Aguiar v. Between-the-Bridges, LLC
| Decision Date | 23 January 2020 |
| Docket Number | CV176079250S |
| Court | Connecticut Superior Court |
| Parties | George Aguiar v. Between-the-Bridges, LLC et al. |
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Budzik, Matthew J., J.
Plaintiff George Aguiar sues defendants Between-the-Bridges LLC (BTB), Paul R. Barry, and Anthony Autorino essentially for improperly taking his $112, 000 boat. Mr. Aguiar alleges that although he was $1, 800 in arrears on his storage fees the defendants nevertheless improperly exercised their rights under General Statutes § 15-140c, Connecticut’s statute governing the seizure of abandoned boats. The relevant portion of § 15-140c states that a boat "shall be presumed to be abandoned" if the boat is left at a storage facility "more than one year since receipt of the last full payment by such facility." See General Statutes § 15-140c(a)(4). BTB and Mr. Barry assert that this statutory language means that a boat owner must bring his or her account to a zero balance, i.e., "full payment," in order to avoid the presumption of abandonment once a boat owner falls behind on storage fees. Mr. Aguiar asserts that the periodic and partial payments he was making to BTB ought to have been applied to the oldest outstanding invoice Mr. Aguiar owed until that oldest invoice had been paid in full, i.e., a "full payment." Under the facts of this case, such a process would have resulted in the full payment of invoices from BTB to Mr. Aguiar that were more than a year old, and left only a small balance on an invoice that was less than a year old. Thus, under Mr. Aguiar’s accounting method, the defendants could not properly exercise their rights under § 15-140c.
The court declines to resolve the parties’ conflicting interpretations of § 15-140c because the court finds it unnecessary to do so. Instead, as more fully set forth below, the court finds that § 15-140c merely establishes a statutory presumption of abandonment. Statutory presumptions may be overcome by the presentation of sufficient evidence demonstrating that the presumption is misplaced on the facts of the particular case. Here, the court finds that Mr. Aguiar presented sufficient evidence at trial to demonstrate that he did not intend to abandon his boat. Therefore, the court concludes that the seizure of Mr. Aguiar’s boat was improper.
This case was tried to the court on June 18, 2019. The court heard from four witnesses, including Mr. Barry and Mr. Aguiar, [1] and reviewed approximately twenty-five exhibits. As the trier of fact, the court must weigh the evidence and determine the credibility of witnesses. Connecticut Light & Power Co. v. Proctor, 324 Conn. 245, 259, 152 A.3d 470 (2016). It is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses, and determine whether to accept some, all or none of a witness’ testimony. Palkimas v. Fernandez, 159 Conn.App. 129, 133, 122 A.3d 704 (2015). With these principles in mind, the court makes the following factual findings.
For some years, George Aguiar owned a 1996 Carver 440 motor yacht. The fair market value of Mr. Aguiar’s boat is $112, 000 based on an appraisal done by BTB. Mr. Aguiar is a small construction contractor installing floors, dry wall, and performing other construction tasks. Mr. Aguiar has gone through some financial difficulties in the past. Mr. Aguiar lives part of the year in Florida and part of the year in Connecticut.
BTB is a boat yard located in Old Saybrook. Peter Barry is the current president of BTB. Although Mr. Barry was president of BTB at the time of trial, during the time period relevant to this case, Anthony Autorino was effectively in charge of the day-to-day operations of BTB. Mr. Autorino used to be Mr. Barry’s father-in-law. During the time period relevant to this case, Mr. Barry was responsible for reviewing the books and accounts of BTB.
Mr. Aguiar has stored his boat at BTB since 2003. During the life of Mr. Aguiar and BTB’s business relationship, Mr. Aguiar frequently made partial and periodic payments to BTB for its services. Michael Pendleton, a longtime employee of BTB, testified that Mr. Aguiar, at times, was difficult to get in touch with and, in essence, that Mr. Aguiar was a slow payer. In the words of Mr. Pendleton, In the past, when Mr. Aguiar fell behind on his storage fees, BTB contacted Mr. Aguiar by letter, email, or asked for payment in person when Mr. Aguiar was at the boat yard.
