McLeod v. A Better Way Wholesale Autos, Inc. , 177 Conn. App. 423 ( 2017 )

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BRENDA MCLEOD v. A BETTER WAY
WHOLESALE AUTOS, INC.
(AC 38608)
DiPentima, C. J., and Prescott and Beach, Js.
Syllabus
The plaintiff sought to recover damages from the defendant for, inter alia,
breach of the implied warranty of merchantability in connection with
her purchase of an automobile from the defendant. The case was tried
to the court, and, at the close of the plaintiff’s case, the defendant moved
for a judgment of dismissal on all counts of the complaint, which the
trial court granted as to certain counts, including count one alleging
breach of the implied warranty of merchantability. Thereafter, the defen-
dant presented its evidence, and the trial court subsequently rendered
judgment for the plaintiff on counts one through four of the complaint,
from which the defendant appealed to this court. Subsequently, the
trial court granted the plaintiff’s motions for attorney’s fees, and the
defendant filed an amended appeal. On appeal, the defendant claimed,
inter alia, that the trial court improperly rendered judgment for the
plaintiff on count one because the court previously had dismissed that
count. The defendant also claimed that, in light of the trial court’s
dismissal of count one, the court improperly determined that the defen-
dant had violated the Magnuson-Moss Act (15 U.S.C. § 2310 [d]), as
alleged in count two of the complaint, which violation was based on
the defendant’s alleged failure to comply with its obligations under the
implied warranty of merchantability. Held:
1. The trial court improperly rendered judgment for the plaintiff on count
one of the complaint; that court clearly and unequivocally rendered a
judgment of dismissal as to count one, and, once it did so, the count
was effectively removed from the case, and the court had no authority
to address the merits of that dismissed count in its final decision or to
award damages on the basis of the dismissed cause of action; moreover,
even though a trial court has the authority to correct clerical errors in
a prior judgment or to clarify or interpret an ambiguous judgment, the
trial court never indicated to the parties that it had determined that its
prior dismissal of count one was in error, and its subsequent ruling on
the merits could not be construed as an implicit reversal, sua sponte,
of its prior determination that the plaintiff had failed to present a prima
facie case on that count, as that could have unfairly prejudiced the
defendant, which did not have an opportunity to present evidence in
defense of that count, it having believed that it was dismissed.
2. The trial court improperly rendered judgment for the plaintiff on count
two of the complaint alleging a violation of the Magnuson-Moss Act:
because the plaintiff’s general theory of recovery with respect to count
two hinged on her state law claim in count one, which alleged a violation
of the implied warranty of merchantability, the court’s dismissal of count
one for failure to make out a prima facie case precluded any finding
that such a breach formed the basis of a violation of the Magnuson-
Moss Act; moreover, the court could not have found that the plaintiff
proved a violation of that act on the basis of its finding of a breach of
an express warranty, as alleged in count three of the complaint, because
the plaintiff never pleaded such a violation.
3. The trial court improperly awarded the plaintiff attorney’s fees as a
component of damages under count two of the complaint for the defen-
dant’s purported violation of the Magnuson-Moss Act, which contains
an express statutory exception to the general rule that a successful
party may not recover attorney’s fees and ordinary expenses of litigation
in the absence of a contractual or statutory exception; in light of this
court’s determination that the trial court improperly rendered judgment
for the plaintiff on count two, the plaintiff could not reasonably rely on
the express statutory grant of authority for attorney’s fees under the
Magnuson-Moss Act as a legal basis for upholding the trial court’s award
of attorney’s fees under that count.
4. The trial court’s finding that the defendant had committed fraud was
legally and logically correct and supported by the evidence; the court’s
finding that the defendant made a false statement by failing to disclose
an accurate odometer reading was supported by the evidence and was
not clearly erroneous, and the court properly found, on the basis of the
evidence presented and inferences reasonably drawn therefrom, that
the mileage of the vehicle purchased by the plaintiff was not accurately
recorded by the defendant’s representatives, the recording failures were
a deliberate attempt to record lower mileage, that deceit and misrepre-
sentation were to the detriment of the plaintiff because they impacted
her ability to take full advantage of the warranty period, the defendant’s
actions were intended to induce the plaintiff’s reliance on its representa-
tions, and the plaintiff purchased the vehicle believing the sale included
warranty coverage for 3000 miles, when in fact, due to the defendant’s
actions, the vehicle warranty would expire after fewer miles, lowering
the value of the vehicle and reducing the defendant’s potential liability
for repairs.
5. The trial court improperly awarded the plaintiff punitive damages of
$15,000 under count four, which alleged fraud; the court failed to explain
the factual basis for its award and had no evidence before it regarding
the plaintiff’s total litigation expenses, as the plaintiff had submitted an
affidavit from her attorney claiming attorney’s fees of nearly $7000 but
did not provide any evidence from which the court reasonably could
have inferred an additional $8000 in nontaxable costs, and, although
some award of punitive damages was permissible in conjunction with
the fraud count, a new hearing was necessary to determine the actual
amount of the plaintiff’s litigation expenses, which, in addition to reason-
able attorney’s fees, would include other nontaxable costs.
Argued April 10—officially released October 24, 2017
Procedural History
Action to recover damages for, inter alia, breach of
the implied warranty of merchantability, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Waterbury and tried to the court, Brazzel-Mas-
saro, J.; thereafter, the court granted in part the
defendant’s motion for a judgment of dismissal and
rendered judgment for the plaintiff, from which the
defendant appealed to this court; subsequently, the
court, Brazzel-Massaro, J., granted the plaintiff’s
motions for attorney’s fees, and the defendant filed an
amended appeal. Vacated in part; reversed in part;
judgment directed; further proceedings.
Kenneth A. Votre, for the appellant (defendant).
Louis E. Faiella, with whom, on the brief, was Scott
Jackson, for the appellee (plaintiff).
Opinion
PRESCOTT, J. In this action for damages arising out
of the purchase of a used automobile, the defendant,
A Better Way Wholesale Autos, Inc., appeals, following
a trial to the court, from the judgment rendered in favor
of the plaintiff, Brenda McLeod, on counts one through
four of her six count complaint.1 Counts one through
four alleged, respectively, that the defendant breached
the implied warranty of merchantability, violated the
Magnuson-Moss Warranty-Federal Trade Commission
Improvement Act (Magnuson-Moss Act), 15 U.S.C.
§ 2301 et seq., breached an express statutory warranty,
and committed common-law fraud. In total, the court
awarded the plaintiff $5435 in actual damages, $15,000
in punitive damages, and $7045.35 in attorney’s fees.
