Service Road Corp. v. Quinn

• Decision Date: 15 July 1997
• Docket Number: 15607,Nos. 15506,s. 15506
• Citation: 241 Conn. 630,698 A.2d 258
• Court: Connecticut Supreme Court
• Parties: SERVICE ROAD CORPORATION et al. v. Daniel QUINN et al.

Page 258

698 A.2d 258

241 Conn. 630

SERVICE ROAD CORPORATION et al. v. Daniel QUINN et al.

Nos. 15506, 15607.

Supreme Court of Connecticut.

Argued April 23, 1997.

Decided July 15, 1997.

Susan M. Cormier, Hartford, with whom were Harold R. Cummings, South Windsor, and Kenneth J. Bartschi, Legal Intern, Hartford, for appellants (defendants).

Steven W. Varney, Rocky Hill, with whom was Robert T. Rimmer, Chester, for appellees (plaintiffs).

Before CALLAHAN, C.J., and BORDEN, BERDON, KATZ and PETERS, JJ.

CALLAHAN, Chief Justice.

The principal issue in this appeal is whether the trial court properly concluded that the plaintiffs suffered an "ascertainable loss of money or property," as required to maintain an action pursuant to General Statutes § 42-110g, ¹ which is part of the Connecticut Unfair Trade Practices Act (CUTPA), as the result of the installation of several video surveillance cameras by the named defendant, Daniel Quinn, on his property. The cameras were focused on the front entrances to the plaintiffs' two neighboring business establishments. We conclude, inter alia, that the trial court properly determined that the plaintiffs suffered an ascertainable loss as a result of Quinn's actions. We therefore affirm the judgment of the trial court.

The record reveals the following facts. At all relevant times, the plaintiffs, Service Road Corporation and Cousin Vinnie's, Inc., operated adjacent exotic dance clubs, known as Uncle Al's and Cousin Vinnie's, at 145 and 147 West Service Road in Hartford. Quinn operated an adult bookstore known as Danny's Adult Book World next to Uncle Al's and Cousin Vinnie's at 151 West Service Road. During the time period in question, Quinn also owned and operated two exotic dance clubs, one, known as Kahoots, located in East Hartford, the other, known as Carrie-Ann's, located in Vernon. Both Kahoots and Carrie-Ann's competed with Uncle Al's and Cousin Vinnie's for patrons. The other defendant in this case, Gordon Debigare, worked for Quinn as the manager of Kahoots.

On September 7, 1993, the plaintiffs, through their attorney, notified Quinn and the Hartford police department that customers of Danny's Adult Book World had been engaging in sexual activity and drug use at the rear of Quinn's property at 151 West Service Road. Approximately two weeks later, Quinn installed two video surveillance cameras on the south side of his building, which faced the north side of the plaintiffs' building, where the front entrances to both Uncle Al's and Cousin Vinnie's were located. One of the cameras was situated so that it pointed directly at, and focused on, the front door of Uncle Al's, the other so that it pointed directly at, and focused on, the front door of Cousin Vinnie's. A short time later, Quinn installed additional cameras on his building, four of which also focused on the front doorways of Uncle Al's and Cousin Vinnie's. Sometime in October, 1993, Debigare contacted at least two patrons of the plaintiffs' clubs and informed them that he had seen them entering the plaintiffs' clubs on the security television attached to the surveillance cameras at 151 West Service Road. Debigare also provided several of the plaintiffs' patrons with free drink coupons that were redeemable at Kahoots. In addition, Debigare assisted in posting advertisements for Carrie-Ann's on the side of the building at 151 West Service Road that faced the front entrances of Uncle Al's and Cousin Vinnie's.

The plaintiffs filed a two count complaint and an application for a temporary injunction against the defendants in the trial court. In the first count of their complaint, the plaintiffs alleged that the defendants' actions tortiously interfered with the plaintiffs' business, causing them irreparable loss and damage. In the second count of the complaint, the plaintiffs claimed that the defendants' actions constituted unfair and deceptive acts and practices in the conduct of trade or commerce, in violation of CUTPA, General Statutes §§ 42-110a through 42-110q. In the first count, the plaintiffs sought damages, costs and temporary and permanent injunctions ordering the defendants to remove the cameras, or to adjust them so that they did not focus on the plaintiffs' property. In addition, the plaintiffs sought temporary and permanent injunctions ordering the defendants to refrain from contacting the plaintiffs' customers. In the CUTPA count, the plaintiffs sought both economic and punitive damages, temporary and permanent injunctive relief, attorneys' fees and costs, all under § 42-110g. Thereafter, the plaintiffs amended their complaint by removing from both counts any claim for economic damages. ² Before trial, the parties stipulated to the entry of a temporary injunction against the defendants requiring the defendants to adjust the cameras that were capable of viewing the premises at 145 and 147 West Service Road so that at all times the cameras pointed downward at an angle of less than fifty degrees.

