieu of foreclosure, granting title to the property to John J. Stonkus, individually.
When she was released from prison, Brushie went to live at Stonkus' house in Waterbury. A condition of her release was the completion of an outpatient rehabilitation program with the department of social services. An employee of the department noted that Brushie owned property in Southington, and requested a copy of the "lease agreement." Brushie contacted Stonkus, who told her to contact Avitabile, but neither of them had a copy. Brushie went to the town hall, and it was that point that she discovered that she had executed a deed in lieu of foreclosure, essentially quit claiming the property to Stonkus. She was later served by a marshal, evicting her from the Stonegate property, and Stonkus told her to move all of her personal belongings from the property immediately. She lost some of her possessions in the process.
Stonkus testified that the property was in disrepair when he took possession of it in late September, early October 2002, and had a value of approximately "$40,000-$50,000 tops," and claimed to have expended over $150,000 for repairs. However, he submitted not one scintilla of evidence, other than his conclusory testimony.
At the conclusion of evidence, the court indicated to the parties which counts it was submitting to the jury for determination and which counts were being disallowed. The court also indicated that it was submitting jury interrogatories as well as verdict forms to the jury for their consideration and determination. The court also conducted a charge conference on the record with the parties.
After deliberations, the jury returned completed jury interrogatory forms and a verdict in favor of the plaintiff on all three counts. As to count one, fraud, the jury awarded $160,000 in compensatory damages, and awarded punitive damages to Brushie. As to count two, conversion, the jury awarded damages in the amount of $316,800, and found that the detention of the property was wrongful. As to count three, statutory theft, the jury awarded damages in the amount of $116,000. Where the verdict form indicated: "In accordance with General Statutes Sec. 52-564, we find the plaintiff is entitled to treble damages. (three times the amount of damages shown above)," the jury checked "No."
The court indicated on the verdict form that the court would determine the amount of the punitive damages award.
The court indicated on the verdict form that the court would make the final calculation of interest.
As was explained to the jury, the court reserved for itself the decision on the quiet title and unjust enrichment claims. The defendant claimed as special defenses waiver and estoppel. Because Stonkus offered no evidence at trial as to either of these special defenses, the court did not consider either one. The court found that the mortgage given by Brushie to Stonkus was void, and further found that the deed in lieu of foreclosure was obtained by fraud and deception. The court quieted title to the Stonegate property in favor of Brushie. As to the claim of unjust enrichment, the court found she did not prove the necessary damages as it relates to such a cause of action. Moreover, as the court determined that Brushie was the rightful owner of the Stonegate property, any further awards may have resulted in double recovery for the plaintiff.
These findings were consistent with the findings of the jury in favor of the plaintiff and as evidenced by the jurors' interrogatory answers.
Before the court are the following: Brushie's motion for additur regarding treble damages; Stonkus' motion to set aside the verdict; Brushie's objection to set aside the verdict; and Brushie's request for attorneys fees as to the punitive damages on the fraud count.
MOTION FOR ADDITUR AND MOTION TO SET ASIDE THE VERDICT
The standards for a motion to set aside the verdict and a motion for additur are identical. Hunte v. Amica Mutual Ins. Co., 68 Conn.App. 534, 541, 792 A.2d 132 (2002). "A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion." Marchell v. Whelchel, 66 Conn.App. 574, 582, 785 A.2d 253 (2001). The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice. Only under the most compelling evidence may the court set aside a jury verdict because to do so interferes with a litigant's constitutional right in appropriate cases to have issues of fact decided by a jury. Hunte v. Amica Mutual Ins. Co., supra, 68 Conn.App. 541.
MOTION FOR ADDITUR
The plaintiff filed a motion for additur pursuant to Practice Book § 16-35, requesting the court to enter additional damages as to count three, a claim for statutory theft. The jury found in favor of the plaintiff as to the statutory theft count and awarded damages in the amount of $116,000, but did not award treble damages as expressly provided for in General Statutes § 52-564. The court, in its jury instructions, expressly stated that if the plaintiff had proved her claim of statutory theft, "the law allows you to award damages, and the law provides for treble damages, that is the damages you will find will be tripled." (Emphasis added.)
General Statutes § 52-564, entitled "Treble damages for theft," provides that "any person who steals the property of another . . . shall pay the owner treble her damages." The statute provides for mandatory language that requires the court to award treble damages. This statute can be compared to General Statutes § 47a-46 which contains discretionary language indicating that the party "may recover . . . double damages."
