Opinion
No. CV 08 5023054S
December 7, 2010
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT #113
FACTS
On September 9, 2008, the plaintiff, DP Diesel Repair, LLC, filed this action against the defendant, Christopher Healey doing business as Shoreline Deck Company. In its amended complaint, the plaintiff alleges the following facts. On or about March 18, 2008, the plaintiff and the defendant entered into an oral agreement wherein the plaintiff agreed to perform repairs to the defendant's truck fleet. After the plaintiff completed the work, the defendant failed to pay the plaintiff. The cost of the goods and services was $7,303.40. The plaintiff alleges that the defendant breached their contract and that he was unjustly enriched at the expense of the plaintiff. The plaintiff seeks: (1) restitution; (2) money damages; (3) costs; (4) interest; and other relief as the court deems just and proper.
On March 13, 2009, the plaintiff filed an amended complaint that is the operative document for this motion.
On June 3, 2009, the defendant filed an answer accompanied by special defenses and a counterclaim. In his answer, the defendant denied the plaintiff's allegations. In his special defenses, the defendant alleges that the plaintiff: (1) fails to state a cause of action on which relief may be granted; (2) failed to act in good faith; (3) misrepresented to the defendant the services to be provided; (4) is attempting to charge the defendant for diagnosing the problem when he was informed that there would not be a cost to diagnose the problem; (5) misrepresented the cost of services; (6) failed to provide the defendant with an estimate of the cost to diagnose the problem; (7) failed to provide the defendant with an estimate of the cost to repair the vehicle; and (8) never received authorization from the defendant to repair the vehicle.
In his counterclaim, the defendant alleges the following facts. The defendant took his vehicle to the plaintiff's repair shop to obtain a repair estimate. The defendant informed the plaintiff that he did not wish to have the vehicle repaired and would be retrieving vehicle. The plaintiff refused to release the vehicle to the defendant unless he paid a substantial amount of money to him. The defendant alleges that the plaintiff's actions constitute: (1) a conversion; (2) a violation of the Connecticut Unfair Trade Practices Act; (3) a breach of the agreement between them; (4) a violation of the covenant of good faith and fair dealing; and (5) fraud. The defendant seeks: (1) monetary damages; (2) the return of his vehicle; (3) attorneys fees; (4) costs and interest; and (5) any other damages or remedies allowed by law.
On June 18, 2009, the plaintiff filed an answer to the defendant's special defenses and counterclaim. The plaintiff denied all of the defendant's special defenses. In response to the defendant's counterclaim, the plaintiff admitted that the defendant took his truck to the plaintiff's shop to obtain an estimate as to the cost of repairing the vehicle, but denied all other allegations.
On March 30, 2010, the defendant filed an amendment to his special defenses and counterclaim. In his amended special defenses, the defendant additionally alleges that the plaintiff violated General Statutes § 14-65f. In count one of his amended counterclaim, the defendant alleges that the plaintiff refused to release the vehicle to the defendant unless he paid a substantial amount of money to him for repairs without obtaining proper authorization from the defendant, in violation of § 14-65f and that those actions constitute a conversion of the defendant's property for which the return of the vehicle is sought as well as damages. In count six of his amended counterclaim, the defendant alleges that the actions and conduct by the plaintiff constitute a violation of § 14-65f for which the defendant seeks damages and the return of his vehicle.
On May 6, 2010, the defendant moved for summary judgment on the complaint filed by the plaintiff and his counterclaim. In support of the motion, the defendant filed a memorandum of law, an affidavit by the defendant dated March 30, 2010 and a deposition of David Pinette, the principal of the plaintiff limited liability company, dated July 21, 2009.
On June 24, 2010, the plaintiff filed a memorandum in opposition to the defendant's motion for summary judgment. In support of its memorandum, the plaintiff filed a copy of the deposition of Pinette dated July 21, 2009, an affidavit by Pinette dated June 24, 2010 and a deposition of the defendant dated March 2, 2010.
