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WESTERN DERMATOLOGY CONSULTANTS, P.C. v.

VITALWORKS, INC., ET AL.

(SC 19248)

Palmer, Zarella, Eveleigh, McDonald and Vertefeuille, Js.

Argued September 10, 2015—officially released August 16, 2016

Linda L. Morkan, with whom, on the brief, were

Phyllis S. Lynn, pro hac vice, and Bradford S. Babbitt,

for the appellant (plaintiff).

Kimberly A. Knox, with whom were Dana M. Hrelic

and, on the brief, Wesley W. Horton and Edward T.

Krumeich, for the appellee (named defendant).

Steven R. Smart, for the appellee (defendant Cerner

Physician Associates, Inc.).
Opinion

PALMER, J. In this certified appeal, the plaintiff,

Western Dermatology Consultants, P.C., claims that the

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

§ 42-110a et seq.,2 by making misrepresentations in connection with the sale of certain practice management

and electronic medical records software to the plaintiff.

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

conclude that the Appellate Court correctly determined

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 relevant to 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, and was engaged in the marketing and selling of software designed to assist physicians

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.

In March, 2003, the plaintiff’s representative attended

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

software that it had been using in its practice since 1997.

At the conference, however, Tim Holman, a VitalWorks’

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. As a replacement for the older software, the

plaintiff was offered VitalWorks’ software. Holman told

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 information upon the patient’s arrival and create a note that,

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

new software was imminent, the plaintiff agreed to purchase the new software for $44,170.30, which included

software training by VitalWorks employees. On December 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)

claims not closing when payments were posted, 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

of the system. In addition to these fundamental software

flaws, the physicians were not able to use the system

while seeing patients because the software did not have

preinstalled dermatological terminology and did not

allow users to indicate the number and size of lesions

and biopsies, the name or dosage of prescribed medication, 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.

In its second amended complaint, the plaintiff alleged

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 Following a bench trial, the court concluded that the plaintiff had proven its case against VitalWorks on the breach

of contract, breach of warranty, negligent misrepresentation, and CUTPA counts.6 The court also found in

favor of the plaintiff on its CUTPA claim against Cerner,

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

involved in trade or commerce that was intimately associated with Connecticut.7 Thereafter, the defendants

filed motions to reargue and for articulation, and the

plaintiff filed motions for costs, attorney’s fees, 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

parties involved. The trial court explained that, in evaluating 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

question qualified as trade or commerce within the state

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

Cerner both claimed, inter alia, that the trial court incorrectly 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, 78 A.3d 167 (2013). The defendants

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

commerce conducted in Connecticut. Id., 200. The court

further concluded that the practices that the plaintiff

complained of actually had occurred outside of Connecticut. See id., 200–201. Specifically, the court

referred to the evidence demonstrating that the plaintiff

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

in Alabama, and those employees remotely installed the

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

had determined that the plaintiff’s unfairtrade practices

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 that the application of the factors outlined in § 145 (2) of the Restatement (Second) militated

in favor of applying New Mexico law because that state

had the ‘‘greatest contact’’ with the parties. Id., 207–208.

Specifically, New Mexico was the center of the relationship, it was where the plaintiff was injured, and it was

where the contracted for goods were installed and serviced. Id., 207. Similarly, the Appellate Court concluded

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, and after due consideration of the

claims that the parties raised in their briefs and at oral

argument, we conclude that the first and second certified questions do not accurately reflect the issues raised

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

unfair trade practices claim? 2. If the answer to the first

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

of this case, no trade or commerce occurred in the state

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

there exists an outcome determinative conflict between

the laws of Connecticut and New Mexico, 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

against the plaintiff on all counts,there are no remaining

facts to support the plaintiff’s CUTPA claim, and, consequently, the appeal is moot. We conclude that the plaintiff’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

unfair trade practices claim shall be decided under New

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, 979 A.2d 469 (2009) (‘‘[m]ootness is a 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

claim not because the trial court’s factual findings relating to that claim were unsupported but, rather, because

the plaintiff failed to comply with the notice requirements in the parties’ contract and the Uniform Commercial Code for bringing such a claim. See Western Dermatology 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

those claims were unsupported but, rather, because the

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 determined that, contrary to the conclusion of the trial court,

the law of New Mexico, rather than the law of Connecticut, governs the plaintiff’s unfairtrade practices claim.14

We begin our analysis by setting forth the legal principles that govern our review of this claim. Choice of law

questions are subject to de novo review. 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

principles applicable to tort actions also apply to claims

brought under CUTPA. See Macomber v. Travelers

Property & Casualty Corp., 277 Conn. 617, 640, 894

A.2d 240 (2006).

