Opinion
No. CV 04-0833553 S
June 12, 2006
MEMORANDUM OF DECISION
Introduction
The Plaintiff, Caron Collision, Inc., brings this action in six counts against the Defendants, Timothy Jarish and Karen Jarish. In the First Count of the Complaint, the Plaintiff claims conversion. The Plaintiff claims that the Defendant, Timothy Jarish, was an employee and officer of the Plaintiff, Caron Collision, Inc., and that his wife, Karen Jarish, was also an employee of the Plaintiff. The Plaintiff claims that in July 2002 the Defendants wrongfully and without authority removed assets of the corporation, including trucks, trailers, and construction equipment and have refused to return them. In the Second Count, the Plaintiff claims, based on the same facts, treble damages in accordance with General Statutes § 52-564. In the Third Count, Plaintiff claims that the conversion of assets of the Plaintiff deprived it of its means to continue its business operations, which it had intended and expected to continue, which constituted a tortious interference with business expectancy. In the Fourth Count, the Plaintiff claims that the actions of the Defendants caused KF Properties, LLC to breach its contract with the Plaintiff and to substitute for the Plaintiff an unknown business entity to which one or both of the Defendants had an interest, which actions constituted a tortious interference with contract. In the Fifth Count, the Plaintiff claims a breach of fiduciary duty based on the facts previously alleged and, in addition, that the Jarishes, over a period of months and years, caused the Plaintiff to fail to meet contractual and legal obligations including a failure to pay rent and remit tax payments to municipal, state and federal authorities, as a result of which the Plaintiff owes significant sums which should have been paid from corporate revenues in the ordinary course, but were not. In the Sixth Count, the Plaintiff claims that the Defendants' wrongful actions constitute a violation of the Connecticut Unfair Trade Practices Act.
The Defendants appeared through counsel and filed an answer.
Trial on this matter was held on March 8, 9, and 13, 2006. At that time the court heard testimony from a certified public accountant, Michael Roy; the President of Caron Collision, Inc., David Caron; the brother of Timothy Jarish, who also worked for Caron Collision, Inc., Robert Jarish; both Defendants; and received fifteen exhibits. Simultaneous post-trial briefs were filed on March 31, 2006, and the Plaintiff filed a reply brief on April 13th and the Defendants filed a reply brief on April 17th.
Findings of Facts
Certain facts alleged by the Plaintiff in the Complaint have been admitted by the Defendants. The Defendants admit that Caron Collision, Inc. is a Connecticut corporation having a principal place of business in East Hartford, Connecticut. They also admit that Timothy Jarish is a natural person having a residence in South Windsor, Connecticut who was at all times relevant both an employee and an officer of the Plaintiff, Caron Collision, Inc. and that Karen Jarish is a natural person having a residence in South Windsor, Connecticut who is the spouse of the Defendant Timothy Jarish and who was at all times relevant an employee of the Plaintiff Caron Collision, Inc.
Based upon a preponderance of the evidence, the court finds the following additional facts.
Caron Collision, Inc., was formed in 1989. At that time a written shareholders agreement was executed by David Caron and Timothy Jarish which provided that Caron would be President and Jarish would be Secretary-Treasurer. Caron would own 300 shares of the company's stock and Jarish would have a right to purchase up to 150 shares at $1,000 a share over a five-year period.
