Aldin Associates Ltd. Partnership v. Hess Corp. , 176 Conn. App. 461 ( 2017 )

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ALDIN ASSOCIATES LIMITED PARTNERSHIP
v. HESS CORPORATION ET AL.
(AC 38210)
DiPentima, C. J., and Mullins and Flynn, Js.
Syllabus
The plaintiff, a franchisee and owner of four gasoline stations, sought to
recover damages from the defendant franchisor, H Co., for violations
of the Connecticut Petroleum Product Franchise Act (act) (§ 42-133j et
seq.), and the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-
110a et seq.), and for breach of the implied covenant of good faith and
fair dealing. The plaintiff, which operated the gas stations as H Co.’s
franchisee pursuant to written dealer agreements that required the plain-
tiff to purchase gasoline solely from H Co., alleged in its complaint that
H Co. had stifled the plaintiff’s ability to compete with other gasoline
retail stations, causing it to incur losses in sales volumes and profits,
by charging unreasonably high wholesale gasoline prices. Five months
after the plaintiff filed a claim for a jury trial, H Co. objected on the
ground that the dealer agreements contained express waivers of the
plaintiff’s right to a jury trial. Approximately one year later, the court
conducted an evidentiary hearing and sustained the objection, conclud-
ing that the plaintiff had failed to meet its burden of establishing a lack
of intent to be bound by the jury trial waivers. A trial to the court
commenced approximately two months later, during which the plaintiff
argued that it had proved damages based on a summary of operations
for its gas stations that listed each station’s annual sales volume, profit,
and income. The trial court determined that the summary of operations
reflected that the plaintiff’s profit per gallon during the years in question
was less than the eight cents per gallon that H Co. had guaranteed, and,
consequently, the plaintiff had sustained a shortfall. The court rendered
judgment in favor of H Co. on all counts of the complaint, finding that,
even if the issues of liability and causation had been decided in the
plaintiff’s favor, the plaintiff had not proven damages as to any of its
causes of action with a sufficient degree of certainty. On the plaintiff’s
appeal to this court, held:
1. The plaintiff could not prevail on its claim that the trial court improperly
sustained H Co.’s objection to its claim for a trial by jury:
a. It was not clearly erroneous for the trial court to find that the plaintiff
had failed to prove, by a preponderance of the evidence, that it did not
intend to be bound by the waiver provisions, that court having properly
applied the relevant factors and found that the jury trial waiver provi-
sions, which were entered into prior to litigation, were presumptively
enforceable: the waivers were not inconspicuously buried in the dealer
agreements, the parties’ bargaining power was substantially similar, the
plaintiff’s general partner, who had negotiated and executed the
agreements, was a sophisticated business person who made a conscious
decision not to retain counsel, and the plaintiff had an opportunity to
negotiate the terms of the waiver, and the court’s findings with respect
to the conspicuousness of the waiver provisions and the equality of the
parties’ bargaining power were adequately supported by the evidence
adduced at the evidentiary hearing and were not clearly erroneous; more-
over, although the plaintiff claimed that there was a substantial inequality
of bargaining power that weighed against enforcement of the waiver
provisions, any pattern of coercive behavior by petroleum product suppli-
ers prior to the enactment of that act had no bearing on whether H Co.
engaged in any such conduct in the present case, and the court’s finding
that the parties enjoyed substantially similar bargaining power during the
negotiations of the dealer agreements was not rendered clearly erroneous
merely because the waiver provisions were negotiated as part of the
franchise agreements.
b. The jury trial waivers were not void under §§ 42-133l and 42-133n
of the act, which provide that a franchise agreement cannot waive a
franchisee’s right to bring an action in Superior Court for a violation of
the act; the waivers here did not prevent the plaintiff from bringing an
action against H Co., and, by its express terms, § 42-133n (a) merely
secures the right of a franchisee to bring an action for violations of the
act and is silent as to the franchisee’s right to have that action decided
by a jury rather than by a judge.
c. The trial court did not abuse its discretion by failing to overrule H
Co.’s objection to the plaintiff’s jury trial claim on the ground that the
objection was not timely filed, as the plaintiff cited no appellate decision
or rule of practice establishing a time limitation on the filing of an
objection to a jury trial claim; furthermore, the plaintiff was not unfairly
prejudiced with respect to its trial preparation by the timing of H Co.’s
objection or the trial court’s ruling thereon, as the plaintiff had ample
opportunity to obtain an earlier, prompt evidentiary hearing and resolu-
tion of the waiver issue, far in advance of the start of trial, but failed to
do so.
2. The trial court’s finding that the plaintiff had failed to present sufficient
evidence to establish its damages with reasonable certainty was clearly
erroneous and not supported by the record: for purposes of the counts
of the complaint alleging violations of the act and breach of the implied
covenant of good faith and fair dealing, the trial court’s finding that the
plaintiff had not provided the court with the evidence it would need to
compute damages was clearly erroneous, as it was inconsistent with
the court’s prior statement that the plaintiff’s summary of operations
reflected a certain amount of lost profits, which obligated the court to
find that the plaintiff had proven some damages with reasonable cer-
tainty, and the court improperly conflated the question of damages with
the question of causation, as the reasoning it used plainly hinged on
whether the plaintiff’s lost profits and sales volumes were caused by H
Co.’s allegedly improper conduct, which was an improper basis for
concluding that the plaintiff failed to prove damages with reasonable
certainty; moreover, the court’s finding that the plaintiff’s claim under
CUTPA failed because it had not presented sufficient evidence of the
amount of ascertainable loss was also clearly erroneous, as a loss of
customers, even in the absence of an accompanying monetary value of
that loss, constitutes an ascertainable loss for purposes of CUTPA, under
which the plaintiff was also entitled to claim punitive damages and
attorneys’ fees, and to have the court exercise its discretion to award
such damages.
Argued February 7—officially released September 19, 2017
Procedural History
Action to recover damages for, inter alia, the named
defendant’s alleged violation of the Connecticut Petro-
leum Product Franchise Act, and for other relief,
brought to the Superior Court in the judicial district of
Hartford, Complex Litigation Docket, where the com-
plaint was withdrawn as to the defendant A. F. Forbes,
Inc.; thereafter, the court, Miller, J., sustained the
named defendant’s objection to the plaintiff’s claim for
a jury trial; subsequently, the matter was tried to the
court, Miller, J.; judgment for the named defendant,
from which the plaintiff appealed to this court; there-
after, the court, Miller J., issued an articulation of its
decision. Reversed; further proceedings.
Richard P. Weinstein, with whom, on the brief, were
Dina S. Fisher and Sarah Black Lingenheld, for the
appellant (plaintiff).
Paul D. Sanson, with whom were Karen T. Staib
and, on the brief, Patrick M. Fahey, for the appellee
(named defendant).
