Opinion
No. CV 06 4006894 S
September 17, 2007
MEMORANDUM OF DECISION
The plaintiff brings this action in Seven Counts. Count One is against the defendant Georgetown Subaru only and it alleges a violation of the Motor Vehicle Information and Cost Savings Act.
Count Two is also against the defendant Georgetown Subaru and it alleges a violation of the Connecticut Unfair Trade Practices Act (CUTPA).
Count Three is against the defendant Riverside Motorcars, LLC and alleges a violation of the Motor Vehicle Information and Cost Savings Act.
Count Four is against the defendant Christian Salinardi and it alleges a violation of the Motor Vehicle Information and Cost Savings Act.
Count Four is against the defendant Joseph Salinardi and it alleges a violation of the Motor Vehicle Information and Cost Savings Act.
Count Six is against the defendant Riverside Motor Cars, LLC and it alleges a revocation of acceptance pursuant to § 42a-2-608 of the Uniform Commercial Code.
Count Seven is against the defendants Riverside Motor Cars, LLC, Christian Salinardi and Joseph Salinardi and it alleges a violation of CUTPA.
Facts
The credible and convincing evidence presented at the hearing of this matter proves the following facts by a fair preponderance of the evidence:
The plaintiff Geoffrey L. Tibbets Plaintiff is a well educated Captain in the United States Army. Due to his service obligations he has lived in several locations during the events herein, including Virginia and Arizona.
The defendant Riverside Motorcars, LLC ("hereinafter Riverside") is a Connecticut Limited Liability company with a principal place of business in Beacon Falls, Connecticut. The company sells used cars to the public.
The defendant Christian James Salinardi is a Connecticut resident and is the principal owner of Riverside.
The defendant Joseph Salinardi is a Connecticut resident and is the father of Christian James Salinardi. He is employed by the defendant Riverside Motor Cars, LLC.
The defendant Georgetown Subaru, Inc., (hereinafter "Georgetown") is a Connecticut corporation that operates a car dealership in Georgetown, Connecticut.
On or about August 16, 2005, Robin F. Bram traded in a 1996 Land Rover Discovery bearing the Vehicle Identification Number of SALJYI24XTA179352 to the defendant Georgetown Subaru. The Odometer Disclosure Statement by Robin Bram states "that the odometer now reads 112016 (no tenths) miles and to the best of my knowledge that it reflects the actual mileage of the vehicle . . ." (Plaintiff's Exhibit 7).
The defendant's "Used Car Check-In Sheet" also indicates that the mileage on the odometer at the time of the trade-in was 112,016. (Plaintiff's Exhibit 5).
The Certificate of Title has the word "REBUILT" in large print on the front of the document.
The Assignment of Ownership document states that the mileage on the odometer reads "112,006." This document provides in pertinent part:
WARNING: Federal law requires that you state the mileage in connection with a transfer or ownership. Failure to complete the Odometer Disclosure Statement or providing a false statement may result in fines and/or imprisonment . . .
TRANSFER BY OWNER . . .
CT Page 15795
CHECK A BOX BELOW ONLY IF APPLICABLE
I hereby certify that the odometer Reading reflects the amount of MILEAGE IN EXCESS OF ITS MECHANICAL LIMITS. (The odometer Started at zero again) I hereby certify that the odometer reading is not actual mileage WARNING ODOMETER DISCREPANCY . . .
Neither of the aforementioned boxes was checked by Robin Bram as the seller of the vehicle.
The document further indicates that the vehicle was transferred on August 16, 2005. The document goes on to state:
FIRST RE-ASSIGNMENT BY LICENSED DEALER . . . CHECK A BOX BELOW ONLY IF APPLICABLE
I hereby certify that the odometer Reading reflects the amount of MILEAGE IN EXCESS OF ITS MECHANICAL LIMITS. (The odometer Started at zero again) I hereby certify that the odometer reading is not actual mileage WARNING ODOMETER DISCREPANCY . . .