‘‘Section 145 of the Restatement [(Second) of Conflict

of Laws] provides in [relevant part] that ‘[t]he rights

and liabilities of the parties with respect to an issue [in
tort] are determined by the local law of the state which,

with respect to that issue, has the most significant relationship to the occurrence and the parties under the

principles stated in § 6.’[1Restatement(Second), supra,

§ 145 (1), p. 414.] Section 6 of the Restatement [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 and application of the law to be applied.’

[1 id., § 6, p. 10.]’’ O’Connor v. O’Connor, 201 Conn.

632, 650–51, 519 A.2d 13 (1986).

‘‘For assistance in our evaluation ofthe policy choices

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

applying the principles of § 6 to determine the law applicable 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) the place where the relationship, if any,

between the parties is centered. These contacts are to

be evaluated according to theirrelative importance with

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 concluded that the injury causing conduct occurred in New

Mexico, ‘‘where the goods were installed, service was

provided, and training occurred.’’ Western Dermatology

Consultants P.C. v. VitalWorks, Inc., supra, 146 Conn.

App. 207. We do not agree completely with the Appellate

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, whereas VitalWorks was, at the time, headquartered in Connecticut, and Cerner is headquartered in

Missouri. Finally, with respect to § 145 (2) (d), we agree

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,

287 Conn. 353. Although the trial court found that ‘‘[t]he

sales agreement was drafted in Connecticut by

VitalWorks,’’ and that ‘‘Connecticut was the state where

the parties’ relationship initiated,’’ these factors alone

do not outweigh the significant contacts to New Mexico.

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) also militate in favor of the applicability of New Mexico law to the plaintiff’s unfair trade

practices claim. Section 6 (2) (a), the needs of the interstate and international systems, supports neither state’s

law. With regard to § 6 (2) (b), the relevant policies

of the forum, we conclude that, although Connecticut

undoubtedly has an interest in applying its law to ensure

that local businesses do not engage in unfair trade practices 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

present case considering the facts that the plaintiff conducts 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

policies of other interested states and the relative interests 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 we explained, the Appellate

Court reached its determination on the basis of the

choice of law provision in the parties’ contract, which

designated Connecticut as the forum state but expressly

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

consumer protection related dispute arising out of their

business relationship.

We also agree with the Appellate Court that § 6 (2)

(e), the basic policies underlying the particular field of

law, is a neutral factor because the unfair trade practice

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)

‘‘cautions against attaching independent weight to these

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

New Mexico law ‘‘because the vast majority of the plaintiff’s contact with the defendants happened in New

Mexico. It would, therefore, be predictable and uniform,

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,

the Appellate Court remanded the case to the trial court

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

determined that the plaintiff could not establish a violation of CUTPA; see id., 198–202; and only then did it

address the choice of law issue. Id., 203–11. It is not

clear from the Appellate Court’s opinion why it reached

the CUTPA claim even though the defendants maintained that there was an outcome determinative conflict

between the laws of Connecticut and New Mexico. See

id., 197 (‘‘[t]he defendants also contend that an outcome

determinative conflict of laws exists regarding whether

the plaintiff could claim a CUTPA violation sounding

in tort against VitalWorks and Cerner’’). Logically, however, once the Appellate Court had been apprised of

the multistate nature of the relationship between the

parties and of the potential outcome determinative conflict 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]hen the rights and liabilities of parties to an action

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 have resolved 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

to a new trial when, on appeal, a different legal standard

is determined to be required, unless we conclude that,

based on the evidence, a new trial would be pointless’’);

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

standard is applied, the appropriate remedy is to reverse

the judgment of the trial court and to remand the matter

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

applied Pennsylvania law); Cudd Pressure Control, 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). There is no reason to deviate from that

general principle in the present case. The defendants

did not challenge the application of Connecticut law to

the plaintiff’s unfair trade practices claim until after the

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 framework and had no reason to put forth an alternative 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 cases under 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

The judgment of the Appellate Court is reversed with

respect to its disposition of the plaintiff’s CUTPA claim

and the case is remanded to that court with direction

to remand the case to the trial court for a new trial on

the plaintiff’s unfair trade practices claim, which shall

be governed by New Mexico law; the judgment of the

Appellate Court is affirmed in all other respects.

In this opinion the other justices concurred.

1 VitalWorks is now known as Amicas, Inc. We nevertheless refer to it as

VitalWorks, which was its name at all times relevant to the present case.

