author: LAVTNE, J.

text:
    ALFONSO SGRITTA ET AL. v. COMMISSIONER OF PUBLIC HEALTH
    (AC 32963)
    Lavine, Alvord and Bishop, Js.

      Argued October 19, 2011
    officially released February 21, 2012

      Samuel J. Bernstein, for the appellants (plaintiffs).

      Darren P. Cunningham, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).
   Opinion

LAVTNE, J.

This appeal arises out of the decision of the department of health and social services of the city of Stamford (Stamford health) to issue a cease and desist order to the plaintiffs, Alfonso Sgritta and Beverly Sgritta, the owners and lessors of premises where an allegedly illegal massage establishment operated in violation of various local ordinances. The plaintiffs appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant, the commissioner of public health, upholding the order issued by Stamford health. On appeal, the plaintiffs claim that the trial court erroneously concluded that (1) the plaintiffs were not prejudiced by the determination of a hearing officer for the defendant that she did not have jurisdiction over portions of the order and (2) General Statutes (Rev. to 2005) § 19a-206 (b) authorized Stamford health to issue the order to the plaintiffs, even though they did not control the premises where the violations occurred. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. Beginning in 2002, the plaintiffs leased the second floor of a building they owned located at 934 East Main Street to Apple Salon. On December 1,2006, following an inspection of the subject premises, Stamford health issued an order to the plaintiffs. The order cited violations of nine local ordinances: practicing massage therapy without a license; operating a massage establishment without a permit; inadequate lighting; revealing clothing worn by massage therapists; insufficient laundry cleaning, locks on massage room doors; failure to post service prices; employees residing on the premises; and preparation and storage of food on the premises. The order stated: “You are hereby directed and ordered to cease and desist all operation at Apple Salon by Tuesday December 5, 2006 .... Apple Salon will not be allowed to reestablish activities without first being sanctioned by the Stamford Zoning, Building, Fire, Police and Health Departments.”

On December 5, 2006, the plaintiffs filed a timely notice of appeal with the defendant pursuant to General Statutes § 19a-229. The plaintiffs claimed that the order should not have been directed to them because, as arm’s length lessors, they were not involved in the operation of the massage establishment.

On December 29, 2009, the defendant, through a designated hearing officer, issued a final decision on the plaintiffs’ appeal. The hearing officer first construed General Statutes §§ 19a-2a, 19a-200, 19a-207 and 19a-229 and concluded that she had “jurisdiction over appeals of orders issued by local health directors that cite violations of public health statutes and regulations, as well as local ordinances relating to public health . . . .” (Emphasis in original.) The hearing officer stated that she did not have jurisdiction over three of the cited local ordinances, which, she concluded, did not relate to public health: requiring a permit to operate a massage establishment; prohibiting massage therapists from wearing revealing clothing; and requiring that service prices be posted. Of the six remaining citations, the hearing officer upheld five because the plaintiffs failed to demonstrate that the violations did not occur. The hearing officer struck the order’s citation for practicing massage therapy without a license because that ordinance is specifically directed at the individual massage therapists. Rejecting the plaintiffs’ challenge to the entire order on the basis that they were not involved in the violations, the hearing officer concluded that the language of § 19a-206 authorized Stamford health to issue the order to the plaintiffs as “ ‘owners’ ” of the premises.

The plaintiffs then filed an administrative appeal to the trial court, challenging the hearing officer’s determinations that she lacked jurisdiction to consider three of the citations in the order and that § 19a-206 authorized Stamford health to issue the order to the plaintiffs. The court concluded that the plaintiffs failed to demonstrate that they were prejudiced by the hearing officer’s failure to assert jurisdiction over certain citations. The court also agreed with the hearing officer that Stamford health properly issued the order to the plaintiffs pursuant to the plain language of § 19a-206; see footnote 2 of this opinion; and, accordingly, dismissed the appeal. This appeal followed.

I

The plaintiffs first claim that the trial court erroneously concluded that they were not prejudiced by the hearing officer’s determination that she lacked jurisdiction over all of the citations in the order. We disagree.

“Judicial review of [an administrative agency’s] action is governed by the [Uniform Administrative Procedure Act, General Statutes § 4-166 et seq.] . . . and the scope of that review is very restricted. . . . The court’s ultimate duty is only to decide whether, in fight of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion.” (Internal quotation marks omitted.) Papic v. Burke, 113 Conn. App. 198, 204, 965 A.2d 633 (2009). “In order for a reviewing court to reverse or modify an agency’s decision, General Statutes § 4-183 (g) (1) [now subsection (j)] requires the court to find that substantial rights of the appellant have been prejudiced.” Goldberg v. Ins. Dept., 207 Conn. 77, 82-83, 540 A.2d 365 (1988).

The plaintiffs argue that, contrary to the hearing officer’s construction, § 19a-229 requires the defendant to review on appeal all orders issued by local health directors, regardless of their connection to public health. The plaintiffs also argue that the three citations over which the hearing officer did not assert jurisdiction are related to public health. The plaintiffs contend further that they were prejudiced because the hearing officer’s refusal to take jurisdiction results in “an outstanding order,” which “the plaintiffs must act to satisfy . . . or face criminal prosecution or civil penalties.”

The defendant argues that the hearing officer properly concluded that her jurisdiction was limited to issues relating to public health. The defendant additionally argues that the plaintiffs were not prejudiced by the hearing officer’s refusal to assert jurisdiction over three of the citations because (1) the plaintiffs failed to challenge the sufficiency of the evidence supporting those citations and (2) the cease and desist order would have remained in effect even if the hearing officer had asserted jurisdiction over and struck the three citations because she upheld five other citations.

We conclude that the plaintiffs have not demonstrated that they were substantially prejudiced by the hearing officer’s determination that she lacked jurisdiction over three of the citations. As noted by the defendant, the plaintiffs did not claim that there was insufficient evidence to support the citations. Rather, the plaintiffs only claimed in their appeal to the defendant that Stamford health could not issue the order to arm’s length landlords, an argument which, as discussed in part II of this opinion, we reject. Moreover, we agree with the defendant that, because the cease and desist order cited nine violations of local ordinances, the ultimate directive to “cease and desist all operation at Apple Salon” would have remained in effect even if the hearing officer struck the three citations at issue. See New Haven v. Public Utilities Commission, 165 Conn. 687, 717, 345 A.2d 563 (1974) (“remaining [findings] furnish full support for the order of the [agency]”). We agree with the trial court that the plaintiffs have not demonstrated that they were substantially prejudiced, under § 4-183 (j), by the hearing officer’s determination that she did not have jurisdiction over three of the citations. We therefore conclude that the trial court properly dismissed this portion of the plaintiffs’ administrative appeal.

II

The plaintiffs next claim that, because they were not involved in the operation of the massage establishment, the trial court erroneously concluded that § 19a-206 (b) authorized Stamford health to issue the order to them. Specifically, the plaintiffs argue that § 19a-206 cannot be construed to permit local health directors to issue orders to landlords unless “the health hazard is directly within the control” of the landlord. According to the plaintiffs, because they cannot directly remedy the violations — short of instituting a summary process eviction, which would be an unreasonable requirement— the order should not have been issued to them. The plaintiffs further assert that § 19a-206 (a) and (b) should be read together such that an order may only be directed at landlords “maintaining” the property in a manner so as to constitute a nuisance. We are not persuaded.

“Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . [T]he traditional deference accorded to an agency’s interpretation of a statutory term is unwarranted [however] when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] ... a governmental agency’s time-tested interpretation . . . .” (Citation omitted; internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 716-17, 6 A.3d 763 (2010). Because § 19a-206 (b) has not been subject to judicial scrutiny by our appellate courts or consistently applied by the department of public health over a long period of time, we do not give special deference to the defendant’s interpretation of the statute. See id., 717-18.

The following principles of statutory interpretation govern our construction of § 19a-206 (b). “[Statutes are to be considered to give effect to the apparent intention of the lawmaking body. . . . The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Planning & Zoning Commission v. Freedom of Information Commission, 130 Conn. App. 448, 455-56, 23 A.3d 786 (2011); see General Statutes § 1-2z.

We begin our analysis with the language of the statute. Section 19a-206 provides in relevant part: “(a) . . . Any owner or occupant of any property who maintains such property, whether real or personal, or any part thereof, in a manner which violates the provisions of the Public Health Code enacted pursuant to the authority of sections 19a-36 and 19a-37 shall be deemed to be maintaining a nuisance or source of filth injurious to the public health. . . .

“(b) When any such nuisance or source of filth is found on private property, such director of health shall order the owner or occupant of such property, or both, to remove or abate the same within such time as the director directs. . . .” (Emphasis added.)

