Finney v. Cameron's Auto Towing Repair

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
JOHN K. FINNEY v. CAMERON’S AUTO
TOWING REPAIR
(AC 39526)
Lavine, Sheldon and Elgo, Js.

Syllabus

The plaintiff sought to recover damages from the defendant towing company
for, inter alia, breach of contract in connection with the defendant’s
alleged failure to repair his motor vehicle, which had been towed to
the defendant’s vehicle storage facility following the plaintiff’s involve-
ment in a motor vehicle accident that rendered the vehicle inoperable.
Specifically, the plaintiff alleged, inter alia, that the defendant had failed
to give him a timely estimate for the repair of his towed vehicle, and
that he had delayed retrieving the vehicle from the defendant’s facility
because he had been falsely informed that the vehicle was being repaired.
Thereafter, the defendant filed a counterclaim in which it alleged that
it had a lien on the plaintiff’s vehicle for storage and towing charges
pursuant to the statute (§ 14-150 [g]) that pertains to motor vehicles
that are a menace to traffic or have been abandoned, and sought a
declaration of abandonment by the trial court, so that the vehicle could
be sold to satisfy the towing and storage charges. Subsequently, the
trial court rendered summary judgment in favor of the defendant on
the plaintiff’s complaint and on the defendant’s counterclaim, from
which the plaintiff appealed to this court. Held that the trial court
properly determined that the defendant was entitled to summary judg-
ment on the plaintiff’s complaint, as the defendant established that there
was no genuine issue of material fact as to its right to prevail on the
plaintiff’s claims that it breached its contract to repair his vehicle and
that the unpaid storage fees that accrued resulted from its delay in
giving the plaintiff an estimate of the cost to repair his vehicle and
alleged misrepresentation to the plaintiff that it was repairing his vehicle:
the defendant submitted an affidavit from its owner, which stated that
the owner had never agreed to repair the plaintiff’s vehicle and that the
plaintiff was free to pick up his vehicle at any time after he paid the
towing and storage fees, and, because the plaintiff failed to submit
countering affidavits or other evidence that contradicted that evidence,
the court was entitled to rely on those uncontradicted averments; never-
theless, the trial court improperly rendered summary judgment in favor
of the defendant on its counterclaim against the plaintiff because the
defendant failed to state any basis on which it was entitled to judgment
on the claim therein pleaded, as the defendant failed to recite the lan-
guage or requirements of § 14-150 (g), the statute pursuant to which it
claimed it was entitled to judgment on its counterclaim, nor did it argue
that it had satisfied those requirements, and subsection (a) of § 14-
150, pursuant to which it sought summary judgment declaring that the
plaintiff’s vehicle was abandoned, did not pertain to the plaintiff’s vehi-
cle, which was neither abandoned on any highway nor on the defendant’s
property without its consent, and, thus, the defendant’s memorandum
of law was devoid of any argument or analysis in support of its motion
for summary judgment on the counterclaim.
Argued October 19, 2017—officially released January 23, 2018

Procedural History

Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
defendant filed a counterclaim; thereafter, the court,
Wahla, J., granted the defendant’s motion for summary
judgment on the complaint and the counterclaim, and
rendered judgment thereon, from which the plaintiff
appealed to this court. Reversed in part; further pro-
ceedings.
John K. Finney, self-represented, the appellant
(plaintiff).
Edward W. Case, for the appellee (defendant).
Opinion

SHELDON, J. The plaintiff, John K. Finney, com-
menced this action alleging that the defendant, Cam-
eron’s Auto Towing Repair, breached its contract to
repair his vehicle. The defendant denied that it had
agreed to repair the plaintiff’s vehicle and filed a coun-
terclaim alleging that the plaintiff had failed to pay it
for the towing and storage of his vehicle, and, thus,
that he had abandoned it. The plaintiff appeals from
the summary judgment rendered in favor of the defen-
dant on his complaint and the defendant’s counterclaim.
We conclude that the trial court properly determined
that the defendant was entitled to summary judgment
on the plaintiff’s complaint because it established that
there was no genuine issue of material fact as to its right
to prevail on the plaintiff’s claim. We further conclude,
however, that the court erred in granting summary judg-
ment in favor of the defendant on its counterclaim
against the plaintiff because the defendant failed to
state any basis upon which it was entitled to judgment
on the claim therein pleaded, either in its motion for
summary judgment or in its supporting memorandum
of law. Accordingly, we affirm in part and reverse in
part the judgment of the trial court.