Opinion
FLYNN, J. The plaintiff franchisee, Aldin Associates
Limited Partnership, commenced this three count
action against the defendant franchisor, Hess Corpora-
tion,1 alleging that the defendant stifled the plaintiff’s
ability to compete with other gasoline retail stations,
causing it to incur losses in sales volumes and profits,
by charging unreasonably high wholesale gasoline
prices in violation of the Connecticut Petroleum Prod-
uct Franchise Act, General Statutes § 42-133j et seq.,
the implied covenant of good faith and fair dealing, and
the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq. After denying the
plaintiff’s claim for a trial by jury on the ground that
the plaintiff had executed valid written waivers of its
right to a jury trial, the trial court conducted a bench
trial and rendered judgment for the defendant on all
three counts, finding that the plaintiff failed to prove
its damages with a sufficient degree of certainty. The
plaintiff appeals, claiming that the court (1) improperly
denied its claim for a trial by jury, and (2) erroneously
found that the plaintiff failed to prove damages as to
any of its causes of action with a sufficient degree of
certainty. We disagree with the plaintiff’s claim with
regard to the jury trial waivers, but agree that the court’s
finding that the plaintiff failed to prove damages with
the requisite degree of certainty was clearly erroneous.
Accordingly, we reverse the judgment of the trial court
and remand the case for further proceedings.
The following facts, which are either undisputed or
were found by the trial court in its memorandum of
decision, and procedural history are relevant to this
appeal. The plaintiff acquired three gas stations in
August, 2000, and a fourth in December, 2002.2 The
plaintiff operated them as the defendant’s franchisee
pursuant to written agreements entitled ‘‘Dealer
Agreement Gasoline Station’’ (dealer agreements).
Each dealer agreement3 required the plaintiff to pur-
chase gasoline and other products exclusively from the
defendant, to be resold by the plaintiff at retail prices.
With respect to the defendant’s pricing of wholesale
gasoline—a hotly contested issue throughout this
case—the dealer agreements required the defendant to
sell gasoline to the plaintiff at ‘‘dealer tankwagon
prices,’’ which were to be determined by the defendant
on the basis of the prices of competitors in the market-
ing area of each station at the time of delivery. Each of
the dealer agreements also contained a clause providing
that the parties ‘‘waive any right they may have to a
jury trial in any disputes hereunder.’’
The plaintiff commenced this lawsuit in December,
2010, alleging that, around 2005, the defendant began
charging dealer tankwagon prices that were arbitrary,
unreasonable, and substantially more expensive than
the wholesale gasoline prices it was charging to the
plaintiff’s competitors. The plaintiff asserted that the
increases to dealer tankwagon prices put each of its
four stations at a substantial competitive disadvantage
because, with higher wholesale prices, the stations
could no longer profitably charge retail prices that were
cheap enough relative to their competitors’ prices to
attract customers. The improper pricing, the plaintiff
asserted, caused it to incur losses in sales volumes and
profits. The plaintiff’s three count amended complaint
alleged that the defendant’s conduct violated several
provisions of the Connecticut Petroleum Product Fran-
chise Act, specifically, General Statutes § 42-133l (f) (5),
(6), and (7),4 the implied covenant of good faith and
fair dealing, and CUTPA.
On April 11, 2011, the plaintiff filed a claim for a trial
by jury. The defendant objected on the ground that the
dealer agreements contained express waivers of the
plaintiff’s right to a jury trial and that, pursuant to L &
R Realty v. Connecticut National Bank, 246 Conn. 1,
16, 715 A.2d 748 (1998), such waivers are presumptively
valid. The court held an evidentiary hearing on October
16, 2012, and found that the plaintiff had failed to carry
its burden of proving that the waivers were unenforce-
able. Accordingly, the court sustained the defendant’s
objection to the plaintiff’s request for a trial by jury and
denied the plaintiff’s subsequent motion for reconsid-
eration.
The court conducted a bench trial that commenced
on December 11, 2012, and concluded on December 10,
2013. Following the parties’ submissions of posttrial
briefs and proposed findings of fact, the court issued
a memorandum of decision on July 20, 2015, finding
for the defendant on all counts of the complaint. Specifi-
cally, the court found that the plaintiff failed to prove
damages with a sufficient degree of certainty. The court
rendered a judgment in accordance with that decision,
and this appeal followed. Additional facts and proce-
dural history will be set forth where necessary.
I
We first address the plaintiff’s claim that the court
improperly sustained the defendant’s objection to its
claim for a jury trial. In support of this claim, the plaintiff
argues that (1) the court erroneously concluded, on the
basis of the evidence adduced at the October 16, 2012
evidentiary hearing, that the plaintiff failed to demon-
strate that it did not intend to waive its jury trial rights,
(2) the express jury trial waivers in the dealer
agreements were void as a matter of law under § 42-
133l (j),5 and (3) the court abused its discretion by
failing to deny the defendant’s objection to the jury trial
claim on grounds of untimeliness. We address these
arguments in turn.
A
The plaintiff first argues that the court erred in finding
that it failed to carry its burden of demonstrating that
it did not intend to be bound by the jury trial waiver
provisions. We disagree.
Section 31 of each dealer agreement, entitled ‘‘Venue’’
and located on the last page just the parties’ signature
lines, provides as follows: ‘‘The rights of the parties
under this Agreement will be governed by the federal
law of the district in which the Station is located. All
disputes will be heard in the U.S. District Court and the
prevailing party will be entitled to recover its attorneys’
fees from the other party. Both parties waive any right
they may have to a jury trial in any disputes hereun-
der.’’6 (Emphasis added.)
On April 11, 2011, the plaintiff filed a claim for a trial
by jury. The defendant filed an objection asserting that,
on the basis of § 31 of the dealer agreements, the plain-
tiff waived its right to a trial by jury. In a ‘‘supplemental
reply’’ dated October 3, 2012, the plaintiff argued that,
on the basis of the factors set forth in L & R Realty v.
Connecticut National Bank, supra, 246 Conn. 15, the
jury trial waivers were unenforceable because they
were not executed knowingly and voluntarily. In sup-
port of this argument, the plaintiff submitted an affidavit
from David Savin, the plaintiff’s general partner who
negotiated and executed the dealer agreements,
wherein Savin averred that he ‘‘did not review the so-
called venue paragraph and was not aware of the jury
trial waiver,’’ that the plaintiff ‘‘was not represented by
an attorney to review the agreements,’’ that the plaintiff
‘‘did not negotiate any terms of the agreements,’’7 and
that he ‘‘executed the agreements as they were pre-
sented . . . without changes and without any discus-
sion as to the language in the agreements.’’ The plaintiff
asserted that an evidentiary hearing was necessary to
resolve the issue of whether the waivers were executed
knowingly and voluntarily.
The court conducted an evidentiary hearing on Octo-
ber 16, 2012, at which Savin testified for the plaintiff
and Michael McAfee, the defendant’s manager of retail
administration, testified for the defendant. Ruling from
the bench, the court sustained the defendant’s objection
to the jury trial claim. Relying on the L & R Realty
factors, the court concluded that express contractual
jury trial waivers like the ones at issue in the present
case are ‘‘presumptively enforceable,’’ and that ‘‘[t]he
evidence . . . has not established any reason why th[e]
waiver[s] should not be enforced.’’ In support of this
conclusion, the court found: ‘‘The waiver[s] . . .
[were] not buried in the [dealer] agreement[s]. [They
weren’t] as conspicuous as everyone might like, but
[they are] not buried. [They weren’t] designed to be
hidden. In any event, it is important to remember that
[these were] commercial contract[s] between two par-
ties. I’m not going to say [that the parties] were of
exactly equal bargaining power, but they were in sub-
stantially similar bargaining power. Neither one was in
a position to claim that it could be disadvantaged by
the other.
‘‘It’s clear that . . . Savin didn’t have counsel to
review the agreement[s], but that was his choice. . . .
