Opinion
No. CV 05-4012782S
April 27, 2006
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The plaintiff, Mercury Cabling Systems, LLC, brings the present action against the defendant, North American Specialty Insurance Company (North American) in two counts and seeks recovery based on General Statutes § 49-42 and the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The present action was commenced by service of process on May 25, 2005. On November 7, 2005, the court, Langenbach, J., granted the motion to intervene filed by King Associates, Inc. (King). Accordingly, King is now a defendant to this action.
I Factual and Procedural Background
The plaintiff alleges the following in its complaint dated May 23, 2005. The town of Enfield contracted with King to act as the general contractor in a construction project at Enfield High School. Because the contract involved an amount in excess of $50,000, King was required to post a labor and materials payment bond pursuant to General Statutes § 49-41. Accordingly, King posted the bond where it was named as the principal and the defendant North American Specialty Insurance Company (North American) was named as the surety.
King subcontracted with Michael Finnegan Electrical Contracting, Inc. (Finnegan) to perform certain work on the project. Finnegan entered into a sub-subcontract with the plaintiff, under which the plaintiff was obligated to provide and install electrical cabling on the construction project. This involved a portion of the work that Finnegan was obligated to perform under its subcontract with King.
The plaintiff began work on the project; Finnegan was delinquent in paying the plaintiff for its work, so the plaintiff made a claim on the payment bond. North American did not investigate, pay or deny the plaintiff's claim within ninety days after the plaintiff served North American with a notice of claim thereby violating General Statutes § 49-42(a).
North American alleges in its special defenses that: (1) North American properly tendered payment of the plaintiff's claim which was improperly rejected by the plaintiff; (2) the plaintiff failed and refused to comply with the conditions precedent to a claim against North American, including the receipt of payment by King from the project owner as a condition precedent to payment to the plaintiff; (3) the plaintiff failed and refused to comply with the conditions precedent to this action, including supplying project close-out documentation, certified payroll information and operation and maintenance manuals; (4) the plaintiff's recovery is barred by its failure to mitigate damages; (5) the plaintiff's action is barred by the doctrine of unclean hands; (6) the action is barred by accord and satisfaction; (7) North American cannot be held liable to the plaintiff unless King is also liable to the plaintiff, which it is not because the plaintiff failed and refused to comply with the conditions precedent to a claim against King, the plaintiff failed to mitigate damages and the plaintiff's action is barred under the equitable doctrine of unclean hands. North American also adopts and asserts any and all of King's defenses.
King alleges in its special defenses that: (1) any damages suffered by the plaintiff were the result of the acts or omissions of Finnegan; (2) the plaintiff failed and refused to comply with the conditions precedent to this action, including supplying project close-out documentation, certified payroll information and operation and maintenance manuals; (3) the plaintiff's recovery is barred by its failure to mitigate damages; (4) the plaintiff's action is barred by the doctrine of unclean hands; and (5) the action is barred by accord and satisfaction. Furthermore, King claims that portions of the plaintiff's claim are without substantial basis in fact or law as required by General Statutes § 49-42, entitling King to attorneys fees and costs. North American filed a motion for summary judgment and a supporting memorandum of law on August 24, 2005. North American also filed the affidavit of Jeffrey Goldberg, its bond claims attorney, as well as several unauthenticated documents in support of its motion. North American claims that King, with its authorization, tendered payment of the full amount of the claim plus interest to the plaintiff. Because the plaintiff rejected the tender of funds, North American claims that it has been discharged from liability. King subsequently joined in North American's motion for summary judgment and adopted North American's position on the motion.
The plaintiff filed an opposing memorandum of law on October 12, 2005. The plaintiff, in support of its position, also filed the affidavit of its attorney, which references three of the other five documents that the plaintiff submitted. The other two documents, labeled as exhibits two and three, are not authenticated. The plaintiff argues that North American has mischaracterized the alleged tender as payment in full of the plaintiff's bond claim, rather than an attempted payment to the plaintiff pursuant to a rejected settlement offer.