We conclude that § 19a-206 (b) clearly and unambiguously authorizes local health directors to issue orders to landlords for public nuisance violations regardless of the landlords’ involvement in the violations. Although subsection (a) of § 19a-206 describes when an owner is “deemed to be maintaining a nuisance or source of filth,” subsection (b) does not limit local health directors to ordering only those who maintain the nuisance or source of filth to “remove or abate” it. The phrase “such nuisance or source of filth” in subsection (b) refers to the definition in subsection (a) of the conditions that constitute a nuisance or source of filth, i.e., violations of the public health code. If the legislature had intended to limit the power of local health directors consistent with the plaintiffs’ argument, then it could have provided that the “director of health shall order the owner or occupant maintaining the nuisance or source of filth on such property to remove or abate the same . . . .’’See, e.g., Achillion Pharmaceuticals, Inc. v. Law, 291 Conn. 525, 536, 970 A.2d 57 (2009) (construing General Statutes § 12-217ee).

We agree with the defendant’s unsurprising contention that “a much more logical reading of the statute” is that the legislature armed local health directors with broad authority to issue orders to parties who might be able to remedy violations of public health regulations, including landlords who otherwise might ignore such violations. Section 19a-206 therefore bears some similarity to General Statutes §§ 22a-432 and 22a-433, which authorize the commissioner of environmental protection to issue orders “to correct potential sources of pollution . ...” As explained by our Supreme Court, “[t]he statutes operate in conjunction to enable the commissioner to impose liability not only on those who had ‘established ... or created’ the pollution or were ‘maintaining’ a condition, but also on the owner of the land. Section 22a-433, therefore, provides a legal avenue, not available at common law, enabling the [commissioner] to impose liability on a landowner even if the owner did not ‘establish or create’ the condition or was not ‘maintaining’ the condition. Together, §§ 22a-432 and 22a-433 enable the commissioner, in order to achieve the act’s remedial purposes, to impose liability on all those who, in some way, have responsibility toward the land.” Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 388, 627 A.2d 1296 (1993).

We conclude that § 19a-206 (b) contemplates that local health directors may pursue landlords who, although not actively involved in the violations, have some responsibility for the premises and benefit financially from the tenancy. We therefore decline to read into § 19a-206 (b) the limitation proffered by the plaintiffs. Accordingly, we conclude that Stamford health was authorized to issue the order to the plaintiffs, and, therefore, the trial court properly dismissed that portion of the plaintiffs’ administrative appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The tenant, Apple Salon, also was issued a cease and desist order by Stamford health and appealed from the trial court’s judgment dismissing its appeal from the decision of the defendant upholding the order. See Apple Salon v. Commissioner of Public Health, 132 Conn. App. 332, 333, 33 A.3d 755 (2011). This court affirmed the judgment of the trial court on the ground that, during oral argument before the trial court, Apple Salon waived its claim that the defendant’s decision was not supported by substantial evidence. Id., 333-34.

       General Statutes (Rev. to 2005) § 19a-206 (b) provides in relevant part: “When any such nuisance or source of filth is found on private property, such director of health shall order the oumer or occupant of such property, or both, to remove or abate the same within such time as the director directs.” (Emphasis added.)
      For convenience, all references to § 19a-206 herein are to the 2005 revision.

       The defendant had issued an initial final decision on March 13, 2008, and the plaintiffs filed an appeal to the trial court in April, 2008. On June 12, 2009, however, the court granted the parties’ joint motion to remand the case to the defendant for clarification of the defendant’s jurisdiction to review Stamford health’s order.

       The hearing officer stated in her decision, however, that the plaintiffs “did not dispute and the evidence was insufficient to refute [Stamford health’s] characterization of Apple Salon as an ‘unlicensed massage therapy establishment.’ ”

       General Statutes § 22a-432 provides in relevant part: “If the commissioner finds that any person has established a facility or created a condition before or after June 25, 1985, or is maintaining any facility or condition which reasonably can be expected to create a source of pollution to the waters of the state, he may issue an order to such person to take the necessary steps to correct such potential source of pollution. . . .”
      General Statutes § 22a-433 provides in relevant part: “Whenever the commissioner issues ... an order to correct potential sources of pollution pursuant to the provisions of 22a-432 . . . and the commissioner finds that such person is not the owner of the land from which such source of pollution or potential source of pollution emanates, he may issue a like order to the owner of such land .... When the commissioner issues such an order to an owner, the owner and the person causing such pollution shall be jointly and severally responsible. . . .” (Emphasis added.)

       We note that while Starr v. Commissioner of Environmental Protection, supra, 226 Conn. 358, was pending before our Supreme Court, “the legislature enacted No. 93-375 of the 1993 Public Acts (P.A. 93-375), entitled ‘An Act Establishing an Innocent Landowner Defense in Pollution Cases,’ codified at General Statutes §§ 22a-452d and 22a-452e.” Starr v. Commissioner of Environmental Protection, 236 Conn. 722, 728-29, 675 A.2d 430 (1996); see id., 744 (reversing trial court after commissioner granted plaintiffs motion for reconsideration following Starr v. Commissioner of Environmental Protection, supra, 358, because plaintiff was “an innocent landowner,” pursuant to § 22a-452d [1] [B] [iii]). Notably, § 22a-452d (1) (A) (iii) excludes from the “ ‘[i]nnocent landowner’ ” definition persons who hold an interest in real estate that “is subject to a spill or discharge” caused by “an employee, agent or lessee of the landowner . . . .” (Emphasis added.) Moreover, there is no such “innocent landowner” statute applicable to the plaintiffs in this appeal.

       The plaintiffs argue that, because the order does not expressly state that they must commence a summary process eviction action, they are not required to do so. That issue, however, is not before us. Neither the hearing officer nor the trial court addressed the requirements of the order, and, accordingly, we decline to do so as well because it is not necessary to our resolution of this appeal.


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LUIS RODRIGUEZ
    (AC 32279)
    DiPentima, C. J., and Beach and Dupont, Js.
    Argued January 3
    officially released February 21, 2012

      Elizabeth M. Inkster, senior assistant public defender, with whom was Kelly M. Berwick, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Luis Rodriguez, appeals from the judgment of conviction, rendered after a jury trial, of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction for assault in the first degree and (2) the trial court abused its discretion in admitting certain testimonial evidence during trial. The defendant’s claims are intertwined because both involve the credibility of a witness, Angel Salvador Diaz, who was the victim of the defendant’s alleged assault. The defendant does not dispute that Diaz was assaulted, but claims that the state did not prove that he was the person who had assaulted Diaz. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 7, 2008, Diaz was working at the Brook Street Market in Hartford (market) with two other employees, William Ramirez and Franklin Ramirez. The defendant was known to Diaz, William Ramirez and Franklin Ramiréz because he lived in the neighborhood and frequented the market where the three men worked. On the afternoon of February 7, 2008, the defendant entered the market and asked Diaz if he could borrow twenty dollars from him. Diaz gave the defendant a twenty dollar bill The defendant exchanged the twenty dollar bill for twenty one dollar bills. Then, as patrons entered the market, the defendant handed them one or two of the dollar bills. After giving away all of the bills, the defendant left the market. He returned a short time later and asked Diaz if he could borrow twenty more dollars. Diaz refused. The defendant told Diaz, “fine, we’re not friends anymore. . . . I’m Espana; you’re going to see what’s going to happen,” and left the market.

At approximately 11 p.m., Diaz and William Ramirez took garbage out to a dumpster located in an alley behind the market. As Diaz was depositing garbage into the dumpster, the defendant stabbed Diaz twice in his left side with a knife. After stabbing Diaz, the defendant ran away with the knife in his hand. Diaz returned to the market and, while bleeding profusely, told Franklin Ramirez that the defendant had stabbed him. Diaz received emergency surgery and was hospitalized for a period of approximately five weeks as a result of the injuries he sustained during the attack.

On February 16, 2008, nine days after the attack on Diaz, the defendant returned to the market. William Ramirez and Franklin Ramirez were working at the market that day. The defendant, who was intoxicated, threatened William Ramirez, and made a gesture drawing his finger across his neck. The defendant stated to the two men that he had stabbed Diaz. Police were called to the market and arrested the defendant, who was belligerent, resisted arrest and threatened the arresting officer.

The defendant was found guilty by a jury of one count of assault in the first degree in violation of § 53a-59 (a) (1) for the February 7, 2008 attack on Diaz, and, under a separate information joined for trial, of one count each of threatening in the second degree in violation of General Statutes § 53a-62 (a) (2) and interfering with an officer in violation of General Statutes § 53a-167a in connection with the February 16, 2008 incident at the market. He was sentenced to a total effective term of sixteen years imprisonment, execution suspended after eight years, with four years probation. This appeal followed. Additional facts will be set forth or reiterated as they become necessary.

I

On appeal, the defendant claims that there was insufficient evidence presented at trial to sustain his conviction for assault in the first degree. Specifically, he argues that there was not sufficient evidence to prove, beyond a reasonable doubt, that he was the individual who stabbed Diaz. We disagree.

The following facts are relevant to our resolution of the defendant’s claim. On the evening of February 7, 2008, immediately following the attack on Diaz, police responded to the market. One of the responding officers testified that Diaz told him, in Spanish, that “he was approached by two black males, and they demanded his wallet. [Diaz] declined and one of the black males stabbed him.” When asked by the officer whether he could identify his attackers, Diaz stated that he could not. During this brief exchange, Diaz was “distraught” and “had a blank look on his face.” Thereafter, Diaz was transported to the hospital.

