ABC Printing, Inc. v. A A Office Systems.

2007 Ct. Sup. 12473
No. CV 06 5005501Connecticut Superior Court Judicial District of New Haven at New Haven
July 11, 2007

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
ANGELA C. ROBINSON, J.

Is a scan a click? Is a meter a scan? Is a copy worth more than a scan? These are just a few of the many perplexing and contested issues related to copying machines, that the parties presented to this court during the one-day court-side civil trial. The plaintiff, ABC Printing, Inc., through its President, Sal Vidala, claims that the defendant, A A Office Systems, Inc. breached its contract with the plaintiff; violated that Connecticut Unfair Trade Act (CUTPA); and/or was unjustly enriched because the defendant billed the plaintiff for two “clicks” or “scans” for 11 x 17 sized paper, rather than one “click” or “scan.”

In essence, the plaintiff’s claim is that the defendant overcharged it. The dispute centers around what the word “scan” means in an agreement. The plaintiff claims that according to the negotiations, the defendant was to charge the plaintiff for one “scan” for non-color copies of 11 x 17 piece of paper, whereas, in reality the defendant charged the plaintiff for two “scans” for non-color copies of an 11 x 17 piece of paper.

The defendant counters that a scan refers only to the “click” or meter on the machine. The defendant claims that it is standard for machines to “click” one time for a non-color copy of an 8 1/2 x 11 pieces of paper; and two times for non-color copy of an 11 x 17 pieces of paper. Further, the defendant argues that no one from its company told the plaintiff that a non-color copy of an 11 x 17 piece of paper would result in only one scan.

The contract, itself, refers only to the word “scan,” but does not specifically define what that term means. After a court-side trial in which the parties presented testimony and exhibits, the court finds the following facts.

1. The plaintiff, ABC Printing, is a Printing Shop.

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2. The plaintiff ABC Printing was a family-owned and operated business.
3. Sal Vidala was initially employed by the plaintiff and then he became the President and owner of the company, succeeding his father.
4. Before 2002, ABC Printing was able to do color printing, but not color copying.
5. On September 23, 2002, Mr. Vidala entered into a Copier CPC Maintenance Agreement with the defendant for a color copier.
6. The September 23, 2002 contract was the first contract Mr. Vidala entered as the President of ABC Printing.
7. Scott Parmele, an employee of A A Office Systems, Inc., negotiated the contract with Mr. Vidala on behalf of the defendant.
8. The contract specified that A A Office Systems would provide a color photo-copying machine to ABC Printing; and would charge ABC Printing $.016 per Black Scan; and $139 per color scan.
9. The word scan was handwritten on the form contract, replacing the crossed out word, “copy.”[1]
10. Mr. Vidala believed that a per scan charge would cost his company less than a per copy charge because he believed that the color copy CT Page 12475 machine would scan one time for black copies whether the page size was 8 1/2 x 11 or 11 x 17; whereas a per copy contract would charge more for 11 x 17 copies than for 8 1/2 x 11 copies.
11. During the period of time covered by the contract, the plaintiff had two different machines provided by the defendant.
12. The machines utilized by the plaintiff scanned one time for each non-color copy of an 8 1/2 x 11 page; and two times for an 11 x 17 non-color copy.
13. The default selling on the color copy machines provided to the plaintiff set the machines to scan one time for non-color 8 1/2 x 11 copies and two times for non-color 11 x 17 copies.
14. The machines utilized by the plaintiff scanned between 2 — 4 times for color copies for an 8 1/2 x 11 page.
15. A meter on the color copy machines measured the number of scans made by the machine.
16. Employees/agents of the plaintiff recorded the numbers on the meter and reported the readings to the defendant.
17. The defendant issued invoices to the plaintiff based upon the meter readings it received from the plaintiff
18. The first copy machine was replaced by the defendant, with the second copy machine.

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19. The plaintiff paid all invoices it was sent by the defendant.
20. Mr. Vidala came to suspect that the defendant was over-billing when he noted that the second copy machine was “clicking” twice for each non-color 11 x 17 copy.
21. Mr. Vidala believed that the first machine only “clicked” one time for each 11 x 17 non-color copy.
22. Mr. Vidala does not know how much the defendant over-billed the plaintiff.
23. Mr. Vidala guessed that 99% of the copies made by ABC Printing were on 11 x 17 sized paper.

The plaintiff cannot prevail on its claims because it failed to establish that the defendant breached the terms of the Agreement and failed to establish what damages it sustained; it failed to prove that the defendant violated CUTPA; and it failed to establish that the defendant was unjustly enriched.

“The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.” Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A 2d 1236 (2006).

There is no dispute that the parties entered into an agreement. Mr. Vidala was probably confused about the meaning of the term “scan,” in that agreement. But, his probable confusion does not render the term ambiguous; and the evidence failed to establish that any confusion on the part of Mr. Vidala resulted from misdeeds by the defendant.

The contract required that the defendant provide the plaintiff with a color copier. The contract further required the plaintiff to pay for each scan on that copier. The evidence established that the defendant furnished color photo-copying machine(s) to the plaintiff as required by CT Page 12477 the contract. The evidence further established that the defendant issued invoices to the plaintiff based upon the scans that were recorded on the copying machines. Finally, there is no dispute that the plaintiff duly paid all of the invoices. Therefore, the evidence established that there was no breach of contract.

Even if the plaintiff had established a breach of the agreement, it still would not be entitled to damages because it failed to prove the precise amount to which it is entitled. The best evidence produced at trial to support the claim for damages was a guess by Mr. Vidala. A guess is not sufficient to support a claim for contract damages.

The CUTPA claim fails, too. In order to determine when a practice is unfair, the trier of fact must decide: “(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 — 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 business persons] . . . 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.” (Internal quotation marks omitted.)Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937
(2005), cert. denied U.S., 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).

The plaintiff did not establish that the defendant engaged in a pattern of bad or unfair business practices and thus failed to present evidence to support its claim of CUTPA violation.

Finally, the plaintiff asserts a cause of action for unjust enrichment. “Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006). Clearly, the evidence did not establish that the defendant received a benefit for which it did not pay. On the contrary, the defendant provided machines and service; and the plaintiff provided payment for the machines and service.

For all the foregoing reasons, the court finds that the plaintiff CT Page 12478 failed to prove, by a fair preponderance of the evidence, its claim of breach of contract; its claim of CUTPA violation; or its claim of unjust enrichment.

[1] The original, boiler plate copy of the contract calls for the price to be written in “per copy.” However, the contract signed by the parties require that the cost be assessed per “scan” rather than per “copy.”

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