Barco Auto Leasing Corp. v. House
| Decision Date | 20 January 1987 |
| Docket Number | No. 12655,12655 |
| Citation | 202 Conn. 106,520 A.2d 162 |
| Court | Connecticut Supreme Court |
| Parties | , 3 UCC Rep.Serv.2d 122 BARCO AUTO LEASING CORPORATION v. Veota HOUSE, Sr., et al. |
John C. Driscoll, Norwich, with whom, on the brief, were Jackson T. King, Jr., New Haven, and Mary E. Holzworth, Norwich, for appellant (plaintiff).
David M. Lesser, New Haven, with whom, on the brief, was John C. Wirzbicki, Noank, for appellees (defendants).
Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and CALLAHAN, JJ.
The principal issue on this appeal is whether the trial court properly calculated the amount of damages to which the defendants were entitled upon rescission of an instalment sales contract under the Retail Instalment Sales Financing Act (hereinafter RISFA), General Statutes §§ 42-83 through 42-100a. This action was brought by the plaintiff, Barco Auto Leasing Corporation (hereinafter Barco), against the defendants, Veota House, Sr., and Charles House, to recover a deficiency under an alleged leasing agreement for the rental of an automobile. The defendants responded by filing an answer and several counterclaims. After a disciplinary nonsuit against the plaintiff, and a subsequent judgment by the trial court, Hurley, J., for the defendants on their counterclaims, the plaintiff filed a motion to open the nonsuit and the judgment against it. The trial court, Santaniello, J., granted that motion in part, issuing an order opening the judgment as to damages only. After a further hearing on the issue of damages before the trial court, Schaller, J., the defendants recovered damages of $9596.76, attorney's fees of $5000 and costs from the plaintiff. From this judgment, the plaintiff has appealed to this court. We find error only with regard to the award of attorney's fees.
The record reveals the following facts. On or about October 11, 1979, the defendants entered into an alleged leasing agreement with the plaintiff to lease a 1979 Audi 5000 automobile for a three year period. 1 Attached to the agreement was a rider stipulating that the defendants-lessees were required to purchase the automobile at the end of the lease term for $5500. After driving the automobile for approximately twenty-six months, the defendant Charles House voluntarily surrendered the automobile to the plaintiff on December 31, 1981.
In July, 1982, the plaintiff brought this action against the defendants to recover a deficiency under the agreement and the defendants counterclaimed for damages on several different theories. On February 7, 1983, the trial court, Hendel, J., entered a judgment of nonsuit against the plaintiff for its failure to comply with a discovery order. The case proceeded to trial before the court, Hurley, J., on the defendants' counterclaims, although the plaintiff, allegedly because of lack of notice, did not appear at that trial.
In rendering judgment for the defendants, the trial court ruled separately on several of their counterclaims. The court determined that the defendants were entitled to recover under their first counterclaim because the alleged leasing agreement was in fact a contract of sale, and violated § 42-83(3)(d) of RISFA, 2 a provision intended to protect buyers from unknowingly assuming excessive financing charges. On this counterclaim, the court also decided that the defendants were entitled to rescind the contract and to recover as damages the $9596.76 they had paid the plaintiff. With respect to the defendants' counterclaim under the Connecticut Unfair Trade Practices Act (hereinafter CUTPA); General Statutes §§ 42-110a through 42-110q; the court found that the plaintiff had violated RISFA and had engaged in a variety of unfair and deceptive practices: in disguising a contract of sale as a lease; in disguising a finance charge as a lease payment charge; in failing to disclose the number, amount and due dates of payments for which the defendants were obligated; in scheduling a final "balloon payment" that was more than ten times the amount of the regular instalment payments; in failing to disclose the total amount of the defendants' advance payment, total payments, requirements to purchase, costs of registration, mileage charges, late fees, termination rights, and deficiency liability; and in charging a total price of $19,626 that far exceeded the purchase price of the vehicle. On this counterclaim, the court awarded the defendants punitive damages of $19,193.52, twice their actual damages. In addition, the court awarded the defendants $4000 in attorney's fees.
