source: Caselaw Access Project

author: Callahan, J. Berdon, J.,

license: Public Domain

text:
    Betty L. Tianti, Commissioner of Labor ex rel. Marilyn Gluck et al. v. William Raveis Real Estate, Inc.
    (14988)
    Peters, C. J., and Callahan, Berdon, Katz and Palmer, Js.

      Argued September 27, 1994
    decision released January 10, 1995

      Stanton H. Lesser, with whom was Stephanie Z. Roberge, for the appellant (defendant).

      Glenn A. Woods, assistant attorney general, with whom were Edward F. Reynolds, Gary G. Williams and Judith Brown, assistant attorneys general, and, on the brief, Richard Blumenthal, attorney general, for the appellee (plaintiff).
   Callahan, J.

The plaintiff, the commissioner of the department of labor, brought this action on behalf of two real estate salespersons, Marilyn Gluck and Marilyn Lyren, against the defendant, William Raveis Real Estate, Inc., pursuant to General Statutes § 31-72, to collect unpaid remuneration allegedly owed to Gluck and Lyren by the defendant. Although the claimants’ cases were tried together, each has a unique factual situation that will be discussed individually.

Gluck was a real estate salesperson for the defendant from January, 1982, until March, 1988. Gluck claimed that in 1987, William Raveis, the defendant’s president, promised a full commission to the salesperson who first introduced him to new office space suitable for the company to purchase or lease in New Haven. The claimant alleged that she was the first person to introduce Raveis, through her office manager Carole Anne Pepe, to a property at 199 Whitney Avenue in New Haven, which eventually was leased by the defendant for business purposes.

Two other salespersons in the same office also claimed that they were entitled to receive a commission from the defendant because of the defendant’s lease of the property. On June 21, 1988, after Gluck had left the company, the defendant’s regional vice-president, Chris Cooke, informed Gluck by letter that she would be paid only $2400 of the $12,000 commission received by Raveis, $6000 of which had been expended for legal fees necessitated by problems connected with the lease of the property. Of the $6000 remaining, Cooke determined that Gluck was entitled to 40 percent, while the other two salespersons who claimed the commission were each entitled to receive 30 percent of the commission. Pursuant to § 31-72, the plaintiff brought this action on Gluck’s behalf to collect the full amount of the unpaid commission allegedly due Gluck.

From 1986 to 1988, Lyren was the sales manager for the defendant’s Greenwich office and later for the defendant’s Trumbull office. For the first year Lyren was paid $2000 per month plus a 5 percent override on every commission generated by the office. Thereafter she was paid a straight 8 percent override on commissions. Lyren alleged that she was owed overrides on transactions on which binders had been executed before she had left the company. After she resigned, Lyren received no compensation from the defendant despite her repeated requests for payment of the overrides on those real estate transactions. The plaintiff brought this action on behalf of Lyren pursuant to § 31-72.

The claims of both Gluck and Lyren were tried together. The trial court found that both claimants were employees for purposes of § 31-72 as that term is defined in General Statutes § 31-71a. The court thereafter determined that the plaintiff was entitled to recover the sum of $24,068.29; $12,000 of that sum was owed to Gluck and $12,068.29 was owed to Lyren.

The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The only issues before us are whether the trial court was correct in finding that: (1) the claimants, as employees rather than independent contractors, fell within the purview of §§ 31-72 and 31-71a; and (2) Lyren had met her burden of proof with regard to damages. We conclude that the trial court correctly determined both issues and affirm the trial court’s judgment.

I

The plaintiff successfully argued to the trial court that the claimants were employees of the defendant company and that consequently she was authorized to bring a civil action pursuant to § 31-72 to collect unpaid wages owed to them. The defendant argued in the trial court and in this court that the claimants were not employees, but rather were independent contractors, and therefore were not within the purview of § 31-72. We agree with the plaintiff.

The defendant’s first argument is that the claimants’ status as independent contractors was definitively established by Gluck’s admission to that effect during her trial testimony. “Whether a party’s statement is a judicial admission or an evidentiary admission is a factual question for the trial court.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 6.5, p. 132, citing Sweet v. Sweet, 190 Conn. 657, 662, 462 A.2d 1031 (1983) (“[wjhether these statements when viewed as a whole result in a judicial admission is a determination best left to the trial court which observed the witnesses, heard the testimony and was the sole judge of the weight to be accorded such testimony”). The trial court, in holding that the claimants were employees of the defendant and not independent contractors, necessarily concluded that Gluck’s statement was not a judicial admission. If Gluck’s statement was merely an evidentiary admission, her view of her relationship to the defendant is not dispositive. For instance, in Latimer v. Administrator, 216 Conn. 237, 251, 579 A.2d 497 (1990), we found an employer-employee relationship even in the face of a signed agreement stating that the parties were independent contractors. In determining whether an employment relationship exists, “ ‘[w]e look beyond the plain language of the contract to the actual status in which the parties are placed.’ ” Id., 252.

The defendant’s next argument is that the claimants in this case could not be considered employees in light of the language of the governing statutes. Section 31-72 allows the labor commissioner to collect the full amount of any unpaid wages that an employer has failed to pay an employee. The terms employer, employee and wages are defined in § 31-71a. An employer “includes any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased person, the conservator of the estate of an incompetent, or the receiver, trustee, successor or assignee of any of the same, employing any person . . . .” General Statutes § 31-71a (1). An employee “includes any person suffered or permitted to work by an employer.” General Statutes § 31-71a (2). The term wages is defined to include “commission.” General Statutes § 31-71a (3). The purpose of § 31-72 is remedial, and therefore it must be given a liberal construction in favor of those whom the legislature intended to benefit. Chrysler Corp. v. Maiocco, 209 Conn. 579, 595, 552 A.2d 1207 (1989). From a reading of the plain language of these statutory provisions, it would appear that a real estate salesperson, engaged by a real estate brokerage firm doing business as a corporation and compensated by commission, would be someone who was “suffered or permitted to work by an employer,” and hence an employee. General Statutes § 31-71a (2).

Application of our prior case law confirms that the trial court properly concluded that these particular claimants were employees, within the purview of § 31-72, rather than independent contractors. “The determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations, is a question of fact.” (Citation omitted; internal quotation marks omitted.) Latimer v. Administrator, supra, 216 Conn. 249. It has long been established that “[t]he fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.” (Internal quotation marks omitted.) Id., 248; Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 639, 573 A.2d 724 (1990); Panaro v. Electrolux Corp., 208 Conn. 589, 603, 545 A.2d 1086 (1988); F.A.S. International, Inc. v. Reilly, 179 Conn. 507, 512, 427 A.2d 392 (1980); Beaverdale Memorial Park, Inc. v. Danaher, 127 Conn. 175, 179, 15 A.2d 17 (1940); Aisenberg v. C. F. Adams Co., 95 Conn. 419, 421, 111 A. 591 (1920). “The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.” (Internal quotation marks omitted.) Latimer v. Administrator, supra, 248; Caraher v. Sears, Roebuck & Co., 124 Conn. 409, 413-14, 200 A. 324 (1938). An independent contractor has been defined as “one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.” (Internal quotation marks omitted.) Silverberg v. Great Southwest Fire Ins. Co., supra, 639; Alexander v. R. A. Sherman’s Sons Co., 86 Conn. 292, 297, 85 A. 514 (1912).

The so-called “ABC test” which is used to determine the existence of an employment relationship for the purpose of unemployment compensation; see General Statutes § 31-222 (a) (1) (B) (ii); F.A.S International, Inc. v. Reilly, supra, 179 Conn. 512; is also applicable here. The paramount factor in that three part test to determine whether a person is an employee is the first, which is the right to control not only the results of work but also the methods of work. This control test is by nature a balancing test. “ ‘The determination of general control is not always a simple problem. Many factors are ordinarily present for consideration, no one of which is, by itself, necessarily conclusive.’ ” Silverberg v. Great Southwest Fire Ins. Co., supra, 214 Conn. 639; Bourgeois v. Cacciapuoti, 138 Conn. 317, 321, 84 A.2d 122 (1951).

In the present case, the trial court found that the defendant retained the right to control, and actually exerted a great deal of control over, the real estate salespersons and sales managers affiliated with it. Both salespersons and managers were required to attend mandatory office meetings; both did business under the defendant’s name; both used the company letterhead, business cards and supplies; both were required to attend training sessions; and both were threatened with discharge if they did not comply with these requirements. “The right to terminate [an employment] relationship without liability is not consistent with the concept of an independent contract.” (Internal quotation marks omitted.) Latimer v. Administrator, supra, 216 Conn. 249. Additionally, the managers were required to read The Book of Five Rings and to discuss a book report about its themes, “discussing how we were then to treat our competitors like the Samurai warriors.” Gluck was required to put in specified hours of floor time and Lyren was required to work forty hours per week plus put in an office appearance on weekends.