Jarish contributed $80,000 to $90,000 to the business. Although the shares were never issued to Jarish, the tax returns signed by Caron indicated that he was a 50% owner of the corporation's common stock. The shareholders agreement provided that both would be paid an equal salary as co-managers of the business. The business of the corporation was essentially auto body work. The business was operated out of premises on Park Avenue, East Hartford, Connecticut which were owned by Caron and leased to the corporation. Jarish was to run the day to day operations of the corporation. Karen Jarish also worked at the business as well as Robert Jarish, Timothy's brother. Karen Jarish worked part-time at the business, answering phones, opening mail, and doing miscellaneous other duties. She did not have check writing authority, except on occasion as authorized by her husband. Nor did she keep the company's books. The company had a comptroller at another location. The principal source of revenue for the business was auto body work. In 1999 the business had a gross profit of $263,721 and in 2000 it was $339,639. The Defendant Jarish expanded the business to include sandblasting, truck painting, and a paving business, doing roads and driveways. Later the corporation moved into the area of doing site work, preparing ground to be paved, building foundations, laying pipes, etc. Different types of equipment are needed to do paving and site work. Such equipment was purchased by the corporation. Caron wanted the business to move in the direction of doing site work and away from the automotive and paving business. In the fall of 2000 there were discussions between Caron and the Jarishes about splitting the auto body business from the paving and site construction business. Caron planned to close the auto body business and continue the site construction business with Timothy Jarish and turn the paving business over to Timothy Jarish and his brother. In early 2001 Timothy Jarish moved the paving equipment to his uncle's property. Between January and March Caron and Jarish discussed an agreement to split up but a final agreement was never reached. In March of that year Caron and Jarish had a big argument regarding the future of the business because negotiations had stalled. Jarish offered to have the equipment auctioned off but Caron refused. Some time in the spring of 2001, the Defendant Jarish moved a number of pieces of paving equipment to another location in South Windsor where he was operating the business known as Jarish Paving Construction. In April 2001 Jarish Paving Construction was formed. Karen Jarish participated in the move of the business but thought the spilt was the result of a verbal agreement between her husband and Caron. Around that time certain paving equipment was transferred to Jarish to repay a loan Karen Jarish had made to the corporation, although Karen Jarish claims it was part of the split of the business and not to repay the loan.
In 2001 Caron Paving and Construction entered into a contract with KF Properties, LLC for $189,000 to do site work. Caron Collision started the KF Properties job in February 2001 but Jarish took over the job in May and began receiving payments on the contract. Payments from that job were used to pay Caron Collision bills and no profit was made by Jarish on the job.
Caron and Jarish attempted to work out a resolution of their disagreements, but were unable to do so, and in the fall of 2001 Caron demanded that the equipment Jarish took be returned. That equipment was used on three jobs to do site work either for Jarish Paving Construction or as backup on jobs in which Jarish was employed by another company. In the fall of 2001 equipment belonging to Caron Collison was on a Jarish job site. In the winter of 2002-2003 Caron located some of the equipment, such as a John Deere 790 Excavator and a bobcat loader at another construction site. On some of the equipment there the Plaintiff's name was blocked out, although the phone number listed on the equipment was that of a Caron business, yet this same phone number appeared on a Jarish Paving Construction truck.
The following is a chart of the items that the Plaintiff alleges Jarish took from the corporation, their current status (if known), and their value at the time of the taking:
1) Payloader (#24 on Ex. 5) returned in 2002 and $ 9,500 sold at 5/21/2004 IRS auction 2) Bobcat (#30 on Ex. 5) returned $ 5,000
3) Plate Compactor (#32 on Ex. 5) Jarish has $ 500
4) Backhoe (#39 on Ex. 5) returned in 2002 $ 30,000
5) Curb Machine (#43 on Ex. 5) Jarish has $ 1,200
6) Used John Deere 550B Dozer (#57 on Ex. 5.) returned and sold at $ 26,500 5/21/2004 IRS auction 7) Used John Deere 790 Excavator sold by Jarish at $ 25,000 (#58 on Ex. 5) auction in 2005
8) Atlis Chalineis Grader Jarish has $ 2,000 (#59 on Ex. 5)
9) Paving Box (#60 on Ex. 5) sold at 5/21/2004 IRS $ 5,000 auction 10) Sander for Snowplowing Jarish has $ 2,500 (#62 on Ex. 5)
11) Michigan 75 2 Yard Loader sold at 5/21/2004 IRS $ 15,000 (#66 on Ex. 5) auction
12) Sander (#70 on Ex. 5) $ 1,500
13) Paving Equipment (shovels, etc.) $ 1,200 (#71 on Ex. 5)
14) Trailer (#72 9n Ex. 5) Transferred to Jarish $ 600 4/26/01
15) Paving Rollers (#73 on Ex. 5) Jarish has $ 2,000
16) Ford Bronco (#74 on Ex. 5) Transferred to Jarish $ 3,000
17) 863 Bobcat Loader (#75 on Ex. 5) Jarish has $ 30,000
18) (2) Five Ton Trailers $ 10,000
19) 12 Ton Trailer $ 12,000
20) Snow Mobile Trailer $ 500
21) Air Compressor $ 8,000
22) Grader $ 2,000
23) Roller $ 2,500
Additional facts will be discussed further in this opinion.
