Bruce Fitzsimmons v. Fleet Truck Sales, Inc. et al. (2010)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

INTRODUCTION/PROCEDURAL HISTORY

On December 23, 2008, the plaintiff, Bruce Fitzsimmons, filed a one-count revised complaint (“Complaint”) alleging breach of contract against the defendants, Fleet Truck Sales, Inc. and Werner Enterprises, Inc. In his Complaint, the plaintiff alleges the following facts.   On July 12, 2007, the plaintiff and the defendants entered into a contract entitled “Purchase Order for Used Motor Truck,” wherein the plaintiff agreed to purchase a 2005 Kenworth W900 semi-tractor (VIN # 1XKWDB9X05J052955) from the defendants for the sum of $60,950.   On July 31, 2007, the defendants delivered title of the contracted-for 2005 vehicle to the plaintiff, and the plaintiff took possession of a Kenworth W900 semi-tractor.   Unbeknownst to any of the parties, the vehicle delivered to the plaintiff was not the contracted-for 2005 vehicle, but a mechanically and cosmetically identical 2006 Kenworth W900 semi-tractor (VIN # 1XKWDB9X46J106937).  The error was not discovered until January of 2008, when the plaintiff attempted to trade the 2006 vehicle he had in his possession towards the purchase of a new 2008 Mack Truck.¹

The plaintiff further alleges the following.   When he discovered the error, he “immediately notified the defendants and attempted to cure by offering to tender and exchange title of the 2005 vehicle for the 2006 vehicle.”   The defendants refused the plaintiff's offer and “claimed that the plaintiff had switched vehicle identification numbers of the vehicles by removing the door of the 2006 vehicle and placing it on the 2005 vehicle.”   Later, upon confirming their error, the defendants acknowledged that the wrong vehicle had been delivered to the plaintiff.   On July 2, 2008, the plaintiff and the defendants exchanged titles and vehicles in order to correct the error.   The defendants refused, however, to compensate the plaintiff for the losses he had incurred between January and July of 2008.   The defendants' conduct allegedly constituted a breach of contract.   As a result of the alleged breach, the plaintiff claims that he sustained the following damages in that six-month time period:  (1) lost profits;  (2) payments to the lien holder of the vehicle;  (3) insurance payments on the vehicle;  (4) tax payments on the vehicle;  (5) maintenance and storage costs for the vehicle while the plaintiff was unable to drive it due to its defective registration;  and (6) loss of the benefit of the bargain on the trade toward the purchase of a new 2008 Mack Truck.   On June 12, 2009, the defendants filed an answer and special defenses.

On January 6, 2010, the defendants filed a Motion for Summary Judgment on the ground that no issues of material fact exist in this breach of contract action, and that they are entitled to judgment as a matter of law, in that the plaintiff is precluded from recovering the damages he seeks from the defendants by the applicable provisions of the Uniform Commercial Code (UCC) and the terms of the contract between the parties.²  The defendants submitted a memorandum of law in support of their motion, as well as the following evidence:  the plaintiff's Complaint, dated December 23, 2008;  the contract at issue, “Purchase Order for Used Motor Truck,” dated July 12, 2007;  the plaintiff's list of claimed damages (“Schedule A” attached to the plaintiff's response to the defendants' requests for disclosure and production, dated February 27, 2009);  and the affidavit of Robert Peterson of Fleet Truck Sales, Inc., dated January 6, 2010.   On March 24, 2010, the plaintiff submitted a memorandum in opposition to the defendants' Motion, as well as the following evidence:  selected portions of the plaintiff's response to the defendants' requests for disclosure and production, dated February 27, 2009;  and selected portions of the plaintiff's response to the defendants' request for admissions, dated November 2, 2009.   On March 26, 2010, the plaintiff filed an affidavit.   On June 18, 2010, the defendants submitted a reply to the plaintiff's objection and a revised memorandum in support of their Motion for Summary Judgment.³  The matter was heard on the short calendar on September 7, 2010.   Other facts will be discussed as they become necessary to decide particular legal issues.

