Hamann v. Carl

196 Conn.App. 583

230 A.3d 803

Maria HAMANN et al.

v.Bernard CARL

AC 41608

Appellate Court of Connecticut.

Argued November 20, 2019

Officially released March 24, 2020

Jeffrey R. Babbin, with whom was Richard Luedeman, New Haven, for the appellant (defendant).

Karen L. Dowd, with whom was Kenneth J. Bartschi, Hartford, for the appellee (named plaintiff).

Lavine, Bright and Flynn, Js.

FLYNN, J.

The defendant, Bernard Carl, appeals from the judgment of the trial court rendered in favor of the plaintiff, Maria Hamann,¹ on one count of unjust enrichment in the amount of $150,000 and one count of civil theft pursuant to General Statutes § 52-564,² awarding the plaintiff treble damages totaling $450,000, inclusive of the $150,000, and prejudgment interest on both the unjust enrichment and civil theft damage awards. In this appeal, the defendant claims that the trial court erred in (1) denying his motion to dismiss the case for lack of personal jurisdiction, (2) finding that he committed civil theft and consequently awarding treble damages to the plaintiff, (3) awarding prejudgment interest on the punitive portion of the civil theft award, and (4) setting the start date for prejudgment interest on the unjust enrichment award. We conclude that the court properly determined that the defendant had waived any claim of lack of jurisdiction over his person. We agree, however, with the defendant's claims regarding the judgment of civil theft, its consequential treble damages, and prejudgment interest on those damages, as well as the commencement date for the prejudgment interest on the unjust enrichment damages; therefore, we affirm in part and reverse in part the judgment of the trial court.

The following facts, as found by the trial court or as undisputed in the record, and procedural history are relevant to our disposition of the appeal. The defendant, Carl, served as a law clerk for Judge David Bazelon, the chief judge of the United States Court of Appeals for the District of Columbia Circuit and later as a law clerk for United States Supreme Court Justice Thurgood Marshall. Following his clerkships, he practiced law and served in governmental and business positions, including as assistant secretary of the United States Department of Housing and Urban Development. Upon his retirement, the defendant maintained a car collection, sometimes selling cars to finance the purchase of more desirable cars of greater value. He agreed to do business with Richard Edwards, a broker, offering him classic cars for sale, despite the fact that he did not entirely trust Edwards.

In November, 2013, the defendant sent a document to Edwards proposing an arrangement that he believed would minimize his risk, wherein Edwards would find classic cars and, if he deemed them acceptable, the defendant would purchase them. Edwards then would have an exclusive marketing period of sixty days following the purchase to find a buyer for the car at a price acceptable to the defendant. If such a sale took place, the profits would be divided evenly between the defendant and Edwards. The agreement required that all sales of cars be made to buyers who were willing to pay a nonrefundable deposit of 20 percent of the purchase price. If the buyer failed to make the balance of the payment in thirty days, the deposit would be forfeited and retained by the defendant. The agreement also placed limitations on Edwards’ ability to act on the defendant's behalf, significant among them that ‘‘[n]o agreement not executed by [the defendant] shall be binding upon [him].’’

Between 2013 and 2015, the defendant purchased a number of cars that Edwards had located. Several of them were resold when Edwards, acting as a broker, found buyers for them. In the summer of 2015, the defendant believed that he owned an inventory of eight classic cars, which were stored at a dealership known as Specialist Cars of Malton, England (dealership). His investment in the cars in Malton was financed by Ferrari Motor Services (Ferrari). The cars remained at the dealership until they were either resold or delivered to the defendant. After Edwards’ exclusive right of sale had expired in May, 2015, the defendant decided to retrieve his cars from the dealership and take personal possession of them.³

It was around this time that the plaintiff's former husband, Thomas Hamann (Thomas), became involved. Thomas also acted as a broker in the purchase and sale of classic cars. In 2013, Edwards invited Thomas to meet the defendant, whom Edwards described as his partner. Thereafter, Edwards and Thomas kept in communication. By the end of the summer of 2015, the defendant was facing cash flow problems. On September 1, 2015, the defendant owed an interest payment due on his line of credit with Ferrari. On or before that day, Edwards, who was still brokering deals for the defendant, asked Thomas for a loan of $150,000 on behalf of the defendant, which, he represented, would be repaid by the defendant within one week. Thomas, who was interested in cultivating a business relationship with the defendant, asked the plaintiff for the requisite funds as a loan to the defendant, which Edwards had directed should be paid directly to the defendant's account at Ferrari. Accordingly, at Thomas’ request, the plaintiff, with the understanding that the money would be repaid in seven days, wired the funds to Ferrari, crediting the defendant's account.