The defendant claims on appeal that the court improp-
erly (1) determined that the defendant had breached
the implied warranty of merchantability as alleged in
count one because that count previously had been dis-
missed along with counts five and six at the close of
the plaintiff’s case-in-chief pursuant to Practice Book
§ 15-8; (2) determined that the defendant had violated
15 U.S.C. § 2310 (d) of the Magnuson-Moss Act, despite
the plaintiff’s having pleaded that the alleged violation
arose from the defendant’s breach of the implied war-
ranty of merchantability as alleged in count one, which
the court had dismissed because the plaintiff had failed
to establish a prima facie case; (3) awarded the plaintiff
attorney’s fees; (4) determined that the defendant com-
mitted common-law fraud without clear and convincing
evidence of either a false statement or intent to defraud;
and (5) awarded the plaintiff punitive damages on the
fraud count.2 We agree with the defendant as to all but
the fourth claim and, accordingly, reverse in part the
judgment of the court and remand the case with direc-
tion to render judgment in accordance with this opinion
and for a new hearing in damages. We otherwise affirm
the court’s judgment.
The following facts, as found by the court, and proce-
dural history are relevant to our resolution of the defen-
dant’s claims on appeal. The plaintiff lived in Waterbury
and commuted to work in Monroe. In September, 2012,
she determined that she needed a more reliable automo-
bile, and she visited the defendant’s used car dealership
and met with one of its sales representatives. During
that first visit, she expressed an interest in buying a
Jeep that she saw on the sales lot and provided a $500
deposit to hold the vehicle. She returned to the dealer-
ship on October 1, 2012, and looked at other vehicles.
On that date, she test-drove a 2008 Saab. She expressed
her interest in purchasing the Saab and changed her
deposit to that vehicle. A retail purchase order was
completed and signed by the plaintiff on October 1,
2012. The purchase order indicated that the mileage on
the Saab’s odometer was 65,738.
The vehicle was serviced by the defendant on October
5, 2012. At that time, a repair order was completed that
listed the vehicle’s mileage as 65,743.
The plaintiff returned to the defendant’s business on
October 10, 2012—this time with her fiance´. They test-
drove the Saab for a second time. After the plaintiff
indicated that she wanted to purchase the Saab, the
defendant prepared the necessary paperwork, which
included an invoice, loan documents, registration, an
odometer statement, and a new retail purchase order
listing the total cash price for the vehicle as $16,267.67.
The October 10, 2012 odometer statement indicated that
the Saab had 65,738 miles. That mileage was identical
to the odometer reading listed on the October 1, 2012
retail purchase order, despite the additional test drive
that occurred on October 10, 2012. The mileage was
also less than the mileage recorded on the October 5,
2012 repair order.
The plaintiff finalized the purchase and took posses-
sion of the Saab on October 17, 2012. When she returned
that day, she noted that the car had been returned to
the sales lot rather than placed in a secure location. Her
understanding was that the vehicle would be separated
from other inventory so that it would not be test-driven
by other potential customers. She noticed that the Saab
had additional miles on the odometer since she first
expressed her interest in purchasing it.3 The defendant
did not prepare a new odometer reading on October
17, 2012, when the plaintiff completed the purchase
documents and accepted delivery of the Saab. Included
among the various purchase documents was a limited
express warranty, mandated by statute, covering speci-
fied parts for sixty days or 3000 miles, whichever
occurred first.4 See General Statutes § 42-221 (b). The
warranty, which was dated October 17, 2012, did not
contain a specific odometer reading. In fact, none of the
purchase documents indicated the odometer reading
as of October 17, 2012, the day of delivery. Although
the plaintiff noted a chemical smell coming from the
vehicle that day, she was told that this would burn off.
On Friday, December 7, 2012, during her commute
to work, the plaintiff began experiencing problems with
the vehicle’s operation. The next day, she called the
defendant to alert it to the problems and, later that same
day, brought the vehicle to the defendant’s business. A
representative of the defendant drove the vehicle to
determine if there was a problem, but the plaintiff was
told that the service department was not open on that
Saturday and that she needed to return with the vehicle
at a later date. No paperwork was completed by the
defendant on that date to memorialize the nature of the
plaintiff’s complaint, the condition of the vehicle, or
the vehicle’s mileage as of that date.
The plaintiff returned with the vehicle on the follow-
ing Monday, December 10, 2012. At that time, a repair
order was completed. Although the typed portion of
the repair order form indicated that the ‘‘current mile-
age’’ was 65,743, in the next box designating ‘‘mileage
out,’’ there is a handwritten indication that the mileage
was 68,931. The form also listed incorrectly the ‘‘deliv-
ery date’’ as October 3, 2012. Handwritten notes on the
form indicated ‘‘needs engine’’ and estimated repairs
totaling $5000.
At some point, the defendant informed the plaintiff
that the vehicle would need a new engine and that the
repairs would not be covered by her warranty because
the car was 188 miles over the mileage warranty limit
of 3000 miles. The defendant attempted to convince the
plaintiff to enter into a new contract with it to replace
the vehicle. The plaintiff retained counsel, who, on April
9, 2013, sent a letter to the defendant revoking accep-
tance of the vehicle and demanding that the defendant
return all moneys paid in connection with the purchase
of the Saab. The plaintiff filed the present action on
January 31, 2014, challenging, inter alia, the defendant’s
denial of her warranty claim.
The complaint contained six counts. Count one
alleged a breach of the implied warranty of merchant-
ability and asserted that the vehicle was not in mer-
chantable condition when sold to the plaintiff and was
not fit for the ordinary purpose for which a car is used.
See General Statutes § 42a-2-314 (1) (‘‘[u]nless excluded
or modified as provided by section 42a-2-316, a warranty
that the goods shall be merchantable is implied in a
contract for their sale if the seller is a merchant with
respect to goods of that kind’’).
Count two alleged a violation of the Magnuson-Moss
Act. Specifically, the plaintiff alleged that the vehicle
was a consumer product as defined by the act and that
the defendant, as a warrantor under the act, had ‘‘failed
to comply with its obligations under the implied war-
ranty of merchantability’’ and, thus, was liable to her
for ‘‘her damages, reasonable attorney’s fees and costs
pursuant to 15 U.S.C. § 2310 (d).’’5 (Emphasis added.)
Count three alleged a violation of the express war-
ranty, in accordance with § 42-221, that she was pro-
vided at the time of the sale.6 In particular, she claimed
that the vehicle had been sold with the statutorily
required warranty that it would be mechanically opera-
tional and sound for at least sixty days or 3000 miles,
and that she possessed and controlled the vehicle for
less than sixty days and operated the vehicle for less
than 3000 miles at the time she reported her operational
problems to the defendant.
Count four alleged that the defendant committed
fraud by registering the sale of the vehicle to her with
the Department of Motor Vehicles using an odometer
reading that was significantly lower than the actual
odometer reading on the vehicle as of the date of deliv-
ery. The defendant allegedly then used that fraudulently
disclosed odometer reading to deny her claim for
repairs under the warranty.
