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Date: 09-07-2016
Case Style:
WESTERN DERMATOLOGY CONSULTANTS, P.C. v. VITALWORKS, INC., ET AL.
Case Number: SC 19248
Judge: Richard N. Palmer
Court: Connecticut Supreme Court
Plaintiff's Attorney:
 *Linda L. Morkan* |  *Bradford S. Babbitt* |
Phyllis S Lynn
Defendant's Attorney:
 *Kimberly A. Knox* |  *Dana M. Hrelic * |  *Wesley W. Horton * |  *Edward T. Krumeich* |
 Steven Smart, for defendant Cerner Physician Associates, Inc. |
Description: In this certified appeal, the plaintiff, WesternDermatologyConsultants,P.C.,claimsthatthe Appellate Court improperly reversed the judgment of the trial court, which found that the defendants, VitalWorks, Inc. (VitalWorks),1 and Cerner Physician Associates, Inc. (Cerner), had violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110aetseq.,2 bymakingmisrepresentationsinconnection with the sale of certain practice management andelectronicmedicalrecordssoftwaretotheplaintiff. The plaintiff contends that the Appellate Court incorrectly concluded that, under applicable choice of law principles, the law of New Mexico, rather than CUTPA, governs the plaintiff’s unfair trade practices claim. We concludethattheAppellateCourtcorrectlydetermined that that claim is governed by New Mexico law. Contrary to the determination of the Appellate Court, however, we conclude that the case must be remanded for a new trial so that New Mexico law can be applied to the plaintiff’s unfair trade practices claim.3 The following facts, as found by the trial court, and procedural history are relevantto our resolution of this appeal. The plaintiff is a dermatological clinic with two offices located in Albuquerque, New Mexico. VitalWorks is a Delaware corporation that, at all times relevant to this appeal, had its corporate headquarters in Ridgefield,Connecticut,andwasengagedinthemarketingandsellingofsoftwaredesignedtoassistphysicians in efficiently managing patient appointments, billing, and medical records. VitalWorks’ software development and technical support facility is located in Alabama. Cerner is a Delaware corporation with its principal place of business in Missouri. In January, 2005, Cerner purchased VitalWorks’ Alabama operations and continued to market, service, and develop the software thereafter. InMarch,2003,theplaintiff’srepresentativeattended a medical conference in San Francisco, California, where VitalWorks was demonstrating its software. At the time, the plaintiff did not contemplate the purchase of new software because it was satisfied with older softwarethatithadbeenusinginitspracticesince1997. Attheconference,however,TimHolman,aVitalWorks’ salesperson, and Terri Cannady, a representative from the company that marketed the older software, informed the plaintiff’s representative that the plaintiff would need to replace the older software because it was going to be phased out and would no longer be supported.Asareplacementfor theoldersoftware,the plaintiffwasofferedVitalWorks’software.Holmantold the plaintiff that VitalWorks’ software was ‘‘userfriendly’’ and would increase the plaintiff’s efficiency and save it money by streamlining the preparation of medical notes and billing statements. Specifically, Hol
man represented that the new software would allow the plaintiff’s receptionist to confirm a patient’s informationuponthepatient’sarrivalandcreateanotethat, with ‘‘[a] click [of] a button,’’ would be sent to the physician, who would fill it out while examining the patient, thereby creating a billing statement with the required diagnostic codes and necessary prescriptions. In September, 2003, Holman traveled to one of the plaintiff’s Albuquerque offices to conduct a follow-up demonstration. Following that demonstration, Holman sent the plaintiff a letter stating that, on the basis of the plaintiff’s then existing monthly transcription expense of $2500,4 the plaintiff would realize ‘‘a return on investment in two years’’ were it to purchase the new software. Holman also informed the plaintiff that, by purchasing the new software prior to the end of 2003, it would avoid a 15 percent price increase. Having been told that the older software no longer would be supported and that a price increase for the newsoftwarewasimminent,theplaintiffagreedtopurchase the new software for $44,170.30, which included softwaretrainingbyVitalWorksemployees.OnDecember 19, 2003, the plaintiff signed a standard form contract produced by VitalWorks’ Connecticut headquarters. The choice of law provision of the contract provided that ‘‘[the] [a]greement shall be construed and interpreted in accordance with the laws of the [s]tate of Connecticut and any dispute shall be resolved in a forum located in the [s]tate of Connecticut.’’ As soon as the new software was installed, the plaintiff began experiencing technical difficulties while attempting to use it. Contrary to the representations made by Holman, the plaintiff’s physicians and staff found the software neither fast nor user-friendly. The plaintiff experienced a wide variety of problems with the software, including (1) loss of access to the system while attempting to schedule appointments, (2) the need to change passwords on multiple occasions, (3) claimsnotclosingwhenpaymentswereposted,thereby requiring the plaintiff to manually enter secondary billing statements, (4) uninitiated user log offs, (5) disappearing toolbar buttons, (6) inaccurate patient ledgers, and (7) blank screens that required a complete reboot ofthesystem.Inadditiontothesefundamentalsoftware flaws, the physicians were not able to use the system whileseeingpatientsbecausethesoftwaredidnothave preinstalled dermatological terminology and did not allow users to indicate the number and size of lesions andbiopsies,thenameordosageofprescribedmedication, or whether the patient had been informed about the potential risks and benefits of medication. As a result of these defects, creating medical notes with the new software took far longer than it did to create those notes manually. When the plaintiff complained to VitalWorks about
the new software’s poor performance, VitalWorks denied that the problems were software related and recommended additional training for the plaintiff’s employees. Despite that training, however, the plaintiff’s problems persisted because, in fact, they were primarily software related. Indeed, the plaintiff never was able to bill a patient, generate a prescription or complete a real time checkout using the software, and, as a consequence, the plaintiff ultimately abandoned it in May, 2005. The plaintiff commenced the present action against the defendants in August, 2006. Initssecondamendedcomplaint,theplaintiffalleged six counts: (1) breach of contract; (2) breach of warranty; (3) fraud; (4) negligent misrepresentation; (5) unjust enrichment; and (6) a violation of CUTPA.5 Followingabenchtrial,thecourtconcludedthattheplaintiffhadprovenitscaseagainstVitalWorksonthebreach of contract, breach of warranty, negligent misrepresentation, and CUTPA counts.6 The court also found in favoroftheplaintiffonitsCUTPAclaimagainstCerner, concluding that Cerner was liable under CUTPA pursuant to the continuity of enterprise exception to the successor in interest doctrine. The court further concluded that, following the acquisition of VitalWorks’ Alabama operations, Cerner itself had violated CUTPA by engaging in unfair trade practices while being involvedintradeorcommercethatwasintimatelyassociated with Connecticut.7 Thereafter, the defendants filed motions to reargue and for articulation, and the plaintifffiledmotionsforcosts,attorney’sfees,prejudgment interest, and punitive damages.8 In its motion to reargue, VitalWorks asserted, among other things, that the trial court improperly had failed to subject the plaintiff’s unfair trade practices claim to a choice of law analysis and, instead, appeared to have ‘‘automatically’’ assumed that Connecticut law applied to that claim. VitalWorks further argued that, under a choice of law analysis, it was clear that New Mexico rather than Connecticut law should govern the plaintiff’s claim because New Mexico had the most significant contacts with the occurrence and the parties. In its memorandum of decision on VitalWorks’ motion to reargue, the trial court noted that it had applied Connecticut choice of law principles to the facts and determined that Connecticut was the state that had the most significant relationship to the occurrence and the partiesinvolved.Thetrialcourtexplainedthat,inevaluating the choice of law issue, it had utilized the principles set forth in §§ 6 (2) and 145 (1) of the Restatement (Second) of Conflict of Laws. See 1 Restatement (Second), Conflict of Laws § 6 (2), p. 10 (1971); 1 id., § 145 (1), p. 414. In a subsequent memorandum of decision on VitalWorks’ motion for articulation, the trial court further explained that ‘‘the strongest and most predictable contact’’ in the present case was Connecticut because ‘‘Ridgefield, Connecticut was the corporate
