Hamann v. Carl ( 2020 )

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MARIA HAMANN ET AL. v. BERNARD CARL
(AC 41608)
Lavine, Bright and Flynn, Js.
Syllabus
The plaintiff sought to recover damages from the defendant for, inter alia,
civil theft and unjust enrichment in connection with a $150,000 payment
she made on the defendant’s line of credit account. The defendant was
in the business of collecting rare cars and worked with R, a broker, to
find classic cars, purchase them, and, at times, resell them. The plaintiff’s
former husband, T, was also a broker of classic cars. At one point, the
defendant was having cash flow problems and owed $150,000 on his
line of credit. R asked T to loan the defendant the money and promised
that it would be repaid within seven days. T, who was interested in
cultivating a business relationship with the defendant, asked the plaintiff
for the funds and the plaintiff, with the understanding that the money
would be repaid in seven days, wired the funds directly to the defendant’s
line of credit account on September 1, 2015. The defendant did not learn
until one week after the money had been received that it was from
the plaintiff. T contacted the defendant in early January, 2016, seeking
repayment of the $150,000, and the defendant refused to repay the
money. The defendant filed a motion to dismiss the plaintiff’s action
for lack of personal jurisdiction, which was denied by the trial court.
After a trial to the court, the court rendered judgment in favor of the
plaintiff and awarded damages, including treble damages for the civil
theft claim pursuant to statute (§ 52-564), and prejudgment interest,
from which the defendant appealed to this court. On appeal, the defen-
dant claimed that the trial court erred in denying his motion to dismiss,
in finding that he committed civil theft and awarding treble damages,
in awarding prejudgment interest on the trebled punitive portion of the
damages and in setting the start date for the prejudgment interest on
the unjust enrichment award. Held:
1. This court declined to review the defendant’s jurisdictional challenge on
the merits as the defendant waived his right to challenge the trial court’s
personal jurisdiction because he failed to file a supporting memorandum
of law with his motion to dismiss as required by a rule of practice
(§ 10-30).
2. The trial court erred in finding that the defendant committed civil theft
and in awarding treble damages pursuant to § 52-564; the plaintiff’s tort
claim could not arise from an implied in law contract because she had
no right to possess specific identifiable money once the payment on
the defendant’s debt was made, which is required to establish a valid
claim of civil theft for money owed.
3. In light of this court’s determination that the trial court erred in finding
that the defendant committed civil theft and awarding treble damages
pursuant to § 52-564, the award of prejudgment interest on that portion
of the judgment also failed.
4. The trial court improperly set the start date for the commencement of
prejudgment interest on the unjust enrichment damages award; the court
set the start date for the prejudgment interest as September 8, 2015,
based on the plaintiff’s intent to make a loan to the defendant to be
paid within one week, however, there was no evidence that the defendant
agreed to borrow money from the plaintiff or to repay it within one
week and, therefore, the proper start date for the prejudgment interest
was January 14, 2016, the date that T first made a demand for repayment
on the defendant.
Argued November 20, 2019—officially released March 24, 2020
Procedural History
Action to recover damages for, inter alia, unjust
enrichment and civil theft, and for other relief, brought
to the Superior Court in the judicial district of Stamford-
Norwalk, where the court, Povodator, J., denied the
defendant’s motion to dismiss; thereafter, the matter
was tried to the court, Hon. David R. Tobin, judge trial
referee; subsequently the matter was withdrawn as to
the plaintiff Thomas Hamann; judgment for the named
plaintiff, from which the defendant appealed to this
court. Reversed in part; judgment directed.
Jeffrey R. Babbin, with whom was Richard Luede-
man, for the appellant (defendant).
Karen L. Dowd, with whom was Kenneth J. Bartschi,
for the appellee (named plaintiff).