On March 19, 2008, after he was released from the hospital, Diaz went to the police station and met with a detective. Diaz stated that he could identify his attacker, whom he called “Espana,” and gave a written statement to the detective. The detective presented Diaz with an array of eight photographs, from which Diaz identified a photograph of the defendant.

At trial, Diaz made an in-court identification of the defendant as the individual who had stabbed him. William Ramirez, who witnessed the attack on Diaz, testified that the defendant was the individual who had stabbed Diaz. Franklin Ramirez, who was working inside the market during the attack, testified that, after being stabbed, Diaz came into the market and stated that “España” had cut him.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. McGee, 124 Conn. App. 261, 272, 4 A.3d 837, cert. denied, 299 Conn. 911, 10 A.3d 529 (2010), cert. denied, U.S. , 131 S. Ct. 2114, 179 L. Ed. 2d 908 (2011).

General Statutes § 53a-59 (a) (1) provides in relevant part: “A person is guilty of assault in the first degree when . . . [w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument. . . .” To convict the defendant of assault in the first degree, the state therefore was required to prove that the defendant (1) intended to cause Diaz serious physical injury and (2) injured Diaz by means of a deadly weapon or instrument.

The defendant does not contest that Diaz was seriously injured by means of a deadly weapon; rather, he argues that the evidence presented at trial was insufficient to prove that he was the individual who stabbed Diaz. He focuses on the facts that, in speaking to police on the night of the attack, Diaz did not identify the defendant as his attacker, William Ramirez denied witnessing the attack and Franklin Ramirez denied knowing who had stabbed Diaz.

The defendant’s claim with respect to any inconsistent statements by Diaz, William Ramirez or Franklin Ramirez challenges the credibility of those witnesses, rather than the sufficiency of the evidence. “[E]vidence is not insufficient . . . because it is conflicting or inconsistent. ... It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what — all, none, or some — of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Vega, 128 Conn. App. 20, 27, 17 A.3d 1060, cert. denied, 301 Conn. 919, 21 A.3d 463 (2011).

Although Diaz initially did not identify the defendant as his attacker, Diaz testified that he could not remember telling the police officer, on the night of the stabbing, that he had been attacked by two black men, nor did he believe that he had done so. Diaz testified that he feared the police would find out that he was using a false identity and that, on March 19, 2008, he went to the police station to name the defendant as his attacker because “[the defendant] went back looking for me saying that he was going to finish what he had started.” Although William Ramirez initially told the police that he had not witnessed the attack on Diaz, he testified that he was nervous and so did not tell the police everything he had witnessed on the night of the attack. Franklin Ramirez’ testimony indicates that he experienced difficulty communicating with the responding officers, none of whom were fluent in Spanish.

In addition to the in-court identifications of the defendant by Diaz and William Ramirez, there was other sufficient evidence presented at trial to sustain the defendant’s conviction. The three witnesses whose testimony identified the defendant as the individual that had stabbed Diaz all knew and were familiar with the defendant because he lived in the neighborhood and was a regular customer at the market where they worked. Diaz testified that, immediately after the attack, he told Franklin Ramirez that the defendant had stabbed him. Franklin Ramirez testified that, as Diaz was bleeding in the market, he had identified “Espana,” the defendant, as his attacker. On March 19, 2008, Diaz gave a written statement to police identifying the defendant as his attacker, and identified the defendant from a photographic array. Further, both Franklin Ramirez and William Ramirez testified that, on February 16, 2008, the defendant entered the market and admitted to stabbing Diaz, stating, “it was me ... it was me.”

It was within the discretion of the jury to believe the foregoing testimony based on all of the evidence. See State v. Vega, supra, 128 Conn. App. 27-28; see also State v. Felder, 99 Conn. App. 18, 24, 912 A.2d 1054 (“[t]he question of [the] identity of a perpetrator of a crime is a question of fact that is within the sole province of the jury to resolve” [internal quotation marks omitted]), cert. denied, 281 Conn. 921, 918 A.2d 273 (2007). The jury reasonably could have concluded that the cumulative force of this evidence established the defendant’s guilt beyond a reasonable doubt. Accordingly, we reject the defendant’s claim that the evidence was insufficient to sustain his conviction for assault in the first degree.

II

The defendant also argues that the court erred in permitting testimony by Aaron Romano, an attorney appointed by the court to represent Diaz to ensure that he understood the implications of testifying for the state at the defendant’s trial. The defendant argues that Romano’s testimony was irrelevant and improperly bolstered Diaz’ credibility. We disagree.

The following additional facts are relevant. In 2008, at the time of the attack on Diaz, Diaz was not a legal resident of the United States. A citizen of the Dominican Republic, Diaz had remained in the United States illegally following the expiration of a temporary visa. Diaz obtained and used the social security number and identification card of a United States citizen named Juan Suarez. Diaz used this stolen identity to commit medical fraud, receiving care worth approximately $259,000, exclusive of the medical care necessitated by the attack on him. During the investigation of the attack, Diaz initially had identified himself to police as Juan Suarez.

During trial, Diaz was questioned and testified about his use of the false identity and his statements to the police concerning the false identity. Romano was appointed by the court to advise Diaz of his rights in light of the criminal liability Diaz could face as a result of his testimony, due to his use of the false identity. Romano negotiated an agreement with the state that provided Diaz with immunity from prosecution and the opportunity to obtain legal resident status in exchange for testifying at the defendant’s criminal trial. The agreement was reached before Diaz testified and was admitted into evidence during the trial.

Following Diaz’ testimony, the state proffered Romano as a witness. The defendant objected on grounds of relevance and argued that Romano’s testimony would improperly bolster Diaz’ credibility. The state argued that, when Diaz was questioned about his use of the false identify, he had not been able to explain coherently to the jury what had transpired and that Romano’s testimony was relevant because he could articulate the purpose and scope of the immunity agreement. The court ruled that Romano could testify with respect to the immunity agreement, stating: “[Romano] can explain [the agreement]. He can’t explain if the witness [Diaz] is going to testify truthfully, he cannot bolster the credibility of the witness. If [the agreement] comes in as a full exhibit, there’s parts of it that I don’t understand and [Romano] can explain those parts. . . . And he can testify that he negotiated this agreement on behalf of his client because of the fifth amendment of the constitution and that’s it.”

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Alexander, 95 Conn. App. 154, 159, 895 A.2d 865, cert. denied, 280 Conn. 909, 908 A.2d 539 (2006).

“Within the law of evidence, relevance is a very broad concept. Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. . . . Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, [as] long as it is not prejudicial or merely cumulative.” (Emphasis in original; internal quotation marks omitted.) State v. Mack, 129 Conn. App. 127, 133, 19 A.3d 689, cert. denied, 302 Conn. 908, 23 A.3d 1245 (2011).

The defendant argues that the court erred in permitting the testimony by Romano because the facts relevant to the immunity agreement, namely, that the state had bargained for Diaz’ testimony and that it did not call him as a witness until after the immunity agreement was secured, were elicited via Diaz’ own testimony and the entry of the agreement into evidence. The defendant argues that any testimony by Romano was therefore irrelevant.

We are not convinced that the court committed reversible error in admitting the testimony by Romano. Because Diaz was testifying pursuant to the immunity agreement, the jury was entitled to know its terms and the details thereof. Romano gave detailed testimony as to the purpose and conditions of the immunity agreement, which was admitted into evidence. Romano testified that his purpose in representing Diaz was to explain the possible legal ramifications of Diaz’ testimony at trial — that he could be prosecuted as a result of his statements admitting to using someone else’s name and social security card and staying in the United States after his visa had expired — and that he had sought to minimize any harm to Diaz.

Romano’s testimony concerning his appointment to represent Diaz and the details of the immunity agreement was instructive to the jury’s understanding of Diaz’ presence as a witness and to their evaluation of Ms credibility. TMs is especially true in light of the fact that Diaz was examined and cross-examined extensively about Ms use of the false identity. Accordingly, we conclude that the court did not commit reversible error in permitting testimony by Romano.

The judgment is affirmed.

In tMs opimon the other judges concurred.

       This appeal involves only the defendant’s conviction for assault in the first degree in violation of § 53a-59 (a) (1). The defendant does not challenge the judgment of conviction, rendered following the same jury trial, for threatening in the second degree in violation of General Statutes § 53a-62 (a) (2) or interfering with an officer in violation of General Statutes § 53a-167a.

       With respect to his first claim, the defendant requests a judgment of acquittal. With respect to his second claim, the defendant requests a remand for a new trial.

