Atlantic Richfield Co. v. Canaan Oil Co.

• Decision Date: 03 February 1987
• Citation: 202 Conn. 234,520 A.2d 1008
• Court: Connecticut Supreme Court
• Parties: ATLANTIC RICHFIELD COMPANY v. CANAAN OIL COMPANY et al.

Page 1008

520 A.2d 1008

202 Conn. 234

ATLANTIC RICHFIELD COMPANY v. CANAAN OIL COMPANY et al.

Supreme Court of Connecticut.

Argued Nov. 12, 1986.

Decided Feb. 3, 1987.

Michael F. Dowley, Middletown, for the appellant-cross appellee (defendant Waterbury Petroleum Products, Inc.).

Richard W. Tomc, Middletown, with whom, on brief, was John N. Montalbano, New Haven, for the appellee-cross appellant (plaintiff).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and CIOFFI, JJ.

SHEA, Justice.

The plaintiff Atlantic Richfield Company (ARCO) sued the defendants Canaan Oil & Fuel Company, Canaan Oil Company, and Geoffrey S. Smith, Jr., the president of Canaan Oil & Fuel Company, for the balances due both on a promissory note payable to ARCO and on the sale of petroleum products, an aggregate amount of $49,725.52. Default judgments were rendered against these defendants, who are not involved in the present appeal. ARCO also sued the defendant Waterbury Petroleum Products, Inc. (the defendant), as guarantor of the Canaan companies' outstanding indebtedness. The defendant filed a counterclaim on the basis of the refusal of ARCO to extend certain discounts and credit privileges for the defendant's purchases of fuel. After a trial to a jury, the court, Edelberg, J., rendered judgment in accordance with verdicts for the defendant on the complaint and for the plaintiff on the counterclaim. In its appeal the defendant raises various claims of error relating to the trial court's (1) jury instructions, (2) rulings that generally precluded the introduction into the case of references to federal energy regulations and federal court decisions, and (3) refusal to allow the defendant to call the plaintiff's counsel as a witness. The plaintiff has cross appealed from the directed verdict in favor of the defendant on the allegation of the complaint that the defendant had guaranteed the indebtedness of the Canaan companies, and from certain rulings concerning discovery and the pleadings. We find no error in either the appeal or the cross appeal.

On August 21, 1969, the Canaan companies and Geoffrey S. Smith, Jr., executed a promissory note payable to ARCO in the amount of $50,000. Canaan Oil Company also became indebted to ARCO under various distributorship agreements. On August 14, 1975, the defendant purchased the assets of the Canaan Oil Company. ARCO alleges that in this transaction the defendant agreed to guarantee Canaan Oil Company's outstanding debt to ARCO, and that, in consideration of such agreement, ARCO entered into distribution contracts with the defendant. ARCO brought the present action upon the defendant's subsequent refusal to pay Canaan Oil Company's debt. The defendant counterclaimed that by demanding more than the distributor price for fuel, and by withdrawing the defendant's line of credit, ARCO had breached its contract, harassed the defendant, intentionally interfered with its business, furthered a conspiracy to so interfere and committed violations of our state antitrust and unfair trade practices statutes.

I

We first dispose of the defendant's claims on appeal.

A

The defendant claims initially that the trial court failed to instruct the jury that ARCO had the burden of proving its special defenses to the counterclaim. To the counterclaim counts of breach of contract, harassment, intentional interference with business and unfair trade practices, the plaintiff pleaded as a special defense that "[w]hatever actions were taken by [the] plaintiff were legitimate, lawful and proper actions in the assertion of its legitimate business and contractual rights and interests and, accordingly, are not actionable." To all but the first count, the plaintiff also pleaded that the statute of limitations barred such claims.

