Opinion
No. 380119
April 29, 2003
MEMORANDUM OF DECISION
On January 8, 2001, the plaintiff, Nixa Reyes, brought this action against the defendant, Park City Ford, Inc., for breach of an express warranty and implied warrant of fitness of an automobile she had purchased from the defendant. The action was referred to an attorney trial referee who recommended judgment for the plaintiff. The defendant objects to the report.
The referee found the following facts. On July 8, 1999, the plaintiff purchased a used automobile from the defendant. The plaintiff intended to use the automobile as a means of providing basic transportation. At the time of purchase, the plaintiff purchased an extended service warranty from the defendant. The plaintiff ultimately discovered that the automobile had a mechanical defect that caused it to stall. Although the defendant exercised good faith in an attempt to fix the defect, the defendant was unable to do so. The automobile's previous owners had not had the vehicle serviced for similar mechanical defects.
Despite the mechanical defect, the plaintiff made significant use of the car. When the plaintiff purchased the automobile, on July 8, 1999, it had 15,441 miles on it. At the time of trial, November 7, 2002, the automobile had 67,941 miles.
The referee did not find that the defendant either expressly or impliedly warranted the fitness of the automobile. Indeed, the referee found that the defendant did not impliedly warrant the fitness of the vehicle; see General Statutes § 42a-2-314 (2)(c). Moreover, the plaintiff did not prove that the mechanical defect existed when the automobile left the defendant's control. Rather, the referee concluded that defect did not develop until after the car came under the plaintiff's control.
The referee did find that the automobile was covered under a warranty provided by the Ford Motor Company. However, Ford Motor Company is not a party to this action.
The referee, however, found that the defendant breached the extended service warranty. The "extended service warranty provided repairs to specified parts until the automobile reached 64,000 miles or until April 25, 2004, which ever first occurred." The referee also found that the plaintiff was entitled to compensation because under contract law, "the plaintiff did not receive, from the defendant, proper consideration for her extended service warranty" since "[t]he mechanical difficulty experienced with the automobile was never fixed." On this basis, the referee recommended judgment for the plaintiff in the amount of $1,635.
The defendant filed an objection to the referee's report on the grounds that the referee had recommended judgment for a cause of action that was not pleaded in the complaint. Specifically, the defendant argues that the referee should not have awarded the plaintiff damages for breach of an extended service warranty because the plaintiff did not plead such a cause of action. The plaintiff has not responded, either in pleading or argument, to the defendant's objection. The court agrees with the defendant.
In her complaint, the plaintiff alleged that the defendant "impliedly warranted, pursuant to § 42a-2-314 (2)(c), as well as expressly warranted [that the car was] fit and proper for normal use as an automobile." No matter how broadly the court reads the complaint, it does not allege a cause of action for breach of a service warranty.
A cause of action for breach of the implied warranty of merchantability under § 42a-2-314 (2)(c), or breach of an express warranty is distinct from a cause of action for breach of the extended service warranty. A claim for breach of the implied warranty of merchantability under § 42a-2-314 (2)(c), and a claim for breach of an express warranty both focus on the condition of the nonconforming goods. "The implied warranty of merchantability [under § 42a-2-314 (2)(c)] holds merchants liable to the extent their goods fail to conform to the ordinary purpose for which they are supposed to be used . . ." (Citations omitted; internal quotation marks omitted.) Criscuolo v. Mauro Motors, Inc., supra, 58 Conn. App. 546-47. "[T]he critical question with regard to this warranty is what was the ordinary purpose for which the goods were to be used and were the goods suited for that purpose when they left [the defendant's] control." Id., 546.
General Statutes § 42a-2-314 provides: "(1) Unless excluded or modified as provided by section 42a-2-316, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
"(2) Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promises or affirmations of fact made on the container or label if any.
"(3) Unless excluded or modified as provided by section 42a-2-316 other implied warranties may arise from course of dealing or usage of trade."
General Statutes § 42a-2-313 provides that "[a]n express warranty is created by [a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain . . . Subsection (1)(b) provides that [a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods conform to the description." Vezina v. Nautilus Pools, Inc., 27 Conn. App. 810, 815, 610 A.2d 1312 (1992). The critical question with regard to this warranty is whether the goods sold were as expressly warranted by the seller to the buyer.
An extended service warranty, however, is a contract between a service provider, whether or not the seller, and the buyer whereby the service provider warrants to "cover repair costs not otherwise covered by manufacturer's standard warranty, by extending either the standard warranty coverage period or the range of defects covered." Black's Law Dictionary 1582 (7th Ed. 1999); see also, Stuart v. Center Automotive, Inc., Superior Court, judicial district of New Britain, Docket No. CV 96 0474642, 24 Conn.L.Rptr. 675 (June 2, 1999); Hemingway v. Gem Chevrolet, Inc., Superior Court, judicial district of Tolland at Rockville, Docket No. CV 96 0062116 (May 18, 2000). A breach of this warranty occurs if a service provider fails to service the product as agreed. See Simpson v. Byrider, No. 1999CA00135 (Ohio Ct.App., February 7, 2000) (unpublished). Here, the terms of the extended service contract, as found by the referee, were that the defendant would repair specified parts of the automobile until it reached 64,000 miles or until April 25, 2004, whichever first occurred.
