Aldin Assocs. Ltd. v. Hess Corp.

• Decision Date: 19 September 2017
• Docket Number: (AC 38210).
• Citation: 170 A.3d 682,176 Conn.App. 461
• Court: Connecticut Court of Appeals
• Parties: ALDIN ASSOCIATES LIMITED PARTNERSHIP v. HESS CORPORATION et al.

176 Conn.App. 461

170 A.3d 682

ALDIN ASSOCIATES LIMITED PARTNERSHIP

v.HESS CORPORATION et al.

(AC 38210).

Appellate Court of Connecticut.

Argued February 7, 2017

Officially released September 19, 2017

Richard P. Weinstein, West Hartford, with whom, on the brief, were Dina S. Fisher and Sarah Black Lingenheld, Farmington, for the appellant (plaintiff).

Paul D. Sanson, with whom were Karen T. Staib and, on the brief, Patrick M. Fahey, Hartford, for the appellee (named defendant).

DiPentima, C.J., and Mullins and Flynn, Js.

FLYNN, J.

The plaintiff franchisee, Aldin Associates Limited Partnership, commenced this three count action against the defendant franchisor, Hess Corporation,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 Product 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 purchase 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 marketing 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 complaintalleged that the defendant's conduct violated several provisions of the Connecticut Petroleum Product Franchise 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 unenforceable. 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 reconsideration.

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. Specifically, 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 procedural 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 demonstrate 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 hereunder ."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 plaintiff 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. at 15, 715 A.2d 748, the jury trial waivers were unenforceable because they were not executed knowingly and voluntarily. In support 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 presented ... without changes and without any discussion 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 October 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 parties. I'm not going to say [that the parties] were of exactly equal bargaining power, but they were in substantially 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 contracts 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 document[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." Accordi...