Criscuolo v. Mauro Motors, Inc.

• Decision Date: 04 July 2000
• Docket Number: (AC 18924)
• Citation: 58 Conn. App. 537,754 A.2d 810
• Court: Connecticut Court of Appeals
• Parties: ELIZABETH CRISCUOLO v. MAURO MOTORS, INC.

58 Conn. App. 537

754 A.2d 810

ELIZABETH CRISCUOLO v. MAURO MOTORS, INC.

(AC 18924)

Appellate Court of Connecticut.

Argued February 29, 2000.

Officially released July 4, 2000.

Landau, Spear and Healey, JS. Anita Flannigan Steenson, with whom, on the brief, was R. E. Phillips, for the appellant (defendant).

Frank S. Marcucci, with whom, on the brief, was Paul J. Dorsi, for the appellee (plaintiff).

Opinion

HEALEY, J.

The defendant, Mauro Motors, Inc., appeals from the judgment rendered in favor of the plaintiff, Elizabeth Criscuolo, after a trial to the court in this action pertaining to her purchase from the defendant of an allegedly defective used 1992 BMW (vehicle). The plaintiff filed a six count complaint¹ seeking, inter alia, damages,² attorney's fees and interest. The court found the defendant liable only on the first count³ and awarded the plaintiff damages of $10,883.14.⁴ On appeal, the defendant claims that the court improperly (1) rendered judgment pursuant to a statutory cause of action that the plaintiff did not plead in her complaint or pursue at trial, but only was "imported" into the case by the court in its memorandum of decision, (2) decided that the defendant breached the implied warranty of merchantability pursuant to General Statutes § 42-2-314⁵ in that the vehicle became unfit for its ordinary purpose due to a latent defect that became apparent only after being driven approximately 6500 miles in a one year period, (3) awarded only nominal damages after finding that the defendant was entitled to an offset for the plaintiffs use of the vehicle because calculation of the offset was too speculative and (4) awarded the plaintiff an amount greater than she had paid as a return of her down payment. We affirm in part and reverse in part the judgment of the trial court.

In its memorandum of decision, the court set forth the following facts. On or about July 13, 1994, the plaintiff entered into a written, retail purchase and sale agreement with the defendant, an automobile dealer, whereby she agreed to buy and the defendant agreed to sell, a used 1992 BMW automobile. Although the agreed cash price was $23,000, the total cash price on delivery, after adjustments, was $24,690.94. The plaintiff allegedly made a down payment of $4690.94 and financed the balance. She took delivery of the vehicle on or about July 16, 1994, when its odometer read 10,120 miles.

From July, 1994, until November, 1994, the plaintiff used the vehicle on weekends. From November, 1994, to February, 1995, the plaintiff kept the vehicle garaged and no one drove it. By March, 1995, the odometer read 14,197 miles. In April, 1995, the plaintiffs husband began to use the vehicle regularly to drive back and forth to work. In June, 1995, the husband noticed what appeared to be severe wear on the tires. As of June 7, 1995, the odometer read 16,613 miles, which was 6500 miles more than when the plaintiff purchased the vehicle. The plaintiffs husband continued to drive the vehicle until September, 1995, when he and the plaintiff ceased using it. By September, 1995, the odometer read approximately 21,000 miles. Thus, from the time of purchase in July, 1994, until September, 1995, the plaintiffs use of the vehicle totaled approximately 11,000 miles.