On the plaintiff's verdict form as to count three — statutory theft — the jury indicated that "we award damages to the plaintiff in the amount of $116,000." The verdict form went on to read: "In accordance with General Statutes § 52-564, we find the plaintiff is entitled to treble damages. (Three times the amount of damages shown above.)" The jury then placed an "X" on the line next to "No."
It is unclear whether the jury implied that the award of damages indicated, that is $116,000, was not in fact a tripling of the damages awarded, or whether they found her not to be entitled to treble damages. In any event, the jury's failure to award treble damages is incorrect as a matter of law. The court finds that the plaintiff is entitled to a treble damage award as a result of the verdict in her favor on the count of statutory theft. While this outcome is what the motion for additur seeks, the court is not acting pursuant to the motion, but rather, pursuant to law. As will be explained further below, there are duplicative damages in this case. Therefore, granting an additur would be inappropriate. Nevertheless, the court recognizes the authority of § 52-564 and, accordingly, trebles the jury award of $116,000 to $348,000.
MOTION TO SET ASIDE THE VERDICT
The court will now address the defendant's motion to set aside the verdict. From what the court can gather from his motion, Stonkus is attempting to argue that the jury's verdict should be set aside because the court "charged the jury that it could award damages on three different theories of liability," and, therefore, the plaintiff received an improper award of duplicative damages. In his three-page legal memorandum, he does not provide any analysis for his arguments, other than providing the court with quotes from several cases.
The defendant initially moved for an extension of time to file post-verdict motions, "until and thru (sic) 10 days after receipt of all transcripts of the trial and argument/orders of April 14, 2010," and represented in his motion that: (1) Said transcripts are essential to properly prepare such post-verdict motions; and (2) [the defendant's counsel] has ordered said transcripts." The court learned that the representation made was false, but nevertheless granted the defendant a brief extension in order to file his post-verdict motions. In a letter to the court dated May 28, 2010, the defendant's counsel admitted that he "made an erroneous representation to [the Court] in [his motions for extension of time concerning post-verdict motions."
Several days before the jury was charged, the court held an extensive charging conference on the record. During this conference, the court reviewed each and every portion of the proposed jury charge submitted by the plaintiff, and gave counsel for both parties ample opportunity to analyze and object to each and every element of the jury charge. The defendant did not avail himself of this opportunity, and made no substantive objections to any of the proposed jury instructions. Moreover, after the jury charge was delivered, the defendant did not object to any part or parts of the court's charge as required by Practice Book § 16-20, nor did the defendant "state distinctly the matter objected to and the ground for objection" at any time when there was still an opportunity for correction. See Practice Book § 16-20. The first objection to the court's jury instructions came 24 days after the jury's verdict was returned. Stonkus' argument against the jury charge is untimely because he had ample time prior to the charge being delivered, and was given an opportunity after the charge to object.
Although given ample latitude as to the submission of jury charges, the defendant never even submitted any written requests to charge the jury on any issue prior to the charging conference.
Regardless of Stonkus' disregard for procedure, the court will consider Stonkus' argument that the damages awarded are duplicative and exercise its discretion to reduce the award. Connecticut courts have viewed alterations to the accepted jury verdicts as implicating a plaintiff's constitutional right to trial by jury. See, e.g., Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 664-65 n. 10, 935 A.2d 1004 (2007) (noting that a trial court's power to adjust a jury verdict must be accompanied by the option of a new trial, a necessary feature of remitter, in order to avoid violation of a plaintiff's constitutional right to trial by jury);
2 E. Stephenson, Connecticut Civil Procedure (3rd Ed. 2002) § 196(b), p. 403. Once the verdict is accepted, it appears that remittitur and additur are the only proper vehicles for altering the award, since the right to jury trials is implicated at that point.
Brushie points out, and the court agrees, that Stonkus filed only a motion to set aside the verdict, and should have filed a motion for remittitur asking the court for a reduction of the verdict to the extent of any duplicative, or overlapping, damages. The trial court has the authority to issue a remittitur sua sponte. See e.g., CT Page 16213 Weinshel v. Willott, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 03 0405088 (April 13, 2006) (issuing remittitur of $10,000, sua sponte, where jury mistakenly awarded benefit of the bargain damages despite finding that no contract existed).
