Stone v. East Coast Swappers, LLC , 191 Conn. App. 63 ( 2019 )

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THOMAS G. STONE III v. EAST
COAST SWAPPERS, LLC
(AC 40855)
Alvord, Bright and Norcott, Js.
Syllabus
The plaintiff sought to recover damages from the defendant motor vehicle
repair shop for violation of the Connecticut Unfair Trade Practices
Act (CUTPA) (§ 42-110a et seq.) in connection with the purchase and
installation of a modified engine in a car owned by K. The plaintiff
had loaned K the money to pay the defendant for the requested work,
however, the engine was never installed because K did not want to pay
for certain additional costs. When K failed to repay the loan, the plaintiff
obtained a judgment against K and secured a lien on K’s car, which
remained in the defendant’s possession. The plaintiff informed the defen-
dant of his status as a second position lienholder on the car’s title and
his claim related to the car. Subsequently, S, a co-owner of the defendant,
sold the car at an auction on the advice of counsel. S provided notice
of the auction to K and the company that had financed K’s purchase of
the car, and published notice in a local newspaper, but he did not provide
notice to the plaintiff. In his complaint, the plaintiff alleged that the
defendant had violated CUTPA by refusing to perform the work that
had been paid for and by failing to provide the plaintiff with statutory
notice of the auction. Following a trial, the trial court concluded that
the plaintiff had proven a CUTPA violation and awarded him $8300 in
damages. The court, however, declined to award punitive damages and
attorney’s fees, concluding that the plaintiff had not proven the evil
motive or malice necessary to award punitive damages, and that he was
not entitled to attorney’s fees. On appeal to this court, the plaintiff
claimed that the trial court erred by failing to award him attorney’s
fees. Held:
1. The plaintiff could not prevail on his claim that this court should recognize
a rebuttable presumption in the context of attorney’s fees for CUTPA
violations, whereby the prevailing plaintiff should ordinarily recover
attorney’s fees unless special circumstances would render such an award
unjust; this court was not persuaded by the plaintiff’s arguments in
support of such a rebuttable presumption and was bound by the plain
language of the statute (§ 42-110g [d]) that provides for the award of
attorney’s fees under CUTPA and by Staehle v. Michael’s Garage, Inc.
(35 Conn. App. 455), in which this court held that the language of § 42-
110g (d) is clear and unambiguous that the decision to award attorney’s
fees is within the sole discretion of the trial court.
2. The trial court did not abuse its discretion in declining to award attorney’s
fees to the plaintiff; contrary to the plaintiff’s claim that the trial court
erred by conflating the analyses for awarding attorney’s fees and punitive
damages, nothing in the court’s memorandum of decision or articulation
suggested that it improperly required the plaintiff to show, in order to
be entitled to recover attorney’s fees, that the defendant acted with
malice, reckless disregard or evil intent, and, therefore, this court could
not conclude that there was a manifest abuse of discretion by the trial
court or that injustice appeared to have been done.
Argued January 31—officially released July 2, 2019
Procedural History
Action to recover damages for, inter alia, a violation
of the Connecticut Unfair Trade Practices Act, and for
other relief, brought to the Superior Court in the judicial
district of Hartford, where the court, Huddleston, J.,
granted in part the defendant’s motion to strike; there-
after, the matter was tried to the court, Noble, J.; judg-
ment for the plaintiff, from which the plaintiff appealed
to this court; subsequently, the court, Noble, J., issued
an articulation of its decision. Affirmed.
William J. O’Sullivan, with whom was Michelle M.
Seery, for the appellant (plaintiff).
Juri E. Taalman, with whom, on the brief, was
Joseph R. Serrantino, for the appellee (defendant).
Opinion
ALVORD, J. The plaintiff, Thomas G. Stone III,
appeals from the judgment of the trial court, rendered
after a trial to the court, finding that the defendant,
East Coast Swappers, LLC, had violated the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes
§ 42-110a et seq., and awarding the plaintiff compensa-
tory damages, but declining to award punitive damages
and attorney’s fees. On appeal, the plaintiff claims that
the court erred when it failed to award him attorney’s
fees. We affirm the judgment of the trial court.
The following facts, as found by the trial court, and
procedural history are relevant to our resolution of this
appeal. Patrick Keithan, at the time, the plaintiff’s son-
in-law, purchased a 2008 Mitsubishi Lancer Evolution in
February, 2010, from a dealership in Savannah, Georgia.