In February, 1984, the plaintiff filed a motion to open both the judgment of nonsuit and the judgment holding the plaintiff liable for damages, on the grounds that the plaintiff had not been advised that its attorney had withdrawn his appearance after the entry of the disciplinary nonsuit and that it had not received notice of the subsequent trial on the defendants' counterclaims. On June 4, 1984, the trial court, Santaniello, J., denied the motion to open the judgment of nonsuit and granted the motion to open the trial court's judgment as to the issue of damages only. That ruling meant that the judgment rendered against the plaintiff on the issue of liability remained in effect for the purpose of any subsequent proceedings. No appeal from that ruling has been filed, nor has the plaintiff claimed that ruling as error in its present appeal to this court.
On September 20, 1984, the trial court, Schaller, J., retried the case solely on the issue of damages. In a decision dated December 5, 1984, the court affirmed the findings of fact made by Judge Hurley regarding the numerous violations of RISFA committed by the plaintiff. It also upheld his decision to rescind the contract between the parties. In order to return the parties to their respective positions prior to the contract, as required under the principles of rescission, the court awarded the defendants a full refund of the amount they had paid under their contract with Barco $9596.76. In awarding that refund, the court denied the plaintiff's request for a credit against that amount for the fair rental value of the automobile while it was in the defendants' possession. The court also awarded the defendants the sum of $5000 as reasonable attorney's fees pursuant to CUTPA. The trial court declined, however, to award the defendants punitive damages in light of "evidence that misstatements by Charles House were a major contributing factor to, if not the producing cause of, the violations involved." 3
On appeal, the plaintiff claims that: (1) the judgment rendered by the trial court, Hurley, J., was void for lack of notice; (2) the rulings rendered by the trial court, Hurley, J., were not binding in the hearing held by the trial court, Schaller, J. ; (3) the trial court's award of damages to the defendants should have been offset by a credit for the fair rental value of the automobile while it was in the defendants' possession; and (4) the trial court's award of attorney's fees to the defendants lacked the necessary evidentiary foundation. We find error only on the last of these claims.
We may usefully consider the plaintiff's first two claims of error jointly, since each addresses the validity and the effect of the proceedings held before the trial court, Hurley, J. Neither of these claims is properly before this court. Their merits were addressed both at that trial and in the subsequent proceedings before Judge Santaniello. The plaintiff has failed to furnish us with a transcript of either of those proceedings; Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984); see Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713-14, 462 A.2d 1037 (1983); DeMilo v. West Haven, 189 Conn. 671, 680-81, 458 A.2d 362 (1983); see Practice Book § 4019(a) (formerly § 3018); and, even more significantly, has not appealed from, or claimed as error, the ruling by Judge Santaniello denying the plaintiff's motion to open Judge Hurley's judgment on the merits and limiting a subsequent rehearing to the issue of damages. Roque v. Warden, 181 Conn. 85, 86-87 n. 2, 434 A.2d 348 (1980); State v. Anonymous, 179 Conn. 155, 158, 425 A.2d 939 (1979); Gould v. Rosenfeld, 178 Conn. 503, 505, 423 A.2d 146 (1979); see Practice Book § 4185 (formerly § 3063). It is elemental that the plaintiff cannot complain indirectly of rulings that it has not appealed directly. The record in the hearing on damages before Judge Schaller unequivocally demonstrates that, at that time, the plaintiff acquiesced in the ruling by Judge Santaniello and conceded that it was precluded from relitigating its substantive liability. Judge Schaller's memorandum of decision expressly notes that "at Barco's request, the judgment was opened as to damages only" and that "the parties agree that they are bound by Judge Hurley's judgment ordering rescission of the contract." In the absence of a record demonstrating that these claims concerning the trial court's ruling on the issue of liability were properly preserved at trial, and are properly reviewable here, we decline to consider them further. State v. Tirado, 194 Conn. 89, 92, 478 A.2d 606 (1984); Chaplin v. Balkus, 189 Conn. 445, 448, 456 A.2d 286 (1983); State v. Chairamonte, 189 Conn. 61, 64, 454 A.2d 272 (1983); Cersosimo v. Cersosimo, 188 Conn. 385, 398, 449 A.2d 1026 (1982).
In addressing the plaintiff's third claim of error, we are bound by the established substantive allegations of the defendants' counterclaims described in the memorandum of decision of the trial court, Hurley J. The only issue before us is whether, given these substantive findings, the trial court, Schaller, J., erred in its calculation of the rescissory damages to be awarded to the defendants. In particular, the question is whether, in light of the plaintiff's established and significant violations of RISFA and...
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