Lawson v. Whitey's Frame Shop, 14833

• Court: Appellate Court of Connecticut
• Citation: 42 Conn.App. 599,682 A.2d 1016
• Decision Date: 20 August 1996
• Docket Number: No. 14833,14833
• Parties: Frank LAWSON v. WHITEY'S FRAME SHOP Dorothy CHAREST v. WHITEY'S FRAME SHOP

Page 1016

682 A.2d 1016 42 Conn.App. 599 Frank LAWSON
v.
WHITEY'S FRAME SHOP
Dorothy CHAREST
v.
WHITEY'S FRAME SHOP No. 14833. Appellate Court of Connecticut. Argued May 3, 1996.
Decided Aug. 20, 1996.

Page 1018

[42 Conn.App. 600] Kirstin B. Coffin, Hartford, for appellants-appellees (plaintiffs).

Michael D. O'Connell, with whom was Julia B. Morris, Hartford, for appellee-appellant (defendant).

Before SPEAR, FRANCIS X. HENNESSY and HEALEY, JJ.

HEALEY, Judge.

The plaintiffs in this consolidated action, Frank Lawson and Dorothy Charest, appeal and the defendant cross appeals from the judgment of the trial court rendered after a trial to the court. The plaintiffs' complaints were in two counts. The first counts made claims alleging conversion, while the second counts sought damages for violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a through 42-110g. The trial court awarded each plaintiff $50, which amount was trebled, on the first count and $1018 on the second count. The defendant [42 Conn.App. 601] filed a counterclaim in two counts seeking its fees and costs under General Statutes § 14-150 and the reasonable value of fees, interest and costs allegedly owed to it by the plaintiffs. The trial court awarded the defendant $1168 to be paid by each plaintiff on the second count. On the plaintiffs' appeal, they claim that (1) the trial court awarded insufficient compensatory and CUTPA damages because the awards are against the weight of the evidence and contrary to law ¹ and (2) the trial

Page 1019

court did not allow them sufficient latitude as pro se litigants. On the defendant's cross appeal, it claims that the trial court improperly determined that it had violated CUTPA.

The following facts are relevant on these appeals. The plaintiffs each incurred over $3000 in fines arising from unpaid parking tickets issued by the city of Hartford. The plaintiffs did not contest the tickets when they were issued. On April 5, 1990, the defendant, acting at the direction of the Hartford police department, towed the plaintiffs' automobiles to its lot. At a hearing pursuant to a city ordinance before the Hartford tax department on April 6, 1990, a hearing officer reduced the amount of the fines the plaintiffs owed by eliminating the additional interest and penalties due. Each plaintiff still owed over $1000, the total of the face amounts of the tickets. ² Some time later, the plaintiffs contacted the defendant and informed it that they were still contesting the validity of the tickets.

Pursuant to both a city ordinance ³ and the contract between the defendant and the city of Hartford, the [42 Conn.App. 602] defendant was prohibited from releasing automobiles to their owners until all outstanding parking fines were satisfied. The contract specified that when the automobile owner came to retrieve his or her automobile with proper proof of payment of the fines, the defendant was to collect its towing, storage and administrative fees from the automobile owner. The contract also stated that any automobiles not claimed by their legal owners should be stored and disposed of pursuant to General Statutes § 14-150. ⁴

The plaintiffs did not pay the parking fines and thus could not retrieve their automobiles from the defendant. [42 Conn.App. 603] On April 24, 1990, allegedly acting pursuant to § 14-150(g), the defendant sent notice to the department of motor vehicles of its intent to sell both automobiles. On May 4, 1990, the defendant, also allegedly acting pursuant to § 14-150(g), sent notice to the plaintiffs that their automobiles

Page 1020

would be sold. On July 16, 1990, the defendant sold the automobiles for their salvage value of $50 each.

The trial court determined that because the plaintiffs demanded the return of their automobiles while they contested the tickets in a variety of fora, the automobiles were not "abandoned" as that term is used in § 14-150. Because the automobiles were not abandoned, the court reasoned, the defendant did not have the authority to dispose of them. Therefore, the trial court awarded to each plaintiff the $50 salvage value the defendant received for each automobile. ⁵ This amount was trebled under General Statutes § 52-564. ⁶ The trial court also awarded to each plaintiff CUTPA damages of $1018 because it concluded that the defendant's improper disposal of the automobiles could cause substantial injury to consumers. These awards were offset by the trial court's determination that each plaintiff owed the defendant $1168 in towing and storage fees.

