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De Auto Transport, Inc. v. Eurolite, LLC

Court of Appeals of Connecticut

November 27, 2018

DE AUTO TRANSPORT, INC.
v.
EUROLITE, LLC, ET AL.

          Argued October 16, 2018

         Procedural History

         Action to recover damages for wrongful repossession, conversion, and statutory theft, and for other relief, brought to the Superior Court in the judicial district of New Britain and tried to the court, Wiese, J.; judgment for the defendants, from which the plaintiff appealed to this court. Affirmed.

          Robert T. Rimmer, for the appellant (plaintiff).

          Paul A. Catalano, for the appellees (defendants).

          Lavine, Alvord and Moll, Js.

          OPINION

          PER CURIAM.

         The plaintiff, DE Auto Transport, Inc., appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendants, Eurolite, LLC (Eurolite), and Leopold Zayaczkowski. On appeal, the plaintiff claims that the trial court erred in its damages analysis. We disagree and, accordingly, 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 the plaintiffs claims on appeal. In 2008, Dariusz Penkiewicz (Dariusz) and Elzbieta Penkiewicz (Elzbieta), who were married at the time, formed the plaintiff, which provided motor vehicle services, including the transportation of vehicles. In 2011, the plaintiff had four transport vehicles. Dariusz and Zayaczkowski, on behalf of Eurolite, entered into an oral agreement whereby Eurolite would loan up to $50, 000 for Dariusz to purchase a larger truck and trailer for the plaintiff. Under the terms of the agreement, the plaintiff would make payments on the loan for thirty-six months at an interest rate of 14 percent. In addition, Eurolite would receive 40 percent of the profits and the plaintiff would receive 60 percent of the profits resulting from the use of the truck and trailer for the thirty-six month term. Dariusz subsequently purchased a 2005 Peterbuilt truck for $23, 500 and a Cottrell trailer for $25, 000. Eurolite provided the funds for the purchase, and the parties agreed on a printed loan amortization schedule. The total amount borrowed was $48, 500. The plaintiff made its first payment on the loan in March, 2011.

         In February, 2012, Dariusz left the United States to return to Poland because he was concerned about being deported. His absence adversely affected the business operations of the plaintiff. He did not return to the United States until January, 2014. During the time of his absence, it was Elzbieta's responsibility to manage the plaintiff. On April 27, 2013, Elzbieta contacted the police to report that the Peterbuilt truck and trailer had been wrongfully repossessed by Eurolite. Eurolite subsequently returned the Peterbuilt truck and trailer, at the direction of the police, but repossessed the Peterbuilt truck and trailer again a few days later. In May, 2013, Elzbieta learned that Dariusz had been having an extramarital affair, and had a wife and child in Poland. Elzbieta shortly thereafter liquidated the plaintiff and sold its remaining assets. She relocated to Florida, divorced Dariusz, and remarried in December, 2013.

         On July 12, 2013, the plaintiff served a complaint on the defendants, which alleged claims of wrongful repossession, conversion, and statutory theft.[1] A trial to the court took place on February 25 and 26, 2016. On November 18, 2016, the court issued its memorandum of decision and rendered judgment in favor of the defendants. The court concluded that "[e]ven assuming that [the plaintiff] has sustained its burden to prove liability under one or more of the various counts of its complaint, the court finds that it has still failed to prove causation and damages." In reaching its conclusion, the court determined that "[t]he liquidation of [the plaintiff] was not caused by a repossession of the Peterbuilt truck and trailer. Rather, it occurred as a result of a combination of other events," such as "declining business revenues, [Dariusz'] return to Poland, the divorce and [Elzbieta's] desire to relocate to Florida, remarry and start her life over."

         On appeal, the plaintiff claims that the trial court, having assumed liability, erred in failing to award damages.[2] Specifically, the plaintiff argues that the court "[failed] to analyze the amount of harm . . . caused by the defendants' wrongful repossession, conversion and statutory theft of the [Peterbuilt truck] and trailer."[3]We disagree.

         "The legal principles that govern our review of damage awards are well established. It is axiomatic that the burden of proving damages is on the party claiming them. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty. . . . [T]he court must have evidence by which it can calculate the damages, which is not merely subjective or speculative . . . but which allows for some objective ascertainment of the amount. . . . This certainly does not mean that mathematical exactitude is a precondition to an award of damages, but we do require that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation [that] will enable the trier to make a fair and reasonable estimate. . . . Evidence is considered speculative when there is no documentation or detail in support of it and when the party relies on subjective opinion. . . . The trial court's determination that damages have not been proved to a reasonable certainty is reviewed under a clearly erroneous standard." (Citations omitted; internal quotation marks omitted.) Weiss v. Smulders, 313 Conn. 227, 253-54, 96 A.3d 1175 (2014).

         At oral argument before this court, the plaintiff contended that there were three types of damages that the trial court could have awarded: (1) lost profits, (2) the value of the Peterbuilt truck, and (3) payments made to Eurolite.[4] At trial, however, the plaintiff did not claim damages related to the value of the Peterbuilt truck or payments made to Eurolite.[5] Therefore, we decline to review these two claims on appeal. See DiMiceli v. Cheshire, 162 Conn.App. 216, 229-30, 131 A.3d 771 (2016) ("Our appellate courts, as a general practice, will not review claims made for the ...


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