The following facts are undisputed. On November
12, 2015, the plaintiff was involved in a motor vehicle
accident that rendered his vehicle inoperable. At the
command of the Connecticut State Police, the plaintiff’s
vehicle was towed to the defendant’s vehicle storage
facility, where it remained. The plaintiff never paid the
defendant for towing his vehicle or for storing the vehi-
cle at its facility.
The self-represented plaintiff commenced this action
on February 1, 2016. In his complaint, he alleged that
the defendant had failed to give him a timely estimate
for the repair of his vehicle. The plaintiff claimed that,
ten days after the defendant towed his vehicle to its
facility, it gave him an oral estimate of the cost to repair
his vehicle, in the approximate amount of $867, which
he agreed to pay. The plaintiff further alleged that he
waited another ten days for the repairs to be completed,
but then was informed by the defendant that the ‘‘car
was up for abandonment.’’ On March 3, 2016, the plain-
tiff filed a revised complaint, in which he once again
claimed, inter alia, that the defendant had failed to give
him a ‘‘timely estimate’’ for the repair of his vehicle,
and that he had delayed retrieving the vehicle from the
defendant’s facility because he had been led to believe
that the vehicle was being repaired, when in fact, it
was not.1
On May 2, 2016, the defendant filed an answer and
special defenses to the plaintiff’s complaint. In its
answer, the defendant denied ‘‘any and all allegations
relating to fraud’’ that the plaintiff had made against it
and left the plaintiff to his proof as to all of his other
allegations of ‘‘wrongdoing.’’ By way of special
defenses, the defendant claimed that the plaintiff’s com-
plaint failed to state a claim upon which relief could
be granted and that the plaintiff had ‘‘failed to mitigate
his damages by failing, refusing and neglecting to pay
for the towing and storage of his vehicle and take pos-
session of the same in a timely manner.’’ The defendant
also filed a counterclaim in which it alleged, inter alia,
that: ‘‘Pursuant to [General Statutes] § 14-150 (g), the
[defendant] has a lien on the [plaintiff’s] vehicle for
storage and towing charges, and as a result seeks a
declaration of abandonment by [the] court, so that the
vehicle can be sold to satisfy the towing and storage
charges.’’
The next day, on May 3, 2016, the defendant filed a
motion for summary judgment and a supporting memo-
randum of law, on the ground that ‘‘there is no dispute
as to any material fact regarding the plaintiff’s claim in
this action.’’ The plaintiff did not file a written objection
to the motion, or any affidavits or other documentation
in opposition thereto. Although the plaintiff was present
in court the first time the defendant’s motion for sum-
mary judgment appeared on the short calendar, neither
the defendant nor its counsel was present, and so the
motion was marked off. The next time the motion
appeared on the short calendar, on June 6, 2016, the
plaintiff did not appear, but the hearing on the motion
proceeded, with the defendant, through its counsel, pre-
senting the only argument.
By way of an order dated July 29, 2016, the court
rendered summary judgment in favor of the defendant
on the plaintiff’s complaint and on the defendant’s coun-
terclaim. In its order, the court stated: ‘‘After the defen-
dant came into possession of the plaintiff’s vehicle,
the defendant advised [the] plaintiff of the towing and
storage charges. The plaintiff had not paid the storage
charges or the towing charges as of the day of the
hearing [on the defendant’s motion for summary judg-
ment]. The plaintiff did not have collision insurance on
the day of [his motor vehicle accident] and had left his
vehicle with the defendant at its storage facility. The
defendant filed a counterclaim.’’ The court thereafter
ruled on the motion as follows: ‘‘For the foregoing rea-
sons the court concludes [that] there are no genuine
issues of material fact and [that] there is no showing
of wrongful conduct alleged as to the defendant. There-
fore, the court grants summary judgment as to the plain-
tiff’s complaint on all charges and grants the defendant’s
counterclaim, [pursuant to] § 14-150 (a).’’ This appeal
followed.
‘‘Our review of the trial court’s decision to grant a
motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) Brusby v. Metropolitan Dis-
trict, 160 Conn. App. 638, 646, 127 A.3d 257 (2015).