headquarters for VitalWorks. Corporate responsibility for product development, marketing, sale and delivery of a functioning product is most strongly connected to Connecticut. The sales agreement was drafted in Connecticut by VitalWorks. . . . Among the terms [of that agreement] . . . was a standardize[d] choice of law/forum provision [that] required that Connecticut law apply to contract interpretation and required [Connecticut] to be the locus of dispute resolution.’’ In addition to its choice of law argument, VitalWorks contended that, even if Connecticut law did apply to the plaintiff’s unfair trade practices claim, VitalWorks’ conduct, as alleged by the plaintiff, did not fall within the purview of CUTPA because VitalWorks had not engaged in any trade or commerce in Connecticut. The trial court rejected this argument, noting that the facts that it found supported the conclusion that the actions that gave rise to the plaintiff’s claims ‘‘occurred in Connecticut or were the result of [VitalWorks’] corporate [decision] to market and sell software systems [that] it knew had not been fully developed and [that] would not operate as represented to [the plaintiff].’’ Specifically, the trial court explained that ‘‘[t]he contract in questionqualifiedastradeorcommercewithinthestate of Connecticut . . . . It [was] the genesis of the relationship between [the] plaintiff and VitalWorks . . . .’’ (Internal quotation marks omitted.) On appeal to the Appellate Court, VitalWorks and Cernerbothclaimed,interalia,thatthetrialcourtincorrectly had determined that Connecticut law governed the plaintiff’s unfair trade practices claim. See Western Dermatology Consultants, P.C. v. VitalWorks, Inc., 146 Conn.App.169,197,78A.3d167(2013).Thedefendants further argued that, even if Connecticut law applies to that claim, the trial court incorrectly concluded that the plaintiff had satisfied the requirements of CUTPA. Id., 198. The Appellate Court agreed with both contentions. See id., 201, 211. The Appellate Court first concluded that, by its express terms, CUTPA applies only to acts of trade or commerceconductedinConnecticut.Id.,200.Thecourt further concluded that the practices that the plaintiff complained of actually had occurred outside of Connecticut. See id., 200–201. Specifically, the court referredtotheevidencedemonstratingthattheplaintiff was located in New Mexico, and the first and second product demonstrations by VitalWorks took place in California and New Mexico, respectively. Id., 200. The court also observed that(1) the software and hardware purchased under the contract were installed in New Mexico, and the concomitant services were also performed in that state; id., 200–201; (2) the VitalWorks employees with whom the plaintiff dealt were located inAlabama,andthoseemployeesremotelyinstalledthe new software in New Mexico; id., 201; and (3) all of
the development work on the new software from 2001 forward had been performed in Alabama. Id. On the basis of this evidence, the court concluded that the plaintiff had no cause of action under CUTPA because no ‘‘trade’’ or ‘‘commerce’’ within the meaning of CUTPA had occurred in Connecticut. (Internal quotation marks omitted.) Id. Next, the Appellate Court engaged in a choice of law analysis in accordance with the most significant relationship test set forth in §§ 6 (2) and 145 of the Restatement (Second) of Conflict of Laws; see, e.g., Jaiguay v. Vasquez, 287 Conn. 323, 349–50, 948 A.2d 955 (2008) (adopting most significant relationship test of Restatement [Second] of Conflict of Laws for tort actions); and concluded that the trial court incorrectly haddeterminedthattheplaintiff’sunfairtradepractices claim was governed by Connecticut law.9 See Western Dermatology Consultants, P.C. v. Vitalworks, Inc., supra, 146 Conn. App. 211. In particular, the Appellate Court concluded thatthe application of thefactors outlinedin§ 145(2)oftheRestatement(Second)militated in favor ofapplying New Mexico lawbecause that state hadthe‘‘greatestcontact’’withtheparties.Id.,207–208. Specifically,NewMexicowasthecenteroftherelationship, it was where the plaintiff was injured, and it was where the contracted for goods were installed and serviced.Id.,207.Similarly,theAppellateCourtconcluded that consideration of the factors outlined in § 6 (2) of the Restatement (Second) also supported the applicability of New Mexico law.10 Id., 208–11. Accordingly, the Appellate Court reversed the judgment of the trial court and directed that court to render judgment for the defendants on the CUTPA count.11 Id., 214. We granted the plaintiff’s petition for certification to appeal, limited to the following issues: ‘‘1. Under the established [conflict of law] principles . . . and the facts of this case, did the Appellate Court properly determine that [CUTPA] applies to this case?’’ Western Dermatology Consultants, P.C. v. VitalWorks, Inc.,310 Conn. 955, 81 A.3d 1182 (2013). ‘‘2. If the answer to the first question is in the affirmative, did the Appellate Court properly determine that the plaintiff failed to satisfy the requirements of CUTPA because, under the facts of this case, no trade or commerce occurred in the state of Connecticut?’’ Id. ‘‘3. If the answer is in the negative, did the trial court correctly determine not to award prejudgment interest, punitive damages and certain requested litigation costs?’’ Id. Upon review of the record, however, andafter due consideration of the claims that the parties raised in their briefs and at oral argument, we conclude that the first and second certifiedquestionsdonotaccuratelyreflecttheissuesraised by this appeal. Therefore, we consider it necessary to reformulate those questions so that they reflect the actual issues presented. See, e.g., Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 191,
