Opinion
3:04-cv-1150 (WWE).
December 4, 2006
RULING ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT
This action arises from defendant's alleged wrongful detention of plaintiff's personal property. Plaintiff Phyllida O'Brien claims that defendant Rogovin Moving Storage Co., Inc. ("Rogovin") wrongfully detained her personal property without providing any means for her to obtain said property and avoided and deceived her and her husband in an attempt to cover up defendant's alleged unfair business practices. Plaintiff argues that she is entitled to summary judgment because there is no genuine issue of material fact that she is entitled to damages due to Rogovin's violation of Connecticut's replevin statutes, Conn. Gen. Stat. §§ 52-515, et seq., and commission of unfair trade practices in violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. § 42-110b(a). Defendant counters that an order of replevin does not entitle plaintiff to damages for claimed lost rentals of the property to be furnished, nor does it transform into a finding that defendant has purposely engaged in immoral, unethical, oppressive, unscrupulous, reckless, and/or intentional conduct so as to be liable automatically for a CUTPA violation.
BACKGROUND
Plaintiff is a citizen of the United Kingdom and the owner of a home in Montaren, France, known as Domaine de Fos ("Fos"). Beginning in 1996, she utilized Rogovin for the storing and shipping of certain furnishings and other personal property (the "property") which had been located at plaintiff's homes in New York and Missouri. The property had been shipped to Rogovin by several shippers, including Allied Van Lines, the moving company with which defendant is affiliated. Beginning in 1996, this property was stored in overseas shipping containers at Rogovin's place of business in New London, Connecticut.
Plaintiff intended to offer Fos for rent to the general public during the summer of 2004 and retained the services of two agents to market the property. Arrangements regarding the rental of Fos for the summer of 2004 began as early as May 2003. However, before plaintiff could advertise, show or rent Fos, the property retained in New London had to be delivered to and placed in Fos.
Rogovin originally was supposed to ship the property to plaintiff in the fall or winter of 2003. The parties ultimately agreed that the shipment would occur no later than February 15, 2004. On January 25, 2004, Mr. Denis O'Brien ("O'Brien"), plaintiff's husband, sent Rogovin a fax, received by defendant, repeating earlier requests that Rogovin forward relevant documents and a bill relating to the upcoming shipment of the property. O'Brien also emphasized to defendant that the property was necessary in order to furnish Fos, that Fos could not be rented without the property, and that the property had to be shipped no later than February 15, 2004 in order to arrive in time for the 2004 summer season. Defendant repeatedly failed to comply with plaintiff's requests and the property was not shipped on the promised date of February 15, 2004.
Between January 25, 2004 and March 15, 2004, O'Brien allegedly telephoned defendant several times and sent letters requesting the necessary invoice and other information required to effect the shipment of the property. The contact person at Rogovin, Mrs. Sarah Rogovin, repeatedly told O'Brien that she would send the requested paperwork and ship the property forthwith, yet she never did so. Mrs. Rogovin testified in her deposition that she "dreaded" speaking with Mr. O'Brien and that her false assurances regarding the imminent production of the invoice and shipment were offered merely to pacify him.
On March 15, 2004, O'Brien sent Rogovin another fax, informing defendant that he and plaintiff had engaged a lawyer in order to locate plaintiff's property and to expedite its shipment to France. On the same date, Attorney Frank Eppinger, on behalf of plaintiff, contacted defendant in another effort to obtain the property.
On April 2, 2004, plaintiff sent a fax to Allied Van Lines, authorizing and instructing Allied to retrieve the property from Rogovin and ship it to France. She also requested that Allied fax to her a copy of Allied's invoice for the charges in connection with the shipment. She explained that she had not received an invoice from defendant and that the shipment could not be delayed any longer. She proposed that, as an indication of good faith, she deposit with her attorney the funds necessary to pay the pending charges.
On or about April 6, 2004, defendant produced an invoice delineating the amounts being charged to plaintiff for the storage and shipment of the property. On April 14, 2004, Attorney Eppinger, on behalf of plaintiff, faxed to defendant a letter acknowledging that he had received the invoice and requesting that defendant reduce the charges for storage by $30,000.00 in an attempt to compensate plaintiff for at least two lost weeks of rentals for the 2004 summer season at $15,000.00 per week. Rogovin refused to make such adjustment. Unable to reach a satisfactory arrangement, plaintiff initiated this litigation and filed a motion for the prejudgment remedy of replevin on July 13, 2004.
On or about August 11, 2004, after this litigation commenced, defendant submitted a second invoice, demanding an additional $7,510.58 for storage fees that had accrued since February 16, 2004.
In September 2004, in order to recover her possessions, plaintiff paid defendant $76,253.39 for outstanding expenses and charges through September 12, 2004 for the storage and shipment of her property. Defendant still failed to ship the property.