Neither of the aforementioned boxes was checked by Georgetown as the seller of the vehicle.
The document further states that the date of the vehicle was sold by Georgetown to Riverside on August 17, 2005. There was no credible evidence introduced at the trial that any agent, officer or employee of Georgetown ever drove the vehicle before it was transferred to Riverside.
The Odometer Disclosure Statement by Georgetown states "that the odometer now reads 112,016 (no tenths) miles and to the best of my knowledge that it reflects the actual mileage of the vehicle . . ."
After the vehicle was transferred to Riverside, it was driven and inspected by Riverside or its agents or employees.
In August 2005 the plaintiff was considering purchasing a Land Rover Discovery. He had owned one before and wanted a newer model with lower mileage. He was particularly looking for a 1995 Discovery. He went on the internet and found a dealer that listed a 1996 Land Rover Discovery on an eBay auction. The vehicle was described in the auction as having "112,030" miles. It is further described as having "a Connecticut rebuilt title" and that it "was an insurance company loss and was purchased back. It needed to pass a 120 point state inspection before the re-title it (sic)."
The plaintiff bid $3,500-3,600, but did not win the auction. He was stationed at Fort Meade at the time that he placed the bid, but he subsequently was relocated to Arizona. In September 2005, the plaintiff had forgotten about the vehicle until he received an e-mail from Mr. Salinardi of Riverside giving him a "2nd chance offer." This was not the typical second chance bid. The offer was with new terms and conditions, not an eBay bid.
The first sale had fallen through. The evidence indicates that there was an attempted sale to a Mr. Nasef on September 2, 2005.
The plaintiff contacted Mr. Salinardi by telephone. He was informed that the vehicle was in very good condition. He inquired as to whether it was drivable from Connecticut to Virginia and was told yes and that the vehicle had a good strong transmission.
He wanted to make sure that he could drive the car to Virginia and to pass inspection. The defendants offered a reduction because of the plaintiff's military service and the car sold to him for $3,500.00.
The plaintiff came to Connecticut to pick up the vehicle on December 3, 2005. He was accompanied by his friend Ms. Hargas who lives in Virginia. They came up by train and stopped at the rail road station nearest to Beacon Falls.
The plaintiff got to the dealership around 5:00 p.m., and night had already arrived He met with Mr. Salinardi and did a walk around of the vehicle. He was in a hurry and was concerned that it was dark and the dealership was closing. He did not try to start the car or drive it before the sales transaction was completed. The plaintiff was concerned that he had to get back to Virginia for his military duties and needed to drive the vehicle back that night. The first time that he saw Certificate of Title (Plaintiff's Exhibit C) was after the transaction was completed. Mr. Salinardi told him about the process for obtaining a rebuilt title and the plaintiff felt comfortable with going through with the transaction in light of Mr. Salinardi's statements.
The Invoice indicates where the plaintiff put his signature that it was sold "AS IS," but the court notes that the box is not actually checked. (Plaintiff's Exhibit B.)
The Supplemental Assignment of Ownership and/or Bill of Sale states in pertinent part that: "I state to the best of my knowledge and belief, the odometer reading specified below reflects the actual mileage, unless one of the following statements is checked: ODOMETER READING (No tenths) 112,016." (Plaintiff's Exhibit D.) Neither of the boxes was checked.
The subject boxes contained the same certification language as the Assignment of Ownership document.
The Odometer Disclosure Statement (Plaintiff's Exhibit E) states that "the odometer reading on the vehicle described below now reads 112016 (no tenths) Miles and to the best of my knowledge that it reflects the actual mileage," unless one of the following statements is checked. Neither of the boxes was checked.
See footnote 2.
