Opinion
No. CV-03-0101028
March 21, 2005
MEMORANDUM OF DECISION RE OBJECTION TO ACCEPTANCE OF ATTORNEY TRIAL REFEREE REPORT
On August 8, 2001, Robert Tetrault and Jacqueline Tetrault entered into a contract with the defendants, H.A. Latham, Inc. and Harold A. Latham, for the package, removal and storage of their personal property in connection with the sale of their home in Glastonbury and purchase of a home in Westbrook. Following the packaging and removal of their property on August 24, 2001, the plaintiffs paid the bill of $4,934.85 to the defendants. Thereafter, until approximately December 8, 2002, the plaintiffs received, and regularly paid to the defendants, a monthly bill of $390 for the storage of their personal property.
On approximately December 8, 2002, the plaintiffs contacted the defendants to deliver their property to their new home, which the defendants did. Upon receipt of their property, the plaintiffs found that the majority of their furniture was broken, warped or otherwise damaged and that most of their personal belongings, including clothing, bedding and other boxed materials, had been exposed to mold and mildew and were stained and covered in animal feces and urine. The plaintiffs have now brought this claim for breach of contract, negligence and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., against the defendants, seeking to recover for damages allegedly sustained during the moving and storage of their personal property from approximately August 24, 2001, until late November 2002.
In the first count of their complaint, the plaintiffs allege that the defendants breached their contract by improperly packing, transporting and storing the plaintiffs' personal property resulting in damages to the property and emotional distress to the plaintiffs. In the second count, they allege negligence against the defendants, claiming that they failed to properly pack and store the plaintiffs' property, failed to warn the plaintiffs that they lacked the ability to sufficiently complete the packing, storage and move, and failed to warn the plaintiffs of the condition of their goods upon delivery. In the final count, the plaintiffs assert a claim under CUTPA that the defendants falsely represented, by way of advertisement and verbal statements, that the plaintiffs' property would be properly packaged and stored, and that the defendants would maintain adequate insurance against any loss that the plaintiffs might sustain as a result of conducting business with the defendants.
On June 30, 2003, the defendants failed to attend a scheduled pretrial conference without offering any explanation for their lack of appearance. The court then defaulted the defendants, and on August 12, 2004, a hearing in damages was held before an attorney trial referee. The attorney trial referee rendered his decision on October 18, 2004, and found the following: "(1) The defendants failed to exercise reasonable care to safeguard the plaintiffs' property; (2) The plaintiffs are entitled to recover the sum of $4,935 in moving expenses since this expense was of no benefit to the plaintiffs as their property was ruined or destroyed; (3) The plaintiffs are entitled to recover the sum of $5,040 in storage fees; (4) The plaintiffs are entitled to recover the sum of $2,290, per appraisal by Hey-Dey Antiques and Appraisal Svc., Inc.; (5) The plaintiffs are entitled to recover the $50 dump fee; (6) The plaintiffs are not entitled to recover the $318 appraisal fee as this is not legally a recoverable fee; (7) As to the personal property, Exhibit 5, in the amount of $5,810, [it is] reasonable and since no evidence was presented to me to the contrary, I find the plaintiffs are entitled to recover the full amount of $5,810; (8) The plaintiffs are entitled to legal interest from November 1, 2003 to the date of this award to be calculated by the parties; and (9) The plaintiffs are not entitled to attorneys fees." Based on these findings of fact, the attorney trial referee concluded that the plaintiffs were entitled to recover $18,125, plus legal interest from November 1, 2003, to the date of the judgment. The defendants have objected to the acceptance of the attorney trial referee report.
Practice Book § 19-17(a) discusses the function of the trial court in reviewing reports of attorney trial referees. It provides, in pertinent part: "The court shall render such judgment as the law requires upon the facts in the report. If the court finds that the attorney trial referee has materially erred in its rulings or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another . . . attorney trial referee . . . for a new trial or revoke the reference and leave the case to be disposed of in court." Practice Book § 19-17(a).
"[T]he trial court must review the referee's entire report to determine whether the recommendations contained in it are supported by findings of fact in the report." (Internal quotation marks omitted.) Killion v. Davis, 257 Conn. 98, 102, 776 A.2d 456 (2001). It must also ensure that the report does not contain "legal conclusions for which there are no subordinate facts." (Internal quotation marks omitted.) Id. Third, the report must be reviewed to determine if it is "legally and logically correct." (Internal quotation marks omitted.) Id., 103. "A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court . . . or the Superior Court reviewing the findings of . . . [the] attorney trial referees." (Citations omitted.) Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn.App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990). A fact finder's recommendations should be accepted when "there is nothing that is unreasonable, illogical or clearly erroneous in the findings of the fact-finder and the reasonable inferences that may be drawn therefrom." Id., 425.