Opinion
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 prejudg-
ment 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 dam-
ages, as well as the commencement date for the prejudg-
ment interest on the unjust enrichment damages; there-
fore, 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 collec-
tion, 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 follow-
ing 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 defen-
dant 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 deal-
ership 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 posses-
sion 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 com-
munication. By the end of the summer of 2015, the
defendant was facing cash flow problems. On Septem-
ber 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 relation-
ship with the defendant, asked the plaintiff for the requi-
site 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 confir-
mation from Ferrari that a payment of $150,000 had
been made to his account. One week later, the defen-
dant 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 repay-
ment. 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 viola-
tion 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 equita-
ble 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 enrich-
ment 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 continu-
ing 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 juris-
diction 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 ple-
nary.’’ (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 inter-
pretation 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 sum-
mons 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 Feb-
ruary 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 dis-
miss 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 Povodator denied the defendant’s motion to
dismiss, noting that the motion for extension of time
to plead was never granted and, as filed, the defendant’s
motion to dismiss merely stated that there was a chal-
lenge to personal jurisdiction without any specific
claims to put the opposing party on notice. The court
observed: ‘‘The motion filed by the defendant merely
states that there is a challenge to personal jurisdiction,
which could range from an improper return date,
improper service, through what ultimately was being
claimed here, lack of minimum contacts with the State
of Connecticut.’’ The court indicated that there must
be some ‘‘indication of the precise basis for the motion’’
and that a ‘‘placeholder’’ motion was not legally suffi-
cient. The court also noted that the issue of the defen-
dant’s lack of contacts with the state was not raised in
a timely manner, an obvious reference to the defen-
dant’s late memorandum, which was not filed with the
motion to dismiss, as required by Practice Book § 10-
30 (c).
The plaintiff, on appeal, contends that the court prop-
erly denied the defendant’s motion to dismiss on two
grounds: first, because the defendant failed to file it
within thirty days of his appearance on February 22,
2016, and second, because the defendant filed the
motion to dismiss without a supporting memorandum
of law as required by Practice Book § 10-30 (c), with
both grounds serving as independent bases for the
defendant’s waiver of his personal jurisdiction claim.
The defendant argues that his motion was timely made
and thus not waived, citing Lohnes v. Hospital of Saint
Raphael, 132 Conn. App. 68, 74–75, 31 A.3d 810 (2011),
cert. denied, 303 Conn. 921, 34 A.3d 397 (2012), for the
proposition that when a defendant chooses to appear
before the return day, as this defendant did by one day,
he has thirty days from the return day rather than thirty
days from the date of his appearance within which to
file a motion to dismiss. We agree with the plaintiff
that the defendant effectively waived his jurisdictional
challenge because he failed to file a supporting memo-
randum of law with his motion to dismiss and, therefore,
do not reach the merits of the plaintiff’s claim that the
motion was untimely because the defendant failed to
file it within thirty days of his appearance.
Practice Book § 10-32 provides in relevant part: ‘‘Any
claim of lack of jurisdiction over the person or insuffi-
ciency of process or insufficiency of service of process
is waived if not raised by a motion to dismiss filed . . .
within the time provided by Section 10-30.’’ Practice
Book § 10-30 (b) requires a motion to dismiss to be
filed within thirty days of the filing of an appearance. In
addition to the time limitation prescribed by subsection
(b), the defendant’s motion to dismiss also is governed
by subsection (c) of § 10-30. The language of Practice
Book § 10-30 (c) clearly states, as to a motion to dismiss:
‘‘This motion shall always be filed with a supporting
memorandum of law . . . .’’ (Emphasis added.)
‘‘[I]n attempting to discern the meaning of a particular
section of our Practice Book, we look first to the lan-
guage of the provision.’’ State v. Angell, 237 Conn. 321,
327, 677 A.2d 912 (1996). We apply the rules of statutory
interpretation when interpreting rules of practice.
Meadowbrook Center, Inc. v. Buchman, 328 Conn. 586,
594, 181 A.3d 550 (2018). ‘‘The interpretive construction
of the rules of practice is to be governed by the same
principles as those regulating statutory interpretation.
. . . In seeking to determine [the] meaning [of a statute
or a rule of practice, we] . . . first . . . consider the
text of the statute [or rule] itself and its relationship to
other statutes [or rules]. . . . If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence
. . . shall not be considered. . . . We recognize that
terms [used] are to be assigned their ordinary meaning,
unless context dictates otherwise.’’ (Citations omitted,
internal quotation marks omitted.) Id. ‘‘[W]e follow the
clear meaning of unambiguous rules, because
[a]lthough we are directed to interpret liberally the rules
of practice, that liberal construction applies only to
situations in which a strict adherence to them [will]
work surprise or injustice.’’ (Internal quotation marks
omitted.) Id., 595.
Pursuant to Practice Book § 10-30 (c), a motion to
dismiss ‘‘shall always be filed with a memorandum of
law . . . .’’ This expresses a clear mandate, putting all
on notice, that such a motion shall always be filed with
an accompanying memorandum. The language of the
provision is clear and unambiguous. Its plain meaning
does not lead to either absurd or unworkable results.