On October 25, 2010, the defendant filed a reply memorandum to Pinette's affidavit. Attached to the memorandum were Pinette's answers to defendant's interrogatories dated April 15, 2009. Also, on October 25, 2010, the court heard oral argument at short calendar.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
The defendant argues that the plaintiff is not entitled to relief because it violated § 14-65f. Section 14-65f(a) (Rev. to 2009) provides in relevant part: "Prior to performing any repair work on a motor vehicle, a motor vehicle repair shop shall obtain a written authorization to perform the work, on an invoice signed by the customer, which includes an estimate in writing of the maximum cost to the customer of the parts and labor necessary for the specific job authorized. A repair shop shall not charge for work done or parts supplied without a written authorization or in excess of the estimate unless the customer gives consent orally or in writing."
After the plaintiff filed this lawsuit, No. 09-237 of the 2009 Public Acts amended § 14-65f. The statute quoted and discussed here is § 14-65f as amended by No. 96-167 of the 1996 Public Acts.
The defendant argues that there is no dispute regarding whether the plaintiff gave the defendant an estimate or received the defendant's proper authorization for the repairs. In his March 30, 2010 affidavit, the defendant attests that he brought his truck to the plaintiff and asked Pinette to provide him with an estimate as to what it would cost to repair the truck. The defendant further attests that he never received a written estimate or authorized the plaintiff to conduct repairs.
In addition, the defendant points to Pinette's July 21, 2009 deposition. In his deposition, Pinette testified to the following. Pinette agreed to tow the disabled truck to his repair shop to diagnose the problem. He did not provide the defendant with an estimate of the cost before he started his diagnostic work. Pinette explained to the defendant that he had to send some parts of the truck's engine to specialty repair shops to properly diagnose the problem. The defendant authorized Pinette to have the parts inspected. Pinette did not provide the defendant with an estimate of the cost of the diagnostic work of the specialty repair shops or his own diagnostic work. After the diagnostic work was completed, Pinette called the defendant and told him it would cost $9,518.00 to repair the engine. The defendant did not authorize him to perform the repairs. After that, Pinette filed this lawsuit against the defendant for $7,303.40 for goods and services rendered including parts, diagnostic labor, and tow charge. More specifically, the charges are for the purchase of a piston kit and a rod bearing set, machine work involving the block and cylinder head and the rebuilding of fuel injectors and an injection pump.
The defendant argues that his affidavit and Pinette's deposition show that while the defendant only authorized the parts to be inspected, the plaintiff performed repairs in violation of § 14-65f. Moreover, the defendant argues that § 14-65f was enacted to protect consumers from repair shops.
The plaintiff first responds by arguing that there are issues of material fact regarding the plaintiff's compliance with § 14-65f because § 14-65f(a) does not require the plaintiff to obtain a written authorization to perform repairs on the defendant's truck. The plaintiff's second argument is that its compliance is supported by § 14-65f(b) because it properly notified the defendant of the estimated costs of work as soon as diagnostic work was performed, and prior to the commencement of any repairs. The plaintiff argues that it performed diagnostic work, not repair work; therefore, the defendant's raising the issue of obtaining a written authorization for repairs is moot.
The plaintiff also argues that the defendant impeached himself at his deposition for the purpose of his self-interest when he denied past and ongoing lawsuits filed against him after being asked and was forced to correct himself when shown those lawsuits. Therefore, the plaintiff argues, the defendant cannot be trusted. The court should not address this issue because "[i]ssues of credibility . . . are exclusively within the province of the trier of fact . . . and should not be resolved for purposes of summary judgment." (Citations omitted.) Battistoni v. Weatherking Products, Inc., 41 Conn.App. 555, 564, 676 A.2d 890 (1996).
Specifically, the plaintiff first argues that under § 14-65f(a), a repair shop can charge for its diagnostic work when a customer consents orally. The plaintiff cites the last sentence of § 14-65f(a) to support its argument: "A repair shop shall not charge for work done or parts supplied without a written authorization or in excess of the estimate unless the customer gives consent orally or in writing." The plaintiff argues that it complied with the statute as evidenced by the defendant's March 2, 2010 deposition. In his deposition, the defendant testified that he authorized the plaintiff to investigate the problem by sending the parts out to specialty repair shops by saying: "Whatever you have to do to get me an estimate." This, the plaintiff argues, raises issues of material fact between the plaintiff and the defendant because the defendant claims that plaintiff has not complied with the statute.