North American filed a reply brief on November 4, 2005, where it essentially dismisses the plaintiff's arguments and raises the issue of the legal sufficiency of the plaintiff's CUTPA claim. North American also filed Steven King's affidavit and other documentary evidence at that time. For the reasons discussed below, the motion for summary judgment is denied.
II Standard of Review
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." Practice Book § 17-49; Barrett v. Montesano, 269 Conn. 787, 791, 849 A.2d 839 (2004). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted.) Barrett v. Montesano, supra, 791. "[B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . To succeed on a motion for summary judgment, [t]he movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
III Discussion A. The Claim of Refusal of Tender
The plaintiff sets forth the first count of the complaint as an action on a payment bond brought pursuant to General Statutes § 49-42. The issue presently before the court, however, is whether King's presentation of a check payable to the plaintiff in the amount of $30,544.05 to the plaintiff's counsel on May 23, 2005, discharges North American from liability.
General Statutes § 49-42(a) states in relevant part: "any person who supplied materials or performed subcontracting work not included on a requisition or estimate who has not received full payment for such materials or work within sixty days after the date such materials were supplied or such work was performed, may enforce such person's right to payment under the bond by serving a notice of claim on the surety that issued the bond and a copy of such notice to the contractor named as principal in the bond within one hundred eighty days of the applicable payment date provided for in subsection (a) of section 49-41a, or, in the case of a person supplying materials or performing subcontracting work not included on a requisition or estimate, within one hundred eighty days after the date such materials were supplied or such work was performed . . . Within ninety days after service of the notice of claim, the surety shall make payment under the bond and satisfy the claim, or any portion of the claim which is not subject to a good faith dispute, and shall serve a notice on the claimant denying liability for any unpaid portion of the claim . . . If the surety denies liability on the claim, or any portion thereof, the claimant may bring action upon the payment bond in the Superior Court for such sums and prosecute the action to final execution and judgment . . ."
A reading of § 49-42(a) reveals that the section explicitly provides relief under circumstances where a surety denies liability on bond claims. In the present case, Jeffrey Goldberg, who is a bond claims attorney for North American, states that the plaintiff made a claim on the payment bond by letter dated February 3, 2005. This fact is admitted by North American, which also admits that the claim was received on February 7, 2005. Goldberg does not state, and North American does not admit, that North American failed to make payment or deny liability on the bond claim not later than ninety days following February 7, 2005, as required by § 49-42(a). The plaintiff's attorney, however, states in his affidavit that the ninety-day period expired on May 8, 2005. From the other evidence that has been offered, the court may infer that this is the case.
While § 49-42(a) does not explicitly provide for situations, as in the present case, where the surety simply does not pay or deny the plaintiff's claim within ninety days following the service of the notice of claim, the issue has been addressed by the Superior Court. See Barreira Landscaping Masonry v. Frontier Ins. Co., 47 Conn.Sup. 99, 779 A.2d 244 (2000). In Barreira, the defendant surety denied a subcontractor's claim more than ninety days after it received the subcontractor's notice of claim. Id., 102. The court, Mottolese, J., analyzed § 49-42 based on principles of statutory construction; id., 104; and held that the ninety-day time limit for paying or denying payment bond claims is mandatory. Id., 110. The court then determined that the subcontractor was entitled to the relief sought in its notice of claim and that the surety's failure to adhere to the ninety-day time limit rendered its denial of the subcontractor's claim null and void. Id., 111; see also Gagliardi Electric, LLC v. Lawrence Brunoli, Superior Court, judicial district of Hartford, Docket No. CV 03 0827774 (July 15, 2004, Wagner, J.T.R.) ( 37 Conn. L. Rptr. 489).
