Opinion
FBTCV146043427
04-05-2016
Lori-Lee Benson v. Colonial Motors, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #125 & 128
Michael P. Kamp, J.
Before the court are two motions for summary judgment filed by the defendants, Colonial Motors, Inc. (Colonial) and Auto-Lock Unlimited, Inc. (Auto-Lock).
FACTS
The plaintiff, Lori-Lee Benson, filed an eight-count amended complaint against the defendants, Colonial and Auto Lock, on June 19, 2014. The plaintiff's first five counts are directed against Colonial, in which the plaintiff asserts claims for breach of contract, bad faith, negligent infliction of emotional distress, intentional infliction of emotional distress, and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., respectively. The plaintiff directs counts six through eight against Auto Lock, wherein the plaintiff asserts claims for negligent infliction of emotional distress, intentional infliction of emotional distress, and violations of CUTPA. In support of her claims, the plaintiff alleges the following facts.
In March of 2013, the plaintiff leased a new 2013 Toyota Camry (vehicle) from Colonial--a Toyota dealership--and, in exchange, traded-in her old car. In July of 2013, the plaintiff returned to Colonial seeking to purchase the vehicle. Colonial obliged, and the plaintiff executed a variety of documents with Colonial including a retail installment sale contract (sale agreement) to effectuate the sale.
Under the terms of the sale agreement, the plaintiff paid $10,000 as a down payment to Colonial towards the purchase price, and Colonial arranged for the plaintiff to finance the remaining balance owed to Colonial with a loan from a lender. Colonial then assigned the sale agreement to the lender. After the assignment, the plaintiff made monthly payments " to Colonial" towards the purchase of the vehicle until January of 2014. In January, prior to her first missed payment, the plaintiff " called Colonial to arrange for a deferment, " which would have allowed the plaintiff to have a three-month reprieve in loan payments, but she was told that she did not qualify.
The plaintiff did not make her scheduled payment in either January or February, and began to receive phone calls indicating that the vehicle would be repossessed if she did not pay as required by the terms of the sale agreement. On March 25, 2014, during one of these calls, the plaintiff was told that if she made one full payment the vehicle would not be repossessed. Thereafter, the plaintiff made one monthly payment, but did not tender the amount she owed for her missed payments in January or February, nor did the plaintiff make her scheduled payment in April.
The plaintiff's amended complaint does not indicate who the plaintiff was receiving phone calls from, only that she received phone calls " regarding [the] plaintiff's [c]ontract with Colonial."
In April 2014, the plaintiff was informed via letter that her loan balance might be referred to a collection agency due to her failure to make payments. The plaintiff then made a phone call regarding her loan, and was informed that she had until May 8, 2014, to make any overdue payments. Nevertheless, on the morning of May 7, 2014, the vehicle was repossessed by the defendant, Auto Lock. That same day, the plaintiff attempted to tender the full amount of her missed payments, together with late charges and penalties, first to Auto Lock and then by calling the number on " Colonial's billing statement, " but the plaintiff's offer of payment was rejected. The repossession of the vehicle " was done by, at the direction and/or for the benefit of Colonial, " notwithstanding the fact that the plaintiff had paid Colonial nearly the full value of the vehicle. As a result of the defendants' conduct, the plaintiff has suffered financial and emotional damages, and seeks monetary, compensatory, and punitive damages, an " order temporarily and permanently enjoining the [defendants] from continuing to conduct business and engag[ing] in deceptive trade practices, " and attorneys fees. Additional facts will be provided as necessary.
Again, the plaintiff has not pleaded to whom she made this phone call.
On September 28, 2015, Colonial filed a motion for summary judgment against the first five counts of the plaintiff's amended complaint along with an accompanying memorandum of law and a variety of exhibits. On October 14, 2015, Auto Lock filed a motion for summary judgment against counts six through eight of the plaintiff's amended complaint, along with its memorandum of law and several exhibits. In response, the plaintiff filed two memoranda and her affidavit in opposition to the defendants' motions on November 23, 2015. In turn, both the defendants filed a response, Colonial on December 1, 2015, and Auto Lock on December 3, 2015. This matter was heard at Short Calendar on December 7, 2015.