Discussion
The Plaintiff has the burden of proving its claims by a fair preponderance of the evidence. Preisner v. Illman, 1 Conn.App. 264, 267 (1984).
First Count — Conversion
In the First Count of the Complaint the Plaintiff claims conversion. The Plaintiff claims that in July 2001 the Defendants wrongfully and without authority removed assets of the corporation, including trucks, trailers, and construction equipment, and have refused to return them. "The tort of conversion boasts a well established definition . . . `Conversion occurs when one, without authorization, assumes and exercises the right of ownership over property belonging to another, to the exclusion of the owner's rights. Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983).' Epstein v. Automatic Enterprises, 6 Conn.App. 484, 488, 506 A.2d 158 (1986). The seminal case in this state regarding conversion is Coleman v. Francis, 102 Conn. 612, 129 A. 718 (1925). Coleman established that there are two `general classes' of conversion: (1) that in which possession of the allegedly converted goods is wrongful from the onset; and (2) that in which the conversion arises subsequent to an initial rightful possession. Id., 615." Luciani v. Stop Shop Cos., 15 Conn.App. 407, 409-10 (1988). "Generally, conversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights . . . To establish a prima facie case of conversion, the plaintiffs had to establish that (1) the deposit given to the defendant belonged to the plaintiffs, (2) the defendant deprived the plaintiffs of their funds for an indefinite period of time, (3) the defendants' conduct was unauthorized and (4) the defendants' conduct harmed the plaintiffs." (Citation omitted; internal quotation marks omitted.) Miller v. Guimaraes, 78 Conn.App. 760, 778 (2003). "At common law, if the converted property remained in the hands of the converter, the return of the identical property was allowed. The general rule is that the measure of damages in a conversion is the value of the goods at the date of the conversion; Kuzemka v. Gregory, 109 Conn. 117, 122, 146 A. 17 (1929); although this is not an exclusive determination. Waterbury Petroleum Products, Inc. v. Canaan Oil Fuel Co., 193 Conn. 208, 222, 477 A.2d 988 (1984). Additionally, a wrongdoer should not be allowed to benefit from his misdeed. See Cohen v. Cohen, 182 Conn. 193, 205, 438 A.2d 55 (1980). 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 item at the time of conversion plus consequential damages and interest may still be less than the value of the item itself." Plikus v. Plikus, 26 Conn.App. 174, 178 (1991). However the Court in Waterbury Petroleum Products, Inc. v. Canaan Oil Fuel Co., 193 Conn. 208, 223, n. 16 (1984), noted that consequential damages in a conversion action are special damages which must be claimed through special allegations in the complaint. The First Count of the complaint does not contain such allegations. In any event, the evidence was insufficient to establish such a claim.
There is no dispute that the Defendant Timothy Jarish took certain of the equipment belonging to Caron Collision, Inc. and did not voluntarily return them for some time and, in some cases, they have never been returned. The Defendants claim that Timothy Jarish was a partner in the business and therefore he had an ownership interest in the assets of the company and he cannot be held liable for converting the company's assets. Yet there is also no dispute that the assets were the property of Caron Collision, Inc., a corporation and not a partnership, and that the Defendant Timothy Jarish did not hold an official ownership position in the corporation but was only an employee and officer of the corporation. The Defendant also claims that the parties had an agreement as to the division of the company assets and that pursuant to that agreement the paving and site work equipment was moved from the Plaintiff's property. Although there were discussions regarding a division of the company's assets, the evidence did not establish that the parties reached any final agreement regarding the dissolution of the corporation and a distribution of the company's assets and liabilities, as the Defendant's claim. Therefore at the time the Defendants removed the property from the Plaintiff's facility they were still the property of the corporation and the Defendants' failure to return them resulted in their conversion. The Defendant, Karen Jarish, as 50% owner of Jarish Paving and Construction, is liable as well for this conversion. "Where two or more persons unite in an act which constitutes a wrong to another, intending at the time to commit it, or in doing it under circumstances which fairly charge them with intending the consequences which follow, they incur a joint and several liability for the acts of each and all of the joint participants . . . Where, as here, the evidence supports the conclusion that there was concerted action, each participant is vicariously liable for the entire injury caused by the concerted action." (Internal quotation marks and citations omitted.) Lamb v. Peck, 183 Conn. 470, 472-73 (1981).
Lastly, the Defendants claim that an action in conversion is the wrong remedy and that at best the Plaintiff is entitled to an accounting, yet they cite no statutory or case law authority which outlines the parameters of such a remedy or its applicability to this case.
The evidence presented established that the Defendants converted items 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 15, and 17. From the evidence presented the court is unable to determine the status of items 2, 12, and 13. The titles to items 14 and 16 were transferred to Jarish in April 2001. As to the remaining items, the court finds that there was insufficient evidence to establish that they had been converted by the Defendants. In this regard, the court notes that items 18, 19, 20, 21, 22, and 23 do not appear on the corporation's tax asset detail list for the fiscal year ending December 31, 2001. That list was prepared by the corporation's accountant who determined, from a review of company records, what assets the corporation had purchased.
The issues are found in favor of the Plaintiff and against both Defendants as to the First Count.
Second Count — C.G.S. Sec. 52-564
In the Second Count, the Plaintiff claims treble damages in accordance with General Statutes § 52-564. General Statutes § 52-564 is the civil theft statute which provides that "[a]ny person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." Contrary to the parties' claim, it has not been established as the law of this state that a higher standard of proof than a preponderance of the evidence is required under this statute. The court in Howard v. McDonald, 270 Conn. 111, 130 (2004), did not decide expressly "whether, in order to prevail on his claim for relief under a theory of statutory theft, the plaintiff must prove the elements by clear and convincing evidence or a preponderance of the evidence." However as the Court in Howard noted, the Court stated in Freeman v. Alamo Management Co., 221 Conn. 674, 682-83 (1992): "No higher standard of proof is required when a plaintiff seeks to prove criminal activity in a civil action; see Kilduff v. Adams, Inc., 219 Conn. 314, 327-29 n. 14, 593 A.2d 478 (1991); Verrastro v. Middlesex Ins. Co., 207 Conn. 179, 181-83, 540 A.2d 693 (1988); or . . . in a common law claim for punitive damages, in which a plaintiff must allege and prove that a defendant's misconduct was wanton or wilfully malicious. See Markey v. Santangelo, supra, 77 . . . We disagree, therefore, with the Appellate Court's conclusion in this case, and in its earlier case of Schaffer v. Lindy, 8 Conn.App. 96, 104-05, 511 A.2d 1022 (1986), that clear and convincing proof is an appropriate standard of proof whenever claims of tortious conduct have serious consequences or harsh or far-reaching effects on individuals or require the proof of willful, wrongful and unlawful acts. Absent evidence of legislative intent to the contrary, we continue to presume that when a statutory private right of action includes multiple damages, the plaintiff's burden of proof is the same as that in other tort cases. See Munson v. Atwood, supra." Although the Court did not expressly determine the standard of proof for a statutory civil theft claim in Howard, in Freeman it expressly disagreed with the conclusion in Schaeffer v. Lindy in which the Appellate Court held that clear and convincing proof of the actions alleged is required in order to assess treble damages pursuant to § 52-564. Thus the court has implicitly rejected the clear and convincing standard of proof in a civil theft case and this court will not apply that standard here. Since the decision in Suarez-Negrete v. Trotta, 47 Conn.App. 517 (1998) regarding the standard of proof was based on Schaffer, it is not controlling.
