Pointe Residential Builders BH, LLC v. TMP Construction Group, LLC ( 2022 )

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POINTE RESIDENTIAL BUILDERS BH, LLC v. TMP
CONSTRUCTION GROUP, LLC, ET AL.
(AC 44063)
Alvord, Prescott and Clark, Js.
Syllabus
The plaintiff general contractor sought to recover damages for, inter alia, an
alleged violation of the Connecticut Unfair Trade Practices Act (CUTPA)
(§ 42-110a et seq.), in connection with a breach of contract claim between
the plaintiff and the defendants, a subcontractor, T Co., and its manager,
P. Under the contract, T Co. was to perform certain work on a construc-
tion project to build a condominium complex at a fixed sum. Although
the contract called for payment upon delivery for furnished materials
and equipment, the defendants convinced the plaintiff to pay a 30 percent
deposit for all of the estimated costs of materials and equipment up
front, claiming that the deposit would be used to buy materials ahead
of time to avoid an anticipated price increase and to avoid delivery
delays. Unknown to the plaintiff, the defendants did not intend to use
these funds as promised but, instead, intended to use the funds to finance
its payroll and work on other projects. When the invoices for supplies
remained unpaid by the defendants, a mechanic’s lien was placed on
the property and, thereafter, the plaintiff terminated the contract. The
trial court concluded that the defendants breached the contract, inter
alia, in failing to perform the work and to pay for materials, equipment
and labor used, and that the defendants were unjustly enriched. It also
found the defendants’ conduct was deceptive, unethical and unscrupu-
lous and constituted an unfair and deceptive business practice in viola-
tion of CUTPA. On the defendants’ appeal to this court, held:
1. Contrary to the defendants’ claims, there was sufficient evidence of inten-
tional, reckless, unethical and unscrupulous conduct by both defendants
to establish a violation of CUTPA: the record supported a finding that P,
as the manager and controlling member of T Co., knowingly or recklessly
engaged in the unscrupulous acts, because he personally represented
to the plaintiff that the deposit would be used for materials, labor, and
overhead for the plaintiff’s project, and P controlled how the deposit
was ultimately spent; moreover, the court’s finding of ascertainable loss
was not clearly erroneous, as the court expressly found that, although
the plaintiff deposited a certain sum of money, the plaintiff only received
value in completed work in an amount less than the deposit and, accord-
ingly, there was little question that the difference between the money
paid and the value received constituted an ascertainable loss for the
purposes of CUTPA.
2. The court did not abuse its discretion in awarding the plaintiff punitive
damages, as the evidence sufficiently supported the court’s findings that
the defendants’ false representations to the plaintiff that the deposit
would be used to purchase materials and rent equipment was intentional,
deceptive, unethical, and unscrupulous and that the defendants fully
intended to use the deposit to fulfill obligations under other projects
unrelated to the plaintiff’s project; moreover, the record also supported
the court’s finding that it was known to P that T Co. was in a shaky
financial condition when it convinced the plaintiff to pay the deposit and,
thus, these findings supported the court’s conclusion that the defendants
acted with reckless indifference to the plaintiff’s rights; furthermore,
the court did not abuse its discretion in awarding attorney’s fees to the
plaintiff, as the court properly found that the defendants violated CUTPA.
Argued November 17, 2021—officially released June 28, 2022
Procedural History
Action to recover damages for, inter alia, a violation
of the Connecticut Unfair Trade Practices Act, brought
to the Superior Court in the judicial district of Stamford-
Norwalk and tried to the court, Hon. Edward T. Kru-
meich II, judge trial referee; judgment for the plaintiff,
from which the defendants appealed to this court; there-
after, the court, Hon. Edward T. Krumeich II, judge
trial referee, awarded attorney’s fees and costs to the
plaintiff, and the defendants filed an amended appeal.
Affirmed.
James Colin Mulholland, for the appellants (defen-
dants).
Opinion
CLARK, J. This appeal arises out of a contract for the
construction of a condominium complex in Greenwich.