Practice Book § 17-49 provides that ‘‘[summary] judg-
ment . . . shall be rendered forthwith if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.’’
‘‘In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable
to the nonmoving party. . . . Although the party seek-
ing summary judgment has the burden of showing the
nonexistence of any material fact . . . a party oppos-
ing summary judgment must substantiate its adverse
claim by showing that there is a genuine issue of mate-
rial fact together with the evidence disclosing the exis-
tence of such an issue. . . . It is not enough . . . for
the opposing party merely to assert the existence of
such a disputed issue. . . . Mere assertions of fact,
whether contained in a complaint or in a brief, are
insufficient to establish the existence of a material fact
and, therefore, cannot refute evidence properly pre-
sented to the court [in support of a motion for summary
judgment]. . . .
‘‘As a general rule, then, [w]hen a motion for summary
judgment is filed and supported by affidavits and other
documents, an adverse party, by affidavit or as other-
wise provided by . . . [the rules of practice], must set
forth specific facts showing that there is a genuine issue
for trial, and if he does not so respond, summary judg-
ment shall be entered against him. . . . Requiring the
nonmovant to produce such evidence does not shift the
burden of proof. Rather, it ensures that the nonmovant
has not raised a specious issue for the sole purpose of
forcing the case to trial.’’ (Emphasis in original; internal
quotation marks omitted.) Marsala v. Yale-New Haven
Hospital, Inc., 166 Conn. App. 432, 458–59, 142 A.3d
316 (2016). In other words, the failure of a nonmoving
party to controvert by affidavit or otherwise any of the
facts set forth in an affidavit filed by the movant in
support of summary judgment entitles the court in
deciding the summary judgment motion to rely upon
those facts as stated. Fogarty v. Rashaw, 193 Conn.
442, 444–45, 476 A.2d 582 (1984).
The plaintiff first challenges the summary judgment
rendered in favor of the defendant on his complaint. It
is undisputed that the plaintiff failed to pay the towing
and storages fees he owed to the defendant. He claims,
however, that the storage fees that accrued resulted
from the defendant’s delay in giving him an estimate
of the cost to repair his vehicle and misrepresentation
to him that it was repairing his car after it had agreed
to do so. Attached to its motion for summary judgment,
the defendant submitted an affidavit of its owner, Salva-
tore Sena, Jr., who averred, inter alia, that he had never
agreed to repair the plaintiff’s vehicle and that the plain-
tiff had been free to pick up his vehicle at any time
after he paid the towing and storage fees. The plaintiff,
having failed to file an objection to the defendant’s
motion, much less any countering affidavits or other
evidence in opposition thereto, did not refute any of
the averments in Sena’s affidavit. Because the plaintiff
failed to provide any evidentiary support for his claim
that the defendant had agreed to repair his vehicle and
to provide him an estimate of the cost of such repairs,
the court was entitled to rely on Sena’s uncontradicted
averments that the defendant had never agreed with the
plaintiff to make or estimate the costs of such repairs.
In the absence of any genuine issue of material fact as
to the formation of such an agreement between the
parties, the court properly determined that the defen-
dant was entitled to judgment on his claim of breach
of contract as a matter of law.
The court also granted summary judgment on the
defendant’s counterclaim. The defendant did not spec-
ify in its motion for summary judgment that it was
seeking judgment on the counterclaim. Instead, in the
memorandum of law attached to its motion, it set forth
only the factual basis for its argument that there was
no genuine issue of material fact as to the claim of
breach of contract set forth in the plaintiff’s complaint.
As to its own counterclaim, by contrast, the defendant
simply described the claim as follows: ‘‘The defendant
has filed a counterclaim seeking a declaration of aban-
donment by [the] court due to the plaintiff’s failure to
pay for the towing and storage charges or to otherwise
make arrangements to pay for the same.’’ Thereafter,
in the last paragraph of its memorandum of law, the
defendant merely asked the court, in conclusory fash-
ion, to grant summary judgment in its favor on the
plaintiff’s complaint and ‘‘order the plaintiff’s vehicle
abandoned pursuant to [§] 14-150 (a), so that the defen-
dant can sell said vehicle to recover [its] losses for
towing and storage charges the plaintiff failed to pay.’’