Count five alleged that she had ‘‘justifiably and effec-
tively’’ revoked her acceptance of the Saab on April 9,
2013, and that the defendant had refused to return all
amounts paid by the plaintiff. See General Statutes
§ 42a-2-608.7
Finally, count six alleged that the defendant’s actions
violated the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq. According
to the plaintiff, the defendant had engaged in unfair
and deceptive acts or practices by, inter alia, commit-
ting fraud with respect to the odometer readings and
then using that fraud to deny the plaintiff warranty
coverage; failing to abide by any implied warranties;
and failing to recognize the plaintiff’s revocation of
acceptance. In addition to damages, the plaintiff sought
attorney’s fees, costs, and punitive damages pursuant
to CUTPA.
The matter was tried to the court, Brazzel-Massaro,
J., on September 16, 2015. At the close of the plaintiff’s
case, the defendant moved for a judgment of dismissal
as to all counts of the complaint on the ground that
the plaintiff had failed to make out a prima facie case.
See Practice Book § 15-8.8
With respect to count one, the defendant argued that
in order to prove a breach of the implied warranty of
merchantability, the plaintiff needed to have produced
some evidence that the vehicle was not in a merchanta-
ble condition at the time the vehicle was sold to her.
According to the defendant, the only evidence before
the court demonstrated that the vehicle was in proper
working condition when it was sold and that it was
utilized thereafter by the plaintiff, without difficulties,
for a considerable period of time.
As to count two alleging a violation of the Magnuson-
Moss Act, the defendant argued that the act was
designed primarily to ensure that warranties were prop-
erly disclosed and explained to consumers, and that
the plaintiff had presented no evidence demonstrating
any disparity or disagreement as to the terms of the
express warranty at issue in the present case, which
was disclosed in writing to the plaintiff.
The defendant initially argued that there was no evi-
dence presented that the defendant had breached the
express warranty as alleged in count three because the
only credible evidence presented demonstrated that the
vehicle had been driven more than 3000 miles at the
time it was presented for warranty repairs. The defen-
dant later conceded, however, that the evidence the
plaintiff had presented thus far may have been sufficient
to raise a factual dispute regarding that issue.
According to the defendant, the plaintiff also had
failed to produce any evidence, let alone clear and con-
vincing evidence, demonstrating that the defendant mis-
represented a material fact or had the necessary intent
to support the allegation of fraud in count four.
Regarding the fifth count alleging a revocation of
acceptance, the defendant argued that this claim failed
as a matter of law because the evidence presented dem-
onstrated that the purported revocation was not made
within a reasonable period of time. Specifically, the
revocation was made via an April, 2013 letter, which
was six months after the vehicle was delivered to the
plaintiff and four months after the warranty dispute
arose.
Finally, the defendant argued that the plaintiff had
failed to establish a prima facie case of a CUTPA viola-
tion as alleged in count six. The defendant again noted
that the plaintiff had failed to present any evidence
rising to the level of fraud, which it claimed was the
only stated basis in the complaint for the CUTPA count.
In response, the plaintiff argued that the court should
deny the defendant’s motion to dismiss as to all six
counts. The plaintiff first argued that she had presented
evidence that the vehicle needed a new engine to be
operable and that this was sufficient to move forward
on the claim of breach of the implied warranty of mer-
chantability, which requires that goods be fit for the
ordinary purpose for which they are sold. With respect
to the Magnuson-Moss count, the plaintiff argued that
it goes ‘‘hand in hand with the express warranty as
provided by state statute’’ and, thus, was directly linked
to the breach of the express warranty as alleged in count
three of the complaint. The plaintiff further argued that
she had established a prima facie case of breach of the
express warranty because, according to her testimony,
she had provided the defendant with notice of her war-
ranty claim prior to its expiration, even if the vehicle
had been driven in excess of 3000 miles by the time
the vehicle was brought into the dealer to effectuate
the necessary repairs.9 With respect to the fraud count,
the plaintiff argued that she had established a prima
facie case on the basis of both the discrepancies in the
mileage recorded on the purchase paperwork and the
fact that the defendant tried to get her to spend more
money on a replacement vehicle without first informing
her that the repairs to the Saab fell outside the warranty
period. The plaintiff disagreed with the defendant that
her attempt to revoke the sale was not made within a
reasonable time after discovering the ground for revoca-
tion. Finally, the plaintiff essentially argued that her
CUTPA claim was not solely based upon fraud but upon
a multitude of unfair and deceptive practices by the
defendant and that the CUTPA count remained viable
on the basis of the evidence presented.
After hearing argument from the parties and consider-
ing a memorandum of law submitted by the defendant,
the court issued the following oral decision: ‘‘As to
count one, the court is going to dismiss count one. I
don’t think that the plaintiff has presented sufficient
evidence to indicate that there’s been any implied war-
ranty of merchantability that has been in any way
proven by you. I do agree with defense counsel that I
think you needed more than just to say that the car
broke down. It was obviously working at the time. [The]
plaintiff testified that she took it for two test drives,
and it seemed to be fine, and everything was good
about it, had been through whatever mechanical work
it needed to have done in order to put it on the lots,
so there’s nothing to indicate that, in fact, that there
was at the time that she took it off the lot a problem
with the car.
‘‘The other counts do create some concern. And some
question I think is still left in the mind of the court as
to count[s] two, three, and four, how—so, I will not
grant the motion to dismiss as to each of those counts.
I think a lot of that has to do with the time period and
also what the miles were on the car. The court has
heard evidence which could be interpreted in many
ways as to what the mileage of the car was from the
time that she first picked it up on October 17 [2012]
until the first time at the dealer, which was December
the 10th—I’m sorry—December the 8th, when it was
actually driven by somebody, as the plaintiff has testi-
fied—I haven’t heard anything that would be contrary
to that—on December the 8th to the dealer. So, counts
two, three, and four, the court will not grant the motion
to dismiss.
‘‘I will grant the motion to dismiss as to the CUTPA
claim. I don’t think that there’s sufficient evidence to
rise to the level of a CUTPA claim—or, I’m sorry, that’s
count six as to the CUTPA claim—simply because the
car broke down at some point and there’s a question
about the warranty. I think that the level of evidence
that’s necessary in a CUTPA claim has not been satisfied
in this particular action.
‘‘As to count five regarding revocation of acceptance,
I noted that exhibit 3, which was provided to the court,
was actually a letter that was provided to her counsel
some months later to the dealer. There doesn’t seem
to be any evidence other than that there was a revoca-
tion of acceptance. In fact, they were in negotiations
going back and forth. I don’t think there was a revoca-
tion of acceptance. And I would grant the motion to
dismiss as to count five also.
‘‘So, what we have remaining is counts two, three,
and four of the complaint.’’ (Emphasis added.)
The defendant then proceeded to put on its evidence.
