author: GRUENDEL, J.

text:
    LUIS CARRILLO ET AL. v. KEITH GOLDBERG ET AL.
    (AC 34075)
    Graendel, Robinson and West, Js.

      Argued December 5, 2012
    officially released March 19, 2013

      Thomas J. O’Neill, for the appellants (plaintiffs).

      Abram Heisler, for the appellees (defendants).
   Opinion

GRUENDEL, J.

The plaintiffs, Luis Carrillo and Sandra Carrillo, appeal from the judgment of the trial court awarding them damages and interest for the failure of the defendants, Keith Goldberg and Leigh Ann Goldberg, to return their security deposit upon the termination of their lease in violation of General Statutes § 47 a-21 (d), punitive damages and attorney’s fees pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and interest pursuant to General Statutes § 52-192a. The plaintiffs claim that the court erred in (1) declining to award them double damages and interest pursuant to § 47a-21 (d) (2), (2) miscalculating interest pursuant to § 47a-21 (i) (l), (3) declining to award them treble damages pursuant to General Statutes § 52-564, (4) awarding them insufficient punitive damages and attorney’s fees for the defendants’ CUTPA violation, (5) denying their request for posttrial discovery of the defendants’ financial background and their motion for a hearing on punitive damages, (6) denying their motion for a hearing on attorney’s fees and (7) declining to award them interest pursuant to General Statutes § 37-3a. We affirm in part and reverse in part the judgment of the trial court.

The following facts found by the court and procedural history are relevant to our resolution of these claims. On July 23, 2007, the plaintiffs and the defendants entered into a lease agreement for the defendants’ single-family home in New Canaan. The agreement provided for the plaintiffs to take possession of the home on August 31, 2007, and for the lease to terminate on August 30, 2008, with monthly rent payments of $4800. At the inception of the lease, the plaintiffs paid to the defendants a “security deposit” of $4800, the first month’s rent of $4800 and the last month’s rent of $4800. The defendants opened checking and savings accounts at Wachovia Bank, depositing the “security deposit” and last month’s rent into the savings account, and the first month’s rent into the checking account. By October 1, 2007, the defendants had transferred $4800 from the savings account to the checking account, which was then used to satisfy the defendants’ obligation to the real estate agent who had arranged the leasing of the home to the plaintiffs. On November 6, 2007, the defendants transferred another $3000 from the savings account to the checking account and immediately thereafter paid from the checking account a veterinary bill for that same amount of $3000. After making those transfers from the savings account to the checking account, the savings account was left with a balance of $1812.32.

In the spring of 2008, the basement of the house flooded, causing damage to the plaintiffs’ personal property. The plaintiffs, with the defendants’ consent, deducted $941 from the rent payment for March, 2008, as compensation for these damages. On March 5, 2008, the defendants transferred $941.43 from the savings account to the checking account, leaving the savings account with a balance of $19.38. By the conclusion of the plaintiffs’ tenancy, a combined balance of less than $400 of the $9600 paid to the defendants for security and last month’s rent remained in the checking and savings accounts.

The lease agreement contained a provision that allowed for its early termination at the defendants’ option, with ninety days notice to the plaintiffs. At some point during the spring of 2008, the defendants gave such notice to the plaintiffs. The parties came to an agreement that the plaintiffs would vacate the premises by August 20, 2008. The plaintiffs withheld the rent payment for July, 2008, with the understanding that the last month’s rent paid at the inception of the lease was to be applied as rent for July, 2008. For the additional twenty days in August that the plaintiffs occupied the premises, the plaintiffs paid a prorated rent amount of $3096.77. Two days before the agreed upon termination of the leasehold, the plaintiffs vacated the premises.

On September 28, 2008, counsel for the plaintiffs sent to the defendants, via overnight mail, a letter regarding the security deposit and advising them of their forwarding address. The defendants, however, the day before, had sent an e-mail to the plaintiffs that contained an accounting of claimed damages and setoffs against the plaintiffs’ security deposit. After applying the plaintiffs’ security deposit to the amount of claimed damages, the defendants’ letter demanded payment of $6778.71 in compensation for their claimed damages. As articulated by the court, “the notable items claimed by [the defendants] as damages or setoffs are the following: $3698.91 in expenses for travel from California to Connecticut to inspect the premises, $941 for rent withheld for the month of March, 2008 . . . $4800 as an additional month’s rent for holding over past August 13,2008, $900 in legal fees and $1025 as costs of various items of physical damage.” At trial, Keith Goldberg admitted that he and his wife, Leigh Ann Goldberg, were not entitled to any of the sum claimed as damages in his accounting sent to the plaintiffs, except for $231.80 in fuel oil expenses. Keith Goldberg, drring his testimony at trial, claimed that his attorney, William Ostemdorf, had advised him to claim these expenses. Ostemdorf, when testifying at trial, denied giving Keith Goldberg such advice. In fact, he testified that he counseled Keith Goldberg that the travel expenses and additional month’s rent were “questionable” claims for damages. The court found that the defendants’ claimed damages were pretextual.

With respect to the plaintiffs’ claim that the defendants failed to return their security deposit pursuant to § 47a-21 (d), the court found in favor of the plaintiffs, awarding them $4800 in damages, plus $216.56 in interest. The court, however, did not find that the defendants had triggered the double damages provision of § 47a-21 (d) because the defendants had sent a written accounting of the damages within fifteen days of receiving notice of the plaintiffs’ forwarding address. The court also found that the defendants’ comingling of the plaintiffs’ security deposit with their own funds and the use of the plaintiffs’ security deposit for their own personal expenses violated § 47a-21 (h) (1), and also constituted CUTPA violations. As the court found that the defendants’ behavior evinced either “reckless indifference to [the plaintiffs’] rights or [an] intentional and wanton violation of those rights,” it awarded the plaintiffs $3000 in punitive damages, $2500 in attorney’s fees and $119 in costs. In deriving those specific amounts, the court did not articulate its reasoning, simply stating that the facts and circumstances of the case supported such an award. The court found that the plaintiffs’ claim that the defendants had committed statutory theft was without merit because the evidence presented at trial did not support the requisite finding of intent. On November 1, 2011, the plaintiffs filed a motion to open the judgment and to reargue and for hearings on punitive damages and attorney’s fees. The court denied their motion on November 8, 2011. This appeal followed.

I

DOUBLE DAMAGES AND INTEREST PURSUANT TO § 47a-21

We address first the plaintiffs’ claim regarding the court’s failure to award them double damages under § 47a-21 (d). The plaintiffs argue that the court’s award of only $4800 for the defendants’ failure to return their security deposit was improper because § 47a-21 (d) requires an award of double damages when a tenant’s security deposit is not returned in the fashion prescribed by this subsection. We agree.