2 General Statutes § 42-110b (a) provides in relevant part: ‘‘(a) No person

shall engage in unfair methods of competition and unfair or deceptive acts

or practices in the conduct of any trade or commerce. . . .’’

The terms ‘‘trade’’ and ‘‘commerce,’’ in turn, are defined in CUTPA as

‘‘the advertising, the sale or rent or lease, the offering for sale or rent or

lease, or the distribution of any services and any property, tangible or

intangible, real, personal or mixed, and any other article, commodity, or

thing of value in this state.’’ General Statutes § 42-110a (4).

3 The parties also raise several additional claims on appeal. In particular,

the plaintiff argues that the Appellate Court incorrectly concluded that

CUTPA was not implicated on the ground that the defendants had not

engaged in any trade or commerce in Connecticut. The plaintiff also challenges the trial court’s refusal to award punitive damages, full attorney’s

fees, prejudgment interest, and certain costs. Cerner argues that the Appellate Court’s decision that the plaintiff cannot maintain a CUTPA claim

against Cerner can be affirmed on the alternative ground that the trial court

improperly imposed liability on Cerner as a successor to VitalWorks. In

light of ourresolution of the case, we need not address the parties’ arguments

with regard to CUTPA, Cerner’s alternative ground for affirmance or the

plaintiff’s arguments with regard to punitive damages, attorney’s fees, prejudgment interest, and certain costs.

4 During that time, the plaintiff documented patient visits by having dictated notes transcribed at a cost of between $2000 and $2500 per month.

5

In addition to making CUTPA-specific allegations in count six, the plain-
tiff also incorporated by reference the allegations in the other five counts.

6 The trial court determined, however, that the plaintiff had not met the

higher standard of proof applicable to the fraud count. The court also

declined to award any damages on the unjust enrichment count, concluding

that to allow for such damages in the present case ‘‘would . . . create a

windfall profit for the plaintiff, rather than properly compensating [it] for

the defendants’ breach.’’ Finally, although the trial court found that the

defendants had breached the contract, it did not award the plaintiff any

damages on that count. See Western Dermatology Consultants, P.C. v.

VitalWorks, Inc., 146 Conn. App. 169, 173–74, 214, 78 A.3d 167 (2013). With

respect to the remaining counts, the the plaintiff was awarded $83,399.82

for the breach of warranty count, $5100 for the negligent misrepresentation

count, and $157,441.58 for the CUTPA count. Id., 174.

7 See e.g., Titan Sports, Inc. v. Turner Broadcasting Systems, Inc., 981

F. Supp. 65, 71 (D. Conn. 1997) (‘‘[a] CUTPA violation . . . need not necessarily occur in Connecticut, but instead, the violation must be tied to a form

of trade or commerce intimately associated with Connecticut’’ [emphasis

omitted; internal quotation marks omitted]).

8 The trial court denied the plaintiff’s request for punitive damages and

prejudgment interest. See Western Dermatology Consultants, P.C. v.

VitalWorks, Inc., 146 Conn. App. 169, 174, 78 A.3d 167 (2013). The court

did, however, award the plaintiff $496,051.95 in attorney’s fees and $47,340.16

in costs. Id., 174–75.

9

In conducting the choice of law analysis in the present case, both the

trial court and the Appellate Court, citing O’Connor v. O’Connor, 201 Conn.

632, 519 A.2d 13 (1986), first applied the doctrine of lex loci delicti—the

place of injury—before proceeding to the most significant relationship test

set forth in §§ 6 (2) and 145 of the Restatement (Second) of Conflict of

Laws. See Western Dermatology Consultants, P.C. v. VitalWorks,Inc., supra,

146 Conn. 203–206. As we stated in Jaiguay, however, ‘‘we have moved

away from the place of the injury rule for tort actions and adopted the

most significant relationship test found in §§ 6 and 145 of the Restatement

(Second) of Conflict of Laws.’’ Jaiguay v. Vasquez, supra, 287 Conn. 349.

To the extent that there may be some lingering confusion as to whether we

have completely abandoned the lex loci test in tort actions, we take this

opportunity to reiterate that the most significant relationship test outlined

in §§ 6 (2) and 145 of the Restatement (Second) of Conflict of Laws is the

proper test to apply in tort actions to determine which state’s law applies.