On March 4, 2005, Magistrate Judge Fitzsimmons granted plaintiff's motion for replevin [Doc. #59] and issued an order regarding same on March 22, 2005 [Doc. #63]. Defendant released plaintiff's property from its warehouse on April 5, 2005.
On May 22, 2006, plaintiff filed the instant motion for summary judgment.
DISCUSSION
A motion for summary judgment will be granted where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F. 2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
The burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. American International Group, Inc. v. London American International Corp., 664 F. 2d 348, 351 (2d Cir. 1981). In determining whether a genuine factual issue exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
If a nonmoving party has failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, then summary judgment is appropriate. Celotex Corp., 477 U.S. at 323. If the nonmoving party submits evidence which is "merely colorable," legally sufficient opposition to the motion for summary judgment is not met. Anderson, 477 U.S. at 24.
I. Replevin
The remedy of replevin is defined by Conn. Gen. Stat. § 52-515, which provides:
The action of replevin may be maintained to recover any goods or chattels in which the plaintiff has a general or special property interest with a right to immediate possession and which are wrongfully detained from him in any manner, together with the damages for such wrongful detention.
It is undisputed that plaintiff was entitled to replevin by virtue of her satisfaction of the four elements of a replevin action, as determined by Magistrate Judge Fitzsimmons in her ruling of March 4, 2005. Plaintiff is entitled to any damages caused by defendant's wrongful detention of her property.
II. Determination of Damages
While defendant concedes that the court properly found that there was wrongful detention of plaintiff's property, it argues that the court failed to determine when such wrongful detention began. Defendant asserts that the question regarding damages must be limited to whether plaintiff suffered damages for the period between September 15, 2004 — when plaintiff paid the outstanding balance of the amount due defendant for the storage of her property — and April 5, 2005, when defendant shipped the property.
Plaintiff asserts that her damages began to run on February 16, 2004, the day after the date by which defendant promised to ship the property. She claims that the property is a necessary feature of the house, that it is not possible to rent Fos without the furnishings intact. She posits that as a result of defendant's wrongful detention of the property, she was deprived of her ability to rent Fos for the summer of 2004 at the market rate of $15,000.00 per week.
Damages for loss of use are appropriate in a replevin action. When property has value according to its use, as opposed to its value for either sale or consumption, a plaintiff in replevin may recover damages for the value of such use during the time of the wrongful detention of the property. See Commercial Credit Corp. v. Miron, 108 Conn. 524, 143 A. 846, 847 (1928). In such cases, the damage is the loss of the use and the value of that use is the measure of the damage. Blakeslee v. Rigo, 94 Conn. 481, 109 A. 173, 175 (1920).
In the present case, defendant withheld plaintiff's property despite plaintiff's repeated requests for shipment beginning in 2003. Defendant also refused to issue an invoice or other papers necessary for payment and shipment, despite repeated requests by plaintiff for such documentation. Finally, defendant failed to ship the property by February 15, 2004. Plaintiff had informed defendant, verbally and in writing, that this was the last date the property could be shipped in order to enable plaintiff to rent Fos for the 2004 season. Thus, it is evident that defendant wrongfully detained plaintiff's property from at least February 16, 2004 until April 5, 2005, the date on which defendant released the property from its warehouse. The damage suffered by plaintiff was the loss of the use of the property which, in turn, necessarily caused the loss of the use of Fos; to wit, its viability as a rental for the 2004 season.
Having found that plaintiff is entitled to damages accrued from February 16, 2004 to April 5, 2005, it is necessary for the Court to conduct a hearing in order to determine the proper amount of damages plaintiff is owed stemming from this time period. Such hearing shall be scheduled forthwith, unless the parties inform the Court within 30 days that they have reached a stipulation as to damages.
III. CUTPA Claim
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." Conn. Gen. Stat. § 42-110b(a). The Connecticut Supreme Court has adopted the "cigarette rule" promulgated by the Federal Trade Commission in order to determine whether a trade practice is unfair or deceptive. See FTC v. Sperry Hutchinson Co., 405 U.S. 233, 244-45 n. 5, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972). Pursuant to the cigarette rule, the court must consider three factors: "(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statute, 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; and (3) whether it causes substantial injury to consumers, competitors, or other businessmen." A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 215 (1990). It is not necessary to fulfill each prong of this test. In order to prove that the practice is unfair, it is sufficient to meet only one of the criteria or to demonstrate that the practice meets all three criteria to a lesser degree. Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 368 (1999).
Applied to the present case, defendant's wrongful detention of plaintiff's property does not rise to the level of a CUTPA violation. None of the three elements of the test is met. Defendant's detention of plaintiff's property, while wrongful, amounts to a breach of contract that was ultimately rectified and for which plaintiff is entitled to damages in accordance with this ruling. A simple breach of contract does not constitute a violation of CUTPA. Boulevard Associates v. Sovereign Hotels, Inc., 72 F.3d 1029, 1038-39 (2d Cir. 1995). Plaintiff's claim that defendant's conduct amounts to a CUTPA violation will be denied.