ANALYSIS

EFFECT OF THE TERMS AND CONDITIONS OF THE CONTRACT

The contract at issue in this case, the July 12, 2007 “Purchase Order for Used Motor Truck,” consists of two pages.   The first page of the contract contains, inter alia, information identifying the buyer (the plaintiff) and the seller (one defendant, Fleet Truck Sales, Inc.), a description of the contracted-for vehicle (a 2005 Kenworth W900 semi-tractor, VIN # 1XKWDB9X05J052955), the purchase price ($60,950) and the terms of delivery.   At the bottom of the first page, in a box to the left of the signature line, the words “NOTICE TO PURCHASER” are printed in bolded, underlined text.   The notice reads as follows:  “This Agreement consists of two pages [a]nd includes the terms and conditions listed on page two.”   The second page of the contract, entitled “Purchaser's Certification & Terms Of Sales,” contains the aforementioned terms and conditions.⁴  Paragraph 5 of this document specifically disclaims all warranties and provides that “[i]n no event shall [the] seller be liable for any consequential damages or for breach of warranty.” ⁵

The defendants argue that the plaintiff's claims for loss on the trade of the contracted-for 2005 vehicle, for “down time” and for “loss of opportunity” all constitute claims for lost profits, and thus claims for consequential damages, which are expressly prohibited by the language of Paragraph S of the contract.   The defendants maintain that the plaintiff's claim that he did not receive the second page of the contract is “of no effect,” and that his claim that he did not have notice of the conditions of the purchase order is false because of the “NOTICE TO PURCHASER” that was printed on the first page of the contract, which the plaintiff admits that he received.   The defendants further argue that, regardless of whether the plaintiff actually received the second page of the contract, he was responsible for becoming familiar with all terms of the contract, including any terms incorporated by reference therein.   They contend that he may not be excused from the terms of the contract just because he did not read it or “pick up” on terms therein.   They point out that the notice referring to the terms on the second page was prominently printed next to the space provided for the plaintiff's signature.⁶  The defendants have also submitted an affidavit by Robert Peterson, the Fleet Truck Sales, Inc. employee who negotiated the sale of the contracted-for 2005 vehicle to the plaintiff, to rebut the plaintiff's claim that he never received the second page of the contract.⁷

In his memorandum of law and attached affidavit, the plaintiff maintains that the exclusionary language the defendants seek to enforce is not valid because he never received the second page of the contract.   The plaintiff argues that it is only the first page of the contract which establishes the agreement between the parties.⁸  The plaintiff concludes that all of his damages are recoverable under the UCC because the exclusionary language in Paragraph 5 does not apply.

“Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.”  (Internal quotation marks omitted.)  Poole v. Waterbury, 266 Conn. 68, 88, 831 A.2d 211 (2003).   “Although ordinarily the question of contract interpretation, being a question of the parties' intent, is a question of fact ․ [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.”  (Internal quotation marks omitted.)  Goldberg v. Hartford Fire Ins. Co., 269 Conn. 550, 559-60, 849 A.2d 368 (2004).  General Statutes § 42a-2-719(3), which corresponds to UCC § 2-719(3), further provides that, “[c]onsequential damages may be limited or excluded unless the limitation or exclusion is unconscionable ․ [L]imitation of damages where the loss is commercial is not [unconscionable].”