Colonial has included the following exhibits attached to its motion for summary judgment: (1) a lease agreement executed between the plaintiff and Colonial, dated March 18, 2013; (2) excerpts from the plaintiff's sworn deposition taken on July 17, 2013; (3) a notice regarding taxes addressed to the plaintiff from Toyota Financial Services, dated April 1, 2014; (4) a billing statement addressed to the plaintiff from Toyota Financial Services, dated November 21, 2013; (5) an affidavit from Barrington Haughton, the operations manager for Colonial, dated September 25, 2015; (6) a buyer's order executed between the plaintiff and Colonial, dated July 25, 2013; (7) a retail installment sales contract executed between the plaintiff and Colonial, dated July 25, 2013; (8) a notice of intention to repossess, addressed to plaintiff from Toyota Motor Credit Corporation, dated February 26, 2014; (9) a Western Union receipt for the plaintiff's payment to Toyota Financial Services on March 25, 2014; and (10) a notice of plan to sell property addressed to the plaintiff from Toyota Financial Services, dated May 9, 2014.
Auto Lock has included the following exhibits attached to its motion for summary judgment: (1) excerpts from the plaintiff's sworn deposition, taken July 17, 2015; (2) an affidavit from Robert Edwards, director of Auto Lock; and (3) a repossession order issued to Auto Lock for the plaintiff's vehicle, dated April 30, 2014.
DISCUSSION
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
" Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion . . . a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment . . . A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Escourse v. 100 Taylor Avenue, LLC, 150 Conn.App. 819, 829-30, 92 A.3d 1025 (2014).
Together, the defendants, Colonial and Auto Lock, have moved for summary judgment against all eight counts of the plaintiff's complaint. The court will discuss the defendants' arguments as they pertain to each of the plaintiff's counts in turn.
I. The Plaintiff's Claim for Breach of Contract Against Colonial in Count One
In count one of the plaintiff's amended complaint, the plaintiff asserts a claim for breach of contract against Colonial. " The elements of a breach of contract action are 1) the formation of an agreement, 2) performance of the agreement by one party, 3) breach of the agreement by the other party, and 4) damages." Jadofsky v. Madonna Place, Inc., Superior Court, judicial district of New London, Docket No. CV-13-6017694-S, (July 22, 2015, Cole-Chu, J.) citing H& L Chevrolet, Inc. v. Berkley Ins. Co., 110 Conn.App. 428, 436, 955 A.2d 565 (2008). Based on the pleadings and the arguments of the parties, the plaintiff appears to have two theories by which the plaintiff seeks to hold Colonial liable in breach. The plaintiff's first theory pertains to Colonial's breach of an alleged oral agreement it made with the plaintiff, while the second pertains to Colonial's breach of the covenant of good faith and fair dealing implied in the sale agreement by ordering the repossession of the vehicle.
Paragraph 27 of the plaintiff's amended complaint, included under count one, reads: " The aforesaid taking of the plaintiff's car was a breach both of the aforesaid agreement the plaintiff had arranged with employees and representatives of Colonial [to delay the repossession of the plaintiff's car] and of Colonial's duty under the [sale agreement] to conduct dealings with the [p]laintiff in good faith and fairly."
A. The Plaintiff's First Theory for Breach of Contract Against Colonial
Under her first theory, the plaintiff does not claim that Colonial breached the terms of the sale agreement. Instead, the plaintiff alleges that Colonial breached an oral agreement, made with Colonial after the plaintiff had missed several loan payments in early 2014, whereby Colonial agreed to postpone the repossession of the vehicle in exchange for one full month's loan payment, and the plaintiff's promise to bring her account current by May of 2014. Colonial argues that it is entitled to summary judgment against this claim, because Colonial never had any contact with the plaintiff after the execution of the sale agreement, never had a verbal agreement with the plaintiff, and moreover, had nothing to do with either the collection of the plaintiff's loan payments or the repossession of the vehicle. Colonial asserts that by its terms the sale agreement was immediately assigned to Toyota Motor Credit Corporation (Toyota Motor Credit) after it was executed between Colonial and the plaintiff. Subsequent to Colonial's assignment of the sale agreement to Toyota Motor Credit, Colonial insists that the plaintiff dealt exclusively with either Toyota Motor Credit, or its subsidiary and loan servicer Toyota Financial Services (together with Toyota Motor Credit, Toyota Financial), to make her loan payments. Colonial asserts that the loan documents, the plaintiff's billing statements, and the plaintiff's own deposition testimony confirm that it had no contact with the plaintiff whatsoever after the initial purchase transaction.
