Opinion
UWYCV166031711S
07-10-2018
TRI STAR DISTRIBUTOR, INC. v. Oday OMAR
UNPUBLISHED OPINION
OPINION
Brazzel-Massaro, J.
This matter came to the court on June 28, 2018 for a court trial. The plaintiff, Tri-Star Distributors, Inc. ("Tri-Star") filed a complaint in one count on August 15, 2016 seeking payment for goods that were sold to the business operated by the defendant, that is, the convenience store located at 9 North Main Street in Thomaston, Connecticut.
The defendant filed an answer and counterclaim on August 25, 2017. The defendant denied each of the claims in the complaint. The counterclaim contains one count and alleges that the plaintiff failed to mitigate the claim for damages and that the plaintiff defamed the defendant when he was arrested for issuing or passing a bad check knowing it does not have sufficient funds pursuant to C.G.S. § 53a-128(a)(1). Although the counterclaim does not properly plead either the mitigation or the defamation action, the court has considered the testimony and evidence produced at the hearing to determine if either claim is supported by the law or the testimony for the counterclaim.
The plaintiff produced testimony from Mr. Omar and Mr. Dawoud Ahmad, a secretary for Tri Star. The defendant introduced testimony from the cross examination of the two witnesses and also presented Mr. Omar for additional testimony. The court received three exhibits which were marked full for the hearing, the guaranty note signed by the defendant, the invoice for goods from Tri-State to Oday Omar and the transcript for the criminal proceedings on May 12, 2016.
I. DISCUSSION
"It is well established that in cases tried before courts, trial judges are the sole arbiter of the credibility of witnesses and it is they who determine the weight to be given specific testimony ... it is the quintessential function of the fact finder to reject or accept certain evidence ..." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). The trier of fact must evaluate the credibility of both testimonial and documentary evidence. Coombs v. Phillips, 5 Conn.App. 626, 627, 501 A.2d 395 (1985) (per curiam). "The fact finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906 (2005).
The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct. Christie v. Eager, 129 Conn. 62, 64-65, 26 A.2d 352 (1942). "It is well established that [t]he trier of fact may accept or reject the testimony of any witness ... The trier can, as well, decide what- all, none, or some of a witness’ testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).
In evaluating the credibility of the witnesses, this Court considered the appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, their manner in responding to questions and whether they were candid and forthright or evasive and incomplete, their interest or lack of interest in the case and the consistency or inconsistency of their testimony in relation to other evidence, including exhibits in the case. The testimony and exhibits in this matter have created areas for the court to weigh and decide issues of credibility or reliability as they relate to the exhibits or testimony.
From the credible testimony and evidence presented, the court finds the following facts to have been proven by a fair preponderance of the evidence.
The plaintiff Tri-State sells small goods to operators of convenience stores. As a part of the business, the plaintiff stocked the store that the defendant was opening in January 2014. The defendant formed an LLC registered with the State of Connecticut as Omar and Sons, LLC. This was a single-member LLC, that is, Oday Omar ("Omar"). The defendant signed a guaranty note that provided a Personal Guaranty which included the following language, "For valuable consideration received, the undersigned personally guarantees payment and performance of all obligations, past, present or future of the above named business, owing to Tri-Star Distributors Incorporated including any and all financing charges, cost of collection and reasonable attorneys fees in amount not less than 33 1/3 percent. The undersigned waives presentment, demand, protest and any other notice regarding this Guaranty of Payment."