At the close of all evidence, the court instructed the
parties that it would accept simultaneous posttrial
briefs of ten pages or less on or before September 30,
2015. Each party submitted a memorandum of law on
that date. No motion for reconsideration ever was filed
regarding those counts of the complaint that were dis-
missed during the trial, nor did the court ever open,
vacate, or modify its judgment dismissing counts one,
five and six.
On October 30, 2015, the court issued a memorandum
of decision. After setting forth its factual findings, the
court first indicated that it had already ‘‘directed a ver-
dict’’ as to counts five and six, and that the remaining
causes of action to be considered were those in counts
one through four. Although technically the court had
dismissed certain counts rather than having ‘‘directed
a verdict’’ for a particular party, the court’s failure to
recognize that it had already disposed of count one is
far more significant to our analysis, as we discuss in
parts I and II of this opinion.
The court next turned to a discussion of what it aptly
identified as the primary factual dispute in this case,
namely, whether the 3000 mile provision of the express
warranty had lapsed by the time the plaintiff sought
coverage under the warranty. The court determined,
on the basis of the paperwork that had been admitted
into evidence and the testimony of witnesses, that the
defendant had failed to document accurately the vehi-
cle’s odometer readings throughout its dealings with
the plaintiff. The court noted that accurate odometer
readings were essential to evaluating warranty claims
and found that the lack of accurate documentation in
the present case was detrimental to the plaintiff’s ability
to establish her rights under the warranty. The court
thus resolved any factual dispute regarding mileage in
favor of the plaintiff. In particular, the court found that
the defendant’s errors regarding the odometer readings,
when coupled with the fact that the plaintiff was permit-
ted to engage in additional and significant travel after
the defendant had received notice of a claimed defect
but prior to its evaluation of the vehicle, provided a
sufficient basis on which the court could ‘‘determine
that the plaintiff was within the warranty period and,
thus, there [was] a breach of warranty’’ by the defen-
dant. The court stated: ‘‘Although the actions of the
defendant can be characterized as careless and sloppy,
they are also dishonest in that when the car left the
lot on October 17, 2012, the plaintiff was relying on a
warranty that was not appropriately calculated, and
the mileage was not accurately noted by the defendant
when she first brought the car to the defendant dealer
on December 8 or December 10, 2012.’’
The court then continued its analysis by turning to
a discussion of each of the purportedly unresolved
counts, stating: ‘‘Having determined that the plaintiff
was within the warranty period, the court examines the
claims.’’ With respect to count one alleging a breach of
the implied warranty of merchantability, which it had
already dismissed, the court found that the defendant
had sold the vehicle with an assurance of merchantabil-
ity, and that it would not be expected that a vehicle
with a cash value of more than $16,000 would need a
new engine costing between $4000 and $5000. The court
found that the vehicle was not in merchantable condi-
tion because it was not fit for the ordinary purpose for
which it was intended, which the court identified as
‘‘normal and reliable driving to work and elsewhere.’’
The court concluded that the plaintiff was entitled to
recover her actual damages, which the court calculated
to be ‘‘so much of the price as has been paid through
her trade-in allowance of $4500 and the additional costs
of $800 as the gap contract and title and government
license and registration fees of $135 for a total of
$5435 . . . .’’
Turning to count two, the court indicated that the
Magnuson-Moss Act permits a consumer to sue a war-
rantor for a breach of a written or implied warranty,
but creates no additional basis for liability, limiting
recovery to those damages existing under state law plus
reasonable attorney’s fees. In other words, the court
noted, claims under the Magnuson-Moss Act ‘‘stand or
fall with [the] express and implied warranty claims
under state law.’’ The court concluded that ‘‘based upon
the finding by the court that there is liability for breach
of warranty, the plaintiff is entitled to the $5435 actual
damages as awarded for the breach of warranty and
reasonable attorney’s fees . . . .’’
The court next awarded the plaintiff her actual dam-
ages of $5435 for violation of the express warranty as
alleged in count three. The court found that the plaintiff
had proven her cause of action because, as it already
determined, at the time the plaintiff submitted her
request for repairs, the vehicle had been driven less
than 3000 miles and, thus, remained under warranty.
Finally, as to the fraud allegations in count four, the
court also ruled in favor of the plaintiff. After setting
forth the elements of a cause of action sounding in
fraud and properly noting that fraud must be proven
by ‘‘ ‘clear and satisfactory’ ’’ evidence, the court stated:
‘‘In this action, the defendant was the party responsible
for recording accurately the odometer readings. The
testimony of [the defendant’s representative] is that
when repairs are done, the miles are first noted by the
service department in the [repair order]. This testimony
is not accurate, given the documents which the court
has earlier described as cookie cutter because it
appears that the numbers are not an accurate reflection
of the odometer, but are more a copying from
paperwork. The defendant provided the plaintiff with
the warranty not on October 10 but on October 17, 2012
when she came back to the dealer. Their failure to do
an actual reading with the warranty is not only sloppy
but can be viewed in no other way than as a deliberate
act to record lower miles knowing that the car has been
driven to emissions, for a number of test drives and
repair work. The statement of the mileage is not correct
based upon the testimony and the dealer’s records. It
must be known to the dealer when there has been no
change in the mileage although the car has been on the
lot presumably with test drives, servicing, and emis-
sions testing that the readings should reflect these nor-
mal activities. The plaintiff relied upon the defendant
in establishing the base number for her warranty, and
there is no testimony that anyone ever looked specifi-
cally at the odometer to record the mileage (other than
possibly sometime after the plaintiff returned the sec-
ond time for repairs), even for the mandated odome-
ter reporting.
‘‘Therefore, the plaintiff has proven that the defen-
dant’s actions were fraudulent in failing to properly
record the odometer readings, refuse warranty cover-
age, and attempt to have her enter into other purchase
contracts with the defendant to replace the car. These
acts demonstrate fraudulent misconduct in the form
of deceit and misrepresentation by the defendant and
impacted the plaintiff. Thus, the plaintiff is entitled to
the actual damages of $5435 and punitive damages in
the amount of $15,000.’’ In summarizing its decision,
the court indicated that it was awarding the plaintiff
‘‘actual damages of $5435, punitive damages in the
amount of $15,000 and reasonable attorney fees in
accordance with count two to be awarded upon the
submission to the court of an affidavit filed by [the]
plaintiff’s counsel and the costs as submitted by the
plaintiff in the attachment to the memorandum dated
September 30, 2015.’’10
On November 6, 2015, the plaintiff filed a motion for
counsel fees, attached to which was an affidavit of
attorney’s fees in the amount of $6655.35. The plaintiff
also submitted a bill of costs totaling $668.58. On
November 18, 2015, the defendant filed an objection
challenging the reasonableness of the requested fees
and costs. That same day, the defendant timely filed
the present appeal from the court’s October 30, 2015
judgment.11
The court heard argument regarding attorney’s fees
on November 30, 2015, granted the plaintiff’s motion,
and overruled the defendant’s objection. The court fur-
ther awarded the plaintiff additional attorney’s fees for
the time spent filing and arguing the postjudgment
motion. The plaintiff submitted a supplemental affidavit
of attorney’s fees later that day in the amount of $390,
which the court granted on December 14, 2015, bringing
the total award of attorney’s fees to $7045.35. The defen-
dant amended this appeal on January 4, 2016, disputing
the award of attorney’s fees.