       Angel Salvador Diaz is also known as “Juan Suarez.” For purposes of this opinion, we refer to him by his legal name, Angel Salvador Diaz.

       he defendant argues further that the state failed to demonstrate a “compelling need” for Romano’s testimony. Because the defendant failed to raise this argument before the trial court, we do not consider it on appeal. Practice Book § 60-5.
      We note, however, that oral argument in this court left unresolved whether the “compelling need” standard for the admission of testimony by a party’s attorney would apply to an attorney for a witness or complainant in a criminal case. For purposes of this decision, we need not resolve that issue. Romano was not a prosecutor or defense attorney professionally involved in representing a party in the underlying case. Our Supreme Court has not yet decided whether the “compelling need” test for the admission of testimony by an attorney representing a witness, as opposed to a party, applies in a criminal case. Romano’s testimony had no adverse effects on an attorney-client relationship or the judicial process in general. See State v. Peeler, 265 Conn. 460, 474, 828 A.2d 1216 (2003), cert. denied, 541 U.S. 1029, 124 S. Ct. 2094, 158 L. Ed. 2d 710 (2004). We are, therefore, left to determine the basic question of whether the trial court abused its discretion in allowing such testimony as an evidentiary matter. Given the charge to the jury on credibility; see footnote 6 of this opinion; and the particular circumstances of this case, we do not apply the “compelling need” standard to the court’s decision to admit Romano’s testimony. However, we do not endorse, in general, the introduction of such testimony, without a hard look at the reason for its admission.

       We disagree with the defendant’s argument that the “sole purpose” of Romano’s testimony was “to cast the seriously impeached complainant as a sympathetic victim who did not even know enough to assure his own rights.” Romano testified as to the reason for his appointment as counsel for Diaz. The balance of his testimony was confined to the details of the immunity agreement.

       With respect to Diaz’ misdeeds, the court instructed the jury: “[T]he witness has admitted essentially [to] using a false name and someone else’s social security number to obtain medicine and that is considered] misconduct; however, that evidence is only offered on the issue of the witness’ credibility. It’s still your duty to determine whether the witness is to be believed wholly, or in part or not at all, [and] you may consider his admissions in weighing on the credibility and give such weight to those admissions as you think is fair and reasonable in determining his credibility.” As noted in footnote 5 of this opimon, we reject the defendant’s argument that the testimony by Romano “served only to bolster” Diaz’ credibility.


author: BEAR, J.

text:
    NIKKI CARABETTA v. SALVATORE CARABETTA
    (AC 32099)
    Bear, Bishop and Laveiy, Js.
    Argued November 14, 2011
    officially released February 21, 2012

      Leo E. Ahem, for the appellant (plaintiff).

      Donald W. Celotto, Jr., for the appellee (defendant).
   Opinion

BEAR, J.

The plaintiff, Nikki Carabetta, appeals from the postdissolution judgment of the trial court denying her motion for contempt against the defendant, Salvatore Carabetta, and failing to open the judgment of dissolution, sua sponte, on the basis of mutual mistake. We affirm the judgment of the trial court.

The following facts are relevant to the issues on appeal. On May 5,2008, the parties finalized a separation agreement (agreement), the terms of which were incorporated by reference into the court’s judgment of dissolution rendered that same day. Paragraph 7.2 of the agreement provides in relevant part: “The [defendant] is the owner of real property located at 2209 North Broad Street, Meriden, Connecticut [(property or Meriden property)]. The [defendant] shall quit claim to the [plaintiff] his right, title and interest in said property. Both parties shall consent on usage of [the] guest house and [three] separate garages adjacent to the property. . . .”

On September 8, 2008, the plaintiff filed a motion for contempt, alleging, in relevant part, that the defendant had failed “to provide good dee[d] [without] encumbrances of [the] Meriden property.” On December 12, 2008, after a hearing, the court denied the plaintiffs motion for contempt without prejudice as to this issue, but it held that this portion of the judgment of dissolution needed further clarification. On March 13, 2009, the plaintiff filed a motion for clarification, asking that the court clarify the boundary lines of the property that she had been awarded in the dissolution pursuant to paragraph 7.2 of the agreement. She alleged that pursuant to the quitclaim deed from the defendant, a portion of the boundary line improperly ran through the main residence and that the guest house and three garages improperly were not included in the deed. After a five day hearing, the court issued a memorandum of decision on February 26, 2010, finding, in relevant part, that the plaintiffs testimony that the guest house and garages were supposed to be included in the property awarded to her pursuant to paragraph 7.2 of the parties’ agreement was not credible, but the court found that the property boundaries needed to be redrawn so that the entire home was within the boundaries of the deeded property. The court also declined to find the defendant in contempt and denied the plaintiffs request for attorney’s fees. This appeal followed.

On appeal, the plaintiff claims that the court erred in failing to open the dissolution judgment on the basis of mutual mistake in the parties’ agreement. See generally Dainty Rubbish, Service, Inc. v. Beacon Hill Assn., Inc., 32 Conn. App. 530, 537, 630 A.2d 115 (1993) (“mutual mistake exists where both parties are mutually mistaken about the same material fact”). Although the plaintiff claims that the court should have opened the dissolution judgment on the basis of mutual mistake, the plaintiff never filed a motion to open with the court. When asked about this during oral argument before this court, the plaintiff argued that the trial court had raised a question about the need to open the judgment and that it, therefore, should have done so, sua sponte. We disagree.

The trial court has jurisdiction to open a judgment more than four months after it has been rendered when the judgment resulted from fraud, duress, accident or mutual mistake. In general, however, the court does not act sua sponte, but acts only in response to the motion of a party. Solomon v. Keiser, 22 Conn. App. 424, 427, 577 A.2d 1103 (1990) (“[m]oreover, under General Statutes § 52-212 and Practice Book § 326 [now § 17-4], the court may open a judgment only upon motion of one of the parties”); see Townsley v. Townsley, 37 Conn. App. 100, 103, 654 A.2d 1261 (1995) (“[o]ur Supreme Court and this court have held that a court cannot on its own initiative decide a motion that was not presented by the parties”). Furthermore, after reviewing the record in this case, there is no evidence that a mutual mistake existed between the parties on the issue of the disposition of the guest house and the three garages. Accordingly, we conclude that the court did not act improperly by not opening the judgment sua sponte.

The plaintiff also claims that the court erred in failing to find the defendant in contempt on the ground that the defendant knew that the title to the property was unmarketable. She also claims that the court erred in failing to award her attorney’s fees. On the basis of inadequate briefing, we decline to review these claims.

The plaintiff, in her brief, has failed to set forth a standard of review or to cite any authority in support of her position. “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.” (Internal quotation marks omitted.) Strobel v. Strobel, 73 Conn. App. 488, 490, 808 A.2d 1138, cert. denied, 262 Conn. 928, 814 A.2d 383 (2002); see Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 51 n.23, 861 A.2d 473 (2004) (“[inasmuch as the plaintiffs’ briefing of the . . . issue constitutes an abstract assertion completely devoid of citation to legal authority or the appropriate standard of review, we exercise our discretion to decline to review this claim as inadequately briefed”).

The judgment is affirmed.

In this opinion the other judges concurred.

       The transcript reveals the following colloquy, which took place on the second day of hearings:
      “The Court: Now I don’t know whether anybody has filed a — is there— are there any other motions?
      “[The Plaintiffs Counsel]: Not as part of these proceedings, Your Honor.
      “The Court: Hmm?
      “[The Plaintiffs Counsel]: Not as part of these proceedings. I don’t think there’s any others pending.
      “The Court: No motion to open and modify?
      “[The Plaintiffs Counsel]: No, Your Honor.
      “The Court: What happens if I can’t clarify . . .
      “[The Plaintiffs Counsel]: Well, Your Honor—
      “The Court: —and therefore so I can’t — if I find it impossible to clarify it, then the motion for contempt as that issue I suspect is not going to go anywhere so then where are we left?
      “[The Plaintiffs Counsel]: Well, Your Honor, I suppose at the end when we’re finished with testimony perhaps the parties can give you a proposed order and maybe briefs as far as what the . . . court’s options may be .... I think that we have to file a motion to clarify and determine if we can — if the court can clarify.
      “The Court: And if I can’t clarify?
      “[The Plaintiffs Counsel]: Then I think that we may be having to ask the court to open it.”
      At other times during the hearings on the pending motions, the court queried whether the judgment might have to be opened. The plaintiff, however, indicated that she had not filed a motion to open and that she did not want the judgment opened. Furthermore, at the close of the plaintiffs testimony, the court questioned whether it had the authority to open the judgment without a pending motion. In response, the defendant’s attorney stated that he did not think the court had such authority; and the judge noted his agreement with that statement.

      “[I]t is beyond dispute that the trial court has the inherent power to open, sua sponte, a judgment which has been procured by fraud . . . .” Masters v. Masters, 201 Conn. 50, 59, 513 A.2d 104 (1986).

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .” Practice Book § 17-4 contains similar language.


author: MIHALAKOS, J.

text:
    TOWN OF STRATFORD v. A. SECONDINO AND SON, INC.
    (AC 32589)
    Lavine, Bear and Mihalakos, Js.

      Argued October 25, 2011
    officially released February 28, 2012

      Bryan L. LeClerc, with whom was Ryan P. Driscoll, for the appellant-appellee (plaintiff).