“We accord plenary review to the court’s legal basis for its damages award. See First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 603, 724 A.2d 497 (1999). The court’s calculation under that legal basis is a question of fact, which we review under the clearly erroneous standard. Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 28, 664 A.2d 719 (1995).” American Diamond Exchange, Inc. v. Alpert, 101 Conn. App. 83, 103, 920 A.2d 357, cert. denied, 284 Conn. 901, 931 A.2d 261 (2007).

Before we can resolve the question of whether the court erroneously failed to award the plaintiffs double the amount of their security deposit, it is necessary to set forth the applicable definition of “security deposit.” Section 47a-21 (a) (10) defines a “security deposit” as “any advance rental payment other than an advance payment for the first month’s rent. . . .” While in common parlance a “security deposit” may have a conceptually distinct meaning from an advance payment of periodic rent, under Connecticut law, the term “security deposit” comprises all forms of advance rental payment, regardless of its intended use. According to the statutory definition, therefore, the total amount of the security deposit collected from the plaintiffs was $9600.

We turn now to the issue of whether the court improperly failed to double the plaintiffs’ security deposit in its award of damages. In its memorandum of decision dated October 13, 2011, the court found that the double damages provision of § 47a-21 (d) (2) had not been triggered in this case. The court reasoned that the defendants had provided an accounting of claimed damages to the plaintiffs before the plaintiffs sent the defendants notice of their forwarding address, thereby precluding an award of double damages pursuant to § 47a-21 (d) (2). As the court’s finding is contrary to the language of § 47a-21 (d) (2), we conclude that the court erred in declining to award the plaintiffs double their security deposit in damages.

Section 47a-21 (d) (2) provides in relevant part: “Upon termination of a tenancy, any tenant may notify his landlord in writing of such tenant’s forwarding address. Within thirty days after termination of a tenancy, each landlord . . . shall deliver to the . . . former tenant at such forwarding address either . . . the full amount of the security deposit . . . plus accrued interest . . . or . . . the balance of the security deposit paid by such tenant plus accrued interest . . . after deduction for any damages suffered by such landlord by reason of such tenant’s failure to comply with such tenant’s obligations, together with a written statement itemizing the nature and amount of such damages. Any such landlord who violates any provision of this subsection shall be hable for twice the amount or value of any security deposit paid by such tenant, except that, if the violation is the failure to deliver the accrued interest, such landlord shall only be liable for twice the amount of such accrued interest.”

Section 47a-21 (d) (4) addresses the circumstance where a landlord lacks notification of a former tenant’s forwarding address: “Any landlord who does not have written notice of his . . . former tenant’s forwarding address shall deliver any written statement and security deposit due to the tenant, as required by subdivision (2) of this subsection, within the time required by subdivision (2) of this subsection or within fifteen days after receiving written notice of such tenant’s forwarding address, whichever is later.”

The court appears to have interpreted these statutory provisions as allowing a landlord to substitute a fabricated accounting of damages for the return of a tenant’s security deposit in order to avoid the sanctions of § 47a-21 (d) (2). It appears, further, that the court interpreted these provisions to excuse a landlord from the sanction of double damages if the landlord has not received written notice of the tenant’s forwarding address prior to sending to the tenant a written accounting of damages. We conclude that this reading does not comport with the language of the statute.

Section 47a-21 (d) (2) requires, in the circumstance where the landlord does not return the entire security deposit, that the landlord return to the tenant both the “balance of the security deposit paid . . . after deduction for any damages” caused by the tenant and “a written statement itemizing the nature and amount of such damages. . . .” If a landlord does not comply with these requirements, the sanction is clear: the landlord “shall be liable for twice the amount ... of any security deposit paid . . . .” General Statutes § 47a-21 (d) (2).

With respect to the time period during which a landlord must fulfill the requirements for the proper return of a tenant’s security deposit, the language of the statute is similarly clear. Reading together subdivisions (2) and (4) of § 47a-21 (d), if the landlord has received written notice of the tenant’s forwarding address, the landlord must return the deposit, or balance thereof, along with any written accounting of damages, within thirty days of the end of the tenancy. If the landlord does not receive written notice of the tenant’s forwarding address by the end of the tenancy, the landlord must return the deposit by the later of either thirty days after the end of the tenancy or fifteen days after receipt of the written notice of the tenant’s forwarding address.

As the court found, the defendants’ claimed damages were pretextual, that is, they were calculated to camouflage the defendants’ mishandling of the plaintiffs’ security deposit. The statute allows for deductions to compensate for damages “suffered by [the] landlord by reason of [the] tenant’s failure to comply with such tenant’s obligations . . . .” General Statutes § 47a-21 (d) (2). In this case, however, the damages claimed by the defendants were neither suffered by the defendants nor created by the plaintiffs’ failure to comply with their obligations as tenants. Rather, they were simply fabricated by the defendants and, therefore, were not properly withheld by the defendants under § 47a-21 (d) (2). The language of the statute allows for landlords to deduct from a tenant’s security deposit actual damages, not pretextual damages. While the defendants complied, in form only, with the requirement that a written accounting of damages be sent to the former tenant within the time frame prescribed by § 47a-21 (d) (2) and (4), without also sending the plaintiffs the balance of the security deposit legitimately owed to them, they did not satisfy the statutory requirements. Accordingly, the defendants were subject to the doubling of damages under § 47a-21 (d) (2). We, therefore, conclude that the court improperly failed to award the plaintiffs damages equal to the amount of double their security deposit.

The plaintiffs next argue that the court calculated the accrued interest required to be delivered to tenants under § 47a-21 (i) on the incorrect amount of the security deposit they paid to the defendants. They argue that the court should have calculated interest pursuant to § 47a-21 (i) on the entire $9600 paid to the defendants at the inception of the lease. We agree.

As we previously discussed, § 47a-21 (a) (10) defines a “security deposit” as “any advance rental payment other than an advance payment for the first month’s rent . . . .” Under § 47a-21 (i), a landlord “shall pay [to the tenant] interest on each security deposit received by him . . . .” Together, these provisions require that a landlord pay to the tenant interest on any advance rental payment, other than a payment for the first month’s rent. At the inception of the lease, the defendants collected from the plaintiffs $9600 in advance rental payments. Pursuant to § 47a-21 (i), the defendants were required to pay interest on the entire $9600 advance rental payment. As the court awarded to the plaintiffs interest only on $4800, rather than the $9600 paid in advance by the plaintiffs, we conclude that the court erroneously calculated its interest award.