Keithan was in the military service and stationed in
Georgia. He financed the purchase of the car, in part,
through a loan from Wachovia Dealer Services, Inc.,1
in the amount of approximately $24,362.49.
Shortly thereafter, the car’s engine experienced per-
formance issues, for reasons not disclosed at trial. Kei-
than towed the car from Georgia to Windsor Locks,
Connecticut, where the defendant, a motor vehicle
repair shop, was located. The defendant first replaced
the car’s turbocharger for $2000, which Keithan paid
for by credit card. Following the replacement of the
turbocharger, the engine still was found to be inopera-
ble. Keithan returned to Georgia to fulfill his military
service obligations and left the car with the defendant.
Keithan ultimately decided that he wanted the defen-
dant to install a Buschur Racing short block.2 Paul Scott,
a co-owner of the defendant, drafted an estimate for
this work, which he forwarded to Keithan. The estimate,
dated August 17, 2010, referenced the purchase of the
Buschur Racing short block and its installation, and
estimated a cost of $9028.89.
The plaintiff loaned Keithan $9000 to pay the defen-
dant. The plaintiff’s wife prepared a promissory note
for the loan, which contemplated the title and car being
held by the plaintiff while the note remained unpaid.
The note, dated September 14, 2010, was executed by
Keithan and his wife, the plaintiff’s daughter. Keithan’s
wife then forwarded a check to the defendant in the
amount of $9028.89.
On October 11, 2010, the defendant shipped the car’s
engine to Buschur Racing, which performed the
requested work on the engine and returned the modified
engine to the defendant. The modified engine, however,
was never installed in the car.3 As Scott started to pre-
pare the modified engine for installation, his foreman
came to him with an additional parts request to discuss
with Keithan. These were components that the foreman
engine apart to prepare it for transmittal to Buschur
Racing. When this request was communicated to Kei-
than,4 he did not want to pay the extra money. The car
continued to remain in the defendant’s possession.
Keithan never repaid the plaintiff any portion of the
loan. The plaintiff first attempted to obtain title to the
car to identify him as a second position lienholder by
filing a title application with the Motor Vehicle Division
of the Georgia Department of Revenue.5 In February
and April, 2011, the plaintiff traveled from Maryland,
where he resided, to the defendant’s location in Con-
necticut. Scott refused to allow the plaintiff to look at
the car or the modified engine. On September 1, 2011,
Victoria L. Abalan, a co-owner of the defendant, sent a
letter to Keithan, in which she indicated that she had
been contacted by the plaintiff and had received a copy
of the plaintiff’s title application. The letter from Abalan
to Keithan referenced the sum of $14,151.71 being owed
to the defendant, which represented the costs of addi-
tional shipping, engine parts,6 and storage over the pre-
vious year.
The plaintiff filed an action against Keithan in Mary-
land and obtained a judgment in the amount of $10,348.
This judgment permitted him to eventually secure a lien
on the car subsequent in right to that of Wells Fargo
Auto Finance (Wells Fargo). See footnote 1 of this opin-
ion. The lien was reflected in a certificate of title, dated
June 29, 2012, which was issued by the Georgia Depart-
ment of Revenue.
On July 13, 2012, the defendant filed a ‘‘Notice of
Intent to Sell’’ or an ‘‘Artificer’s Lien’’7 with the Connecti-
cut Department of Motor Vehicles, which claimed a lien
of $1792. In December, 2012, the Connecticut Depart-
ment of Motor Vehicles issued to the defendant a form
H-76, an ‘‘Affidavit of Compliance and Ownership Trans-
fer,’’ for use in providing valid title to a purchaser for
a vehicle subject to an artificer’s lien.
In December, 2012, extensive communications took
place between the plaintiff, the plaintiff’s wife, and the
defendant’s owners, regarding the plaintiff obtaining
the car in satisfaction of his lien. During these communi-
cations, the plaintiff informed the defendant that he
had secured status as a second position lienholder on
the Georgia title. The plaintiff, however, had not pro-
vided the defendant with a copy of the new Georgia title.