884 A.2d 981 (2005) (court may ‘‘reformulate . . . the certified question to reflect . . . accurately the issues presented’’). Accordingly, we set forth the following revised certified questions: 1. Under established choice of law principles, did the Appellate Court properly determine that CUTPA does not apply to the plaintiff’s unfairtradepracticesclaim?2.Iftheanswertothefirst question is in the negative, did the Appellate Court properly determine that the plaintiff failed to satisfy the requirements of CUTPA because, under the facts ofthiscase,notradeorcommerceoccurredinthestate of Connecticut? 3. If the answer to the second question is in the negative, did the trial court properly decline to award prejudgment interest, punitive damages and certain requested litigation costs? On appeal, the plaintiff argues that the Appellate Court incorrectly determined that the law of New Mexico should govern the plaintiff’s unfair trade practices claim because (1) the defendants waived their right to argue that New Mexico law should apply to that claim by failing to allege and establish in the trial court that thereexistsanoutcomedeterminativeconflictbetween thelawsofConnecticutandNewMexico,and(2)under the test set forth in §§ 6 (2) and 145 of the Restatement (Second) of Conflict of Laws, Connecticut law governs its unfair trade practices claim. The defendants dispute the plaintiff’s contention and argue, in addition, that, in light of the Appellate Court’s disposition of the case againsttheplaintiffonallcounts,therearenoremaining factstosupporttheplaintiff’sCUTPAclaim,and,consequently,theappealismoot.Weconcludethattheplaintiff’s appeal is not moot and that the Appellate Court correctly determined that New Mexico law governs the plaintiff’s unfair trade practices claim. We therefore remand the case for a new trial at which the plaintiff’s unfairtradepracticesclaimshallbedecidedunderNew Mexico law.12 We first address the defendants’ contention that this appeal is moot. See, e.g., In re Jorden R., 293 Conn. 539,555, 979A.2d 469(2009) (‘‘[m]ootnessisa question of justiciability that must be determined as a threshold matter because it implicates [a] court’s subject matter jurisdiction’’ [internal quotation marks omitted]). As we previously indicated, the defendants argue that the appeal is moot because the Appellate Court’s reversal of the trial court’s judgment on the breach of contract, breach of warranty and negligent misrepresentation counts eliminated all of the possible factual bases for the alleged CUTPA violation. In addition, Cerner separately argues that there is no factual basis to support the plaintiff’s CUTPA claim against it because the trial court found in favor of the defendants on the plaintiff’s unjust enrichment claim, and because the plaintiff alleged in its complaint that Cerner violated CUTPA only on the basis of the allegations in the unjust enrichment count. We disagree with both contentions.
With respect to the first contention, the record reveals that the Appellate Court reversed the trial court’s judgment on the plaintiff’s breach of contract claimnotbecausethetrialcourt’sfactualfindingsrelatingtothatclaimwereunsupportedbut,rather,because the plaintiff failed to comply with the notice requirementsintheparties’contractandtheUniformCommercialCodeforbringingsuchaclaim.SeeWesternDermatology Consultants, P.C. v. VitalWorks, Inc., supra, 146 Conn. App. 182–83. Similarly, the Appellate Court reversed the trial court’s judgment on the breach of warranty and negligent misrepresentation claims not because the trial court’s factual findings relating to thoseclaimswereunsupportedbut,rather,becausethe trial court improperly had determined that the merger clause of the parties’ contract did not limit the plaintiff to the warranties expressly provided thereunder.13 Id., 191, 197. We also reject Cerner’s separate contention because the record shows that the unjust enrichment count was not the only count that provided a factual basis for the unfair trade practices count. Specifically, in its CUTPA count, the plaintiff alleged that the defendants’ conduct, ‘‘including but not limited to their misrepresentations, their sale of nonfunctioning products, their refusal to comply with their obligations under the contract, their refusal to return [money] paid by the plaintiff for which the plaintiff received nothing of value, and their attempt to contract through false pretenses . . . constitute[s] unfair and deceptive trade practices . . . .’’ Thus, it is clear that the plaintiff did not predicate its CUTPA count against Cerner solely on the allegations contained in the unjust enrichment count. Accordingly, we conclude that this appeal is not moot. We turn, therefore, to the merits of the plaintiff’s contention that the Appellate Court incorrectly determinedthat,contrarytotheconclusionofthetrialcourt, thelawofNewMexico,ratherthanthelawofConnecticut,governstheplaintiff’sunfairtradepracticesclaim.14 We begin our analysis by setting forth the legal principles that govern our review of this claim. Choice of law questionsaresubjecttodenovoreview.E.g.,American States Ins. Co. v. Allstate Ins. Co., 282 Conn. 454, 461, 922 A.2d 1043 (2007). When evaluating choice of law questions sounding in tort, this court applies the ‘‘most significant relationship’’ test set forth in the Restatement (Second). Jaiguay v. Vasquez, supra, 287 Conn. 349. As we previously have observed, the choice of law principlesapplicabletotortactionsalsoapplytoclaims brought under CUTPA. See Macomber v. Travelers Property & Casualty Corp., 277 Conn. 617, 640, 894 A.2d 240 (2006). ‘‘Section145oftheRestatement[(Second)ofConflict of Laws] provides in [relevant part] that ‘[t]he rights and liabilities of the parties with respect to an issue [in
tort]aredeterminedbythelocallawofthestatewhich, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principlesstatedin§ 6.’[1Restatement(Second),supra, § 145(1),p.414.]Section6oftheRestatement[Second], in turn, provides: ‘(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the [protection] of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination andapplication ofthe lawto beapplied.’ [1 id., § 6, p. 10.]’’ O’Connor v. O’Connor, 201 Conn. 632, 650–51, 519 A.2d 13 (1986). ‘‘Forassistanceinourevaluationofthepolicychoices set [forth] in §§ 145 (1) and 6 (2), we turn . . . to § 145 (2) of the Restatement [Second], which establishes black-letter rules of priority to facilitate the application of the principles of § 6 to tort cases. . . . Section 145 (2) provides: ‘Contacts to be taken into account in applyingtheprinciplesof§ 6todeterminethelawapplicable to an issue include: (a)the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties,and (d)theplace wheretherelationship, ifany, between the parties is centered. These contacts are to beevaluatedaccordingtotheirrelativeimportancewith respect to the particular issue.’ [1 Restatement (Second), supra, § 145 (2), p. 414.]’’ (Citation omitted.) O’Connor v. O’Connor, supra, 201 Conn. 652. Applying § 145 (2) (a) of the Restatement (Second) to the present case, we agree with the Appellate Court that the plaintiff’s injury occurred in New Mexico, the place where the plaintiff suffered the adverse consequences of its decision to purchase the new software. With respect to § 145 (2) (b), the Appellate Court concludedthattheinjurycausingconductoccurredinNew Mexico, ‘‘where the goods were installed, service was provided,andtrainingoccurred.’’WesternDermatology Consultants P.C. v. VitalWorks, Inc., supra, 146 Conn. App.207.WedonotagreecompletelywiththeAppellate Court’s conclusion. Our review of the pertinent facts reveals that the events that the Appellate Court relied on were the consequences of an earlier occurrence, namely, VitalWorks’ decision to make a binding offer for sale of the new software to the plaintiff from its headquarters in Connecticut, which, in turn, was the result of VitalWorks’ earlier demonstrations of the software to the plaintiff in California and New Mexico. We
thus are persuaded that the injury causing conduct in this case occurred in California, New Mexico, and Connecticut. With regard to § 145 (2) (c), we conclude that it is a neutral factor: the plaintiff is located in New Mexico,whereasVitalWorkswas,atthetime,headquartered in Connecticut, and Cerner is headquartered in Missouri.Finally,withrespectto§ 145(2)(d),weagree with the Appellate Court that the relationship between the parties was centered in New Mexico, where the plaintiff ‘‘reviewed and signed the contract, beginning the [legal] relationship . . . [and where] [t]he goods and concomitant services contracted for were delivered, installed, and performed . . . .’’ Id., 208. As we previously have explained, ‘‘it is the significance, and not the number, of § 145 (2) contacts that determines the outcome of the choice of law inquiry under the Restatement [Second] approach. As the concluding sentence of § 145 (2) provides, [t]hese contacts are to be evaluated according to their relative importance with respect to the particular issue.’’ (Internal quotation marks omitted.) Jaiguay v. Vasquez, supra, 287Conn.353.Althoughthetrialcourtfoundthat‘‘[t]he sales agreement was drafted in Connecticut by VitalWorks,’’andthat‘‘Connecticutwasthestatewhere the parties’ relationship initiated,’’ these factors alone donotoutweighthesignificantcontactstoNewMexico. Consistent with the determination of the Appellate Court, therefore, we conclude that, on balance, ‘‘New Mexico had the greatest contact with the parties in this case.’’ Western Dermatology Consultants P.C. v. VitalWorks, Inc., supra, 146 Conn. App. 208. Likewise, the factors enumerated in § 6 (2) of the Restatement(Second)alsomilitateinfavoroftheapplicabilityofNewMexicolawtotheplaintiff’sunfairtrade practicesclaim.Section6(2)(a),theneedsoftheinterstateandinternationalsystems,supportsneitherstate’s law. With regard to § 6 (2) (b), the relevant policies of the forum, we conclude that, although Connecticut undoubtedlyhasaninterestinapplyingitslawtoensure thatlocalbusinessesdonotengageinunfairtradepractices in this state, that interest is not especially strong in the present case in view of the limited nature of the contact that occurred between the parties in Connecticut.15 New Mexico’s interest in protecting its citizens and commercial enterprises from unfair or deceptive trade practices, however, is especially strong in the presentcaseconsideringthefactsthattheplaintiffconducts its business exclusively in New Mexico and that the majority of the dealings between the parties took place in that state. Accordingly, we conclude that § 6 (2) (c), which requires consideration of the relevant policiesofotherinterestedstatesandtherelativeinterests of those states, also supports application of New Mexico law. Turning to § 6 (2) (d), the protection of justified
expectations, we agree with the Appellate Court that there was ‘‘no justified expectation that Connecticut law, including CUTPA, would apply to tort claims not arising from the construction and interpretation of the contract itself.’’Id., 210.As weexplained, theAppellate Court reached its determination on the basis of the choice of law provision in the parties’ contract, which designatedConnecticutastheforumstatebutexpressly limited the application of Connecticut law to ‘‘the construction and interpretation of the contract itself.’’ Id. Thus, on the basis of the breadth and depth of the parties’ contacts with New Mexico, we agree with the Appellate Court that it was much more reasonable for the parties to expect New Mexico law to govern any consumerprotectionrelateddisputearisingoutoftheir business relationship. We also agree with the Appellate Court that § 6 (2) (e), the basic policies underlying the particular field of law,isaneutralfactorbecausetheunfairtradepractice statutes of both New Mexico and Connecticut are intended to effectuate the same policies, namely, ‘‘[t]he deterrence of tortious conduct and the provision of compensation for the injured victim . . . .’’ Id., quoting 1 Restatement (Second), supra, § 145, comment (b), p. 416. The remaining factors, § 6 (2) (f) and (g), direct us to examine the certainty, predictability and uniformity of result, and the ease in the determination and application of the law to be applied, respectively. As we observed in O’Connor, these factors ‘‘should ‘not be overemphasized’ ’’; O’Connor v. O’Connor, supra, 201 Conn. 651–52; because the Restatement (Second) ‘‘cautionsagainstattachingindependentweighttothese auxiliary factors, noting that they are ancillary to the goal of providing rational, fair choice of law rules.’’ Id., 651. Once again, we agree with the Appellate Court that, to the extent they are relevant, the factors set forth in § 6 (2) (f) and (g) militate in favor of applying NewMexicolaw‘‘becausethevastmajorityoftheplaintiff’s contact with the defendants happened in New Mexico.Itwould,therefore,bepredictableanduniform, as well as easy, to determine and apply’’ the law of that state. Western Dermatology Consultants P.C. v. VitalWorks, Inc., supra, 146 Conn. App. 210. Accordingly, we conclude that the Appellate Court properly determined that New Mexico had the most significant relationship with the parties in the present case, thus requiring that the law of that state be applied to the plaintiff’s unfair trade practices claim. We note, finally, that, after reversing the trial court’s judgment in favor of the plaintiff on its CUTPA claim, theAppellateCourtremandedthecasetothetrialcourt with direction to render judgment for the defendants. Id., 214. As we explain hereinafter, however, the Appellate Court, having determined that the trial court incorrectly applied Connecticut law to the plaintiff’s unfair trade practices claim; id., 211; should have remanded