"If the principal obligor tenders complete or partial performance of the underlying obligation and . . . if the underlying obligation is the payment of money, the obligee refuses such tender . . . the secondary obligation is discharged to the extent that the performance tendered would have discharged the secondary obligation." Restatement (Third), Suretyship and Guaranty, Tender of Performance, § 46, p. 201 (1996). "Full performance of the underlying obligation by the principal obligor discharges the secondary obligor on the secondary obligation. Thus, if the obligee refuses a tender of performance of the underlying obligation by the principal obligor, the obligee has, by that action, denied the secondary obligor a discharge of the secondary obligation. As a result, a risk of bearing the cost of performance would remain with the secondary obligor not because of the principal obligor's inability or unwillingness to perform its obligation, but, rather, because of the obligee's imprudence or malice. If the obligee subsequently demands performance from the principal obligor and the principal obligor defaults, any liability of the secondary obligor results solely from the obligee's refusal of the principal obligor's tender. Had the obligee accepted the tender of performance of the underlying obligation, the secondary obligor would have been discharged with respect to the secondary obligation. It would be inequitable for an obligee whose act caused the continuing liability of the secondary obligor to recover from the secondary obligor after having spurned performance from the principal obligor that would have fulfilled the duties owned to the obligee. Accordingly, the obligee's refusal of the principal obligor's tender of performance of the underlying obligation discharges the secondary obligor." Restatement (Third), supra, § 46, comment (b), p. 202. The same analysis applies in the case of partial performance by the principal obligor. See Restatement (Third), supra, § 46, comment (c), p. 202. "The rule is well settled that a surety is discharged if a tender of payment made after the debt is due is refused by the creditor." Title Guaranty Surety Co. v. Poe, 138 Md. 446, 451, 114 A. 481 (1921).
"A `tender' is a valid and sufficient offer of performance. To be valid and sufficient, the offer of performance must be to the proper person at the proper time and must be unconditional . . ." Restatement (Third), supra, § 46, comment (a), p. 202. "A tender must be unconditional and unqualified." (Internal quotation marks omitted.) Hartford Federal Savings and Loan Ass'n. v. Tucker, 196 Conn. 172, 181, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S.Ct. 250, 88 L.Ed.2d 258 (1985) (plaintiff's offer not valid tender where it was conditioned on plaintiff's acceptance of less than full mortgage debt in exchange for full release of mortgage and agreement to discharge rent receiver); see also Housing Authority v. Pezenik, 137 Conn. 442, 447, 78 A.2d 546 (1951) (damage deposit in condemnation proceeding not tender where amount of damage could later be contested). The rule that a tender must be unconditional and unqualified has an exception. "It is the universal rule that a tender upon condition for which there is no foundation in the contractual relation between the parties is ineffective, or as sometimes expressed, a tender must be without conditions to which the creditor can have a valid objection or which will be prejudicial to his rights . . . However, where the condition is one which the debtor has the right to insist on, a tender made subject to that condition is valid." 74 Am.Jur.2d 547, Tender § 22 (2001); see Kuhn v. Sadinsky, Superior Court, judicial district of New London, Docket No. CV 92 0523165 (March 14, 1994, Healey, J.T.R.) (concluding that proffer of deed to plaintiff in lieu of foreclosure was not valid tender where agreed medium was money and where taxes were in default and interest payments were in arrears); see also City of Newark v. Block 86, Lot 30, 94 N.J.Super. 468, 477, 228 A.2d 877 (1967) (tender was valid where defendants were entitled to assignment of tax sale certificates as a matter of right under statute in exchange for payment).