The defendants first object to the finding that "the plaintiffs are entitled to recover the sum of $4,935 in moving expenses." They argue that since no evidence was presented at the hearing indicating that the move was in anyway negligent, or that the move itself caused damage to the goods, the plaintiffs should not be awarded the cost of the move. The attorney trial referee concluded that the plaintiffs were entitled to recover the full amount they had paid for the move because the expense "was of no benefit to the plaintiffs as their property was ruined or destroyed." It is clear that the defendants did successfully and physically remove the property from the plaintiffs' old home and delivered it to their new home. Implicit in the term "move," however, is the understanding that consumers will receive their goods essentially unscathed. Although the defendants moved the plaintiffs' property in a timely manner, the goods, upon receipt, were visibly damaged, and, in most cases, beyond repair. The move and delivery of their personalty was of little, or no, benefit to the plaintiffs. Evidence in the record included pictures of the damaged goods upon receipt. "In an action for breach of contract, the general rule is that the award of damages is designed to place the injured party, as far as can be done by money, in the same position as . . . he would have been in had the contract been performed." Lar-Rob Bus Corp. v. Fairfield, 170 Conn. 397, 404-05, 365 A.2d 1086 (1976). The attorney trial referee's conclusion that the plaintiffs are entitled to reimbursement for the cost of the move is thus based logically on evidence in the record and is not erroneous.
The defendants next object to the finding of fact that the plaintiffs are entitled to recover the sum of $5,040 in storage fees. They contend that the measure of damages employed by the attorney trial referee is incorrect, arguing that the plaintiffs are not entitled to the cost of storage because the correct measure of damages for the stored goods is the value of the goods at the time the damages occurred. Although the defendants are correct regarding the proper measure for damages for the loss of the goods themselves, they fail to address damages for the plaintiffs' breach of contract claim. Under common law, a party may recover reasonable consequential damages for a breach of contract. Ambrogio v. Beaver Road Associates, 267 Conn. 148, 155, 836 A.2d 1183 (2003). "Traditionally, consequential damages include any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract." (Internal quotation marks omitted.) Id. In failing to properly store the goods and return them to the plaintiffs unharmed, the defendants breached the storage contract into which they had entered with the plaintiffs. Since the plaintiffs did not receive the storage for which they paid, they are entitled to recover for the full cost totaling $5,040.
The evidence in the record supports the attorney trial referee's finding that the defendants did not provide the safe, climate neutral storage that they had promised. Pictures of the plaintiffs' personal property clearly show severe damage to the goods. In addition, he plaintiffs submitted a copy of all checks paid to the defendants for the storage of their personal property totaling $5,040. The attorney trial referee correctly concluded that the plaintiffs were entitled to recover the full cost of storage.
The defendants also object to the finding that "the plaintiffs are entitled to recover the sum of $2,290 . . . [for their furniture], per appraisal by Hey-Day Antiques and Appraisal Services, Inc." The defendants assert that the appraisal for the value of the goods is not the correct measure of damages because the appraisal does not reflect the value of the goods at the time the goods were destroyed. The defendants rely upon Griffin v. Nationwide Moving and Storage Co., 187 Conn. 405, 419, 446 A.2d 799 (1982), and contend that in a bailor/bailee relationship, "[t]he measure of damages for conversion of the subject-matter of a bailment, or its loss through negligence of the bailee, is the value of the property at the time of its conversion or loss." Id.
A bailment "involves a delivery of the thing bailed into the possession of the bailee, under a contract to return it to the owner according to the terms of the agreement." Seedman v. Jaffer, 104 Conn. 222, 226, 132 A. 414 (1926). A bailor/bailee relationship arises when "the owner, while retaining general title, delivers personal property to another for some particular purpose upon an express or implied contract to redeliver the goods when the purpose has been fulfilled, or to otherwise deal with the goods according to the bailor's directions." (Internal quotation marks omitted.) B.A. Ballou Co. v. Citytrust, 218 Conn. 749, 753, 591 A.2d 126 (1991). In the present case, the plaintiffs contracted with the defendants to store their personal property for a set period of time, with the property to be returned upon expiration of the contract. The relationship between the plaintiffs and the defendants is thus one of bailor/bailee.
The defendants are correct in their assertion that the measure of damages should be the value of the goods at the time of conversion. "The measure of damages for conversion of the subject-matter of a bailment, or its loss through negligence of the bailee, is the value of the property at the time of its conversion or loss, with interest from that time, such value being fixed by the terms of the contract, if any, or, in the absence of contract, the market value." (Internal quotation marks omitted.) Griffin v. Nationwide Moving Storage Co., supra, 187 Conn. 446. The Hey-Day appraisal in the record clearly states that it reflects the fair market value of the plaintiffs' goods. Additionally Robert Tetrault offered testimony that, in his opinion, the damaged furnishings were worth at least that amount. There is nothing that is unreasonable, illogical or clearly erroneous in the attorney trial referee's finding that the plaintiffs are entitled to $2,290 for the loss of their home furnishings.
Finally, the defendants object to the attorney trial referee's finding that the defendant, Harold Latham, is personally responsible for losses suffered by the plaintiffs as a result of the faulty move and storage of their personal property. No such finding was made by the attorney trial referee. Since both defendants were in default at the time of the hearing in damages, the attorney trial referee was charged with addressing only the value of the damages and was not responsible for partitioning or determining liability among the defendants. Therefore, this court need not address the merits of this objection.
Practice Book § 17-34(a) provides in pertinent part: "In any hearing in damages upon default, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff's complaint, except such as relate to the amount of damages . . ."
The findings of fact in the attorney trial referee's report are based on evidence in the record and supported by underlying facts presented at the hearing in damages. The defendants' objections to the acceptance of the attorney trial referee's report are therefore overruled.
Judgment will therefore enter in accordance with the decision of the Attorney Trial Referee.
Jonathan E. Silbert, Judge