Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—Conn. App.: Deceit and deception concerning the sale of antiques constituted a consumer protection law violation, (Jul 24, 2013)

By Jody Coultas, J.D.

An antique dealer violated the Connecticut Unfair Trade Practices Act (UTPA) by misrepresenting the disposition of property assigned to it by an antique seller, a Connecticut appellate court has held (Noyes v. Antiques at Pompey Hollow, LLC, July 30, 2013, Lavine, D.). The appellate court also upheld the attorney fee award.

After contracting with the antique dealer to sell over 300 antiques, an antique seller filed the UTPA action after continually requesting an accounting of the antiques consigned to the dealer and hearing mostly excuses. The dealer reported a total of 82 antiques sold and 251 unaccounted for.

At trial, the dealer presented a list of 108 additional items he claims that he sold after the suit commenced, and testified that he sold all of the antiques consigned to him, except for two lots that were in the trunk of his car. However, he did not send the seller her share of those sales. The court found for the seller on the UTPA claim and awarded her attorney fees of $10,290 and costs of $892.

In considering a UTPA claim, courts must determine whether the practice offends public policy, is immoral, unethical, oppressive, or unscrupulous, and whether it caused substantial injury to consumers.

The trial court properly held that the antique dealer’s deceitful behavior constituted a UTPA violation, according to the court. The dealer argued that it did not breach the consignment agreement and that, because the court found that their inability to account for all of the consigned antiques was due “to poor record keeping and economic distress,” such conduct did not rise to a violation of the UTPA.

Although mere negligence was not evidence of a UTPA violation, the conduct at issue was deceitful and deceptive. The issue was not the conduct that led to the inability to account for the antiques, but that the dealer deceived the seller as to the antiques in his possession, and his excuses and unfulfilled promises to pay constituted the UTPA violation. The dealer retained the antiques and led the seller to believe that he was attempting to liquidate them, but had no explanation as to the disposition of 141 antiques. The dealer failed to account for the antiques, and the “trail of deceit and deception” pushed the claims beyond a mere breach of contract.

Attorney Fees. The antique dealer unsuccessfully argued that the attorney fees award was excessive because the seller was only successful in four of the ten counts alleged in the complaint. The attorney fees award was proper because the same facts were relevant to all counts of the complaint, according to the court.

In cases where certain claims provide for recovery of contractual attorney fees but others do not, a party is entitled to full recovery of reasonable attorney’s fees if the claims arose from common facts and were intertwined. Here, it was not necessary to apportion attorney fees because all of the claims were related to and dependent upon the same facts.

The case is No. AC 34430.

Attorneys: Neil Johnson for Daphne B. Noyes. Eric H. Rothauser (Bonee Weintraub LLC) for Antiques at Pompey Hollow, LLC.

Cases: StateUnfairTradePractices ConnecticutNews