II

TREBLE DAMAGES FOR STATUTORY THEFT

The plaintiffs next argue that the court improperly failed to award them treble damages for statutory theft pursuant to § 62-564. We disagree.

In its memorandum of decision, the court found “no merit to the plaintiffs’ claim” sounding in statutory theft. The court, accordingly, did not award the plaintiffs damages of any kind for this claim. The plaintiffs argue that the facts of the present case support a finding of statutory theft and, therefore, the court erred in failing to award them treble damages allowed by § 52-564 in cases of statutory theft. The plaintiffs, on appeal, however, challenge the court’s failure to award damages, not the propriety of its finding that the evidence presented did not support the conclusion that the defendants had committed statutory theft. Accordingly, we address only, upon the court’s finding that the plaintiffs’ claim of statutory theft was meritless, whether the court was correct in declining to award treble damages. We conclude that in light of such a finding, the court’s declining to award treble damages was entirely proper.

Ill

PUNITIVE DAMAGES PURSUANT TO CUTPA

The plaintiffs contend that the court erred in (1) awarding them the insufficient amount of $3000 in punitive damages, (2) denying their motion for a posttrial hearing on the appropriate amount of punitive damages and (3) denying their request for posttrial discovery on the defendants’ financial background. We disagree with each of these contentions.

A

We address first the plaintiffs’ claim that the court’s award of $3000 in punitive damages was insufficient. We are not persuaded.

“General Statutes § 42-1 lOg provides in relevant part that [a]ny person who suffers any ascertainable loss of money or property ... as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action ... to recover actual damages. . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper. [A]warding punitive damages under . . . CUTPA is discretionary . . . 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.” (Internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn. App. 22, 33-34, 830 A.2d 240 (2003). We note also that “the CUTPA statutes do not provide a method for determining punitive damages . . . .” (Internal quotation marks omitted.) Id., 34.

As CUTPA does not prescribe an approach for calculating punitive damages but, instead, leaves this determination to the discretion of the trial court, in order to prevail on appeal, the plaintiffs must show that the court’s award of $3000 was an abuse of its discretion. Upon review of the record before us, we conclude that the plaintiffs have failed to demonstrate that the court, in awarding $3000 in punitive damages, abused its discretion or that injustice was done with this award.

B

We address next the plaintiffs’ claim that the court erroneously denied their motion for a hearing on the appropriate amount of punitive damages. We disagree.

“It is undisputed that, before trial, [a] court properly [may bifurcate] the liability and damages phases of [a] trial and [allow] the introduction of new evidence and new arguments in the damages phase. . . . When neither party has reason to believe that the trial has been bifurcated, however, the only function of a posttrial damages hearing would be to allow the party claiming damages a second bite at the apple.” (Citation omitted.) Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 253, 919 A.2d 421 (2007).

The plaintiffs cite no evidence in the record, nor could we locate any, that indicates that either party requested or expected that the trial would be bifurcated with a posttrial damages hearing. We conclude, therefore, that the court had no authority to grant the plaintiffs’ motion for a posttrial punitive damages hearing and, accordingly, did not err in denying the plaintiffs’ motion.

C

With respect to punitive damages, the plaintiffs’ final claim is that the court improperly denied their request for posttrial discovery on the defendants’ financial background. The plaintiffs argue that because the purpose of punitive damages under CUTPA is deterrence, the court should have granted discovery into the defendants’ financial circumstances so that it could determine the amount of punitive damages that would deter the defendants from violating CUTPA in the future. We do not agree.

In the pretrial period, the plaintiffs made several requests for production of the banking records pertaining to the defendants’ checking and savings accounts opened at thé inception of the lease agreement. On July 1, 2011, the plaintiffs also made forty-two requests for admission, many of which concerned the defendants’ banking practices. The record, however, does not contain any pretrial discovery requests by the plaintiffs related to the defendants’ general financial condition. When the wealth of the defendants was broached by the defendants’ counsel during redirect examination, Keith Goldberg acknowledged that he was “a person of some means” and could have paid the plaintiffs their security deposit if he had known he was required to do so. The plaintiffs did not conduct a recross-examination of Keith Goldberg in order to pursue further this topic.

“We have long recognized that the granting or denial of a discovery request rests in the sound discretion of the [trial] court, and is subject to reversal only if such an order constitutes an abuse of that discretion. . . . [I]t is only in rare instances that the trial court’s decision will be disturbed. . . . Therefore, we must discern whether the court could [have] reasonably conclude [d] as it did. . . . When reviewing claims under an abuse of discretion standard, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness . . . .” (Citation omitted; internal quotation marks omitted.) Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 7, 826 A.2d 1088 (2003).

Given that the plaintiffs had included in their complaint a prayer for punitive damages and had ample opportunity in the nearly three years before trial to request discovery related to the financial condition of the defendants, we conclude that the court’s denial of the plaintiffs’ request was a reasonable exercise of its “inherent managerial power to impose reasonable limits on discovery”; Ramin v. Ramin, 281 Conn. 324, 342 n.8, 915 A.2d 790 (2007); and, therefore, not an abuse of its discretion.

IV

ATTORNEY’S FEES PURSUANT TO CUTPA

The plaintiffs next argue that the court erred in (1) awarding $2500 in attorney’s fees and (2) denying their motion for a hearing on the reasonableness of these fees. We agree with the plaintiffs that the court erred in awarding $2500 in attorney’s fees and, accordingly, need not reach the issue of whether the court improperly denied their motion for a hearing on attorney’s fees.

At trial, Luis Carrillo testified that he paid approximately $35,000 in legal fees in pursuing this action. Before the close of evidence, the court accepted into evidence a detailed accounting of the services performed by the plaintiffs’ attorney and the fees associated with these services. The accounting revealed that over a three year period the plaintiffs’ counsel devoted in excess of ninety hours to this case, billed at a rate that started at $415 per hour. The majority of these hours accumulated in an effort to have the defendants comply with discovery requests, to settle with the defendants who were unwilling to do so or to move for default after the defendants’ repeated failures to plead and to appear in court as they were so ordered. The plaintiffs’ counsel explained, when submitting the accounting to the court, that the accounting did not include the time expended preparing for and attending trial. The court then stated that the trial time amounted to approximately four hours and inquired as to the amount of time the plaintiffs’ counsel had spent in preparation for trial. The plaintiffs’ counsel estimated that he had spent ten hours, but could provide a more precise accounting using his firm’s billing system. At no time did the defendants offer any evidence on the issue of attorney’s fees. The only argument heard by the court regarding the reasonableness of the attorney’s fees was the assertion of the defendants’ counsel that attorney’s fees of $45,000 “in connection with this” was “outrageous.”