In reply, the plaintiff argues that Colonial was doing business both as Toyota Financial and Colonial in its dealings with the plaintiff--in other words, Colonial and Toyota Financial are either the same entity or are bound by an agency relationship. The plaintiff asserts that she had communicated with " Colonial Financial" with " a couple calls back and forth" to delay the repossession of the vehicle by dialing the number that appeared on both her billing statement and the repossession notice she received. The plaintiff contends that by making a single payment in March, as agreed to in that series of phone conversations, the plaintiff formed an agreement with Colonial not to repossess the vehicle until at least May 8, 2014 in order to allow the plaintiff time to pay her past due payments from January and February. The plaintiff asserts that Colonial held itself out as Toyota Financial in all of the documents presented to the plaintiff, and that " [a]t no time during the signing of the financial agreements did Colonial refuse acceptance of payments or defer Plaintiff to another payee or introduce a separate entity as [Toyota Financial]." By way of her affidavit, the plaintiff claims that she believed Toyota Financial and Colonial to be the same entity, that this belief was reinforced by the Toyota symbols on the documents as well as the Colonial dealership name, and that she was not directed by anyone to read the terms of assignment in the sale agreement nor did she know what assignment meant. Accordingly, the plaintiff asserts that an issue of material fact exists as to " whether or not [Colonial] led the plaintiff to believe it and [Toyota Financial] were one and the same or did not act to dispel any such belief, and whether the evidence of its seemingly instantaneous communication with a Toyota entity was constructive involvement in the taking of [the] [p]laintiff's car" in breach of the oral agreement the plaintiff claims existed between it and Colonial.
A review of the evidence submitted by the parties reveals that the plaintiff, by her own admission, never communicated with Colonial after she purchased the vehicle. At her deposition, Colonial's counsel and the plaintiff had the following exchange:
[Colonial's counsel]: And did you ever call the dealership directly with the concerns about missing your payments?
[The plaintiff]: No
[Colonial's counsel]: So you never spoke with anyone at the dealership?
[The plaintiff]: No . . .
[Colonial's counsel]: And it's your understanding that you were making payments to Toyota Financial Services, correct? You weren't making payments directly to the dealership?
[The plaintiff]: No I was not . . .
[Colonial's counsel]: So when you converted your lease to a purchase . . . would it be fair to say that essentially concluded your relationship with the Colonial Toyota dealership in Milford?
[The plaintiff]: When I switched it?
[Colonial's counsel]: Correct. Once you . . . completed the transaction of converting the lease to the purchase, would it be fair to say that that essentially concluded your relationship with the dealership itself?
[The plaintiff]: With the dealership itself? Yes, correct.
The plaintiff testified further at her deposition that she allegedly formed an oral agreement to postpone the repossession of the vehicle by calling the telephone number on her billing statement, not the telephone number for Colonial, and that in her attempts to stop the repossession of her vehicle she always called that same telephone number. As the exhibits submitted by Colonial demonstrate, the plaintiff's billing statements were mailed to the plaintiff from Toyota Financial, on Toyota Financial letterhead, and the telephone number the plaintiff indicated that she was calling appeared next to an instruction on the plaintiff's billing statements which read: " [f]or customer service, please call Toyota Financial Services." The plaintiff has offered no evidence to suggest that she even communicated with Colonial, let alone forged an oral agreement with Colonial to modify the plaintiff's payment obligations under the sale agreement. Plainly, if the plaintiff formed an oral agreement with anyone to postpone the repossession of her vehicle, it was not with Colonial, because the evidence demonstrates that the plaintiff never communicated with Colonial after she purchased the vehicle.
Moreover, Toyota Financial and Colonial are not the same entity such that Colonial could somehow be liable for any breach of an alleged oral agreement made with the plaintiff by Toyota Financial. According to the uncontradicted sworn affidavit of Colonial's operations manager, " Toyota Motor Credit Corporation and its subsidiary/servicer, Toyota Financial Services are separate and distinct entities from Colonial Motors and are not affiliated with Colonial Motors by common ownership or control." The plaintiff asserts that she believed Colonial and Toyota Financial to be one and the same based on the sale agreement she signed with Colonial, but even if that were true, any confusion on the part of the plaintiff does not raise, as the plaintiff contends, an issue of material fact as to whether Colonial and Toyota Financial are separate companies. Similarly, what the plaintiff believed with regards to the relationship between Colonial and Toyota Financial is irrelevant to the plaintiff's claim that Colonial breached an oral agreement that the plaintiff alleges was made with Toyota Financial.
Nor can it be said that Colonial and Toyota Financial had an agency relationship that could somehow connect Colonial to the alleged conduct of Toyota Financial. As our Supreme Court has indicated, " [o]ur independent research demonstrates . . . consistent with the decisions of other jurisdictions in a variety of contexts that are nearly universal . . . that auto dealers are not agents of auto financing companies, " (internal quotation marks omitted) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 554, 893 A.2d 389 (2006), and the reverse must also be true. While the sale agreement filled out by the plaintiff at the direction of Colonial had the letterhead of Toyota Financial on the top of the page, that fact does not give rise to an agency relationship between Colonial and Toyota Financial. The Supreme Court entertained and rejected the same argument advanced by the plaintiff in Wesley regarding a Subaru dealership and Subaru Leasing. As the Wesley court explained, " although the lease form was supplied by Subaru Leasing, it could have been assigned to a different leasing company . . . [The Subaru dealership] is a separate entity not owned by Subaru Leasing or Subaru, and [the Subaru dealership] provided its own showroom, offices, sales and finance employees, and vehicles, without aid from Subaru Leasing." Id., 553-54. In the same vein that the Subaru dealership and Subaru Leasing in Wesley were determined to be separate entities, Colonial and Toyota Financial are separate, unrelated entities.