After a court trial, the trial court issued a memorandum of decision in which it found for the defendants on the first count of the plaintiffs' complaint and for the plaintiffs on the second count. The court concluded that Quinn's actions constituted an unfair trade practice in violation of § 42-110b. ³ The court issued the permanent injunction sought by the plaintiffs, ⁴ and also determined that the plaintiffs were entitled to attorneys' fees and costs from Quinn. The court found that at all times Debigare had acted simply as Quinn's agent and declined to award attorneys' fees against him. The court also, in the exercise of its discretion, declined to award the plaintiffs punitive damages. On January 1, 1997, the court rendered judgment in accordance with its memorandum of decision and awarded the plaintiffs attorneys' fees against Quinn in the stipulated amount of $14,930.30. The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). ⁵

The defendants claim that the second count of the plaintiffs' amended complaint, which alleged a CUTPA violation, was insufficient as a matter of law because it contained no allegation that the plaintiffs had suffered an economic loss as a result of the defendants' conduct. The defendants contend that a plaintiff claiming a CUTPA violation in the context of a competitive business relationship must allege some economic loss in order to satisfy the ascertainable loss requirement of § 42-110g. They claim that the plaintiffs' amended complaint did not include such an allegation. In addition, the defendants claim that the trial court's factual determination that the plaintiffs had suffered an ascertainable loss was clearly erroneous in light of the evidence presented at trial. Consequently, they contend that the trial court's judgment ordering a permanent injunction and awarding the plaintiffs attorneys' fees must be reversed. We are unpersuaded.

I

As an initial matter, we decline to address the defendants' arguments concerning the legal sufficiency of the plaintiffs' amended complaint at this late stage of the proceedings. "[A] judgment ordinarily cures pleading defects.... The absence of a requisite allegation in a complaint that would have justified the granting of a motion to strike ... is not a sufficient basis for vacating a judgment unless the pleading defect has resulted in prejudice. [I]f parties will insist on going to trial on issues framed in a slovenly manner, they must abide the verdict; judgment will not be arrested for faults in statement when facts sufficient to support the judgment have been substantially put in issue and found.... Want of precision in alleging the cause of an injury for which an action is brought, is waived by contesting the case upon its merits without questioning such defect." (Citations omitted; internal quotation marks omitted.) Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 497, 646 A.2d 1289 (1994); see also Tedesco v. Stamford, 215 Conn. 450, 458, 576 A.2d 1273 (1990), on remand, 24 Conn.App. 377, 588 A.2d 656 (1991), rev'd, 222 Conn. 233, 610 A.2d 574 (1992).

Instead of submitting a motion to strike the plaintiffs' amended complaint, the defendants waited until the close of the plaintiffs' evidence and then moved, pursuant to Practice Book § 302, ⁶ for a judgment of dismissal for failure of the plaintiffs to make out a prima facie case. ⁷ Thus, the defendants challenged the sufficiency of the plaintiffs' evidence rather than the sufficiency of their pleading. Because the defendants did not raise their argument concerning the sufficiency of the plaintiffs' pleading in the trial court and have failed to demonstrate that they in any way were prejudiced by the plaintiffs' amended complaint, ⁸ we conclude that the defendants have waived this claim. Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, 230 Conn. at 496-97, 646 A.2d 1289.

II

The defendants next contend that the trial court improperly concluded that the plaintiffs had sustained their burden of proving that they had suffered an ascertainable loss of money or property as required by § 42-110g. The defendants do not find fault with the trial court's determination that Quinn's actions constituted an unfair trade practice in violation of § 42-110b. They argue, rather, that the trial court committed clear error in concluding that the plaintiffs had proven that they had suffered an ascertainable loss as a result of Quinn's installation of the surveillance cameras. We disagree.

We begin our analysis with the principle that CUTPA "is remedial in character ... and must be liberally construed in favor of those whom the legislature intended to benefit." (Citations omitted; internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 213, 680 A.2d 1243 (1996). In Larsen Chelsey Realty...