The defendants, TMP Construction Group, LLC (TMP),
and Olin Paige III, appeal from the judgment of the
trial court, rendered in favor of the plaintiff, Pointe
Residential Builders BH, LLC,1 following a trial to the
court. On appeal, the defendants claim that the court
erred by rendering judgment for the plaintiff with
respect to the plaintiff’s count alleging a violation of
the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq., and the plaintiff’s
count alleging unjust enrichment. We conclude that the
court did not improperly render judgment on the plain-
tiff’s CUTPA claim. In light of this conclusion, we need
not address the defendants’ claims pertaining to the
unjust enrichment claim.2 Accordingly, the judgment of
the trial court is affirmed.
The following procedural history and facts, as found
by the trial court, are relevant to this appeal. In a three
count complaint dated June 1, 2018, the plaintiff alleged
that the defendants breached a construction contract
between the parties, that the defendants were unjustly
enriched, and that they violated CUTPA. Following a
trial to the court, the court issued a memorandum of
decision on February 18, 2020. The court found that
the plaintiff, as general contractor, entered into a con-
struction contract with TMP, as subcontractor, dated
December 8, 2016 (contract), in relation to the construc-
tion of a condominium complex in Greenwich (project).
At the time, Paige was the manager and controlling
member of TMP. Under the contract, TMP was to per-
form certain work on the project at a fixed contract sum
of $1,071,500. Although the contract called for payment
upon delivery for furnished materials and equipment
stored on-site, TMP convinced the plaintiff to pay an
upfront 30 percent deposit for all of the estimated costs
of materials and equipment by representing that those
funds would be used to buy the materials ahead of time
to avoid an anticipated 20 percent price increase on
drywall and to avoid delays on the delivery of material
needed for the first few weeks on the job. Relying on
these representations, the plaintiff paid TMP
$305,377.50 on December 13, 2016, which had been
requisitioned by TMP for ‘‘material procurement’’.
Unknown to the plaintiff (but known to the defen-
dants), TMP was ‘‘in a shaky financial condition’’ when
it persuaded the plaintiff to pay the deposit. The court
found that ‘‘TMP did not intend to use these funds to
acquire materials and equipment for the project but,
instead, intended to use the funds to finance its payroll
and work on other projects.’’3 In particular, TMP
intended to use the funds from the deposit to fund its
obligations under an unrelated subcontract with Viking
Construction, Inc. (Viking), dated December 27, 2016,
for a project in Bridgeport (Bridgeport project) that
would occur simultaneously with the project that is the
subject of this appeal.
The court found that ‘‘TMP’s financial house of cards
came tumbling down’’ when Viking demanded that TMP
increase its workforce on the Bridgeport project. The
court stated: ‘‘Unlike the contract with [the plaintiff],
[TMP’s] subcontract with Viking was not frontloaded
and TMP was paid on a thirty day net basis, based on
detailed payment requisition forms. When it increased
its labor force in response to Viking’s demands, TMP
could not carry its payroll. TMP also was not able to
pay its principal materialman, Marjam Supply Company
(‘Marjam’), which also supplied materials for the proj-
ect. When Viking refused to pay TMP and later termi-
nated its subcontract in May, 2017, TMP used the bal-
ance of funds in its account to make payroll. Paige
decided the remaining funds would not be used to pay
state and federal taxes or to pay its suppliers. Marjam
had a balance due on the Bridgeport project of $147,000.
Marjam was owed $70,617.32 on the project for materi-
als delivered but not paid for by TMP. Marjam placed
a mechanic’s lien in that amount on the property . . . .
The mechanic’s lien has not been released, remains on
the property and is subject to a pending foreclosure
action . . . to which [the plaintiff] is not a party.’’ Due
to TMP’s failure to perform in accordance with the
contract, the plaintiff sent TMP notices of default on
June 22 and December 12, 2017. The contract ultimately
was terminated by the plaintiff on December 17, 2017.