The threshold inquiry to the plaintiff's breach of contract claim is whether Colonial and the plaintiff ever formed an oral agreement to postpone the repossession of her vehicle, and critically, the plaintiff has offered no evidence to suggest the formation of an oral agreement with Colonial. Instead, the evidence before the court demonstrates that Colonial had no communications with the plaintiff regarding any alleged oral agreement to postpone the repossession of the vehicle, if the plaintiff had communications with any entity, it was Toyota Financial, not Colonial, and that Toyota Financial and Colonial are different entities.
B. The Plaintiff's Second Theory for Breach of Contract Against Colonial
The plaintiff's second theory of breach of contract is premised more generally on Colonial's breach of the duty of good faith and fair dealing, implicit in the sale agreement, in that Colonial ordered the repossession of the plaintiff's vehicle despite the fact that the plaintiff paid nearly the full amount of the vehicle's value to Colonial. The plaintiff further asserts that when she became concerned about making her loan payments, Colonial refused to allow the plaintiff to enroll in a payment amnesty program despite the existence of the program and the substantial sums the plaintiff had paid to Colonial for the vehicle. In light of the foregoing, the plaintiff reasons that Colonial's repossession of the vehicle was done in bad faith. In response, Colonial argues that it had nothing to do with the repossession of the plaintiff's vehicle. Colonial points out that by its terms, the sale agreement was assigned to Toyota Financial the moment the plaintiff signed the agreement, and that pursuant to that assignment, Colonial no longer had any enforceable rights, remedies, obligations or interest in the plaintiff's vehicle.
The terms of the sale agreement readily demonstrate that Colonial had nothing to do with the repossession of the plaintiff's vehicle. After Colonial and the plaintiff executed the sale agreement, Colonial immediately assigned all of its rights to payment under the sale agreement to Toyota Financial, an act that ended Colonial's business relationship with the plaintiff. " Generally, to constitute an assignment there must be a purpose to assign or transfer the whole or a part of some particular thing, debt, or chose in action, and the subject matter of the assignment must be described with such particularity as to render it capable of identification . . . Under the hornbook law of assignments, the assignee of a chose in action stands in the shoes of the assignor . . . [S]uccession by an assignee to exclusive ownership of all or part of the assignor's rights respecting the subject matter of the assignment, and a corresponding extinguishment of those rights in the assignor, is precisely the effect of a valid assignment." (Citations omitted; internal quotation marks omitted.) Schoonmaker v. Brunoli, Inc., 265 Conn. 210, 227-28, 828 A.2d 64 (2003). Thus, when a dealer assigns a purchase contract for a motor vehicle to a lender pursuant to a valid assignment, the lender " is entitled to all of the rights and obligations incident to the purchase [contract], including the right to recover the full purchase price . . . for the [vehicle] from the [purchaser]." DaimlerChrysler Services North America, LLC v. Commissioner of Revenue Services, 274 Conn. 196, 212, 875 A.2d 28 (2005).
By its terms, the sale agreement clearly indicated to the plaintiff that it was assignable to Toyota Financial, and that after assignment, Toyota Financial would have the right to receive payments from the plaintiff, as well as the right to enforce the plaintiff's obligation to make periodic payments under the sale agreement. One of the rights assigned to Toyota Financial by Colonial included the right to repossession of the vehicle in the event of the plaintiff's nonpayment. Colonial has presented evidence to demonstrate the validity of the assignment of the sale agreement, and the plaintiff has proferred no evidence to contest Colonial's assertions. Further, the evidence submitted by Colonial confirms that it was Toyota Financial that collected payments from the plaintiff and that repossessed the vehicle when the plaintiff failed to make her payments. The plaintiff made her loan payments to Toyota Financial as evidenced by the plaintiff's billing statements and a wire transfer receipt. When the plaintiff fell behind in payments, she received a notice of intention to repossess, also from Toyota Financial. After the repossession of the vehicle, the plaintiff received a notice of plan to sell property, again from Toyota Financial. The weight of Colonial's evidence demonstrates that the execution of the sale agreement concluded the relationship between the plaintiff and Colonial. Colonial had nothing to do with the repossession of the plaintiff's vehicle, nor could it have, given that it had assigned its rights under the sale agreement to Toyota Financial, and thereafter, had no rights to enforce against the plaintiff.