The plaintiff signed the Riverside Purchase Order. (See Defendant's Exhibit A.) A portion of the document that is title "Terms of Warranty" contains language that provides that the vehicle is sold "AS IS." A box is checked indicating that the subject vehicle was sold as an "as is" vehicle. The court notes however that although there is a place for the purchaser's signature and that this portion of the document is actually marked with a handwritten "x" and is marked with yellow highlighter, no signature appears on this portion of the document. The court further notes that there are two more sections of the purchase order similar marked, one concerning the "CONSUMER'S WAIVER OF DEFECT" and the other "WRITTEN PROMISES MADE TO CONSUMER," neither of these portions of the Purchase Order contains a signature.
After the paper work was completed the vehicle was warmed up and pulled up to the front of the dealership. The plaintiff and friend got into the vehicle and drove for a short distance when they noticed that the speedometer and odometer were not working. The check engine light then came on and they decided to drive back to the dealership.
When they looked at the odometer it read 112,006.
When they got back to the dealership they realized that it was closed so they drove to Virginia because of the plaintiff's time constraints due to his military service obligations.
After arriving in Virginia, the plaintiff notified the defendant Joseph Salinardi about the odometer problem. The plaintiff additionally wrote Mr. Salinardi some e-mails. In a December 8, 2005 e-mail the plaintiff states in pertinent part that: "After I received possession of the `96 Land Rover on December 3, an odometer discrepancy became apparent, with neither the speedometer or (sic) odometer functioning. Aside from other minor issues about the truck, an odometer discrepancy cannot be overlooked. I did not bargain for a vehicle with an odometer discrepancy . . ." (Plaintiff's Exhibit F.) On December 9, 2005 the defendant Joseph Salinardi e-mailed the plaintiff and stated that "[w]e brought the car from a new car dealer, who had a federal odometer signed by the seller, we did the same from the dealer we purchased it from. Could a fuse have blown? What do you think it is? Thanks, Joe." (Plaintiff's Exhibit R.)
On December 14, 2005 the plaintiff e-mailed the defendant Joseph Salinardi and stated in pertinent part that: "I'm going to have the local dealer here check it out, and if it's just a fuse or a switch on the odometer, then we have a done deal . . ." (Plaintiff's Exhibit H.)
The plaintiff eventually had a Land Rover dealership look at the vehicle and was informed that the speedometer head was bad and needed to be replaced at a cost of $492.00 for parts and $180.00 for labor. He notified the defendant Salinardi of the dealership's findings by an e-mail dated December 28, 2005. He also informed them that he could live with other problems with the vehicle, but the odometer discrepancy was "a deal breaker." (Plaintiff's J.) The plaintiff testified that he has no idea of the actual mileage of the car, but he thinks that due to the odometer issue it is worth substantially less then he paid. However nothing about the vehicle made the plaintiff believe that it had mileage in excess of what the odometer indicated.
The vehicle broke down in January 2006, about one month after purchase. The fuel pump failed. On January 9, 2006 the Arlington County Police impounded the vehicle because it was unregistered and the vehicle identification number did not match Connecticut or Virginia motor vehicle data bases. It was impounded for ten (10) days at a rate of $32.96 per day.
The plaintiff eventually placed the car in storage and storage fees commenced to run. The plaintiff believes that storage fees now exceed the value of the vehicle and he is not sure if the vehicle is still in the storage facility.
On January 6, 2006 the defendant Joseph Salinardi e-mailed the plaintiff and stated the defendant Georgetown did not agree with the plaintiff's position concerning the plaintiff's purchase of the vehicle. He stated that: "We purchased this [vehicle] from a first class dealer. He showed 112,006 on the odometer. We purchased it, and it was brought by a flatbed truck to our location. It was driven 2/10s of a mile to a private, secured storage facility."
"We sold it to [Mr.] Nasef, who never picked it up. It was then sold to you in August and picked up in December. We never received any notification from you, when you left our location on 12/3/2005 until weeks later. That puzzles us. You purchased a good car, at a fair price, that was disclosed on a salvage title, with an ABS light on, and validated federal odometer statements. We believe we have been forthright in the transaction. We sold you the car with no guarantees, under our rights as a licensed dealer in Connecticut. Therefore, our position will not change. You purchased with no recourse . . ." (See Plaintiff's Exhibit K.)
