Gargano v. Heyman

• Decision Date: 26 May 1987
• Docket Number: No. 13084,13084
• Citation: 203 Conn. 616,525 A.2d 1343
• Parties: Joseph GARGANO v. Annette HEYMAN.
• Court: Connecticut Supreme Court

Page 1343

525 A.2d 1343

203 Conn. 616

Joseph GARGANO v. Annette HEYMAN.

No. 13084.

Supreme Court of Connecticut.

Argued March 6, 1987.

Decided May 26, 1987.

Hanon W. Russell, Orange, for appellant (plaintiff).

Lawrence P. Weisman, Westport, with whom, on brief, was Ellen B. Lubell, for appellee (defendant).

Before HEALEY, SHEA, SANTANIELLO, CALLAHAN and DONALD T. DORSEY, JJ.

CALLAHAN, Associate Justice.

The plaintiff, Joseph Gargano, d/b/a Milford Plaza Laundry, occupied space in the Milford Plaza pursuant to a written lease agreement under which the plaintiff was the assignee. The defendant, Annette Heyman, is the owner of the premises. The plaintiff filed suit against the defendant alleging, inter alia, that she violated the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; when she terminated the electrical service to the premises. The defendant counterclaimed for unpaid rent and waste. The trial court rendered judgment for the defendant in accordance with the report of attorney state trial referee Robert E. Quish. The plaintiff challenges the findings of the referee and the acceptance by the trial court of the referee's report. Specifically, he claims that the referee erred in finding that the plaintiff (1) did not suffer damages as a result of the defendant's willful violation of CUTPA, (2) failed to prove that the defendant's willful termination of the electrical service caused monetary loss, (3) was not entitled to punitive damages, and (4) did not surrender the premises in as good a condition as the reasonable use thereof permitted. We find no error.

The report of the referee contained the following findings of fact: The plaintiff operated a coin-operated laundromat and a dry cleaning pick-up station on the premises leased from the defendant and located in the Milford Shopping Plaza. The lease term ran from July 1, 1974, until June 30, 1984. On two occasions in June, 1984, the defendant notified the plaintiff by letter that the lease would expire on June 30, 1984, and that she expected the plaintiff to vacate the premises on or before that date. The plaintiff failed to vacate on June 30, 1984, and on July 2, 1984, the defendant caused the electricity to be turned off. It was not until January, 1985, that the plaintiff vacated the premises.

The referee found that the defendant's act in shutting off the electricity constituted an unfair practice under CUTPA. The referee noted that the proper action on the part of the defendant would have been to commence a summary process action in accordance with the provisions of the lease. He went on to find, however, that the plaintiff had failed to prove that he had suffered an ascertainable loss of money or property as a result of the defendant's prohibited act, and therefore he could not recover any damages. The referee, therefore, recommended that judgment be rendered for the defendant on the complaint, and that the defendant recover $5071.03 on her counterclaim for damage to the premises caused by the plaintiff. Both the plaintiff and the defendant filed motions to correct the report of the referee pursuant to Practice Book § 438. ¹ In response, the referee issued a memorandum of decision on the motions to correct, in which he reaffirmed his denial of actual and punitive damages for the plaintiff, and the award of damages to the defendant. Pursuant to Practice Book § 439, ² the plaintiff filed exceptions to the report and findings of the referee. The trial court, however, affirmed and rendered judgment in accordance with the referee's report. ³

I

The plaintiff's first two claims of error challenge the findings of the referee with respect to the plaintiff's actual damages. Although the referee found that the defendant had violated CUTPA, he went on to find that the plaintiff had not suffered an ascertainable loss of money or property as a result of the defendant's conduct as required by General Statutes § 42-110g(a). ⁴ The referee determined that the plaintiff had failed to prove that shutting off the electricity caused a loss of money that would not have occurred if he had vacated as he should have on June 30, 1984. ⁵

At the outset, we note that the burden of proving damages is on the party claiming them. Conaway v. Prestia, 191 Conn. 484, 493-94, 464 A.2d 847 (1983); Riccio v. Abate, 176 Conn. 415, 418, 407 A.2d 1005 (1979); Thames Shipyard & Repair Co. v. Willametz, 37 Conn.Sup. 19, 26, 428 A.2d 1143 (1978), aff'd, 184 Conn. 213, 439 A.2d 948 (1981). It is then the province of the trier of fact to weigh the evidence presented and to determine the credibility and effect to be given the evidence. Riccio v. Abate, supra; see Abbott v. Bristol, 167 Conn. 143, 146, 355 A.2d 68 (1974); Kowalsky Properties, Inc. v. Sherwin-Williams Co., 7 Conn.App. 136, 139-40, 508 A.2d 43 (1986).