      Glenn A. Duhl, with whom, on the brief, was Jasmin M. Rojas, for the appellee-appellant (defendant).
   Opinion

MIHALAKOS, J.

This appeal arises from a contract dispute between the plaintiff, the town of Stratford, and the defendant, A. Secondino & Son, Inc., after a trial to the court in which the court found in favor of the defendant on the complaint and on the first and second counts of the defendant’s counterclaim. On appeal, the plaintiff claims that the trial court erred by ruling that the defendant was not required to comply with a condition precedent to payment as set forth in the parties’ contract. The defendant filed a cross appeal, claiming that the court’s failure to award statutory interest pursuant to General Statutes § 37-3a was inconsistent with its finding that the plaintiffs detention of the defendant’s money was wrongful. We disagree with the claims raised by both parties and, accordingly, affirm the judgment of the trial court.

The following facts, which the trial court reasonably found, are relevant to our resolution of the claims on appeal. In its memorandum of decision, the court found that the parties had entered into a contract “for the construction of a new fire headquarters building in Stratford. . . . The final contract between the [plaintiff] and the defendant consisted of: (1) a [document titled ‘Standard Form of Agreement between Owner and Contractor’] on [the American Institute of Architects’] document A101-1997; (2) [a document titled ‘General Conditions of the Contract for Construction’] on [the American Institute of Architects’] form A-201; and . . . (3) plans and specifications prepared by the architects. . . . The contract originally provided for a contract price of $4,837,000 and for completion of construction within 400 calendar days. As the result of approved change orders, the final price was increased to $5,561,120.08. Under the provisions of the contract, the [plaintiff] was the ‘Owner,’ the defendant was the ‘[Contractor’ and Antinozzi Associates, P.C., was the ‘Architect.’ Leonard Bucher was designated as the ‘Owner’s representative,’ and David Secondino was designated as the ‘Contractor’s representative. . . .’ [The architect,] Paul Lisi, acted on behalf of Antinozzi Associates, P.C. . . .

“Under the provisions of article 5 of the contract, the defendant was required to make monthly applications for payment as work on the project progressed. Paragraph 5.1.3 states: ‘Provided that an Application for Payment is received by the Architect not later than the first day of a month, the Owner shall make payment to the Contractor not later than the 15th day of the following month. If an Application for Payment is received by the Architect after the application date fixed above, payment shall be made by the Owner not later than 30 days after the Architect approves the Application for Payment in the amount so approved.' . . .

“Although not contemplated by the terms of the contract, the parties handled monthly applications for payment in the following manner. The defendant would prepare a ‘pencil copy’ of each monthly application for payment and forward it to Lisi. After discussions between David Secondino and Lisi, the defendant would prepare five copies of a final application for payment, each of which would be signed on behalf of the defendant, notarized and delivered to Lisi. Lisi would sign each copy of the application, retain one copy for his files and forward the remaining copies to Bucher so that payments could be made to the defendant.

“The defendant was aware that Bucher was independently reviewing and approving each application for payment prior to authorizing payment. However, despite the provisions of the contract, the defendant was unaware that Lisi was approving and signing the final applications for payment before forwarding them to Bucher. The defendant believed that after orally approving the ‘pencil copy’ of each application, Lisi did not take any further action to evidence his approval of the final application. This mistaken belief was engendered, to some extent, by the [plaintiff], which retained all copies of the applications for payment forwarded to Bucher by Lisi rather than furnishing the defendant with copies of each fully approved application for payments. . . .

“After substantial completion of the project as originally contemplated, there remained certain ‘punch list’ items which needed to be addressed. These items were listed on a list prepared by Lisi and sent to the defendant on August 22, 2005 .... On February 22, 2006 . . . Lisi prepared a revised punch list, which also included items related to the dispatch center construction. A final punch fist was prepared by Lisi on June 9, 2006, and sent to Bucher. . . . Lisi prepared an estimate of the cost of completion of the punch list on June 5, 2006 — $60,950. In accordance with the provisions of paragraph 5.2.2 of the contract, Lisi proposed to withhold twice that amount from the payment due the defendant.

“On June 29, 2006, Lisi sent a letter to Bucher reminding him that certain items on the punch list had not yet been addressed and that the one year warranty period on the project would expire on August 23, 2006.

“On July 19, 2006, the defendant sent a letter to Bucher, with a copy to Lisi, addressing, at length, the items on Lisi’s June 9, 2006 punch list. In the letter, the defendant claimed that only $3675 worth of punch work remained to be done and proposed reducing the retainage to twice that amount ($7350) in accordance with paragraph 5.2.2 of the agreement. In that same letter, the defendant offered to promptly complete the punch work when the amount being withheld from the defendant (claimed to be $137,659) was reduced to $7350. The letter threatened litigation ‘[i]f these issues are not resolved and our payment is not received by August 15, 2006 . . . .’

“On August 4, 2006, the defendant again wrote to Bucher, informing him that [it] had not heard from Lisi concerning [its] request that the retainage be reduced. In the letter, the defendant characterized the amount of work remaining to be done as ‘minuscule’ but refused to return to the job until the [plaintiff] reduced the retainage. The letter also claimed that the [plaintiff] had hired an attorney to seek to attach the defendant’s surety bond and informed Bucher that the surety company intended to deny the claim. On August 22, 2006 the [plaintiff] commenced this litigation against the defendant, claiming breach of contract because of the defendant’s failure to correct unspecified portions of its work, which did not conform to contract specifications. . . .

“After the suit was filed, the [plaintiff] and the defendant and their respective attorneys met on several occasions in attempts to resolve their differences. Lisi did not participate in these meetings. David Secondino, vice president of the defendant, testified that he was told by [the plaintiffs] officials, including the [plaintiffs] attorney that all outstanding issues would be handled directly between the parties without regard to any participation by Lisi. This claim was essentially verified by Lisi who testified that he was not involved with the project for approximately two years, beginning shortly after he prepared his June 9, 2006 punch list . . . and lasting until 2008, when Lisi was asked to participate in the preparation of [a] new punch list following a ‘commissioning’ of the [heating, ventilating and air conditioning] system ordered by the [plaintiff]. During that two year period, Lisi did not visit the site and was unaware of the state of the project or the discussions between the parties.

“During the September, 2006 meetings, the defendant was assured by a representative of the [plaintiff] that if the punch list items were addressed, the defendant would be paid the balance due under contract. Thereafter, the defendant and its subcontractors returned to the job and completed, to the [plaintiffs] satisfaction, nearly all of the items listed on the punch list. On April 17, 2007, Bucher, acting on behalf of the [plaintiff], had certified on a copy of Lisi’s punch list that the vast majority of the punch list had been addressed to the [plaintiffs] satisfaction. . . . Despite this certification, the [plaintiff] did not reduce the retainage by making further payments to the defendant.” (Citations omitted; emphasis in original.) The plaintiff proceeded with the litigation against the defendant.

“In its revised complaint', dated November 12, 2007, the [plaintiff] claim[ed] that the defendant breached its obligations under the contract by failing ‘to correct and remedy portions of the PROJECT which were not in conformance with the AGREEMENT, in breach of its expressed warranty and AGREEMENT with the [plaintiff ... .’

“In its counterclaim against the [plaintiff], the defendant claim[ed] that . . . the [plaintiff] breached the contract by failing to make payments to [the] defendant in accordance with its obligations under the contract [and that] . . . the [plaintiff] wrongfully detained money due to the defendant . . . .”

The court rendered judgment in favor of the defendant on the plaintiffs complaint, finding that the defendant did not breach its obligations under the contract. The court also awarded the defendant $136,510.20 in damages plus $40,122.31 in interest, finding that the plaintiff had breached the contract by failing to make payments to the defendant and by detaining money due to the defendant. The defendant thereafter filed a motion for correction and/or alteration of the memorandum of decision, requesting, in part, that the court award it wrongful detention of money interest pursuant to § 37-3a. The court issued a correction, reducing the interest award to $39,000.64, and noting that the defendant had been awarded contractual interest, exercised its discretion by denying the defendant’s motion to the extent it sought duplicative interest awards. The present appeal by the plaintiff, and cross appeal by the defendant, followed.

On appeal, the plaintiff claims that the court improperly determined that the defendant was not required to comply with a condition precedent to payment required under the contract; in its cross appeal, the defendant claims that the court erred by not awarding it statutory interest pursuant to § 37-3a.

I

PLAINTIFF’S APPEAL

We first address the plaintiff’s claim that the court erred by ruling that the defendant was not required to comply with the condition precedent to payment set forth in the contract. The plaintiff specifically claims that the defendant failed to obtain approval of applications for payment from Lisi. The court, however, ruled that the defendant was not required to comply with that condition precedent because the plaintiff had waived that condition “when, in the late summer of 2006 after commencing litigation, it began dealing with the defendant directly and ceased to utilize the services of Lisi as contract administrator.” On the basis of that determination, the court found in favor of the defendant on the first and second counts of its counterclaim and against the plaintiff on its claim that the defendant was required to comply with the condition precedent.