The defendant claims that both claimants were independent contractors because they received 1099 forms rather than W-2 forms for income tax purposes, and that they did not receive medical benefits. While these factors weigh in the defendant’s favor, they are insufficient to persuade us that the claimants were not employees for the narrow purposes of § 31-72. The defendant also claims that its real estate salespersons are not employees because they explicitly are not covered under the Unemployment Compensation Act, pursuant to General Statutes § 31-222 (a) (5) (K), or the Workers’ Compensation Act, pursuant to General Statutes § 20-312b. As the plaintiff aptly notes, however, the legislature did not exempt real estate salespersons from § 31-72, and in fact defined “employee” quite broadly in § 31-71a (2). If the legislature had intended to exempt real estate salespersons from the operation of § 31-72, it obviously was capable of doing so, as is evidenced by their exemption from the Unemployment and Workers’ Compensation Acts. Its failure to do so is an indication of a contrary intention. See In re Ralph M., 211 Conn. 289, 306, 559 A.2d 179 (1989) (“we apply the tenet of statutory construction that [wjhere a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show that a different intention existed” [internal quotation marks omitted]).

The factors delineated above indicate that the right of the defendant to control its employees far outweighs the factors that indicate an independent contractor relationship. See Silverberg v. Great Southwest Fire Ins. Co., supra, 214 Conn. 639. Because the ABC test is conjunctive, and because we conclude that the defendant in the present case had the right to control the claimants, we need not address the second and third parts of the test. See footnote 8. We conclude that, in the particular circumstances presented, the trial court’s determination that Gluck and Lyren were employees of the defendant, bringing them within the purview of § 31-72, is legally and logically correct and finds support in the facts that reasonably could have been found by the trial court. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

II

The defendant next claims that the plaintiff failed to prove that the real estate transactions for which binders had been executed while Lyren was in the defendant’s employ actually had closed so as to enable the defendant to receive its commission. Because it was conceded that Lyren was not eligible to receive her overrides until the defendant received its commissions, the defendant maintains that the plaintiff had not met her burden of proof with regard to damages in Lyren’s case. We disagree.

It is axiomatic that the trier of fact may draw reasonable and logical inferences from the facts proven. State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994). In doing so, finders of fact “are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) Id., 693. Our review of the fact finder’s inferences is limited to determining whether the inferences drawn are “ ‘so unreasonable as to be unjustifiable.’ ” Id., 692, citing State v. Hayes, 127 Conn. 543, 555, 18 A.2d 895 (1941).

In the present case, the plaintiff had the burden to prove, by a preponderance of the evidence, that the defendant owed Lyren the overrides on transactions that had been hindered before Lyren had left the defendant’s employ, but that had closed after she had left. The plaintiff produced evidence that binders for thirty-seven properties were outstanding at the time Lyren left the defendant’s employ. The trial court found that “[tjhese binders were all based on contracts to purchase real estate as to which deposits had been lodged with the defendant and, although it is possible that a purchaser would renege on one, it is unlikely and such a remote possibility may reasonably be eliminated in estimating the amount of the commissions received by the defendant.” The evidence did not reflect, and the defendant does not point to anything in the record to indicate, that there were contingencies in these underlying contracts. The binder sheets produced by the plaintiff listed, for each property, only a contract date and a closing date.

It was the plaintiffs burden to prove, by a preponderance of the evidence, that Lyren was owed her overrides. In order to satisfy the burden of proof by a preponderance of the evidence, all the plaintiff need to have shown was that it was more likely than not that the defendant received its commissions on the transactions on which binders had been executed before Lyren had left the defendant’s employ. See C. Tait & J. LaPlante, supra, § 4.4.1, p. 73 (“[t]he burden of persuasion can be satisfied by circumstantial evidence if the trier finds that the facts from which the trier is asked to draw the inference are proven and that the inference is not only logical and reasonable, but strong enough so that it can be found to be more probable than not”). The trial court, sitting as a finder of fact, was free to apply its common knowledge and experience to infer from the facts proven that it was more likely than not that the transactions on which binders had been executed resulted in closings from which the defendant received its commissions. Under the limited circumstances of this case, we find that the trial court’s inference was not “so unreasonable as to be unjustifiable.” Lyren, therefore, was entitled to her overrides.

The judgment is affirmed.

In this opinion Peters, C. J., and Katz and Palmer, Js., concurred.

Berdon, J.,

concurring and dissenting. I concur in the result, on the basis of a statutory analysis that, for the purposes of General Statutes § 31-72, Marilyn Gluck and Marilyn Lyren were employees. I would not, however, travel the route of the so called “ABC test” referred to by the majority.

In order to determine whether Gluck and Lyren come within the provisions of § 31-72 we must look to the specific statutory definition of employee. See Weinberg v. ARA Vending Co., 223 Conn. 336, 349, 612 A.2d 1203 (1992) (where legislature has specifically defined an operative term used within a statute, the court is bound to accept that definition). For purposes of § 31-72, an “employee” broadly “includes any person suffered or permitted to work by an employer.” General Statutes § 31-71a (2). The plain language of § 31-71a encompasses any person who performs work for an employer. Wages, for the purposes of § 31-72, include “compensation for . . . services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation . . . .” (Emphasis added.) General Statutes § 31-71a (3). Therefore, according to the expansive plain language of § 31-71a, and for the purposes of § 31-72, the relationship between the defendant and Gluck and Lyren was one of “employer” and “employee.”

Furthermore, if the legislature had intended a more restrictive definition for employees who are entitled to the remedy pursuant to § 31-72, it would have provided for it as it did in other statutes governing labor. See, e.g., General Statutes § 31-58 (f) (restrictive definition of “employee” for purposes of minimum wages); General Statutes § 31-222 (a) (5) (K) (for purposes of unemployment compensation, real estate salespersons are specifically excluded); General Statutes § 20-312b (for purposes of workers’ compensation, real estate salespersons are specifically excluded). “[Statutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law.” (Internal quotation marks omitted.) In re Valerie D., 223 Conn. 492, 524, 613 A.2d 748 (1992).

Moreover, given the remedial purposes of the statute, § 31-72 must be given a liberal construction in favor of those whom the legislature intended to benefit. See Chrysler Corp. v. Maiocco, 209 Conn. 579, 595, 552 A.2d 1207 (1989). It is obvious that the legislature intended to provide an effective remedy for persons who have not been paid their wages or other compensation including commissions. Accordingly, I agree that Gluck and Lyren were employees under the broad definition of § 31-71a (2) for purposes of collecting their compensation pursuant to § 31-72.

I disagree, however, with the majority in regard to the damages awarded to Lyren. There was undisputed evidence that Lyren was not entitled to her override commissions of 8 percent unless each real estate transaction that was subject to a “binder” resulted in a “closing”—that is, a consummated real estate transaction where title was transferred to the purchaser and the defendant received its commission. There was no evidence presented at trial that these binders for which Lyren claimed overrides ever closed. The trial court recognized this, but drew an inference that they did close on the grounds that: (1) it was “reasonable to assume that in 1988 at the height of the real estate boom these [transactions closed]”; and (2) each “binder” was accompanied with a deposit from the purchaser and “although it is possible that a purchaser would renege on one, it is [an] unlikely and . . . remote possibility . . . .”

These binders, that evince the formation of contracts, are usually conditioned on many contingencies including mortgage approval, physical inspection, and the outcome of the title search. The failure of any one of these conditions could prevent a closing and result in the return of a buyer’s deposit. Therefore, Lyren’s proof that several properties were subject to binders at the time Lyren left the defendant’s employment cannot be used to infer that those properties actually closed and that Lyren is entitled to her overrides. The trial court’s inference to the contrary was not reasonable. Inferences are capable of bridging many gaps. But the span of this gap is too wide logically to support such an inference. (Paraphrasing Rutledge, J., in Galloway v. United States, 319 U.S. 372, 386, 63 S. Ct. 1077, 87 L. Ed. 1458, reh. denied, 320 U.S. 214, 63 S. Ct. 1443, 87 L. Ed. 1851 [1943]). In order to establish a prima facie case and sustain its burden of production, the plaintiff must present sufficient evidence “to remove the issue from speculation or conjecture . . . .” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 4.3, p. 72; Terminal Taxi Co. v. Flynn, 156 Conn. 313, 316, 240 A.2d 881 (1968). Lyren did not present sufficient evidence to establish a prima facie case on damages.