To support his claim for damages, the plaintiff offered his 1983 and 1984 federal income tax returns and testimony concerning an offer to purchase his business. He claims that his lost profits can be measured by taking the difference between his net profits as reported on his 1983 and 1984 tax returns. During the defendant's cross-examination of the plaintiff, however, it was revealed that in 1984, the plaintiff relocated one of the two businesses he had operated on the defendant's premises during 1983. The court was not obliged to accept the plaintiff's testimony that he could not find a suitable location for the business that remained on the premises for the entire period covered by his 1984 tax return. In addition, the plaintiff presented the testimony of Louis Amadio, a business broker, that a ready, willing and able buyer had been provided to purchase the plaintiff's business in January, 1984, at a purchase price of $100,000. This testimony was apparently offered to show the value of the business and the subsequent loss of profit when the plaintiff was allegedly put out of business as a result of the defendant's act. Amadio testified, however, that the purchase offer was contingent upon the plaintiff's securing a renewal of his lease from the defendant. When the defendant refused to renew the lease, the plaintiff's prospective purchaser withdrew the offer. Amadio further testified that "it would have been virtually impossible" to sell the plaintiff's business without a lease.

We cannot conclude that the referee was incorrect in finding, in light of this evidence, that the plaintiff had failed to prove an ascertainable loss of money. Although we recognize that damages for lost profits may be difficult to prove with exactitude; see Conaway v. Prestia, supra, 191 Conn. at 494, 464 A.2d 847; Burr v. Lichtenheim, 190 Conn. 351, 360, 460 A.2d 1290 (1983); Humphrys v. Beach, 149 Conn. 14, 21, 175 A.2d 363 (1961); such damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount with reasonable certainty. Conaway v. Prestia, supra; Simone Corporation v. Connecticut Light & Power Co., 187 Conn. 487, 494-95, 446 A.2d 1071 (1982); Humphrys v. Beach, supra. The evidence presented by the plaintiff did not afford such a basis.

II

The plaintiff next claims that the referee's finding denying punitive damages was incorrect. The referee found that, under the circumstances of this case, the action of the defendant was not of such a serious nature as to warrant punitive damages. In arguing for a reversal of this finding, the plaintiff claims that this is the type of outrageous conduct which warrants invoking the punitive provisions of CUTPA. We disagree.

Awarding punitive damages and attorney's fees under CUTPA is discretionary; General Statutes § 42-110g(a) and (d); see Bailey Employment System, Inc. v. Hahn, 545 F.Supp. 62, 73 (D.Conn.1982), aff'd, 723 F.2d 895 (2d Cir.1983); and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done. Sturman v. Socha, 191 Conn. 1, 7, 463 A.2d 527 (1983); Long v. Schull, 184 Conn. 252, 258, 439 A.2d 975 (1981); Lamont v. New Hartford, 4 Conn.App. 303, 307, 493 A.2d 298 (1985). "In order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights. Collens v. New Canaan Water Co., 155 Conn. 477, 489, 234 A.2d 825 (1967). In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence. Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 128, 222 A.2d 220 (1966)." Venturi v. Savitt, Inc., 191 Conn. 588, 592, 468 A.2d 933 (1983). While the defendant's conduct in terminating the electrical service to the premises was not the proper action to take under the lease, we cannot conclude that the referee abused his discretion in finding that the circumstances of this case did not satisfy the basic requirements, as set forth above, which justify the award of punitive damages.

III

Finally, the plaintiff claims that the referee erred in awarding damages to the defendant on her counterclaim. The referee found that the defendant's premises were left in a shambles by the plaintiff and that photographs taken by the defendant clearly showed that the plaintiff did not surrender the premises in as good condition as the reasonable use thereof permitted. The plaintiff argues that this finding cannot stand because the defendant failed to present any testimony or evidence to show that any damages which occurred to the premises were beyond those expected from ordinary wear and tear. We disagree.

In order to recover damages for waste, a claimant has the burden of "showing that the lease has terminated; showing with reasonable certainty the condition of the premises, or the portion of the premises complained of, at the inception of the term; showing the specific items of damage...