There are several principles that govern a trial court's use of remittitur. "[T]he court should not interfere with the jury's determination except when the verdict is plainly excessive or exorbitant . . . The ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption . . ." (Citations omitted; internal quotation marks omitted.) Tomczuk v. Alvarez, 184 Conn. 182, 187-88, 439 A.2d 935 (1981). Furthermore, "[t]he decision whether to reduce a jury verdict because it is excessive as a matter of law [within the meaning of § 52-216a] rests solely within the discretion of the trial court . . ." (Internal quotation marks omitted.) Mulligan v. Rioux, 229 Conn. 716, 753, 643 A.2d 1226 (1994), on appeal after remand, 38 Conn.App. 546, 662 A.2d 153 (1995). Mahon v. B.V. Unitron Mfg., Inc., supra, 284 Conn. 661-62; see also Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 110, 952 A.2d 1 (2008) (stating that a trial court has complete discretion when determining whether to reduce jury verdict as excessive).
DUPLICATIVE DAMAGES
A plaintiff may recover damages for the same loss only once. Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 23, 699 A.2d 964 (1997). "Duplicate recoveries must not be awarded for the same underlying loss under different legal theories. Although a plaintiff is entitled to allege alternative theories of liability in separate claims, he is not entitled to recover twice for harm growing out of the same transaction, occurrence or event." (Citation omitted). Catalina v. Nicolelli, 90 Conn.App. 219, 225, 876 A.2d 588 (2005). "The social policy behind this concept is that it is a waste of society's economic resources to do more than compensate an injured party for a loss and, therefore, that the judicial machinery should not be engaged in shifting a loss in order to create such an economic waste." (Internal quotation marks omitted.) Mack v. LaValley, 55 Conn.App. 150, 169, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999). Notwithstanding Stonkus' failure to properly object to the court's jury instructions, it was proper for the court to instruct on three different theories of liability as alleged by Brushie.
When a jury verdict is returned in favor of a plaintiff on three counts that would, if all entered, result in a duplicative award, and one of those counts implicates a multiplier statute, only the verdict which implicates the multiplier should be awarded. See Rowe v. Goulet, 89 Conn.App. 836, 849-50, 875 A.2d 564 (2005) (awarding damages only once where "the wrong complained of constituted one transaction," but choosing to award the damages pursuant to General Statutes § 47a-46 rather than § 47a-18, since the former justified double damages).
The three causes of actions which were submitted to the jury and for which the jury found in favor of Brushie were fraud, conversion, and statutory theft. In order for the court to make a determination of whether the damages awarded are duplicative, the court must examine the elements of the causes of action in order to ascertain whether they overlap.
"Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment . . ." Spilke v. Spilke, 116 Conn.App. 590, 595, 976 A.2d 69 (2009). "The method by which damages are measured in a fraud action depends on whether the plaintiff was a fraudulently induced buyer or seller. If the plaintiff was a buyer, courts apply the benefit of the bargain measure of damages, which is the difference in value between the property actually conveyed and the value of the property as it would have been if there had been no false representation . . . On the other hand, if the plaintiff was a seller, courts apply the out-of-pocket measure of damages, which is the difference between the price received by the plaintiff for the [property] and its actual value at the time of the sale." (Citations omitted; internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 33, 889 A.2d 785 (2006). "The damages to be recovered in an action of this character are such as are the natural and proximate consequence of the fraudulent representation complained of; and those results are proximate which must be presumed to have been within the contemplation of the defendant as the probable consequence of his fraudulent representations." Kilduff v. Adams, Inc., 219 Conn. 314, 323-24, 592 A.2d 478 (1991). "As a general rule, the plaintiff in a fraud action is not entitled to recover damages to the extent that compensation has already been received for the same loss." Id., 333.
"Fraud is not a necessary part of a conversion. Conversion occurs when one assumes and exercises the right of ownership over property belonging to another, without authorization and to the exclusion of the owner's rights . . . The intent required for a conversion is merely an intent to exercise dominion or control over an item even if one reasonably believes that the item is one's own." Plikus v. Plikus, 26 Conn.App. 174, 180, 599 A.2d 392 (1991). "The general rule is that the measure of damages in a conversion is the value of the goods at the date of the conversion . . . although this is not an exclusive determination . . . Additionally, a wrongdoer should not be allowed to benefit from his misdeed . . . He should not be allowed to retain a converted item, which may have greatly increased in value, and pay a lesser amount. Under the general rule, damages totaling the value of the time at the time of conversion plus consequential damages and interest may still be less than the value of the item itself." (Citations omitted.) Id., 178.
"Statutory theft under § 52-564 is synonymous with larceny under 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 an owner . . . Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006).
