Latham and Associates, Inc. v. William Raveis Real Estate, Inc.

Decision Date09 April 1991
Docket NumberNo. 14175,14175
Citation218 Conn. 297,589 A.2d 337
CourtConnecticut Supreme Court

James M. Nugent, with whom, on the brief, was George W. Derbyshire, Bridgeport, for appellant (plaintiff).

Irwin J. Gordon, Trumbull, for appellee (defendant).


PETERS, Chief Justice.

The issues in this appeal arise out of a dispute concerning the sale of two integrated computer systems that failed to meet their purchaser's needs for accurate documentation. The plaintiff, Latham & Associates, Inc. (vendor), filed a complaint to recover the unpaid purchase price for computer hardware and software delivered to the defendant, William Raveis Real Estate, Inc. (purchaser). The purchaser, claiming misrepresentation and breach of warranty, denied its own liability and sought, in a counterclaim, to recover damages as well as the return of moneys paid to the vendor. The trial court, after a hearing, found the issues for the purchaser, both on the complaint and on the counterclaim, but limited the purchaser's recovery to $81,500, representing a return of its payments for software. The vendor filed an appeal in the Appellate Court, which we transferred to this court pursuant to Practice Book § 4023. We affirm the judgment of the trial court.

The trial court found the following facts. The purchaser is a real estate company that sought computerized capacity to provide efficient interconnection between its own multiple offices and the various banks with which it dealt. The vendor, aware of the purchaser's needs and of the purchaser's reliance on the vendor's expertise to satisfy these needs, undertook to provide two computer systems that would meet these needs. To persuade the purchaser that it had the capacity to undertake these responsibilities, the vendor misrepresented the extent of its expertise in creating functioning computer systems.

The parties entered into two contracts for the delivery of computer systems. The first contract, dated October 15, 1982, called for the vendor to deliver hardware and software for a so-called real estate system. The purchaser made all scheduled payments under this contract. The second contract, dated March 25, 1984, called for the vendor to develop and install a second computer system, the so-called mortgage system. Because of dissatisfaction with the performance of the software tendered under both contracts, the purchaser did not fully pay license fees or software support charges for the mortgage system.

The vendor's complaint sought to recover for the amounts unpaid on the mortgage system, while the purchaser's counterclaim sought to recover the payments it had made, and damages it had incurred, with respect to the software on both the real estate system and the mortgage system. The trial court found that, for both computer systems, despite its contractual representations to the contrary, the vendor was never able to provide software that reliably delivered the information sought by the purchaser. The trial court also found, however, that the purchaser had not presented a sufficient factual basis for its alleged right to recover certain elements of damages for the vendor's nonperformance. The trial court therefore rendered judgment against the vendor on its complaint and in favor of the purchaser on its counterclaim for return of the software contract price, in the amount of $61,750 for the real estate system and $19,750 for the mortgage system, for a total recovery of $81,500.

The vendor's appeal from this judgment focuses on the merits of the judgment on the purchaser's counterclaim. The vendor does not contest the trial court's finding of fact that the two computer systems that it furnished the purchaser did not fulfill the parties' expectations for reliable data retrieval. The vendor does not challenge the trial court's conclusion of law that article 2 of the Uniform Commercial Code; General Statutes §§ 42a-2-201 through 42a-2-725; governs the transactions between the parties, even though the mortgage system contemplated a licensing arrangement rather than an outright sale.

The vendor has, however, raised thirteen other issues concerning various procedural and evidentiary rulings of the trial court. Most of these claims rest on factual assumptions that the trial court rejected. All of them suffer from the difficulty that appellate pursuit of so large a number of issues forecloses the opportunity for fully reasoned discussion of pivotal substantive concerns. A shotgun approach does a disservice both to this court and to the party on whose behalf it is presented. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. Practice Book § 4065; Gaynor v. Union Trust Co., 216 Conn. 458, 482, 582 A.2d 190 (1990); Liscio v. Liscio, 204 Conn. 502, 507, 528 A.2d 1143 (1987); see Isaac v. Mount Sinai Hospital, 210 Conn. 721, 732, 557 A.2d 116 (1989).