The question in the present case is whether King's presentation of a check in the amount of $30,544.05 was a valid tender under the circumstances of this case. The amount of the original claim was $29,690.40. (Affidavit of Jeffrey Goldberg, ¶ 7, 10.) Counsel for the plaintiff sent a letter to North American on May 17, 2005, which states in relevant part: "If I receive a written facsimiled promise from you today or tomorrow that the surety will pay the $29,833.30 plus interest to the date of receipt of payment, and that the payment will be received in my office not later than May 23, I will not file a suit on the bond. Otherwise, my client reserves its right to recover legal fees as provided in Conn. Gen. Stats. Sec. 49-42 and any additional [CUTPA]/CUIPA damages." (Affidavit of Jeffrey Goldberg, ¶ 14.) On May 20, 2005, counsel for the plaintiff sent a letter to King stating that the plaintiff was seeking $36,143.96 to settle its claim against North American and King. (Affidavit of Paul Sobel, ¶ 12; Plaintiff's Exh. 4.) King presented its check to counsel for the plaintiff on May 23, 2005 in the amount of $30,544.05 to resolve the dispute. (Affidavit of Steven King, ¶ 13.) Given the occurrences of May 20, 2005, King's offer would have required the plaintiff to accept less than the full amount of its demand in satisfaction of its claim against North American. Neither North American nor King have produced any evidence to prove that there was a right to insist that the plaintiff accept the offer under that condition. King's offer, then, was not a valid tender. Accordingly, NAS was not discharged from liability as a result of King's offer. As for King, it simply joins in North American's motion, but fails to brief any issues or present any evidence which would entitle it to judgment.
It is generally improper to use an affidavit of a party's attorney to oppose a motion for summary judgment. 2830 Whitney Avenue v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 636 A.2d 1377 (1994). Here, the statement in the affidavit is corroborated by other evidence offered and the affidavit essentially authenticates the other evidence. Furthermore, based on the evidence submitted by the defendants, it does not appear that there is any dispute as to this fact. Accordingly, both the Affidavit of Paul Sobel and Plaintiff's Exhibit 4 should be considered for limited purposes.
B. The CUTPA Claim
The plaintiff, in the second count of the complaint, asserts a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendant, in its reply brief, asserts that the plaintiff fails to set forth a factual basis for its CUTPA claim in that it has failed to provide any facts regarding damages. This speaks to the legal sufficiency of the plaintiff's CUTPA claim. "[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).
As a preliminary matter, several judges of the Superior Court have concluded that § 49-42 is not the exclusive remedy against a general contractor's surety. See, e.g., Acoustics, Inc. v. Travelers Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV 03 0519565 (May 28, 2004, Cohn, J.) ( 37 Conn. L. Rptr. 301); Wolverine Fire Protection Co. v. Tougher Industries, Superior Court, judicial district of Hartford, Docket No. CV 01 0805554 (June 20, 2001, Hale, J.T.R.) ( 29 Conn. L. Rptr. 731); Blakeslee Arpaia Chapman, Inc. v. United States Fidelity and Guaranty Co., Superior Court, judicial district of New London, Docket No. 520348 (March 4, 1994, Hurley, J.) ( 11 Conn. L. Rptr. 169). Accordingly, a subcontractor may, under appropriate circumstances, bring a CUTPA claim against a general contractor's surety.
General Statutes § 42-110g(a) states in relevant part: "Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages." (Emphasis added.) "A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he [or she] must establish that the conduct at issue constitutes an unfair or deceptive trade practice . . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered." (Internal quotation marks omitted.) Robichaud v. Hewlett Packard Company, 82 Conn.App. 848, 853-54, 848 A.2d 495 (2004). "Under CUTPA, there is no need to allege or prove the amount of the ascertainable loss." Hinchliffe v. American Motors Corporation, 184 Conn. 607, 614, 440 A.2d 810 (1981).