Before turning to the claims raised by the defendant,
it is important to take note of what has not been chal-
lenged by the defendant in the present appeal. In sum-
marizing its arguments, the defendant suggests in its
brief that if this court were to rule in the defendant’s
favor as to all claims, we should reverse the court’s
judgment ‘‘in its entirety.’’ The defendant, however,
failed to advance or adequately brief any claims on
appeal regarding the court’s decision holding the defen-
dant liable under count three of the complaint for
breach of the express statutory warranty and awarding
compensatory damages on that count in the amount of
$5435. Although the defendant states in its reply brief
that such a claim was ‘‘discussed at length’’ in its main
brief, there is no mention of this claim in the statement
of issues, and the only discussion resembling a chal-
lenge to the court’s finding of a breach of the express
warranty comes within the defendant’s discussion of
the Magnuson-Moss count and contains no legal cita-
tions or references to the record. Indeed, the plaintiff
did not brief issues related to the express warranty
count, presumably because she did not construe the
defendant’s brief on appeal as challenging the court’s
determination on that count. Accordingly, even if the
defendant were to prevail on all the claims raised and
briefed, the practical effect would not be a judgment
for the defendant ‘‘in its entirety,’’ but merely a potential
reduction in the overall damages award to $5435. Hav-
ing noted the limits of this appeal, we turn to our discus-
sion of the claims raised.
I
The defendant first claims that the court improperly
rendered judgment in favor of the plaintiff on count
one of the complaint alleging a breach of the implied
warranty of merchantability because the court pre-
viously had dismissed that count pursuant to Practice
Book § 15-8. We agree.
Whether the court properly rendered judgment on a
previously disposed count presents a question of law
over which we exercise plenary review. There is no
dispute that, after the plaintiff presented her evidence
at trial and rested, the defendant made an oral motion to
dismiss all counts of the complaint pursuant to Practice
Book § 15-8. ‘‘For the court to grant [a] motion [for
judgment of dismissal pursuant to Practice Book § 15-
8], it must be of the opinion that the plaintiff has failed
to make out a prima facie case. In testing the sufficiency
of the evidence, the court compares the evidence with
the allegations of the complaint. . . . In order to estab-
lish a prima facie case, the proponent must submit
evidence which, if credited, is sufficient to establish
the fact or facts which it is adduced to prove. . . .
[T]he evidence offered by the plaintiff is to be taken
as true and interpreted in the light most favorable to
[the plaintiff], and every reasonable inference is to be
drawn in [the plaintiff’s] favor.’’ (Citation omitted; inter-
nal quotation marks omitted.) Gambardella v. Apple
Health Care, Inc., 86 Conn. App. 842, 846, 863 A.2d
735 (2005).
Applying that standard in the present case, the court
clearly and unequivocally rendered a judgment of dis-
missal as to count one of the plaintiff’s complaint.12 The
court stated on the record: ‘‘As to count one, the court
is going to dismiss count one.’’ It also dismissed counts
five and six, indicating at the close of its oral decision
that ‘‘what we have remaining is counts two, three, and
four of the complaint.’’ The trial proceeded, therefore,
only as to those counts. In dismissing count one, the
court indicated: ‘‘I don’t think that the plaintiff has pre-
sented sufficient evidence to indicate that there’s been
any implied warranty of merchantability that has been
in any way proven by you.’’ Once the court had dis-
missed count one, it effectively was removed from the
case, and the court had no authority to address the
merits of that dismissed count in its final decision or
to award damages on the basis of that dismissed cause
of action.
It is true that a court has the authority, even sua
sponte, to correct clerical errors in a prior judgment
or to clarify or interpret an ambiguous judgment. Sanzo
v. Sanzo, 137 Conn. App. 216, 222 n.5, 48 A.3d 689(2012). The court may also open a judgment, although
generally the court will not do so absent a motion by
a party. See Carabetta v. Carabetta, 133 Conn. App.
732, 735–36, 38 A.3d 163 (2012). If the court in the
present case determined that its prior dismissal of count
one was somehow in error and, thus, should be opened
and set aside, it never indicated this to the parties on
the record prior to rendering judgment. On the basis
of the record before us, we decline to construe the
court’s subsequent ruling on the merits as an implicit
reversal sua sponte of its prior determination that the
plaintiff had failed to present a prima facie case. Doing
so here would unfairly prejudice the defendant, which
never had an opportunity to present its own evidence
in defense of count one, believing it was dismissed.
The only argument made by the plaintiff in response
to this claim is that any mistake by the court in ruling
on count one is harmless because the court awarded
the same measure of damages with respect to count
three of the complaint alleging breach of the express
warranty. That does not justify or excuse the error, and
speaks only to the damages awarded, not the finding
of liability. Simply put, any judgment rendered on the
merits of a previously dismissed count, in the absence
of any proper restorative action, amounts to reversible
error. The judgment for the plaintiff on count one,
accordingly, is vacated.
II
Next, the defendant claims that the court improperly
determined that the defendant had violated the Magnu-
son-Moss Act, 15 U.S.C. § 2310 (d), because the plaintiff
had pleaded in count two of the complaint that the
Magnuson-Moss violation was the result of the defen-
dant’s failure to comply with its obligations under the
implied warranty of merchantability. It argues that any
judgment for the plaintiff on count two, therefore, was
logically incongruous with the court’s dismissal of
count one, which alleged a breach of the implied war-
ranty of merchantability. We agree.
‘‘Magnuson-Moss, enacted by Congress in 1975, is not
limited in its application to the sale of automobiles but
applies to consumer products in general. It does not
require that warranty be given, but if there is a written
warranty, Magnuson-Moss imposes certain require-
ments as to its contents, disclosures, and the effect
of extending a written warranty.’’ (Emphasis omitted.)
Szajna v. General Motors Corp., 115 Ill. 2d 294, 312–13,
503 N.E.2d 760 (1986). A Magnuson-Moss Act violation
may be premised upon either the breach of an express
or implied warranty or both. See 15 U.S.C. § 2310 (d)
(1) (2012); see also Sandoval v. PharmaCare US, Inc.,
145 F. Supp. 3d 986, 998 (S.D. Cal. 2015) (explaining
Magnuson-Moss ‘‘allows consumers to enforce written
and implied warranties in federal court, borrowing state
law causes of action’’ [internal quotation marks omit-
ted]). If a Magnuson-Moss claim is premised solely upon
a state law warranty claim, the Magnuson-Moss claim
will ‘‘stand or fall’’ with the state law claims. Clemens
v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 and n.3
(9th Cir. 2008). Accordingly, we must first look to the
pleadings to decide the scope of the plaintiff’s Magnu-
son-Moss claim in the present case and whether the
defendant was entitled to judgment on that count
because of the dismissal of the associated state law
claim.