I think that [Savin has] more experience reading con-
tracts than most attorneys do in all probability. But
there was a conscious decision made by a sophisticated
business person not to have counsel review the doc-
ument[s].
‘‘There is no other evidence which indicates a lack
of intent by either party to be bound by this waiver.
The evidence that there [were] negotiations between
the parties to the dealer agreement[s] . . . supports
the defendant, not the plaintiff. If the plaintiff had a
problem with the jury trial waiver[s], [they] might well
have been negotiated. In any event, other things in the
contract were negotiated. [The waivers] could have
been negotiated.’’ Accordingly, the court sustained the
defendant’s objection to the plaintiff’s claim for a trial
by jury and ordered the case to be tried before the court.
The plaintiff claims that the court erred in concluding
that it failed to meet its burden of establishing its lack
of intent to be bound by the jury trial waiver provisions.
Specifically, the plaintiff argues that the waivers are
inconspicuous because they are located within para-
graphs misleadingly entitled ‘‘Venue,’’ are not in bold
lettering or a different typeface, and generally fail to
‘‘call attention to the fact that the paragraph contains
a waiver of a constitutional right.’’ The plaintiff also
appears to assert that, because the Connecticut Petro-
leum Product Franchise Act was enacted for the pur-
pose of preventing franchisees from being coerced
during contract negotiations by franchisors, the defend-
ant, as the franchisor, had substantially more bargaining
power during contract negotiations. We are not per-
suaded.
‘‘[W]hether a party has waived his right to a jury trial
presents a question of fact for the trial court,’’ and our
review is limited to whether the finding was clearly
erroneous.8 (Internal quotation marks omitted.) L & R
Realty v. Connecticut National Bank, supra, 246 Conn.
8; see also Perricone v. Perricone, 292 Conn. 187, 208–
209, 972 A.2d 666 (2009). ‘‘A finding is clearly erroneous
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 mistake has been
committed.’’ (Internal quotation marks omitted.) L &
R Realty v. Connecticut National Bank, supra, 8–9.
‘‘The constitution of Connecticut, article first, § 19,
provides that [t]he right of trial by jury shall remain
inviolate. That provision guarantees the right to a jury
trial in all cases for which such a right existed at the
time of the adoption of that constitutional provision
in 1818.’’9 (Internal quotation marks omitted.) Id., 9.
Ordinarily, although the right to a jury trial may be
waived, a waiver cannot be inferred without ‘‘reason-
ably clear evidence of the intent to waive.’’ (Internal
quotation marks omitted.) Id., 10. Our Supreme Court
has identified the following factors that, generally
speaking, bear on the determination of whether a party
intended to waive their right to a jury trial: ‘‘(1) the
conspicuousness of the waiver clause, including (a) its
location relative to the signatures of the parties, (b)
whether it was buried in the middle of a lengthy
agreement, and (c) whether it was printed in a different
typeface or font size than the remainder of the contract;
(2) whether there was a substantial disparity in bar-
gaining power between the parties to the agreement;
(3) whether the party seeking to avoid enforcement
was represented by counsel; (4) whether the opposing
party had an opportunity to negotiate the terms of the
agreement; and (5) whether the opposing party had
been fraudulently induced into agreeing specifically to
the jury trial waiver.’’ Id., 15.
Because the jury trial waiver provisions at issue in
the present case were executed by the parties prior to
litigation as part of the dealer agreements, the burden
was on the plaintiff to establish that it did not intend
to waive its right to a jury trial. ‘‘[E]xpress commercial
contractual jury trial waivers entered into prior to litiga-
tion are presumptively enforceable. In order to rebut
this presumption, the party seeking to avoid the waiver
must come forward with evidence that it clearly did
not intend to waive the right to a jury trial. Such evi-
dence may be apparent on the face of the agreement,
such as where the waiver is in particularly fine print
or is buried in the middle of a voluminous document.
In addition, the party seeking to avoid enforcement
may come forward with evidence that there was an
inequality of bargaining power, that he or she was not
represented by counsel, or other evidence indicating a
lack of intent to be bound by the waiver provision. Once
the party seeking to invalidate the waiver has come
forward with such evidence, the trial court must hold
a hearing at which additional evidence may be received.
At this hearing, the party seeking to avoid the waiver
carries the burden of proving, by a preponderance of
the evidence, the lack of a clear intent to be bound by
the waiver provision.’’ Id., 16. The plaintiff therefore
bore the burden in this case before the trial court. On
appeal, we conclude that the plaintiff has not carried
its burden of demonstrating that the court clearly erred
in finding that the plaintiff failed to prove its lack of
intent to be bound by the jury trial waivers.
The court’s decision reflects a proper application of
the factors set forth in L & R Realty. Specifically, the
court found: (1) that the waiver provisions were ‘‘not
buried in the [dealer] agreements’’; (2) that the parties’
bargaining power was ‘‘substantially similar,’’ albeit not
‘‘exactly equal’’; (3) that, although Savin did not have
an attorney review the dealer agreements, that fact did
not militate in favor of avoiding the waiver provisions
because Savin was ‘‘a sophisticated business person’’
who made a conscious decision not to retain counsel;
and (4) that, because other provisions of the dealer
agreements were negotiated, had the plaintiff had ‘‘a
problem with the jury trial waiver[s], [they] might well
have been negotiated.’’
The plaintiff appears to challenge the court’s findings
only with regard to the conspicuousness of the jury
trial waiver provisions and the equality of the parties’
bargaining power. Both findings, however, are sup-
ported adequately by the evidence adduced at the Octo-
ber 16, 2012 evidentiary hearing and, therefore, not
clearly erroneous. First, although the paragraph that
contains the waiver provision in each of the dealer
agreements is labeled with the term ‘‘Venue,’’ rather
than with an explicit reference to the right to a trial by
jury, the waiver provisions were not inconspicuous. In
each of the four dealer agreements, all of which were
executed by Savin, the waiver provisions are located
on the last page just above the parties’ signature lines
and consist of three short sentences, the last of which
states in no uncertain terms that ‘‘[b]oth parties waive
any right they may have to a jury trial in any disputes’’
arising under the dealer agreements. Therefore, regard-
less of the length of the dealer agreements, the waiver
provisions were not ‘‘buried in the middle’’ of them;
L & R Realty v. Connecticut National Bank, supra, 246
Conn. 15; as the plaintiff contends.
The court’s finding that the parties enjoyed ‘‘substan-
tially similar’’ bargaining power also finds adequate sup-
port in the record. The plaintiff, although considerably
smaller than the defendant, is a large company in its
own right with substantial assets and sales revenues.
Savin testified, for example, that from 2005 through
2011, the plaintiff generated annual revenues of
between $150 million and $200 million. Savin and
McAfee also both testified, and the court found, that
the plaintiff had an opportunity to negotiate, and suc-
cessfully did negotiate, other provisions of the dealer
agreements, which not only demonstrates that the plain-
tiff possessed at least some level of bargaining power
during contract negotiations, but also suggests that its
failure to negotiate the waiver provisions was a product
of its assent to be bound by them.