“The public policy underlying CUTPA is to encourage litigants to act as private attorneys general and to engage in bringing actions that have as their basis unfair or deceptive trade practices. ... In order to encourage attorneys to accept and litigate CUTPA cases, the legislature has provided for the award of attorney’s fees and costs.” (Citation omitted; internal quotation marks omitted.) Jacques All Trades Corp. v. Brown, 42 Conn. App. 124, 130-31, 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997). “[T]he amount of attorney’s fees that the trial court may award is based on the work reasonably performed by an attorney and not on the amount of recovery.” Id., 131. “Once liability has been established under CUTPA, attorney’s fees and costs may be awarded at the discretion of the court. . . . We will not interfere with the trial court’s exercise of this discretion unless there is manifest abuse or injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Id.

“[T]he initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. . . . The courts may then adjust this lodestar calculation by other factors [outlined in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)]. ... The Johnson factors may be relevant in adjusting the lodestar amount, but no one factor is a substitute for multiplying reasonable billing rates by a reasonable estimation of the number of hours expended on the litigation.” (Citation omitted; internal quotation marks omitted.) Laudano v. New Haven, 58 Conn. App. 819, 822-23, 755 A.2d 907 (2000).

While the court did not articulate how it determined the $2500 award for attorney’s fees, by any calculation, it made a drastic reduction from any conceivable lodestar amount. In light of the fact that the defendants presented no evidence that the attorney’s fees detailed in the accounting provided by the plaintiffs’ counsel were unreasonable and that the public policy underlying the award of attorney’s fees in CUTPA cases is to encourage the pursuit of actions arising from unfair trade practices, we conclude that the court’s nearly 95 percent reduction in the award of attorney’s fees was an abuse of its discretion.

V

PREJUDGMENT INTEREST PURSUANT TO § 37-3a

Finally, we address the plaintiffs’ claim that the court erred in not awarding them prejudgment interest pursuant to § 37-3a. We conclude that the court did not so err.

“The allowance of prejudgment interest as an element of damages is an equitable determination and a matter lying within the sound discretion of the trial court. . . . The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through an application of an arbitrary rule.” (Internal quotation marks omitted.) Stratford v. A. Secondino & Son, Inc., 133 Conn. App. 737, 749, 38 A.3d 179, cert. denied, 304 Conn. 918, 41 A.3d 305 (2012).

“Although the determination as to whether prejudgment interest under § 37-3a should be awarded may depend on whether detention of money is wrongful, [t]he allowance of interest as an element of damages is . . . primarily an equitable determination and a matter lying within the discretion of the trial court. . . . [Discretion imports something more than leeway-in decision-making. ... It denotes the absence of a hard and fast rule or a mandatory procedure regardless of varying circumstances.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 750-51. While “our law recognizes prejudgment interest as a component of damages, it does not follow that it must be awarded.” Id., 751.

The plaintiffs argue that because the defendants’ detention of their money was wrongful, the court should have awarded prejudgment interest. While the plaintiffs have provided us with a hypothetical rationale for why the court could have exercised its discretion to award prejudgment interest, they have not shown how, on this record, the court abused its discretion by choosing not to award it. Absent such a showing, we will not disturb the decision of the court.

The judgment is reversed only as to the award of damages and accrued interest pursuant to § 47a-21 and the award of attorney’s fees pursuant to CUTPA, and the case is remanded with direction to recalculate those awards in accordance with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 47a-21 (d) (2) provides in relevant part: “Upon termination of a tenancy, any tenant may notify his landlord in writing of such tenant’s forwarding address. Within thirty days after termination of a tenancy, each landlord other than a rent receiver shall deliver to the tenant or former tenant at such forwarding address either (A) the full amount of the security deposit paid by such tenant plus accrued interest ... or (B) the balance of the security deposit paid by such tenant plus accrued interest . . . after deduction for any damages suffered by such landlord by reason of such tenant’s failure to comply with such tenant’s obligations, together with a written statement itemizing the nature and amount of such damages. Any such landlord who violates any provision of this subsection shall be liable for twice the amount or value of any security deposit paid by such tenant, except that, if the violation is the failure to deliver the accrued interest, such landlord shall only be liable for twice the amount of such accrued interest.”

       General Statutes § 47a-21 (i) (1) provides in relevant part: “On and after July 1, 1993, each landlord . . . shall pay interest on each security deposit received by him .... On the anniversary date of the tenancy and annually thereafter, such interest shall be paid to the tenant or resident or credited toward the next rental payment due from the tenant or resident, as the landlord or owner shall determine. If the tenancy is terminated before the anniversary date of such tenancy, or if the landlord or owner returns all or part of a security deposit prior to termination of the tenancy, the landlord or owner shall pay the accrued interest to the tenant or resident within thirty days of such termination or return. . . .”

       General Statutes § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

       General Statutes § 37-3a provides in relevant part: “[IJnterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909 ... as damages for the detention of money after it becomes payable. . . .”

       “Security deposit” is the parties’ denomination of this $4800 payment. We note that this characterization does not necessarily comport with the legal definition of a security deposit in Connecticut. We address this point in part I of this opinion.

       The court did not specify its rulings with respect to the plaintiffs’ breach of fiduciary duties and breach of contract claims. As the judgment file states, however, that the court found “the issues on the [cjomplaint for the [pjlaintiffs,” we conclude that this is an appealable final judgment. See Rent-A-PC, Inc. v. Rental Management, Inc., 96 Conn. App. 600, 604 n.3, 901 A.2d 720 (2006) (“[ajlthough it is preferable for a trial court to make a formal ruling on each count, we will not elevate form over substance when it is apparent from the memorandum of decision that the trial court found in favor of the plaintiff’). Moreover, we need not address specifically the claims of breach of fiduciary duty or breach of contract, as they are not the subject of this appeal.

       The plaintiffs also contend that the court erred in failing to double the interest awarded to them under § 47a-21 (d) and (i). We decline to review this claim, however, because it was inadequately briefed. “[W]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited.” (Internal quotation marks omitted.) Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010). The plaintiffs, in their brief to this court, merely employ a paraphrasing of the language of § 47a-21 (d) to stand for the proposition that the trial court erred in declining to award double the accrued interest on the plaintiffs’ security deposit. Failing to set forth an analysis of the statutory language and how that language applies to the facts of their case, the plaintiffs have provided us with inadequate briefing. Loathe to become “ ‘an advocate for any party’,” we, accordingly, decline to review this claim. Id., 408.