Indeed, in this case, the plaintiff implicitly recognized that the evidence upon which she relied was insufficient to infer that the binders resulted in closings because she sought to bolster Lyren’s case by relying on a negative inference. The plaintiff attempted to invoke the negative inference that the properties subject to binders closed because the defendant failed to produce evidence that any of the subject properties did not close, and such information would have been within the defendant’s power to produce had this occurred. The majority appropriately refused to employ a negative inference to determine whether the plaintiff had established a prima facie case. The fact remains that the plaintiff has produced insufficient evidence to establish that the properties closed and therefore has not shown that Lyren is entitled to receive overrides on those properties.

Accordingly, I would find that in Lyren’s case, the trial court was not correct in drawing the inference that the binders resulted in closings. I would reverse and remand the Lyren case to the trial court for a new trial on damages. I would affirm the judgment of the trial court in regard to the case of Gluck.

       General Statutes § 31-72 provides in relevant part: “When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71Í . . . [t]he labor commissioner may collect the full amount of any such unpaid wages .... In addition, the labor commissioner may bring any legal action necessary to recover twice the full amount of unpaid wages . . . and the employer shall be required to pay the costs and such reasonable attorney’s fees as may be allowed by the court. . . .”

       An override is the manager’s commission, which is taken out of the company’s commission.

       ‘ ‘Binder’ ’ as used in this case means that the property to be sold is under a legally binding contract between the buyer and seller. According to Lyren’s testimony, “In our industry, a binder is—when you have an accepted offer brought into the company, it is a form we use to complete the information for the transaction, that then is fed into a computer. And from that, then, when the transaction closes, the agent, the company, the regional and the office managers are all paid.” The transaction on which a binder has been executed is “[w]hen they were ready to—you know, a completed deal, ready, waiting, just, for a closing.”

       Originally, there was a third claim brought by Anthony Shays. His claim was settled prior to trial.

       General Statutes § 31-71a provides: “payment of wages: definitions. Whenever used in sections 31-71a to 31-71Í, inclusive:
      “(1) ‘Employer’ includes any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased person, the conservator of the estate of an incompetent, or the receiver, trustee, successor or assignee of any of the same, employing any person, including the state and any political subdivision thereof;
      “(2) ‘Employee’ includes any person suffered or permitted to work by an employer;
      “(3) ‘Wages’ means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation;
      “(4) ‘Commissioner’ means the labor commissioner.”

       “The distinction between judicial admissions and mere evidentiary admissions is a significant one that should not be blurred by imprecise usage. . . . While both types are admissible, their legal effect is markedly different; judicial admissions are conclusive on the trier of fact, whereas evidentiary admissions are only evidence to be accepted or rejected by the trier.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 6.5, p. 132.

       “A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it.” (Internal quotation marks omitted.) Pedersen v. Vahidy, 209 Conn. 510, 519-20, 522 A.2d 419 (1989). In this case, Gluck’s characterization of herself as an independent contractor is better defined as a legal conclusion made by a lay witness that cannot, and was not, construed as a judicial admission of a fact.

       “Under the ABC test any service provided by an individual is considered employment, unless and until the recipient of the services provided has sustained the burden of showing to the satisfaction of the administrator that (I) such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and (II) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (III) such individual is customarily engaged in an independently established trade occupation, profession or business of the same nature as that involved in the service performed (Internal quotation marks omitted.) Latimer v. Administrator, supra, 216 Conn. 247; F.A.S. International, Inc. v. Reilly, supra, 179 Conn. 511-12. This test is codified in § 31-222 (a) (1) (B) (ii) for the purpose of defining employment for unemployment compensation benefits.

       General Statutes § 31-222 (a) (5) provides in relevant part: “No provision of this chapter . . . shall apply to any of the following types of service or employment, except when voluntarily assumed . . .
      “(K) Service performed . . . by an individual as a real estate salesman, if all such service is performed for remuneration solely by way of commission . . . .”

       General Statutes § 20-312b provides in relevant part: “A licensed real estate broker or real estate salesman . . . shall not be considered an employee under the provisions of section 31-275 [the definitional section of the Workers’ Compensation Act] if substantially all of the remuneration for the services performed by such . . . salesman ... is directly related to sales or other output rather than to the number of hours worked

       See footnote 3.

       It is true that the plaintiff could have, and perhaps should have, searched the land records with regard to the thirty-seven different properties involved in this case. The plaintiff, however, attempted to ascertain this information through discovery. The plaintiff made discovery requests several times by way of subpoenas duces tecum. Despite a court order to comply with the plaintiffs production requests, the defendant did not produce the documents that were requested. The plaintiff also attempted to depose William Raveis, the president of the company, but that deposition was abruptly terminated by Raveis’ attorney. William Eagan, an investigator with the department of labor, testified that the defendant did not return his calls. He also testified that he sent a letter to the defendant “requesting either payment or information as to why the monies were not due, and that was again ignored.” Eagan went on to say that “[tjhere was no cooperation whatsoever at any time.” It is apparent that the defendant refused to cooperate in discovery, which is directly contrary to the open discovery doctrines in Connecticut. See Practice Book § 218; Lougee v. Grinnell, 216 Conn. 483, 489, 582 A.2d 456 (1990) (“Practice Book § 218 . . . liberally permits discovery of information ‘material to the subject matter involved in the pending action’ ” [emphasis added]); Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 140, 491 A.2d 389 (1985) (this jurisdiction has liberal discovery doctrines). Further, defense counsel conceded at oral argument before this court that such documents existed and that he had had them with him during the trial but that he never turned them over because the plaintiffs attorney neglected to request specifically that they be handed over at trial. It would not be wise precedent to hold that by stonewalling, a defendant could ensure the defeat of its opponent’s claim, especially where the defendant had superior information regarding that claim.

       Negative inferences cannot be invoked to establish a prima facie case and can be used only by the trier in weighing the evidence and determining the ultimate burden of persuasion. Secondino v. New Haven Gas Co., 147 Conn. 672, 676, 165 A.2d 598 (1960); Doty v. Wheeler, 120 Conn. 672, 679, 182 A. 468 (1936).
      The Secondino adverse inference has come under criticism by legal scholars. Professor Colin C. Tait writes: “The continuing validity of the ‘missing witness’ rule should be called into question. Not only does it consume an undue proportion of the attention of both appellate courts, its underlying premise has been substantially undermined. The rule originated at a time when parties ‘vouched’ for the veracity of their witnesses so that an opponent dared not call an adverse witness. Since a partial witness would be called only by the favored party, that party’s failure to call the witness, if available, warranted a negative inference. The voucher rule no longer applies in Connecticut. Under Connecticut’s modern rules a party may call an adverse witness, including the opposing party. If an adverse witness is called, the party calling that witness may use leading questions to interrogate the witness and, if necessary, to impeach the witness. In addition, Connecticut permits widespread discovery so that all parties know, and may depose, all relevant witnesses before trial. Thus, each party should in fact know which witnesses are favorable to which side. That being so, why should a party not be required to call any witness favorable to his cause? If a witness is available, he is equally available to both sides. If a witness has information favorable to one side, why shouldn't that side call that witness and bring out that information instead of relying on a negative inference based on ignorance that such a witness might have some unspecified information that might be unfavorable to the other party? See Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1046-1048 (5th Cir. 1990). Moreover, the Secondino rule is costly. It consumes the time of both the court and the parties, and it incurs expense even for parties who do not wish to call a witness, since they must nevertheless pay to have witnesses available to preclude the assertion of an adverse inference.” C. Tait & J. LaPlante, Connecticut Evidence (Sup. 1994) § 11.5.4, pp. 50-51. Indeed, its misuse in Connecticut is apparent and could have life and death consequences. State v. Ross, 230 Conn. 183, 324-34, 646 A.2d 1318 (1994) (Berdan, J., dissenting) (majority suggested that state is entitled to Secondino adverse inference jury instruction for failure to call psychiatric witness whom defense consulted in capital murder trial notwithstanding attorney-client privilege).


author: Katz, J.

text:
    Dawn Jacobs v. Healey Ford-Subaru, Inc.
    (14990)
    Peters, C. J., and Callahan, Berdon, Katz and Palmer, Js.