The defendant did not recite the language or require-
ments of the statute pursuant to which it claimed it
was entitled to judgment on its counterclaim; nor did it
argue that it had satisfied those statutory requirements,
and thus become entitled to judgment on the counter-
claim as a matter of law. Section 14-150 (a), the statute
pursuant to which the defendant sought summary judg-
ment declaring that the plaintiff’s vehicle was aban-
doned, and the statute cited by the trial court in granting
the defendant’s motion for summary judgment, pro-
vides as follows: ‘‘Any person who abandons any motor
vehicle within the limits of any highway or upon prop-
erty other than such person’s own without the consent
of the owner thereof for a period longer than twenty-
four hours shall have committed an infraction and shall
be fined not less than eighty-five dollars. The last owner
of record of a motor vehicle found abandoned, as shown
by the files of the Department of Motor Vehicles, shall
be deemed prima facie to have been the owner of such
motor vehicle at the time it was abandoned and the
person who abandoned the same or caused or procured
its abandonment.’’ So written, § 14-150 (a) does not
pertain to the plaintiff’s vehicle, which was neither
abandoned on any highway nor on the defendant’s prop-
erty without its consent. Hence, although the defendant
may be entitled to judgment under a different subsec-
tion of § 14-150, particularly subsection (g),2 as it
claimed in its counterclaim, its memorandum of law is
devoid of any argument or analysis in support of its
motion for summary judgment on the counterclaim.
The defendant, thus, failed to show that it was entitled
to judgment on the counterclaim as a matter of law.
The judgment on the complaint is affirmed. The judg-
ment on the counterclaim is reversed and the case is
remanded for further proceedings according to law.
In this opinion the other judges concurred.
1
Attached to his revised complaint, the plaintiff submitted a document
entitled, ‘‘Laws that were violated,’’ and lists the following: abandoned motor
vehicles; larceny by extortion; fraud and false statements, including fraudu-
lent/intentional misrepresentation, intentional negligence, failure to warn,
and false information and hoaxes; tortious interference; unsworn declaration
under penalty of perjury; general admissibility of relevant evidence; perjury;
accessory after the fact; punitive damages. Because the plaintiff merely set
forth these alleged violations in list form, as an attachment to his complaint,
they were not properly pleaded in his complaint.
2
General Statutes § 14-150 (g) provides: ‘‘The owner or keeper of any
garage or other place where such motor vehicle is stored shall have a lien
upon the same for such owner’s or keeper’s towing or storage charges, or
both, that result from towing or storage under this section. Unless title has
already vested in the municipality pursuant to subsection (d) of this section,
if the current market value of such motor vehicle as determined in good
faith by such owner or keeper does not exceed one thousand five hundred
dollars and such motor vehicle has been stored for a period of not less than
fifteen days, such owner or keeper may, unless an application filed by the
owner pursuant to subsection (e) of this section is pending and the owner
of such motor vehicle has notified such owner or keeper that such applica-
tion for hearing has been filed, sell the same for storage and towing charges
owed thereon, provided a notice of intent to sell shall be sent to the commis-
sioner, the owner and any lienholder of record of such motor vehicle, if
known, five days before the sale of such vehicle. If the current market value
of such motor vehicle as determined in good faith by such owner or keeper
exceeds one thousand five hundred dollars and if such motor vehicle has
been so stored for a period of forty-five days, such owner or keeper shall,
unless an application filed by the owner pursuant to subsection (e) of this
section is pending and the owner of such motor vehicle has notified such
owner or keeper that such application for hearing has been filed, sell the
same at public auction for cash, at such owner’s or keeper’s place of business,
and apply the avails of such sale toward the payment of such owner’s or
keeper’s charges and the payment of any debt or obligation incurred by the
officer who placed the same in storage, provided if the last place of abode
of the owner of such motor vehicle is known to or may be ascertained by
such garage owner or keeper by the exercise of reasonable diligence, notice
of the time and place of sale shall be given to such owner and any lienholder
of record by mailing such notice to such owner by certified mail, return
receipt requested, at such last usual place of abode, at least five days before
the time of sale. At any public auction held pursuant to this subsection,
such garage owner or keeper may set a minimum bid equal to the amount
of such owner’s or keeper’s charges and obligations with respect to the tow
and storage of the motor vehicle. If no such bid is made, such owner or
keeper may sell or dispose of such vehicle.’’