Opinion
UWYCV095014417S.
11-13-2012
Annmarie RIZZUTO v. Nicholas BALTRUSH.
UNPUBLISHED OPINION
VINCENT E. ROCHE, J.
This matter was heard on September 27, 2012, and was brought by way of a second amended complaint, which was dated August 4, 2011, with certified service to the defendant's attorney on August 4th. The second amended complaint sounds in five counts. The first count claims conversion. The second count claims conversion and treble damages pursuant to General Statutes § 52-564. The third, fourth and fifth counts sound in some form of a bailment relationship.
Procedurally, the certificate of closed pleadings (# 108) was filed on April 13, 2010, with an answer being filed by the defendants on May 26, 2010 (# 109). Subsequent to that, the plaintiff filed a request to file a second amended complaint sounding in the counts as indicated. There has been no answer filed as to the second amended complaint.
FACTUAL HISTORY
The named plaintiff, AnnMarie Rizzuto, was appointed on December 20, 2007, by the Waterbury Probate Court as a trustee for certain real estate and personalty belonging to her brother, Paul Rizzuto, whose whereabouts remain unknown. An inventory (Exh. 3) of that property was filed with the Probate Court on Nov. 1, 2008. The real estate was commercial property that had fallen into disuse and inside the premises was a 1982 Ferrari GTSI motor vehicle (" Ferrari" or " vehicle"), which purportedly belonged to Paul Rizzuto.
Pursuant to General Statutes § 45a-478, as trustee of the premises and its contents, including the Ferrari, the plaintiff is charged with the protection of that property and/or, ultimately, the disposition of the property with Probate Court permission in a timely manner for the benefit of the beneficiary, Paul Rizzuto. The real estate, which was located at 33 Gasparri Lane in Waterbury, was listed with a real estate agent (Robert Bowden) and contracted for sale to the defendant, Baltrush, on or about March 27, 2009, with a sale price of $90,000 (Exh. # 5). The Ferrari was left on the premises after the sale of the real estate, with the presumed intent it would be removed at the mutual convenience of the parties. The inventory (Exhibit # 3) filed with the probate court indicated a market value of $10,000 for the Ferrari.
The Ferrari remained in the building after the property was sold on June 16, 2009. The plaintiff contends that she made good faith efforts to remove the vehicle from the building, but those efforts were unsuccessful. The defendant maintains that he had no interest in possessing or buying the vehicle. The plaintiff contradicts this in her testimony in which she claims she received two phone calls, purportedly from the defendant, in which he expressed an interest in buying the Ferrari. The defendant denied making the phone calls and testified he has no interest in the vehicle. He indicated that he maintained no insurance on the building or on its contents since taking title to the property (Exh. # 6). He said that at some point he was going to rehabilitate the building once he had some funding.
However, the defendant did have a friend, Paul, who did have an interest in the Ferrari and was prepared to make an offer to buy the vehicle. The plaintiff assumed that the real estate agent (Robert Bowden) would facilitate the removal of the Ferrari from the property in a timely fashion.
On or about September 25, 2009, the plaintiff made a complaint to the police (Exh. # B), once it became clear that the Ferrari was no longer on the premises. The police investigated and a state marshal on behalf of the plaintiff made inquiries as to the disposition and location of the vehicle. The premises could be accessed relatively easily. Apparently, the garage door where the Ferrari was parked could be opened from the inside allowing the vehicle to be removed.
The actual value of the Ferrari due to the fact it had been neglected and due to its storage in a wet/damp environment was lessened in value and marketability. Two experts testified and indicated that moisture on the exterior of the car would cause a depreciation in the inventory value of $10,000. Both experts were recognized and qualified witnesses who had extensive dealings with other Ferrari vehicles over their professional lives. Each expert indicated that the Ferrari could have a higher value if properly maintained and restored to its original condition. It was opined that certain parts of the car may be worth as much as the total fair market value of the car.
The court finds that the defendant's testimony was not entirely credible. The fact remains that neither the plaintiff nor the defendant produced any probative evidence of where or by whom the Ferrari may have been taken or disposed of. The fact that the defendant had access to the premises as the new owner and, obviously, had access to its contents creates the inference that he had or could have exercised some form of control over the vehicle, either directly or through agents or friends.
A certain amount of evidence was introduced through the experts as to a range of actual market values of the Ferrari, either restored to some medium stage or sold for parts. The issue as to whether the defendant had any direct role in the ultimate disposition of the vehicle is not clear.