Accordingly, as the evidence submitted by Colonial amply demonstrates, Colonial had no communications with the plaintiff after the execution of the sale agreement and its assignment to Toyota Financial, and the plaintiff has not submitted sufficient evidence to demonstrate otherwise. Thus, both of the plaintiff's theories regarding Colonial's breach of contract in count one must fail, and Colonial is entitled to summary judgment against count one of the plaintiff's amended complaint.
The plaintiff appears to argue in her opposition briefings to the defendants' motions that count one of the amended complaint asserts claims against both Colonial and Auto Lock, and should survive given that Auto Lock has not moved against count one. The only allegation relevant to Auto Lock in count one is paragraph 22, which indicates that Auto Lock repossessed the plaintiff's car. Aside from that allegation, the plaintiff expressly indicates in the amended complaint that the breach of contract claim in count one is directed at Colonial. Even when read in the light most favorable to the plaintiff, count one clearly does not contain sufficient allegations against Auto Lock to support a breach of contract claim, and accordingly, cannot be read against both Auto Lock and Colonial.
II. The Plaintiff's Claim for " Bad Faith" Against Colonial in Count Two
In count two, the plaintiff asserts an additional claim for breach of contract premised on bad faith against Colonial. Unlike her bad faith claim in count one, however, which pertained to the repossession of the plaintiff's vehicle, the plaintiff's claim in count two is premised on the fact that Colonial leased, and then sold, the vehicle to the plaintiff. The plaintiff contends that she was forced to pay for the vehicle twice because Colonial merely " switched the paper" on her transaction, and in so doing, charged the plaintiff a variety of fees and divested the plaintiff of a $10,000 down payment in connection with the sale agreement--an amount which emptied the plaintiff's savings. The plaintiff claims that despite the fact that she informed Colonial that she was hoping to reduce her monthly payments by converting her lease to a purchase, Colonial structured a transaction that " allow[ed] Colonial to also recover the value of the vehicle many times over."
" [T]he . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . In other words, every contract carriers an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of this agreement . . . To constitute a breach of the [implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith . . . Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive . . . Bad faith means more than mere negligence; it involves a dishonest purpose." (Citations omitted; internal quotation marks omitted.) De La Concha v. Aetna Life Ins. Co., 269 Conn. 424, 432-33, 849 A.2d 382 (2004).
" [B]ad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity . . . it contemplates a state of mind affirmatively operating with a furtive design or ill will." (Internal quotation marks omitted.) Buckman v. People Express, Inc., 205 Conn. 166, 171, 530 A.2d 596 (1987). " [E]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for [her] argument in order to raise a genuine issue of fact." (Internal quotation marks omitted.) Voris v. Middlesex Mutual Assurance Co., 297 Conn. 589, 603, 999 A.2d 741 (2010).
Colonial asserts that it is entitled to summary judgment against the plaintiff's bad faith claim on the ground that the lease transaction and the sale transaction were separate and distinct transactions that afforded the plaintiff different rights in the vehicle, and therefore, the fact that there were two transactions between Colonial and the plaintiff does not create an issue of fact as to whether Colonial acted in bad faith. Colonial argues that the plaintiff did not pay for the vehicle twice, because the plaintiff only made several lease payments before buying out her lease under the sale agreement, and that by purchasing her vehicle the plaintiff afforded herself ownership rights that she otherwise would not have had under her lease. Colonial further contends that the plaintiff affirmatively sought out Colonial to convert her lease to a purchase, and that no one forced the plaintiff to purchase the vehicle. As for the fees associated with the conversion of the plaintiff's lease to a purchase, Colonial asserts that all charges were clearly disclosed on the sale agreement, including costs associated with a maintenance contract and the certification of the vehicle, and that the plaintiff expressly agreed to the charges when she signed the sale agreement with Colonial.
When viewed in the light most favorable to the plaintiff, the evidence submitted by Colonial, including the deposition testimony of the plaintiff, affirmatively shows the absence of any constructive fraud, sinister motive, or ill will on the part of Colonial in its dealings with the plaintiff regarding both the plaintiff's lease and the plaintiff's purchase, and the plaintiff has failed to offer the requisite factual predicate to support a bad faith claim. Succinctly stated, Colonial has shown that the plaintiff did not pay for the vehicle twice, and the plaintiff has not offered a single shred of evidence to otherwise support a bad faith claim against Colonial. As evidenced by the documents submitted by Colonial, the lease transaction and the sale agreement were two separate transactions, and there is nothing to indicate that the plaintiff did not receive what she had bargained for at the time she signed the relevant documents.