10 In its appeal to the Appellate Court, the plaintiff claimed that the trial

court ‘‘abused its discretion in denying the [plaintiff’s request for] punitive

damages, reducing the amount of attorney’s fees and refusing to award it

certain costs,’’ and that the trial ‘‘court erred in declining to award it prejudgment interest.’’ Western Dermatology Consultants, P.C. v. VitalWorks, Inc.,

supra, 146 Conn. App. 176. The Appellate Court concluded that the plaintiff

was not entitled to punitive damages, attorney’s fees or costs, which were

recoverable only under CUTPA, as the plaintiff could not prevail on that

claim. Id., 213. The court also concluded that the plaintiff was not entitled

to prejudgment interest because it was ‘‘foreclosed from recovering under

the contract, either for breach of contract or warranty, such that there

could not be money due to the plaintiff that would have been subject to

prejudgment interest . . . .’’ Id., 214.

In addition, Cerner contended that the trial court improperly imposed

successor liability on it. Id., 212. In light of its conclusion that CUTPA was

not applicable to the present dispute, the Appellate Court did not address

the issue of successor liability. See id., 212–13.

11 The Appellate Court also directed the trial court to render judgment

for the defendants on the other counts, namely, breach of contract, breach

of warranty, and negligent misrepresentation. See Western Dermatology

Consultants, P.C. v. VitalWorks,Inc., supra, 146 Conn. App. 214. The plaintiff

has not challenged the Appellate Court’s judgment as to these counts.

12 In light of our remand for a new trial, we need not address the third

certified question regarding the denial of prejudgment interest, punitive

damages and certain costs. See footnote 3 of this opinion.

13 In support of their argument to the contrary, the defendants rely on

Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 783 A.2d 462 (2001).

Gomes, however, is inapposite to the present case. In Gomes, the plaintiffs’

gas station suffered fire damage following a burglary. Id., 606. Several guests

at an adjacent hotel alerted the hotel clerk about the break-in and the

subsequent fire, and the clerk promised to take care of the situation but

failed to take any action. Id. As a result, both the gas station and the hotel
were damaged by fire and smoke. Id. The hotel’s losses were covered by

its insurance carrier, which, in turn, soughtreimbursementfrom the plaintiffs

in a standard subrogation letter. See id. The plaintiffs brought an action

against the hotel and the insurance carrier, claiming, among other things,

that (1) the hotel clerk had intentionally or negligently prevented a hotel

guest from rendering aid to the plaintiffs, and (2) the act of sending the

letter, coupled with the knowledge of the hotel clerk’s intentional or negligent

acts, constituted a violation of CUTPA. Id., 604–605, 620. The trial court

granted summary judgment, and we affirmed, concluding that, because the

hotel clerk’s conduct was not actionable under either an intentional tort or

negligence theory, the plaintiffs’ CUTPA claim also failed because ‘‘the

factual predicate of the claimed unfair or deceptive act or practice . . .

[did] not exist.’’ Id., 620. Thus, contrary to the defendants’ contention, our

holding in Gomes does not stand for the proposition that a plaintiff cannot

prevail on a CUTPA claim if it also failed to prevail on the underlying claims.

Instead, Gomes holds that a CUTPA claim cannot be sustained when it is

partially predicated on separate wrongful conduct, and when that conduct

has been deemed not to be wrongful as a matter of law. In the present case,

such a determination could not have been made because, unlike the plaintiffs

in Gomes, the plaintiff in the present case did not allege that the claims

of breach of contract, breach of warranty, unjust enrichment, negligent

misrepresentation or fraud, alone or in conjunction with some other acts,

also constituted a violation of CUTPA. Rather, the plaintiff alleged that

certain of the defendant’s acts, taken in the course of the parties’ business

relationship, independently constituted a breach of contract, breach of

warranty, negligent misrepresentation, unjust enrichment, fraud, and an

unfair trade practice.

14 We note that the plaintiff contends that the defendants waived their

right to argue that New Mexico law governs the plaintiff’s unfair trade

practices claim by failing to raise that claim in a proper manner in the trial

court. Specifically, the plaintiff argues that the trial court was not required

to apply New Mexico law to its unfair trade practices claim because the

defendants never argued at trial that New Mexico’s unfair trade practices

law conflicts with CUTPA, and, in Connecticut, the party seeking a choice

of law determination bears the burden of demonstrating such a conflict.

