Finke v. a Better Way Wholesale Autos, Inc.

Heidi Finke et al. v. A Better Way Wholesale Autos, Inc

No. UWYCV136021840

Superior Court of Connecticut, Judicial District of Waterbury, Waterbury

February 15, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #182

Brazzel-Massaro, Barbara, J.

INTRODUCTION

The plaintiffs filed this action by writ, summons and complaint on November 15, 2013 naming as defendants A Better Way Wholesale Autos, Inc., (Better Way), a used car dealership John A. Gorbecki, president of Better Way, Joseph Gorbecki general manager of Better Way, and Joseph Tuozzoli, and employee or agent of Better Way. The plaintiff filed a revised complaint on April 8, 2014, and on September 11, 2015 their counsel filed a withdrawal of the action. The withdrawal was not acted upon and the plaintiffs appeared and objected to the withdrawal of the action. The plaintiffs obtained new counsel and thereafter filed a five-count amended complaint, the operative pleading on July 7, 2016. The amended contains five claims, that is, a violation of Connecticut Unfair Trade Practice Act (CUTPA), fraud, breach of warranty, negligence and unjust enrichment The defendant filed a motion of summary judgment on August 15, 2016 as to all of the defendant Windischman's claims against them. They have filed a memorandum and exhibits in support of the motion. The plaintiff filed a memorandum in opposition to the summary judgment without the inclusion of exhibits. The parties appeared and argued the motion at the short calendar on November 21, 2016. Upon the court's request, the plaintiffs submitted signed and sworn affidavits of Finke and Windischman on November 23, 2016, and the defendants filed a reply, including a signed and sworn amended affidavit of Joseph Gorbecki, on December 2, 2016.

FACTUAL BACKGROUND

Better Way is a used car dealership located in Connecticut. The plaintiffs Finke and Windischman visited the car dealership in 2012 when they were in the market for a truck. The defendant has a 2006 Ford F350 truck for sale at its' place of business. The plaintiff, Windischman, let the agents of Better Way know that he was looking for a pickup truck that he could use in his business and took the truck at Better Way for a test drive. Based on Better Way's agents' representation that the truck was in sound mechanical condition and would suit his work purposes as a general contractor, Windischman inquired about purchasing the truck. Better Way's agents informed Windischman that his credit rating was insufficient to secure financing and that he needed either a co-borrower or a surrogate to make a loan on his behalf in order to purchase the truck. Based on those representations, Windischman asked Finke, his girlfriend, to become his co-signer. On September 3, 2012, based on the defendants' renewed representation that the truck was in sound mechanical condition, that it would serve Windischman's work needs and that the best way to finance the purchase of the truck was for Finke to be the sole owner Finke purchased the truck for $17, 995 and a " powertrain plus" extended warranty, which the defendants represented was a " bumper to bumper warranty, " for $2, 436. Finke and Windischman, who at all relevant times lived together and shared household expenses, paid the defendants $5, 000 and obtained financing from the defendants in Finke's name.

The defendants failed to perform an adequate inspection of the truck prior to selling the truck to the plaintiffs. The truck was not suitable for Windischman's work as a general contractor. Despite the defendants' representations regarding the truck's good condition. Windischman experienced problems with the truck, and on December 28, 2012 he was unable to start the truck. The extended warranty that the defendants sold to Finke was void because the truck was used for commercial purposes and the defendants did not sell Finke a warranty with commercial coverage, despite that they knew or should have known that Finke purchased the truck for Windischman to use for commercial purposes.

DISCUSSION

" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." " . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). Accompanying the motion " the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Assocs. No. 1 v. Ins. Co. of Pa., 231 Conn 756, 796, 653 A.2d 122 (1995). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and " [t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). " When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . ." Ramirez v. Health Net of the Northeast, Inc. 285 Conn. 1, 10-11, 938 A.2d 576 (2008).

General Statues § 42-110b(a) provides: " No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110a(4) defines " trade and commerce" as " the advertising of the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state." Liability under CUTPA may be extended to an individual who engages in unfair or unscrupulous conduct on behalf of a business entity. Joseph General Contracting, Inc. v. Couto, 317 Conn. 565, 593, 119 A.3d 570 (2015). " In evaluating whether alleged actions were performed in the conduct of any trade or commerce, the inquiry focuses not only on the nature of the acts themselves, but on the relationship between the actor and the allegedly injured party. (Internal quotation marks omitted.) Beckworth v. Bizier, 48 F.Supp.3d 186, 204 (D.Conn. 2014) (applying Connecticut law.) " Whether the defendant is subject to CUTPA is a question of law, not fact . . . [W]hether a defendant's acts constitute . . . deceptive or unfair trade practice under CUTPA, is a question of fact for the trier." (Citation omitted, internal quotation marks omitted.) Szekeres v. Szekeres, 126 Conn.App. 829, 841, 16 A.3d 713 (2011).

" [I]n determining whether a practice violates CUTPA [our Supreme Court] ha[s] adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission for determining when a practice is unfair; (1) [W]hether the practice, without necessarily having been previously 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; (3) whether it causes substantial injury to consumers, [competitors or other business persons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three . . . In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . ." (Internal quotation marks omitted.) Ulbrich v. Groth, 310 Conn. 375, 409-10, 78 A.3d 76 (2013).

In determining whether the plaintiff is in a position to bring a CUTPA claim against the defendant, " [a]lthough privity in the traditional contractual sense . . . may no longer be essential for standing under CUTPA, a claimant under CUTPA must possess at least some type of consumer relationship with the party who allegedly causes harm to him or to her." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 726-27, 627 A.2d 374 (1993); or some type of competitors or business...