Keithan filed for bankruptcy in Maryland and secured
the discharge of the plaintiff’s judgment. The security
interest of Wells Fargo was identified as $10,700 at
the time of the bankruptcy petition. The bankruptcy
petition, which was obtained by the defendant’s coun-
sel, identified the plaintiff as an unsecured creditor.
By June, 2013, both parties had retained counsel who
exchanged communications regarding their clients’
respective claims related to the vehicle. In September,
2013, the plaintiff commenced the underlying action
against the defendant, setting forth a claim of unjust
enrichment8 and alleging that the defendant had vio-
lated CUTPA.9
On November 9, 2013, Scott, on the advice of his
counsel, sold the car at an auction for $19,000. Although
he had provided notice to Keithan and Wells Fargo, and
published notice in a local newspaper, Scott did not
provide notice of the auction to the plaintiff.
In December, 2016, the plaintiff filed the operative
single count complaint10 alleging that the defendant had
violated CUTPA by refusing to perform the work that
had been paid for, i.e., by failing to install the modified
engine in the car and by failing to provide the plaintiff,
a lienholder, with statutory notice of the auction. A trial
to the court took place on January 24, 25 and 26, 2017.
In its memorandum of decision, the court concluded
that ‘‘[the plaintiff] has proven a violation of CUTPA,11
has not proven the evil motive or malice necessary to
award punitive damages and exercises its discretion by
finding that the plaintiff is not entitled to an award of
attorney’s fees. Damages are awarded in the amount
of $8300.’’
In declining to award punitive damages and attorney’s
fees, the court reasoned: ‘‘The court finds as a matter
of fact that the plaintiff has not proven that [the defen-
dant’s] actions constituted a reckless indifference to
the rights of [the plaintiff], an intentional and wanton
violation of his rights, malice or evil. [The defendant]
had been given an application for a title listing [the
plaintiff] as a second position lienholder but had never
been provided with the actual title. [The defendant] did
make the effort to review Keithan’s bankruptcy filing,
which listed [the plaintiff] as an unsecured creditor.
[The defendant] did consult with counsel before selling
the vehicle at auction. The court cannot find, therefore,
that [the defendant’s] actions warrant punitive dam-
ages. For similar reasons, the court exercises its discre-
tion and does not award [attorney’s] fees to the
plaintiff.’’ This appeal followed.
On January 25, 2018, after filing the present appeal,
the plaintiff filed a motion for articulation in which he
requested that the trial court articulate the factual and
legal basis for its decision declining to award attorney’s
fees. Specifically, the plaintiff requested that the court
clarify its use of the phrase ‘‘for similar reasons’’ in its
memorandum of decision.12
The court issued an articulation on February 15, 2018,
in which it stated: ‘‘The use of the phrase ‘similar rea-
sons’ was meant to signify that the court relied on the
same reasons enumerated in the preceding sentences,
to wit, ‘[the defendant] had been given an application
for a title listing [the plaintiff] as a second position
lienholder but had never been provided with the actual
title. [The defendant] did make the effort to review
Keithan’s bankruptcy filing, which listed [the plaintiff]
as an unsecured creditor. [The defendant] did consult
with counsel before selling the vehicle at auction.’ ’’
(Emphasis in original.)
We begin by setting forth the standard of review and
legal principles that guide our analysis of the plaintiff’s
claim. General Statutes § 42-110g (d) provides in rele-
vant part: ‘‘In any action brought by a person under
this section, the court may award, to the plaintiff, in
addition to the relief provided in this section, costs and
reasonable [attorney’s] fees based on the work reason-
ably performed by an attorney and not on the amount
of recovery. . . .’’ (Emphasis added.)
‘‘Awarding . . . attorney’s fees under CUTPA is dis-
cretionary; General Statutes § 42–110g (a) and (d) . . .
and the exercise of such discretion will not ordinarily be
interfered with on appeal unless the abuse is manifest
or injustice appears to have been done. . . . The
salient inquiry is whether the court could have reason-
ably concluded as it did. . . . [T]he term abuse of dis-
cretion does not imply a bad motive or wrong purpose
but merely means that the ruling appears to have been
made on untenable grounds.’’ (Internal quotation marks
omitted.) MedValUSA Health Programs, Inc. v. Mem-
berWorks, Inc., 109 Conn. App. 308, 315, 951 A.2d 26
(2008).