‘‘The interpretation of pleadings is always a question
of law for the court . . . . [W]e long have eschewed the
notion that pleadings should be read in a hypertechnical
manner. Rather, [t]he modern trend, which is followed
in Connecticut, is to construe pleadings broadly and
realistically, rather than narrowly and technically. . . .
[T]he complaint must be read in its entirety in such a
way as to give effect to the pleading with reference to
the general theory upon which it proceeded, and do
substantial justice between the parties. . . . Our read-
ing of pleadings in a manner that advances substantial
justice means that a pleading must be construed reason-
ably, to contain all that it fairly means, but carries with
it the related proposition that it must not be contorted
in such a way so as to strain the bounds of rational
comprehension. . . . Although essential allegations
may not be supplied by conjecture or remote implica-
tion . . . the complaint must be read in its entirety in
such a way as to give effect to the pleading with refer-
ence to the general theory upon which it proceeded,
and do substantial justice between the parties. . . . As
long as the pleadings provide sufficient notice of the
facts claimed and the issues to be tried and do not
surprise or prejudice the opposing party, we will not
conclude that the complaint is insufficient to allow
recovery.’’ (Citations omitted; internal quotation marks
omitted.) Grenier v. Commissioner of Transportation,
306 Conn. 523, 536–37, 51 A.3d 367 (2012).
Turning to the complaint in the present case, we
note that count one alleged a violation of the implied
warranty of merchantability as expressed in this state’s
Uniform Commercial Code, General Statutes § 42a-2-
314. Count two, alleging a violation under the Magnu-
son-Moss Act, immediately followed and incorporated
the allegations of count one. After alleging facts neces-
sary to invoke the protection of the federal statute, the
plaintiff alleged: ‘‘[The] defendant failed to comply with
its obligations under the implied warranty of merchant-
ability, and it is liable to the plaintiff for her damages,
reasonable attorney’s fees and costs pursuant to 15
U.S.C. § 2310 (d).’’ Thus, the reasonable and rational
construction of that count is that the plaintiff’s general
theory of recovery with respect to the Magnuson-Moss
count hinged upon the state law claim in count one,
which alleged a violation of the implied warranty of
merchantability. Although, on appeal, the plaintiff
attempts to shift the focus away from the breach of
implied warranty count and to tie the Magnuson-Moss
allegations to its claim of a breach of the express war-
ranty, there is simply no support for that in the
pleadings.
The breach of express warranty claim is found in
count three of the complaint. That count, however, does
not incorporate any of the allegations set forth in count
one or two, and makes no mention of a violation of the
Magnuson-Moss Act. There are simply no allegations
set forth in count three that would have alerted the
court or the defendant that the plaintiff was alleging a
Magnuson-Moss violation on the basis of the breach of
express warranty count, which, up to that point in the
complaint, had not yet been pleaded. Having elected to
hinge its allegations of a Magnuson-Moss violation to
the breach of implied warranty claim asserted in count
one, the success or failure of the counts are inextrica-
bly tied.
In its memorandum of decision, the court summarily
found for the plaintiff on the Magnuson-Moss count on
the basis of its finding ‘‘that there is liability for breach
of warranty . . . .’’ Although this finding immediately
followed its ruling regarding the breach of the implied
warranty of merchantability, the court did not clearly
identify whether it was referring to that finding or to
its later holding that the defendant breached the express
written warranty as alleged in count three. It is, how-
ever, unnecessary to resolve this ambiguity because the
ruling would be improper under either scenario.
As we have explained, to the extent that the Magnu-
son-Moss Act violation found by the court was tied to
the alleged breach of the implied warranty of merchant-
ability, the court’s dismissal of the implied warranty
count for failure to make out a prima facie case should
have precluded any finding that such a breach formed
the basis for a Magnuson-Moss Act violation. On the
other hand, if the court intended to hold that the plaintiff
proved a Magnuson-Moss violation on the basis of its
finding of a breach of the express warranty, that deter-
mination would be improper because the plaintiff never
pleaded such a violation. See Brochu v. Brochu, 13
Conn. App. 681, 684, 538 A.2d 1093 (1988) (‘‘[i]t is funda-
mental in our law that the right of a plaintiff to recover
is limited to the allegations of his complaint’’ [internal
quotation marks omitted]). Accordingly, we agree with
the defendant that the court improperly ruled in favor
of the plaintiff on count two, and that portion of the
judgment is reversed.
III
The defendant next claims that the court improperly
awarded the plaintiff attorney’s fees in addition to com-
pensatory damages. The defendant argues that the
plaintiff was not entitled to recover her attorney’s fees
as a matter of law and that the amount of attorney’s
fees was unreasonable. We agree that the plaintiff was
not entitled to recover attorney’s fees.
‘‘Ordinarily, we review the trial court’s decision to
award attorney’s fees for abuse of discretion. . . . This
standard applies to the amount of fees awarded . . .
and also to the trial court’s determination of the factual
predicate justifying the award. . . . [If], however, a
damages award is challenged on the basis of a question
of law, our review is plenary.’’ (Citation omitted; inter-
nal quotation marks omitted.) Chicago Title Ins. Co. v.
Accurate Title Searches, Inc., 173 Conn. App. 463, 496,
164 A.3d 682 (2017).
‘‘The general rule of law known as the American
rule is that attorney’s fees and ordinary expenses and
burdens of litigation are not allowed to the successful
party absent a contractual or statutory exception. . . .
This rule is generally followed throughout the country.
. . . Connecticut adheres to the American rule. . . .
There are few exceptions. For example, a specific con-
tractual term may provide for the recovery of attorney’s
fees and costs . . . or a statute may confer such
rights.’’ (Emphasis added; internal quotation marks
omitted.) ACMAT Corp. v. Greater New York Mutual
Ins. Co., 282 Conn. 576, 582, 923 A.2d 697 (2007).
In the present case, the court’s award of attorney’s
fees was a component of the damages for the purported
Magnuson-Moss Act violation as alleged in count two.
That act contains an express statutory exception to
the American rule. See Chrysler Corp. v. Maiocco, 209
Conn. 579, 588, 552 A.2d 1207 (1989) (‘‘Magnuson-Moss
[Act] gives authority to the court to grant attorney’s
fees in a civil suit’’).13
Because we have determined in part II of this opinion,
however, that the court improperly rendered judgment
in favor of the plaintiff on count two, the plaintiff cannot
reasonably rely upon that statutory grant of authority
as a legal basis for upholding the court’s award of attor-
ney’s fees with respect to count two. Further, attorney’s
fees also may be awarded at the discretion of the court
for a CUTPA violation, the court dismissed that count
of the complaint. The plaintiff has not cited in her brief
to this court any alternative statutory or common-law
basis for an award of attorney’s fees with respect to
count two. Accordingly, the court’s award of attorney’s
fees must be set aside. Because we determine that the
court improperly awarded attorney’s fees to the plaintiff
as a matter of law, at this juncture, we need not reach
the defendant’s additional argument that the amount of
attorney’s fees awarded by the court was unreasonable.