The initial invoice for the products was in the amount of $12,081.67 on December 31, 2013. The defendant did not provide any payment when this first delivery was made. Thereafter, on about a weekly basis the sales person for Tri-State would take an order for new goods to replace the items sold or fill a requested order for the defendant. The defendant worked with a salesperson by the name of Osama Ahamad ("Osama"). The defendant made periodic and varied payments to the plaintiff. (Exhibit 2.) He began to make payments by check with the first payment on March 31, 2014. On August 20, 2014, the defendant paid with a check in the amount of $2,500 which was uncollectable because of insufficient funds. Thereafter the defendant would accept only cash for payments from the defendant. The records show only cash payments. The balance due continued to accrue as a result of the additional shipments and only partial payments. The defendant recognized that he had a balance building with the plaintiff. In May 2015, the defendant decided he was going to close his business and did so. It appears that the last shipment was on January 26, 2015 in accordance with the invoice and thus the only contact with the salesperson would be his attempts to collect for the prior invoices. Osama would collect payments even if no deliveries were made if money was due. The invoice indicates 2 payments made after the defendant stopped ordering. There are no written records notifying the plaintiff the store was closing or that they should attempt to take the remaining merchandise in the store. The defendant chose to close the store because he could not pay rent. The plaintiff did not have an opportunity nor did it receive notice to remove any merchandise. When the defendant closed the store he had an outstanding bill for goods of $45,034.45. The last entries on the invoice were credits that were provided on May 27, 2015, July 1, 2017 and July 2, 2017. The plaintiff received a check for $46,000 which was returned for insufficient funds. As a result of the payment with a check that did not have funds to cover it, the defendant was arrested for issuing or passing a bad check pursuant to C.G.S. § 53a-128(a)(1).
The court conducted a hearing in the criminal matter as to the issuance of the check and made specific findings related to the elements of the statute which applied. The court made a finding that Mr. Ahamad would pick up checks and hold them until the customer authorized the amount on the check. The defendant contends he did not authorize a payment for $46,000. The court determined that there was reasonable doubt as to whether the defendant authorized the check in that amount as well as a recognizing a difference in the signature and handwriting on the check. These findings created reasonable doubt and as such the court found the defendant not guilty.
Prior to the opening and operation of this store the defendant had absolutely no experience, education or training to operate a convenience store There was no testimony that the defendant did anything to ever verify the goods delivered or the accrual of the amounts due. The defendant has not made any further payments to the plaintiff after April 2015.
A. Plaintiff’s Claim of Nonpayment
Other than his testimony that he was not aware of the outstanding amount due on the invoices, the defendant does not provide any testimony or evidence that he did not receive each of the orders noted. Without any support he states that he does not think the invoices are accurate. He has not presented to the court any evidence that he made additional payments or returned merchandise that was not credited (other than at the close of his business). The defendant placed the orders and inspected the orders as they were delivered. He testified that he was basically a one-man show and had complete control. It was the defendant who signed the personal guaranty and who placed the orders for the goods with his sales representative. It was the defendant who accepted and inspected the orders. It is clear that it was the defendant who entered into the agreement and accepted the goods from the plaintiff and simply did not have funds to pay the invoices which are still due and owing. As to the complaint, the plaintiff has satisfied his burden of proof that the defendant has failed to pay for the contracted goods in the amount of $46,034.45.
B. Counterclaim
The defendant has included as part of his response to the complaint a counterclaim which is one count with three separate paragraphs states in relevant part: "1) the plaintiff failed to mitigate its claim for damages by not taking back the unsold inventory at the time the Defendant closed his place of business; 2) The Plaintiff defamed the Defendant by filing false criminal charges at G.A. 12 in Manchester, Connecticut against the Defendant ...; 3) The Plaintiff defamed the Defendant by forging his name to one of his checks resulting in a significant loss of time and money to the Defendant."
The counterclaim is in one count but provides what appears to be at least two different theories.
The first paragraph uses the term mitigate which appears to be a special defense, but the second and third paragraphs refer to the claim as defamation. The plaintiff did not file a Request to revise to clarify or to separate the claims as different causes of action, or address the inclusion of mitigation as a claim and not a special defense.