       Although some CUTPA cases might exist where “there may be some evidence that is collateral or irrelevant to the merits of a claim of CUTPA violation or proof of damages . . . [they nonetheless] may be relevant to proving whether punitive damages are warranted. ” Jacques All Trades Corp. v. Brown, 42 Conn. App. 124, 131-32, 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997). This is not such a case. In fact, both parties had the opportunity at trial, of which they took advantage, to present evidence and argument on the issue of punitive damages. Moreover, neither the parties nor the court reserved presentation on such issue until a subsequent hearing.

       During this matter’s three year litigation period, the hourly rate charged by the plaintiffs’ counsel increased from $415 per hour to $455 per hour.

       “The Johnson court set forth twelve factors for determining the reasonableness of an attorney’s fee award, and they are: the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal services properly; the preclusion of other employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation, and ability of the attorneys; the ‘undesirability’ of the case; the nature and length of the professional relationship with the client; and awards in similar cases.” Laudano v. New Haven, 58 Conn. App. 819, 823 n.9, 755 A.2d 907 (2000).


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    ALARMAX DISTRIBUTORS, INC. v. NEW CANAAN ALARM COMPANY, INC.
    (AC 33764)
    Beach, Bear and Bishop, Js.

      Argued October 25, 2012
    officially released March 19, 2013

      Alan R. Spirer, for the appellant (defendant).

      John B. Farley, with whom was Jeffrey F. Gostyla, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendant, New Canaan Alarm Company, Inc., appeals from the trial court’s judgment in favor of the plaintiff, Alarmax Distributors, Inc., on its breach of contract claim. On appeal, the defendant claims the trial court improperly (1) determined that the plaintiffs claim was not barred by the four year statute of limitations in General Statutes § 42a-2-725 and (2) awarded finance charges. We are unpersuaded by the defendant’s statute of limitations claim, but agree as to the award of finance charges. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

The following undisputed facts and procedural history are pertinent to our consideration of the issues on appeal. The plaintiff is a wholesale distributor of fire and home security equipment, and regularly extends credit to its customers. One such customer is the defendant, a business that installs, services and monitors security and fire alarm systems. In 1999, when the defendant became a customer of the plaintiff, it submitted an application for credit to the plaintiff. The credit application contained the following payment terms: “In consideration of your supplying products on open account credit terms, it is understood this account is to be paid in full on terms of net [thirty] days FOB shipping point.” Upon acceptance of this application, its terms formed the basis of the parties’ business relationship relating to credit and payment.

The following findings were set forth in the court’s memorandum of decision and find support in the record. “Initially, the defendant’s credit limit was established at $5000 but over time, as the parties developed their relationship, it increased to $15,000. The defendant was considered a good customer and with good customers it was the plaintiffs practice to permit the account to exceed the credit limit for longer than [thirty] days as long as a lump sum payment on account was made from time to time. This practice continued until sometime in 2005 when the defendant’s bookkeeper was charged with embezzling in excess of $600,000 [from the defendant; she was] later convicted [of the crime]. Not surprisingly, the loss of this money impaired the defendant’s ability to meet its financial obligations on a current basis including its account with the plaintiff. The defendant made its final purchase from the plaintiff on May 5, 2005. Thereafter, no further business was transacted between the parties. On November 16, 2005, the plaintiff sent the defendant a demand letter which stated an account balance of $112,309.90. On December 27, 2005, the defendant paid $2500 on account and on February 14, 2006, paid $1500 on account.”

The record reflects that the defendant made no further payments, and on September 15, 2009, the plaintiff commenced this action in multiple counts against the defendant seeking the balance due. Although the major focus of the plaintiffs complaint was on the defendant’s alleged breach of contract, the complaint also included counts for account stated, conversion, unjust enrichment, statutory theft and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. In response, the defendant asserted that the plaintiffs action involved a contract for the sale of goods and, therefore, was barred by the four year statute of limitations contained in § 42a-2-725. Specifically, the defendant asserted that its last payment was due thirty days from delivery of the last purchase made on May 5, 2005, and that, because the present action was not commenced until September 15, 2009, more than four years after the last purchase, the action was time barred. Both parties filed motions for summary judgment on the plaintiffs claims of breach of contract, account stated, unjust enrichment and a CUTPA violation. The court, Adams, J., granted the defendant’s motion for summary judgment on the CUTPA claim and denied the rest of the parties’ summary judgment motions on the ground that there were unresolved questions of material fact. Thereafter, the matter proceeded to trial on the remaining counts.

At trial, the court, Hon. A. William Mottolese, judge trial referee, heard testimony from employees of the defendant and the plaintiff regarding the nature of the parties’ business relationship and determined that, by their conduct, the parties had modified their initial agreement from an “ ‘invoice by invoice’ ” system into that of an “open account, which in law constituted an account stated.” The court found: “Shortly after the parties began to do business, the defendant permitted the plaintiff to ‘run up a balance’ and make lump sum payments on account, periodically, but not at regular and fixed intervals. The defendant did not have to pay the previous invoice before the plaintiff would ship another order. Nor did the defendant have to bring its account current as a condition precedent to shipment. During the entire time that the parties did business, the defendant never paid on an invoice by invoice basis. When in the plaintiffs judgment the account balance ran too high, its salesman . . . would call the defendant and ask the defendant to make a payment. This practice was typical of their relationship, notwithstanding that each monthly invoice clearly stated that the terms were ‘net [thirty] days’ and showed the account balance at the time. The plaintiff never enforced the [thirty] day requirement .... [P]ayments were made at irregular intervals and always in round numbers, e.g., $2000 on December 11, 2005; $2500 on October 8, 2004; $5000 on February 20, 2004; $10,000 on September 8, 2004. At some point in their relationship, the plaintiff told the defendant that it did not have to worry about the net [thirty] day requirement. In the history of their [fifteen] year association, the defendant never paid within [thirty] days. It is obvious that the defendant benefitted from this practice and followed it consistently.”