It was the plaintiff who initially approached Colonial to lease the vehicle, and it was the plaintiff who later approached Colonial to convert her lease into a purchase. Colonial obliged the plaintiff's request by arranging for the payoff of the plaintiff's lease balance, and by organizing financing for the plaintiff with Toyota Financial in accordance with the terms of the sale agreement. In exchange, the plaintiff received ownership rights in the vehicle instead of the lesser rights of use and enjoyment associated with a lease. The plaintiff's deposition testimony confirms that it was the plaintiff who affirmatively decided to put $10,000 towards the purchase price of her vehicle, and notably, the plaintiff does not contest the validity or the content of either her lease agreement or her sale agreement. It is not the function of this court (or a jury) to now sit in judgment of a business transaction between Colonial and the plaintiff to determine, with the benefit of hindsight, whether the plaintiff made the right decision to purchase her vehicle with a loan that she ultimately could not afford to repay.
Colonial has met its burden to establish that no genuine issues of material fact exist as to the plaintiff's claim of bad faith, and the plaintiff has failed to provide sufficient evidence to demonstrate the existence of any disputed fact. Therefore, Colonial is entitled to summary judgment as to count two.
III. The Plaintiff's Claims of Negligent and Intentional Infliction of Emotional Distress Asserted Against Colonial in Counts Three and Four
In counts three and four of the amended complaint, the plaintiff asserts claims of negligent and intentional infliction of emotional distress, respectively, against Colonial in connection with Colonial's " extracting payments" from the plaintiff and repossessing the plaintiff's vehicle. Colonial has moved for summary judgment against these counts on similar grounds as to counts one and two, namely, that Colonial had nothing to do with the repossession of the plaintiff's vehicle or the collection of the plaintiff's loan payments under the sale agreement, and therefore, that the evidence demonstrates no basis for Colonial to face liability to the plaintiff for either the negligent or the intentional infliction of emotional distress.
As discussed at length in the preceding paragraphs, the evidence before the court demonstrates that Colonial's business relationship with plaintiff ended after the plaintiff executed the sale agreement with Colonial and Colonial assigned the sale agreement to Toyota Financial. Any distress the plaintiff alleges to have suffered stems from conduct which occurred after the assignment of the sale agreement. Colonial had nothing to do with collecting payments from the plaintiff, nor did Colonial have any hand in the repossession of the vehicle. In other words, after the assignment, Colonial owed no duty to the plaintiff in connection with the collection of payments or the repossession, and further, that anything that may have happened during the repossession of the vehicle was not foreseeable by Colonial. " Given that to prevail on a claim of negligent infliction of emotional distress the plaintiff's distress must be found to have been foreseeable, a court must determine that the defendant owed a legal duty to the plaintiff." Canny v. Mototown Properties U.S.A., Inc., Superior Court, judicial district of Hartford, Docket No. CV-09-5026298-S, (February 5, 2010, Prescott, J.) citing Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002); see also Costello v. Yale New Haven Health Services Corp., Superior Court, judicial district of Fairfield, Docket No. CV-13-6032324-S (December 13, 2013, Sommer, J.) (" Although . . . no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant . . . [This principle] applies equally to . . . claims for intentional infliction of emotional distress as it does for . . . claims of negligent infliction of emotional distress" [citations omitted; internal quotation marks omitted]).
Given that Colonial has presented evidence that it assigned the sale agreement to Toyota Financial and had no further dealings with the plaintiff after the assignment, and the plaintiff has not presented evidence to rebut Colonial's showing, it follows that Colonial cannot be liable to the plaintiff for any type of distress the plaintiff suffered as a result of anything that may have happened during the repossession of the vehicle by Auto Lock, or any attempts by Toyota Financial to collect payments from the plaintiff. Therefore, Colonial has demonstrated the absence of any genuine issues of material fact and is entitled to summary judgment with respect to counts three and four.
IV. The Plaintiff's CUTPA Claim Against Colonial in Count Five
In count five, the plaintiff asserts a CUTPA claim against Colonial premised on the assertion that by breaching the oral agreement Colonial allegedly made with the plaintiff, repossessing the vehicle, and charging the plaintiff twice for the vehicle, Colonial made misrepresentations to the plaintiff or otherwise acted in a deceptive, unfair, and unscrupulous way. Colonial has moved for summary judgment on the ground that the evidence submitted affirmatively shows the absence of any misrepresentation or unfair trade practices made by Colonial to the plaintiff.