The plaintiff appears to suggest that there was a sub-
stantial inequality of bargaining power, weighing
against enforcement of the waiver provisions, because
the waivers were contained within petroleum product
franchise contracts and such contracts inherently pre-
sent ‘‘coercive opportunities’’ for franchisors such as
the defendant. As evidence for this proposition, the
plaintiff argues that our legislature’s enactment of the
Connecticut Petroleum Product Franchise Act demon-
strates the coercive nature of petroleum product fran-
chise contracts. It is true that the Connecticut
Petroleum Product Franchise Act was enacted in part
‘‘to avoid undue control of the [petroleum] dealer by
suppliers . . . and to offset evident abuses within the
petroleum industry as a result of inequitable economic
power . . . .’’ General Statutes § 42-133j (a). Any pat-
tern of coercive behavior by petroleum product franchi-
sors prior to the enactment of the Connecticut
Petroleum Product Franchise Act, however, says noth-
ing about whether the defendant engaged in any such
conduct in the present case. As previously stated, the
court found that the parties enjoyed ‘‘substantially simi-
lar’’ bargaining power during negotiations of the dealer
agreements. That finding is adequately supported by
the record and is not rendered clearly erroneous merely
because the waiver provisions were negotiated as part
of franchise agreements. The purpose underlying the
enactment of the Connecticut Petroleum Product Fran-
chise Act does not alter the result of our application
of the L & R Realty factors.
Moreover, although it did not explicitly form any part
of the court’s analysis, we note that the plaintiff does
not dispute that the jury trial waiver provisions were
contained in all four of the dealer agreements, and that
the plaintiff renewed each of the dealer agreements
multiple times after they initially were executed. Savin
also admitted that he was given an opportunity to
review the agreements before signing them. Put simply,
the record shows that Savin had ample opportunity to
object to the waiver provisions.
Accordingly, the record provides ample support for
the court’s finding that the plaintiff failed to prove by
a preponderance of the evidence that it did not intend
to be bound by the waiver provisions, and we are not
left with a definite and firm conviction that a mistake
has been made.
B
The plaintiff next contends that the jury trial waiver
provisions are void as a matter of law pursuant to §§ 42-
133l (j) and 42-133n. Section 42-133l (j) provides: ‘‘Any
waiver of the rights of a franchisee under sections 42-
133m, 42-133n and this section which is contained in
any franchise agreement entered into or amended on
or after October 1, 1977, shall be void.’’ Section § 42-
133n (a) provides in relevant part that ‘‘[a]ny franchisee
may bring an action for violation of sections 42-133l
or 42-133m in the Superior Court to recover damages
sustained by reason of such violation . . . .’’ The plain-
tiff argues that the jury trial waivers effectively pre-
vented it from exercising its right, guaranteed under
§ 42-133n (a), to bring an action against the defendant
for damages for violations of the Connecticut Petroleum
Product Franchise Act, and, therefore, is void under
§ 42-133l (j). We disagree. By its express terms, § 42-
133n (a) merely secures the right of a franchisee to
‘‘bring an action’’ for violations of the Connecticut
Petroleum Product Franchise Act; it says nothing of a
franchisee’s right to have that action decided by a jury
rather than a judge. The jury trial waivers do not prevent
the plaintiff from bringing an action against the defend-
ant for violations of the Connecticut Petroleum Product
Franchise Act. Therefore, § 42-133l (j) does not bar the
plaintiff from relinquishing its right to a jury trial.
C
Finally, the plaintiff contends that the court abused
its discretion by failing to overrule the defendant’s
objection to the jury trial claim on the ground that the
objection was not timely filed and by delaying its ruling
on the issue ‘‘until immediately before jury selection
was to begin.’’ The plaintiff asserts that the court’s last
minute ruling ‘‘caused [it] unfair prejudice and lost time
preparing the case for a jury trial.’’ We are not per-
suaded.
We review the court’s failure to overrule the defend-
ant’s objection on grounds of untimeliness and unfair
prejudice only for an abuse of discretion. This is
because such a decision implicates interests of ‘‘judicial
economy, docket management or courtroom proceed-
ings,’’ considerations that are ‘‘particularly within the
province of the trial court’’ to weigh. (Internal quotation
marks omitted.) Kelly v. Kelly, 85 Conn. App. 794, 800,
859 A.2d 60 (2004); see also West Haven Lumber Co. v.
Sentry Construction Corp., 117 Conn. App. 465, 469–70,
979 A.2d 591 (trial court entitled to broad discretion
in discharging its ‘‘responsibility to avoid unnecessary
interruptions, to maintain the orderly procedure of the
court docket, and to prevent any interferences with the
fair administration of justice’’ [internal quotation marks
omitted]), cert. denied, 294 Conn. 919, 984 A.2d 70(2009). ‘‘A reviewing court is bound by the principle
that [e]very reasonable presumption in favor of the
proper exercise of the trial court’s discretion will be
made.’’ (Internal quotation marks omitted.) West Haven
Lumber Co. v. Sentry Construction Corp., supra, 470.
We discern no abuse of discretion on the part of
the trial court. As to the timeliness of the defendant’s
objection, the plaintiff filed its claim for a trial by jury
on April 11, 2011, and the defendant filed its objection
slightly more than five months later on September 16,
2011. The plaintiff has cited no appellate decision or
rule of practice establishing a time limitation on the
filing of an objection to a jury trial claim, and this court
is not aware of any.
In any case, we disagree that the plaintiff has been
unfairly prejudiced by the timing of either the defend-
ant’s objection or the court’s ruling. To the extent that
the claimed delays have caused the plaintiff to ‘‘los[e]
time preparing the case for a jury trial,’’ we conclude
that neither the defendant nor the trial court bear
responsibility for that hardship. At the time the defend-
ant initially filed its objection to the jury trial claim on
September 16, 2011, no trial date had been scheduled.
The plaintiff filed a ‘‘reply’’ a few days later, raising
multiple arguments in opposition to the defendant’s
objection. The plaintiff neglected, however, to raise any
argument in its reply as to the enforceability of the
waiver provisions pursuant to L & R Realty, or to
request an evidentiary hearing on the matter. Instead,
almost a full year passed without the plaintiff filing a
motion for argument or otherwise affirmatively
attempting to obtain a timely ruling on the issue. See
General Statutes § 51-183b; Practice Book § 11-19. On
October 3, 2012, shortly before the start of trial, the
plaintiff filed a ‘‘supplemental reply’’ asserting ‘‘addi-
tional reasons why the defendant’s objection cannot be
sustained,’’ including that the waivers were not exe-
cuted knowingly and intelligently. The plaintiff
requested an evidentiary hearing pursuant to L & R
Realty to resolve that issue.10 Accordingly, the plaintiff
had ample opportunity to obtain an earlier, prompt evi-
dentiary hearing and resolution of the waiver issue, far
in advance of the start of trial. We therefore conclude
that the court did not prejudice the plaintiff’s trial prepa-
ration by the way in which it dealt with the defendant’s
objection to the plaintiff’s claim for a jury trial.
II
The plaintiff next claims that the court erroneously
concluded that it failed to prove its damages with the
requisite degree of certainty. We agree.
As previously set forth, the plaintiff’s operative com-
plaint alleges causes of action for violations of the Con-
necticut Petroleum Product Franchise Act, the
covenant of good faith and fair dealing, and CUTPA,
each of which stems from the defendant’s allegedly
improper pricing of dealer tankwagon rates. The dealer
agreements required the defendant to sell the plaintiff
wholesale gasoline at the defendant’s ‘‘dealer tankwa-
gon prices in the marketing area of the Station, as deter-
mined by [the defendant], for the grades and quantities
delivered, in effect at the time of delivery . . . .’’ The
dealer agreements provided no further definition of
dealer tankwagon price.