"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.' By comparison, conversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights . . . In addition, conversion requires that the owner be harmed as a result of the unauthorized act . . . Conversion may arise subsequent to an initial rightful possession . . . 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 and citations omitted.) Suarez-Negrete v. Trotta, 47 Conn.App. 517, 520-21 (1998). "The elements of larceny include: (1) the wrongful taking or carrying away of the personal property of another; (2) The existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner." (Internal quotation marks and citations omitted.) State v. Calonico, 256 Conn. 135, 153 (2001).
Even under a preponderance of the evidence standard, based on the evidence presented, the court cannot find that the Defendants, in removing the property from the premises of the Plaintiff, did so with the felonious intent required to prove statutory theft.
The issues are found in favor of the Defendants on the Second Count.
Third Count — Tortious Interference with Business Expectancy
In the Third Count the Plaintiff claims that the conversion of assets of the Plaintiff deprived it of its means to continue its business operations, which it had intended and expected to continue, which constituted a tortious interference with business expectancy. "It is well established that the elements of a claim for tortious interference with business expectancies are: (1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss. Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985); Herman v. Endriss, 187 Conn. 374, 377, 446 A.2d 9 (1982); Harry A. Finman Son, Inc. v. Connecticut Truck Trailer Service Co., 169 Conn. 407, 415, 363 A.2d 86 (1975)." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27 (2000). "`This court has long recognized a cause of action for tortious interference with contract rights or other business relations . . . Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983) . . . [We have held, however, that] not every act that disturbs a contract or business expectancy is actionable. Jones v. O'Connell, [ 189 Conn. 648, 660-61, 458 A.2d 355 (1983)]. Blake v. Levy, supra, 260-61. [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously . . . [ Blake v. Levy, supra], 261, quoting Kecko Piping Co. v. Monroe, 172 Conn. 197, 201-02, 374 A.2d 179 (1977). [A]n action for intentional interference with business relations . . . requires the plaintiff to plead and prove at least some improper motive or improper means . . . Blake v. Levy, supra, 262; Kakadelis v. DeFabritis, 191 Conn. 276, 279-80, 464 A.2d 57(1983); see also Sportsmen's Boating Corporation v. Hensley, 192 Conn. 747, 753, 755, 474 A.2d 780 (1984) (liability in tort imposed only if defendant acted maliciously):' (Citation omitted; internal quotation marks omitted.) Robert S. Weiss Associates, Inc. v. Wiederlight, 208 Conn. 525, 535-36, 546 A.2d 216 (1988). The plaintiff in a tortious interference claim must demonstrate malice on the part of the defendant, not in the sense of ill will, but `intentional interference without justification.' 4 Restatement (Second), Torts § 766, comment (s) (1979). In other words, the employee bears the burden of alleging and proving `lack of justification' on the part of the actor. Id." Daley v. Aetna Life Casualty Co., 249 Conn. 766, 805-06 (1999). The evidence here did not establish that the actions of the Defendants met this standard.
The issues are found in favor of the Defendants on the Third Count.