The court notes that this position is contrary to the credible evidence.
The court notes that credible and convincing evidence was introduced at the trial that Mr. Salinardi generally drove every vehicle before he purchased it. He also credibly testified that Riverside had test driven the subject vehicle. The plaintiff credibly testified that he wanted to know if it was drivable from Connecticut to Virginia and was told yes and that the vehicle had a good strong transmission. (Emphasis added.) Furthermore the description on the e-Bay posting stated that: "The car runs well and the transmission shifts with authority . .." (Emphasis added.) (See Plaintiff's Exhibit A.)
The foregoing evidence proves that the subject defendants had driven the vehicle while it was in their possession for a long enough period to come to a conclusion concerning the quality of its transmission. As to the actual distance that it was driven, the credible evidence presented at the hearing was that it was driven at least 2/10th of a mile from the flatbed truck to the defendants' private storage facility. However no evidence was introduced that the defendants drove the vehicle further the aforementioned distance.
On January 26, 2006 the plaintiff e-mailed the defendants a demand letter seeking $5,352.15 in damages. (Plaintiff's Exhibit L.)
On March 1, 2006 the plaintiff sent an e-mail to the defendants confirming a telephone conversation with Joseph Salinardi in which the parties agreed that the plaintiff could return the vehicle. The plaintiff went on to state that he would return the car on March 4, 2006 and would get his purchase money returned. He further stated that if there was no one at the facility to accept the vehicle and return his purchase money he would notify law enforcement authorities about the odometer discrepancy and then commence legal proceedings against the defendants. (Plaintiff's Exhibit M.) The defendants viewed the latter statement to be an unacceptable threat and sent an e-mail stating that a member of Riverside LLC would not be on the premises on March 4, 2005 and because of the worsening relationship of the parties they would not allow an employee to interact with the plaintiff. They further informed the plaintiff that he could return the vehicle anytime after March 10, 2005. (Plaintiff's Exhibit N.)
On Sunday March 5, 2006 the plaintiff e-mailed the defendants that he would be unable to return the vehicle on the dates specified by the defendants due to his military obligations and that he would return the vehicle on Wednesday March 8th, or Thursday March 9th. (Plaintiff's Exhibit O.)
On Tuesday March 7, 2006 the defendants notified the plaintiff that they were no longer willing to continue discussions with the plaintiff personally, and that they would only discuss the matter with the plaintiff's lawyer. (Plaintiff's Exhibit P.)
Discussion As to Count One Violation of the Motor Vehicle Information and Cost Savings Act by the defendant Georgetown
49 U.S.C. § 32701 the Motor Vehicle Information and Cost Savings Act provides in pertinent part: "Findings and purposes (a) Findings — Congress finds that (1) buyers of motor vehicles rely heavily on the odometer reading as an index of the condition and value of a vehicle; (2) buyers are entitled to rely on the odometer reading as an accurate indication of the mileage of the vehicle; (3) an accurate indication of the mileage assists a buyer in deciding on the safety and reliability of the vehicle; and (4) motor vehicles move in, or affect, interstate and foreign commerce. (b) Purposes — The purposes of this chapter are — (1) to prohibit tampering with motor vehicle odometers; and (2) to provide safeguards to protect purchasers in the sale of motor vehicles with altered or reset odometers."
The Act requires any person transferring ownership of a motor vehicle to give the transferee an accurate, written disclosure of the odometer reading or, if the transferor knows the odometer reading is not correct, a statement that the actual mileage is unknown. See 49 U.S.C. § 32705(a). If the transferor, with intent to defraud, fails to comply with these requirements, the transferor is subject to suit by the transferee and may be liable for treble damages or $1,500, whichever is greater. See Id., § 32710.
