Stone v. E. Coast Swappers, LLC, AC 40855

• Decision Date: 02 July 2019
• Docket Number: AC 40855
• Citation: 191 Conn.App. 63,213 A.3d 499
• Court: Connecticut Court of Appeals
• Parties: Thomas G. STONE III v. EAST COAST SWAPPERS, LLC

191 Conn.App. 63

213 A.3d 499

Thomas G. STONE III

v.EAST COAST SWAPPERS, LLC

AC 40855

Appellate Court of Connecticut.

Argued January 31, 2019

Officially released July 2, 2019

William J. O'Sullivan, with whom was Michelle M. Seery, Wethersfield, for the appellant (plaintiff).

Juri E. Taalman, Hartford, with whom, on the brief, was Joseph R. Serrantino, Middletown, for the appellee (defendant).

Alvord, Bright and Norcott, Js.

ALVORD, J.

The plaintiff, Thomas G. Stone III, appeals from the judgment of the trial court, rendered after a trial to the court, finding that the defendant, East Coast Swappers, LLC, had violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and awarding the plaintiff compensatory damages, but declining to award punitive damages and attorney's fees. On appeal, the plaintiff claims that the court erred when it failed to award him attorney's fees. We 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 this appeal. Patrick Keithan, at the time, the plaintiff's son-in-law, purchased a 2008 Mitsubishi Lancer Evolution in February, 2010, from a dealership in Savannah, Georgia. Keithan was in the military service and stationed in Georgia. He financed the purchase of the car, in part, through a loan from Wachovia Dealer Services, Inc.,¹ in the amount of approximately $24,362.49.

Shortly thereafter, the car's engine experienced performance issues, for reasons not disclosed at trial. Keithan towed the car from Georgia to Windsor Locks, Connecticut, where the defendant, a motor vehicle repair shop, was located. The defendant first replaced the car's turbocharger for $2000, which Keithan paid for by credit card. Following the replacement of the turbocharger, the engine still was found to be inoperable. Keithan returned to Georgia to fulfill his military service obligations and left the car with the defendant.

Keithan ultimately decided that he wanted the defendant to install a Buschur Racing short block.² Paul Scott, a co-owner of the defendant, drafted an estimate for this work, which he forwarded to Keithan. The estimate, dated August 17, 2010, referenced the purchase of the Buschur Racing short block and its installation, and estimated a cost of $9028.89.

The plaintiff loaned Keithan $9000 to pay the defendant. The plaintiff's wife prepared a promissory note for the loan, which contemplated the title and car being held by the plaintiff while the note remained unpaid. The note, dated September 14, 2010, was executed by Keithan and his wife, the plaintiff's daughter. Keithan's wife then forwarded a check to the defendant in the amount of $9028.89.

On October 11, 2010, the defendant shipped the car's engine to Buschur Racing, which performed the requested work on the engine and returned the modified engine to the defendant. The modified engine, however, was never installed in the car.³ As Scott started to prepare the modified engine for installation, his foreman came to him with an additional parts request to discuss with Keithan. These were components that the foreman had learned were damaged as he took the original engine apart to prepare it for transmittal to Buschur Racing. When this request was communicated to Keithan,⁴ he did not want to pay the extra money. The car continued to remain in the defendant's possession.

Keithan never repaid the plaintiff any portion of the loan. The plaintiff first attempted to obtain title to the car to identify him as a second position lienholder by filing a title application with the Motor Vehicle Division of the Georgia Department of Revenue.⁵ In February and April, 2011, the plaintiff traveled from Maryland, where he resided, to the defendant's location in Connecticut. Scott refused to allow the plaintiff to look at the car or the modified engine. On September 1, 2011, Victoria L. Abalan, a co-owner of the defendant, sent a letter to Keithan, in which she indicated that she had been contacted by the plaintiff and had received a copy of the plaintiff's title application. The letter from Abalan to Keithan referenced the sum of $14,151.71 being owed to the defendant, which represented the costs of additional shipping, engine parts,⁶ and storage over the previous year.

The plaintiff filed an action against Keithan in Maryland and obtained a judgment in the amount of $10,348. This judgment permitted him to eventually secure a lien on the car subsequent in right to that of Wells Fargo Auto Finance (Wells Fargo). See footnote 1 of this opinion. The lien was reflected in a certificate of title, dated June 29, 2012, which was issued by the Georgia Department of Revenue.

