De Auto Transp., Inc. v. Eurolite, LLC, AC 39973
Decision Date | 27 November 2018 |
Docket Number | AC 39973 |
Citation | 199 A.3d 92,186 Conn.App. 270 |
Court | Connecticut Court of Appeals |
Parties | DE AUTO TRANSPORT, INC. v. EUROLITE, LLC, et al. |
Robert T. Rimmer, Old Saybrook, for the appellant (plaintiff).
Paul A. Catalano, for the appellees (defendants).
Lavine, Alvord and Moll, Js.
The plaintiff, DE Auto Transport, Inc., appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendants, Eurolite, LLC (Eurolite), and Leopold Zayaczkowski. On appeal, the plaintiff claims that the trial court erred in its damages analysis. We disagree and, accordingly, affirm the judgment of the trial court.
The following facts, as found by the trial court, and procedural history are relevant to our resolution of the plaintiff's claims on appeal. In 2008, Dariusz Penkiewicz (Dariusz) and Elzbieta Penkiewicz (Elzbieta), who were married at the time, formed the plaintiff, which provided motor vehicle services, including the transportation of vehicles. In 2011, the plaintiff had four transport vehicles. Dariusz and Zayaczkowski, on behalf of Eurolite, entered into an oral agreement whereby Eurolite would loan up to $50,000 for Dariusz to purchase a larger truck and trailer for the plaintiff.
Under the terms of the agreement, the plaintiff would make payments on the loan for thirty-six months at an interest rate of 14 percent. In addition, Eurolite would receive 40 percent of the profits and the plaintiff would receive 60 percent of the profits resulting from the use of the truck and trailer for the thirty-six month term. Dariusz subsequently purchased a 2005 Peterbuilt truck for $23,500 and a Cottrell trailer for $25,000. Eurolite provided the funds for the purchase, and the parties agreed on a printed loan amortization schedule. The total amount borrowed was $48,500. The plaintiff made its first payment on the loan in March, 2011.
In February, 2012, Dariusz left the United States to return to Poland because he was concerned about being deported. His absence adversely affected the business operations of the plaintiff. He did not return to the United States until January, 2014. During the time of his absence, it was Elzbieta's responsibility to manage the plaintiff. On April 27, 2013, Elzbieta contacted the police to report that the Peterbuilt truck and trailer had been wrongfully repossessed by Eurolite. Eurolite subsequently returned the Peterbuilt truck and trailer, at the direction of the police, but repossessed the Peterbuilt truck and trailer again a few days later. In May, 2013, Elzbieta learned that Dariusz had been having an extramarital affair, and had a wife and child in Poland. Elzbieta shortly thereafter liquidated the plaintiff and sold its remaining assets. She relocated to Florida, divorced Dariusz, and remarried in December, 2013.
On July 12, 2013, the plaintiff served a complaint on the defendants, which alleged claims of wrongful repossession, conversion, and statutory theft.1 A trial to the court took place on February 25 and 26, 2016. On November 18, 2016, the court issued its memorandum of decision and rendered judgment in favor of the defendants. The court concluded that "[e]ven assuming that [the plaintiff] has sustained its burden to prove liability under one or more of the various counts of its complaint, the court finds that it has still failed to prove causation and damages." In reaching its conclusion, the court determined that such as "declining business revenues, [Dariusz'] return to Poland, the divorce and [Elzbieta's] desire to relocate to Florida, remarry and start her life over."
On appeal, the plaintiff claims that the trial court, having assumed liability, erred in failing to award damages.2 Specifically, the plaintiff argues that the court "[failed] to analyze the amount of harm ... caused by the defendants' wrongful repossession, conversion and statutory theft of the [Peterbuilt truck] and trailer."3 We disagree.
(Citations omitted; internal quotation marks omitted.) Weiss v. Smulders , 313 Conn. 227, 253–54, 96 A.3d 1175 (2014).
At oral argument before this court, the plaintiff contended that there were three types of damages that the trial court could have awarded: (1) lost profits, (2) the value of the Peterbuilt truck, and (3) payments made to Eurolite.4 At trial, however, the plaintiff did not claim damages related to the value of the Peterbuilt truck or payments made to Eurolite.5 Therefore, we decline to review these two claims on appeal. See DiMiceli v. Cheshire , 162 Conn. App. 216, 229–30, 131 A.3d 771 (2016) () .
With regard to the plaintiff's claim for lost profits, the plaintiff conceded at oral argument that a report prepared by the plaintiff's certified public accountant, Robert Gollnick, was "the only evidence of economic loss." In the report, dated May 20, 2013, Gollnick concluded that the fair market value of the plaintiff was $116,000. In addition, Gollnick determined that there was "a loss of $97,810 of income for 2013 before other operating expenses."6
Gollnick's testimony and report were subject to a credibility determination by the court. (Internal quotation marks omitted.) Keith E. Simpson Associates, Inc. v. Ross , 125 Conn. App. 539, 543, 9 A.3d 394 (2010). A finding is clearly erroneous if there is "no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." State v. Krijger , 313 Conn. 434, 446, 97 A.3d 946 (2014).
The court found Gollnick's testimony and report not credible, concluding that "[a] substantial portion of the information provided to him [by the plaintiff] was either inaccurate and/or incomplete." Specifically, the court found that Gollnick was not made aware of the loan on the Peterbuilt truck and trailer or the agreement to divide the profits on a 60/40 basis, he did not list some of the plaintiff's trucks on its tax returns, he was unaware that the parties were involved in a money laundering scheme to avoid the payment of taxes,7 and that Dariusz and Elzbieta "elected to omit substantially all of the disclosures required by generally accepted accounting principles." Most significantly, the court found that Because there was evidence to support the court's credibility determination, its finding was not clearly erroneous.8 Consequently, no credible evidence was presented in support of the plaintiff's claim for lost profits and the court did not have a sufficient basis for estimating its amount with reasonable certainty. See Ray Weiner, LLC v. Connery , 146 Conn. App. 1, 7, 75 A.3d 771 (2013) ( ). Therefore, we conclude that the court did not err in its damages determination.
The judgment is affirmed.
1 The complaint included five counts: (1) wrongful repossession...
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