Burkert v. Petrol Plus of Naugatuck, Inc.

497 A.2d 1027, 5 Conn. App. 296, 1985 Conn. App. LEXIS 1142
CourtConnecticut Appellate Court
DecidedSeptember 17, 1985
Docket2987
StatusPublished
Cited by19 cases

This text of 497 A.2d 1027 (Burkert v. Petrol Plus of Naugatuck, Inc.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burkert v. Petrol Plus of Naugatuck, Inc., 497 A.2d 1027, 5 Conn. App. 296, 1985 Conn. App. LEXIS 1142 (Colo. Ct. App. 1985).

Opinion

Spallone, J.

This is an appeal by the defendant, Petrol Plus of Naugatuck, Inc., from an order granting the plaintiffs a prejudgment remedy in an amount which included past and future damages.

The plaintiffs, all of whom are engaged in the business of servicing, maintaining and repairing automobile transmissions, brought this action against the defendant Petrol Plus of Naugatuck, Inc., which supplied them with defective automatic transmission fluid, and the defendant Atlantic Coast Oil Company, which supplied the product to Petrol Plus of Naugatuck, Inc.1 The plaintiffs purchased approximately 2200 gallons of the fluid and used it in approximately 1076 vehicles before being informed by the defendant that it was defective.2 The plaintiffs seek damages in this action for losses sustained in the repair or replacement of automatic transmissions or parts thereof; for loss of goodwill; and for fraud. Subsequent to the commencement of the action, the plaintiffs applied for a prejudgment remedy in the amount of $350,000.

At the prejudgment remedy hearing, the plaintiffs presented evidence that they had repaired 546 of the 1076 vehicles in which the transmission fluid had been used. They also presented evidence of the projected cost [298]*298of repairing the outstanding vehicles. The court found that the total cost of the repairs which had already been made amounted to $115,777. The court also found that the plaintiffs had established approximately $118,000 in possible future expenses. It stated that “fifty percent of that one hundred and eighteen thousand dollars should be added to the sum that has actually been expended, which would make the total sum one hundred and seventy-five thousand dollars.” The court granted a prejudgment remedy in favor of the plaintiffs in the amount of $175,000.

In appealing from that order, the defendant argues that the trial court erred (1) in relying upon a defective affidavit; (2) in admitting into evidence copies of business records which were not made within a reasonable time of the transactions which they purported to represent; (3) in considering future damages when setting the amount of the prejudgment remedy; and (4) in granting the prejudgment remedy in the absence of any evidence of the plaintiffs’ actual damages.

Our examination of the record shows that the first issue which the defendant has raised, whether the court erred in accepting an allegedly defective affidavit, was not raised prior to this appeal. As an appellate court, we are not bound to consider claims of law not raised at trial, and no exceptional circumstances exist in this case which would now justify our consideration of this claim. Practice Book §§ 285A and 3063; Sands v. Sands, 188 Conn. 98, 106-107, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983); Northeast Electrical Contractors v. Udolf, 1 Conn. App. 169,171, 469 A.2d 419 (1984). This claim, moreover, was not included in the defendant’s preliminary statement of issues and, for that reason as well, will not be considered. Practice Book § 3063; Verrastro v. Sivertsen, 188 Conn. 213, 218, 438 A.2d 1344 (1982).

[299]*299The second claim of error which the defendant has raised is that the trial court erred in admitting into evidence alleged business records of the plaintiff, Trans-Co. of CT., Inc., doing business as Aamco Transmissions, when those records were neither originals nor made within a reasonable time of the transactions which they purported to represent. The defendant argues, first, that the service order forms were prepared in anticipation of litigation and not in the regular course of business, and second, that the copies were not made at the time of the transaction or within a reasonable time thereafter.

Reproductions of original documents are admissible under the business records exception to the hearsay rule if the conditions set forth in General Statutes § 52-180 (a) are satisfied. The trial court may determine, within the exercise of its discretion, whether those criteria have been met. Shuchman v. State Employees Retirement Commission, 1 Conn. App. 454, 457-58, 472 A.2d 1290 (1984). In making this determination, the statute should be liberally interpreted. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 388, 461 A.2d 422 (1983); Shuchman v. State Employees Retirement Commission, supra.

The evidence which the defendant claims was erroneously admitted consisted of photocopies of service orders showing what repairs had been done to particular vehicles. Alan C. Bardwell, the owner and operator of Trans-Co. of CT., Inc., testified that his manager would fill out the service orders at the end of each day or at the end of two or three days. Depending on the manager’s workload, the orders might be filled out up to a week and a half after the vehicles were brought in. Bardwell also testified that in the months preceding the hearing, the workload at his business had been heavier than usual because of the number of vehicles [300]*300brought in for repairs stemming from the defective transmission fluid. There was no testimony that the service orders were prepared, as the defendant claims, several months after the actual servicing of the vehicles nor was any evidence adduced that the documents were prepared in anticipation of litigation. Noting that the circumstances of the making of such records may be shown to affect their weight, but not their admissibility; General Statutes § 52-180 (b); we conclude that the trial court did not err in allowing the introduction of the records.

The third and fourth issues raised by the defendant challenge, more broadly, the basis on which the trial court granted the plaintiffs’ prejudgment remedy.3 In its third claim of error, the defendant argues that the trial court’s inclusion of future damages in the determination of the amount of the attachment was based upon conjecture and speculation. Its fourth issue is that the plaintiffs presented no evidence as to their actual damages.

We find no error as to either claim. The trial court’s role in acting upon a prejudgment remedy motion does not require “an authoritative determination of the merits of [the parties’] arguments and . . . evidence . . . .” Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984). The court need do no more than determine that there is probable cause to sustain the validity of the plaintiffs’ claim. General Statutes § 52-278 (a); Three S. Development Co. v. Santore, 193 Conn. 174, 176, 474 A.2d 795 (1984); [301]*301L. Suzio Concrete Co. v. Salafia, 3 Conn. App. 404, 406-407, 488 A.2d 1280 (1985).

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Bluebook (online)
497 A.2d 1027, 5 Conn. App. 296, 1985 Conn. App. LEXIS 1142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burkert-v-petrol-plus-of-naugatuck-inc-connappct-1985.