Instead, it serves to provide timely notice of the basis
for the motion to the party against whom dismissal is
sought. Although the court did not expressly find that
the defendant’s memorandum was untimely, it is clear
from its ‘‘placeholder’’ language and its ruling that there
must be some indication of the precise basis for the
motion, that it concluded that a memorandum was nec-
essary.
The defendant concedes that he was required to sub-
mit a memorandum of law with his motion to dismiss
but he argues that he attempted to do so by filing a
motion for extension of time.6 We are not persuaded.
The defendant, in his motion for extension of time,
requested an additional thirty days, up to and including
April 23, 2016, to file a responsive pleading, but he did
not mention that the request included an extension of
the time to file a memorandum of law in support of his
motion to dismiss. In essence, the defendant contends
that even though the memorandum originally was not
filed with the motion on March 24, 2016, if the court
had granted his motion for extension of time until April
23, 2016, then the memorandum that he filed on April
12, 2016, would have been considered filed with the
motion to dismiss because it would have been within
the responsive pleading period.
The defendant then proceeds to challenge the trial
court’s denial of the motion for extension of time. ‘‘A
trial court’s decision not to consider a motion properly
before it is the functional equivalent of a denial . . . .’’
(Internal quotation marks omitted.) Gong v. Huang, 129
Conn. App. 141, 148, 21 A.3d 474, cert. denied, 302 Conn.
907, 23 A.3d 1247 (2011). The defendant claims that the
court erroneously ruled that the motion for extension
was also untimely. He argues that, ‘‘[a]lthough a trial
court is ordinarily not required to grant a timely motion
for extension of time to plead, the trial court articulated
no reason for denying the motion other than the court’s
mistaken determination that it was untimely.’’ This is
a mischaracterization of the record. Although Judge
Povodator stated in his order denying the defendant’s
motion to dismiss that the motion for extension of time
was untimely, he notes in the same sentence that it
‘‘in any event was never granted.’’ This indicates that
untimeliness was not necessarily the basis upon which
the court failed to rule on the motion. Therefore, we
cannot review whether the court’s denial of the motion
for extension of time was proper because the record
does not reveal the court’s reasoning, and the defendant
failed to seek articulation of such reasoning. See Blum
v. Blum, 109 Conn. App. 316, 331, 951 A.2d 587, cert.
denied, 289 Conn. 929, 958 A.2d 157 (2008). ‘‘It is a well
established principle of appellate procedure that the
appellant has the duty of providing this court with a
record adequate to afford review. . . . Accordingly,
[w]hen the decision of the trial court does not make
the factual predicates of its findings clear, we will, in
the absence of a motion for articulation, assume that the
trial court acted properly.’’ (Internal quotation marks
omitted.) Id. Without the extension of time, the defen-
dant’s filing of the supporting memorandum of law
occurred outside of the responsive pleading period.
We conclude that the record is clear that the support-
ing memorandum of law was not filed with the defen-
dant’s motion to dismiss on March 24, 2016. In fact, it
was not filed until nineteen days later on April 12, 2016,
more than thirty days after the defendant filed his
appearance on February 22, 2016, and also more than
thirty days from the return day of February 23, 2016.
Because the memorandum was not filed within the time
period prescribed by Practice Book § 10-30 (b), whether
calculated from the return day or date of appearance,
and the trial court did not grant the defendant’s motion
for extension of time to file his responsive pleadings,
the defendant’s motion is deemed filed without a sup-
porting memorandum of law. Therefore, pursuant to
Practice Book § 10-32, the defendant waived any claim
of lack of personal jurisdiction. See Wethersfield v. PR
Arrow, LLC, 187 Conn. App. 604, 655, 203 A.3d 645
(defendant ‘‘clearly waived’’ lack of personal jurisdic-
tion claim on independent grounds that (1) it failed to
file timely motion to dismiss and (2) it failed to file
supporting memorandum of law with its motion), cert.
denied, 331 Conn. 907, 202 A.3d 1022 (2019); see also
Executive Rental & Leasing, Inc. v. Gershuny Agency,
Inc., 36 Conn. Supp. 567, 569–70, 420 A.2d 1171 (1980)
(trial court erred in granting movant’s motion for sum-
mary judgment when movant failed to submit support-
ing memorandum of law). As such, we decline to review
the defendant’s jurisdictional challenge on its merits.