With respect to the breach of contract claim, the
court concluded that the contract was properly termi-
nated and that TMP breached the contract by its failure
(1) to perform the work, and to promptly cure defaults
upon written notice, (2) to pay the difference between
the value of the completed work and the amounts requi-
sitioned and paid to TMP, (3) to pay for materials,
equipment and labor used in the period covered by the
requisitions, and (4) to furnish satisfactory evidence of
completed work upon request by the plaintiff. The
court, however, concluded that the plaintiff failed to
satisfy its burden of proving damages in accordance
with the provision of the contract entitling it to replace-
ment costs, stating that the ‘‘witnesses’ estimate of
‘approximately $500,000’ premium paid to replacement
subcontractors seems to have been a guess plucked out
of the air and is not credible.’’
The court also found that TMP was unjustly enriched.
It found that ‘‘[u]nder the circumstances here, the injus-
tice was TMP’s deceiving [the plaintiff] into paying a
deposit not required under the contract and requisiti-
oned in violation of contract terms and under false
pretenses. TMP and Paige never intended to use the
deposit to order materials and equipment for the project
as represented. There is no remedy under the contract
for restitution of the deposit wrongfully requisitioned.’’4
As to the CUTPA claim, the court found that the
defendants’ conduct was ‘‘deceptive, unethical and
unscrupulous and constituted an unfair and deceptive
business practice’’ in violation of the statute. It found
that ‘‘Paige was aware the deposit was requisitioned
for material procurement for the project but was not
intended or used for the purposes represented, but
failed to disclose this contrary intention to [the plain-
tiff]. Paige used the funds provided by [the plaintiff] to
pay other expenses of TMP unrelated to the project.
Moreover, the financial circumstances and needs of
TMP were such that Paige was aware that TMP would
not be able to finish the project or pay [the plaintiff]
back if TMP’s expenses grew or cash flow was disrupted
and recklessly exposed [the plaintiff] to this risk.’’
The court found that ‘‘[t]he damages for unjust enrich-
ment and the actual damages recoverable under CUTPA
. . . are the same under the facts proven here: $224,878,
the net of the $305,378 deposit paid less the $80,500
stated value in the requisition for [the] completed work.
This sum represents the unjust benefit received by TMP
and also equals the actual loss sustained by [the plain-
tiff] . . . .’’ The court also awarded punitive damages
pursuant to General Statutes § 42-110g (a) in the amount
of $225,000 because it found that the ‘‘defendants’ con-
duct in requisitioning a deposit specifically for material
purchases with the intention of diverting the funds for
other uses and depleting the funds for purposes unre-
lated to the project was intentional, wilful and done
with reckless indifference to [the plaintiff’s] rights.’’ In
concluding that the plaintiff proved its CUTPA claim,
the court exercised its discretion and awarded reason-
able attorney’s fees. In its memorandum of decision,
the court ordered the plaintiff to submit an affidavit as
to fees and costs.5 The court rendered judgment in the
amount of $463,519.77, in favor of the plaintiff on Febru-
ary 18, 2020. This appeal followed. Additional facts will
be set forth as necessary.
On appeal, the defendants make various claims per-
taining to the court’s judgment in favor of the plaintiff
on its CUTPA claim. The defendants argue that (1)
the evidence does not support a finding that either
defendant engaged in aggravating unscrupulous con-
duct, that Paige knowingly or recklessly engaged in
unfair or unscrupulous acts with respect to TMP’s tak-
ing of the deposit, that the plaintiff suffered any ascer-
tainable loss of money or property due to a CUTPA
violation, or that either defendant engaged in conduct
or practices that violated the so-called cigarette rule;
and (2) that the court abused its discretion by awarding
the plaintiff ‘‘double’’ damages and attorney’s fees and
costs. We disagree.
We turn now to the legal principles that guide our
resolution of the defendants’ claims. CUTPA provides
that: ‘‘No person shall engage in unfair methods of com-
petition and unfair or deceptive acts or practices in the
conduct of any trade or commerce.’’ General Statutes
§ 42-110b (a). ‘‘Any person who suffers any ascertain-
able loss of money . . . as a result of the use or employ-
ment of a method, act or practice prohibited by section
42-110b, may bring an action . . . to recover actual
damages. . . .’’ General Statutes § 42-110g (a).