      Argued November 1, 1994
    decision released January 10, 1995

      Joanne S. Faulkner, for the appellant (plaintiff).

      Jeffrey D. Ginzberg, for the appellee (defendant).
   Katz, J.

The issue before the court is whether the defendant, who has violated General Statutes § 42-98 of the Retail Instalment Sales Financing Act (RISFA) and General Statutes § 42a-9-504 of the Uniform Commercial Code (UCC), must pay damages under each statute to the injured plaintiff. We conclude that, because the remedies are not explicitly exclusive, there is no conflict between the two provisions. Accordingly, both must be given concurrent effect and cumulative remedies must be awarded.

The plaintiff, Dawn Jacobs, instituted this action against the defendant, Healey Ford-Subaru, Inc., for alleged multiple violations of RISFA and the UCC. She sought minimum statutory damages of $6500, costs and attorney’s fees, pursuant to the UCC and RISFA, as well as actual and punitive damages pursuant to General Statutes § 42-110b, the Connecticut Unfair Trade Practices Act (CUTPA), and General Statutes § 36-243b of the Creditors’ Collection Practices Act (CCPA). The defendant denied the allegations and counterclaimed for a deficiency of $1608.07.

Pursuant to Practice Book § 430, the case was referred to an attorney trial referee (referee), who found the following facts. In October, 1988, the defendant sold a used 1987 Ford Tempo to the plaintiff. The cash price of the vehicle was $10,647.03; the amount financed was $10,898.90; and the finance charge was $4196.14. There was a down payment of $2600, and the plaintiff made three payments of $314.48 each. In May, 1989, the plaintiff voluntarily returned the vehicle to the defendant. According to the National Automobile Dealers Association formula, at the time the vehicle was returned its value was $6500.

The referee further found that the defendant never gave the plaintiff advance notice of its intent to repossess the vehicle before the plaintiff returned it. See General Statutes § 42-98 (b). The defendant’s only correspondence with the plaintiff consisted of two demands for a deficiency of $5285.07 that were mailed in August and November, 1989. Only the letter of November 10, 1989, however, arrived at the correct location and was received by the plaintiff. On November 9, 1989, the vehicle was sold for $8427. The defendant was unaware that the vehicle had been sold the day before it sent the second letter because, while moving its dealership, it had misplaced the pertinent file. On or before February 18,1991, the defendant located its file and directed its attorney to notify the plaintiff of the sale and of the corrected deficiency balance due of $1608.07.

The referee first concluded that the plaintiff was a “retail buyer” as defined by General Statutes § 42-83 (3) (h), and that, despite its voluntary return, the vehicle had been “repossessed” within the meaning of § 42-98 (b). Neither of these conclusions has been challenged. Because the vehicle had been sold under a retail instalment contract, the referee concluded that the defendant was obligated under the notice and resale provisions of RISFA.

The referee also concluded that the defendant had violated § 42-98 (c), (d) and (e) based upon his findings that the defendant had failed to provide the plaintiff with any notice of: (1) the right to redeem; (2) the proposed sale; (3) the actual sale; or (4) the disposition of the proceeds. Furthermore, the defendant did not credit the plaintiff with the statutory fair market value of the vehicle, either before or after its resale, as required by § 42-98 (e) and (g). In light of the defendant’s admitted violations of these provisions, the referee precluded it from recovering any claimed deficiency under its counterclaim. The referee then concluded that neither CUTPA nor CCPA had been violated and thereafter applied the statutory formula under RISFA to award the plaintiff $885.86 in damages. See General Statutes § 42-98 (i).

The plaintiff objected to the report, pursuant to Practice Book § 440, and claimed that: she was entitled to the minimum consumer damages provided by the UCC; she should have received attorney’s fees under General Statutes § 42-150bb; and the referee should have concluded that both CUTPA and CCPA had been violated.

The trial court accurately recited all the pertinent facts found by the referee and his conclusion of law that the notice provisions of RISFA had been violated. The trial court then concluded that because the referee’s report contained insufficient factual findings to support the plaintiffs claim that the defendant had failed to resell the vehicle in a commercially reasonable manner, as required by § 42a-9-504, the damages sought under the UCC could be predicated only on the plaintiffs claim that the notice provisions of the UCC had been violated. The trial court rejected the plaintiffs objection to the referee’s denial of damages under the UCC concluding that the provisions of RISFA took precedence and thereby limited the amount of damages to which the plaintiff was entitled. In reaching its decision, the trial court relied on two statutes that assign priority to the provisions of RISFA when there is a conflict between RISFA and the UCC. Section 42-83 (1) provides that “[a] transaction subject to this chapter is also subject to the Uniform Commercial Code, title 42a, but in case of any conflict the provisions of this chapter shall control.” General Statutes § 42a-9-203 (4) provides that “[a] transaction, although subject to this article, is also subject to sections . . . 42-83 to 42-99, inclusive . . . and in the case of conflict between the provisions of this article and any such statute, the provisions of such statute control. Failure to comply with any applicable statute has only the effect which is specified therein.” The trial court also affirmed the referee’s conclusion that the defendant’s conduct did not amount to an unfair trade or collection practice. Finally, the trial court rejected the plaintiff’s claim for attorney’s fees pursuant to § 42-150bb because the plaintiff had failed to assert this specific statutory claim to the referee and had, therefore, failed properly to place it before the referee for consideration. Accordingly, the trial court overruled the plaintiff’s objection to the report and rendered judgment in favor of the plaintiff in the amount of $885.86.

The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The plaintiff raises three issues: (1) whether the trial court properly refused to award damages under both RISFA and the UCC when both statutes had been violated; (2) whether the trial court properly concluded that the defendant had not violated CUTPA; and (3) whether the trial court properly denied the plaintiff attorney’s fees under § 42-150bb. We affirm in part and reverse in part.

I

We first consider the question of cumulative remedies. The referee explicitly found that the defendant had violated RISFA. In light of that finding, we must resolve: (1) whether a conflict exists between the provisions of RISFA and the UCC; and (2) whether, in the absence of a conflict, the provisions can be given concurrent effect. We conclude that there is no conflict and that the plaintiff was entitled to damages under both statutory schemes.

We begin our analysis with a review of the statutes themselves. Section 42-83 (1) provides that a transaction subject to RISFA is also subject to the UCC, but adds that RISFA controls in case of any conflict. Similarly, § 42a-9-203 (4) provides that a transaction subject to the UCC is also subject to RISFA. A creditor must therefore comply with both RISFA and the UCC unless a conflict exists. See Gaynor v. Union Trust Co., 216 Conn. 458, 582 A.2d 190 (1990).

The defendant argues that a conflict exists solely because the provisions of RISFA and the UCC include different and distinct remedies. RISFA provides a statutory formula that allows the retail buyer to recover “his actual damages, if any, and in no event less than one-fourth of the sum of all payments which have been made under the contract.” General Statutes § 42-98 (i). The UCC allows the debtor to recover “an amount not less than the credit service charge plus ten per cent of the principal amount of the debt or the time price differential plus ten percent of the cash price.” General Statutes § 42a-9-507 (1). Because the remedies are different, the defendant contends that only one can apply. On the basis of that supposition, the defendant further maintains that a conflict exists and therefore only the remedy provided by RISFA applies. Because we disagree with the defendant’s underlying premise that each of the remedy provisions is exclusive, we find no conflict.

The defendant’s argument has been considered and rejected in other jurisdictions. In Wilmington Trust Co. v. Conner, 415 A.2d 773, 779 (Del. 1980), the court confirmed its adherence to the “absolute bar” rule that failure to comply strictly with the notice provisions of the Delaware UCC acts as an absolute bar to recovery of a deficiency judgment by the creditor. The court found that both the “absolute bar” rule and the statutory remedy under the Delaware UCC § 9-507 (l), are available as debtor's remedies. The creditor had argued that the remedy in § 9-507 (1) was intended to be exclusive and that the debtor was therefore not entitled to avail himself of the absolute bar rule. In rejecting this claim, the court referred to § 1-106 (1) of the Delaware UCC, which specifically recognizes the applicability of other remedies, providing that the remedies afforded by the UCC “shall be liberally administered . . . but neither consequential nor special nor penal damages may be had except as specifically provided in this subtitle or by other rule of law. (Emphasis added.)” (Internal quotation marks omitted.) Wilmington Trust Co. v. Conner, supra, 779. The court concluded that “because of their learning, skill and experience, the drafters of the Uniform Commercial Code, had they truly intended the remedy to be exclusive, would have been scrupulously careful to state it. Their omission of language in § 9-507 (1) expressly indicating exclusivity of the remedy thus speaks volumes against the correctness of [the] plaintiffs position.” (Internal quotation marks of the Delaware UCC omitted.) Id., 780. Additionally, the court relied on § 1-103 of the Delaware UCC, which provides that other rules of law may supplement the UCC unless they are displaced by particular UCC provisions. The Delaware court interpreted that section to mean that only if other provisions “explicitly” displace any other rule of law, will such provision be exclusive. Id., 779. The court concluded that the drafters’ failure explicitly to limit a debtor to § 9-507 (1) reflects an intent that the remedy contained therein not be the debtor’s sole recourse. Therefore, the debtor was entitled to avail himself of the remedy provision of the absolute bar rule. Id., 780.

