72 Conn. App. 817 | Conn. App. Ct. | 2002
The defendants,
This appeal stems from a purchase and sale agreement executed on September 15, 1999, by the plaintiffs, Paul Tanpiengco and Sharon Tanpiengco, for the purchase of real property owned by Maria Tasto located at 281 Chestnut Hill Road in KUlingworth. The listing broker was Shoreline Real Estate Company and Fappiano, as its agent, showed the property. The plaintiffs submitted $8000 to Tasto, representing the deposit on the property. On November 9, 1999, the plaintiffs rescinded the agreement because the state was taking a portion of the property and because it came to their attention that the property is surrounded by the former Killingworth municipal landfill.
On January 14, 2000, the plaintiffs brought a four count complaint, alleging, inter alia, violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
“It is well settled that whether a defendant’s acts constitute fraudulent misrepresentation, or deceptive or unfair trade practices under CUTPA, is a question of fact for the trier, to which, on appellate review, we accord our customary deference.” Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 505, 746 A.2d 1277 (2000). “[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Kenney v. Healey Ford-Lincoln-Mercury, Inc., 53 Conn. App. 327, 330, 730 A.2d 115 (1999). “The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court.” (Internal quotation marks omitted.) Ancona v. Manafort Bros., Inc., 56 Conn. App. 701, 715, 746 A.2d 184, cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000). Furthermore, “[t]he rule is that a seller may not, under the circumstances, have a duty to speak, although if he does assume to speak, he must make a full and fair disclosure as to the matters upon which he assumes to speak. He must avoid deliberate nondisclosures.” Catucci v. Ouellette, 25 Conn. App. 56, 59, 592 A.2d 962 (1991).
After reciting the “cigarette rule,” which is the standard by which Connecticut courts measure whether conduct is unfair under CUTPA; see, e.g., Murray v.
The defendants also challenge the court’s damages award. Specifically, they argue that the court improperly awarded punitive damages in the amount of $20,000 because (1) actual damages were only $2447.54, (2) the damages arose out of the plaintiffs’ unilateral rescission of the contract and (3) their decision to rescind was based on other factors in addition to the misrepresentation of the character of the surrounding land. The court, however, clearly based the award on the CUTPA claim.
“A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he [or she] must establish that the conduct at issue constitutes an unfair or deceptive trade practice. . . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered.” (Internal quotation marks omitted.) Reader v. Cassar-ino, 51 Conn. App. 292, 299, 721 A.2d 911 (1998). In addition, “[a]warding punitive damages and attorney’s fees under CUTPA is discretionary . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice
Because there was evidence that the defendants deliberately misrepresented the character of the surrounding property, we conclude that the court did not abuse its discretion in awarding punitive damages, attorney’s fees and costs as to the plaintiffs’ CUTPA claims.
The judgment is affirmed.
The named defendant, Maria Tasto, is not a party to this appeal. We refer in this opinion to Christine Fappiano and Shoreline Real Estate Company as the defendants.
The defendants’ claims on appeal can be restated as follows. The court improperly (1) found that they had misrepresented a material fact and (2) awarded punitive damages in the amount of $20,000 when the plaintiffs (a) never purchased the property at issue, (b) demonstrated actual damages of only $2447.54 and (c) unilaterally rescinded the contract.
The remaining three counts are not at issue in this appeal. Because the defendants appeal from only the third count of the complaint, we limit our analysis to the court’s finding of a CUTPA violation.