The plaintiff first argues that this court should recog-
nize a rebuttable presumption in the context of attor-
ney’s fees for CUTPA violations, whereby the prevailing
plaintiff ‘‘should ordinarily recover attorney’s fees
unless special circumstances would render such an
award unjust.’’ We decline to recognize such a pre-
sumption.
The plaintiff, citing Gill v. Petrazzuoli Bros., Inc., 10
Conn. App. 22, 32, 521 A.2d 212 (1987), argues that this
court should recognize such a presumption because
‘‘the legislative history [of CUTPA] reflects the force of
the legislature’s opinion that plaintiff’s fees are
‘extremely necessary’ to make CUTPA an effective
mechanism to accomplish its policy to encourage plain-
tiffs to pursue private-attorney-general actions,’’ and the
United States Supreme Court has interpreted a ‘‘private-
attorney-general discretionary fee-shifting provision’’ in
the context of Title VII cases as creating a rebuttable
presumption that attorney’s fees should be awarded
to the prevailing party. See Newman v. Piggie Park
Enterprises, Inc., 390 U.S. 400, 402, 88 S. Ct. 964, 19 L.
Ed. 2d 1263 (1968). The plaintiff also notes that our
Supreme Court has applied this presumption in the
context of a claim under 42 U.S.C. § 1983. See New
England Estates, LLC v. Branford, 294 Conn. 817, 857,
988 A.2d 229 (2010).
Consequently, he argues: ‘‘The rationale supporting
the presumption that the prevailing plaintiff should ordi-
narily be awarded an attorney’s fee [in Title VII cases]
applies with equal force to fee awards under CUTPA,
given that CUTPA’s purpose to encourage private-attor-
ney-general actions is like that of Title VII and similar
federal statutes. The rationale is particularly true to
Connecticut’s legislative understanding and intent that
plaintiff’s fees are ‘extremely necessary,’ as a tool for
overcoming hesitancy to pursue CUTPA litigation.’’ We
are not persuaded.
Title VII protects civil rights, which hold an especially
valued status in our law. See Newman v. Piggie Park
Enterprises, Inc., supra, 390 U.S. 402 (stating that plain-
tiff who brings civil rights action is ‘‘vindicating a policy
that Congress considered of the highest priority’’). The
plaintiff has identified no authority that suggests that
any court has ever put protection from unfair trade
practices on the same plane. Furthermore, the presump-
tion in favor of an award of prevailing party attorney’s
fees in Title VII cases has existed since 1968, yet our
legislature did not include such a presumption when it
first provided for the remedy of attorney’s fees in 1973,
nor has it amended the statute to incorporate the Title
VII presumption over the last forty-five years. Finally,
courts review a failure to award attorney’s fees to a
prevailing party in a Title VII case under a plenary
standard. See New England Estates, LLC v. Branford,
supra, 294 Conn. 857. By contrast, our jurisprudence is
clear that the decision to award attorney’s fees to a
prevailing CUTPA plaintiff is reviewed under an abuse
of discretion standard. See MedValUSA Health Pro-
grams, Inc. v. MemberWorks, Inc., supra, 109 Conn.
App. 315.
The plaintiff also contends that recognizing such a
presumption is appropriate because ‘‘Connecticut
courts . . . have imposed judicial guidance on the
exercise of discretion in determining the amount of fee
awards under CUTPA . . . .’’ (Emphasis in original.)
Specifically, the plaintiff points to this court’s decision
in Steiger v. J. S. Builders, Inc., 39 Conn. App. 32, 663
A.2d 432 (1995), which applied a twelve factor test, that
had been developed by federal courts for use in Title
VII cases, for calculating attorney’s fees under CUTPA.
The court’s initial decision of whether to award attor-
ney’s fees, however, is distinct from its subsequent cal-
culation of the award of attorney’s fees. We are,
therefore, not persuaded.
In Staehle v. Michael’s Garage, Inc., 35 Conn. App.
455, 461, 646 A.2d 888 (1994), also a CUTPA action,
this court concluded that ‘‘[§ 42-110g (d)] contains no
standard by which a court is to award attorney’s fees,
thus leaving it to the sole discretion of the trial court
to determine if attorney’s fees should be awarded and
the amount of such an award.’’ (Emphasis added.)