IV
The defendant next claims that the trial court incor-
rectly concluded that the defendant committed fraud
because the plaintiff failed to present clear and convinc-
ing evidence that the defendant made a false representa-
tion or had the requisite intent to defraud the plaintiff.
We are not persuaded.
‘‘Under the common law . . . it is well settled that
the essential elements of fraud are: (1) a false represen-
tation was made as a statement of fact; (2) it was untrue
and known to be untrue by the party making it; (3) it
was made to induce the other party to act upon it; and
(4) the other party did so act upon that false representa-
tion to his injury.’’ (Internal quotation marks omitted.)
Leonard v. Commissioner of Revenue Services, 264
Conn. 286, 296, 823 A.2d 1184 (2003). ‘‘It is well estab-
lished that common law fraud must be proven by a
higher standard than a fair preponderance of the evi-
dence. This middle tier standard has been described as
‘clear and satisfactory evidence’ and as ‘clear, precise
and unequivocal evidence.’ ’’ (Footnote omitted.) Kil-
duff v. Adams, Inc., 219 Conn. 314, 327–28, 593 A.2d
478 (1991); see also Wieselman v. Hoeniger, 103 Conn.
App. 591, 595 n.7, 930 A.2d 768 (2007) (describing bur-
den of proof in common-law fraud cases as requiring
‘‘clear and convincing evidence’’), cert. denied, 284
Conn. 930, 934 A.2d 245 (2007).
‘‘Fraud and misrepresentation cannot be easily
defined because they can be accomplished in so many
different ways. They present, however, issues of fact.
. . . The trier of facts is the judge of the credibility of
the testimony and of the weight to be accorded it. . . .
When the trial court finds that a plaintiff has proven
all of the essential elements of fraud, its decision will
not be reversed or modified unless it is clearly errone-
ous in light of the evidence and the pleadings in the
record as a whole. . . . A finding of fact is clearly erro-
neous when there is no evidence in the record to sup-
port it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed. . . . [A]s a reviewing court
[w]e must defer to the trier of fact’s assessment of the
credibility of the witnesses that is made on the basis
of its firsthand observation of their conduct, demeanor
and attitude. . . . The weight to be given to the evi-
dence and to the credibility of witnesses is solely within
the determination of the trier of fact. . . . In reviewing
factual findings, [w]e do not examine the record to
determine whether the [court] could have reached a
conclusion other than the one reached. . . . Instead,
we make every reasonable presumption . . . in favor
of the trial court’s ruling.’’ (Citation omitted; internal
quotation marks omitted.) Cohen v. Roll-A-Cover, LLC,
131 Conn. App. 443, 449–51, 27 A.3d 1, cert. denied, 303
Conn. 915, 33 A.3d 739 (2011).
In reviewing whether a plaintiff has proven her case
by clear and convincing evidence, we are cognizant that
the trier of fact ‘‘may draw reasonable, logical infer-
ences from the facts proven as long as [it does] not
resort to speculation and conjecture. . . . Insofar as
circumstantial evidence can be and is routinely used
to meet the higher standard of proof in a criminal prose-
cution, so can it be used in a case . . . [in which]
the applicable standard is that of clear and convincing
proof.’’ (Citations omitted; emphasis added.) In re Juve-
nile Appeal (85-2), 3 Conn. App. 184, 193, 485 A.2d
1362 (1985). With these principles in mind, we turn to
the defendant’s arguments.
The defendant first argues that the court improperly
found that the defendant made a false statement by
failing to disclose an accurate odometer reading
because the court had no evidence before it from which
to determine the vehicle’s true mileage either at the
time of sale or when the vehicle was delivered. Accord-
ingly, the defendant argues, there was no evidence to
refute the mileage as stated on the sales agreement or
the odometer statement. We disagree and conclude that
the court’s finding is supported by evidence in the
record and, thus, is not clearly erroneous.
Although the defendant is correct that, in her testi-
mony at trial, the plaintiff could not recall the precise
odometer readings she had observed, she did testify
that the odometer reading at the time of delivery on
October 17, 2012, was higher than what she observed
when test-driving the vehicle. The court was entitled
to credit that testimony. The court also had evidence
that the same mileage number was recorded on docu-
ments despite the reasonable inference that the mileage
should have increased as a result of subsequent test
drives by the plaintiff and by the defendant’s service
department.
The defendant also argues that there was no evidence
from which the court could have found that the defen-
dant intended to induce the plaintiff to rely upon the
inaccurately recorded mileage in order to influence her
decision to purchase the Saab. We disagree.
The court found, on the basis of the evidence pre-
sented and its assessments of the credibility of the
witnesses, including its negative view of the testimony
provided by the defendant’s service department repre-
sentative, that the vehicle’s mileage was not accurately
recorded by the defendant’s representatives on
paperwork. Rather, the court found that the mileage
was simply carried over in ‘‘cookie cutter’’ fashion from
one document to another. The court also found that
the defendant’s recording failures were not merely
sloppy but a deliberate attempt to record lower mileage,
and that this deceit and misrepresentation were done
to the detriment of the plaintiff because they impacted
her ability to take full advantage of the warranty period.
In considering whether there was clear and convincing
evidence of fraud, the court, as the trier of fact, was
permitted to draw reasonable inferences, including that
the defendant’s actions were intended to induce the
plaintiff’s reliance upon its representations and that
she purchased the vehicle believing the sale included
warranty coverage for 3000 miles, when in fact, due to
the defendant’s actions, the vehicle warranty would
expire after fewer miles, lowering the value of the vehi-
cle and reducing the defendant’s potential liability for
repairs.14
We conclude, on the basis of our review of the record,
including the court’s memorandum of decision, that the
court’s determination that the defendant engaged in
fraud was legally and logically correct and supported
by the evidence adduced at trial. The defendant’s claim
to the contrary, therefore, fails.
V
Finally, the defendant claims that the court improp-
erly awarded the plaintiff punitive damages of $15,000.
We agree.
‘‘Punitive damages may be awarded upon a showing
of fraud.’’ Plikus v. Plikus, 26 Conn. App. 174, 180,
599 A.2d 392 (1991). Common-law punitive damages,
however, are limited under well established Connecti-
cut law ‘‘to litigation expenses, such as attorney’s fees,
less taxable costs.’’ Hylton v. Gunter, 313 Conn. 472,
484, 97 A.3d 970 (2014).