‘‘[I]n determining whether a practice violates CUTPA
we have adopted the criteria [previously] set [forth] in
the cigarette rule by the [Federal Trade Commission]
for determining when a practice is unfair: (1) [w]hether
the practice, without necessarily having been pre-
viously considered unlawful, offends public policy as
it has been established by statutes, the common law,
or otherwise—in other words, it is within at least the
penumbra of some [common-law], statutory, or other
established concept of unfairness; (2) whether it is
immoral, unethical, oppressive, or unscrupulous; [or]
(3) whether it causes substantial injury to consumers,
[competitors or other businesspersons].’’ (Internal quo-
tation marks omitted.) Kent Literary Club of Wesleyan
University v. Wesleyan University, 338 Conn. 189, 232,
257 A.3d 874 (2021).
‘‘It is well settled that whether a defendant’s acts
constitute . . . 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. . . . [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 sup-
ported by the evidence or whether, in light of the evi-
dence and the pleadings in the whole record, those
facts are clearly erroneous.’’ (Internal quotation marks
omitted.) Pedrini v. Kiltonic, 170 Conn. App. 343, 353,
154 A.3d 1037, cert. denied, 325 Conn. 903, 155 A.3d
1270 (2017). ‘‘In reviewing factual findings, [w]e do not
examine the record to determine whether the [court]
could have reached a conclusion other than the one
reached. . . . Instead, we make every reasonable pre-
sumption . . . in favor of the trial court’s ruling.’’
(Internal quotation marks omitted.) Landmark Invest-
ment Group, LLC v. Chung Family Realty Partnership,
LLC, 125 Conn. App. 678, 694–95, 10 A.3d 61 (2010),
cert. denied, 300 Conn. 914, 13 A.3d 1100 (2011). ‘‘A
court’s determination is clearly erroneous only in cases
in which the record contains no evidence to support it,
or in cases in which there is evidence, but the reviewing
court is left with the definite and firm conviction that
a mistake has been made.’’ (Emphasis omitted; internal
quotation marks omitted.) Osborn v. Waterbury, 197
Conn. App. 476, 482, 232 A.3d 134 (2020), cert. denied,
336 Conn. 903, 242 A.3d 1010 (2021).
I
We first address the defendants’ claim that the trial
court improperly found that both TMP and Paige, in his
individual capacity, had violated CUTPA. Specifically,
they claim that the record does not support a finding of
aggravating unscrupulous conduct by either defendant
and that the evidence does not support a finding that
Paige ‘‘knowingly or recklessly’’ engaged in unfair or
unscrupulous acts. They further contend that the
court’s finding that the plaintiff suffered an ascertain-
able loss due to a CUTPA violation was clearly errone-
ous. We disagree.
In cases involving claims of breach of contract, our
courts repeatedly have held that the same facts that
establish a breach of contract claim may be sufficient
to establish a CUTPA violation. See Ulbrich v. Groth,
310 Conn. 375, 410, 78 A.3d 76 (2013); see also Medical
Device Solutions, LLC v. Aferzon, 207 Conn. App. 707,
777, 264 A.3d 130, cert. denied, 340 Conn. 911, 264 A.3d
94 (2021). That being said, ‘‘not every contractual
breach will rise to the level of a CUTPA violation.’’
(Internal quotation marks omitted.) Naples v. Keystone
Building & Development Corp., 295 Conn. 214, 228,
990 A.2d 326 (2010). ‘‘In the absence of aggravating
unscrupulous conduct, mere incompetence [in per-
forming a contract] does not by itself mandate a trial
court to find a CUTPA violation.’’ Id., 229. In cases
where the facts that establish a breach of contract are
the same as those relied on to support a CUTPA claim,
‘‘our focus . . . has been on whether the defendant’s
breach of contract was merely negligent or incompe-
tent, in which case the CUTPA claim was barred, or
whether the defendant’s actions would support a find-
ing of intentional, reckless, unethical or unscrupulous
conduct, in which case the contractual breach will sup-
port a CUTPA claim under the second prong of the
cigarette rule.’’ (Emphasis added.) Ulbrich v. Groth,
supra, 410; see also IN Energy Solutions, Inc. v. Realgy,
LLC, 114 Conn. App. 262, 274–75, 969 A.2d 807 (2009)
(breach of sales contract did not constitute CUTPA
violation when trial court specifically found that plain-
tiff failed to prove that defendant’s breach was unethi-
cal, unscrupulous, wilful or reckless).