The credible and convincing evidence presented at trial proves that the defendant Georgetown did not tamper with or reset the odometer in the subject vehicle furthermore, Georgetown was unaware of any problems with said odometer. No evidence was introduced at trial as to when the speedometer and/or odometer malfunctioned. This court does not know whether these instruments were working when the vehicle was sold by Bram to Georgetown, or Georgetown to Riverside or in fact from Riverside to the plaintiff. The only credible evidence concerning the instruments not working was when the plaintiff noticed they weren't working shortly after he started his drive back to Virginia.
There is no evidence that Georgetown drove or even moved the vehicle at all in a way that would make it become aware that there was a problem with the odometer before the vehicle was transferred to the defendant Riverside. There was no credible evidence that Georgetown was aware or should have been aware that the odometer had been tampered with or had been reset or even malfunctioning prior to it receiving said vehicle. Furthermore there was no credible evidence that odometer had malfunctioned while the vehicle was in Georgetown's possession. Other than the Roverland 4 X 4 Repair Estimate (Plaintiff's Exhibit S) no eyewitness testimony or expert witness opinion testimony or any other type of evidence was introduced as to when the odometer malfunction actually occurred. Furthermore, the plaintiff did not offer any evidence by expert witness or otherwise of a standard of care for the business of wholesaling used cars or in dealing with odometers and mileage on used vehicles.
Based on the credible and convincing evidence presented at trial, this court finds that the plaintiff has failed to prove that the actions of Georgetown were either intentional behavior or reckless disregard in regards to the accuracy of the odometer reading. See Haynes v. Manning, 917 F.2d 450 (10th Cir. 1990).
As to a discrepancy between the actual mileage on the odometer and that reported on the Georgetown-Riverside Transaction. The court notes that the transaction did not involve the plaintiff. Additionally, no evidence as to why 112,016 was recorded instead of 112,006 and this court would be speculating as to what the reasons were for recording what is a very minor discrepancy in the mileage on the odometer and the mileage recorded on the mileage statements. Under the totality of the circumstances presented at trial, the court finds the ten-mile discrepancy to be de minimus.
For all of the foregoing reasons, judgment may enter in favor of the defendant Georgetown on Count One.
As to Count Two — Violation of CUTPA by the defendant Georgetown CT Page 15802
The Connecticut Unfair Trade Practices Act provides in relevant part that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Conn. Gen. Stat. § 42-110b(a). In determining whether a practice violates CUTPA, the following criteria is used: "(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]." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, 275 Conn. 105, 155, 881 A.2d 937 (2005). "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.) Id.Although the plaintiff has alleged a CUTPA violation against the defendant Georgetown, as was stated earlier herein, the transaction in question involved the defendant Georgetown and the defendant Riverside, not the plaintiff Tibbets. Furthermore, the evidence does not show that the plaintiff was a third-party beneficiary to the defendant's contractual relationship with each other. "The law regarding the creation of contract rights in third parties in Connecticut is . . . well settled . . . [T]he ultimate test to be applied [in determining whether a person has a right of action as a third party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties . . . Although . . . it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary . . . the only way a contract [will] create a direct obligation between a promisor and a third party beneficiary [is when] the parties to the contract so intended." (Citations omitted; internal quotation marks omitted.) Gazo v. Stamford, supra, 255 Conn. 261.
For the forgoing reasons judgment for the defendant Georgetown may enter as to Count Two of the Complaint.
As to Count Three — Violation of the Motor Vehicle Information and Cost Savings Act by the Defendant Riverside Motorcars, LLC
The plaintiff has alleged that the defendant Riverside Motorcars, LLC violated the provisions of the Motor Vehicle Information and Cost Savings Act (hereinafter MCIVSA). This court has already discussed the findings and purposes of the act hereinabove.The plaintiff argues that the defendant Riverside acted recklessly and carelessly by failing to properly record the odometer reading on the disclosures. Courts in other jurisdictions have determined that an individual need not intentionally violate the provisions of the Act in order to be in violation.