II
We next address the defendant’s claim regarding
whether treble damages for civil theft are allowable
under the facts of this case. The defendant claims that
Judge Tobin erred in finding that he committed civil
theft and, consequently, in awarding treble damages.
Specifically, he argues that the plaintiff had no grounds
to pursue treble damages for civil theft because her
claim rested solely on the defendant’s implied in law
obligation to pay her money. The plaintiff claimed treble
damages on a legal theory that the defendant’s withhold-
ing of the return of her $150,000 deposited to his Ferrari
account constituted civil theft, which entitled her to
treble damages pursuant to § 52-564. We agree with
the defendant.
‘‘The interpretation of a statute, as well as its applica-
bility to a given set of facts and circumstances, involves
a question of law and our review, therefore, is plenary.’’
Commissioner of Social Services v. Smith, 265 Conn.
723, 734, 830 A.2d 228 (2003). Section 52-564 provides:
‘‘Any person who steals any property of another, or
knowingly receives and conceals stolen property, shall
pay the owner treble his damages.’’ Civil theft is synony-
mous with larceny under General Statutes § 53a-119;
see Stuart v. Stuart, 297 Conn. 26, 41, 996 A.2d 259
(2010). Section 53a-119 provides in relevant part that
‘‘[a] person commits larceny when, with intent to
deprive another of property or to appropriate the same
to himself or a third person, he wrongfully takes, obtains
or withholds such property from an owner. . . .’’
Section 53a-119, in relevant part, recognizes the fol-
lowing as one form of larceny: ‘‘Acquiring property lost,
mislaid or delivered by mistake. A person who comes
into control of property of another that he knows to
have been lost, mislaid, or delivered under a mistake
as to the nature or amount of the property or the identity
of the recipient is guilty of larceny if, with purpose to
deprive the owner thereof, he fails to take reasonable
measures to restore the property to a person entitled
to it.’’ General Statutes § 53a-119 (4). Therefore, civil
theft requires the intent to deprive another of his prop-
erty, an element which must be proved by the plaintiff.
See Fernwood Realty, LLC v. AeroCision, LLC, 166
Conn. App. 345, 359, 141 A.3d 965, cert. denied, 323
Conn. 912, 149 A.3d 981 (2016). The plaintiff claims
that once the defendant became aware that it was the
plaintiff who had made the $150,000 payment on his
Ferrari account balance, and demand was made for
repayment, he wrongfully withheld that payment.
The court found that the defendant was unjustly
enriched by the $150,000 payment made by the plaintiff
to the defendant’s Ferrari account.7 Additionally, citing
to § 53a-119 (4), the court concluded that, although the
defendant had received the money by mistake, this did
not relieve him from civil theft liability when, ‘‘on Janu-
ary 14, 2016, having been fully informed of the facts
establishing that he had no legal or equitable right to
retain the $150,000, [the defendant] refused to return
[it] to [the plaintiff].’’8 The trial court did not find credi-
ble the defendant’s explanations of why he believed
he was entitled to retain the $150,000. It stated in its
memorandum of decision: ‘‘The court cannot credit [the
defendant’s] claim that he was entitled to retain the
$150,000 . . . as a nonrefundable deposit made by
Edwards on a purported sale of the Lamborghini Miura
for $650,000. There is no record of any agreement (writ-
ten or otherwise) which characterized the $150,000 as
a nonrefundable deposit . . . .’’ The court then con-
cluded that, ‘‘rather than providing a justifiable reason
for his retention of the $150,000, [the defendant’s]
claims amount to nonviable excuse for his indefensible
actions.’’ Consequently, the court found that the defen-
dant’s actions constituted civil theft, entitling the plain-
tiff to treble damages under § 52-564.
On appeal, the plaintiff argues that the court properly
determined that the defendant’s withholding of the
$150,000 constituted civil theft and correctly applied
§ 52-564 in awarding her treble damages. She argues
that civil theft occurs when the plaintiff had possession
of or legal title to the money at issue, and the money
later is acquired by and subsequently improperly
retained by another. She asserts in her brief that ‘‘all
the plaintiff had to prove, and the trial court had to
find, was that the defendant intentionally and without
authorization deprived the plaintiff of her funds. There
is sufficient evidence to support a finding that as of
January 14, 2016, the defendant was aware that he had
no basis to retain the funds, yet he refused to repay
them.’’ We disagree with the plaintiff and hold that the
trial court erred in applying § 52-564 to the facts of
this case.