With respect to whether and under what circum-
stances an individual may be held liable under CUTPA,
our Supreme Court has made clear that ‘‘[t]he plain
language of § 42-110b clearly indicates that an individ-
ual can be liable for a CUTPA violation.’’ Joseph General
Contracting, Inc. v. Couto, 317 Conn. 565, 587, 119 A.3d
570 (2015). ‘‘In order for any individual liability to attach
under CUTPA, someone must knowingly or recklessly
engage in unfair or unscrupulous acts, as contemplated
by the statute, in the conduct of a trade or business.’’ Id.,
592. To prevail on a CUTPA claim against an individual
based on a business entity’s conduct, a plaintiff must
prove ‘‘(1) the entity’s violation of CUTPA; (2) the indi-
vidual’s participation in the acts or practices, or the
authority to control them; and (3) the individual’s
knowledge of the wrongdoing at issue.’’ Onofrio v. Min-
eri, 207 Conn. App. 630, 643, 263 A.3d 857 (2021).
The following additional facts, as found by the trial
court, are relevant to our disposition of the defendants’
claims. The court found that Paige, who was the man-
ager and controlling member of TMP, was aware that
TMP requisitioned the deposit for the purported reason
that TMP needed that money for material procurement
for the project but that TMP, in fact, did not intend to
use the deposit for the purposes represented, and that
he failed to disclose this contrary intention to the plain-
tiff. The court found that the ‘‘defendants’ conduct in
requisitioning a deposit specifically for material pur-
chases with the intention of diverting the funds for other
uses and depleting the funds for purposes unrelated
to the project was intentional, willful and done with
reckless indifference to the [plaintiff’s] rights.’’ ‘‘More-
over, the financial circumstances and needs of TMP
were such that Paige was aware that TMP would not
be able to finish the project or pay [the plaintiff] back
if TMP’s expenses grew or cash flow was disrupted
and recklessly exposed [the plaintiff] to this risk.’’ If
necessary, the defendants would use strategic defaults
on payments to suppliers to extend credit terms until
more cash came into TMP’s account. Later, Paige sought
to shift supplier costs to the plaintiff and to Viking
by involving the contractors in material purchases and
equipment rental.6 The court further found that ‘‘TMP’s
and Paige’s business plan and practice to finance the
project, the Viking project, and various other ongoing
projects, was literally ‘robbing Peter to pay Paul,’ ’’ find-
ing that this conduct was ‘‘deceptive, unethical and
unscrupulous.’’
The defendants argue that the ‘‘evidence does not
support a finding of aggravating unscrupulous conduct
by either defendant.’’ They also contend that ‘‘without
addressing the aggravation factor,’’ the court improp-
erly held against the defendants on the CUTPA claim.
First, the defendants’ contention that the court did
not address the ‘‘aggravating’’ nature of their conduct
lacks any merit. The court’s memorandum of decision
goes to great lengths to detail the defendants’ conduct,
which it ultimately found to be, inter alia, intentional,
deceptive, unethical, and unscrupulous, in that the
defendants fully intended for TMP to use the plaintiff’s
deposit for materials and equipment to fulfill its obliga-
tions on other projects unrelated to the plaintiff’s proj-
ect, despite the defendants’ representations to the con-
trary. The court also found that Paige was aware of the
purported reasons given for the deposit but nonetheless
‘‘used the funds provided by [the plaintiff] to pay other
expenses of TMP unrelated to the project.’’ Accordingly,
to say that the court did not address the ‘‘aggravation
factor’’ is simply incorrect.