The plaintiff argues that the court’s finding that it waived the condition precedent to payment provision was improper because the defendant did not specially plead waiver, and that, in any event, the court’s finding was not supported by the evidence adduced at trial, and, thus, was clearly erroneous. We are not persuaded.

Although we agree with the plaintiff that waiver should be specially pleaded, “[w]here, however, facts are sufficiently set up in a pleading to warrant the inference of waiver, it will be considered though it is not expressly alleged . . . .” (Internal quotation marks omitted.) Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 256, 205 A.2d 780 (1964). In this instance, the defendant’s second amended answer and counterclaim contained factual allegations consistent with a claim of waiver — namely, that the defendant continued to work on the project despite completing its contractual obligations and not receiving payment. Furthermore, the defendant indicated to the court at the start of trial that the parties negated, through “the course of conduct,” the language in the contract requiring Lisi’s certificate of payment. The plaintiff failed to object at that time, and later, made no objection when the defendant presented evidence that the plaintiff had sought to forgo Lisi’s services in the role set forth for him under the contract. Nor did the plaintiff object to the defendant’s treatment of waiver throughout trial in its posttrial brief. “[T]he proper way to attack a variance between pleadings and proof is by objection at the trial to the admissibility of that evidence which varies from the pleadings, and failure to do so at the trial constitutes a waiver of any objection to such variance.” (Internal quotation marks omitted.) Tedesco v. Stamford, 215 Conn. 450, 461, 576 A.2d 1273 (1990). Because the plaintiff did not object to waiver evidence on the ground that waiver had not been pleaded specifically, any insufficiency in the pleading was waived by the plaintiff at trial. See Banks Building Co., LLC v. Malanga Family Real Estate Holding, LLC, 102 Conn. App. 231, 236 n.8, 926 A.2d 1 (2007).

We next consider whether the court properly found that the plaintiff had waived the condition precedent of the contract requiring the defendant to submit applications for payment to Lisi. Although “[w]aiver involves an intentional relinquishment of a known right . . . [it] does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Citation omitted; internal quotation marks omitted.) Id., 239. Furthermore, whether a waiver has occurred is a factual question for the trier. See Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321, 340, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002). “Our review of the trial court’s determination [therefore] is guided by the principle that, because waiver [is a question] of fact ... we will not disturb the trial court’s [finding] unless [it is] clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Naftzger v. Naftzger & Kuhe, Inc., 26 Conn. App. 521, 526, 602 A.2d 606 (1992). Thus, the inquiry in the present case is whether there was evidence from which the court reasonably could have found acts and conduct of the plaintiff consistent with waiver of the condition precedent of the contract requiring the defendant to submit applications for payment to Lisi. See Hendsey v. Southern New England Telephone Co., 128 Conn. 132, 135-36, 20 A.2d 722 (1941).

“A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. ... A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor. ... If the condition is not fulfilled, the right to enforce the contract does not come into existence. . . . Whether a provision in a contract is a condition the nonfulfilment of which excuses performance depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when they executed the contract.” (Citations omitted.) Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951); see also F & W Welding Service, Inc. v. ADL Contracting Corp., 217 Conn. 507, 517, 587 A.2d 92 (1991); Christophersen v. Blount, 216 Conn. 509, 512, 582 A.2d 460 (1990); Maloney v. PCRE, LLC, 68 Conn. App. 727, 735, 793 A.2d 1118 (2002).

We agree with the plaintiff that a finding a waiver, without any evidence to support it, is clearly erroneous. We disagree, however, with the plaintiffs assertion that there was no evidence in the present case to support the findings of fact that led to the court’s conclusion that the plaintiff implicitly waived the condition precedent of the contract that required the defendant to submit applications for payment to Lisi. On the contrary, we conclude that the record supports the findings of the court on which it based its conclusion that the plaintiff had implicitly waived that condition.

Although the parties initially complied with the provisions of the contract that required the defendant to submit applications for payment to Lisi, the parties had departed from this arrangement by April 28, 2006, when the defendant submitted its “application for payment, number 28,” to Lisi. Subparagraph 9.4.1 of the “General Conditions of the Contract for Construction” provides that, within seven days of receipt of that application for payment, Lisi had to either issue a certification for payment or notify the plaintiff and the defendant in writing of his reasons for withholding payment. The court reasonably found that Lisi never did either, and as a result, “there was no way that the defendant could process an application for final payment as contemplated by the provisions of the contract.”

As the court noted, the plaintiff, thereafter, never indicated that it still expected the defendant to continue to submit applications for payment to Lisi, nor did the plaintiff at any point state that it was withholding payment on the basis of the defendant’s failure to comply with the requirements of the contract. The record supports the determination that the plaintiffs acts had relieved Lisi of his administrative duties under the contract by September, 2006, when the plaintiff, through its attorney, promised the defendant that moneys would be released to the defendant as items on the punch list were completed. Lisi, the court reasonably found, was no longer part of that payment arrangement. The court credited testimony that Lisi had no further contact with Bucher regarding the outstanding items on the June 9, 2006 punch fist after the September meetings. Moreover, when the plaintiff finally completed the punch list work, a copy of the punch list attesting to the completion of the outstanding items dated April 17, 2007, was signed by Bucher but not Lisi — indeed, Lisi testified that he did not even see a copy of that completed punch list until his deposition in October, 2009. Lisi’s inaction with regard to application for payment number 28, and, thereafter, his noninvolvement with the administration of remaining items on the June 9, 2006 punch list, support the court’s findings that the plaintiff had waived the condition precedent of the contract requiring the defendant to submit payment applications directly to Lisi.

II

DEFENDANT’S CROSS APPEAL

We next address the defendant’s claim on its cross appeal that the court erred by not awarding it prejudgment interest pursuant to § 37-3a.

“We begin our analysis with the appropriate standard of review with respect to the award of compensatory interest. The allowance of prejudgment interest as an element of damages is an equitable determination and a matter lying within the discretion of the trial court. . . . Before awarding interest, the trial court must ascertain whether the defendant has wrongfully detained money damages due the plaintiff. . . . Interest on such damages ordinarily begins to run from the time it is due and payable to the plaintiff. . . . 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 the application of an arbitrary rule. . . . West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 321, 541 A.2d 858 (1988).

“A trial court must make two determinations when awarding compensatory interest under § 37-3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated. Metcalfe v. Talarski, 213 Conn. 145, 160, 567 A.2d 1148 (1989); West Haven Sound Development Corp. v. West Haven, supra, 207 Conn. 321.” (Internal quotation marks omitted.) Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 734-35, 687 A.2d 506 (1997).

The defendant claims that the court abused its discretion in not awarding prejudgment interest under § 37-3a because the record adequately demonstrates that the plaintiffs detention of moneys was “wrongful.” The defendant points to a number of instances in which it claims that the plaintiffs reasons for withholding payment were based on excuse and pretense, rather than legitimate concern about the defendant’s performance under the contract. To that end, the defendant notes the court’s findings that the plaintiff had “no justifiable basis ... to retain any of the funds due [to] the defendant,” that the plaintiff “used changing and sometimes contradicting reasons for withholding payments due [to] the defendant,” and, at times, even offered “fabrications ... to excuse [its] failure to pay . . . the balance due under the contract.” The defendant argues that the court’s acknowledgment of the plaintiffs wrongful conduct warrants its recovery of prejudgment interest under § 37-3a.

Although the determination as to whether prejudgment interest under § 37-3a should be awarded may depend on whether the 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.” (Emphasis added; internal quotation marks omitted.) Ferrato v. Webster Bank, 67 Conn. App. 588, 596, 789 A.2d 472, cert. denied, 259 Conn. 930, 793 A.2d 1084 (2002). In State v. Corchado, 200 Conn. 453, 512 A.2d 183 (1986), our Supreme Court stated that: “[discretion . . . imports something more than leeway in decision-making. State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1980). It denotes the absence of a hard and fast rule or a mandatory procedure regardless of varying circumstances. State v. Wallach, 353 Mo. 312, 323, 182 S.W.2d 313 (1944). It means a legal [discretion, to] be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. Buckley v. Warden, 181 Conn. 286, 290, 435 A.2d 348 (1980), quoting Hammerberg v. Leinert, 132 Conn. 596, [604-605], 46 A.2d 420 (1946); see State v. Battle, 170 Conn. 469, 476, 365 A.2d 1100 (1976).” (Internal quotation marks omitted.) State v. Corchado, supra, 464.