In Hinchliffe v. American Motors Corporation, supra, 184 Conn. 610, the plaintiffs had been in the market for a vehicle with which they could haul their camper trailer. The plaintiffs ultimately purchased a vehicle that was advertised by the defendants as a vehicle with full-time four-wheel drive. Id., 610-11. In fact, the vehicle actually had a system with characteristics that differed from that of conventional four-wheel drive vehicles. Id., 611. This system, while providing benefits under some circumstances, resulted in a loss of traction under other circumstances. Id. The issue on appeal was whether the plaintiff needed to prove actual damages in a specific amount in order to maintain an action under CUTPA. Id., 612. The Supreme Court held that the words "any ascertainable loss" as used in § 42-110g(a), do not require a plaintiff to prove damages in a specific amount to make out a prima facie case. Id., 612-13. The Supreme Court essentially reasoned that "whenever a consumer has received something other than what he bargained for, he has suffered a loss of money or property." Id., 614. Furthermore, "[t]o equate . . . ascertainable loss of money or property with actual damages in a particular amount would render nugatory a significant portion of CUTPA." (Internal quotation marks omitted.) Id., 618-19.
Here, the plaintiff alleges that North American did not pay or satisfy any portion of its bond claim as of the lapse of the ninety-day period following service of such claim as required by § 49-42(a). The plaintiff further alleges that it suffered an ascertainable loss of money as a result of North American's unfair or deceptive acts or practices. The plaintiff's CUTPA claim is legally sufficient in view of the rule set forth in Hinchliffe v. American Motors Corporation, supra, 184 Conn. 618-19.
North American also claims that the plaintiff's CUTPA claim is subject to the cigarette rule and that the plaintiff has failed to properly address its claim in view of the requirements of the rule. "In determining whether a practice violates CUTPA, we use the following criteria: (1) [W]hether the practice, without necessarily haying been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [(competitors or other businessmen)]." (Internal quotation marks omitted.) Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 254, 550 A.2d 1061 (1988).
North American does not analyze this claim and only cites to Wolverine Fire Protection v. Tougher Industries, Superior Court, judicial district of Hartford, Docket No. CV 01 0805554 (June 20, 2001, Hale, J.T.R.) ( 29 Conn. L. Rptr. 731) in support of its contention that the cigarette rule applies to CUTPA claims based on violations of § 49-42. Furthermore, North American only raises this issue in its reply brief.
In the present case, the plaintiff alleges that the plaintiff is guilty of unfair methods or deceptive acts or practices in the business of insurance. "A payment bond obtained pursuant to General Statutes § 49-41 does not fit within the definition of insurance." (Internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. United States Fidelity and Guaranty Co., supra, Docket No. 520348. While this might be problematic if the plaintiff were only asserting a violation of CUIPA, it is not dispositive of the plaintiff's CUTPA claim.
"[Section] 49-42 is a remedial statute enacted to provide security for workers and materials suppliers unable to avail themselves of the protection of a mechanic's lien. Okee Industries, Inc. v. National Grange Mutual Ins. Co., 225 Conn. 367, 373, 623 A.2d 483 (1993). In Blakeslee Arpaia Chapman, Inc. v. United States Fidelity and Guaranty Co., Superior Court, judicial district of New London, Docket No. 520348 (March 4, 1994, Hurley, J.) ( 11 Conn. L. Rptr. 169), the court, in passing upon the defendant's motion for summary judgment concluded that "a violation of [§] 49-42 may give rise to a CUTPA claim." Id. The court reasoned that this conclusion was appropriate given that both § 49-42 and CUTPA are remedial statutes and that as such, both were to be construed liberally except for where the statute imposes specific constraints. Id. This reasoning has been followed in some subsequent cases. See, e.g., Wolverine Fire Protection Co. v. Tougher Industries, Superior Court, judicial district of Hartford, Docket No. CV 01 0805554 (June 20, 2001, Hale, J.T.R.) ( 29 Conn. L. Rptr. 731) (denying motion to strike CUTPA claim that was based on violation of § 49-42); Production Equipment Co. v. Blakeslee Arpaia Chapman, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 94 0247485 (January 3, 1996, Silbert, J.) ( 15 Conn. L. Rptr. 558) (denying motion to strike CUTPA claim that was based on violation of § 49-42); Premier Roofing Co. v. Ins. Co. of North America, Superior Court, judicial district of Danbury, Docket No. 312438 (March 3, 1995, Leheny, J.) ( 13 Conn. L. Rptr. 544) (finding that alleged violation of § 49-42 combined with allegation of bad faith was sufficient to maintain, CUTPA claim).