[42 Conn.App. 604] I

A

The plaintiffs first claim that the amounts of the trial court's compensatory and CUTPA awards were against the weight of the evidence and contrary to law. Even though the trial court awarded compensatory and CUTPA damages, the plaintiffs incongruously assert that the trial court improperly "fail[ed] to award compensatory damages, punitive damages and attorney's fees...." In addition, the plaintiffs claim that the trial court improperly awarded damages to the defendant. We disagree.

First, the plaintiffs contend that they had proved greater compensatory damages than those awarded by the court. ⁷ They argue that the trial court required them to prove their damages with too high a degree of specificity. To be precise, the plaintiffs assert that they should have also received damages to compensate them for the book value of the automobiles and wages they allege they lost as a result of being deprived of the use of their automobiles. "It is axiomatic that a claimant seeking damages bears the burden of proving, with reasonable certainty, those damages sustained as a result of his injury. Fox v. Mason, 189 Conn. 484, 488, 456 A.2d 1196 (1983); Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 410, 456 A.2d 325 (1983); Johnson v. Flammia, 169 Conn. 491, 500, 363 A.2d 1048 (1975)." Conaway v. Prestia, 191 Conn. 484, 493-94, 464 [42 Conn.App. 605] A.2d 847 (1983). "The trial court has broad discretion in determining damages.... The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous." (Citations omitted.) Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 27-28, 664 A.2d 719 (1995). "The assessment of damages is peculiarly within the province of the trier and the award will be sustained so long as it does not shock the sense of justice. The test is whether the amount of damages awarded falls within the necessarily uncertain limits of fair and just damages." (Citations omitted; internal quotation marks omitted.) Buckman v. People Express, Inc., 205 Conn. 166, 174-75, 530 A.2d 596 (1987).

A review of the transcript reveals no evidence to support the plaintiffs' claims for

Page 1021

greater compensatory damages. First, Charest testified that not only did she initially have another vehicle to use in her weekend job as a produce vendor, but that in previous years she had never shown a profit in this endeavor. Second, Charest testified that Lawson was not able to work from 1990 to 1992 as a result of losing the use of his automobile. The plaintiffs, however, offered no other evidence to substantiate the claim for Lawson's lost wages. Finally, the plaintiffs did not offer any evidence regarding the book value of either automobile. In light of the paucity of evidence relating to actual damages, therefore, the trial court clearly did not abuse its discretion in awarding compensatory damages of $50 for each car.

As noted previously, the trial court trebled its compensatory damage award to the plaintiffs pursuant to § 52-564. In discussing the award, however, the trial court stated that "[s]ection 52-564 may ... be inapplicable because the defendant was acting under a claim of right...." We conclude that § 52-564 is inapplicable.

Statutory theft under § 52-564 "is synonymous with larceny under General Statutes § 53a-119." Discover [42 Conn.App. 606] Leasing, Inc. v. Murphy, 33 Conn.App. 303, 309, 635 A.2d 843 (1993), citing Lauder v. Peck, 11 Conn.App. 161, 165, 526 A.2d 539 (1987). Pursuant to § 53a-119, "[a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." By comparison, "[c]onversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights." Discover Leasing, Inc. v. Murphy, supra, at 309, 635 A.2d 843, citing Devitt v. Manulik, 176 Conn. 657, 660, 410 A.2d 465 (1979). In addition, conversion requires that the owner be harmed as a result of the unauthorized act. Devitt v. Manulik, supra, at 660, 410 A.2d 465. Conversion may arise subsequent to an initial rightful possession. Maroun v. Tarro, 35 Conn.App. 391, 396, 646 A.2d 251, cert. denied, 231 Conn. 926, 648 A.2d 164 (1994). Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutory theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant's conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion. ⁸ In the present case, the trial court did not find that the defendant intended to deprive the plaintiffs of their automobiles. In fact, the trial court stated that "the defendant was acting under an honestly held claim of right." Therefore, the plaintiffs' proof that the defendant converted their property cannot, on its own, support a finding of statutory theft under § 52-564. The trial court, [42 Conn.App. 607] therefore, improperly applied § 52-564 to the facts of this case.

Although the defendant in its cross appeal has not specifically raised this issue of whether the trial court...