Connecticut Light & Power Co. v. Proctor ( 2017 )

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CONNECTICUT LIGHT & POWER CO. v. PROCTOR—DISSENT
EVELEIGH, J., with whom ROGERS, C. J., joins, dis-
senting. I respectfully dissent. In my opinion, the con-
clusion reached by the majority misapprehends the
significance of the written correspondence sent by the
plaintiff, Connecticut Light and Power Company, to the
defendant, Gary Proctor, immediately after the Novem-
ber 26, 2008 telephone call. Specifically, I would con-
clude that the consequence of the plaintiff’s written
correspondence was to render objectively unreason-
able the expectation of the plaintiff that the defendant
would pay for the electric service provided to a farm
leased by the defendant’s employer, Pedigree Chicks,
LLC, and located at 44 Upper Butcher Road in Ellington
(farm). Accordingly, I would conclude that the Appel-
late Court incorrectly affirmed the judgment of the trial
court because the trial court’s finding of an implied in
fact contract was clearly erroneous.
I agree with the majority’s statement of the facts and
procedural history. I will set forth additional facts and
evidence from the record as necessary.
The principles governing implied in fact contracts1
are well established. ‘‘Whether [a] contract is styled
express or implied involves no difference in legal effect,
but lies merely in the mode of manifesting assent. . . .
A true implied [in fact] contract can only exist [how-
ever] where there is no express one. It is one which is
inferred from the conduct of the parties though not
expressed in words. . . . Although both express con-
tracts and contracts implied in fact depend on actual
agreement . . . [i]t is not fatal to a finding of an implied
contract that there were no express manifestations of
mutual assent if the parties, by their conduct, recog-
nized the existence of contractual obligations.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Janusauskas v. Fichman, 264 Conn. 796, 804–805, 826
A.2d 1066 (2003). ‘‘It is a fundamental principle of con-
tract law that the existence and terms of a contract are
to be determined from the intent of the parties. . . .
The parties’ intentions manifested by their acts and
words are essential to the court’s determination of
whether a contract was entered into and what its terms
were.’’ (Internal quotation marks omitted.) Auto Glass
Express, Inc. v. Hanover Ins. Co., 293 Conn. 218, 225,
975 A.2d 1266 (2009); see also Otto Contracting Co. v.
S. Schinella & Son, Inc., 179 Conn. 704, 709, 427 A.2d
856 (1980) (‘‘whether a contractual commitment has
been undertaken is ultimately a question of the intention
of the parties’’). I agree with the majority that the inquiry
in this case is ‘‘whether [the services] were rendered
[by the plaintiff] under such circumstances that the
defendant either knew, or, as a reasonable man, should
have known, that the plaintiff expected compensation.’’
Butler v. Solomon, 127 Conn. 613, 616, 18 A.2d 685
(1941).
Generally speaking, the determination of the parties’
intent is a question of fact, and our review is limited
to whether the decision of the trial court was clearly
erroneous. See Auto Glass Express, Inc. v. Hanover
Ins. Co., supra, 293 Conn. 225; see also Bristol v. Ocean
State Job Lot Stores of Connecticut, Inc., 284 Conn. 1,
7, 931 A.2d 837 (2007). This court ‘‘will upset a factual
determination of the trial court only if it is clearly erro-
neous. The trial court’s findings are binding upon this
court unless they are clearly erroneous in light of the
evidence and the pleadings in the record as a whole
. . . . We cannot retry the facts or pass on the credibil-
ity of the witnesses. A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) Com-
munity Collaborative of Bridgeport, Inc. v. Ganim,
241 Conn. 546, 559, 698 A.2d 245 (1997).
I do not disagree with the majority that the record
supports the finding that when the defendant contacted
the plaintiff’s representative and provided his personal
information that the defendant intended to take per-
sonal responsibility for the electric service that would
be provided to the farm. But the plaintiff did not simply
commence the requested service. To the contrary, the
plaintiff sent to the defendant a written correspon-
dence. Where I part ways with the majority is the signifi-
cance of the written correspondence. The trial court,
in its memorandum of decision, ignored the significance
of this correspondence in its determination as to
whether an implied in fact contract was formed. To me,
this correspondence conveyed a clear message to the
defendant that he was required to take additional action
to establish an account and take responsibility for the
electric service provided to the farm. Accordingly, I
would conclude that the consequence of the correspon-
dence was such that a reasonable person would believe
that the process required for assuming responsibility
for electric service was incomplete. Therefore, the
plaintiff, by not awaiting the defendant’s completion of
the application process, did not render services under
circumstances in which it would be reasonable for it
to expect compensation from the defendant.