In this case, the facts presented to establish fraud, conversion, and statutory theft are the same and, therefore, the resulting damages are duplicative. One event, the taking of Brushie's property by Stonkus, resulted in the harm and damages alleged. She cannot "twice suffer damage" from this one transaction. Thus, she should not twice recover damages. Therefore, to the extent that the awards for statutory theft ($348,000 now trebled from the original $116,000 as explained above), fraud ($160,000), and conversion ($316,800) overlap, the court will reduce the duplicative damages. The resulting damage award then becomes $348,000.
However, this is not the final step because the court must also be mindful of the companion quiet title action. In the quiet title action, the court quieted title and entered judgment in favor of Brushie thus awarding her the Stonegate property. While the jury awarded damages based in part on the loss of the property, the court effectively returned that property to Brushie. As a result, the damages awarded by the jury's verdict, in addition to the court's ruling on the quiet title, are duplicative. The court must then determine the value of the property given to the plaintiff as a result of the quiet title action, in order to reduce the jury award further.
The evidence the court received as to the value of Stonegate was testimony from Brushie and Stonkus. Brushie testified that she purchased the property in 1996 for $176,500, and it was probably worth about the same at the time Stonkus converted the property to his own in late September, early October 2002. Stonkus testified that it was worth between $40,000 and $50,000 at the time he took it over.
"The law in Connecticut is well settled as to the competency of the owner of property to testify as to its value . . . [T]he competence of a witness to testify to the value of property may be established by demonstrating that the witness owns the property in question . . . It is difficult, however, to conceive of an owner having an innate concept of value simply by virtue of ownership. An owner must of necessity rely on other sources for his knowledge of value. Thus [t]he [owner of an article,] whether he is generally familiar with such values or not, ought certainly to be allowed to estimate its worth; the weight of his testimony (which often would be trifling) may be left to the [fact finder]; and courts have usually made no objections to this policy." Hunting v. Chambers, 99 Conn.App. 664, 670-71, 916 A.2d 56 (2007).
"When faced with the constraints of incomplete information, as court cannot be faulted for fashioning an award as equitably as possible under the circumstances." (Internal quotation marks omitted.) Eisenberg v. Tuchman, 94 Conn.App. 364, 388, 892 A.2d 1016, cert. denied, 278 Conn. 909, 899 A2d. 36 (2006).
The court finds that the value of the property at the time of the conversion was $176,500.
The court is mindful that the value of the property may have appreciated from 1996 when Brushie purchased the property until 2002. In light of some of the testimony that the property was vacant for a period of time, and needed repairs, it would appear that this value is sufficient.
PUNITIVE DAMAGES
As to Count one, fraud, the jury found in favor of Brushie, and awarded punitive damages. The court indicated on the verdict form that the court would determine the amount of any punitive damages. Punitive or exemplary damages under Connecticut common law are interchangeable labels for damages awarded under certain circumstances to compensate a party for all expenses of litigation. Alaimo v. Royer, 188 Conn. 36, 42-43, 448 A.2d 207 (1982); Caufield v. Amica Mutual Ins. Co., 31 Conn.App. 781, 786, 627 A.2d 466 (1993). In this case, the jury found in favor of Brushie on the count of fraud, which justifies the imposition of punitive damages. Punitive damages are limited to the costs of litigation less taxable costs. Waterbury Petroleum Products, Inc. v. Canaan Oil Fuel Co., 193 Conn. 208, 347-48, 477 A.2d 988 (1984). Within that limitation the extent such damages are awarded is within the discretion of the court. Chykirda v. Yanush, 131 Conn. 565, 568, 41 A.2d 565 (1945); Wedig v. Brinster, 1 Conn.App. 123, 134, 469 A.2d 783 (1983).
The court requested that Brushie's attorney file an affidavit of attorneys fees in order for the court to make a determination regarding an award of punitive damages. Counsel submitted an affidavit indicating that Brushie had entered into a retainer agreement with a contingency fee arrangement, an hourly rate of the attorneys and staff who worked on the matter, and an approximation of the hours spent. There is no question that the firm expended large amounts of time on the matter. However, because there are several matters that Brushie was involved with — the foreclosure matter, her cross-complaint, as well as the action against Avitabile — it was unclear as to the amount of time expended on this matter alone. The court ordered counsel to submit an affidavit together with a breakdown of hours spent on this matter and by whom, as well as any other costs of litigation. Stonkus was given time to file any objection. If none was filed within that time, the court would make its determination as to the punitive damages award.