Although the court did not specifically find that the plaintiffs detention of payment was wrongful, the court’s discretionary authority meant that even if it was wrongful, an award of prejudgment interest under § 37-3a was not necessarily mandated. Although our law recognizes prejudgment interest as a component of damages, it does not follow that it must be awarded. See Sosin v. Sosin, 300 Conn. 205, 210, 14 A.3d 307 (2011) (concluding “that the trial court had the discretion to award interest pursuant to § 37-3a”). It is, rather, an “equitable determination”; see, e.g., West Haven Sound Development Corp. v. West Haven, supra, 207 Conn. 321; Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 (1971); which is informed by “the demands of justice rather than through the application of an arbitrary rule.” (Internal quotation marks omitted.) Bertozzi v. McCarthy, 164 Conn. 463, 466, 323 A.2d 553 (1973); see also Board of County Commissioners v. United States, 308 U.S. 343, 352, 60 S. Ct. 285, 84 L. Ed. 313 (1939) (“[I]nterest is not recovered according to a rigid theory of compensation for money withheld, but is given in response to considerations of fairness. It is denied when its exaction would be inequitable.”). In the present matter, the court awarded the defendant contractual interest at a rate of 10 percent and concluded that an additional award of prejudgment interest .under § 37-3a would have constituted duplicative interest under the circumstances of this case. We agree with the court and conclude that the defendant has failed to demonstrate that the court abused its discretion in declining to award it additional prejudgment interest under § 37-3a.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court stated in its memorandum of decision: “Paragraph 9.8.4 of the ‘General Conditions [of the Contract for Construction’] requires the architect to prepare a certificate establishing the date of substantial completion. The paragraph further provides that the date of substantial completion shall be the date from which warranties ran. Although the certificate of substantial completion was not introduced into evidence, it is reasonable to infer from Lisi’s June 29, 2006 letter that the date of substantial completion was August 23, 2005.”

       The following colloquy occurred during trial:
      “The Court: — [W]hat you’re saying is that — that within the four comers of the contract, I can read in there language that will, in effect, negate the language requiring the architect’s certificate of payment?
      “[The Defendant’s Counsel]: At least by the course of conduct, I believe that — I don’t believe that the general contractor need sue the architect for the architect’s failure to approve the payment. I believe that there are communications from the general contractor to the architect and the [plaintiff] saying, we’ve done that which you asked us to do. Please pay. And we got—
      “The Court: I mean, you think that satisfies all the requirement of — dispute what plaintiffs counsel maintains, you believe that that is — what—whatever the evidence will show happened will be sufficient to satisfy that provision in the contract.
      “[The Defendant’s Counsel]: I — I have, believe, that common sense would prevail and that practical conduct—
      “The Court: I can only enforce the contract you made, not the contract you should have made.
      “[The Defendant’s Counsel]: But it’s — it’s the course of dealing between the parties that can’t be ignored.
      “The Court: All right. And before litigation, the parties were — this contract was some two or three years between formation and litigation?
      “[The Defendant’s Counsel]: Yes, and then — as Your Honor can take judicial notice, not all [American Institute of Architects’] contracts are strictly adhered to in the course of a construction.
      “The Court: No, again, that — we’ll we can deal with that, and if you’re— if you’re claiming a waiver, we’ll — we’ll, you know, make note of it as we go along.
      “[The Defendant’s Counsel]: Okay.” (Emphasis added.)

       General Statutes § 37-3a provides in relevant part: “(a) Except as provided in sections 37-3b, 37-3c and 52-192a, interest 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. . . .”


author: LAVINE, J.

text:
    SONEPAR DISTRIBUTION NEW ENGLAND, INC. v. T AND T ELECTRICAL CONTRACTOR’S, INC., ET AL.
    (AC 32662)
    Lavine, Bishop and Schaller, Js.

      Argued November 10, 2011
    officially released February 28, 2012

      Charles I. Miller, for the appellant (plaintiff).

      Jeffrey O. McDonald and Raymond M. Hassett, for the appellees (defendants).
   Opinion

LAVINE, J.

This appeal arises from a breach of contract action for failure to pay for materials allegedly delivered by the plaintiff, Sonepar Distribution New England, Inc., doing business as Northeast Electrical Distributors, to the defendants, T & T Electrical Contractor’s, Inc., and Gerard T. Beaudoin III. The plaintiff appeals from the judgment rendered by the trial court granting the defendant’s oral motion to dismiss made at the conclusion of the plaintiffs case-in-chief. On appeal, the plaintiff claims that the court improperly (1) applied the preponderance of the evidence standard when ruling on the defendant’s motion to dismiss made pursuant to Practice Book § 15-8, (2) concluded that it had failed to present sufficient evidence that the subject goods were delivered, (3) denied its motion to open the judgment and (4) found that it had failed to comply with the court’s order to submit new evidence that reasonably was likely to change the outcome of the case. We agree that the court improperly applied the preponderance of the evidence standard when ruling on the motion to dismiss, but conclude that the error was harmless and thus affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs claims. The plaintiff commenced this action in May, 2009, seeking payment for certain goods that the plaintiff alleged it had delivered to the defendant’s storage facility at 330 Ledyard Street in Hartford. The plaintiff claimed that, although it had delivered the goods to the defendant’s satisfaction, the defendant refused to pay pursuant to a certain credit agreement between the parties. The plaintiff claimed that the defendant owed $59,114.67 plus interest. The case was tried to the court in April and May, 2010. At the conclusion of the plaintiffs casein-chief, the defendant moved for a judgment of dismissal. On May 4, 2010, the court granted the motion to dismiss, but also granted the plaintiff thirty days to discover and present new evidence, if any, to prove its claim. On June 4, 2010, the plaintiff filed a motion to open the judgment and present newly discovered evidence. On August 3, 2010, the court denied the motion to open following the plaintiffs offer of proof. After the court denied the plaintiffs motion to reargue, the plaintiff appealed.

I

The plaintiffs first claim is that it was improper for the court to apply the preponderance of the evidence standard when ruling on the defendant’s motion to dismiss for failure to make out a prima facie case pursuant to Practice Book § 15-8. We agree that the preponderance of the evidence standard is inapplicable to a motion to dismiss for failure to make out a prima facie case, but conclude that the court’s error in applying the preponderance standard was harmless, as ultimately the court was the trier of fact. See Berchtold v. Maggi, 191 Conn. 266, 272, 464 A.2d 1 (1983); Friends of Animals, Inc. v. United Illuminating Co., 124 Conn. App. 823, 842 n.12, 6 A.3d 1180 (2010).

“If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. ... A prima facie case ... is one sufficient to raise an issue to go to the trier of fact. ... In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. ... In evaluating [the trial court’s decision on] a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiffs] favor. . . . Whether the plaintiff has established a prima facie case entitling the plaintiff to submit a claim to a trier of fact is a question of law over which our review is plenary.” (Citations omitted; internal quotation marks omitted.) Sullivan v. Thorndike, 104 Conn. App. 297, 302, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907, 908, 942 A.2d 415, 416 (2008).

In order to prevail on a breach of contract action, a plaintiff must prove “the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.” (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn. App. 699, 706-707, 905 A.2d 1236 (2006).

The following facts, as gleaned from our review of the transcript and on which the parties generally agree, provide the context for the plaintiffs claim. On or about June 6, 2006, the defendant placed an order for 100 Quazite boxes, lids and bolts (collectively boxes) with the plaintiff. According to Tim Sullivan, manager of the plaintiffs Hartford branch office, the plaintiff placed an order with the manufacturer requesting that the boxes be delivered directly to the defendant’s storage facility (drop shipped order). The manufacturer, Strong-well, indicated that it could not “drop ship” the order, but would deliver the order to the plaintiffs central distribution center in Canton, Massachusetts. The plaintiff was then responsible for delivering the boxes to its Hartford branch office and then to the defendant. Despite this indication, the manufacturer drop shipped 100 boxes to the defendant’s storage facility in Hartford. The defendant took delivery of the drop shipped order from the manufacturer and paid the plaintiff. Apparently, the manufacturer also delivered 100 boxes to the plaintiffs Hartford branch office. The plaintiff claims that it delivered 100 boxes, in two truckloads, to the defendant’s storage facility (stock order shipment) on August 10, 2006. The defendant denies having received the stock order shipment and refuses to pay the plaintiffs invoices for the same. This action, the court reasoned, turns on whether the stock order shipment was delivered to the defendant.

At trial, the plaintiff produced a receipt signed by one of the defendant’s agents for the drop shipped order and an internal document noting délivery prepared by one of its employees for the stock order shipment. Although the plaintiff claims that it delivered 100 boxes to the defendant’s storage facility via two deliveries on August 10, 2006, it failed to obtain a receipt signed by one of the defendant’s agents confirming delivery of the stock order shipment.

At the conclusion of the plaintiffs case-in-chief, counsel for the defendant made an oral motion to dismiss the action for the plaintiffs failure to make out a prima facie case. See Practice Book § 15-8. Following argument by counsel for the parties on the motion to dismiss, the court rendered an oral decision granting the motion. In its decision, the court stated in relevant part, “the burden to prove the case here is on the plaintiff, by a preponderance of the evidence.” The court also stated in relevant part: “[L]et me start off also by talking about credibility. I have no doubt of the credibility of the defendant’s witnesses. I think that Mr. Sullivan I found to be very credible, very honest, to the extent of what he knew. And I have no question with his credibility. I do have somewhat of a credibility problem with [Jeremy] Avery. He was the one who accompanied the truck driver to deliver the [stock order shipment] that is in question, the shipment. And because we don’t know what happened to that shipment, the question comes in, did it really exist and was it really delivered, as Mr. Avery said. I don’t know the answer to that, but because of the mystery about that shipment that we’re talking about, I find it hard to believe that he was helping to unload the shipment, and was with the truck driver.”