The court determined that by modifying their original agreement, the parties converted their arrangement into an “account stated.” The court then concluded: “The significance of this classification ... is that it precludes classification of the billing practice as an ‘invoice by invoice’ system and therefore allows the court to . . . consider whether the February 14, 2006 payment on account served to toll § 42a-2-725.” Answering that question in the affirmative, the court determined that the defendant’s last payment on February 14,2006, constituted an acknowledgment of the debt and was, therefore, the “trigger date” for the running of the statute of limitations. The court concluded that because the action was brought within four years from the trigger date, it was brought timely. Finally, the court determined that the plaintiff was entitled to recover finance charges of 1.5 percent per month as provided for in the parties’ credit agreement. The court denied the plaintiffs request to recover prejudgment interest pursuant to General Statutes § 37-3a in addition to the finance charges, on the ground that “it would be inequitable to award both since the finance charges were freely contracted for and fairly compensate the plaintiff for the wrongful detention of [the] money.” Thus, the court rendered judgment in favor of the plaintiff in the principal amount of $109,984.55, as well as accrued finance charges of $105,546.88. This appeal followed.

I

We first consider the defendant’s statute of limitations claims. The defendant claims that the court improperly found the plaintiffs action timely by (1) concluding that the fora year limitation period contained in § 42a-2-725 is subject to tolling, (2) concluding that the parties ignored the payment terms of their agreement and instead created an open account, thereby extinguishing their initial agreement and substituting a new agreement in its place, and (3) concluding that the defendant’s February 14, 2006 payment on the account served as an acknowledgement of the debt and, therefore, tolled the statute of limitations contained in § 42a-2-725. We address each of these arguments in turn.

A

The defendant’s challenge to the court’s conclusion that the statute of limitations was tolled is based on the defendant’s argument that § 42a-2-725, as a statute of repose, is not subject to tolling. We disagree.

As a preliminary matter, we set forth the standard of review. “Issues of statutory construction raise questions of law, over which we exercise plenary review.” (Internal quotation marks omitted.) Wiseman v. Armstrong, 269 Conn. 802, 809, 850 A.2d 114 (2004). We begin our analysis with the language of the statute. The limitation period of § 42a-2-725, an enactment of the Uniform Commercial Code (UCC) provision § 2-725, provides in relevant part: “An action for breach of any contract for sale must be commenced within four years after the cause of action has accmed. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. ... A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. . . . This section does not alter the law on tolling of the statute of limitations . . . .”

At the outset, we do not disagree with the defendant’s claim that § 42a-2-725 is a statute of repose as it contains a fixed limit of time, in this case four years, after which one in default of a contract may not be sued for its breach. The difficulty with the defendant’s position is its claim that, because § 42a-2-725 is a statute of repose, the time limit it embodies is not subject to tolling. In this assertion, the defendant is legally incorrect. As noted, § 42a-2-725 contains a provision explicitly providing that the statute “does not alter the law on tolling of the statute of limitations . . . .”

“Words in a statute must be given their plain and ordinary meaning . . . unless the context indicates that a different meaning was intended.” (Internal quotations marks omitted.) Gelinas v. West Hartford, 225 Conn. 575, 584, 626 A.2d 259 (1993). Simply put, we conclude that the court correctly interpreted § 42a-2-725 as a statute of limitations subject to tolling. Other jurisdictions considering their applicable sections of the parallel UCC provision § 2-725 have come to the same conclusion.

For example, in Greer Limestone Co. v. Nestor, 175 W. Va. 289, 332 S.E.2d 589 (1985), in an action on a breach of contract under UCC § 2-725, the court acknowledged that the limitation period could be tolled by a partial payment. The court first determined that the parties had an open account and that unless the defendant’s partial payments tolled the statute, the action would be barred under UCC § 2-725. Id., 294. The court concluded that “the rule in most jurisdictions is that partial payment on a debt may start the statute of limitations running anew where the payment is made voluntarily by a debtor under circumstances that warrant a clear inference that the debtor recognizes the whole debt to be subsisting and demonstrates his willingness or obligation to pay the balance of the debt.” Id., 295. The court affirmed the trial court’s finding that the requisites for the doctrine of partial payment had been met and the plaintiffs action was timely. Id., 296; see also Giordano v. Westchester County Dept. of Parks Recreation & Conservation, 32 App. Div. 3d 897, 898, 821 N.Y.S.2d 242 (2006) (considering whether UCC § 2-725 was tolled by defendant’s partial payment, although concluding plaintiff failed to demonstrate payment constituted acknowledgment of debt); Beckmire v. Ristokrat Clay Products Co., 36 Ill. App. 3d 411, 415, 343 N.E.2d 530 (1976) (finding UCC § 2-725 tolled by defendant’s absence from state). These cases are supportive of our conclusion that the limitation period embodied in the statute may, in law, be tolled by the conduct of the parties.

B

Having concluded that the four year limitation period embodied in § 42a-2-725 is subject to tolling, we turn next to our assessment of whether the trial court correctly determined that, by their behavior, the parties had tolled the statute.

The defendant claims that the court improperly found that the parties modified their original agreement and that, under the parties’ modified agreement, the defendant’s last payment toward the balance of the account was an acknowledgment of the debt, which tolled § 42a-2-725. First, we address whether the parties modified their agreement and, second, we address whether the defendant’s partial payments on the debt after June 9, 2005, were made in acknowledgment of the debt so as to toll the statute of limitations.

“Parties may alter any term of an existing contract by entering into a subsequent contract. . . . The contract as modified becomes a new contract between the parties. . . . The meaning to be given subsequent agreements . . . depends on the intention of the parties. As intention is an inference of fact, the conclusion is not reviewable unless it was one which the trier could not reasonably make.” (Citation omitted; internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 189-90, 2 A.3d 873 (2010). The defendant argues that although the plaintiff consented to a more lenient schedule of payments, the parties’ conduct could not alter when the plaintiffs action accrued under § 42a-2-725. We disagree.

“For a valid modification to exist, there must be mutual assent to the meaning and conditions of the modification and the parties must assent to the same thing in the same sense. . . . Modification of a contract may be inferred from the attendant circumstances and conduct of the parties. . . .

“Whether the parties to a contract intended to modify the contract is a question of fact. . . . The resolution of conflicting factual claims falls within the province of the trial court. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witness.” (Citations omitted; emphasis added; internal quotation marks omitted.) Herbert S. Newman & Partners v. CFC Construction Ltd. Partnership, 236 Conn. 750, 761-62, 674 A.2d 1313 (1996); id., 762 (following agreement between architectural firm and general contractor that firm’s invoices for services would not exceed set monthly amount, contractor’s payment of firm’s invoices that regularly exceeded spending cap for almost two years constituted consent to modify contract to increase firm’s spending limit).