Following the conclusion of the bench trial on
December 10, 2013, the plaintiff submitted proposed
findings of fact setting forth its theories of liability and
damages. Citing the evidence admitted at trial, the plain-
tiff urged the court to find that, while negotiating the
dealer agreements, the defendant represented that it
would calculate the dealer tankwagon prices using a
method known as ‘‘street back pricing.’’ This method,
the plaintiff asserted, required the defendant to regu-
larly consider surveys listing the retail gasoline prices
that competing dealers were charging in the market
areas of each of the plaintiff’s four stations. The defend-
ant would then charge the plaintiff a dealer tankwagon
price cheap enough to allow it to maintain retail prices
at the bottom of the market for each location, enabling
the plaintiff to turn a profit of eight cents per gallon of
gasoline sold.11 The plaintiff further contended that,
around 2005, after a few years of this course of dealing,
the defendant abandoned the ‘‘street back pricing’’
method and began charging dealer tankwagon prices
that were arbitrary and unreasonable, as evidenced by
the fact that the defendant’s dealer tankwagon prices
increased while retail prices being charged by the plain-
tiff’s competitors remained relatively constant. The
plaintiff further asserted that, as a result of these price
increases, it was required to raise its retail prices, which
inhibited its ability to attract customers and caused it to
experience a drop in profits and overall sales volumes.
To prove damages, the plaintiff relied primarily on
two documents—a ‘‘summary of operations,’’ which
listed each station’s annual sales volume, profit, and
income from 2001 through 2011, and a ‘‘damage analy-
sis,’’ which concluded that the defendant’s improper
pricing of dealer tankwagon rates caused it to incur
$2,784,000 in damages from 2005 through 2011. To
arrive at that number, the plaintiff subtracted its annual
income from 2005 through 2011 from $603,000, which
was the plaintiff’s approximate average annual income
in 2003 and 2004,12 before the defendant allegedly had
begun to improperly price its dealer tankwagon
charges.13 The plaintiff asserted that the apporixmate
sum of those differences—$2,784,000—reflects the
additional income that it would have generated from
2005 through 2011 had the defendant charged reason-
able dealer tankwagon prices throughout that time.
The court issued a memorandum of decision on July
20, 2015, finding for the defendant on all three counts
of the operative complaint. At the outset, the court
stated that it was opting to decide the case on the ‘‘issue
of whether the plaintiff has proven its claim for damages
well enough for the court to award them, if [the court]
found for the plaintiff on one or more of the issues
regarding liability.’’ After briefly reciting the historical
facts of the case, including the parties’ disputes regard-
ing the proper method for determining dealer tankwa-
gon prices and whether the defendant, in fact, had
guaranteed the plaintiff a profit of eight cents per gallon,
the court stated that the plaintiff’s summary of opera-
tions was ‘‘by far the single most important evidence
presented in this case,’’ and noted that the defendant
did not dispute the accuracy of the numbers contained
therein. The court found that the summary of operations
reflected certain ‘‘critical facts,’’ including the number
of gallons of gasoline sold by the plaintiff from 2001 to
2011 and that the plaintiff’s overall average profit per
gallon over that period was less than the allegedly guar-
anteed eight cent profit margin. The court used those
figures to determine that from 2001 to 2011 the plaintiff
had a ‘‘hardly substantial’’ ‘‘shortfall’’ of $452,777.34.
The court stated that these figures ‘‘show[ed] the
plaintiff’s allegations of ‘price gouging’ in a much differ-
ent light’’ because, from 2001 through 2011, the plaintiff
‘‘was . . . getting its eight cent [profit per gallon] or a
number very close to it.’’ The court then explained that
the plaintiff’s complaints over the defendant’s determi-
nation of dealer tankwagon prices were based upon the
plaintiff’s belief that the defendant ‘‘was keeping it from
making something more than the eight cents per gallon
that it claims it was guaranteed.’’ The court then found:
‘‘Even if the plaintiff could convince the court that [the
defendant] had overcharged it for gasoline and thereby
caused [the plaintiff] to lose money, the plaintiff simply
has not provided the court with the evidence it would
need to compute such damages.’’
The court then observed that, for at least two reasons,
the plaintiff failed to prove that the defendant ‘‘caused
. . . losses which could be determined with reasonable
certainty . . . .’’ First, the court reasoned that the
plaintiff’s four stations ‘‘offer[ed] . . . potential cus-
tomers a low price per gallon but not much else,’’ which
meant that, although the plaintiff might lose business
when its retail prices increase, ‘‘it will also lose business
to customers who need a gas station with a rest room
or one of any number of other amenities, regardless of
the price . . . .’’ This dynamic, the court stated, ‘‘would
obviously be hard to measure . . . .’’ Second, the court
posited that competing retailers frequently offer gener-
ous price discounts to customers, and that the plaintiff’s
stations ‘‘are not likely to compete successfully with
stations [that] can give a customer [thirty cents] per
gallon or more off the price of a tank of gas.’’ The court
stated that, although other examples abound, ‘‘the point
is clear: [P]rice is very important and [the plaintiff]
often still won’t be able to compete on price with some
stations [that] can give buyers price and other things
they want.’’
The court further observed that, although ‘‘[t]here
may be ways to measure the extent to which a gas
retailer can lose money despite a low price . . . the
plaintiff has not given any such information to the court.
Similarly, a gas station which suddenly obtains the abil-
ity to charge significantly less for the same product
may not see an equivalent increase in sales because of
the price drop. There may be something else about the
station which makes drivers not want to go there so
much that they will forgo some potential savings in
order to fill their gas tanks somewhere else.’’ Accord-
ingly, the court found that it ‘‘could not evaluate the
plaintiff’s claimed damages accurately enough to award
damages to the plaintiff, if it found in favor of the
plaintiff.’’
The defendant thereafter filed a motion for articula-
tion, seeking clarification on the following question: ‘‘In
concluding that [the plaintiff] had failed to prove its
claim for damages, did the . . . court determine [that
the] plaintiff had failed to demonstrate causation . . .
in that the plaintiff failed to prove that [the defendant’s]
actions caused the plaintiff’s asserted decline in profit-
ability?’’ The defendant argued that the court’s analysis
was ‘‘arguably ambiguous’’ because, while purporting
to resolve the case solely on the basis of damages, it
also included findings that related to the element of
causation, particularly the two examples of other fac-
tors that potentially could have impacted the profitabil-
ity of the plaintiff’s four gas stations. In response to
the defendant’s motion for articulation, the court stated:
‘‘The short answer to [the defendant’s] question [of
whether the court had determined that the plaintiff
failed to prove causation] is ‘no.’ This court found for
the [defendant] because . . . the plaintiff had not pre-
sented enough evidence on damages to allow the court
to award them, even if the court had decided the issues
of liability and causation in the plaintiff’s favor.’’