the case for a new trial on that claim. As we previously noted, the Appellate Court first determinedthattheplaintiffcouldnotestablishaviolation of CUTPA; see id., 198–202; and only then did it address the choice of law issue. Id., 203–11. It is not clearfromtheAppellateCourt’sopinionwhyitreached the CUTPA claim even though the defendants maintainedthattherewasanoutcomedeterminativeconflict between the laws of Connecticut and New Mexico. See id.,197(‘‘[t]hedefendantsalsocontendthatanoutcome determinativeconflict oflawsexists regardingwhether the plaintiff could claim a CUTPA violation sounding intortagainstVitalWorksandCerner’’).Logically,however, once the Appellate Court had been apprised of the multistate nature of the relationship between the partiesandofthepotentialoutcomedeterminativeconflict between the laws of the various states involved, it should have addressed the broader question of which state’s law governs the dispute before determining whether any law had been violated. See, e.g., Gibson v. Fullin, 172 Conn. 407, 411, 374 A.2d 1061 (1977) (‘‘[w]hentherightsandliabilities ofpartiestoanaction result from an occurrence involving a significant relationship in another state, the court in which the action is pending must determine whether its own law or the law of the other state shall be applied’’). Therefore, the Appellate Court should haveresolved the choice of law issue first. Having resolved that issue in favor of New Mexico law, we now must determine the proper remedy. Ordinarily, the trial court’s failure to apply the correct legal standard results in a remand to the trial court for application of the correct standard. See, e.g., McDermott v. State, 316 Conn. 601, 611, 113 A.3d 419 (2015) (‘‘[w]e have often stated that . . . a party is generally entitled toanewtrialwhen,onappeal,adifferentlegalstandard is determined to be required, unless we conclude that, basedontheevidence,anewtrialwouldbepointless’’); Reichhold Chemicals, Inc. v. Hartford Accident & Indemnity Co., 243 Conn. 401, 423, 426, 703 A.2d 1132 (1997) (remanding case for new trial when trial court incorrectly applied New York rather than Washington law); Deroy v. Estate of Baron, 136 Conn. App. 123, 127, 43 A.3d 759 (2012) (‘‘[w]hen an incorrect legal standardisapplied,theappropriateremedyistoreverse thejudgmentofthetrialcourtandtoremandthematter for further proceedings’’); see also Leane v. Joseph Entertainment Group, Inc., 267 Ill. App. 3d 1036, 1043, 642 N.E.2d 852 (1994) (reversing and remanding case for new trial under Wisconsin law when trial court incorrectly applied Illinois law to parties’ dispute); Ohayon v. Safeco Ins. Co. of Illinois, 91 Ohio St. 3d 474, 476, 482–83, 486, 747 N.E.2d 206 (2001) (upholding Ohio Appellate Court’s remand for application of Ohio law to parties’ dispute when trial court incorrectly appliedPennsylvanialaw);CuddPressureControl,Inc.
v. Sonat Exploration Co., 202 S.W.3d 901, 903, 911–12 (Tex. App. 2006) (reversing judgment and remanding case to trial court to apply Louisiana law when trial court incorrectly applied Texas law), aff’d, 271 S.W.3d 228 (Tex.2008). Thereis noreason to deviatefrom that general principle in the present case. The defendants did not challenge the application of Connecticut law to theplaintiff’sunfairtradepracticesclaimuntilafterthe trial had concluded, and the plaintiff tried its claim and prevailed in accordance with that unchallenged legal framework. The plaintiff was fully entitled to rely on that frameworkand hadno reasonto putforth analternative theory of liability under New Mexico law.16 See, e.g., Lockett v. Flying U Rodeo Co., California Court of Appeal, Docket No. A102814 (Cal. App. September 22, 2004) (‘‘[t]ypically, a forum state applies its own law to the determination of issues that are raised in an action filed in that state unless a party makes a timely invocation of a request that the law of another state should apply’’ [emphasis omitted]); cf. Burns v. Quinnipiac University, 120 Conn. App. 311, 318–20, 991 A.2d 666, cert. denied, 297 Conn. 906, 995 A.2d 634 (2010). Accordingly, we conclude that the present case must be remanded for a new trial to allow the parties to present their casesunder the governing law, namely, the law of New Mexico, and to allow the trial court to evaluate the facts of the case in light of that law.17
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