In the present case, the court concluded that “[t]here is no question that the parties knowingly and intelligently ignored the payment terms of their agreement and instead created an open account which, in law, constituted an account stated.” The evidence supports the court’s finding that the parties modified their original agreement by not adhering to the thirty day payment term in the credit agreement but rather, throughout the course of their fifteen year business relationship, they had an open, running account where the defendant made periodic, lump sum payments toward the balance of the account. “An open account is defined as [a]n unpaid or unsettled account; an account with a balance which has not been ascertained, which is kept open in anticipation of future transactions.” (Internal quotation marks omitted.) John H. Kolb & Sons, Inc. v. G & L Excavating, Inc., 76 Conn. App. 599, 607, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003); id., 608-609 (affirming trial court’s conclusion that parties had established open, running account because plaintiff charged defendant’s account and defendant made periodic payments to account during parties’ five year business relationship, during which, defendant was never required to pay total amount of account).

In the present case, the court found, with adequate support in the record, that shortly after the parties began their business relationship, the plaintiff permitted the defendant to accrue a balance on its account, notwithstanding that each monthly invoice clearly stated that the terms were “net [thirty] days.” Instead of paying each thirty days, however, the defendant made lump sum payments on the account periodically. The defendant was not required to bring the account current before the plaintiff would ship additional orders and “[d]uring the entire time that the parties did business, the defendant never paid on an invoice by invoice basis.” “A recognized test for whether a later agreement between the same parties to an earlier contract constitutes a substitute contract looks to the terms of the second contract. If it contains terms inconsistent with the former contract, so that the two cannot stand together it exhibits characteristics . . . indicating a substitute contract.” (Internal quotation marks omitted.) Bushnell Plaza Development Corp. v. Fazzano, 38 Conn. Sup. 683, 688, 460 A.2d 1311 (1983), quoting Riverside Coal Co. v. American Coal Co., 107 Conn. 40, 45, 139 A. 276 (1927). “[A]n essential element of any novation [or substitute contract] is the extinguishing of the original contract by substitution of a new one.” Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 145, 709 A.2d 1075 (1998); see also Willamette Management Associates, Inc. v.Palczynski, 134 Conn. App. 58, 72, 38 A.3d 1212 (2012) (substitute contract is agreement “between the same parties which supersede [s] and discharge [s] prior contract obligations”). On the basis of the evidence, we conclude that the trial court reasonably could have found that the parties entered into a new agreement for an open account.

C

We turn next to address whether the defendant’s payment, on February 14,2006, constituted an acknowledgment of the debt.

The defendant claims that the court improperly found that, as a consequence of the parties’ new agreement, the defendant’s last payment toward the balance of the account may be considered an acknowledgment of the whole debt from which an unconditional promise to pay can be implied, thereby tolling the statute of limitations.

“The Statute of Limitations creates a defense to an action. It does not erase the debt. Hence, the defense can be lost by an unequivocal acknowledgment of the debt, such as a new promise, an unqualified recognition of the debt, or a payment on account. . . . Whether partial payment constitutes unequivocal acknowledgment of the whole debt from which an unconditional promise to pay can be implied thereby tolling the statute of limitations is a question for the trier of fact. . . .

“A general acknowledgment of an indebtedness may be sufficient to remove the bar of the statute. The governing principle is this: The determination of whether a sufficient acknowledgment has been made depends upon proof that the defendant has by an express or implied recognition of the debt voluntarily renounced the protection of the statute. . . . But an implication of a promise to pay cannot arise if it appears that although the debt was directly acknowledged, this acknowledgment was accompanied by expressions which showed that the defendant did not intend to pay it, and did not intend to deprive himself of the right to rely on the [s]tatute of [limitations. ... [A] general acknowledgment may be inferred from acquiescence as well as from silence, as where the existence of the debt has been asserted in the debtor’s presence and he did not contradict the assertion. . . .

“We review the trial court’s finding [of an acknowledgment of the debt] . . . under a clearly erroneous standard. ... [A] finding of fact is clearly erroneous when there is no evidence in the record to support it .... We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” (Emphasis added; internal quotation marks omitted.) Zatakia v. Ecoair Corp., 128 Conn. App. 362, 369-70, 18 A.3d 604, cert. denied, 301 Conn. 936, 23 A.3d 729 (2011).

In the present case, the court heard evidence that the plaintiff had sent the defendant a demand letter in November, 2005, indicating that its account was past due and that, if the defendant did not bring the account current, the plaintiff would institute proceedings to collect the balance. In January, 2006, the defendant requested forbearance from the plaintiff, while simultaneously acknowledging both the amount and the past due status of the debt. The court found that this forbearance request was “a fresh promise to pay the old debt.” Further evidence showed that after receipt of the letter, the defendant made two lump sum payments, $2500 on December 27,2005, and $1500 on February 14,2006. The court found that those payments indicated the intent of the defendant to acknowledge and to pay the account balance. We cannot say that this finding was clearly erroneous; rather, the record supports the court’s conclusion that these payments constituted an acknowl-edgement of the defendant’s debt to the plaintiff, thus tolling the running of the statute of limitations. “[The] defense [of the statute of limitations] can be lost by an unequivocal acknowledgment of the debt, such as a new promise, an unqualified recognition of the debt, or a payment on account.” (Emphasis added; internal quotation marks omitted.) Zatakia v. Ecoair Corp., supra, 128 Conn. App. 369.

We conclude, therefore, that the court properly found that the defendant’s payment on February 14, 2006, the date of last payment, constituted an acknowledgement of the debt and also operates as the date on which the statute of limitations began to run. Because the plaintiff brought this action within four years from the date of acknowledgement, this action is not time barred. We conclude, as well, that the court properly rendered judgment in favor of the plaintiff on its breach of contract claim in the amount of $109,984.55.

II

The defendant further claims that the court improperly awarded finance charges because there was no evidence to support the court’s finding that the defendant signed the credit application, which provided for the terms of the finance charges and, further, the plaintiff should be estopped from claiming the finance charges because the parties deviated from the terms of the credit agreement. In response, the plaintiff argues that, if this court determines that the finance charges were awarded in error, we should remand the case to the trial court for a rehearing on the question of prejudgment interest under § 37-3a. Because we conclude that the court correctly determined that the parties had extinguished their original agreement by the formation of a new agreement, we agree with the defendant’s claim that the court should not have awarded finance charges to the plaintiff pursuant to the original agreement.

The following additional facts are relevant to our consideration of this issue. The parties’ credit agreement included the following provision regarding the imposition of finance charges: “The guarantor(s) hereby agree to pay all purchases within the payment terms of net [thirty] days FOB shipping point and to pay an added service charge of [1.5 percent] per month on all delinquent invoices or portion thereof until paid.” The court found that it would be inequitable to award both the finance charges and prejudgment interest because the finance charges were freely contracted for and would fairly compensate the plaintiff for the wrongful detention of its money.