On appeal, the plaintiff claims that the court improp-
erly found that the evidence adduced at trial was insuffi-
cient to establish its damages with the requisite degree
of certainty. The plaintiff asserts that the summary of
operations document, the accuracy of which was not
disputed at trial, reflects with sufficient precision the
decreases in profits and overall sales volumes it began
experiencing in 2005 when the defendant started
improperly pricing dealer tankwagon charges. Indeed,
the plaintiff notes that the court specifically found in
its memorandum of decision that the summary of opera-
tions demonstrated that the plaintiff suffered a ‘‘short-
fall’’ of $452,777.34 in profits from between 2001 and
2011. The plaintiff asserts that this finding alone, despite
being based on incorrect math and a misunderstanding
of its theory of damages,14 demonstrates that ‘‘at least
some’’ of its claimed damages could be calculated with
reasonable certainty and requires a reversal of the
court’s judgment. (Emphasis omitted.) We agree and
conclude that the court clearly erred (1) in finding that
the plaintiff failed to establish damages with reasonable
certainty for purposes of the counts alleging violations
of the Connecticut Petroleum Product Franchise Act
and covenant of good faith and fair dealing, and (2) in
finding that the plaintiff failed to establish an ascertain-
able loss for purposes of CUTPA.
A
We begin by addressing the plaintiff’s claim that the
court improperly found that it failed to prove damages
with the requisite degree of certainty for purposes of its
claims alleging violations of the Connecticut Petroleum
Product Franchise Act and the covenant of good faith
and fair dealing.15
‘‘The legal principles that govern our review of dam-
age awards are well established. It is axiomatic that
the burden of proving damages is on the party claiming
them. . . . Damages are recoverable only to the extent
that the evidence affords a sufficient basis for estimat-
ing their amount in money with reasonable certainty.
. . . [T]he court must have evidence by which it can
calculate the damages, which is not merely subjective or
speculative . . . but which allows for some objective
ascertainment of the amount. . . . This certainly does
not mean that mathematical exactitude is a precondi-
tion to an award of damages, but we do require that
the evidence, with such certainty as the nature of the
particular case may permit, lay a foundation [that] will
enable the trier to make a fair and reasonable estimate.
. . . Evidence is considered speculative when there is
no documentation or detail in support of it and when
the party relies on subjective opinion. . . . The trial
court’s determination that damages have not been
proved to a reasonable certainty is reviewed under a
clearly erroneous standard.’’ (Citations omitted; inter-
nal quotation marks omitted.) Weiss v. Smulders, 313
Conn. 227, 253–54, 96 A.3d 1175 (2014).
‘‘[W]hether the decision of the trial court is clearly
erroneous . . . involves a two part function: where the
legal conclusions of the court are challenged, we must
determine whether they are legally and logically correct
and whether they find support in the facts set out in
the memorandum of decision; where the factual basis
of the court’s decision is challenged we must determine
whether the facts set out in the memorandum of deci-
sion are supported by the evidence or whether, in light
of the evidence and the pleadings in the whole record,
those facts are clearly erroneous. . . . In a case tried
before a court, the trial judge is the sole arbiter of the
credibility of the witnesses and the weight to be given
specific testimony. . . . On appeal, we will give the
evidence the most favorable reasonable construction
in support of the verdict to which it is entitled.’’ (Internal
quotation marks omitted.) Gianetti v. Norwalk Hospi-
tal, 304 Conn. 754, 780, 43 A.3d 567 (2012). Moreover,
we do not ‘‘examine the record to determine whether
the trier of fact could have reached a conclusion other
than the one reached. Rather, we focus on the conclu-
sion of the trial court, as well as the method by which
it arrived at that conclusion, to determine whether it
is legally correct and factually supported.’’ (Internal
quotation marks omitted.) Chebro v. Audette, 138 Conn.
App. 278, 284, 50 A.3d 978 (2012).
In the present case, we conclude that the court’s
finding that the plaintiff failed to present sufficient evi-
dence to establish its damages with reasonable cer-
tainty was clearly erroneous. In its memorandum of
decision, the court stated that the plaintiff’s complaints
about the dealer tankwagon prices were based upon
the plaintiff’s belief that the price increases were pre-
venting it from realizing a profit of eight cents per gallon.
Crediting the plaintiff’s summary of operations, which
was not disputed in terms of its mathematical accuracy,
the court found that, from 2001 through 2011, the plain-
tiff’s average profit was less than the allegedly guaran-
teed eight cents, resulting in a ‘‘shortfall’’ of $452,777.34
over that period. Thus, the court was able to determine,
on the basis of the plaintiff’s theory of liability and
damages as the court understood them to be, the lost
profits that the plaintiff incurred.16 Having made that
finding, we conclude that the court was obligated to
find that, at the very least, the plaintiff had proven
$452,777.34 of its damages with reasonable certainty.
‘‘Damages are recoverable . . . to the extent that the
evidence affords a sufficient basis for estimating their
amount in money with reasonable certainty.’’ (Empha-
sis added; internal quotation marks omitted.) Weiss v.
Smulders, supra, 313 Conn. 253–54. Despite this finding,
however, the court concluded that, ‘‘[e]ven if the plain-
tiff could convince the court that [the defendant] over-
charged it for gasoline and thereby caused [the plaintiff]
to lose money, the plaintiff simply has not provided the
court with the evidence it would need to compute such
damages.’’ Because this conclusion cannot be recon-
ciled or found consistent with the court’s prior state-
ment that the plaintiff’s summary of operations
reflected losses in profits of $452,777.34, it is not legally
and logically supported by the record and, conse-
quently, it is clearly erroneous.17
Moreover, in concluding that the plaintiff failed to
adduce sufficient evidence of damages, the court
improperly conflated the question of damages with the
question of causation. The clearly erroneous standard
requires the reviewing court to ‘‘focus on the conclusion
of the trial court, as well as the method by which it
arrived at that conclusion, to determine whether it
is legally correct and factually supported.’’ (Emphasis
added; internal quotation marks omitted.) Chebro v.
Audette, supra, 138 Conn. App. 284. Critically, the court
explicitly stated that its decision was based solely on
the plaintiff’s failure to prove damages with reasonable
certainty, and that it had assumed, arguendo, that the
plaintiff had proven the elements of liability and causa-
tion. Indeed, in response to the defendant’s motion for
articulation, in which the defendant acknowledged that
the court’s analysis also included findings relevant to
the element of causation, the court reiterated that its
decision only included findings on the issue of damages
and that it had assumed for purposes of argument that
the plaintiff had proven ‘‘the issues of liability and cau-
sation . . . .’’
Despite disclaiming any findings relevant to causa-
tion, however, the court’s reasoning plainly hinged not
on whether the plaintiff had presented evidence from
which its damages could be calculated with reasonable
certainty, as is the sole question in a strict damages
analysis, but on whether the plaintiff’s losses in profits
and sales volumes were caused by the defendant’s
alleged improper conduct as opposed to some other
factor. For instance, the court stated that the plaintiff
‘‘has not met its burden to prove that the defendant
caused it losses which could be determined with reason-
able certainty,’’ and then posited two reasons for this:
(1) that it was ‘‘hard to measure’’ which of the plaintiff’s
customers were lost as a result of the defendant’s pric-
ing as opposed to the plaintiff’s lack of amenities or
other attractive features, and (2) that the plaintiff’s sta-
tions are ‘‘not likely to compete’’ with other stations
offering loyalty programs and attractive discounts.
(Emphasis added.) The court concluded that ‘‘[t]here
may be something else about the station which makes
drivers not want to go there so much that they will
forgo some potential savings in order to fill their tanks
somewhere else.’’