The plaintiff alleges that North American violated § 49-42(a) and further alleges that North American failed to adopt and implement reasonable standards for the prompt investigation of claims arising under bonds, that it refuses to pay bond claims without conducting a reasonable investigation, that it does not make a good faith attempt to effectuate a prompt, fair and equitable settlement of bond claims and fails to provide a reasonable explanation of its basis for denial or failure to pay bond claims. Specifically, the plaintiff alleges that North American did not make payment on all or any portion of the plaintiff's claim or deny the plaintiff's claim within ninety days after service of the notice of claim as specified by § 49-42.
This appears in the first count of the complaint and is incorporated, by reference, into the second count of the complaint.
The plaintiff made a claim on the payment bond on February 3, 2005. (Affidavit of Jeffrey Goldberg, ¶ 7.) Goldberg states that on March 28, 2005, North American acknowledged receipt of the plaintiff's claim, provided a proof of claim form to be filled out by the plaintiff and requested documentation related to the claim. (Affidavit of Jeffrey Goldberg, ¶ 10.) Goldberg states that the plaintiff's counsel had a phone conversation with North American on April 11, 2005, and that the plaintiff's counsel submitted a proposed marked-up edition of the proof of claim. (Affidavit of Jeffrey Goldberg, ¶ 11.) Goldberg states that on April 13, 2005, North American forwarded correspondence from the plaintiff's counsel to King regarding an adjustment to the claim amount and requested that King either make immediate arrangements to pay the claim or provide North American with a written explanation of any disputes as to the validity of the claim. (Affidavit of Jeffrey Goldberg, ¶ 12.) Goldberg states that on April 13, 2005, the plaintiff's counsel notified North American that the plaintiff had adjusted the amount of its claim and provided supporting documentation. (Affidavit of Jeffrey Goldberg, ¶ 13.) Goldberg states that on May 17, 2005, the plaintiff's counsel wrote to North American stating that he would not file suit on the bond if North American were to provide a written promise, that day or the next day, that it would pay $29,833.30 plus interest to the date of receipt of payment and that payment would be received in the plaintiff's counsel's office not later than May 23. (Affidavit of Jeffrey Goldberg, ¶ 14.) Goldberg states that on May 20, North American confirmed that King would be forwarding a check for payment to the plaintiff, to be held in trust pending King's receipt of certain necessary closeout paperwork. (Affidavit of Jeffrey Goldberg, ¶ 15.) North American has not provided any evidence that it ever paid or denied, in whole or in part, the plaintiff's claim.
While the evidence proffered by the parties tends to show that North American violated § 49-42 by failing to pay or deny the plaintiff's bond claim within ninety days, thus satisfying the first criterion of a claim under CUTPA, the evidence does not necessarily support a finding that the second criterion, that the defendant's conduct is immoral, unethical, oppressive, or unscrupulous, has also been satisfied. Nevertheless, it is North American that has the burden of showing the absence of any genuine issue of material fact. See Barrett v. Montesano, supra, 269 Conn. 791. North American simply raises this issue in its reply brief without any analysis and does not offer any additional evidence or even refer the court to evidence that it previously submitted. North American, then, has failed to meet its burden of establishing that there is no genuine issue of material fact as to whether its conduct falls outside the criteria set forth in Daddona v. Liberty Mobile Home Sales, Inc., supra, 209 Conn. 254, and that judgment should enter in its favor as a matter of law. Again, King fails to brief any issues or provide any evidence that would entitle it to relief.
The first criterion is, "[w]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness . . ." Daddona v. Liberty Mobile Home Sales, Inc., supra, 209 Conn. 254.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is denied.