In Macomber v. Travelers Property & Casualty Corp.,
261 Conn. 620, 804 A.2d 180 (2002), our Supreme Court
set forth the general rule that, although money may be
the subject of civil theft, ‘‘[a]n action for conversion of
funds may not be maintained to satisfy a mere obliga-
tion to pay money.’’ (Emphasis added; internal quota-
tion marks omitted.) Id., 650. ‘‘[I]n order to establish a
valid claim of . . . [civil] theft for money owed, a party
must show ownership or the right to possess specific,
identifiable money, rather than the right to the payment
of money generally.’’ Mystic Color Lab, Inc. v. Auctions
Worldwide, LLC, 284 Conn. 408, 421, 934 A.2d 227
(2007). ‘‘Thus, [t]he requirement that the money be iden-
tified as a specific chattel does not permit as a subject
of conversion [or civil theft] an indebtedness which
may be discharged by the payment of money generally.
. . . A mere obligation to pay money may not be
enforced by a conversion [or civil theft] action . . .
and an action in tort is inappropriate where the basis
of the suit is a contract, either express or implied.’’
(Emphasis added; internal quotation marks omitted.)
Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745,
772, 905 A.2d 623 (2006).
Applying both the Macomber and Deming rules to
the case at hand, we conclude that the plaintiff’s claim
of civil theft fails as a matter of law. Here, the plaintiff’s
civil theft claim is an action in tort, as it is a civil wrong.
Black’s Law Dictionary (11th Ed. 2019) p. 1792, defines
a ‘‘tort’’ as ‘‘[a] civil wrong, other than breach of con-
tract, for which a remedy may be obtained . . . .’’ ‘‘We
may . . . define a tort as a civil wrong for which the
remedy is a common-law action for unliquidated dam-
ages, and which is not exclusively the breach of a con-
tract or the breach of a trust or other merely equitable
obligation.’’ Id. According to Deming, the basis of such
claim, then, cannot be an implied in law contract. ‘‘[A]n
implied in law contract is another name for a claim
for unjust enrichment’’; Vertex, Inc. v. Waterbury, 278
Conn. 557, 574, 898 A.2d 178 (2006); which is what we
have in this case.
Apart from the general legal impediment to recovery
of civil theft damages arising out of contract or implied
contract, like unjust enrichment, the plaintiff’s claim
suffers from the same impediment our Supreme Court
identified in Mystic Color Lab, Inc. v. Auctions World-
wide, LLC, supra, 284 Conn. 421–29, namely, that she
had no right to possess specific identifiable money. In
the present case, as in Mystic, the plaintiff did not and
could not show a right to possess specific identifiable
money to support a claim in tort once she had used
her $150,000 to pay the defendant’s debt to Ferrari. See
id., 427–28 (no evidence in record of intent to form trust,
requirement of segregation of funds, or other means of
establishing identifiable funds). The plaintiff made a
partial payment on a debt owed by the defendant to
Ferrari by wiring money, which was directly credited to
the defendant’s Ferrari account. Although the plaintiff
testified that she intended her payment to be a loan
that the defendant eventually would repay, there was
no evidence that the defendant ever agreed to borrow
money from the plaintiff. The trial court found that the
defendant did not know that it was the plaintiff who
had made the payment on his Ferrari account until one
week later. Upon the defendant’s refusal to repay the
$150,000 after being made aware that the plaintiff had
made the payment, the trial court found that the defen-
dant was unjustly enriched, a finding that we leave
undisturbed.9
We conclude as a matter of law that the court erred in
finding that the defendant committed civil theft because
the plaintiff’s tort claim cannot arise from an implied
contract of unjust enrichment and because the plaintiff
had no right to specific identifiable money once it was
paid to Ferrari. Having concluded so, we find no need
to address the defendant’s claim that the plaintiff failed
to establish the element of malicious intent. On the
facts of this case, a claim in tort is improper and, as
such, the trial court erred in applying § 52-564. We con-
clude that the judgment finding the defendant liable for
civil theft and treble damages in the amount of $450,000
must be reversed.