These factors are relevant only to the question of
causation, and, therefore, are improper bases for con-
cluding that the plaintiff failed to proffer evidence upon
which its damages could be calculated with reasonable
certainty. To be sure, courts have at times treated the
damages element as encompassing a causation require-
ment, rather than analyzing damages and causation as
distinct elements. In breach of contract cases, for
instance, ‘‘[a]lthough this court has intimated that cau-
sation is an additional element [of a breach of contract
action] . . . proof of causation more properly is classi-
fied as part and parcel of a party’s claim for . . . dam-
ages.’’ (Citation omitted.) Meadowbrook Center, Inc. v.
Buchman, 149 Conn. App. 177, 186, 90 A.3d 219 (2014);
see also Neiditz v. Morton S. Fine & Associates, Inc.,
199 Conn. 683, 689 n.3, 508 A.2d 438 (1986) (observing
that, in tort action, ‘‘the plaintiffs are entitled to recover
all damages proximately caused by the defendant’s neg-
ligent performance of the contract’’ [emphasis added]).
Indeed, the plaintiff’s causes of action for violations
of the Connecticut Petroleum Product Franchise Act
and covenant of good faith and fair dealing are no differ-
ent—both require proof of some causal relationship
between the plaintiff’s losses and the defendant’s
alleged misconduct. See General Statutes § 42-133n (a)
(providing that ‘‘[a]ny franchisee may bring an action
for violation of [the Connecticut Petroleum Product
Franchise Act] . . . to recover damages sustained by
reason of such violation’’ [emphasis added]); Pikulski
v. Waterbury Hospital Health Center, 269 Conn. 1, 7
n.4, 848 A.2d 373 (2004) (‘‘[i]t is axiomatic . . . that in
every tort action, the fact finder may award economic
damages only if the plaintiff has proven those damages
to a reasonable certainty and has shown that the
defendant had proximately caused the damages’’
[emphasis added; internal quotation marks omitted]).
Yet, even if causation properly is considered to be part
of the damages analysis in a particular case, the court
in the present case removed causation from the equa-
tion by explicitly indicating in its memorandum of deci-
sion, and again in its response to the defendant’s motion
for articulation, that it was not issuing a finding on
causation and, indeed, that it had assumed, for purposes
of its analysis, that causation had been proven. Because
causation explicitly formed no part of the court’s deci-
sion, we conclude that the court reached its determina-
tion that the plaintiff failed to provide the court with
a reasonable basis for calculating damages only by
improperly conflating that issue with the question of
causation. Accordingly, the court’s finding with regard
to the calculability of the plaintiff’s damages was
clearly erroneous.
The defendant argues that the plaintiff’s damages
theory was fatally speculative because the plaintiff was
required ‘‘to prove that the lost profits to which it claims
to be entitled resulted from [the defendant’s] allegedly
unfair pricing and no other market factors,’’ and failed
to do so. (Emphasis in original.) The defendant then
lists a multitude of market factors that, it asserts, the
plaintiff failed to eliminate as potential causes of its
losses in profits and sales volumes. Again, these argu-
ments relate to the question of causation, not damages,
and the court explicitly stated both that it had not issued
findings relevant to causation, and that its decision was
predicated on the assumption that causation had been
proven. Affirming the court’s decision on this basis
effectively would require us to find facts that the court
explicitly declined to find. ‘‘It is well settled that this
court cannot find facts, nor, in the first instance, draw
conclusions of facts from primary facts found, but can
only review such findings to see whether they might
legally, logically and reasonably be found.’’ (Internal
quotation marks omitted.) Appliances, Inc. v. Yost, 186
Conn. 673, 676–77, 443 A.2d 486 (1982); see also New
England Custom Concrete, LLC v. Carbone, 102 Conn.
App. 652, 661, 927 A.2d 333 (2007). Fidelity to this princi-
ple requires us to avoid delving into whether other
market factors could have caused the plaintiff’s losses.
Instead, we must assume, as the trial court did, that
causation had been proven, and confine our inquiry to
the narrow question of whether the plaintiff adduced
evidence upon which its damages could be calculated
with reasonable certainty.
Finally, the defendant argues that, although the plain-
tiff presented evidence of what the defendant actually
charged in terms of dealer tankwagon prices, it failed
to present evidence of what the defendant reasonably
should have charged. This additional variable, the
defendant asserts, is essential for an adequate damages
calculation. Even if we were to agree that the plaintiff
failed to present evidence of what a proper dealer tank-
wagon price would have been, the result of our analysis
would remain the same. We reiterate that ‘‘mathemati-
cal exactitude is [not] a precondition to an award of
damages . . . .’’ (Internal quotation marks omitted.)
Weiss v. Smulders, supra, 313 Conn. 254. Instead, we
merely ‘‘require that the evidence, with such certainty
as the nature of the particular case may permit, lay a
foundation [that] will enable the trier to make a fair
and reasonable estimate.’’ (Internal quotation marks
omitted.) Id. Because, as we have stated, the court could
not have concluded reasonably that the plaintiff’s evi-
dence failed to meet this standard, the court’s finding
with regard to damages was clearly erroneous.
B
The plaintiff’s CUTPA claim is particularly unsuited
to be decided at trial solely on the basis of whether
it adequately had proved the amount of its claimed
damages, assuming that liability and causation had been
proved. The court ruled against the plaintiff’s claim that
the defendant’s 2005 change in its course of dealing with
the plaintiff with respect to its method of calculating the
dealer tankwagon prices was an unfair trade practice
in violation of CUTPA because the plaintiff had not
proved damages.
The court specifically stated in both its memorandum
of decision and in response to the defendant’s motion
for articulation that it was not deciding causation
issues. To decide the plaintiff’s CUTPA claim, however,
the court necessarily had to first decide a causation
issue, namely, whether the defendant had improperly
caused the plaintiff to lose customers by changing its
method of calculation of dealer tankwagon prices, and
that this change constituted an unfair trade practice
under § 42-110g (a).
Leaving aside for the moment the court’s finding that
there had been a ‘‘shortfall’’ of $452,777.34 in what the
plaintiff might otherwise have expected to generate
in profits, the plaintiff was entitled to claim punitive
damages and attorney’s fees under CUTPA even if it
had not proved a fixed amount of ascertainable dollar
loss. ‘‘[Section] 42-110g (a) affords a 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 method, act or practice prohib-
ited by section 42-110b . . . . [L]oss has a broader
meaning than the term damage. . . . As a conse-
quence, [u]nder CUTPA, there is no need to allege or
prove the amount of the ascertainable loss. . . . The
plaintiff’s failure adequately to prove damages, there-
fore, does not dispose of the CUTPA claim.’’ (Citations
omitted; internal quotation marks omitted.) Beverly
Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff &
Kotkin, 247 Conn. 48, 78–79, 717 A.2d 724 (1998), quot-
ing Catucci v. Ouellette, 25 Conn. App. 56, 60, 592 A.2d
962 (1991), and Hinchliffe v. American Motors Corp.,
184 Conn. 607, 614, 440 A.2d 810 (1981).
The plaintiff’s summary of operations, which the
court credited at trial, showed that the plaintiff began
to experience a decrease in sales volumes around 2005
at the time the defendant allegedly had begun pricing
dealer tankwagon charges without use of what the
plaintiff termed ‘‘street back pricing’’ that had been in
effect for several years. Volume of sales of gasoline in
a retail gasoline station is dependent on the number of
gasoline customers who purchase gasoline for their
vehicles at that station. Because a loss of customers,
even in the absence of an accompanying monetary value
of that loss, constitutes an ascertainable loss for pur-
poses of CUTPA; see Service Road Corp. v. Quinn,
241 Conn. 630, 643–44, 698 A.2d 258 (1997); the court’s
finding that the CUTPA claim failed because the plaintiff
failed to present sufficient evidence of the amount of
an ascertainable loss was clearly erroneous.