Other courts have come to the same conclusion. In Camden National Bank v. St. Clair, 309 A.2d 329, 332 (Me. 1973), the court remarked that “in view of the omission of § 9-507 (1) expressly to state that it provides an exclusive remedy for notification deficiencies, U.C.C. § 1-103 becomes most significant. Its import is that the right of action established by § 9-507 (1), absent clear expression to the contrary, must be held cumulative in the context of remedies previously, or otherwise, afforded.” See also Industrial Valley Bank & Trust Co. v. Nash, 349 Pa. Super. 27, 44, 502 A.2d 1254 (1985) (Motor Vehicle Sales Financing Act [MVSFA] provisions not intended to be exclusive; UCC and MVSFA are “in pari materia” and should be construed together to enhance the purposes of both statutes); Davenport v. Chrysler Credit Corp., 818 S.W.2d 23, 31 (Tenn. App. 1991) (§ 9-507 [1] “remedies are not intended to be exclusive and, in fact, are cumulative to other remedies available to debtors under state law”); see generally Atlas Thrift Co. v. Horan, 27 Cal. App. 3d 999, 1008, 104 Cal. Rptr. 315 (1972) (remedies available before adoption of UCC are not eliminated unless UCC specifically deletes them); Christian v. First National Bank, 531 S.W.2d 832, 843 (Tex. App. 1975) (same).

Although the remedy provisions of RISFA and the UCC provide different relief, we are persuaded that both can apply simultaneously. Mindful that consumer legislation must be interpreted so as to implement its remedial purpose of protecting consumer buyers; Mack Financial Corp. v. Crossley, 209 Conn. 163, 166, 550 A.2d 303 (1988); Barco Auto Leasing Corp. v. House, 202 Conn. 106, 116, 520 A.2d 162 (1987); and in accord with the reasoning other jurisdictions have applied to resolve this issue, we conclude that there is no conflict between the remedy provisions of RISFA and the UCC, in the absence of a clear mandate that the remedies are exclusive. Accordingly, under § 42-83 (1), the remedies are cumulative and the plaintiff is entitled to collect damages under both statutory formulas as set forth in § 42-98 (i) and § 42a-9-507 (l).

Our decision that the remedies of RISFA and the UCC are cumulative is further supported by public policy considerations. Repossession statutes are enacted to protect the consumer from well documented repossession abuses and to encourage and promote compliance with the laws that govern such actions. Barco Auto Leasing Corp. v. House, supra, 202 Conn. 116 (“buyer’s remedy must therefore be implemented in a fashion that will take full account of a governing statute that was purposefully designed to correct the often gross imbalance in bargaining power between a retail seller and a retail buyer”); P. Shuchman, “Profit on Default: An Archival Study of Automobile Repossession and Resale,” 22 Stan. L. Rev. 20 (1969); Symposium, “Defaulting Debtors and the Judicial Process—The FTC’s Proposed Restriction on Deficiency Judgments: § 444.2 (a) (7) of the Rule on Credit Practices,” 8 Conn. L. Rev. 457 (1976); note, “I Can Get It For You Wholesale: The Lingering Problem of Automobile Deficiency Judgments,” 27 Stan. L. Rev. 1081 (1975); comment, “Business as Usual: An Empirical Study of Automobile Deficiency Judgment Suits in the District of Columbia,” 3 Conn. L. Rev. 511 (1971). The problem with statutes like RISFA, however, is that the award of damages is too minimal to provide a “stimulus to make it advantageous for the seller to follow [RISFA].” 2A Uniform Laws Annotated (1924) § 129, p. 181. The penalty clause is thus “of little value. . . . [I]n the case of the ordinary conditional sale a threat of absolute liability for one-quarter of the payments will not be very persuasive. If the part payments have been trifling in amount, an absolute liability for 25 percent of the payments will be of little importance.” Id., pp. 181-82.

“The Uniform Commercial Code’s drafters included the statutory penalty for consumer goods in Section 9-507 (1) because they believed that compensatory damages would not be a sufficient deterrent in the average consumer case. See [2 J. White & R. Summers, Uniform Commercial Code (3d Ed. 1988) § 27-18, p. 623]. They intended that the statute would provide the minimum recovery for consumers who prove that a secured party did not proceed in accordance with the Uniform Commercial Code. See 9 R. Anderson, Anderson on the Uniform Commercial Code § 9-507:21 (1985).” Davenport v. Chrysler Credit Corp., supra, 818 S.W.2d 31.

“The purpose of . . . [UCC § 9-507] is to encourage creditors to comply with all provisions of part 5 or face the consequences of noncompliance. We agree with the view that the drafters created a statutory penalty in UCC [§] 9-507 to ‘up the ante for those who would abuse the consumer’ because in most cases, compensatory damages are ‘an insufficient deterrent to creditor misbehavior in nickel and dime consumer transactions where such damage will amount to very little . . . .’ [2 J. White & R.. Summers, supra, § 27-18, p. 623].” Erdmann v. Rants, 442 N.W.2d 441, 443 (N.D. 1989). “The penalty evinces a strong policy by the UCC drafters and our Legislature that the best protection for consumers is creditor compliance with all of the default provisions of part 5. A flat penalty for noncompliance is the means chosen by the framers of the UCC and our Legislature to ensure that creditors take careful steps to comply with those default provisions.” Id., 444.

Under the facts of this case, the remedy afforded by the UCC is the only real deterrent. It is irrelevant that the penalty bears little or no relation to the actual loss. First City Bank—Farmers Branch v. Guex, 677 S.W.2d 25, 29 (Tex. 1984) (“[o]bviously the drafters of the Uniform Commercial Code intended . . . to penalize the secured party if the debtor suffered no losses or his losses were less that the statutory penalty”). The plaintiff’s actual damages under RISFA were based on the down payment and the three monthly payments that were made. According to the statutory formula, the referee awarded the plaintiff only $885.86. Imposing cumulative remedies for a violation of RISFA and the UCC obviously creates a greater incentive to comply with repossession laws. We therefore conclude that the plaintiff is entitled to damages under both statutory schemes and we remand the case for application of the proper statutory formula.

II

The plaintiff also asserts that the trial court should have concluded that the defendant’s conduct constituted a violation of CUTPA. In essence, she maintains that the defendant’s violation of the repossession statutes was an unfair trade practice that offended public policy. We disagree.

We recently had occasion to discuss the well established test for determining whether a particular act or practice violates CUTPA. “It is well settled that in determining whether [an act or] practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when [an act or] practice is unfair: (1) [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; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen]. Conaway v. Prestia, [191 Conn. 484, 492-93, 464 A.2d 847 (1983)], quoting FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244-45 n.5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972) .... McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 567-68, 473 A.2d 1185 (1984).

“All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. Statement of Basis and Purpose, Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures, 43 Fed. Reg. 59, 614, [and] 59,635 (1978). . . . Id., 569 n.15. Thus a violation of CUTPA may be established by showing either an actual deceptive practice; see, e.g., Sprayfoam, Inc. v. Durant’s Rental Centers, Inc., 39 Conn. Sup. 78, 468 A.2d 951 (1983); or a practice amounting to a violation of public policy. See, e.g., Sportmen’s Boating Corporation v. Hensley, [192 Conn. 747, 474 A.2d 780 (1984)]. Web Press Services Corporation v. New London Motors, Inc., [203 Conn. 342, 355, 525 A.2d 57 (1987)]. Furthermore, a party need not prove an intent to deceive to prevail under CUTPA. See id., 363 (knowledge of falsity, either constructive or actual, need not be proven to establish CUTPA violation). Cheshire Mortgage Service, Inc. v. Montes, [223 Conn. 80, 105-106, 612 A.2d 1130 (1992)].” (Internal quotation marks omitted.) Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 522-23, 646 A.2d 1289 (1994).

