Opinion
HHDCV156060407S
07-08-2019
Keith MURPHY v. VERIZON WIRELESS SERVICES, LLC
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE TRIAL REFEREE
On April 10, 2019, evidence was presented to the court at a bench trial in this dispute concerning a cell phone. Thereafter, in lieu of oral argument, pursuant to an agreed briefing schedule, the parties submitted post-trial memoranda, including a reply (#122), which was filed on May 28, 2019. After consideration of the evidence and arguments, the court issues this memorandum of decision.
I
Background
In his three-count complaint, the plaintiff, Keith Murphy, alleges in Count I that in February 2013, his I-phone 4 cell phone was stolen and that he purchased a new phone at retail for $600.00. He alleges that he kept his phone number active for over a year. He further alleges that, in November 2014, he received an email from the defendant Verizon Wireless Services, LLC which stated that the defendant was in possession of the stolen phone. The plaintiff alleges that he asked for the phone to be returned to him or that he be given compensation, but the defendant refused.
These allegations (paragraphs 1-8) are incorporated by reference in Count II, in which the plaintiff also alleges that the defendant will not communicate with him and that it is acting in bad faith. In Count III, the same allegations (paragraphs 1-8) are incorporated by reference and the plaintiff alleges that the defendant violated the Connecticut Unfair Trade Practices Act. See General Statutes § 42-110a et seq. (CUTPA).
In its answer and special defense (#105), the defendant denies the salient allegations of the complaint and alleges that the plaintiff mailed the subject cell phone to the defendant, pursuant to its exchange program, for which the defendant gave the plaintiff a $200.00 gift card for trade-in which the plaintiff utilized to pay his Verizon phone bills.
In his post-trial brief, the plaintiff argues that, as to Count I, he has proved conversion. He also argues that he has satisfied his burden on Count II to prove statutory theft under General Statutes § 52-564. In addition, he argues that he has met his burden of proof on Count III to prove violation of CUTPA. He requests the court to enter judgment for $900.00, the value of the iPhone 4, and under Count II, that this amount should be trebled as a result of statutory theft.
Additional references to the factual background are set forth below.
II
Discussion
In a case tried to the court, "[t]he ... judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Taylor v. Commissioner of Correction, 324 Conn. 631, 637, 153 A.3d 1264 (2017). "[I]t is well established that it is the exclusive province of the trier of fact to make determinations of credibility, crediting some, all, or none of a given witness’ testimony." (Internal quotation marks omitted.) Gonzalez v. State Elections Enforcement Commission, 145 Conn.App. 458, 475, 77 A.3d 790, cert. denied, 310 Conn. 954, 81 A.3d 1181 (2013).
"It is well settled that the trier of fact can disbelieve any or all of the evidence proffered ... and can construe such evidence in a manner different from the parties’ assertions." State v. DeJesus, 236 Conn. 189, 201, 672 A.2d 488 (1996).
The trier is not bound by the uncontradicted testimony of any witness. See Mather v. Griffin Hospital, 207 Conn. 125, 145, 540 A.2d 666 (1988). "Testimony that goes uncontradicted does not thereby become admitted or undisputed; [citation omitted] nor does the strength of a witness’s belief raise it to that level." Stanton v. Grigley, 177 Conn. 558, 563, 418 A.2d 923 (1979).
A
The plaintiff seeks treble damages under Count II pursuant to General Statutes § 52-564. While his complaint does not allege a violation of § 52-564, and Practice Book § 10-3(a) provides that "[w]hen any claim made in a complaint ... is grounded on a statute, the statute shall be specifically identified by its number," the Appellate Court has stated that "the requirement that the pleader specifically identify the statute on which he relies is directory rather than mandatory." Criscuolo v. Mauro Motors, Inc., 58 Conn.App. 537, 545, 754 A.2d 810 (2000). Here, the defendant was sufficiently apprised of the plaintiff’s claim for the court to consider it. See id., 547-48.
Section 52-564 provides, "Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages."
B
The court finds the following facts and credits the following evidence, except as noted. The plaintiff presented a single exhibit, Plaintiff’s Exhibit 1, an email message from the defendant, dated November 24, 2014, concerning a trade-in of an iPhone 4, with an Appraised Value of $200.00, which refers to a Submission Date of April 1, 2014, and which states that the plaintiff will not receive an electronic gift card because the value of the device was actually $0.00, and that it was reported as Lost/Stolen.
In his testimony, the plaintiff claims he had two iPhones and one was stolen. He presented no documents to show that he had owned two phones, and no documents evidencing the purchase of a new phone, including the alleged third, replacement phone. Thus, no documentation was submitted to show that he purchased a new phone after his phone was allegedly stolen.
In his testimony, the plaintiff acknowledged that, at some time, he had traded in a phone, but did not recall when this occurred. He also acknowledged receiving $200.00 in credit from the defendant which was used to pay charges on his phone bills in April and May 2014. The plaintiff vaguely stated that he thought these credits were probably for a phone he traded in when he upgraded to another phone. His testimony also lacked clarity as to how he claims his phone was stolen.
The lack of documentation to support his claims undermines the plaintiff’s presentation. The court is unpersuaded by the vague history of the events upon which the plaintiff bases his claims for entitlement to an award of damages. The court finds that the plaintiff has not met his burden of proof by the requisite preponderance of the evidence, to establish that, more probably than not, his assertions are true. See Golek v. Saint Mary’s Hosp., Inc., 133 Conn.App. 182, 189 n.6, 34 A.3d 452 (2012).
CONCLUSION
For the reasons stated above, the court finds in favor of the defendant and against the plaintiff on the plaintiff’s claims. Judgment may enter for the defendant and against the plaintiff.