Furthermore, a plaintiff who brings a cause of action
alleging an unfair trade practice in violation of CUTPA
has the right to claim punitive damages and attorney’s
fees if the case is proved. See General Statutes § 42-
110g (a) and (d); Lenz v. CNA Assurance Co., 42 Conn.
Supp. 514, 515, 630 A.2d 1082 (1993). Indeed, the plain-
tiff claimed both punitive damages and attorney’s fees
in the present case. Whether a trial court awards them
and in what amount is left to its discretion. See General
Statutes § 42-110g (a). If the court found that the plain-
tiff had proved that the defendant had engaged in an
unfair trade practice and that the unfair trade practice
had caused the plaintiff a loss of customers in violation
of CUTPA, then the plaintiff was entitled to have the
court exercise its discretion to determine whether such
an award of punitive damages and attorney’s fees were
warranted. As the court in Lenz v. CNA Assurance
Co., supra, 515, pointed out, the purpose of awarding
punitive damages under CUTPA is to deter future unfair
trade practices. See Lenz v. CNA Assurance Co.,
supra, 515.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
The plaintiff also named A. F. Forbes, Inc., as a defendant, but subse-
quently withdrew the complaint as to that party. In this opinion we refer
to Hess Corporation as the defendant for purposes of simplicity.
2
The first three stations acquired by the plaintiff were located in New
Haven, East Haven, and West Haven, and the fourth was located in Groton.
3
As relevant to this appeal, the terms of each of the four dealer agreements
are identical.
4
General Statutes § 42-133l (f) provides in relevant part: ‘‘No franchisor,
directly or indirectly, through any officer, agent or employee, shall do any
of the following . . . (5) impose unreasonable standards of performance
upon a franchisee; (6) fail to deal in good faith with a franchisee; (7) sell,
rent or offer to sell to a franchisee any product or service for more than a
fair and reasonable price . . . .’’ The plaintiff’s right to commence a cause
of action for violations of these provisions of the Connecticut Petroleum
Product Franchise Act derives from General Statutes § 42-133n (a), which
provides in relevant part: ‘‘Any franchisee may bring an action for violation
of sections 42-133l or 42-133m in the Superior Court to recover damages
sustained by reason of such violation . . . . Such franchisee, if successful,
shall be entitled to costs, including, but not limited to, reasonable attor-
ney’s fees.’’
5
General Statutes § 42-133l (j) provides: ‘‘Any waiver of the rights of a
franchisee under sections 42-133m, 42-133n and this section which is con-
tained in any franchise agreement entered into or amended on or after
October 1, 1977, shall be void.’’
6
Neither party briefed or otherwise took issue with the clause in § 31 of
the dealer agreements providing that disputes are governed by federal law
and must be heard in United States District Court. Accordingly, any claims
regarding such issues are deemed waived.
7
During his testimony at the October 16, 2012 evidentiary hearing, Savin
admitted that he was ‘‘able to negotiate one or two amendments’’ to the
dealer agreements, and that he did not recall there being any changes or
amendments that he wanted to make but was not allowed to make. In its
oral decision, the court explicitly found that there was evidence that certain
provisions other than the jury trial waivers had been negotiated.
8
The plaintiff incorrectly asserts that the trial court’s decision regarding
the enforceability of the jury trial waivers is subject to plenary review.
Although ‘‘[t]he standard by which the trial court determines the validity
of a jury trial waiver is a question of law that is subject to de novo review,’’
the distinct question of ‘‘[w]hether a party has waived his right to a jury
trial presents a question of fact’’ that we review only for clear error. (Empha-
sis added; internal quotation marks omitted.) L & R Realty v. Connecticut
National Bank, supra, 246 Conn. 8; see also Perricone v. Perricone, 292
Conn. 187, 208–209, 972 A.2d 666 (2009).
9
The defendant asserts that the plaintiff has no right to a trial by jury
with regard to its causes of action for violations of the Connecticut Petroleum
Product Franchise Act and CUTPA because neither of those claims existed
when article first, § 19, of the Connecticut Constitution was adopted in 1818.
Because we conclude that the express jury trial waivers executed in the
dealer agreements are fully enforceable against the plaintiff, we need not
address these arguments.
10
The plaintiff also argued in its supplemental reply that, because trial
was scheduled to begin later that month, ‘‘[i]nasmuch as an evidentiary
hearing is a prerequisite for any sustaining of the defendant’s objection, it
is prejudicial to the plaintiff, both in terms of its trial preparation and the
obvious delay in the commencement of trial that such an evidentiary hearing
will necessitate, to now entertain the defendant’s objection.’’
11
The plaintiff also argued that maintaining its status as ‘‘low man on the
street’’ was critical to its ability to compete because, unlike other gas sta-
tions, the plaintiff’s stations lacked modern features and other amenities
typically attractive to customers, such as easy roadway access, public
restrooms, and convenience stores.
12
The plaintiff did not rely upon its earnings and sales volumes during
2001 and 2002, presumably because those numbers did not account for the
income generated by the fourth gas station, which the plaintiff did not
acquire until December, 2002.
13
The summary of operations reflects that the plaintiff generated a net
income of $428,498 in 2005, $162,109 in 2006, $228,330 in 2007, $190,475 in
2008, $198,210 in 2009, $64,409 in 2010, and $165,882 in 2011. The sum of
the approximate differences between each of those figures and $603,000
is $2,784,000.
14
The plaintiff argues that the court’s calculation of the $452,777.34 ‘‘short-
fall’’ was incorrect because it (1) considered the profit per gallon that the
plaintiff generated from 2001 through 2004, before the defendant began to
price dealer tankwagon charges improperly, thereby ‘‘dilut[ing]’’ the disparity
between the plaintiff’s actual profit margin and the eight cent margin during
the period at issue, and (2) failed to take into account the plaintiff’s lost
sales volumes.
15
CUTPA requires proof of an ascertainable loss rather than damages in
the traditional sense. See part II B of this opinion. Accordingly, although
the trial court did not do so in its memorandum of decision, we address
CUTPA separately from the Connecticut Petroleum Product Franchise Act
and the covenant of good faith and fair dealing.
16
The defendant asserts that the court was not calculating the plaintiff’s
lost profits when it noted the ‘‘shortfall’’ of $452,777.34. Regardless of
whether the court was calculating the plaintiff’s lost profits, however, the
court’s finding indicated that it was able, on the basis of the evidence
adduced at trial, to determine the lost profits sustained by the plaintiff as
a result of the defendant’s alleged improper pricing.
17
As previously noted; see footnote 14 of this opinion; the plaintiff asserts
that, in determining that the summary of operations reflected a $452,777.34
‘‘shortfall,’’ the court failed to take into account the plaintiff’s losses in sales
volumes and used faulty math. To resolve the present appeal, however, we
need not determine whether the plaintiff has proved the full extent of its
claimed damages with reasonable certainty. Accordingly, we do not address
whether the court clearly erred in failing to conclude that the plaintiff proved
its full damages claim in the amount of $2,784,000 with reasonable certainty.