The referee found that the defendant had failed to comply with the notice provisions of RISFA. In our resolution of the first issue on appeal, we concluded that these same omissions amounted to a violation of the UCC. In resolving the CUTPA claim, the referee reviewed the statute and the “cigarette rule” to determine whether this lack of compliance constituted a CUTPA violation. The referee also examined the question of whether the defendant’s attempts to seek a deficiency judgment from the plaintiff, despite its lack of compliance with the repossession laws, amounted to an unfair trade practice.

The question of whether an action or practice can be the basis of a CUTPA action depends upon all the circumstances of the particular case. Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 242, 520 A.2d 1008 (1987). In her complaint, the plaintiff alleged that the defendant had violated various notice provisions of RISFA and the UCC and that, as a result, she was entitled to damages and counsel fees under CUTPA. The referee implicitly rejected this per se argument, and independently examined the testimony to decide whether the defendant’s conduct violated the established concept of fairness.

To the extent that the referee correctly interpreted the plaintiff’s bare allegations of a CUTPA violation as a per se claim, we agree with his rejection of it. When the legislature has intended to make the violation of a consumer statute an automatic violation of CUTPA, it has done so expressly. See, e.g., General Statutes § 20-427 (b) of the Home Improvement Act; General Statutes § 42-141 of the Home Solicitation Sales Act; see also General Statutes §§ 14-16c, 16a-22k, 16a-23a, 20-341y, 20-427, 20-457, 21-35h, 21a-222, 21a-404, 35-1, 36-435Z, 36-573, 38a-355, 42-103k, 42-103aa, 42-115r, 42-115t, 42-115u, 42-126C, 42-141, 42-232, 42-251. There is no such provision in RISFA or in the UCC. It is necessary, therefore, that we examine all the facts surrounding the defendant’s noncompliance, as found by the referee, in evaluating the threshold test for CUTPA recovery. In the absence of a motion to correct the report or an objection to its acceptance because the facts had been improperly found, we examine these facts solely to determine whether the referee’s findings were clearly erroneous. Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982).

The referee concluded that the defendant’s failure to comply with the pertinent notice provisions did not constitute an unfair collection practice. As predicate findings, the referee remarked upon the defendant’s lost records and files and sloppy accounting methods that led to its misrepresentation of the amount of the deficiency. The report filed by the referee contained a discussion of arguments by the defendant that “there was no fraud, deliberate deception or willful misconduct on its part.” Although the referee did not incorporate these exact conclusions in his report, he did find that the defendant had sent a demand letter to an outdated address and that because it had temporarily lost its file when it moved its dealership, it was unaware that the vehicle had been sold. The referee further found that upon locating its missing file, the defendant directed its attorney to notify the plaintiff that the vehicle had been sold, to credit the plaintiff with the fair market value of the vehicle and to correct the amount of the deficiency balance. Additionally, the referee entertained the defendant’s explanation for its failure to comply with RISFA and the UCC. The defendant argued that the repossession statutes were inapplicable because the plaintiff had not been a retail buyer and the vehicle had not been repossessed. Although he disagreed as a matter of law with the defendant’s interpretation of the pertinent terms, the referee did not find that the defendant had been acting in bad faith or that it had been disingenuous in making these arguments. On the basis of these factual underpinnings, the referee concluded that CUTPA had not been violated.

The plaintiff urges us nonetheless to hold that the defendant’s violation of RISFA and the UCC necessarily constituted a violation of CUTPA. The referee implicitly concluded, on the basis of his unchallenged factual findings, that the defendant’s statutory noncompliance was not, in fact, unfair, deceptive or oppressive. See Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, 230 Conn. 524; Gaynor v. Union Trust Co., supra, 216 Conn. 483. The repossession in issue appears to have been an isolated instance of misinterpretation by the defendant of its obligations due to the unique circumstances of this particular case as distinguished from unfair or deceptive acts or practices in the defendant’s trade or business. In light of the referee’s implicit finding that the defendant’s conduct was not in fact unfair, deceptive, or oppressive, we conclude that the plaintiff has not established her CUTPA claim.

Ill

Finally, the plaintiff claims that she is entitled to attorney’s fees under § 42-150bb. Because this issue was first raised in her objection to the referee’s report, the trial court properly denied the claim. Absent contractual or statutory authority, each party must pay its own attorney’s fees. Chrysler Corp. v. Maiocco, 209 Conn. 579, 590, 552 A.2d 1207 (1989). By its own terms, § 42-150bb applies only to contracts that contain a provision for reciprocal attorney’s fees. Neither the referee nor the trial court found that the contract in issue contained such a provision. The plaintiff concedes that the contract was not admitted into evidence, but argues, nevertheless, that the referee took judicial notice of its existence. Even if the referee could take judicial notice of the contract, a matter that we do not decide in this case, the mere existence of a contract, however, does not prove that the contract included a provision for receiving attorney’s fees.

The trial court may not find facts when those facts had not been placed before the referee. Wixner v. Wixner, 154 Conn. 703, 704, 223 A.2d 807 (1966); see Stamford v. Kovac, 229 Conn. 627, 633, 642 A.2d 1190 (1994). Although the plaintiff filed an objection to the referee’s report, the proper pleading by which to have asserted the claim that the contract in issue contained a reciprocal attorney’s fees clause was a motion to correct pursuant to Practice Book § 438. Under those circumstances, the plaintiff could have asked the referee to find the existence of a reciprocal attorney’s fees clause. Because she did not bring this matter to the attention of the referee at any time, there was no fact finding in connection with this issue upon which the trial court could have acted. The trial court could render judgment only upon the facts contained within the referee’s report. Practice Book § 443.

The judgment of the trial court is reversed in part and the case is remanded for further proceedings not inconsistent with this opinion.

In this opinion the other justices concurred.