Turning our attention to the court’s findings as to the
aggravating unscrupulous conduct of both TMP and
Paige, we conclude that there is sufficient evidence in
the record to support those findings. The record, which
includes both documentary and testimonial evidence,
discloses, inter alia, that upon request from TMP, the
plaintiff paid to TMP an up-front deposit in the amount
of $305,377.50, despite the fact that the contract
between the parties did not require any deposit. E-mails
admitted into evidence, in addition to testimony at trial,
show that TMP represented to the plaintiff that it
needed this money up front in order to secure materials
for the project, including for the purpose of buying
drywall before prices went up ‘‘another 20 [percent] in
January.’’ Daniel Goldstone, the managing director for
the plaintiff, testified at trial that the deposit was
requested to ‘‘purchase materials’’ for the project. Paige
himself confirmed at trial that he represented ‘‘to [Gold-
stone] directly . . . that we required a deposit on the
job because we’re not a big company. . . . It was
intended to support that project to get it off the ground
and continue it through whether that be labor, material,
overhead, whatever it took to get to the next step.’’
Despite TMP’s representations, the record shows that
TMP did not use the deposit money for materials on
the project. Goldstone testified that he learned months
after making the deposit that TMP had failed to pay
Marjam, the company that TMP contracted with to
secure the materials for the project, for the materials
needed for project. In light of this nonpayment, Marjam
placed a mechanic’s lien on the property.
Goldstone further testified that when he confronted
Paige regarding this nonpayment, Paige admitted that
TMP did not pay Marjam and that it used the deposit
money ‘‘to fund payroll for . . . other projects in hopes
that he would be able to complete those projects and
be able to put the money back into our project to pay
for those materials.’’ Paige himself confirmed in his
testimony at trial that he requested the deposit to get
the project ‘‘off the ground and continue it through
whether that be labor, material, overhead, whatever it
took to get to the next step,’’ but nevertheless testified
that, because TMP did not get ‘‘paid hundreds of thou-
sands of dollars for payroll’’ on the Viking project, TMP
‘‘elected to take the remaining funds from the TMP
account and pay all of our employees.’’ After discussing
with Paige these nonpayment issues and other nonper-
formance issues, the plaintiff sent a formal default letter
to TMP on June 22, 2017. Goldstone testified that TMP
failed to cure any items identified in the letter, which
prompted the plaintiff to terminate the contract.
According to Goldstone, ‘‘[b]asically everything that
[TMP was] contracted to do was not complete, so in
essence everything needed to be completed.’’
In light of the foregoing, in addition to other evidence
in the record, we conclude that there is sufficient evi-
dence of intentional, reckless, unethical or unscrupu-
lous conduct to establish a violation of CUTPA under
the second prong of the cigarette rule. See Ulbrich v.
Groth, supra, 310 Conn. 410 (‘‘our focus in such cases
has been on whether the defendant’s breach of contract
was merely negligent or incompetent, in which case the
CUTPA claim was barred, or whether the defendant’s
actions would support a finding of intentional, reckless,
unethical or unscrupulous conduct, in which case the
contractual breach will support a CUTPA claim under
the second prong of the cigarette rule’’). The evidence
also supports a finding that Paige knowingly or reck-
lessly engaged in the unscrupulous acts, as he was the
manager and controlling member of TMP; he personally
represented to the plaintiff that the deposit would be
used for materials, labor, and overhead for the plaintiff’s
project; and he controlled how the deposit was ulti-
mately spent. We accordingly cannot conclude that the
court’s findings are clearly erroneous.
The defendants also argue that it was clearly errone-
ous for the court to render judgment against them pur-
suant to CUTPA because the evidence does not support
a finding that the plaintiff suffered any ascertainable
loss of money or property due to a CUTPA violation.
This claim lacks merit.
‘‘[T]o be entitled to any relief under CUTPA, a plaintiff
must first prove that he has suffered an ascertainable
loss due to a CUTPA violation. . . . CUTPA, however,
is not limited to providing redress only for consumers
who can put a precise dollars and cents figure on their
loss . . . as the ascertainable loss provision do[es] not
require a plaintiff to prove a specific amount of actual
damages in order to make out a prima facie case. . . .
Rather . . . [d]amage . . . is only a species of loss
. . . hence [t]he term loss necessarily encompasses a
broader meaning than the term damage. . . . Accord-
ingly . . . for purposes of § 42-110g, an ascertainable
loss is a deprivation, detriment [or] injury that is capable
of being discovered, observed or established. . . . [A]
loss is ascertainable if it is measurable even though the
precise amount of the loss is not known. . . . Under
CUTPA, there is no need to allege or prove the amount
of the actual loss.’’ (Emphasis omitted; internal quota-
tion marks omitted.) Kelly v. Kurtz, 193 Conn. App.