In Haynes v. Manning, 917 F.2d 450 (10th Cir. 1990) (per curiam), this court addressed the standard for determining whether a transferor acted with intent to defraud under the Odometer Act. The court concluded the transferee need not show the transferor acted with the specific intent to deceive. See 917 F.2d at 453. Rather, the transferee need only show "reckless disregard" by the transferor. Id. Importantly, the court concluded that the Odometer Act "imposes an affirmative duty on automobile dealers to discover defects." Id. The court then stated:
A transferor of a vehicle may be found to have intended to defraud if he had reason to know the mileage on the vehicle was more than was reflected by the odometer or certification of the previous owner and nevertheless failed to take reasonable steps to determine the actual mileage.
Id. Under this standard, a transferor need not have actual knowledge that the odometer statement was false before liability may be imposed. Rather, intent to defraud may be inferred if a transferor lacks such knowledge only because he "display[ed] a reckless disregard for the truth" or because he `clos[ed] his eyes to the truth.' Id. (quoting Tusa v. Omaha Auto Auction Inc., 712 F.2d 1248, 1253-54 (8th Cir. 1983)). Suiter v. Mitchell Motor Coach Sales, Inc., 151 F.3d 1275, 1282 (10th Cir. 1998).
The plaintiff did not offer any proof that the defendant Riverside or the Salinardis tampered with the odometer in subject vehicle. Furthermore the evidence does not prove that the defendant Riverside or the Salinardis had any actual knowledge that the odometer in the subject vehicle was not working when the vehicle was received by Riverside.
The credible evidence before the court is that the subject vehicle has a mechanical odometer and the vehicle was driven by the defendants for at least approximately 2/10th of a mile and that the defendant therefore had the opportunity to determine whether the odometer was in proper working order.
The court further finds that based on the credible and convincing evidence presented at trial the plaintiff failed to prove that the defendant Riverside or its officials, agents and/or employees had the intent to defraud the plaintiff or that Riverside or its officials, agents and/or employees displayed a reckless disregard for the truth.
There was no evidence that the vehicle had excessive wear and tear that would make it obvious to Riverside that the vehicle had mileage that was beyond that indicated by the odometer. As was stated by the plaintiff himself during the trial, there was no reason to believe that the true mileage on the vehicle was far in excess of that reported on the odometer. Based on the evidence presented to the court the odometer very well could have started to malfunction immediately before began to drive the vehicle, or it could have malfunctioned before Bram sold the vehicle to Georgetown. Without sufficient evidence for this court to make a proper inference, it would merely be speculating as to when the malfunction actually occurred and such speculation is of course impermissible. "Because [t]he only kind of an inference recognized by the law is a reasonable one [however] . . . any such inference cannot be based on possibilities, surmise or conjecture . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence . . . [T]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we will call it speculation. When that point is reached is, frankly, a matter of judgment." (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 93, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004).
As to Count Six — Revocation of Acceptance (Defendant Riverside Motorcars, LLC)
The plaintiff argues that he effectively revoked his acceptance of the subject vehicle when he endeavored to return it to Riverside.
Section 42a-2-608 of the Connecticut General Statutes is titled "Revocation of acceptance in whole or in part." This statute provides that:
(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it (a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or (b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
The plaintiff testified that the odometer malfunction was the basis for his alleged revocation of acceptance. (See Plaintiff's Exhibit J.) The court notes that the plaintiff specifically admitted that he could live with other problems with the vehicle, but the odometer discrepancy was "a deal breaker." It is therefore this court must find that the odometer malfunction substantially impairs the vehicle's value to him.