Brushie's attorneys filed an extensive affidavit with the breakdown of time spent and by whom on August 4, 2010. On August 11, 2010, Stonkus' attorney filed, "Defendant's Counter Claimant's, John J. Stonkus, Memorandum Re Plaintiff's Claim for Attorney (sic) Fee." He requests an evidentiary hearing on Brushie's claim for attorneys fees. The court shall grant his request prior to any determination of an award of punitive damages by way of attorneys fees.
INTEREST UNDER GENERAL STATUTES § 37-3a
Brushie is also seeking interest under General Statutes § 37-3a, pursuant to her claims for relief in her cross-complaint. General Statutes § 37-3a provides, in relevant part, that "interest at the rate of ten percent a year . . . may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable."
"The trier of fact may award prejudgment interest, as an element of damages, for the detention of money after it becomes payable if equitable considerations deem that such interest is warranted . . . An award of such interest is an equitable determination lying within the trier's sound discretion . . . The determination is one to be made in view of the demands of justice rather than through the application of an arbitrary rule . . . A trial court must make two determinations when awarding compensatory interest under § 37-3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated." Smithfield Associates, LLC v. Tolland Bank, 86 Conn.App. 14, 26, 860 A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d 839 (2005).
In Suarez-Negrete v. Trotta, 47 Conn.App. 517, 705 A.2d 215 (1998), the appellate court expressly approved an award of damages by a trial court that included interest under General Statutes § 37-3a, as well as treble damages (including interest), when the defendant failed to refund sums to the plaintiff which were deposited with him in connection with issuance of an immigration bond. "General Statutes § 52-564 provides that if the defendant stole the plaintiff's property, `he shall pay the owner treble his damages.' We see no reason to carve out of those damages, as a matter of law, the prejudgment interest element for the benefit of a defendant who has been found liable pursuant to General Statutes § 52-564." "The party seeking prejudgment interest has the burden of demonstrating that the retention of money is wrongful, and this requires more than demonstrating that the opposing party detained money when it should not have done so." (Internal quotation marks omitted.) Travelers Property Casualty Co. v. Christie, 99 Conn.App. 747, 916 A.2d 114 (2007). "It is clear that Connecticut case law establishes that prejudgment interest is to be awarded if, in the discretion of the trier of fact, equitable considerations deem that it is warranted." (Citations omitted.) Hoye v. DeWolfe, Co., 61 Conn.App. 558, 564, 764 A.2d 1269 (2001). Under Count two, conversion, the jury found in favor of Brushie and found "that the detention of the property was wrongful." In light of the jury's finding regarding the detention of the property, and because the award of interest rests in the discretion of the trier of fact, the court shall award prejudgment interest to the plaintiff from the date of wrongful detention of the Stonegate property. The court also finds that the plaintiff is entitled to have the award of interest under General Statutes § 37-3a tripled because of the jury's finding that the defendant committed statutory theft. Suarez-Negrete v. Trotta, supra, 47 Conn.App. 522.
COMPUTATION OF JUDGMENT AND REMITTITUR
The court has found that Brushie is entitled to damages on count three, statutory theft, which the jury awarded $116,000, and the court has trebled to $348,000 in accordance with General Statutes § 52-546. The court has also found that the plaintiff is entitled to interest pursuant to General Statutes § 37-3a at the rate of ten percent per year from October 1, 2002 to the date of judgment on the basic amount of compensatory damages under the statutory theft count of $116,000 and that such interest should be trebled. The court has also found that the value of Stonegate is $176,500.
In computing the amount of the remittitur, the court must determine the amount of the judgment that would enter if the court did not eliminate duplicative damages. The total amount awarded by the jury on the three counts is $824,800.
The represents the awards of $348,000 ($116,000 trebled), $160,000, and $316,800.
CONCLUSION CT Page 16210
1. The court orders a remittitur of $653,300 for the reasons stated above, reducing the jury verdict compensatory damages to $171,500. Pursuant to General Statues § 52-228b the plaintiff shall have thirty days to accept the remittitur by filing an appropriate writing with the clerk's office. Absent acceptance by the plaintiff, the court will order a new trial, limited to the issue of the amount of damages only.2. The court orders interest pursuant to General Statutes § 37-3a on the award of $171,500 from October 1, 2002 to the date of judgment, at the rate of ten percent per annum, which amount equals $134,945.83, with a per diem amount of $46.99. The court orders said interest trebled, which amount is $404,837.49.
3. The court orders a post-judgment evidentiary hearing on the issue of attorneys fees to be held on September 14, 2010, at 9:30 a.m. This hearing shall not be continued without express permission of the court.