507, 536–37, 219 A.3d 948 (2019). ‘‘Of course, a plaintiff
still must marshal some evidence of ascertainable loss
in support of [its] CUTPA allegations, and a failure to
do so is indeed fatal to a CUTPA claim . . . .’’ (Internal
quotation marks omitted.) Herron v. Daniels, 208 Conn.
App. 75, 100, 264 A.3d 184 (2021).
The court expressly found that, although the plaintiff
made a deposit in the amount of $305,378, the plaintiff
only received value in completed work in the amount of
$80,500. There can be little question that the difference
between the money paid and the value received consti-
tuted an ascertainable loss for purposes of CUTPA.
Because the court’s findings are supported by evidence
in the record, we cannot conclude that the court’s find-
ing of ascertainable loss was clearly erroneous.
II
The defendants next claim that the court abused its
discretion by ordering the defendants to pay ‘‘double
damages’’ under CUTPA. They also contend the court’s
award of counsel fees cannot stand because there was
no proven CUTPA claim. For the reasons set forth
herein, we disagree.
The court awarded the plaintiff $224,878 in compen-
satory damages for the differential between the deposit
paid by the plaintiff and the value of the work actually
provided by TMP. The court also ordered the defen-
dants to pay an additional $225,000 in punitive damages
because the court found ‘‘that the defendants’ conduct
in requisitioning a deposit specifically for material pur-
chases with the intention of diverting the funds for other
uses and depleting the funds for purposes unrelated to
the project was intentional, wilful and done with reck-
less indifference to [the plaintiff’s] interest.’’ At the con-
clusion of its memorandum of decision, the court also
awarded reasonable attorney’s fees and ordered the
plaintiff to file an affidavit as to fees and expenses, with
attached documentation. After receiving the plaintiff’s
affidavit, the court awarded the plaintiff $13,040 in rea-
sonable attorney’s fees and $601.77 in costs.
At the outset, we note that, although the defendants
purport to challenge the court’s award of ‘‘double dam-
ages,’’ the court did not, in fact, award the plaintiff
double damages. Rather, the court awarded punitive
damages in addition to compensatory damages. We
accordingly construe the defendants’ first argument as
challenging the court’s award of punitive damages.
Section 42-110g (a) provides in relevant part: ‘‘The
court may, in its discretion, award punitive damages
and may provide such equitable relief as it deems neces-
sary or proper.’’ General Statutes § 42-110g (d) further
provides: ‘‘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 reason-
able attorneys’ fees based on the work reasonably per-
formed by an attorney and not on the amount of recov-
ery. . . .’’
‘‘Awarding 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
appears to have been done. . . . In order to award
punitive or exemplary damages, evidence must reveal
a reckless indifference to the rights of others or an
intentional and wanton violation of those rights.’’ (Cita-
tion omitted; footnote omitted; internal quotation marks
omitted.) Ulbrich v. Groth, supra, 310 Conn. 446. Award-
ing punitive damages based on a multiple of a plaintiff’s
actual damages ‘‘is a recognized method for determining
punitive damages under CUTPA.’’ Staehle v. Michael’s
Garage, Inc., 35 Conn. App. 455, 463, 646 A.2d 888(1994).
In determining whether a punitive damages award
pursuant to § 42-110g (a) is so excessive as to constitute
an abuse of discretion, we look to the factors that the
United States Supreme Court discussed in Exxon Ship-
ping Co. v. Baker, 554 U.S. 471, 503, 128 S. Ct. 2605,
171 L. Ed. 2d 570 (2008). See Ulbrich v. Groth, supra,
310 Conn. 454. Those factors included ‘‘the degrees of
relative blameworthiness, i.e., whether the defendant’s
conduct was reckless, intentional or malicious; [among
other factors].’’ (Citations omitted; internal quotation
marks omitted.) Id.Under the circumstances of the present case, we con-
clude that the court did not abuse its discretion in
awarding the plaintiff punitive damages in the amount
of $225,000. See id., 456 (although punitive damages
award in amount of $1,251,000 was large, especially in
light of compensatory award in amount of $417,000,
court cannot conclude that award constituted abuse of
discretion). As we concluded in part I of this opinion,
the evidence supports the court’s findings that the
defendants’ false representations to the plaintiff that
the deposit would be used to purchase materials and
rent equipment was intentional, deceptive, unethical,
and unscrupulous in that they fully intended for TMP to
use the deposit to fulfill obligations under other projects
unrelated to the plaintiff’s project. The evidence in the
record also supports the court’s finding that it was
known to Paige that TMP was in a shaky financial condi-
tion when it convinced the plaintiff to pay the deposit.