"The test for substantial impairment is both subjective and objective; it focuses first, on the needs and circumstances of the particular buyer seeking to revoke, and then considers whether, from an objective standpoint, the value of the goods to the buyer has in fact been impaired." Webb Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 346-47, 525 A.2d 57, following remand, 205 Conn. 479, 533 A.2d 1211 (1987).
The plaintiff credibly testified that he was seeking a Land Rover with lower mileage than the one he previously owned. He entered into the subject transaction and agreed to pay the aforementioned consideration believing that this goal was being met. The court therefore finds that the value of the vehicle to the plaintiff was in fact substantially impaired by the malfunctioning odometer. The court notes however that § 42a-2-608, provides that the seller will have the opportunity to "seasonably" cure the nonconformity within a reasonable time.
The credible and believable evidence presented at trial was that the plaintiff had revoked his acceptance and the parties had eventually agreed that the plaintiff could return the vehicle. The evidence further proves that the plaintiff never actually returned the vehicle to the defendants. The parties got into a disagreement about the conditions of the delivery and acceptance of the same. They specifically disagreed as to the date that the vehicle could be returned and who would be there to accept the vehicle. The end result was that although the plaintiff revoked his acceptance, through the fault of Riverside and the plaintiff, the plaintiff never physically returned the vehicle to Riverside.
As to damages pursuant to the subject count, § 42a-2-715 C.G.S. is entitled "Buyer's incidental and consequential damages." This statute provides that: "(1) Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach. (2) Consequential damages resulting from the seller's breach include (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and (b) injury to person or property proximately resulting from any breach of warranty."
As to the towing fee of four hundred and ten dollars ($410.00) and cost of the vehicle being impounded for ten (10) days, the court rejects the plaintiff's claim that these are proper as either incidental or consequential damages under the facts as found. The proximate cause for the vehicle being impounded was the actions of the plaintiff in placing an unregistered vehicle on a public street, not the actions of the defendant in not accepting the revocation.
The court awards the plaintiff the bill from Roverland 4 X 4 in the amount of ninety-two dollars and thirty-five cents ($92.35). (Plaintiff's Exhibit S.) The court further awards the plaintiff three thousand four hundred dollars ($3,400.00) the price that he paid for the vehicle; however the court also offsets this portion of the award by three thousand four hundred dollars ($3,400.00) for reason that the plaintiff never physically returned the vehicle to the defendant Riverside. The court further awards the plaintiff one hundred dollars ($100.00) for the "Dealer Processing Fee" that was paid by the plaintiff. (Plaintiff's Exhibit A.) Lastly, under the circumstances of the facts as found by this court, the court finds that the plaintiff is entitled to recover reasonable attorneys fees.
As to Count Seven — Violation of CUTPA by the Defendants Riverside Motorcars, LLC, Joseph Salinardi and Christian Salinardi Only
As was stated earlier herein in order to find a trade practice violates CUTPA violation there must be a finding as to: "(1) Whether 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]." Ventres v. Goodspeed Airport, supra.
The plaintiff has failed to prove that the defendant engaged in any deceptive act or practice in the conduct of its business with him. Criteria for establishment of a violation of CUTPA, Conn. Gen. Stat., § 42-110a et seq., are well settled. Updike, Kelly, and Spellacy, P.C. v. Beckett, 269 Conn. 613, 655-56 (2004). The plaintiff has failed to meet his burden of proof to show that actions of the named defendants rise to the level of a CUTPA violation therefore judgment may enter for the named defendants as to this count.
Conclusion
Judgment may enter for the defendants and against the plaintiff on Counts One, Two, Three, Four, Five and Seven. Judgment may enter for the plaintiff and against the defendant Riverside on Count Six in the amount of three thousand six hundred ninety-two dollars and thirty-five cents, less a credit to the Riverside in the amount of three thousand four hundred dollars ($3,400.00) as stated hereinabove. Total judgment may enter for the plaintiff and against the defendant Riverside for one hundred and ninety-two dollars and thirty-five cents, ($192.35) plus reasonable attorneys fees. So ordered.