See, e.g., Walzer v. Walzer, 173 Conn. 62, 76, 376 A.2d 414 (1977) (‘‘[w]hen

the applicable law of a foreign state is not shown to be otherwise, we

presume it to be the same as our own’’); Cohen v. Roll-A-Cover, LLC, 131

Conn. App. 443, 465–66, 27 A.3d 1 (‘‘The threshold choice of law issue in

Connecticut, as it is elsewhere, is whether there is an outcome determinative

conflict between applicable laws of the states with a potential interest in

the case. If not, there is no need to perform a choice of law analysis, and

the law common to the jurisdiction should be applied.’’ [Internal quotation

marks omitted.]), cert. denied, 303Conn. 915, 33A.3d 739 (2011). The plaintiff

also argues that the defendants, by failing to raise the choice of law issue

prior to trial, and instead waiting to do so until after trial, are estopped

from raising the issue on appeal. The plaintiff, however, never argued in

the Appellate Court that that court should decline to review the defendants’

choice oflaw claim on the basis ofthe defendants’ failure to raise it in a timely

and otherwise proper mannerin the trial court.As we recently explained, ‘‘[i]t

would undermine the interests of judicial economy, the orderly administration of justice and principles of fairness to allow a party to stand silent

when the opposing party raises an unpreserved claim in the Appellate Court

and then, after the unpreserved claim has been resolved in favor of the

party that raised it, to allow the party that stood silent to object to review

of the claim for the first time on appeal to this court.’’ Mueller v. Tepler,

312 Conn. 631, 644, 95 A.3d 1011 (2014). Consistent with this principle, we

decline to consider the plaintiff’s claim that the defendants waived their

choice of law claim.

We do note, however, that there is, in fact, an outcome determinative

conflict of laws between the unfair trade practices law of New Mexico and

CUTPA. Specifically, N.M. Stat Ann. § 57-12-1 et seq. (2000 & Supp. 2015),

unlike CUTPA, requires a showing that the alleged false or misleading representation was ‘‘knowingly made . . . .’’ N.M. Stat. Ann. § 57-12-2 (D) (Supp.

2015); see, e.g., Stevenson v. Louis Dreyfus Corp., 112 N.M. 97, 100–101,

811 P.2d 1308 (1991) (‘‘[t]he knowingly made requirement is met if a party

was actually aware that the statement was false or misleading when made,

or in the exercise of reasonable diligence should have been aware that the

statement was false or misleading’’ [internal quotation marks omitted]); cf.

Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 363,
525 A.2d 57 (1987) (knowledge of falsity, constructive or actual, need not

be proven under CUTPA).

We note, moreover, that the defendants did not identify the New Mexico

statute’s scienter requirement as the outcome determinative conflict when

it asked the trial court to apply New Mexico law. The defendants argued,

rather, that the New Mexico statute of limitations barred the plaintiff’s claim.

In fact, the statute of limitations for actions brought under the New Mexico

Unfair Practices Act is four years, one year longer than CUTPA’s limitation

period. Compare Nance v. L.J. Dolloff Associates, Inc., 138 N.M. 851, 856,

126 P.3d 1215 (App. 2005) (claim that is founded on violation of statute,

such as New Mexico Unfair Practices Act, that does not specify limitation

period is subject to four year statute of limitations), with General Statutes

§ 42-110g (f) (specifying three year limitation period).

15 We express no opinion as to whether the defendants were engaged in

trade or commerce in this state for purposes of CUTPA.

16 As we have explained, it is only because the plaintiff did not challenge

the propriety of the defendants’ choice of law claim in the Appellate Court

that we are obliged to review that claim in the present appeal. See footnote

14 of this opinion. Generally, however, choice of law claims must be raised

in the trial court in a timely manner; otherwise, they are deemed to be

waived. E.g., Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 90, 881 A.2d

139 (2005) (‘‘[w]e agree with the plaintiff that [the] issue must be determined

under Connecticut law because, at trial, the defendant failed to raise the

New York choice of law provision as applied to [the statute at issue] and

because the trial court rendered its decision solely by reference to Connecticut law’’); id., 90 n.9 (noting that defendants, having relied on Connecticut

law in their briefs in trial court, cannot later complain that trial court should

have applied another state’s law).

17 We note that none of the parties has specifically requested a new trial

in the event that this court concluded that the trial court should have applied

New Mexico law to the plaintiff’s unfair trade practices claim. If the trial

court had decided the choice of law issue correctly, however, that court

would have been required to apply New Mexico law to the plaintiff’s claim.

In such circumstances, the defendants, having asked the trial court to apply

New Mexico law to the plaintiff’s unfair trade practices claim—presumably

because they believed that that state’s statute of limitations favored them—

have no cause to complain about a remand so that New Mexico law can

be applied. Such a remedy simply places them in the position that they

would have been in if the trial court had decided the choice of law issue

correctly, in accordance with the defendants’ request.