Nielsen v. Wisniewski

628 A.2d 25, 32 Conn. App. 133, 1993 Conn. App. LEXIS 328
CourtConnecticut Appellate Court
DecidedJuly 20, 1993
Docket11371
StatusPublished
Cited by18 cases

This text of 628 A.2d 25 (Nielsen v. Wisniewski) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nielsen v. Wisniewski, 628 A.2d 25, 32 Conn. App. 133, 1993 Conn. App. LEXIS 328 (Colo. Ct. App. 1993).

Opinion

Foti, J.

The defendants1 appeal from the judgment rendered in favor of the plaintiffs, Richard Nielsen and Joy Nielsen. Following a six day trial before an attorney trial referee; see General Statutes § 52-434 (a) (4); Practice Book § 428 et seq.; the trial court accepted the reported findings and rendered judgment. On appeal, the defendants claim that the trial court improperly (1) awarded punitive damages, (2) awarded interest retroactively, and (3) allowed the attorney trial referee to rule on a motion to correct. We agree with the defendants’ second claim and reverse in part.

The evidence introduced at trial supports the following facts. In November, 1983, the plaintiffs entered into an oral contract with the defendants to lease a third floor apartment at 256 Washington Boulevard in Stamford. The defendants owned that building and several other residential properties and were in the business of renting residential properties. The plaintiffs, along with their four young children, took possession of the apartment. At the time, the plaintiffs were aware that the premises needed substantial renovation. For a long period before and after the plaintiffs moved in, the condition of the leased premises had been in substantial violation of health and safety codes, despite numerous written warnings to the defendants. Among the numerous violations was the lack of smoke detectors on the premises.

[135]*135The plaintiffs paid a $450 security deposit under the lease. The parties agreed on an initial rent of $250 a month until the defendants completed repairs within approximately three months, after which the parties agreed that the rent would increase and rent subsidies would supplement the plaintiffs’ payments.

In February, 1984, after the defendants had failed to perform the agreed repairs, the parties entered into a new agreement by which the plaintiffs were to perform much of the repair work using materials supplied by the defendants. These repairs would not include electrical work. The plaintiffs performed such repairs as they were able through June, 1984. The defendants failed, however, to supply necessary materials and skilled labor. By August, 1984, the relationship between the parties had broken down,2 and the defendants served the plaintiffs a notice to quit possession because of nonpayment of rent. A summary process trial in November, 1984, resulted in judgment being rendered for the plaintiffs; the defendants in the present case were found not to be entitled to collect rent because of the substandard condition of the premises. During the entire period of the plaintiffs’ occupancy,3 from November, 1983, through February, 1985, the leased premises was in substantial violation of Stamford’s health and safety code, lacked a certificate of apartment occupancy, and was not an apartment that the defendants were legally entitled to rent. The condition of the apartment was not improved significantly after August, 1984.

Following the judgment in the summary process action, the defendants engaged in a continuing pattern [136]*136of wrongful conduct with respect to the plaintiffs and the apartment they occupied. Among other actions, the defendants shut off the plaintiffs’ gas and electricity, which they used for heat, hot water and cooking. The defendants also cut an electric line that the plaintiffs had installed for substitute electrical service after the defendants had shut off the regular service. The defendants locked the utility control area of the basement thereby preventing the plaintiffs from taking any action to restore the utility services. None of the utility shutoffs resulted from any failure of the plaintiffs to pay their utility bills.

In addition to being deprived of essential utilities, the plaintiffs were deprived of their quiet enjoyment of the apartment and suffered distress and anxiety about their welfare. The named plaintiff sustained a reduction of his income as a result of the time he spent dealing with the defendants’ wrongful conduct.

In February, 1985, the building at 256 Washington Boulevard was condemned, and the plaintiffs were relocated. At no time did the defendants return the plaintiffs’ security deposit or pay them interest on it; the defendants never notified the plaintiffs as to any disposition of the security deposit. At all times, the defendants had actual knowledge of an address to which they could send mail to the plaintiffs after they had vacated the apartment.

The court adopted the attorney trial referee’s corrected report, hTwhich the referee found violations of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 47a-21, which controls the handling of security deposits; and General Statutes § 47a-4 et seq., which controls the acceptance of rent for an uninhabitable apartment lacking a certificate of apartment occu[137]*137pancy. The trial court awarded the plaintiffs damages4 in the amount of $13,566, punitive damages in the amount of $60,000, counsel fees in the amount of $25,000, interest on the damages and punitive damages at the legal rate from February 28, 1985, to the date that the judgment is fully satisfied, interest on counsel fees at the legal rate from October 4, 1991, to the date the judgment is fully satisfied, and costs of the action.

I

The defendants first claim that the trial court improperly awarded punitive damages pursuant to General Statutes § 42-1 lOg because there was no specific finding of malicious or evil motive or that the defendants’ conduct was reckless, indifferent, intentional, wanton or violent. They argue that the conduct found to have taken place is insufficient to justify punitive damages without a specific finding that uses the words reckless, indifferent, intentional, wanton or violent. They further argue that the trial court’s failure to specify what standard of proof it was applying, and the attorney trial referee’s application of an elevated “clear and convincing evidence” standard somehow reflects on the requirement of a specific finding. We disagree.

Clear and convincing proof is not the appropriate standard of proof whenever claims of tortious conduct have serious consequences or require the proof of willful, wrongful or unlawful acts. Our Supreme Court has stated that “[ajbsent evidence of legislative intent to the contrary, we continue to presume that when a statutory private right of action includes multiple damages, the plaintiff’s burden of proof is the same as that in other tort cases.” Freeman v. Alamo Management Co., 221 Conn. 674, 683, 607 A.2d 370 (1992). The ordi[138]*138nary preponderance of the evidence standard was thus appropriate here. Id., 678. The attorney trial referee’s application of a higher burden of proof than was required is not relevant to the issue presented on appeal; nor is it relevant that the trial court, in adopting the report and incorporating the referee’s findings, did not indicate the standard of proof it employed.

“Awarding punitive damages and 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.” (Citation omitted.) Gargano v. Heyman, 203 Conn.

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Cite This Page — Counsel Stack

Bluebook (online)
628 A.2d 25, 32 Conn. App. 133, 1993 Conn. App. LEXIS 328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nielsen-v-wisniewski-connappct-1993.