In this case, the court applied the preponderance of the evidence standard when ruling on the defendant’s motion to dismiss rather than accepting the plaintiffs evidence as true and viewing it in the light most favorable to the plaintiff. See Winn v. Posades, 281 Conn. 50, 54-55, 913 A.2d 407 (2007). The court also predicated its decision, in part, on the credibility of witnesses, which was not proper given the stage of the proceedings. The court, however, was the trier of fact, and ultimately would have had to weigh the evidence, which includes credibility determinations. See LPP Mortgage, Ltd. v. Lynch, 122 Conn. App. 686, 700, 1 A.3d 157 (2010) (province of trier of fact to make credibility determinations). “[Notwithstanding the trial court’s characterization of its ruling as a dismissal for failure to establish a prima facie case, the question before us is not whether the evidence was sufficient to present the claim to a finder of fact, but whether, having presented its case to the fact finder at trial, the plaintiff sustained its burden of proof.” Cadle Co. v. D’Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004).

Here, we conclude that the court’s errors were harmless. The court found that the plaintiff had failed to prove performance, that is, that it had delivered the boxes to the defendant pursuant to the alleged stock order shipment. The plaintiff therefore could not prevail on its breach of contract claim. Although the court improperly applied a preponderance of the evidence standard to the defendant’s motion to dismiss for failure to make out a cause of action, we conclude that the court properly rendered judgment for the defendant given this failure of proof. This court may “sustain a right decision although it may have been placed on a wrong ground.” (Internal quotation marks omitted.) LaBow v. LaBow, 69 Conn. App. 760, 761 n.2, 796 A.2d 592, cert. denied, 261 Conn. 903, 802 A.2d 853 (2002). Consequently, the plaintiffs claim fails.

II

The plaintiff also claims that the court erred in denying its motion to open the judgment and by ruling that it had failed to comply with the court’s order to submit new evidence that was reasonably likely to change the outcome of the case. We disagree with the plaintiffs claims.

The following facts are relevant to our determination. Near the end of its presentation of evidence, the plaintiff requested a continuance to subpoena testimony from the Hartford city engineer and an agent of Micon Electrical, LLC, regarding the number of boxes that were used in certain streetscape projects in Hartford. In response, the court stated: “Well, first of all, I have a trial management report. You don’t list any of those witnesses. . . . But I do want to see justice done here, and if there’s been some lack of investigation on [the part of the plaintiffs counsel], here’s what I’m going to do, depending upon what I hear from [the defendants’ counsel and the plaintiffs counsel on the motion to dismiss]. But if I should rule in favor of the defendants, if you want to make a motion to reopen on the basis of new evidence that is material, you’re free to do so .... I can leave the case open for that purpose — so there’ll be a pending case, but strictly open for that purpose, so that you can issue subpoenas and do depositions for people from Micon or the city. . . . You’ve got to pin it down. You can’t just say, well, additional boxes were used. You’ve still got to tie that up to the delivery.” After rendering judgment for the defendant, the court then stated: “Do whatever depositions you want. But you may reopen, and I’m conditioning on showing me what you have to make sure that it is material, relevant and provable. And if it is, does it somehow make a difference in the verdict for the defendant . . . .” (Emphasis added.)

On June 4, 2010, the plaintiff filed a motion to open the judgment and present evidence it claimed was newly discovered. On July 23, 2010, the defendant filed an objection to the motion to open the judgment. The court denied the motion to open following oral argument on August 3, 2010.

In considering the plaintiffs motion to open, the court made the following observation: “I think what [the plaintiffs counsel] is trying to do here is to show that somehow the defendants had boxes additional to those on Maple and Main Street and even Blue Hills that they were able to use on Trumbull Street, for example. And, therefore, because of their ability to use these additional boxes, they must have gotten them from somewhere. And I’m supposed to infer that they came from [the plaintiff].” The court concluded, however, stating: “I don’t see anything in here that anybody can testify . . . which is most important, that the defendants received the second shipment. I don’t see it here. We’re still back to the point of the shipments coming in allegedly but nobody accepting them and being dumped in a facility on Airport Road and no one knows what happened to it afterwards. That doesn’t seem you’ve overcome at all.”

“A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Marion’s Appeal from Probate, 119 Conn. App. 519, 521, 988 A.2d 390 (2010).

On the basis of our review of the plaintiffs motion to open the judgment and the transcript of the arguments made on August 3, 2010, we conclude that, through its representations in the motion and its offer of proof, the plaintiff attempted to prove that the defendant took delivery of the stock order shipment because the number of boxes installed on the various streetscapes exceeded 100. Although the proffered evidence may demonstrate that the parties, the city and nonparty contractors disagree as to who performed what services in various locations, and who supplied the boxes and when, those facts and issues are not relevant to the court’s resolution of the plaintiffs case. See Wright v. Hutt, 50 Conn. App. 439, 449-50, 718 A.2d 969 (plaintiffs recovery limited to allegations of complaint), cert. denied, 247 Conn. 939, 723 A.2d 320 (1998). That proffered evidence does not demonstrate that the defendant received the stock order shipment.

In this case, the plaintiff pleaded breach of contract against the defendant. At trial, the plaintiff presented evidence of the defendant’s purchase order for 100 boxes, which were delivered by the manufacturer, accepted and paid for by the defendant. The plaintiff presented no evidence that the defendant placed a second order for 100 boxes and took delivery of them. Without such evidence, the plaintiff cannot prevail on its breach of contract claim. We conclude, therefore, that the court did not abuse its discretion in denying the plaintiffs motion to open the judgment nor did it err by finding that the plaintiff had failed to comply with its order of May 4, 2010, that is, to present new evidence that would change the outcome of the case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff alleged that it had entered into a credit agreement with T & T Electrical Contractor’s, Inc., whom we refer to in this opinion as the defendant. Beaudoin was alleged to have guaranteed the credit agreement on behalf of the defendant. The appeal does not concern the personal guarantee.

       Practice Book § 16-8 provides in relevant part: “If, on the trial of any issue of fact in a civil matter tried to the court, the plaintiff has produced evidence and rested, a defendant may move for judgment of dismissal, and the judicial authority may grant such motion if the plaintiff has failed to make out a prima facie case. ...”

       Years prior to the events underlying this action, the parties entered into a credit agreement. Had the plaintiff prevailed at trial, the agreement would have provided a basis for an award of interest damages.

       Quazite boxes are composite electric junction boxes used in streetscape projects. They are buried at grade level and allow access to the electrical connections for light poles. The dimension of a box is 30 inches by 30 inches by 17 inches. One box weighs approximately 180 pounds and each lid weighs approximately 80 pounds.

       The drop shipped order was comprised of two deliveries that were received by the defendant and signed for by Gary Taylor, the defendant’s service manager, on August 17 and 23, 2006.

       The stock order shipment allegedly was delivered to the defendant’s storage facility in two deliveries from the plaintiffs Hartford branch office on August 10, 2006. The driver of the delivery truck, Alex Estronza, wrote his initials on the packing slips and the date “8/10.” No employee of the defendant was present at the time of the alleged deliveries. Estronza did not testify at trial. Jeremy Avery testified that he accompanied Estronza on the second delivery.

       In ruling on the defendant’s motion to dismiss, the court stated in part regarding the conflicting testimony: “[0]ne of the things that really questions whether there was ever a request by the defendants for a second shipment is this. It is generally conceded, and the Court finds, that there was a shipment of 100 Quazite boxes, and possibly some other materials, which came directly from the manufacturer, although through the plaintiff, and that was paid for by the defendants.
      “Now, I asked this question during the trial. If the plaintiffs shipment had been delivered on August 10, as alleged, of 2006, then when the drop ship came in on August 14 of 2006, the defendant would have rejected it, since he already had one. And that doesn’t make any sense. He didn’t reject the second one.”

       The plaintiff had rested its case with the proviso that it would be permitted to open the case in thirty days if it discovered new evidence; see part n of this opinion; and the defendant did not intend to call any witnesses.

       This conclusion resolves the plaintiffs second claim that it presented sufficient evidence to withstand a motion to dismiss for failure to establish a prima facie case.

       Even if the proffered evidence were relevant, it is not determinative as the plaintiff did not demonstrate how many, if any, boxes the defendant had before receiving the drop shipped order or whether it acquired boxes subsequently from a source other than the plaintiff.

       In response to a point made in the defendant’s brief, the plaintiff argued that it may recover under a theory of uqjust enrichment. Although the plaintiff did not allege a count of unjust enrichment, it claims that it is entitled to the same under its prayer for relief. We need not address that claim. The plaintiff failed to prove its breach of contract action and that it delivered 100 boxes pursuant to the alleged stock order shipment. Without proof that the defendant received a benefit for which it did not pay, there can be no unjust enrichment. See Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).