As this court noted in Staehle, the use of the word
‘‘may’’ in § 42-110g (d) ‘‘indicates that the statute does
not provide a mandatory award of fees to the plaintiff;
rather, the court has the discretion to award attorney’s
fees. The language of the statute is clear and unambigu-
ous; the awarding of attorney’s fees is within the discre-
tion of the trial court.’’ Id., 459.
The rebuttable presumption that the plaintiff con-
tends that we should recognize, whereby a plaintiff
‘‘should ordinarily recover attorney’s fees unless special
circumstances would render such an award unjust,’’
is in conflict with this court’s holding in Staehle and
contrary to the plain language of the statute. With the
operation of such a presumption, the trial court would
lose its statutory discretion in determining whether to
award attorney’s fees.
We are bound by this court’s decision in Staehle and
the plain language of the statute.13 To the extent that
the plaintiff’s claims raise legitimate policy concerns
that warrant a different outcome, it is the role of the
legislature, not this court, to address those policy con-
siderations. See Bennett v. New Milford Hospital, Inc.,
117 Conn. App. 535, 549, 979 A.2d 1066 (2009), aff’d,
300 Conn. 1, 12 A.3d 865 (2011).
The plaintiff next argues that, even if this court does
not recognize a presumption in the award of attorney’s
fees under CUTPA, the trial court’s failure to assess
attorney’s fees in this case constituted an abuse of dis-
cretion. Specifically, the plaintiff argues that the court
erred by conflating the analyses for awarding attorney’s
fees and punitive damages, thereby improperly requir-
ing the plaintiff to show, in order to be entitled to
attorney’s fees, that the defendant acted with malice,
reckless disregard, or evil intent.14 We disagree.
In its articulation, the trial court listed the following
factual findings to support its decision not to award
attorney’s fees: ‘‘[The defendant] had been given an
application for a title listing [the plaintiff] as a second
position lienholder but [the defendant] had never been
provided with the actual title. [The defendant] did make
the effort to review Keithan’s bankruptcy filing which
listed [the plaintiff] as an unsecured creditor. [The
defendant] did consult with counsel before selling the
vehicle at auction.’’
Although the court relied on the same factual findings
in its decision not to award punitive damages, nothing
in the court’s memorandum of decision or articulation
suggests that the court improperly required the plaintiff
to show, in order to be entitled to recover attorney’s
fees, that the defendant acted with malice, reckless
disregard, or evil intent. We, therefore, cannot conclude
that ‘‘abuse [of discretion] is manifest or [that] injustice
appears to have been done.’’ See MedValUSA Health
Programs, Inc. v. MemberWorks, Inc., supra, 109 Conn.
App. 315; Thames River Recycling, Inc. v. Gallo, 50
Conn. App. 767, 800, 720 A.2d 242 (1998). Accordingly,
we conclude that the trial court did not abuse its discre-
tion in declining to award attorney’s fees to the plaintiff.
The judgment is affirmed.
In this opinion the other judges concurred.
1
It is undisputed that Wells Fargo Auto Finance succeeded in interest to
Wachovia Dealer Services, Inc., and that it subsequently acquired the debt.
2
A short block is a component of an engine upon which other components
are assembled. Prior to the plaintiff’s request for a Buschur Racing short
block, the defendant had provided an estimate for an original equipment
manufacturer short block. This estimate contained a waiver of advanced
estimate. At trial, the defendant argued that the original equipment manufac-
turer estimate, containing the waiver and Keithan’s signature, constituted
authorization to undertake any repair without regard for the statutory
requirements. The trial court was not persuaded. See footnote 11 of this
opinion.
3
At trial, Scott testified that, although the $9028.89 estimate stated that
it included installation, he intended the word ‘‘installation’’ on the estimate
to include the removal of the car’s original engine and not the subsequent
installation of the modified engine.
4
The record is unclear as to when the additional parts request was commu-
nicated to Keithan.
5
This was unsuccessful because the title application required the signature
of Keithan, which was missing. The plaintiff did, however, subsequently
obtain a judgment lien on the car, securing his position as a second posi-
tion lienholder.
6
There was no evidence that the defendant actually purchased or installed
the additional parts referenced in the letter.