As discussed in part I B of this opinion, the court found that the parties entered into a new agreement, which no longer required payment thirty days from the date of the invoice, but instead, the defendant made sporadic periodic payments to reduce the balance of its account and the plaintiff accepted these payments. The provision for payment of finance charges in the parties’ original agreement was linked to the thirty day payment requirement. When the parties modified their agreement by their conduct, however, they created a new agreement. As the court correctly noted, “[t]he essential element of a novation is the extinguishment of the original contract by the substitution of a new one.” The plaintiff cannot rely on the original agreement as a basis to support the imposition of the finance charges while simultaneously relying on the existence of a new contract to reset the tolling of the statute of limitations.

Having concluded that the plaintiff is not entitled to the finance charges, we next consider the plaintiffs argument that it should be entitled to a rehearing on its claim for prejudgment interest pursuant to § 37-3a. We agree with the plaintiff. It is clear from the record that the court did not award prejudgment interest because it awarded finance charges in accordance with the terms of the parties’ original agreement. Thus, we do not read the record as a determination, on the merits, that the plaintiff is not entitled to prejudgment interest but rather as an equitable determination by the court that the plaintiff should not be entitled to recover prejudgment interest in addition to the finance charges. In fight of our determination, it now would be appropriate for the court to take up the issue of prejudgment interest. “[An award of prejudgment interest] is ... an equitable determination . . . which is informed by the demands of justice rather than through the application of an arbitrary rule.” (Citations omitted; internal quotation marks omitted.) Stratford v. A. Secondino & Son, Inc., 133 Conn. App. 737, 751, 38 A.3d 179, cert. denied, 304 Conn. 918, 41 A.3d 305 (2012). Thus, we reverse the trial court’s award of finance charges and remand the case to the trial court for adjudication of prejudgment interest pursuant to § 37-3a.

The judgment is reversed only as to the award of finance charges and the case is remanded for further proceedings in accordance with law; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Elsewhere in the court’s memorandum of decision, the $1500 payment is stated as having taken place on February 16, 2006. On our review of the record, the correct date of the defendant’s payment appears to have been February 14,2006. In either case, the difference of two days is not significant.

       When the court rendered its decision, only three counts remained, namely, the counts for breach of contract, account stated and unjust enrichment. The court determined, and we agree, that the plaintiff apparently did not pursue the conversion or statutory theft counts. In drawing this conclusion, the court relied on the fact that, in its posttrial brief dated June 8, 2011, the plaintiff referred to the breach of contract, account stated and unjust enrichment counts as the “operative counts.” Correspondingly, although the court did not refer specifically to the breach of contract and account stated counts in its memorandum of decision, it reasonably may be inferred that the court believed, as well, that these were the only operative counts and its findings pertained only to those counts. In fight of the fact that the court found in favor of the plaintiff as to the breach of contract count, it did not need to address the plaintiffs alternative cause of action of unjust enrichment. See Union Trust Co. v. Jackson, 42 Conn. App. 413, 416 n.2, 679 A.2d 421 (1996).

       In its brief to this court, the defendant argued that the modified, oral payment agreement, as a substituted contract, must stand on its own, and, therefore, the court should have applied the three year statute of limitations applicable to oral contracts as set forth in General Statutes § 52-581 (a). At oral argument before this court, however, the defendant agreed that the applicable statute of limitations is § 42a-2-725.

       The defendant, in its reply brief, makes the additional argument that the provision in § 42a-2-725 (4) that “[t]his section does not alter the law on tolling of the statute of limitations,” is unclear as to whether the “law on tolling” refers solely to statutory law or is intended to include common-law tolling doctrines. The defendant argues further that if varying decisional law doctrines are included in the definition, their inclusion would violate the purpose stated in the official comment to UCC § 2-725: “To introduce a uniform statute of limitations for sales contracts, thus eliminating the jurisdictional variations and providing needed relief for concerns during business on a nationwide scale whose contracts have heretofore been governed by several different periods of limitation depending upon the state in which the transaction occurred.” This language, however, must be read in conjunction with the following language also contained in the commentary to UCC § 2-725 that “[sjubsection (4) makes it clear that this Article does not purport to alter or modify in any respect the law on tolling of the Statute of Limitations as it now prevails in the various jurisdictions.” Thus, we conclude that a fair reading of this particular UCC commentary is that the drafters intended for there to be a uniform statute of limitations while acknowledging that jurisdictions may have differing common-law doctrines applicable to the tolling of the statute of limitations.

       The court refers to the parties modified arrangement as both an “open, running account” and an “account stated.” An “open account” has been defined by this court as “[a]n unpaid or unsettled account; an account with a balance which has not been ascertained, which is kept open in anticipation of future transactions.” (Internal quotation marks omitted.) John H. Kolb & Sons, Inc. v. G & L Excavating, Inc., 76 Conn. App. 599, 607, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003), quoting Black’s Law Dictionary (6th Ed. 1990). An account stated occurs when parties to an open account agree, either expressly or impliedly, that a definite amount is due. Citibank (South Dakota), N.A. v. Manger, 105 Conn. App. 764, 766 n.2, 939 A.2d 629 (2008) (“[t]he delivery by the [creditor] to the [debtor] of each statement of the latter’s account, with the [documentation] upon which the charges against [the debtor’s account] were based, [is] a rendition of the account so that retention thereof for an unreasonable time constitute [s] an account stated which is prima facie evidence of the correctness of the account” [internal quotation marks omitted]); see also 1A C.J.S., Account Stated § 16 (2005) (“An account stated is generally considered to be a new contract, distinct from any original arrangement, creating a new obligation that taires the place of previous obligations. It is founded on the defendant’s admission, express or implied, that a definite amount is due.”). Although the court never explicitly stated its reasoning for finding that the parties created an account stated, such a finding is implicit in its conclusion that the parties had an open account and, subsequently, neither party challenged the amount due. Further, the defendant’s employee specifically testified that he acknowledged to an employee of the plaintiff that the amount was correct and owing when he requested forbearance on the debt in January, 2006.

       The court found that “payments were made at irregular intervals and always in round numbers, e.g., $2000 on December 11, 2005; $2500 on October 8,2004; $5000 on February 20, 2004; $10,000 on September 8, 2004.”

       General Statutes § 37-3a provides in relevant part: “[I]nterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. ...”

       Having made this determination, we need not consider the defendant’s argument regarding the credit application.