Whether judgment may be entered on the referee's report, finding that the defendant breached an extended service warranty when no such warranty was alleged turns on whether evidence of this warranty constituted a material variance from the allegations of the complaint.
"A variance is a departure of the proof from the facts as alleged. Not every variance, however, is a fatal one since immaterial variances are disregarded under our practice . . . Only material variances, those which disclose a departure from the allegations in some matter essential to the charge or claim, warrant the reversal of a judgment . . .
"An immaterial variance is one in which the difference between the allegations and the proof is so slight and unimportant that the adverse party is not misled as to the charge he is required to meet or prejudiced in maintaining his defense on the merits of the case. Ordinarily, an otherwise valid judgment will not be invalidated if a variance does not change the theory of the cause of action and the complaining party, at all times, was in a position to know the true state of facts." Strimiska v. Yates, 158 Conn. 179, 183-84, 257 A.2d 814 (1969); see Practice Book § 10-62.
"[A] variance is material only if the defendant is prejudiced by it." Commissioner of Motor Vehicles v. De Milo Co., 233 Conn. 254, 276, 659 A.2d 148 (1995). Generally, the court must examine the evidence and proceedings at trial in order to determine if the defendant has been prejudiced. See Lyons v. Nichols, 63 Conn. App. 761, 766, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001) (determination that variance immaterial made with reference to an exhibit at trial); Criscuolo v. Mauro Motors, Inc., supra, 58 Conn. App. 546-47; Covey v. Comen, 46 Conn. App. 46, 51, 698 A.2d 343 (1997) (allegations not made in counterclaim nor referred to at trial); Marchetti v. Ramirez, 40 Conn. App. 740, 748-49, 673 A.2d 567 (1996), aff'd., 240 Conn. 49, 688 A.2d 1325 (1997); LaFaive v. DiLoreto, 2 Conn. App. 58, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984); Francis v. Hollauer, 1 Conn. App. 693, 696-97, 475 A.2d 326 (1984); but see A.V. Giordano Co. v. American Diamond Exchange, Inc., 31 Conn. App. 163, 168-69, 623 A.2d 1048 (1993), where the determination of prejudice was apparently made on the face of the record.
Where the variance involves a pleading deficiency rather than a change in the cause of action pleaded from that proved, the rule is that even if the variance is material, the issue of variance must be raised when the evidence is presented. Winsor v. Hawkins, 130 Conn. 669, 670, 37 A.2d 222 (1944). Where this is not done, the plaintiff is deprived of an "opportunity . . . to make his pleading, if insufficient, conform to the proof and it is "too late to raise such a point on appeal." Id.
Where, however, the variance involves a change in the cause of action alleged, the rule remains that "a party can[not] recover on a cause of action which has not been pleaded. It is still the law that the right of a plaintiff to recover is limited by the allegations of the complaint . . . Whenever a disparity between the allegations and the evidence develops, counsel should move to amend the pleadings so that they conform with the evidence. Such an amendment would obviate the possibility of a judgment being reversed owing to the existence of a material variance." Strimiska v. Yates, supra, 158 Conn. 185. Thus, it seems that where a plaintiff recovers on a cause of action which has not been pleaded, prejudice to the defendant is presumed. Nonetheless, "the parties may, by consent, enlarge the scope of the litigation to include issues not raised in the pleadings." Spitz v. Abrams, 128 Conn. 121, 123, 20 A.2d 616 (1941).
Here, the plaintiff has not suggested that defendant consented to enlarge the scope of the litigation to include the breach of an extended service warranty. Had such a claim been made, the defendant could have presented a transcript of proceedings before the referee in an attempt to refute it. Where substantially the same situation involving an extended service warranty arose in Dildine v. Town Country Truck Sales, Inc., (Ga.App. No. A02A2419, February 18, 2003) (unpublished as of this date), the court stated: "Although a party's failure to object to evidence involving a new issue may imply consent, no consent can be found if the parties do not squarely recognize the new issue as an issue in the trial. . . And a non-objecting party does not impliedly consent when the evidence introduced is relevant to an issue made by the pleadings and there is no [indication] the party offering such evidence was seeking to amend the pleadings." (Footnotes omitted.)
Because the variance here is not a mere pleading defect but a wholesale change in the cause of action proved from that alleged, and because the plaintiff has neither sought to amend her complaint nor claimed that the defendant consented to enlarging the scope of the litigation the court may not render judgment on the facts found by the referee.
The "court has the power to render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney trial referee. The nondelegable judicial duty to render judgments is not limited to endorsement of the decision recommended by the referee." Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (1989). Since it is clear that the referee found that the defendant did not breach either an express or implied warranty of fitness of the automobile, judgment may enter for the defendant.
BY THE COURT
Bruce L. Levin Judge of the Superior Court