" It is well settled that in determining whether a practice violates CUTPA [the Connecticut Supreme Court has] adopted the criteria set out in the 'cigarette rule' by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise--in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 43, 717 A.2d 77 (1998) . . . Where the plaintiff alleges sufficient aggravating circumstances, beyond a mere breach of contract, that may bring the case within the cigarette rule, the CUTPA claim may withstand a motion [for summary judgment]." (Citations omitted; internal quotation marks omitted.) Hackett v. Bill's Floor Sanding, Inc., Superior Court, judicial district of Hartford, Docket No. CV-00-0598328 (May 30, 2002, Hennessey, J.) (32 Conn. L. Rptr. 385, 389).
In this case, as more fully set forth in the preceding paragraphs, the plaintiff has not alleged, nor does the evidence before the court demonstrate any basis upon which it could be determined that any action taken by Colonial towards the plaintiff violates any provisions of CUTPA. Thus, Colonial has sufficiently demonstrated the absence of any material fact as to whether Colonial's actions in executing the sale agreement, or Colonial's nonaction in connection with an alleged oral agreement to postpone the repossession of the plaintiff's vehicle and the repossession itself, run afoul of CUTPA. The plaintiff has provided no evidence to rebut the showing made by Colonial in this regard, and accordingly, Colonial is entitled to summary judgment against count five.
V. The Plaintiff's Claim for Negligent and Intentional Infliction of Emotional Distress Asserted Against Auto Lock in Counts Six and Seven
In counts six and seven, the plaintiff asserts claims for negligent and intentional infliction of emotional distress, respectively, against Auto Lock for damages the plaintiff sustained as a result of Auto Lock's repossession of the plaintiff's vehicle. The plaintiff premises both of these counts on the same two theories: First, that Auto Lock repossessed the plaintiff's vehicle prior to the date agreed upon in the plaintiff's oral agreement with Toyota Financial, and second, that the repossession order given to Auto Lock was issued by a company that was not authorized to do business in Connecticut. The plaintiff asserts that under either theory, Auto Lock breached a duty it owed to the plaintiff, and with respect to the intentional claim, that Auto Lock acted in an outrageous manner beyond the bounds usually tolerated by decent society.
Auto Lock argues that it is entitled to summary judgment against both counts six and seven. As a threshold matter, Auto Lock points out that it repossessed the plaintiff's vehicle on behalf of Toyota Financial after the plaintiff had admittedly failed to make several loan payments to Toyota Financial, and therefore, the fact that Auto Lock took the plaintiff's vehicle does not, in and of itself, allow the plaintiff to claim that Auto Lock breached a duty owed to the plaintiff. As for the plaintiff's two theories of emotional distress, Auto Lock argues that it had no communications with the plaintiff prior to, or during, the repossession of the plaintiff's vehicle concerning an oral agreement to postpone the repossession, and that it is irrelevant that the order Auto Lock received to repossess the plaintiff's vehicle came from a company--the Millennium Capital and Recovery Corporation (Millennium).--that was not authorized to do business in Connecticut, because that fact has no bearing on Auto Lock's right to repossess the vehicle on behalf of Toyota Financial.
In reply, the plaintiff argues that Auto Lock knew or should have known of the plaintiff's oral agreement with Toyota Financial to postpone the repossession, and further, that the repossession order issued by Millennium was invalid because Millennium was not a registered Connecticut corporation at the time of the repossession of the plaintiff's vehicle. Given the foregoing, the plaintiff reasons, Auto Lock breached a duty it owed to the plaintiff to verify whether the repossession order it relied upon was valid.
As the evidence submitted by both Auto Lock and Colonial demonstrates, Auto Lock did not breach any duty it owed the plaintiff when it repossessed the plaintiff's vehicle. Prior to the repossession, the plaintiff missed several loan payments that the plaintiff owed to Toyota Financial, which gave Toyota Financial the right to repossess the plaintiff's car--a remedy Toyota Financial elected by employing the services of Auto Lock. Under the terms of the sale agreement, Toyota Financial had the right to repossess the plaintiff's car after a single missed payment. In this case, after the plaintiff had missed two loan payments, Toyota Financial provided the plaintiff with a notice of intention to repossess on February 26, 2014. The notice informed the plaintiff that unless she made full payment of her two outstanding monthly payments, her vehicle would be repossessed. The plaintiff made a single payment to Toyota Financial on March 25, 2014, and thereafter, made no additional payments. On April 30, 2014, Auto Lock received an order to repossess the plaintiff's vehicle from Millennium, acting on behalf of Toyota Financial. In accordance with the order it had received, Auto Lock repossessed the plaintiff's vehicle without incident, and thereafter, allowed the plaintiff access to her vehicle to collect her personal belongings.