III
We next turn to the defendant’s claim that prejudg-
ment interest may not be awarded on the trebled puni-
tive portion of the damages award. ‘‘The decision to
grant interest pursuant to [General Statutes] § 37-3a
is reviewed under an abuse of discretion standard.’’
Whitney v. J.M. Scott Associates, Inc., 164 Conn. App.
420, 438, 137 A.3d 866 (2016). ‘‘To award § 37-3a interest,
two components must be present. First, the claim to
which the prejudgment interest attaches must be a
claim for a liquidated sum of money wrongfully with-
held and, second, the trier of fact must find, in its discre-
tion, that equitable considerations warrant the payment
of interest.’’ (Internal quotation marks omitted.) Id.
The trial court awarded prejudgment interest on the
$450,000 award at a rate of 6 percent per year commenc-
ing January 14, 2016. Because we have concluded that
the award of trebled punitive damages was improper
and should be reversed, the award of interest on that
portion of the judgment falls with it.
IV
Finally, we turn to the defendant’s claim that the
court incorrectly set the commencement date for pre-
judgment interest on the unjust enrichment award. The
court set the start date for prejudgment interest on the
$150,000 award as September 8, 2015. The defendant
argues that the proper start date of interest should have
been January 14, 2016—the date that Thomas first made
demand on the defendant to repay the $150,000 to the
plaintiff. We agree with the defendant.
Section 37-3a provides in relevant part that ‘‘interest
at the rate of ten per cent a year, and no more, may be
recovered and allowed in civil actions . . . as damages
for the detention of money after it becomes payable.’’
We review an award of prejudgment interest under the
abuse of discretion standard. ‘‘The allowance of pre-
judgment interest as an element of damages is an equita-
ble determination and a matter lying within the discre-
tion of the trial court.’’ (Internal quotation marks
omitted.) Tang v. Bou-Fakhreddine, 75 Conn. App. 334,
346, 815 A.2d 1276 (2003). ‘‘Under the abuse of discre-
tion standard of review, [w]e will make every reason-
able presumption in favor of upholding the trial court’s
ruling, and only upset it for a manifest abuse of discre-
tion.’’ (Internal quotation marks omitted.) Aurora Loan
Services, LLC v. Hirsch, 170 Conn. App. 439, 458, 154
A.3d 1009 (2017).
The defendant does not challenge the trial court’s
authority to award the prejudgment interest but takes
issue with the court’s setting of the date from which
to start calculating that interest. He argues that the
proper commencement date should have been January
14, 2016, because it was not until then that the defen-
dant’s failure to repay the plaintiff could have become
wrongful. He contends that ‘‘there was no ‘wrongful
detention of money’ to start the interest clock . . .
until Thomas asked [the defendant] to repay [the plain-
tiff] the $150,000.’’
We agree with the defendant that the date selected
by the trial court for the beginning of the interest period
was improper. The court awarded prejudgment interest
on the $150,000 unjust enrichment award commencing
September 8, 2015, based on the plaintiff’s intent to
make an interest-free loan to the defendant, which was
to be repaid within one week. Although the plaintiff
had characterized her payment of $150,000 to the defen-
dant’s Ferrari account as a loan to the defendant, the
record is devoid of evidence that the defendant ever
agreed to borrow money from the plaintiff, much less
to repay it within one week. This was made clear in
the trial court’s own findings of fact. The court noted
that the funds were wired by the plaintiff ‘‘in the mis-
taken belief that she was making a short term interest-
free loan to [the defendant]’’—thereby suggesting that
the defendant did not intend for such to occur—and
that ‘‘neither the plaintiff nor Thomas notified [the
defendant] of their expectation that he would repay the
funds.’’ It further found that no demand for repayment
of the $150,000 was made until January 14, 2016, but,
for a variety of reasons that the trial court found not
credible, the defendant refused to pay.
We conclude that, although the court was well within
its discretion to award prejudgment interest, the inter-
est should not have commenced until demand for pay-
ment was made on the plaintiff’s behalf on January 14,
2016. See General Statutes § 37-3a (‘‘interest at the rate
of ten per cent a year . . . may be recovered . . . as
damages for the detention of money after it becomes
payable’’ [emphasis added]). We reverse the portion of
the prejudgment interest award from September 8, 2015
through January 14, 2016, and affirm its award com-
mencing from January 14, 2016.