As of November 30, 2013, Mr. Aguiar was current on his payments to BTB; he had a zero balance due in his account. BTB generally billed Mr. Aguiar twice a year for storage fees on his boat; once in the winter and once in the spring. When BTB sent Mr. Aguiar a bill for the 2013-2014 winter storage of his boat, Mr. Aguiar made only a partial payment of $1, 000 on January 17, 2014. When BTB sent Mr. Aguiar a bill for the 2014 spring storage of his boat, Mr. Aguiar did not make any payment. By October 22, 2014, Mr. Aguiar owed BTB approximately $5, 300.[2]
In 2014, the General Assembly passed P.A. 14-57, An Act Concerning Abandoned Vessels. Generally, P.A. 14-57 amended existing law to create new administrative procedures for the seizure and disposal of abandoned boats. P.A. 14-57 became effective January 1, 2015 and was eventually codified in General Statutes § 15-140c.
On April 17, 2015, BTB applied to the Department of Energy and Environmental Protection (DEEP) under § 15-140c to have Mr. Aguiar’s boat declared abandoned. As part of the application, BTB represented to DEEP that Mr. Aguiar’s boat had been left at BTB "more than one year after the last full payment was received." BTB’s application regarding Mr. Aguiar’s boat was part of eleven abandoned boat applications submitted by BTB to DEEP at or about the same time.
BTB’s application was received by DEEP on April 23, 2015. On May 7, 2015, a sticker was placed on Mr. Aguiar’s boat notifying him that his boat was considered abandoned and providing a telephone number to call should Mr. Aguiar have any questions. DEEP also sent notice of BTB’s application to Mr. Aguiar on May 9, 2015, but that notice was returned to DEEP as undeliverable. At some point during the spring of 2015, a friend of Mr. Aguiar’s texted Mr. Aguiar a picture of the DEEP sticker on Mr. Aguiar’s boat. Mr. Aguiar called DEEP to inquire. Mr. Aguiar left a voicemail message at the telephone number listed on the DEEP sticker indicating that his boat was not abandoned. Mr. Aguiar did not receive a return phone call from DEEP, but Mr. Aguiar nevertheless concluded that he had sufficiently notified DEEP that his boat was not abandoned. At about this same time, Mr. Aguiar ran into Mr. Pendleton at the BTB boat yard. Mr. Aguiar had dealt with Mr. Pendleton previously regarding billing on Mr. Aguiar’s boat. Mr. Aguiar testified that he asked Mr. Pendleton about the status of Mr. Aguiar’s account and that Mr. Pendleton said that so long as Mr. Aguiar continued to make payments, things would be okay. Mr. Pendleton testified that he did not recall this conversation, but the court nevertheless credits Mr. Aguiar’s testimony.
On June 22, 2015, BTB received a payment of $2, 500 from Mr. Aguiar. On August 8, 2015, BTB received a $1, 500 payment from Mr. Aguiar. At no time did BTB tell DEEP that BTB was continuing to receive payments from Mr. Aguiar. On September 21, 2015, DEEP sent notice of BTB’s application to Mr. Aguiar at his address at 212 Wickham Road in Glastonbury via certified mail. The notice was signed for by Mr. Aguiar’s wife, Maria Aguiar, on September 23, 2015. Mr. Aguiar again called DEEP to indicate that his boat was not abandoned, but, again, Mr. Aguiar did not receive a response from DEEP. BTB assumed ownership of Mr. Aguiar’s boat on December 11, 2015. When BTB assumed ownership of Mr. Aguiar’s boat, Mr. Aguiar had an outstanding debt to BTB of $1, 800. In March of 2016, Mr. Aguiar attempted to make another payment on his storage fees and was told for the first time that his boat had been seized by BTB.
After assuming ownership of Mr. Aguiar’s boat, BTB paid a federal tax lien on the boat of $15, 000. BTB subsequently sold Mr. Aguiar’s boat to Anthony Autorino for $80, 000. Mr. Autorino in turn sold Mr. Aguiar’s boat to a third-party buyer for $90, 000.
Section 15-140c states that a boat "shall be presumed to be abandoned" if the boat is left at a storage facility more than one year since the last full payment. Thus, by its plain terms, § 15-140c establishes a statutory presumption of the abandonment of one’s personal property (a boat) if the requirements of § 15-140c are otherwise met. (Internal citations omitted.) Sharkiewicz v. Lepone, 139 Conn. 706, 707, 96 A.2d 796 (1953); see also Sanchez v. Forty’s Texaco Service, Inc., 5 Conn.App. 438, 440, 499 A.2d 436 (1985) (); ...
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