These findings support the court’s conclusion that the
defendants acted with reckless indifference to the plain-
tiff’s rights.
As to the award of attorney’s fees, the defendants
argue that the award cannot stand because there was
no proven CUTPA violation. In part I of this opinion,
however, we concluded that the court properly found
that the defendants violated CUTPA. Upon our review
of the record in this case, we cannot conclude that the
court abused its discretion in awarding attorney’s fees
to the plaintiff.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff’s brief to this court was due on February 19, 2021. On March
23, 2021, this court issued an order noting the plaintiff’s noncompliance
with this deadline and extending the plaintiff’s opportunity to file its brief
to April 6, 2021. The plaintiff never filed a brief. On April 7, 2021, this court
ordered that the appeal would be considered on the basis of the defendants’
brief and the record. The same day, the defendants filed a motion for
sanctions pursuant to Practice Book § 85-1, asking this court to set aside
the judgment with costs due to the plaintiff’s lack of due diligence defending
the appeal. The defendants’ motion was denied.
2
As we explain subsequently, the court found that ‘‘[t]he damages for
unjust enrichment and the actual damages recoverable under CUTPA . . .
are the same under the facts proven.’’ ‘‘Therefore, as long as the court’s
finding of liability is proper with respect to one of those counts on which
the damages award is based, then the damages award, if proper in itself,
would stand.’’ Centimark Corp. v. Village Manor Associates Ltd. Partner-
ship, 113 Conn. App. 509, 517, 967 A.2d 550, cert. denied, 292 Conn. 907,
973 A.2d 103 (2009). Because we conclude that the court’s finding of liability
is proper with respect to the CUTPA claim, we need not reach the defendants’
claims as to unjust enrichment.
3
The court found that ‘‘TMP used a single bank account to service its
business and for expenses on multiple projects, including to pay its employ-
ees, vendors and equipment suppliers, debt service, state and federal taxes
and other obligations. TMP’s financing scheme depended on continued cash
flow from its projects and favorable extended credit terms from vendors
and suppliers to continue to operate its business and fulfill its contracts.’’
4
Section 14.1.3 of the parties’ contract provides: ‘‘If the unpaid balance
of the Contract Sum exceeds costs of finishing the Work, including compen-
sation for the Architect’s services and expenses made necessary thereby,
and other damages incurred by the Contractor and not expressly waived,
such excess shall be paid to the Subcontractor. If such costs and damages
exceed the unpaid balance, the Subcontractor shall pay the difference to
the Contractor. The amount to be paid to the Subcontractor or Contractor,
as the case may be, shall be certified by the Architect, upon application,
and this obligation for payment shall survive termination of the Contract.’’
5
On August 7, 2020, the court awarded the plaintiff reasonable attorney’s
fees in the amount of $13,040 and costs in the amount of $601.77 pursuant
to General Statutes § 42-110g (d).
6
The evidence in the record discloses that, after failing to fulfill its obliga-
tions to pay for the materials for the project, the defendants tried to persuade
the plaintiff to sign a joint pay agreement with the suppliers. Daniel Gold-
stone, the managing director for the plaintiff, testified that a joint pay agree-
ment is in essence ‘‘an agreement where when we issue payment to him,
it would also be made out to a supplier so he can in turn sign over his
portion of the rights to that money to pay for materials that were provided.’’
Paige referred to this joint pay agreement as a joint check agreement. Paige
described the joint check agreement as ‘‘me signing away my right to receive
the check. It would have been drafted with both parties’ names on it and
it would go to pay for the material.’’