       General Statutes § 42-98 provides: “foreclosure, (a) repossession. When the retail buyer is in default in the payment of any sum due under the retail instalment contract or instalment loan contract, or in the performance of any other condition which such contract requires him to perform, or in the performance of any promise, the breach of which is by such contract expressly made a ground for the retaking of the goods, the holder of the contract may retake possession thereof. Unless the goods can be retaken without breach of the peace, it shall be retaken by legal process, but nothing herein contained shall be construed to authorize a violation of the criminal law. In the case of repossession of any motor vehicle without the knowledge of the retail buyer, the local police department shall be notified of such repossession immediately thereafter. In the absence of a local police department or if the local police department cannot be reached for notification, the state police shall be promptly notified of such repossession.
      “(b) notice of intention to repossess. Not less than ten days prior to the retaking, the holder of such contract, if he so desires, may serve upon the retail buyer, personally or by registered or certified mail, a notice of intention to retake the goods on account of the buyer’s default. The notice shall state the default and the period at the end of which such goods will be retaken, and shall briefly and clearly state what the retail buyer’s rights under this subsection will be in case such goods are retaken. If the notice is so served and the buyer does not perform the conditions and provisions as to which he is in default before the day set for retaking, the holder of the contract may retake said goods and hold such subject to the provisions of subsections (d), (e), (f), (g) and (h) of this section regarding resale, but without any right of redemption.
      “(c) redemption. If the holder of such contract does not give the notice of intention to retake, described in subsection (b), he shall retain such goods for fifteen days after the retaking within the state in which they were located when retaken. During such period the retail buyer, upon payment or tender of the unaccelerated amount due under such contract at the time of retaking and interest, or upon performance or tender of performance of such other condition as may be named in such contract as precedent to the retail buyer’s continued possession of such goods, or upon performance or tender of performance of any other promise for the breach of which such goods were retaken, and upon payment of the actual and reasonable expenses of any retaking and storing, may redeem such goods and become entitled to take possession of the same and to continue in the performance of such contract as if no default had occurred. The holder of such contract shall within three days of the retaking furnish or mail, by registered or certified mail, to the last known address of the buyer a written statement of the unaccelerated sum due under such contract and the actual and reasonable expense of any retaking and storing. For failure to furnish or mail such statement as required by this section, the holder of the contract shall forfeit the right to claim payment for the actual and reasonable expenses of retaking and storage, and also shall be liable for the actual damages suffered because of such failure. If such goods are perishable so that retention for fifteen days as herein prescribed would result in their destruction or substantial injury, the provisions of this subsection shall not apply and the holder of the contract may resell the goods immediately upon such retaking.
      “(d) compulsory resale. If the retail buyer does not redeem such goods within fifteen days after the holder of the contract has retaken possession, the holder of the contract shall sell such goods at public or private sale which sale may be held not less than fifteen days and shall be held not more than one hundred eighty days after the retaking. When the holder of the contract retakes possession by legal process, and an answer is interposed, the holder of the contract may, at his election, hold such retaken goods for a period not to exceed thirty days after the entry of final judgment by a court of competent jurisdiction entitling the holder of the contract to possession of such goods before holding such resale. The holder of the contract shall give the retail buyer not less than ten days’ written notice of the time and place of any public sale, or the time after which any private sale or other intended disposition is to be made, either personally or by registered mail or by certified mail receipted for on mailing directed to the retail buyer at his last-known place of business or residence. The holder of the contract may bid for such goods at any public sale. The proceeds of the resale shall be considered to be either the amount paid for such goods at such sale or the fair cash retail market value of such goods at the time of repossession, whichever is the greater, except as otherwise provided in subsection (g) of this section.
      “(e) proceeds OF resale. Proceeds of the resale shall be applied (1) to the payment of the actual and reasonable expenses thereof, (2) to the payment of the actual and reasonable expenses of any retaking and storing of said goods, (3) to the satisfaction of the balance due under the contract. Within thirty days of the resale, the holder of the contract shall give the retail buyer a written statement itemizing the disposition of the proceeds. Any sum remaining after the satisfaction of such claims shall be paid to the retail buyer.
      “(f) deficiency on resale. Notwithstanding that the proceeds of the resale are not sufficient to defray the actual and reasonable expenses thereof, and also such actual and reasonable expenses of any retaking and storing of such goods and the balance due under the contract, the holder of the contract may not recover the deficiency from the retail buyer or any surety or guarantor for him, or from any one who has succeeded to the obligations of such retail buyer, except as provided in subsection (g) of this section.
      “(g) fair market value. If the goods retaken is a motor vehicle the aggregate cash price of which was more than two thousand dollars, the prima facie fair market value of such motor vehicle shall be one-half of the sum of the average trade-in value plus the average retail value of such motor vehicle as stated in the National Automobile Dealers Association Used Car Guide, Eastern Edition, as of the date of repossession. In the event that the value of such motor vehicle is not stated in such publication, then the fair market value at retail minus the reasonable costs of resale shall be determined by the court. The prima facie evidence of fair market value of such motor vehicle so determined may be rebutted only by direct in-court testimony. If such value of the motor vehicle is less than the balance due under the contract, plus the actual and reasonable expenses of the retaking of possession, the holder of the contract may recover from the retail buyer, or from anyone who has succeeded to his obligations, as a deficiency, the amount by which such liability exceeds such fair market value, as defined in this subsection. If the actual resale price received by the holder exceeds such fair market value, as defined in this subsection, the actual resale price shall govern.
      “(h) election OF remedies. After the holder retakes possession as provided in subsection (a), or if the holder obtains a prejudgment remedy against the goods under chapter 903a, the retail buyer or anyone who has succeeded to his obligations shall not be liable for any balance due, except to the extent permitted by subsection (g) of this section. The holder may seek a monetary judgment on the contract against the buyer unless the goods have been repossessed, with or without judicial process. Goods purchased under the contract shall not be executed upon to satisfy such judgment. When such judgment becomes final, the holder’s security interest in the goods shall be extinguished. If the contract covers a retail sale of a motor vehicle required to be registered, the holder shall comply with section 14-188.
      “(i) RECOVERY OF part payments. If the holder of the contract fails to comply with the provisions of subsections (c), (d), (e), (f), (g) and (h), after retaking the goods, the retail buyer may recover from the holder of the contract his actual damages, if any, and in no event less than one-fourth of the sum of all payments which have been made under the contract.
      “(j) WAIVER of STATUTORY protection. No act or agreement of the retail buyer before or at the time of the making of a retail instalment contract or instalment loan contract nor any agreement or statement by the retail buyer in such contract shall constitute a valid waiver of the provisions of subsections (c), (d), (e), (f), (g), (h) and (i).
      “(k) LOSS. After the delivery of the goods to the retail buyer and prior to any retaking thereof by the holder of the contract, the risk of injury and loss shall rest upon the retail buyer.”

       General Statutes § 42a-9-504 provides: “secured party’s right to DISPOSE OF COLLATERAL AFTER DEFAULT; EFFECT OF DISPOSITION. (1) A secured party after default may sell, lease or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing. Any sale of goods is subject to article 2. The proceeds of disposition shall be applied in the order following to (a) the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing and the like and, to the extent provided for in the agreement and not prohibited by law, the reasonable attorneys’ fees and legal expenses incurred by the secured party; (b) the satisfaction of indebtedness secured by the security interest under which the disposition is made; (c) the satisfaction of indebtedness secured by any subordinate security interest in the collateral if written notification of demand therefor is received before distribution of the proceeds is completed. If requested by the secured party, the holder of a subordinate security interest must seasonably furnish reasonable proof of his interest, and unless he does so, the secured party need not comply with his demand.
      “(2) If the security interest secures an indebtedness, the secured party must account to the debtor for any surplus and, unless otherwise agreed, the debtor is liable for any deficiency; but if the underlying transaction was a sale of accounts or chattel paper, the debtor is entitled to any surplus or is liable for any deficiency only if the security agreement so provides.
      “(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. In the case of consumer goods no other notification need be sent. In other cases notification shall be sent to any other secured party from whom the secured party has received, before sending his notification to the debtor or before the debtor’s renunciation of his rights, written notice of a claim of an interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale.
      “(4) When collateral is disposed of by a secured party after default, the disposition transfers to a purchaser for value all of the debtor’s rights therein, discharges the security interest under which it is made and any security interest or lien subordinate thereto. The purchaser takes free of all such rights and interests even though the secured party fails to comply with the requirements of this part or of any judicial proceedings (a) in the case of a public sale, if the purchaser has no knowledge of any defects in the sale and if he does not buy in collusion with the secured party, other bidders or the person conducting the sale; or (b) in any other case, if the purchaser acts in good faith.
      “(5) A person who is liable to a secured party under a guaranty, endorsement, repurchase agreement or the like and who receives a transfer of collateral from the secured party or is subrogated to his rights has thereafter the rights and duties of the secured party. Such a transfer of collateral is not a sale or disposition of the collateral under this article.”

       General Statutes § 42-110b provides: “unfair trade practices prohibited. LEGISLATIVE INTENT, (a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.
      “(b) It is the intent of the legislature that in construing subsection (a) of this section, the commissioner and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5 (a) (1) of the Federal Trade Commission Act (15 U.S.C. 45 (a) (1)), as from time to time amended.
      “(c) The commissioner may, in accordance with chapter 54, establish by regulation acts, practices or methods which shall be deemed to be unfair or deceptive in violation of subsection (a) of this section. Such regulations shall not be inconsistent with the rules, regulations and decisions of the federal trade commission and the federal courts in interpreting the provisions of the Federal Trade Commission Act.
      “(d) It is the intention of the legislature that this chapter be remedial and be so construed.”

       General Statutes § 36-243b provides: “prohibited acts. No creditor shall use any abusive, harassing, fraudulent, deceptive or misleading representation, device or practice to collect or attempt to collect any debt.”

       The defendant sought permission to file an amended answer and counterclaim after the close of evidence. The attorney trial referee denied permission and concluded that it was not necessary for a complete resolution of the matter. The defendant has never challenged this ruling.

       At the time in question, Practice Book § 430 provided: “In addition to matters required to be referred to a trial referee, the judicial authority may refer any civil nonjury case or, with the written consent of the parties or their attorneys, any civil jury case, pending before such court, in which the issues have been closed, to a trial referee, who shall have and exercise the powers of the superior court in respect to trial, judgment and appeal in such case. Any case referred to a trial referee shall be deemed to have been referred for all further proceedings and judgment, including matters pertaining to any appeal therefrom, unless otherwise ordered before or after the reference. The court may also refer to a trial referee any motion for summary judgment and any other pretrial matter in any civil nonjury or civil jury case.”

       The retail instalment contract identified Dawn Jacobs as the cobuyer and her husband, Jay Jacobs, as the buyer. The referee found that only Jay Jacobs took title to and registered the vehicle.

       See General Statutes § 42-98 (g) for the method of calculating the fair market value based upon the National Automobile Dealers Association Used Car Guide, Eastern Edition.