7
A motor vehicle repair shop may apply to obtain an artificer’s lien if it
claims a lien on a motor vehicle in its custody upon which it has completed
authorized work that is properly recorded on an invoice and if there is no
application pending to dissolve the lien within thirty days after completion
of the work. See Form H-100A, Connecticut Department of Motor Vehicles,
available at https://www.ct.gov/dmv/lib/dmv/20/29/h-100a.pdf (last visited
June 26, 2019).
8
In March, 2014, the defendant moved to strike both counts of the plain-
tiff’s complaint. In September, 2014, the trial court granted the defendant’s
motion with respect to the plaintiff’s unjust enrichment claim.
9
Specifically, the plaintiff alleged that the defendant had violated General
Statutes § 14-65f (a) when it ‘‘obtained payment from Keithan, using [the
plaintiff’s] funds, through the artifice of falsely promising to install a new
[e]ngine in the [v]ehicle, and sought to perpetuate this ruse in its communica-
tions with [the plaintiff’s] agent, by deliberately attempting to pass off a
used engine as new.’’
10
The plaintiff’s second amended complaint is the operative complaint in
this matter.
11
The court found that the defendant violated General Statutes §§ 14-65f
and 49-61. Section 14-65f provides in relevant part: ‘‘Prior to performing any
repair work on a motor vehicle, a motor vehicle repair shop shall obtain a
written authorization to perform the work . . . that includes an estimate
in writing of the maximum cost to the customer of the parts and labor
necessary for the specific job authorized. . . . If the repair shop is unable
to estimate the cost of repair because the specific repairs to be performed
are not known at the time the vehicle is delivered to the repair shop, the
written authorization required by this section need not include an estimate
of the maximum cost of parts and labor. In such a case, prior to commencing
any repairs, the repair shop shall notify the customer of the work to be
performed and the estimated maximum cost to the customer of the necessary
parts and labor, obtain the customer’s written or oral authorization and
record such information on the invoice. . . .’’ The court found that, although
an oral authorization was provided by Keithan with respect to the defendant’s
estimate for the Buschur Racing short block, the estimate’s explicit inclusion
of a fixed cost for the ‘‘installation’’ of the modified engine was a misrepresen-
tation on the part of the defendant.
In addition, § 49-61 provides in relevant part: ‘‘Within ten days of receipt
of such information relative to any lienholder, the bailee shall mail written
notice to each lienholder by certified mail, return receipt requested, stating
that the motor vehicle is being held by such bailee and has a lien upon it
for repair and storage charges. . . . [I]f the last usual place of abode of
the bailor is known to or may reasonably be ascertained by the bailee,
notice of the time and place of sale shall be given by mailing the notice to
him by certified mail, return receipt requested, at least ten days before the
time of the sale, and similar notice shall be given to any officer who has
placed an attachment on the property and, if the property is a motor vehicle
. . . any lienholder.’’ (Emphasis added.) The court found that the defendant
violated § 49-61 by failing to provide written notice of the auction to the
plaintiff. The court concluded that the foregoing conduct, which destroyed
the plaintiff’s lien, violated CUTPA.
Although, in its brief to this court, the defendant challenges the trial
court’s determination as to its liability under CUTPA, the defendant did not
file a cross appeal. Therefore, this appeal relates solely to the issue of
whether the court erred by failing to award attorney’s fees to the plaintiff.
12
In his motion, the plaintiff stated that ‘‘[t]he foregoing language suggests,
though imprecisely, that the court relied upon the same facts for its decision
to decline [attorney’s] fees as for its conclusion that the defendant’s actions
did not warrant [punitive damages]. . . . [I]t is necessary that the trial court
clarify . . . whether its decision flowed from the same factual findings that
underlie its decision regarding [punitive damages] or whether the court
relied on other, similar but as yet unidentified, reasons.’’
13
Moreover, we note that the legislature has not amended the language
of § 42-110g (d) subsequent to this court’s decision in Staehle to indicate
that it intends attorney’s fees to be awarded in a manner other than in
accordance with the trial court’s discretion.
14
‘‘In order to award punitive or exemplary damages [under CUTPA],
evidence must reveal a reckless indifference to the rights of others or an
intentional and wanton violation of those rights. . . . In fact, the flavor of
the basic requirement to justify an award of punitive damages is described
in terms of wanton and malicious injury, evil motive and violence.’’ (Internal
quotation marks omitted.) Ulbrich v. Groth, 310 Conn. 375, 446, 78 A.3d
76 (2013).