“Generally, incorporation by reference of existing documents produces a single contract which includes the contents of the incorporated papers.   Where ․ the signatories execute a contract which refers to another instrument in such a manner as to establish that they intended to make the terms and conditions of that other instrument a part of their understanding, the two may be interpreted together as the agreement of the parties ․ The documents incorporated need not be attached to the contract nor signed or initialed unless the contract so requires ․” (Citation omitted;  internal quotation marks omitted.)   556 New Park Associates, LLC v. Blardo, 97 Conn.App. 803, 810-11, 906 A.2d 720 (2006).  “The general rule is that where a person [who is] of mature years and who can read and write, signs or accepts a formal written contract affecting his pecuniary interests, it is [that person's] duty to read it and notice of its contents will be imputed to [that person] if [that person] negligently fails to do so.”  (Internal quotation marks omitted.)  Phoenix Leasing, Inc. v. Kosinski, 47 Conn.App. 650, 654, 707 A.2d 314 (1998).  “It is within the trial court's discretion to determine whether, under the circumstances, the [plaintiff] was not diligent in trying to read the documents ․ and whether to charge [him] with knowledge of their contents.”  First Charter National Bank v. Ross, 29 Conn.App. 667, 671, 617 A.2d 909 (1992), appeal dismissed, 228 Conn. 203, 635 A.2d 796 (1994).

By its terms, the first page of the contract expressly provides that “[t]his Agreement consists of two pages [a]nd includes the terms and conditions listed on page two.”   Thus, the language of the contract clearly and unambiguously refers to the second page as part of the contract.   Paragraph 5 of the “Purchaser's Certification & Terms Of Sales” on page two states that “[i]n no event shall [the] seller be liable for any consequential damages or for breach of warranty.”   Thus, the terms and conditions of the contract clearly exclude liability for consequential damages.   There being definitive contract language in the present case, the validity of the terms and conditions contained in the “Purchaser's Certification & Terms Of Sales” may be determined by the court as a question of law.   See, e.g., Goldberg v. Hartford Fire Ins. Co., supra, 269 Conn. 560.

In this case, there is no dispute that the plaintiff received the first page of the contract, via fax, from Fleet Truck Sales, Inc., on or about July 12, 2007.   And, as discussed above, the “NOTICE TO PURCHASER” printed on the first page clearly and unambiguously refers to the terms and conditions listed on the second page as a part of the contract.   Thus, the “Purchaser's Certification & Terms Of Sales” listed on page two were incorporated by reference into the parties' contract;  see 556 New Park Associates, LLC v. Blardo, supra, 97 Conn.App. 810-11;  and the plaintiff was thereby charged with notice of their contents.   See Phoenix Leasing, Inc. v. Kosinski, supra, 47 Conn.App. 654;  see also First Charter National Bank v. Ross, supra, 29 Conn.App. 671.

The plaintiff maintains that he is excused from notice because he never physically received the second page of the contract, however, this argument was rejected by the court in 556 New Park Associates, LLC v. Blardo, supra, 97 Conn.App. 803.   In that case, parties contesting the validity of additional terms of a contract argued, as does the plaintiff here, that a page with additional terms was never given to them and so they could not have intended to incorporate it into the contract.   The Appellate Court rejected their argument, noting that “the contract was clear that [the page with additional terms] was being incorporated by reference.   It was the [parties'] responsibility, therefore, to become familiar with all the terms of the contract, including terms incorporated by reference.   Consequently, the [parties] are precluded from now arguing that these terms are not part of the contract on the ground that they did not read all of the terms of the contract before assenting to it.   See Batter Building Materials Co. v. Kirschner, [142 Conn.1, 7, 110 A.2d 464 (1954) ] (‘a party [is not] allowed, in the absence of accident, fraud, mistake or unfair dealing, to escape his contractual obligations by saying ․ that he did not read what was expressly incorporated as specific provisions of the contract into which he entered’).  556 New Park Associates, LLC v. Blardo, supra, 97 Conn.App. 811 n.5. Thus, even if the plaintiff never received the second page of the contract, that fact does not prevent knowledge of its contents from being imputed to him.

For the foregoing reasons, the terms and conditions set forth on the second page of the contract are binding on the parties.   Accordingly, any award of consequential damages claimed by the plaintiff is precluded by Paragraph 5 of the “Purchaser's Certification & Terms Of Sales.”

II

DAMAGES CLAIMED BY THE PLAINTIFF

In his Complaint, the plaintiff claims that, as a result of the defendants' breach of contract, he sustained the following losses from January to June 2008:(1) loan payments;  (2) truck insurance payments;  (3) tax payments;  (4) loss on trade in;  (5) “down time;” and (6) “loss of opportunity.” ⁹  The plaintiff claims that his loan payments, truck insurance payments and tax payments in that period were all incidental damages, whereas the loss of benefit on the trade, “down time” and “loss of opportunity” were all consequential damages.¹⁰  The defendants respond that the loan payments, insurance payments and tax payments for which the plaintiff seeks damages from them were not incidental to the alleged breach of contract, and thus are not recoverable on his present claim.   The defendants further argue that the plaintiff's claims for loss on trade in, “down time” and “loss of opportunity” are not recoverable under the terms and conditions of the contract because, as consequential damages, their recovery is expressly prohibited thereby.

“The UCC makes a clear distinction between incidental and consequential damages.  General Statutes § 42a-2-715, which corresponds to UCC § 2-715, provides that incidental damages include expenses incidental to the seller's breach, while consequential damages includes damages resulting from the seller's breach.”  (Emphasis added.)  Gaynor Electric Co., Inc. v. Hollander, 29 Conn.App. 865, 869, 618 A.2d 532, 534 (1993).¹¹  “[Incidental damages] are clearly distinguishable from consequential damages, and therefore may be recovered even when consequential damages are excluded.”   (Internal quotation marks omitted.)  Id.

A

Consequential Damages

The defendants argue that the language of the contract precludes the plaintiff from recovering any consequential damages he allegedly incurred as a result of the defendants' alleged breach of contract ․ Specifically, the defendants argue that the plaintiff's claims for loss on trade in, down time and loss of opportunity are claims for lost profits, and so constitute consequential damages, which are prohibited by Paragraph 5 on page two of the contract.   The plaintiff responds that all of his damages “are recoverable under the UCC since the exclusionary language on the second page of the purchase order is not binding upon him.   Both consequential and incidental damages may be recovered in this instance.”

“[D]amages resulting from a breach of contract may be divided into those which flow naturally and usually from the breach itself, or general damages, and those which do not naturally and usually flow from such a breach, but did in this case, or special or consequential damages ․ Consequential damages ․ include those damages that, although not an invariable result of every breach of this sort, were reasonably foreseeable or contemplated by the parties at the time the contract was entered into as a probable result of the breach.   These, [like general damages], must be proximately caused by the breach, and the difference is that they do not always follow a breach of this particular character.”  (Citations omitted;  internal quotation marks omitted.)   Milford v. Coppola Construction Co., 93 Conn.App. 704, 714-15, 891 A.2d 31 (2006).

General Statutes § 42a-2-715 provides, in relevant part, that:  “(2) Consequential damages resulting from seller's breach include (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise;  and (b) injury to person or property proximately resulting from any breach of warranty.”  “[Connecticut] case law unequivocally supports awarding lost profits as an element of compensatory damages for general breach of contract claims ․ [C]onsequential damages include any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself.”  (Citations omitted;  internal quotation marks omitted.)   Sullivan v. Thorndike, 104 Conn.App. 297, 303-04, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907, 942 A.2d 415 (2008).

In the present case, to reiterate, the plaintiff claims that he sustained the following consequential damages as a result of the defendants' breach:  a loss of $7,000 in profit on the trade of the 2006 vehicle for a new 2008 Mack Truck, which he was unable to complete after the title error was discovered;  a loss of $6,004 in profit from February 1 to February 14, 2008, the “down time” during which the 2006 vehicle was uninsurable due to the title error and thus could not be operated;  and a loss of $5,514.44 in anticipated profits during the last two weeks of April and the month of May 2008, when the plaintiff was unable to run a second truck on his route due to the delay by Werner Enterprises, Inc. in exchanging title.   The defendants do not contest classification of the above-claimed losses as consequential damages.   Rather, they maintain that “loss on trade in, down time and loss of opportunity are consequential damages and, therefore, excluded from recovery by the [contract].”

As previously noted, the defendants' delivery of the wrong vehicle to the plaintiff resulted in his not having proper title.   This prevented the plaintiff from completing the trade he had negotiated.   The plaintiff's not having proper title also caused the vehicle to become uninsurable.   The plaintiff further claims that delay by Werner Enterprises, Inc. in exchanging title prevented him from running a second truck on his route.   Thus, the plaintiff was unable to trade or drive the truck and was unable to run a second truck on his route as a result of the nonconformity.   A finder of fact could determine that it was reasonably foreseeable to the parties at the time they entered into the contract that the plaintiff would encounter these difficulties if he did not possess proper title to the vehicle.   Accordingly, the losses claimed would be a reasonably foreseeable consequences of the defendants' breach.   See Milford v. Coppola Construction Co., Inc., supra, 93 Conn.App. 714-15.   A finder of fact could determine that the plaintiff's losses fairly and reasonably arose, according to the usual course of things, from the defendants' breach of contract.   See Sullivan v. Thorndike, supra, 104 Conn.App. 303-04.   Accordingly, those lost profits would be classified as consequential damages.

For the foregoing reasons, the plaintiff's claims for loss on trade in, “down time” and “loss of opportunity” constitute claims for consequential damages resulting from the defendants' breach of contract.   Accordingly, their award is precluded by the exclusionary language of the contract discussed in Section I.

B

Incidental Damages

The defendants argue that the losses the plaintiff claims as incidental damages are not incidental to the defendants' alleged breach of contract and so are not recoverable.   Specifically, the defendants contend that, because the plaintiff did not reject the goods and did not incur expenses in connection with effecting cover, the only incidental damages he could recover are damages that are incidental to the breach.   The defendants further argue that the damages claimed by the plaintiff cannot be considered incidental to the alleged breach, rather, they are “incidental to the plaintiff's choice to enter into the contract.”   The plaintiff responds that such losses were incidental to the defendants' breach because he incurred them “while his truck could not be operated solely due to the defendant[s'] breach.”   The plaintiff further claims that he gave timely notice of the nonconformity when he discovered that he was in possession of the wrong vehicle, that he revoked his acceptance of the 2006 vehicle “both verbally and in writing” and that, as a result of these actions, he sustained recoverable damages pursuant to General Statutes §§ 42a-2-607(3) and 42a-2-714.

General Statutes § 42a-2-607(3)(a) provides that a buyer seeking to sue for damages following his acceptance of nonconforming goods must, “within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy ․” General Statutes § 42a-2-714 further provides that:  “(1) Where the buyer has accepted goods and given notification as provided in subsection (3) of section 42a-2-607 he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable ․ (3) In a proper case any incidental and consequential damages under [Section 42a-2-715] may also be recovered.”

General Statutes § 42a-2-715(1) provides that:  “Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.”  (Emphasis added.)  UCC comment 1 to § 42a-2-715, which corresponds to § 2-715 of the UCC, emphasizes that incidental damages are intended to “provide reimbursement for the buyer who incurs reasonable expenses in connection with the handling of rightfully rejected goods or goods whose acceptance may be justifiably revoked ․” ¹² General Statutes Annotated § 42a-2-715, comment (1) (West 2009).  “The incidental damages listed are not intended to be exhaustive but are merely illustrative of the typical kinds of incidental damage.”  (Emphasis added.)   Id.

In the present case, the plaintiff states in his affidavit that he notified the defendants of the nonconformity the same day that he learned of the error, February 1, 2008.   Prior to that day, none of the parties were aware that the vehicle delivered to the plaintiff was a 2006 Kenworth W900 semi-tractor that was mechanically and cosmetically identical to the contracted-for 2005 vehicle.   Therefore, a finder of fact could reasonably determine that the plaintiff notified the defendants of the nonconformity in a manner that complies with the applicable statutory provisions.   Accordingly, the plaintiff would be permitted to recover any appropriately claimed incidental damages resulting from the breach.   See General Statutes § 42a-2-714(3).

The plaintiff claims to have sustained the following incidental damages between February and June of 2008, the period of time after he discovered the inconsistent VIN numbers and before the parties exchanged titles, and during which the plaintiff was unable to drive and/or trade the 2006 vehicle because of its nonconformity:  payments totaling $4,770.25 made on the loan he took out to purchase the contracted-for 2005 vehicle;  $1,000 in truck insurance premiums;  and $1,038.01 in property, “Heavy Highway Vehicle Use” and highway fuel taxes.   The defendants argue that these expenses were not incidental to the breach but, instead, were personal to the plaintiff in that:  “he needed a loan to acquire the Kenworth” (as to the loan payments), “he needed [insurance] coverage in accordance with state and federal highway laws” (as to the truck insurance) and “he would have to pay taxes regardless of the VIN mishap” (as to the tax payments).   The plaintiff responds that the damages claimed are incidental to the defendants' breach of contract, not to his decision to purchase the truck.

As described above, the plaintiff accepted the truck that was delivered to him by the defendants.   It was not the contracted-for 2005 vehicle, but a visually identical 2006 model.   The plaintiff did not discover the nonconformity until he attempted to trade the truck toward the purchase of a newer, different model.   At that time, it became clear that the plaintiff did not possess title to the vehicle he had in his possession.¹³  A finder of fact could reasonably determine on these facts that the non-conforming 2006 vehicle constituted “goods whose acceptance may be justifiably revoked.”   See General Statutes Annotated, supra, § 42a-2-715, comment (1).   As a result of the plaintiff not possessing the correct title, the registration on the vehicle was invalid.   The plaintiff claims that the defendants refused his attempts to cure.   The plaintiff could not drive, trade and/or sell the truck in his possession, however, loan, insurance and tax payments remained due on the vehicle.   The title defect was not corrected until July 2, 2008.

The plaintiff maintains that the defendants' delivery of the wrong vehicle and delay in exchanging title caused him to suffer the claimed incidental damages.   Essentially, the plaintiff argues that he incurred the loan, insurance and tax payments as a result of the defendants' breach because he could not, for a period of time, drive, trade or sell the vehicle he had in his possession because he did not possess proper title to it.   He did not possess proper title because of the defendants' error.   A finder of fact could reasonably determine that the loan, insurance and tax payments that the plaintiff made on the vehicle during this distinct period of time all constituted reasonable expenses that he incurred incident to the defendants' breach or delay in exchanging title;  see General Statutes § 42a-2-715(1);  and that the defendants' actions caused the plaintiff to incur the above-claimed expenses to his detriment.   Those expenses, if so construed, would be recoverable as incidental damages.

For the foregoing reasons, the plaintiff's claims for loan, truck insurance and tax payments are all claims for incidental damages resulting from the defendants' alleged breach of contract.   Accordingly, the award of such damages would not be precluded by the exclusionary language of the contract discussed in Section I of this Memorandum of Decision, supra.

CONCLUSION.

For all of the foregoing reasons, the defendants' Motion for Summary Judgment must be GRANTED with respect to all of the plaintiff's claims for consequential damages, but DENIED with respect to all of his claims for incidental damages, as more fully described in this Memorandum of Decision.   IT IS SO ORDERED this 10th day of November 2010.

Michael R. Sheldon, J.

FOOTNOTES

FN1. At that time, the inconsistent VIN numbers were discovered and the plaintiff was unable to complete the trade..  FN1. At that time, the inconsistent VIN numbers were discovered and the plaintiff was unable to complete the trade.

FN2. The July 12, 2007 “Purchase Order for Used Motor Truck” is a contract for the sale of goods.   Accordingly, Article 2 of the UCC, the provisions of which are set forth in General Statutes § 42a-2-101 et seq., governs the plaintiff's claims..  FN2. The July 12, 2007 “Purchase Order for Used Motor Truck” is a contract for the sale of goods.   Accordingly, Article 2 of the UCC, the provisions of which are set forth in General Statutes § 42a-2-101 et seq., governs the plaintiff's claims.

FN3. The defendants' revised memorandum in support of their Motion for Summary Judgment (# 122) was submitted in order to clarify their argument as to the effect of the unsigned contract.   As discussed below, in the revised memorandum, the defendants argue that the absence of signatures on the July 12, 2007 purchase order does not affect its validity because of applicable exceptions to the signatory requirement of the statute of frauds.   The memorandum contains no additional arguments or allegations in support of the defendants' Motion for Summary Judgment..  FN3. The defendants' revised memorandum in support of their Motion for Summary Judgment (# 122) was submitted in order to clarify their argument as to the effect of the unsigned contract.   As discussed below, in the revised memorandum, the defendants argue that the absence of signatures on the July 12, 2007 purchase order does not affect its validity because of applicable exceptions to the signatory requirement of the statute of frauds.   The memorandum contains no additional arguments or allegations in support of the defendants' Motion for Summary Judgment.

FN4. It is noted that Paragraph 8 states:  “The parties agree that in the event that any disputes arise under this Agreement, the laws of the State of Nebraska (with the exception of its conflict of laws provisions) shall apply and any controversies will be settled in the courts of the State of Nebraska.”   The defendants note that, according to their review of Article 2 of the Nebraska version of the UCC is identical to Article 2 of § 42a-2-101 et seq.   The plaintiff does not address this issue..  FN4. It is noted that Paragraph 8 states:  “The parties agree that in the event that any disputes arise under this Agreement, the laws of the State of Nebraska (with the exception of its conflict of laws provisions) shall apply and any controversies will be settled in the courts of the State of Nebraska.”   The defendants note that, according to their review of Article 2 of the Nebraska version of the UCC is identical to Article 2 of § 42a-2-101 et seq.   The plaintiff does not address this issue.

FN5. Paragraph 5 does not exclude the defendants from liability for incidental damages.   Accordingly, the plaintiff's recovery of warranted incidental damages would not be precluded by the terms and conditions of the contract..  FN5. Paragraph 5 does not exclude the defendants from liability for incidental damages.   Accordingly, the plaintiff's recovery of warranted incidental damages would not be precluded by the terms and conditions of the contract.

FN6. The defendants contend that the absence of signatures on the contract has no effect on its validity because the plaintiff's admission, in his revised complaint, that he entered into the written contract with the defendants provides an exception to the statute of fraud's signatory requirement.   See General Statutes § 42a-2-201(3)(b).  The plaintiff does not dispute this contention, at least as to page one of the document..  FN6. The defendants contend that the absence of signatures on the contract has no effect on its validity because the plaintiff's admission, in his revised complaint, that he entered into the written contract with the defendants provides an exception to the statute of fraud's signatory requirement.   See General Statutes § 42a-2-201(3)(b).  The plaintiff does not dispute this contention, at least as to page one of the document.

FN7. In his affidavit, dated January 6, 2010, Peterson states that “it is my custom and practice when a sale is negotiated over the telephone to send a Purchase Order to the buyer by facsimile unless another means of transmittal is requested by the buyer.”   Peterson further states that “though I lack specific memory of the events surrounding this transaction, it is my belief that I followed my custom and practice of sending a Purchase Order, consisting of two (2) printed pages, to the purchaser.   In this case, I would have faxed [the plaintiff] the two page Purchase Order on or about July 12, 2007.”.  FN7. In his affidavit, dated January 6, 2010, Peterson states that “it is my custom and practice when a sale is negotiated over the telephone to send a Purchase Order to the buyer by facsimile unless another means of transmittal is requested by the buyer.”   Peterson further states that “though I lack specific memory of the events surrounding this transaction, it is my belief that I followed my custom and practice of sending a Purchase Order, consisting of two (2) printed pages, to the purchaser.   In this case, I would have faxed [the plaintiff] the two page Purchase Order on or about July 12, 2007.”

FN8. The plaintiff cites General Statutes § 42a-2-202, which governs consideration of parol or extrinsic evidence where there is a final written expression of the parties' agreement, and provides:  “Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented (a) by course of performance, course of dealing or usage of trade as provided by section 42a-1-303;  and (b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.”.  FN8. The plaintiff cites General Statutes § 42a-2-202, which governs consideration of parol or extrinsic evidence where there is a final written expression of the parties' agreement, and provides:  “Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented (a) by course of performance, course of dealing or usage of trade as provided by section 42a-1-303;  and (b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.”

FN9. Although the plaintiff states a claim for “maintenance and storage costs” in his Complaint, he does not set forth any costs or expenses related to that claim in his Schedule A and does not address it in his memorandum in opposition to the defendants' Motion..  FN9. Although the plaintiff states a claim for “maintenance and storage costs” in his Complaint, he does not set forth any costs or expenses related to that claim in his Schedule A and does not address it in his memorandum in opposition to the defendants' Motion.

FN10. The plaintiff alternately refers to his claim for lost profits using the terms “down time” and “loss of opportunity.”.  FN10. The plaintiff alternately refers to his claim for lost profits using the terms “down time” and “loss of opportunity.”

FN11. General Statutes § 42a-2-715 governs a buyer's right to recover incidental and consequential damages, and provides:(1) Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.(2) Consequential damages resulting from seller's breach include (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise;  and (b) injury to person or property proximately resulting from any breach of warranty..  FN11. General Statutes § 42a-2-715 governs a buyer's right to recover incidental and consequential damages, and provides:(1) Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.(2) Consequential damages resulting from seller's breach include (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise;  and (b) injury to person or property proximately resulting from any breach of warranty.

FN12. General Statutes §§ 42a-2-608 states, in relevant part:  “(1) The buyer may revoke his acceptance of a lot or a commercial unit whose nonconformity substantially impairs its value to him if he has accepted it ․ without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances ․ Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it ․”UCC comment (4) to § 42a-2-608 provides, in relevant part:  “Subsection (2) requires notification of revocation of acceptance within a reasonable time after discovery of the grounds for such revocation ․ [T]he reasonable time period should extend in most cases beyond the time in which notification of breach must be given, beyond the time for discovery of non-conformity after acceptance and beyond the time for rejection after tender.”  (Emphasis added.)General Statutes Annotated, supra, § 42a-2-608, comment (4)..  FN12. General Statutes §§ 42a-2-608 states, in relevant part:  “(1) The buyer may revoke his acceptance of a lot or a commercial unit whose nonconformity substantially impairs its value to him if he has accepted it ․ without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances ․ Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it ․”UCC comment (4) to § 42a-2-608 provides, in relevant part:  “Subsection (2) requires notification of revocation of acceptance within a reasonable time after discovery of the grounds for such revocation ․ [T]he reasonable time period should extend in most cases beyond the time in which notification of breach must be given, beyond the time for discovery of non-conformity after acceptance and beyond the time for rejection after tender.”  (Emphasis added.)General Statutes Annotated, supra, § 42a-2-608, comment (4).

FN13. The plaintiff had title to the contracted-for 2005 vehicle (VIN # 1XKWDB9X05J052955), but was in possession of the 2006 vehicle the defendants delivered to him in error (VIN # 1XKWDB9X46J106937)..  FN13. The plaintiff had title to the contracted-for 2005 vehicle (VIN # 1XKWDB9X05J052955), but was in possession of the 2006 vehicle the defendants delivered to him in error (VIN # 1XKWDB9X46J106937).

Sheldon, Michael R., J.