In the present case, the court awarded $15,000 in
punitive damages under the fraud count without
explaining the factual basis for that order. The court
had no evidence before it regarding the total litigation
expenses of the plaintiff. Although the plaintiff had sub-
mitted an affidavit from the plaintiff’s attorney claiming
attorney’s fees of nearly $7000, the plaintiff did not
provide any evidence from which the court reasonably
could have inferred an additional $8000 in nontaxable
costs. In other words, there is simply no evidentiary or
legal basis supporting the court’s award of $15,000 in
punitive damages. Accordingly, although we conclude
that some award of punitive damages was permissible
in conjunction with the fraud count, a new hearing in
damages is necessary to determine the actual amount
of the plaintiff’s litigation expenses, which, in addition
to reasonable attorney’s fees, will include other nontax-
able costs.
The judgment is vacated as to count one and reversed
as to count two, including the award of attorney’s fees,
and the case is remanded with direction to render judg-
ment in favor of the defendant as to those counts; the
award of punitive damages in connection with count
four is vacated and the case is remanded with direction
to conduct a new hearing in damages consistent with
this opinion; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
The court previously dismissed counts five and six, which alleged a
revocation of acceptance and a violation of the state’s unfair trade practices
act, General Statutes § 42-110a et seq. The plaintiff has not appealed or
cross appealed from the court’s judgment of dismissal.
2
For clarity and ease of analysis, we address the defendant’s claims in
an order different from how they were presented in the defendant’s brief.
3
The plaintiff never provided any testimony quantifying how many addi-
tional miles she believed the vehicle had been driven.
4
Although the court states at several points in its memorandum of decision
that the express warranty had a durational term of three months, that finding
is not supported by the record, including the exhibit cited by the court.
That discrepancy, however, had no bearing on the court’s analysis or on
our review on appeal.
5
Section 2310 (d) of title 15 of the 2012 edition of the United States Code
provides in relevant part: ‘‘(1) . . . a consumer who is damaged by the
failure of a supplier, warrantor, or service contractor to comply with any
obligation under this chapter, or under a written warranty, implied warranty,
or service contract, may bring suit for damages and other legal and equita-
ble relief—
‘‘(A) in any court of competent jurisdiction in any State . . . .
‘‘(2) If a consumer finally prevails in any action brought under paragraph
(1) of this subsection, he may be allowed by the court to recover as part
of the judgment a sum equal to the aggregate amount of cost and expenses
(including attorneys’ fees based on actual time expended) determined by
the court to have been reasonably incurred by the plaintiff for or in connec-
tion with the commencement and prosecution of such action, unless the
court in its discretion shall determine that such an award of attorneys’ fees
would be inappropriate. . . .’’
6
General Statutes § 42-221 (b) provides in relevant part: ‘‘Each contract
entered into by a dealer for the sale of a used motor vehicle which has a
cash purchase price of five thousand dollars or more shall include an express
warranty, covering the full cost of both parts and labor, that the vehicle is
mechanically operational and sound and will remain so for at least sixty
days or three thousand miles of operation, whichever period ends first, in
the absence of damage resulting from an automobile accident or from misuse
of the vehicle by the consumer. . . .’’
7
General Statutes § 42a-2-608 (2) sets forth the conditions that must be
met before a revocation of acceptance following the discovery of a defect
will be valid, including that a revocation is not effective until ‘‘the buyer
notifies the seller of it’’ and that such a revocation must be made ‘‘within
a reasonable time’’ after the buyer discovers or should have discovered the
defect at issue.
8
Practice Book § 15-8 provides: ‘‘If, on the trial of any issue of fact in a
civil matter tried to the court, the plaintiff has produced evidence and rested,
a defendant may move for judgment of dismissal, and the judicial authority
may grant such motion if the plaintiff has failed to make out a prima facie
case. The defendant may offer evidence in the event the motion is not
granted, without having reserved the right to do so and to the same extent
as if the motion had not been made.’’
‘‘A prima facie case . . . is one sufficient to raise an issue to go to the
trier of fact. . . . In order to establish a prima facie case, the proponent
must submit evidence which, if credited, is sufficient to establish the fact
or facts which it is adduced to prove.’’ (Internal quotation marks omitted.)
Chen v. Hopkins School, Inc., 148 Conn. App. 543, 548, 86 A.3d 482 (2014).
9
The plaintiff’s theory, in part, is that the defendant was on notice of her
warranty claim when she first brought the vehicle into the dealership on
Saturday, December 8, 2012, but was told the repair shop was closed, a fact
disputed by the defendant. According to the plaintiff, the car was under the
mileage limit on Saturday, but she added more than 200 miles commuting
back and forth to work before the car could be seen by the defendant the
following Monday.
10
The record before us does not contain a bill of costs attached to the
plaintiff’s posttrial memorandum.
11
We note that, in Paranteau v. DeVita, 208 Conn. 515, 544 A.2d 634(1988), our Supreme Court adopted a ‘‘bright-line rule’’; id., 522; that ‘‘a
judgment on the merits is final for purposes of appeal even though the
recoverability or amount of attorney’s fees for the litigation remains to be
determined.’’ Id., 523.
12
‘‘A motion for judgment of dismissal has replaced the former motion
for nonsuit for failure to make out a prima facie case.’’ (Internal quotation
marks omitted.) Thomas v. West Haven, 249 Conn. 385, 391, 734 A.2d 535(1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000).
The remedy afforded in response to a successful motion brought pursuant
to Practice Book § 15-8 is accordingly more akin to a directed judgment on
the merits in favor of the proponent of the motion. Although it appears to
be somewhat of a misnomer to call the resulting judgment a judgment of
dismissal, we use that terminology nevertheless because it comports with
the language used in our rules of practice.
13
Specifically, 15 U.S.C. § 2310 (d) (2) provides in relevant part that a
prevailing plaintiff ‘‘may be allowed by the court to recover as part of the
judgment a sum equal to the aggregate amount of cost and expenses (includ-
ing attorneys’ fees based on actual time expended) determined by the court
to have been reasonably incurred by the plaintiff for or in connection with
the commencement and prosecution of such action, unless the court in its
discretion shall determine that such an award of attorneys’ fees would
be inappropriate.’’
14
To the extent that the defendant’s arguments can be construed as chal-
lenging whether the court had sufficient evidence from which to find that
the plaintiff purchased the vehicle in reliance on the defendant’s misrepre-
sentations, we deem any such claim abandoned for lack of adequate briefing.
‘‘We do not reverse the judgment of a trial court on the basis of challenges
to its rulings that have not been adequately briefed. . . . The parties may
not merely cite a legal principle without analyzing the relationship between
the facts of the case and the law cited. . . . [A]ssignments of error which
are merely mentioned but not briefed beyond a statement of the claim will
be deemed abandoned and will not be reviewed by this court.’’ (Internal
quotation marks omitted.) Clelford v. Bristol, 150 Conn. App. 229, 233, 90
A.3d 998 (2014).