In June, 1995, the plaintiff, having been apprised of the tire wear problem, undertook certain measures to learn why the problem arose and how it could be corrected. On or about June 7, 1995, the plaintiffs husband took the vehicle to Guilford Tire Service (Guilford) for wheel alignment. After inspection, Guilford reported that it could not align the wheels properly. A handwritten notation on the Guilford report sheet stated, "three cracks in valence under bumper they tried to weld." From June, 1995, to July, 1995, the plaintiff contacted the defendant and complained about the alignment problem. Two appointments were made for the plaintiff to bring the vehicle in for inspection, but the plaintiff ultimately decided not to let the defendant inspect the vehicle. On June 16, 1995, the plaintiff, using the name Deborah Dowling, engaged County Line BMW of Watertown to perform an inspection. The inspection confirmed that the vehicle had been in a collision and disclosed other problems.⁶ The plaintiff subsequently ascertained that her vehicle had been damaged in a collision in November, 1993, and that the damage was extensive, including considerable damage to the right front and rear of the vehicle.⁷

In July, 1995, the plaintiff stopped making her monthly payments on the vehicle. She also retained an attorney, who contacted the defendant in June, 1995.⁸ On or about April 5, 1996, the plaintiff had Midway Service, Inc., of North Branford inspect the vehicle and prepare a repair estimate. Midway Service, Inc., estimated a total of $9350.78 to restore the vehicle to the condition it was in before it was involved in the accident. On May 14, 1996, the plaintiff filed her complaint.

In finding liability for the plaintiff on the first count, the court specifically found the following facts. "At the time of sale the subject BMW was defective in that its frame had been damaged in a prior collision so as to cause the right rear tire and wheel to be misaligned; that such a misalignment could not be corrected other than by straightening said frame to a condition permitting proper alignment of said tire and wheel.... The said defect affected the use of said vehicle in that it caused inordinate wear and tear on said tire.... The said defect affected the safety of said vehicle in that it affected negatively the handling of said vehicle when operated in wet or slippery conditions.... Said defect was not readily apparent by visual inspection at the time of sale.... Such defect would not be readily apparent as a result of the `safety inspection' conducted by the defendant at the time of sale.... The defendant, its officers, agents and employees were unaware of the existence of said defect at the time of sale and unaware that the subject BMW had suffered damage in a collision prior to sale.... The plaintiff was aware of her right to have conducted an independent inspection of said vehicle, pursuant to General Statutes § 42-225 and she declined to do so." The court found, however, that the failure by the plaintiff to exercise such right of inspection did not constitute an exclusion of the implied warranty under General Statutes § 42a-2-316 (3) (b)⁹ because there was no assurance that a reasonable inspection under the circumstances at the time of sale would have uncovered the defect. The court further found that "[b]ased on the testimony and evidence presented ... the plaintiff has established, by a fair preponderance of the evidence, a breach of implied warranty of merchantability by the defendant in that over time the said defect rendered the subject motor vehicle unfit for the ordinary purposes for which such vehicle is used." The court then rendered judgment for the plaintiff on the first count of her complaint for $10,883.14, less an offset for her use of the vehicle.¹⁰ The defendant thereafter appealed. Additional facts will be stated where necessary.

We begin by addressing the appropriate standard of review. "On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous.... This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court's decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court's judicial review of decisions of the trial court." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

I

The defendant's first claim is that the court improperly rendered judgment on a statutory cause of action that the plaintiff did not plead in her complaint or pursue at trial, but that the court instead "imported" into the case in its memorandum of decision.¹¹ We do not agree.

"Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them." Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952); KMK Insulation, Inc. v. A. Prete & Son Construction Co., 49 Conn. App. 522, 525, 715 A.2d 799 (1998).

"The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise.... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations in his complaint.... A plaintiff may not allege one cause of action and recover on another. Facts found but not averred cannot be made the basis for a recovery." (Citations omitted; internal quotation marks omitted.) Moore v. Sergi, 38 Conn. App. 829, 841-42, 664 A.2d 795 (1995); Francis v. Hollauer, 1 Conn. App. 693, 694-95, 475 A.2d 326 (1984).

Pursuant to Practice Book § 10-3 (a), "When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number." The defendant claims that the judgment on the first count was inappropriate in that it was awarded pursuant to statutory authority and there is no allegation of any statutory basis in the first count. Although the defendant's claim is correct, our courts have held that the requirement that the pleader specifically identify the statute on which he relies is directory rather than mandatory....