Fourth Count — Tortious Interference with Contract
In the Fourth Count the Plaintiff claims that the actions of the Defendants caused KF Properties, LLC to breach its contract with the Plaintiff and to substitute for the Plaintiff an unknown business entity to which one or both of the Defendants had an interest which actions constituted a tortious interference with contract. "The essential elements of the cause of action, whether it be called `intentional interference with contractual relations' or `unlawful interference with business relations,' were present in the plaintiff's pleadings and claims of proof: there was a business relationship between the plaintiff and the defendant Hiab; the defendant Truck and Trailer, knowing of that relationship, intentionally sought to interfere with it; and, as a result, the plaintiff claimed to have suffered actual loss. Those pleadings and claims of proof made out a prima facie cause of action against the defendant Truck and Trailer. See R an W Hat Shop, Inc. v. Sculley, 98 Conn. 1, 18, 118 A. 55; Connors v. Connolly, 86 Conn. 641, 647, 86 A. 600. Whether there was a reasonable probability that the plaintiff would have made a profit but for the interference of Truck and Trailer was a question for the jury. See Goldman v. Feinberg, supra, 675. Similarly, the jury had to decide whether Truck and Trailer had defeated the cause of action by showing that its interference was privileged or justified. See R an W Hat Shop, Inc. v. Sculley, supra. Obviously full, fair and free competition is necessary to the economic life of a community, and one may, by legitimate means, interfere with a competitor's mere expectancy that his business relations will continue. See Goldman v. Feinberg, supra; Skene v. Carayanis, supra; Prosser, Torts (4th Ed.) 129, p. 946." Harry A. Finman Son v. Conn. Truck Trailer Ser., 169 Conn. 407, 415 (1975).
Here it is clear that Jarish took over the obligations and benefits due under the contract Caron Paving and Construction had with KF Properties, LLC. However, the evidence did not establish that the Plaintiff, although arguing that the contract price incorporated a profit figure, would have actually realized a profit from the contract. The Defendants claimed that they did not realize a profit from the job and the evidence did not establish anything to the contrary. In the absence of any actual loss by the Plaintiff, this claim fails.
The issues are found in favor of the Defendants on the Fourth Count,
Fifth Count — Breach of Fiduciary' Duty
In the Fifth Count, the Plaintiff claims a breach of fiduciary duty based on the facts previously alleged and in addition that the Jarishes, over a period of months and years, caused the Plaintiff to fail to meet contractual and legal obligations including a failure to pay rent and remit tax payments to municipal, state and federal authorities, as a result of which the Plaintiff owes significant sums which should have been paid from corporate revenues in the ordinary course but were not. "This court recently reiterated that `[p]roof of a fiduciary relationship imposes a twofold burden on the fiduciary. First, the burden of proof shifts to the fiduciary; and second, the standard of proof is clear and convincing evidence. Once a fiduciary relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary . . . Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of proof of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence.' (Citations omitted; internal quotation marks omitted.) Konover Development Corp. v. Zeller, 228 Conn. 206, 229-30, 635 A.2d 798 (1994)." Oakhill Associates v. D'Amato, 228 Conn. 723, 726-27 (1994). "`An officer and director occupies a fiduciary relationship to the Corporation and its stockholders.' Katz Corporation v. T.H Canty Co., 168 Conn. 201, 207, 362 A.2d 975 (1975). `He occupies a position of the highest trust and therefore he is bound to use the utmost good faith and fair dealing in all his relationships with the corporation.' Id. `Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior' Adams v. Williamson, 150 Conn. 105, 112, 186 A.2d 157 (1962), quoting Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545 (1928)." Pacelli Bros. Trans. Inc. v. Pacelli, 189 Conn. 401, 407 (1983).