On July 13, 2012, the defendant filed a "Notice of Intent to Sell" or an "Artificer's Lien"⁷ with the Connecticut Department of Motor Vehicles, which claimed a lien of $1792. In December, 2012, the Connecticut Department of Motor Vehicles issued to the defendant a form H-76, an "Affidavit of Compliance and Ownership Transfer," for use in providing valid title to a purchaser for a vehicle subject to an artificer's lien.

In December, 2012, extensive communications took place between the plaintiff, the plaintiff's wife, and the defendant's owners, regarding the plaintiff obtaining the car in satisfaction of his lien. During these communications, the plaintiff informed the defendant that he had secured status as a second position lienholder on the Georgia title. The plaintiff, however, had not provided the defendant with a copy of the new Georgia title.

Keithan filed for bankruptcy in Maryland and secured the discharge of the plaintiff's judgment. The security interest of Wells Fargo was identified as $10,700 at the time of the bankruptcy petition. The bankruptcy petition, which was obtained by the defendant's counsel, identified the plaintiff as an unsecured creditor.

By June, 2013, both parties had retained counsel who exchanged communications regarding their clients' respective claims related to the vehicle. In September, 2013, the plaintiff commenced the underlying action against the defendant, setting forth a claim of unjust enrichment⁸ and alleging that the defendant had violated CUTPA.⁹

On November 9, 2013, Scott, on the advice of his counsel, sold the car at an auction for $19,000. Although he had provided notice to Keithan and Wells Fargo, and published notice in a local newspaper, Scott did not provide notice of the auction to the plaintiff.

In December, 2016, the plaintiff filed the operative single count complaint¹⁰ alleging that the defendant had violated CUTPA by refusing to perform the work that had been paid for, i.e., by failing to install the modified engine in the car and by failing to provide the plaintiff, a lienholder, with statutory notice of the auction. A trial to the court took place on January 24, 25 and 26, 2017.

In its memorandum of decision, the court concluded that "[the plaintiff] has proven a violation of CUTPA,¹¹ has not proven the evil motive or malice necessary to award punitive damages and exercises its discretion by finding that the plaintiff is not entitled to an award of attorney's fees. Damages are awarded in the amount of $8300."

In declining to award punitive damages and attorney's fees, the court reasoned: "The court finds as a matter of fact that the plaintiff has not proven that [the defendant's] actions constituted a reckless indifference to the rights of [the plaintiff], an intentional and wanton violation of his rights, malice or evil. [The defendant] had been given an application for a title listing [the plaintiff] as a second position lienholder but had never been provided with the actual title. [The defendant] did make the effort to review Keithan's bankruptcy filing, which listed [the plaintiff] as an unsecured creditor. [The defendant] did consult with counsel before selling the vehicle at auction. The court cannot find, therefore, that [the defendant's] actions warrant punitive damages. For similar reasons, the court exercises its discretion and does not award [attorney's] fees to the plaintiff." This appeal followed.

On January 25, 2018, after filing the present appeal, the plaintiff filed a motion for articulation in which he requested that the trial court articulate the factual and legal basis for its decision declining to award attorney's fees. Specifically, the plaintiff requested that the court clarify its use of the phrase "for similar reasons" in its memorandum of decision.¹²

The court issued an articulation on February 15, 2018, in which it stated: "The use of the phrase ‘similar reasons’ was meant to signify that the court relied on the same reasons enumerated in the preceding sentences, to wit, ‘[the defendant] had been given an application for a title listing [the plaintiff] as a second position lienholder but had never been provided with the actual title. [The defendant] did make the effort to review Keithan's bankruptcy filing, which listed [the plaintiff] as an unsecured creditor. [The defendant] did consult with counsel before selling the vehicle at auction.’ " (Emphasis in original.)

We begin by setting forth the standard of review and legal principles that guide our analysis of the plaintiff's claim. General Statutes § 42-110g(d) provides in relevant part: "In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable [attorney's] fees based on the work reasonably performed by an attorney and not on the amount of recovery...." (Emphasis added.)

"Awarding ... attorney's fees under CUTPA is discretionary; General Statutes § 42–110g(a) and (d) ... 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.... The salient inquiry is whether the court could have reasonably concluded as it did.... [T]he term abuse of...