DISCUSSION
" 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 ... It is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Internal quotation marks omitted.) Marut v. IndyMac Bank, FSB, 132 Conn.App. 763, 768-69, 34 A.3d 439 (2012). In order to recover treble damages under § 52-564, the plaintiff must prove the additional element of intent. See Sullivan v. Delisa, 101 Conn.App. 605, 620, 923 A.2d 760 (2007) (" [t]he elements of civil theft are also largely the same as the elements to prove the tort of conversion, but 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]).
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."
The court finds that the defendant never exercised an unauthorized right of ownership over the vehicle to the exclusion of the plaintiff's rights that would entitle the plaintiff to recover on her conversion claim. Moreover, the court finds that the defendant did not exhibit the requisite intent necessary to satisfy the elements of civil theft under § 52-564. Therefore, the court finds in favor of the defendant on counts one and two.
" Negligence in failing to care for ... property likewise is not an act of dominion over it such as is necessary to make the bailee liable as a converter. Thus, a bailee generally is not guilty of conversion where a loss of the bailed property occurs because of mere negligence." 8A Am.Jur.2d, Bailments, § 71 (2009).
The plaintiff alleges in Counts Three through Five that there was a bailment relationship created with the defendant. In the Third Count, the plaintiff alleges that there was an agreement between the plaintiff and defendant concerning possession of the Ferrari. In the Fourth Count, the plaintiff claims that the defendant was negligent in not securing and protecting the vehicle. In the Fifth Count, the plaintiff alleges that the defendant willfully and intentionally took possession of the Ferrari or allowed a third party to take improper possession of the vehicle.
As a general proposition, " [a] bailment does not necessarily depend upon a contractual relation; it is the element of lawful possession, however created, and the duty to account for the thing as the property of another that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense or not. Although a bailment is ordinarily created by the agreement of the parties, resulting in a consensual delivery and acceptance of the property, such a relationship may also result from the actions and conduct of the parties in dealing with the property in question. A bailment relationship can be implied by law whenever the personal property of one person is acquired by another and held under circumstances in which principles of justice require the recipient to keep the property safely and return it to the owner." 8A Am.Jur .2d, Bailments § 1 (2009); see also, H.J. Kelly & Associates v. Meriden, Superior Court, judicial district of New Haven, Docket No. 03 0285781 (January 17, 2008, Taylor, J.) (constructive bailment).
The evidence presented does not support the plaintiff's claim that there was an express agreement between the parties concerning the custody of the Ferrari. Based on the testimony of the plaintiff, however, the court finds an implied bailment relationship or understanding between the parties that the vehicle would remain on the premises in the care of the defendant until the plaintiff was able to retrieve it.
If a bailment is established and the subject property is returned in a damaged condition or not returned at all, a presumption arises that the loss or damage resulted from the bailee's negligence. Griffin v. Nationwide Moving & Storage Co., Inc., 187 Conn. 405, 408-09, 446 A.2d 799 (1982). This presumption, however, is rebuttable. See Id., at 409 (" [t]his presumption prevails unless and until the bailee proves the actual circumstances involved in the damaging [or loss] of the property").
Here, the defendant's negligence is presumed by virtue of the loss of the vehicle. The court finds that the defendant has failed to rebut this presumption with credible evidence. Moreover, the court finds that the defendant failed to take reasonable and appropriate measures to secure the vehicle during the course of the three-month period at issue.
Accordingly, the Court finds for the plaintiff on the fourth count. Based on the two experts' valuation opinions of the vehicle and other probative evidence, the Court finds the Ferrari's value in June 2009, the approximate time of the loss, to be $7,500. See Dixon v. Trubisz, 17 Conn.App. 216, 217-18, 551 A.2d 1259 (1988) (" measure of damages for loss or damage to the subject matter of a bailment is the value of the property at the time of the loss or damage").
This reflects a range of values given by both experts without actually examining the subject vehicle.
As to the third and fifth count, the court finds for the defendant. There was no credible evidence to support an express contractual agreement between the parties nor that the defendant actually took possession of the vehicle and disposed of it for his own benefit.
CONCLUSION
The Court finds in favor of the plaintiff on the fourth count and awards the plaintiff $7,500 in damages plus an expert's fee of $350.00 for a total judgment of $7,850 plus costs.