A party may properly be assigned the burden of proving the facts that he affirmatively asserts to be true. Coogan v. Lynch, 88 Conn. 114, 116, 89 A. 906 (1914). A party who pleads a special defense " 'presumably does so with the idea of making his defense appear to be stronger and more aggressive, and invites the court to charge that he has assumed the affirmative upon that particular issue....' Coogan v. Lynch, [supra]." Rix v. Stone, 115 Conn. 658, 664, 163 A. 258 (1932).

In the present case the court appears to have applied this principle by instructing the jury as follows: "Now, with respect to the material allegations of the complaint and special defenses to the counterclaim, which have not been admitted in the answer or reply of the defendant's, the plaintiff has the burden of proving them." At a later point in the charge the court gave a similar instruction imposing the burden of proof on the plaintiff: "In this case, it is not incumbent upon the defendant to disprove the essential elements of the plaintiff's cause of action or special defenses to the counterclaim, but on the contrary the burden of proof is on the plaintiff ...." In its brief the defendant refers to two additional instructions on the burden of proof that are inconsistent with those we have recited. In excepting to the charge as given, however, the defendant's counsel failed to point out specifically these inconsistent instructions, declaring vaguely that he was "not so certain" that the court had allocated the burden of proof to the plaintiff. This imprecise reference did not reasonably alert the court to the deficiencies in the charge now advanced. Counsel thus failed to "state distinctly the matter objected to and the ground of objection" as required by Practice Book § 315 for appellate review. The contention of the defendant, therefore, warrants no further consideration.

B

The defendant next challenges the trial court's instructions on its CUTPA claim. Embodying the core proscription of General Statutes §§ 42-110a through 42-110q, the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b(a) states: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Claiming that the trial court's jury charge with respect to its CUTPA claim was "too limiting," the defendant refers to that portion of the instruction in which the court read to the jury § 42-110b(a) and then stated: "It would appear that if any one or more of the acts alleged in [the CUTPA count] of the counterclaim were immoral, unethical, oppressive or unscrupulous and caused substantial harm to the defendant, that act or those acts would be violative of § 42-110b."

The ground of the defendant's objection to the above instruction at trial was that a violation of CUTPA "is not merely limited to the four examples which your Honor gave [i.e., immoral, unethical, oppressive or unscrupulous acts], but rather ... these unfair trade practices are to be governed by the cases and common law as developed by the federal statutes and the cases underneath them." Counsel for the defendant focused his oral argument on this claim upon a discussion of the similar theme that "[i]t's more than merely oppressive, immoral, unethical conduct, but it includes that which is unfair and deceptive. And [the court] didn't really charge on unfair and deceptive."

General Statutes § 42-110b(b) states: "It is the intent of the legislature that in construing subsection (a) of this section, the commissioner and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended." "We followed this mandate recently, and 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--whether, 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 businessmen) ].' Conaway v. Prestia, [191 Conn. 484, 492-93, 464 A.2d 847 (1983) ], quoting FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244-45 n. 5, 92 S.Ct. 898 [905 n. 5,] 31 L.Ed.2d 170 (1972)." McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 567-68, 473 A.2d 1185 (1984); see Statement of Basis and Purpose of Trade Regulation Rule 408, "Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking," 29 Fed.Reg. 8324, 8355 (1964).

Contrary to the claim of the defendant, the trial court's jury charge did refer adequately to the criteria developed under the federal unfair trade practices legislation. The factors "immoral, unethical, oppressive, or unscrupulous," comprise one of the federal criteria for determining when a practice is unfair. The defendant's further contention that the jury charge omitted reference to a practice "which is unfair and deceptive" also lacks merit, because the court both read to the jury § 42-110b(a), which proscribes "unfair or deceptive acts," and delineated many of the more specific considerations necessary to a determination of statutory unfairness. "The test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. Borsoi v. Sparico, 141 Conn. 366, 371, 106 A.2d 170 [1954]. Since the charge was sufficiently correct in law, adapted to the issues and ample for the guidance of the jury, it met the required test." DeCarufel v. Colonial Trust Co., 143 Conn. 18, 20-21, 118 A.2d 798 (1955); see also State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (...