Eustace Rose v. Hoffman Ford, Inc. (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS

FACTUAL AND PROCEDURAL BACKGROUND

In his complaint, dated April 11, 2011, the plaintiff, Eustace Rose, alleges the following facts.   On June 9, 2007, the plaintiff purchased a motor vehicle from the defendant, Hoffman Ford, Inc. At the same time, the plaintiff also purchased a service contract, entitled “Service Plan,” from the defendant.   The plaintiff would not have purchased the vehicle without the inducement of the service contract.   When the plaintiff attempted to obtain service “at a location other than Hoffman Ford, Inc.,” the defendant advised him that the service contract would be honored for repair services “only at the Hoffman Ford location.”

The plaintiff alleges in Count One that he “has lost the value” of the contract price and that he would not have purchased the vehicle had the defendant advised him of the location limitation in the service contract.   In Count Two, the plaintiff claims that the he has suffered an “ascertainable loss,” which is not articulated.   The plaintiff further alleges that, the defendant violated various sections of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110 et seq., by failing to disclose the limitation of location to himself and others.

In support of its motion to dismiss, the defendant has attached a copy of the plaintiff's deposition testimony.   The plaintiff has attached a copy of the service plan to his complaint.   Although most of the handwritten entries on the service plan are illegible, the plaintiff testified at his deposition that he thought the term of the agreement was for 84 months or 60,000 miles.   If so, the agreement will expire on June 8, 2014.   The plaintiff testified that the vehicle has been driven a total of between 4,000 and 9,000 miles since 2007.

The plaintiff testified that, although it was never discussed when he purchased the service plan, his understanding at the time was that he could have the vehicle serviced or repaired at any Ford dealership.   Nevertheless, the plaintiff was told that all service under the plan would have to be at the defendant's location when he brought the vehicle to the defendant for a transmission repair under the plan in 2009.   The plaintiff admitted that, despite the allegations in his complaint, he has never attempted to bring the vehicle to any other location for service or repair.¹

Following the deposition, the defendant moved to dismiss the complaint for lack of subject matter jurisdiction on the grounds that (1) the plaintiff lacks standing to bring the action and (2) the matter is not ripe for adjudication.   The plaintiff filed an objection to the motion.   The parties presented argument on January 27, 2014.

LEGAL STANDARD OF REVIEW

“Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).  “A motion to dismiss ․ essentially asserts that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007);  Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007).  “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.”  (Internal quotation marks omitted.)  Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, 285 Conn. 278, 286, 939 A.2d 561 (2008).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ․

“In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ․ If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings ․ If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ․ or only evidence that fails to call those allegations into question ․ the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein ․

“Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts.”   (Citations omitted;  emphasis in original;  footnote omitted;  internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).

“[S]tanding is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy ․ Nevertheless, [s]tanding is not a technical rule intended to keep aggrieved parties out of court;  nor is it a test of substantive rights.   Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.”   (Citation omitted;  internal quotation marks omitted.)  Citibank, N.A. v. Lindland, 310 Conn. 147, 161, 75 A.3d 651 (2013).  “If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause ․ A determination regarding a trial court's subject matter jurisdiction is a question of law.”  (Internal quotation marks omitted.)  Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 155, 953 A.2d 1 (2008).

ANALYSIS

The defendant argues that this action must be dismissed because the plaintiff's claims are not ripe for adjudication.²  “Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable.   Justiciability requires ․ that there be an actual controversy between or among the parties to the dispute.”  State v. Preston, 286 Conn. 367, 373–74, 944 A.2d 276 (2008).  “[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter ․ An issue regarding justiciability presents a question of law ․ The rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements ․ Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent [on] some event that has not and indeed may never transpire ․ [R]ipeness is a sine qua non of justiciability ․” (Citations omitted;  internal quotation marks omitted.)   Janulawicz v. Commissioner of Correction, 310 Conn. 265, 271, 77 A.3d 113 (2013).

The defendant asserts that the plaintiff's claim is hypothetical or contingent upon some event that has not transpired.   To that end, the defendant has provided the plaintiff's deposition transcript in which the plaintiff admits he has not presented his vehicle to a location other than that of the defendant for service or repairs under the service plan contrary to the factual assertion of his complaint which is the basis for his claim of damages.

The plaintiff claims that this action is ripe because his claim is for “loss of the bargain, namely, the ability of service to the vehicle for repairs to be made at any Ford/Lincoln dealership pursuant to the Service Contract for which the plaintiff is suing.”   In support, the plaintiff cites Milford v. Coppola Construction Co., Inc., 93 Conn.App. 704, 715, 891 A.2d 31 (2006), which quotes 24 S. Williston, Contracts (4th Ed.2002) § 64:12, pp. 123–28:  general damages “are sometimes called ‘loss of bargain’ damages, because they reflect a failure on the part of the defendant to live up to the bargain it made, or a failure of the promised performance itself.”  Milford concerned the scope of arbitrability, however, not the validity of an inchoate action for loss of the bargain.

There are relatively few Connecticut decisions addressing a claim of loss of the bargain.   Carroll v. Stevenson, Superior Court, judicial district of Fairfield, Docket No. CV–0406592–S (March 8, 2004, Doherty, J.), is representative of such a decision.   In Carroll, at a hearing in damages, the plaintiffs claimed damages when the defendant failed to build their house.   In that case, the plaintiff's articulated specific damages, including the subsequent increase in building costs to have the work completed by another contractor at a later date.

In the present case, the claimed loss is not ascertainable, only speculative.  “As a general rule, contract damages are awarded to place the injured party in the same position as he would have been in had the contract been fully performed ․ We recognize that there is no unbending rule as to the evidence by which such compensation is to be determined ․ and that damages may be based on reasonable and probable estimates ․ But it is equally clear that damages must be based on evidence.”  (Citations omitted;  internal quotation marks omitted.)  Fuessenich v. DiNardo, 195 Conn. 144, 153, 487 A.2d 514 (1985).  “[D]amages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.”  (Internal quotation marks omitted.)  Russell v. Russell, 91 Conn.App. 619, 643, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005).  “In a breach of contract action, although the injured party should receive a damages award that places him in the same position that he would have occupied had the contract been performed properly, he nevertheless ‘is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain ․ Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach.’  “ Landry v. Spitz, 102 Conn.App. 34, 51, 925 A.2d 334 (2007).

While the court takes the allegations of the complaint in their most favorable light, here the defendant has provided undisputed testimony of the plaintiff that he has not suffered any loss or damage to date, in direct contradiction to the allegations of the complaint.   In the absence of such loss or damage, the controversy is merely speculative, not actual and justiciable, depriving the court of subject matter jurisdiction.

CONCLUSION

The defendant's motion to dismiss (123.00) is granted.   The plaintiff's objection (124.00) is overruled.

Robert E. Young, Judge

FOOTNOTES

FN1. The plaintiff testified that he brought the vehicle to a tire shop in East Hartford to repair a tire.   It does not appear, however, that the plaintiff asserts that he was seeking a repair under the subject service plan.   Additionally, the plaintiff testified that he performed his own oil changes, although he believes that oil changes are covered under the service plan..  FN1. The plaintiff testified that he brought the vehicle to a tire shop in East Hartford to repair a tire.   It does not appear, however, that the plaintiff asserts that he was seeking a repair under the subject service plan.   Additionally, the plaintiff testified that he performed his own oil changes, although he believes that oil changes are covered under the service plan.

FN2. The defendant also asserts that the plaintiff lacks standing because he is not statutorily or classically aggrieved.   As the court has determined that it lacks subject matter jurisdiction because of a lack of ripeness, it does not address this ground..  FN2. The defendant also asserts that the plaintiff lacks standing because he is not statutorily or classically aggrieved.   As the court has determined that it lacks subject matter jurisdiction because of a lack of ripeness, it does not address this ground.

Young, Robert E., J.