The most important issue before us, which impinges on both parts of the purchaser's counterclaim, is whether a purchaser may recover the moneys paid for a dysfunctional computer system, on a theory of breach of express warranty, without expert testimony to identify the cause for the computer system's generation of inaccurate data. The vendor maintains that the purchaser must present expert testimony in order to rule out the possibility of user error. We disagree.

The need for expert testimony to establish a breach of warranty for computer systems is a question of first impression in this state and elsewhere. As a rule, expert testimony is required "when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors." Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961); Aspiazu v. Orgera, 205 Conn. 623, 630-31, 535 A.2d 338 (1987); Toomey v. Danaher, 161 Conn. 204, 210, 286 A.2d 293 (1971); Jaffe v. Department of Health, 135 Conn. 339, 350, 64 A.2d 330 (1949); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1988) § 7.16.5. We have not had the occasion to apply this principle in the context of computer dysfunction. In other jurisdictions, because expert testimony about the causes of a computer system's dysfunction was produced, the courts were not confronted with the sufficiency of the evidence claim that the vendor makes in this case. See, e.g., Burroughs Corporation v. Chesapeake Petroleum & Supply Co., 282 Md. 406, 408, 384 A.2d 734 (1978); In re Cadillac V8-6-4 Class Action, 93 N.J. 412, 427, 461 A.2d 736 (1983); Segall v. Ben's Truck Parts, Inc., 5 Wash.App. 482, 483, 488 P.2d 790 (1971). Even in Cricket Alley Corporation v. Data Terminal Systems, Inc., 240 Kan. 661, 665, 732 P.2d 719 (1987), on which the purchaser relies for its expansive language, an expert found fault with the equipment delivered by the provider of the computer system.

On the present record, we are not persuaded that we should adopt a hard-and-fast requirement for expert evidence in every case of dissatisfaction with the output produced by computer systems. Three significant facts support the trial court's conclusion that expert testimony was not required in this case. First, the purchaser's burden of proof in this case was attenuated by virtue of the trial court's finding that the purchaser's right to return of the software purchase price was grounded in the purchaser's exercise of its right of rejection under article 2 of the Uniform Commercial Code. Unlike the situation of a buyer who has accepted goods despite their nonconformity, who must assume the burden "to establish any breach"; General Statutes § 42a-2-607; 1 a rejecting buyer need only demonstrate that "the tender of delivery fail[s] in any respect to conform to the contract...." General Statutes § 42a-2-601. 2 The trial court found that the vendor had not sustained its burden of proving that malfunctioning of the computer systems was caused by personnel failures attributable to the purchaser. Second, despite the trial court's ruling that expert testimony was unnecessary, the record discloses that the purchaser introduced some expert testimony about deficiencies in certain aspects of the vendor's software programs. Third, at least with respect to the real estate computer system, the purchaser relied on representations by the vendor that included the promise of support services that inferentially encompassed some vendor responsibility for the work product of the purchaser's employees. In these circumstances, given the trial court's unchallenged finding that the computer software did not perform in accordance with the expectations of the parties, the court could reasonably conclude that the purchaser had produced sufficient evidence to sustain its recovery of the purchase price without expert testimony detailing the cause of the software failure.


The vendor has raised several other issues concerning the purchaser's recovery of the software purchase price on its counterclaim with respect to the real estate computer system. The vendor's appeal renews three defenses to this counterclaim, which the trial court rejected, alleging: (1) the running of the statute of limitations, General Statutes § 42a-2-725; 3 (2) an accord and satisfaction arising out of the subsequent negotiation of the mortgage system contract; and (3) a waiver arising out of a written acceptance form signed by an employee of the purchaser. In light of the trial court's factual findings, the vendor's further pursuit of these claims does not warrant extensive discussion.

To sustain its affirmative defense that the purchaser's counterclaim was time barred, the vendor had to establish the purchaser's noncompliance with the requirements of § 42a-2-725. 4 For this purpose, the vendor had the burden of proving the...

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