The defendant argued that the plaintiff did not retrieve whatever inventory was at the store. This is not a cause of action for damages but a defense for mitigation of damages which under most instances is filed as a special defense and not a counterclaim. Here, the defendant did not provide any evidence of notice to the plaintiff that the inventory could be reclaimed. The Guaranty which was introduced by the plaintiff addresses a right to reclaim the goods, including inventory but there is no mandate and no notice provisions which would be relevant to this action. However putting that aside and viewing the testimony and evidence, there is no evidentiary support that the plaintiff had any obligation to recoup some of the expense by seizing whatever inventory they could find. The plaintiff has not provided to the court a baseline of what inventory was left at the store and whether the product was the kind that could be collected and sold elsewhere. The plaintiff provided no proof that there was any inventory left in the store after he locked it up and left. Therefore, the defendant has not satisfied his burden that the defendant was obligated and even if obligated what inventory was remaining or evidence of the value of the inventory.
The defendant indicates in the next two paragraphs that the plaintiff defamed him by filing a false criminal charge in G.A. 12 and by forging his name to one of the checks.
The second claim of the defendant is that Tri-Star defamed him. As a threshold matter, a defamatory statement is "a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third person from associating or dealing with him." Hopkins v. O’Connor, 282 Conn. 821, 838, 925 A.2d 1030 (2007). "Defamation is comprised of the torts of libel and slander ... Slander is oral defamation ... Libel is written defamation." (Internal quotation marks omitted.) Lowe v. Shelton, 83 Conn.App. 750, 765, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004). Other than contending that the plaintiff defamed him the defendant does not provide any specific facts for the court to consider the claim. It is unclear even after testimony as to whether the defamation was slander or libel. The testimony indicates that the president of Tri-Star referred the information about the bounced check to the States Attorney but the specifics surrounding it are less than clear. If the claim is that there was a written defamation then charging without evidence that an individual committed a crime with intent to injure him is culpable conduct. However, even that theory has no support in the present facts, where at most the President of Tri-Star referred the check with insufficient funds to some unidentified authority. There is no testimony or evidence that the plaintiff made statements that the defendant was a thief, or a felon or any other claim as a criminal. If this was sufficient for a claim of defamation then it would put a chilling effect upon any citizen that reports what they believe to be a crime even if not pursued by the criminal authorities.
No one denies that there was a signed check on the defendant’s account for $46,000 which was returned to the plaintiff with insufficient funds.
None of the parties provided testimony about who was contacted in reference to the check with insufficient funds. Logically, it would be the police department who then seeks a judicially reviewed warrant and proceeds with the criminal action if there is probable cause. The testimony is scarce except that there was a hearing before a judge who made a finding based upon all of the evidence, testimony and credibility of the witnesses that there was not proof beyond a reasonable doubt and thus the defendant was found not guilty.
The premise of the defendant’s claim in paragraph 2 is not simply that the defendant filed a false criminal claim but that they did so to defame the defendant. The defendant submitted the transcript of the court decision after a hearing as to the charges. There is nothing in the decision by Judge Lobo that supports or infers that the defendants filed a false report. In fact if there was such a finding by the court charges may be initiated by the prosecutor as to the individuals who made a false report. No such evidence or testimony was provided. However, even after reviewing the decision of the court there is not even an inference that the defendants or anyone else filed any report to defame. It is also important to focus on the criminal process which required a prosecutor to make a finding of probable cause to pursue the criminal action. There was no finding by Judge Lobo that probable cause was lacking. The criminal court made a decision that the prosecutor failed to satisfy the burden of proof, that is, beyond a reasonable doubt.
Lastly, the defendant has not produced any evidence of an injury to his reputation or evidence of any expenses or treatment necessary as a result of these claims.
Without more the court is speculating as to what is the nature of the counterclaim. The counterclaim provides no support and the evidence and testimony at trial offers little more to satisfy the defendant’s burden of proof. Judgment is entered for the plaintiff, Tri-Star, on the counterclaim.
CONCLUSION
Based upon the above, the court enters judgment for the plaintiff on the complaint in the amount of $45.034.45. Judgment is entered for the plaintiff on the counterclaim.