DocketNumber: No. CV97-0398079
Citation Numbers: 1998 Conn. Super. Ct. 8685
Judges: SILBERT, JUDGE
Filed Date: 8/7/1998
Status: Non-Precedential
Modified Date: 4/18/2021
The plaintiff claims, however, that the sheriff also presented a demand statement to the bank seeking the amount of $18,877.86, which amount included the sheriffs fees and interest on the execution amount. The plaintiff therefore seeks, in the first count of this complaint, the difference between the $14,621.37 remitted to the sheriff and the $17,593.70 which was actually in the account at the time the execution was served.
The defendant bank seeks summary judgment only as to the plaintiff's second count, which claims a violation of the CT Page 8686 Connecticut Unfair Trade Practices Act ("CUTPA"), General Statutes Section 42a-110 et seq. It also seeks to strike the claim for attorney's fees pursuant to General Statutes Section 42-400c, based on its contention that this proceeding is not one for which attorney's fees may be awarded under this particular statute.
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist."Nolan v. Borkowski,
The defendant does not admit that it was actually served with a sheriff's demand statement which included the claim for the sheriff's fee and unpaid interest for a total of $18,877.86. Technically, therefore, that issue is in dispute. Nevertheless, the defendant is willing to stipulate that, for purposes of resolving the present motion for summary judgment, that allegation is not in dispute. It simply contends that even if the bank was presented with such a demand and mishandled the matter, this single event does not rise to the level of a CUTPA violation. Moreover, the only essential difference between the first count and the CUTPA count is that the plaintiff made CT Page 8687 additional demands for payment of the difference between the $14,621.37 stated in the execution and the $17,593.70 in the account, and that the failure to remit the full amount and/or the failure to respond to additional requests to remit the difference were "unfair or deceptive acts or practices", resulting in the plaintiff's suffering of an ascertainable loss.
In determining whether an act constitutes a violation of CUTPA, our Supreme Court has adopted the criteria of the so-called "cigarette rule" employed by the Federal Trade Commission.Williams Ford, Inc. v. Hartford Curant Co.,
As to whether a single act, as alleged here, is sufficient to constitute a violation of CUTPA, there is a well documented split of authority among the judges of the Superior Court. There are many circumstances under which a single act should not form the basis of a CUTPA violation. See, e.g., Morgan v. Tolland CountyHealthcare, Inc., Superior Court, Judicial District of Hartford/New Britain at New Britain, Docket No. 469204 (February 9, 1996, Handy, J). Where, however, the single act complained of is alleged to have been committed by a business person in the course of a transaction which was a part of his or her business, this court agrees with the majority of trial courts that such an act may form a basis of a CUTPA claim. See Crescenzo v. Camarota, Judicial District of New Haven at New Haven, Docket No. CV97-0396433 (June 9, 1997, Silbert J.) Ct. Sup. 6200,
The motion for summary, judgment in favor of the defendant as CT Page 8688 to the second count is granted, not because it alleges only a single act, but because that act, as a matter of law, does not rise to the level of a CUTPA violation.
As to the claim for attorney's fees pursuant to General Statutes Section
. . . in the discretion of the court, a reasonable attorney's fee may be allowed to the prevailing party (1) for counsel at any contempt hearing, reasonable and necessary for the enforcement of a court order, pursuant to section52-256b , (2) for counsel at any discovery hearing reasonable and necessary for the enforcement of disclosure rights, (3) for counsel at any other hearing that is reasonable and necessary for the enforcement of rights pursuant to a postjudgment procedure that is held on a claim or defense that court determines was made for the purpose of harassment or solely for the purpose of delay. (Emphasis added).
It is apparent that this statute allows for the recovery of attorney's fees, in the discretion of the court, in connection with certain aspects of the post — judgment phase of a lawsuit. There is no authority for its use to support a claim for attorney's fees in connection with a plaintiff's case in chief, as the plaintiff proposes to do here. The defendant is entitled to summary judgment as a matter of law as to the claim for attorney's fees pursuant to this statutory subsection.
The Motion for Summary Judgment is therefore granted in its entirety.
Jonathan E. Silbert, Judge