On September 4, 2015, the defendant received confirmation from Ferrari that a payment of $150,000 had been made to his account. One week later, the defendant learned for the first time that the money was from the plaintiff. Not until early 2016 did Thomas initiate contact with the defendant in an effort to obtain repayment. When the defendant refused to repay the $150,000, the plaintiff commenced the present action, originally sounding in four counts, namely, unjust enrichment, breach of contract, civil theft, and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq.

On March 24, 2016, the defendant filed a motion to dismiss for lack of personal jurisdiction, which the court, Povodator, J ., denied on September 29, 2016. The defendant thereafter filed an answer denying all essential allegations of the complaint and later filed an amended answer, asserting three special defenses, namely, unclean hands, statute of frauds, and equitable estoppel.⁴

The case was tried to the court, Hon. David R. Tobin, judge trial referee, from January 10 through 12, 2018. At the conclusion of evidence, the plaintiff withdrew the second and fourth counts of the complaint, leaving only the unjust enrichment and civil theft counts. On April 25, 2018, the court issued its memorandum of decision, finding in favor of the plaintiff on both the unjust enrichment and civil theft counts. It rejected all of the defendant's special defenses and awarded damages in the amount of $150,000 on the unjust enrichment count and trebled damages pursuant to § 52-564 on the civil theft count, rendering a total judgment of $450,000.⁵ Additionally, the court awarded prejudgment interest at a rate of 6 percent per year on the award of $150,000, commencing September 8, 2015, and continuing until January 14, 2016, and prejudgment interest on the $450,000 at a rate of 6 percent per year from January 14, 2016 to the date of judgment. This appeal followed. Additional facts will be set forth as necessary.

I

We first address the defendant's claim that the trial court lacked personal jurisdiction over him, citing the fact that he was not a Connecticut resident and had no contacts with the state relevant to this dispute. For reasons that follow, we conclude that the defendant waived his right to challenge the court's personal jurisdiction and, thus, do not evaluate the claim on its merits.

‘‘Because a challenge to the personal jurisdiction of the trial court is a question of law, our review is plenary.’’ (Internal quotation marks omitted.) General Electric Capital Corp . v. Metz Family Enterprises, LLC , 141 Conn. App. 412, 419, 61 A.3d 1154 (2013). Additionally, the issues raised necessarily involve interpretation of various Practice Book sections, for which our review is also plenary. Wells Fargo Bank, N.A. v. Treglia, 156 Conn. App. 1, 9, 111 A.3d 524 (2015).

Additional procedural facts are relevant to this claim. The plaintiff commenced this action on February 1, 2016, by service by a Connecticut state marshal of the nonresident defendant, by service of the writ of summons and complaint on the Secretary of the State of Connecticut pursuant to General Statutes § 52-59b, and by mail service postage prepaid and certified, return receipt requested, on the defendant at 2340 Wyoming Avenue NW, Washington, D.C. 20008. The writ bore a return day of February 23, 2016. It was filed with the Superior Court clerk's office on February 8, 2016. The defendant appeared by counsel on February 22, 2016, two weeks after the plaintiff filed the writ of summons and complaint with the clerk's office, but one day prior to the February 23 return day.

On March 24, 2016, the defendant, through counsel, filed a motion to dismiss the plaintiff's complaint and, on the same date, a motion for extension of time, in which he prayed for a ‘‘thirty day extension of time, up to and including April 23, 2016, to file a responsive pleading to the complaint bearing a return date of February 23, 2016.’’ The defendant never obtained a ruling from the court on his motion for extension of time, and he did not file a memorandum in support of his motion to dismiss at the time he filed the motion. Rather, he filed his supporting memorandum on April 12, 2016. The plaintiff objected to the defendant's motion to dismiss on April 14, 2016, on the grounds that it was untimely because it was not filed within thirty days of the return day and because the memorandum of law in support of the defendant's motion to dismiss was untimely.

Judge Po...