       The record does not explicitly disclose how much the plaintiff owed the defendant in unpaid instalments. The parties agreed, however, that the contract, executed in October, 1988, called for monthly payments of $314.48 and that by May, 1989, the plaintiff had made only three monthly payments.

       The plaintiff moved several times during the period that these events transpired. She lived at one address when she purchased the vehicle, at another when she returned it, and at a third at the time of the resale.

       General Statutes § 42-83 (3) (h) provides: “ ‘Retail buyer’ means a person who buys or agrees to buy one or more articles of goods from a retail seller not for the purpose of resale or lease to others in the course of business and who executes a retail instalment contract or an instalment loan contract in connection therewith.”

       The amount of the damages awarded pursuant to the formula as provided by § 42-98 (i) is not challenged in this appeal.

       At the time in question, Practice Book § 440 provided: “A party may file objections to the acceptance of a report on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the committee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted.
      “If an objection raises an issue of fact the determination of which may require the consideration of matters not appearing in the report or stenographic notes of proceedings before the committee, the adverse party shall, within two weeks after the filing of the objection, plead to it by a motion to strike, answer or other proper pleading.”

       General Statutes § 42-150bb provides: “attorney’s fees in action based on consumer contract or lease. Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorney’s fee of the commercial party to be paid by the consumer, an attorney’s fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease. Except as hereinafter provided, the size of the attorney’s fee awarded to the consumer shall be based as far as practicable upon the terms governing the size of the fee for the commercial party. No attorney’s fee shall be awarded to a commercial party who is represented by its salaried employee. In any action in which the consumer is entitled to an attorney’s fee under this section and in which the commercial party is represented by its salaried employee, the attorney’s fee awarded to the consumer shall be in a reasonable amount regardless of the size of the fee provided in the contract or lease for either party. For the purposes of this section, ‘commercial party’ means the seller, creditor, lessor or assignee of any of them, and ‘consumer’ means the buyer, debtor, lessee or personal representative of any of them. The provisions of this section shall apply only to contracts or leases in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes.”

       The trial court’s denial of the CCPA claim has not been appealed, and we do not address it here.

       The defendant first contends that the referee failed to find a violation of the UCC. We disagree. Although the requirements of § 42a-9-504 are more general than those set forth in § 42-98, the record shows a total absence of any notification as to the time and place of sale or other disposition of the vehicle. This case does not present an issue as to whether the notice complied with the specific requirements of RISFA or whether it violated the relevant portions of the UCC. See Gaynor v. Union Trust Co., 216 Conn. 458, 582 A.2d 190 (1990). Any issue of accuracy of the notice regarding the plaintiff’s right to redeem, etc. is not before us because the defendant failed to provide the plaintiff any notice at all. In light of this undisputed fact, implicit in the referee’s specific findings of fact outlining all the various ways in which the more detailed notice provisions of RISFA had been violated is the referee’s conclusion that the general provisions of the UCC equally had been ignored by the defendant. This finding, supported by the uncontested evidence that no notification of sale or other disposition had been provided, was a proper exercise of the referee’s discretion. Practice Book § 434; Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 636, 646 A.2d 772 (1994) (finding of fact is clearly erroneous only when there is no evidence in record to support it); Stamford v. Kovac, 229 Conn. 627, 630, 642 A.2d 1190 (1994) (trial referee is finder of fact); State v. Damon, 214 Conn. 146, 154, 570 A.2d 700, cert. denied, 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 40 (1990) (finding of fact will not be overturned unless clearly erroneous); All American Pools, Inc. v. Lato, 20 Conn. App. 625, 627, 569 A.2d 562 (1990).

       The Connecticut and Delaware Uniform Commercial Codes are identical with respect to the statutes cited here.

       Section 9-507 (1) of the Delaware UCC gives the debtor a right to recover from a seemed party any loss caused by a failure to comply with the provisions of the code regarding the disposal of collateral and if the collateral is consumer goods, minimum damages are provided for.

       We recognize that the “absolute bar rule” is a “defensive” recourse that prevents a creditor from taking action while RISFA provides an “offensive” remedy that awards a debtor damages against an errant creditor. This distinction played no role in the Delaware court’s treatment of the issue of whether the remedy provision of § 9-507 was exclusive.

       The trial court relied on the phrase in § 42a-9-203 (4), that “[fjailure to comply with any applicable statute has only the effect which is specified therein,” to limit the plaintiffs remedy to § 42-98 (i). Provisions of regulatory statutes covering the field of consumer finance, such as RISFA, prevail over article 9 of the UCC in case of conflict. The last sentence of § 42a-9-203 (4) was added “to make clear that no doctrine of total voidness for illegality is intended: failure to comply with the applicable regulatory statute has whatever effect may be specified in that statute, but no more.” General Statutes Ann. § 42a-9-203, comment 6 (1990). Therefore, when a conflict exists, the applicable regulatory statute, such as RISFA, will dictate the consequences that may flow from its violation. Because we have decided that no conflict exists, the limiting provision is inapplicable.

       Following the allegations of the defendant’s failure to comply with the various notice provisions of RISFA and the UCC, the complaint set forth the following CUTPA claim: “Plaintiff seeks . . . nominal actual and substantial punitive damages and attorneys fees under the Unfair Trade Practices Act, C.G.S. § 42-110a, the Creditors’ Collection Practices Act, C.G.S. § 36-243a

       See footnote 25 for Practice Book § 438 and footnote 13 for Practice Book § 440.
      Although the plaintiff filed an objection to the referee’s report, she did not challenge his factual findings. The pertinent claim contained in the objection is that the referee “[ejrred in concluding that the complete failure to comply with repossession laws, or violations of the Creditor’s Collection Practices Act, are not unfair or deceptive practices within the Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110a, since defendant’s intent vel non is not an element of a CUTPA violation.” In her brief to this court, the plaintiff claims that the defendant’s failure to comply with the pertinent notice provisions “could not have been made in good faith.” In order to be reviewed, that argument first should have been made in her objection or in a motion to correct. Garofalo v. Argraves, 147 Conn. 685, 687, 166 A.2d 158 (1960).

       The trial court accepted the referee’s implicit factual finding that the defendant’s noncompliance with the notice requirements of RISFA and the UCC was the result of a good faith mistake and therefore did not constitute fraud, deliberate deception or wilful misconduct. We recognize, however, that CUTPA prohibits unfair or deceptive trade practices without requiring proof of intent to deceive, to defraud or to mislead. See Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 158, 645 A.2d 505 (1994), and cases cited therein. Therefore, the defendant’s lack of such scienter, alone, does not rescue it from CUTPA’s clutches. Nevertheless, that the defendant acted in good faith does not necessarily mean that its conduct was merely a technical or inadvertent violation of RISFA or the UCC. There may indeed be circumstances when good faith statutory noncompliance sufficiently offends public policy as to constitute a CUTPA violation. Because the parties in this case have not asked specifically for this court to decide the role of good faith and bad faith in a CUTPA case, we leave that discussion for another day.

       “The doctrine of judicial notice excuses the party having the burden of establishing a fact from introducing formal proof of the fact. Judicial notice takes the place of proof. Beardsley v. Irving, 81 Conn. 489, 491, 71 A. 580 (1909). A matter that may be the subject of judicial notice is one that is not subject to argument because it is already known to the court or its knowledge is easily accessible to the court, and consequently it is unnecessary and wasteful of time to require evidence of it. State v. Tomanelli, 153 Conn. 365, 368, 216 A.2d 625 (1966).” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 6.1.1.

       Practice Book § 438 provides: “If either party desires to have the report or the finding corrected by striking out any of the facts found, or by adding further facts, or by stating the claims of the parties made before the committee, or by setting forth rulings upon evidence or other rulings of the committee, he shall within two weeks after the filing of the report or finding file with the court a motion to correct setting forth the changes and additions desired by him. He shall accompany the motion with a brief statement of the grounds of each correction asked, with suitable references to the testimony. The file shall then be returned to the committee for consideration of the motion to correct. As soon as practicable the committee shall file with the court the motion to correct, together with his decision thereon.”

       At the time in question, Practice Book § 443 provided: “The court shall render such judgment as the law requires upon the facts in the report as it may be corrected. If the court finds that the committee has materially erred in his rulings or that by reason of material corrections in his findings the basis of the report is subverted or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another committee for a new trial or revoke the reference and leave the case to be disposed of in court.
      “The court may correct a report at any time before judgment upon the written stipulation of the parties or it may upon its own motion add a fact which is admitted or undisputed or strike out a fact improperly found.”