Timothy Jarish, as an officer of Caron Collision, Inc., had a fiduciary duty to the Plaintiff. He breached that duty by starting his own competing site work business, by converting certain of the Plaintiff's property, and by usurping the Plaintiff's rights under the contract with KF Properties, LLC. The evidence did not establish that the relationship of Karen Jarish to Caron Collision, Inc., was such that she had a fiduciary duty to the Plaintiff. "The existence of a fiduciary duty is largely a factual determination and the extent of the duty and the resulting obligations may vary according to the nature of the relationship: the obligations do not arise as a result of labeling, but rather by analysis of each case." Hoffnagle v. Henderson, Superior Court, Judicial District of Hartford, Docket No. CV02 0813972 S (Beach, J., Apr. 17, 2003).
The issues are found in favor of the Plaintiff on the Fifth Count against the Defendant Timothy Jarish. The issues are found in favor of the Defendant Karen Jarish on this Count.
Sixth Count — Unfair Trade Practices Act
In the Sixth Count, the Plaintiff claims that the Defendants' wrongful actions constitute a violation of the Connecticut Unfair Trade Practices Act. "CUTPA provides in relevant part that `[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.' General Statutes § 42-110b(a). `Connecticut courts, when determining whether a practice violates CUTPA, will consider (1) whether 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 (or competitors or other businessmen) . . . Thus, a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy.' (Citation omitted; internal quotation marks omitted.) Kenney v. Healey Ford-Lincoln-Mercury, Inc., supra, 53 Conn.App. at 330, 730 A.2d 115." Miller v. Guimaraes, 78 Conn.App. 760, 775 (2003). CUTPA does not require that there be a consumer relationship between the parties and a competitor or other business person can maintain a CUTPA cause of action without showing an injury to consumers. Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 496 (1995).
The evidence here was clear that the Jarishes violated CUTPA when they took equipment belonging to Caron Collision, Inc. and used it to start a competing business while Timothy Jarish was still an officer of Caron Collision, Inc. In Fink v. Goldenbock, 238 Conn. 183, 212 (1996) the Court held that the efforts of a former owner of part of a business who took certain actions designed to usurp the business and clientele of one corporation in favor of another fell squarely within the provenance of CUTPA.
The issues are found in favor of the Plaintiff on the Sixth Count as against both Defendants.
Damages
The damages for conversion are the value of the property at the time of conversion plus interest. Kuzemka v. Gregory, 109 Conn. 117, 122-23 (1929). Contrary to the Defendants' claim, "interest need not be specifically claimed in the demand for damages." Greengarden v. Kuhn, 13 Conn.App. 550, 553 (1988).
Certain items have been returned and interest should run only until the date of their return. Other items were sold at public auction to pay taxes owed by the corporation to the IRS. Interest on those items should be calculated only until that sale date. As to value of personal property, an owner can testify as to its value. Griffin v. Nationwide Moving Storage Co., 187 Conn. 405, 422 (1982). The court credits the testimony of Caron as to the value of the equipment claimed in light of the fact that it does not appear to be unreasonable when compared to the information regarding the dates of purchase of the equipment and the purchase price listed in the tax asset detail list. Contrary to the Plaintiff's claim, the court does not award the value of the property sold at the IRS auction since the money from the sale of that equipment inured to the benefit of the Plaintiff in that it served to reduce the debt of the Plaintiff to the IRS.
Therefore, utilizing the chart appearing earlier in this opinion, the damages for each item are found as listed:
Interest is calculated from May 1, 2001 to December 31, 2001. May 1, 2001 is found as the estimated date of taking for all items.
As to the Fifth Count, the Plaintiff claims the damages are the same as that awarded on the First, Third, and Fourth Counts. Since no damages were awarded under the Third and Fourth Counts, the measure of damages is that amount previously awarded pursuant to the First Count.
As to the Sixth Count, the court may award attorney fees. The court will reserve decision on that issue pending a specific motion, with a supporting affidavit and billing records, by the Plaintiff for such fees.
Conclusion
Judgment shall enter for the Plaintiff as against both Defendants in the amount of $62,239.80 plus attorneys fees pursuant to General Statutes § 42-110g(d), if any, as may be ordered by the court upon further motion by the Plaintiff.