The judgment is reversed as to the civil theft count
and the interest awarded thereon, and the award of
prejudgment interest from September 8, 2015 through
January 14, 2016, on the unjust enrichment count, and
the case is remanded with direction to render judgment
in favor of the defendant on the civil theft count, and
to recalculate, beginning January 14, 2016, the prejudg-
ment interest on the $150,000 damage award for unjust
enrichment; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
Although the original action was brought by Maria Hamann and Thomas
Hamann, Thomas Hamann later withdrew as a plaintiff. Accordingly, we
refer to Maria Hamann as the plaintiff.
2
General Statutes § 52-564 provides: ‘‘Any person who steals any property
of another, or knowingly receives and conceals stolen property, shall pay
the owner treble his damages.’’
3
The defendant testified at trial that, after repeated attempts to obtain
possession of his cars failed, he obtained an order from a British directing
the dealership and Edwards to deliver the defendant’s cars to him. He further
testified that Edwards ‘‘appeared in the British court on the day the cars
were to be turned over to him and testified that the cars had been taken
from [the dealership] the previous day when a number of ‘burly men’ arrived
at the dealership and took the cars. [The defendant] further testified that
he later learned that four of the eight cars were not even [at the dealership]
on the day of the alleged theft.’’
4
The allegations in the special defenses capsulize the defendant’s prof-
fered reasons for not returning the plaintiff’s $150,000. The allegations, in
part, recite that ‘‘when the dealership . . . refused [the defendant’s] request
return the cars to his possession, Edwards reported to [the defendant] that
he had a potential buyer for one of his cars, an orange Lamborghini Miura.
After [the defendant] refused Edwards’ request to delay reclaiming his cars,
Edwards is alleged to have offered [the defendant] a $150,000 nonrefundable
deposit in return for a two week opportunity to sell the Miura. [The defen-
dant] alleges that he instructed Edwards to wire the $150,000 deposit to his
account at [Ferrari] to cover an interest payment on his line of credit. [The
defendant] further alleges that when Edwards did not produce a buyer for
the Miura he advised Edwards that he was keeping his deposit and renewing
his demand for the return of all of his cars.’’
5
The trial court provided in its memorandum of decision: ‘‘Damages on
the unjust enrichment count are included in the $450,000 awarded on the
civil theft count. See Rogan v. Rungee, 165 Conn. App. 209, 222–25, [140 A.3d
979] (2016).’’ Nonetheless, the court appears to have awarded prejudgment
interest on both the $150,000 and the $450,000 multiple of that sum.
6
He states in his brief: ‘‘[The defendant] understood this requirement,
and so on the same day as the motion . . . also filed a motion for extension
of time to plead in response to the complaint, so he could timely perfect
the dismissal motion.’’
7
On appeal, the defendant does not challenge the award of $150,000 to
the plaintiff, an amount by which the court found that the defendant was
unjustly enriched. The defendant states in his brief that he ‘‘does not seek
in this appeal to overturn the finding that he cannot equitably retain the
money.’’
8
‘‘On January 14, 2016, [Thomas] left a detailed voicemail on [the defen-
dant’s] mobile phone and followed up with an e-mail to [the defendant] that
evening. The e-mail referred to a telephone conversation which Thomas
had with [the defendant] a few weeks ago in which [the defendant] allegedly
acknowledged that he was indebted to the Hamanns for the $150,000 which
had been deposited in [his] account with [Ferrari]. Thomas also conveyed
to [the defendant] his shock upon finding that [the defendant], in an e-mail
to Edwards, had informed him that he intended to keep the $150,000 as a
penalty. Thomas requested that [the defendant] repay the $150,000 to avoid
litigation. . . . In [his response to Thomas’ e-mail], [the defendant] insisted
that the funds deposited to his account with [Ferrari] were a loan [from
the plaintiff] to Edwards for which he had no responsibility. He denied
having acknowledged his debt to the Hamanns, claiming that what he said
was ‘if [Edwards] had met his obligations to me, I would have agreed to
have the $150,000 of the promised $650,000 proceeds of the sale of [a car]
go to you. Sadly, [Edwards] decided to steal that car rather than sell it.’ ’’
9
The plaintiff was left a creditor of the defendant by this unjust enrich-
ment. ‘‘A debtor-creditor relationship arises from a debt owed by one party
to another. The debt owed arises from an obligation, often contractual, on
the part of the debtor, not from a preexisting property interest of the credi-
tor.’’ Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, supra, 284
Conn. 419.