To understand § 14-65f(a), it is helpful to understand other statutes in title 14 governing repair shops. "Section 14-65f(a) requires a repair shop, before performing any motor vehicle repair work, to obtain a written authorization signed by the customer [on an invoice]. The authorization must include an estimate of the cost to the customer of the work that is proposed. Even if the estimated cost of repairs is unknown at the time of delivery of the vehicle, the repairer, pursuant to sub-paragraph (b) of the statute, is still obligated to obtain the customer's written authorization. In the absence of such authorization, the repair shop is barred from charging its customers for the work done or parts supplied." Lewis Truck Trailer, Inc. v. Jandreau, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 81 0192494 (January 22, 1986, Gaffney, J.) ( 1 C.S.C.R. 73), aff'd on other grounds, 11 Conn.App. 168, 526 A.2d 532 (1987).
After the court's decision in Lewis Truck Trailer, Inc., No. 96-167 of the 1996 Public Acts amended § 14-65f(a) to require the written authorization to be on an invoice and § 14-65f(b) to require repair shops to record various information on the invoice.
Section 14-65g governs waivers of estimates. "A customer may waive his right to an estimate but only by a signed writing in a form prescribed by section 14-65g." Id. Additionally, § 14-65g(f) provides: "[a]ny repair shop that charges for an estimate or diagnosis shall inform the customer of the amount of such charge before making the estimate or diagnosis and shall obtain the customer's consent, which consent shall be written if requested by the customer or if such charge is fifty dollars or more."
The oral consent provision of § 14-65f(a) "applies only after a written authorization has been given and the cost of the work will exceed the written estimate which forms part of the authorization . . . It would make little sense to interpret the oral consent provision of Section 14-65f(a) as applying to the statutory requirement for prior written authorization because such an interpretation, that oral consent may be given in lieu of written authorization, would so eviscerate the requirement as to render it meaningless." Rosa v. Davis, Superior Court, judicial district of Waterbury, No. CV 96 0133744 (August 16, 1996, Vertefeuille, J.) ( 17 Conn. L. Rptr. 442, 443). Additionally, it does not matter if the work is characterized as repair work or diagnostic work, because § 14-65g(f) requires written authorization prior to making an estimate or diagnosis.
Accordingly, to satisfy the requirements of § 14-65f or § 14-65g, a repair shop must obtain the written authorization of the customer prior to the start of work on the vehicle. The burden is on the defendant to show the nonexistence of any issue of material fact. In his March 30, 2010 affidavit, the defendant attests that he "never granted [Pinette] authorization to commence repairs or to repair the vehicle. Further, [he] was never provided a written estimate." Additionally, the defendant attests that after he told Pinette he wanted to remove his vehicle from the shop, "[Pinette] stated he would not until a bill in the amount of $7,303.40 was paid for repair work to the vehicle that was not authorized by [the defendant]."
Given this evidence that there was no written authorization, the plaintiff must present some evidence that demonstrates the existence of a disputed issue of material fact. The plaintiff argues that the defendant's March 2, 2010 deposition testimony shows that he gave oral authorization by saying: "I just told [Pinette] upfront, `Whatever you have to do to get me an estimate.'" Additionally, in Pinette's June 24, 2010 affidavit, he attests that "[b]y authorization of the [defendant], [the plaintiff] performed all necessary diagnostic work to provide estimate for repairs. Upon learning of such estimate, [the defendant] refused to authorize repairs. [The defendant] has failed to pay [the plaintiff] for any work performed. At this time, [the defendant's] truck remains unrepaired at [the plaintiff's] place of business and in the condition as it was when [the defendant] refused to authorize repairs." Pinette is not specific in his affidavit as to whether the defendant's authorization was written. In its brief, the plaintiff argues that the evidence shows that the defendant gave oral authorization. Whether the defendant gave oral authorization is immaterial under § 14-65f or § 14-65g, which require written authorization prior to the start of work. The plaintiff has failed to submit evidence showing that the defendant gave prior written authorization.
Viewing the evidence in favor of the plaintiff, the nonmoving party, the defendant has met his burden of showing that he did not give written authorization prior to the start of the work performed on his truck, and the plaintiff has failed to submit any evidence establishing the existence of any disputed fact as to written authorization.
Therefore, because there are no disputed issues of material fact, and the defendant is entitled to judgment as a matter of law, the court grants his motion for summary judgment on the plaintiff's complaint. Furthermore, the court denies summary judgment on the defendant's counterclaim because the defendant has neither briefed his specific claims nor submitted evidence to support those claims.