The relevant provision of the sale agreement provides: " Unless otherwise provided by law, if you fail to pay any payment according to the payment schedule or if you break any of the agreements in this contract (default), [Toyota Financial] can take the vehicle from you (repossession). To take this vehicle, [Toyota Financial] can enter your property or the property where it is stored so long as it is done peacefully and lawfully . . . If [Toyota Financial] repossesses the vehicle without giving you 10 days prior written notice that it intends to do so, you will have the right to redeem the vehicle . . . If [Toyota Financial] gives you 10 days prior written notice that it intends to repossess the vehicle and you do not cure your default before the date of repossession, [Toyota Financial] may repossess the vehicle and you may not redeem the vehicle unless you pay the entire amount due under the contract (not just past due payments), including all late charges . . ."
The notice letter explicitly informed the plaintiff: " if you submit a payment to [Toyota Financial] that is less than the TOTAL AMOUNT DUE TO CURE DEFAULT set forth above, you will not have cured your default and [Toyota Financial] may choose to keep that payment without waiving any rights it may have under the law."
If the plaintiff had an oral agreement to postpone the repossession of the vehicle, it was not with Auto Lock, but with Toyota Financial, and thus cannot form the basis for a breach of duty by Auto Lock under either theory of liability advanced by the plaintiff. Just as the evidence submitted demonstrates Colonial had no conversations with the plaintiff regarding postponing the repossession of the plaintiff's vehicle, the same can be said as between Auto Lock and the plaintiff. Further, even if the plaintiff had made an oral agreement with Toyota Financial, her claim would lie against Toyota Financial, and not Auto Lock, for breaching the terms of that agreement. Auto Lock had no duty to ensure that the plaintiff did not make any side agreements with Toyota Financial prior to carrying out its instructions to repossess, and was entitled to rely on the order to repossess that Auto Lock received on behalf of Toyota Financial.
It is irrelevant to the plaintiff's claims of emotional distress that Millennium, the intermediary between Toyota Financial and Auto Lock, was not a registered Connecticut corporation. General Statutes § 33-921, " consequences of transacting business without authority, " provides, in relevant part, that " (a) A foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority. (b) The successor to a foreign corporation that transacted business in this state without a certificate of authority . . . may not maintain a proceeding based on that cause of action in any court in this state until the foreign corporation or its successor obtains a certificate of authority . . . (e) Notwithstanding subsections (a) and (b) of this section, the failure of a foreign corporation to obtain a certificate of authority does not impair the validity of its corporate acts . . ." (Emphasis added.) The plaintiff has cited no authority, and this court can find none, which indicates that to be valid, a vehicle repossession order must come from a registered Connecticut corporation. Therefore, this court declines to find a genuine issue of material fact with regards to the repossession conducted by Auto Lock on that basis.
Auto Lock has affirmatively shown that it did not breach any duty owed to the plaintiff when it repossessed her car, and the plaintiff has not demonstrated that a question of fact exists as to whether Auto Lock caused the plaintiff to suffer emotional distress. See, e.g., Perodeau v. Hartford, supra, 259 Conn. 729 (breach of duty required to prove action for negligent infliction of emotional distress). Auto Lock has similarly demonstrated that in its dealings with the plaintiff it did not act in a manner that an ordinary person would characterize as outrageous. See, e.g., Hartmann v. Gulf View Estates Homeowners Ass'n, 88 Conn.App. 290, 294, 869 A.2d 275 (2005) (" [g]enerally, the case [for the intentional infliction of emotional distress] is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" [citation omitted]). Accordingly, Auto Lock is entitled to summary judgment against counts six and seven of the plaintiffs' amended complaint.
VI. The Plaintiff's CUTPA Claim Against Auto Lock in Count Eight
In count eight, the plaintiff asserts a claim for violations of CUTPA against Auto Lock premised on the same theories underlying her claims for negligent and intentional infliction of emotional distress. For the same reasons discussed in the preceding paragraphs, Auto Lock has affirmatively demonstrated the absence of any genuine issues of material fact as to whether it violated CUTPA in its dealings with the plaintiff, and the plaintiff has not rebutted the showing made by Auto Lock. Therefore, summary judgment is warranted in favor of Auto Lock against count eight of the plaintiff's complaint.
CONCLUSION
The court grants the motion for summary judgment filed by the defendant, Colonial, as against counts one through five of the plaintiff's amended complaint, and grants the motion for summary judgment filed by the defendant, Auto Lock, as against counts six through eight of the plaintiff's amended complaint, because no genuine issues of material fact exist and the defendants are entitled to judgment as a matter of law.