In the present case, the written correspondence was
in two parts: a letter from the plaintiff dated November
26, 2008, the same date as the defendant’s telephone call
and a partially filled out ‘‘[a]pplication for [s]ervice.’’
At the outset, the letter thanks the defendant for his
‘‘request for electric service from [the plaintiff].’’ The
very next paragraph recites a requirement of a security
deposit for the account. The letter states that the deposit
‘‘must be paid promptly’’ and indicates that the defen-
dant would be billed for it ‘‘shortly.’’ Next, the letter
refers to the enclosed ‘‘[a]pplication for [s]ervice.’’ The
letter requests that the defendant complete and return
the application for service within seven days either by
fax or mail. The letter did not state that the defendant
would be held responsible for electric service provided
to the farm in accordance with his oral request made
during the November 26, 2008 telephone call. Nor did
it state that he should be expecting a bill for the provi-
sion of electric service.
The application for service, in turn, contains several
recitals. In relevant part, the recitals include: ‘‘The
undersigned hereby requests the [plaintiff] to supply
service at the address specified above, and/or at any
other addressed furnished to the [plaintiff] by the under-
signed and which is served by the [plaintiff] . . . . The
undersigned also agrees to receive and pay for such
service in accordance with the applicable [s]chedule
and further agrees to pay for all charges and costs,
including reasonable attorney’s fees, incurred in collect-
ing sums due to the [plaintiff] for the service rendered
to the undersigned. The undersigned also agrees to be
responsible for billings to this account, and any other
accounts which are established under this exact legal
name or entity, until official notification is made to the
[plaintiff] to close such account. Any deposit made in
connection with this application is subject to revision
at any time if usage is greater than that estimated by
the undersigned and the [plaintiff].’’ The top of the appli-
cation for service contains spaces for the service
address, mailing address and account name. These
spaces had been previously filled in by the plaintiff with
the information presumably provided by the defendant
in the November 26, 2008 telephone call. The applica-
tion for service also contains, inter alia, unfilled spaces
for the relevant information of persons with an owner-
ship interest in the business, an indication whether a
‘‘DBA certificate’’ has been filed, and bank references.
Finally, at the bottom of the form, there is a signature
block and a space requesting a Social Security number
following the recital that ‘‘I agree to the above condi-
tions and certify the statements are true, accurate
and correct.’’
The context of this letter is critical to my conclusion
that the trial court’s finding was clearly erroneous. The
record is devoid of indicia that the plaintiff manifested
assent to defendant’s request for electric service. The
plaintiff’s record of the November 26, 2008 conversation
reveals little as to communication to the defendant by
the plaintiff’s representative. To be sure, the record
recites internal action that the representative took to
begin the process necessary for the account to be set
up in the name of the defendant.2 There is no evidence
in the record that this was communicated to the defen-
dant. The record reveals that the representative verified
the defendant’s mailing address and quoted a deposit
in the amount of $2520, but there is no indication that
it was represented to the defendant that a deposit was
required. Instead, in response to the defendant’s request
for electric service, the representative ‘‘contemporane-
ously’’ generated and sent the correspondence with the
creation of the account. In the letter and application
for service, the plaintiff indicates that the defendant
‘‘must’’ pay the ‘‘required’’ deposit. Additionally, the
plaintiff proposed that the defendant, as part of his
request for electric service for which he would agree to
pay, should also agree to the condition that the deposit
would be revised if electricity usage is greater than
estimated. In addition, the plaintiff proposed that the
defendant agree to be responsible for all charges and
costs, including attorney’s fees, incident to any collec-
tions undertaken by the plaintiff. There is no evidence
that the defendant proposed, contemplated, or agreed
to such terms in the November 26, 2008 telephone call.
Rather, as the plaintiff’s letter indicates, the defendant
simply requested service. The correspondence to the
defendant, taken as a whole, clearly conveys that addi-
tional action on the part of the defendant was necessary
to complete his application for service.
Upon due consideration of the effect of the plaintiff’s
correspondence, the evidence cited by the majority fails
to support a finding of an implied in fact contract. The
majority points out that there is no dispute that the
defendant knew that the plaintiff was providing electric
service to the farm. I am not convinced that, given this
set of facts, that the defendant’s knowledge regarding
electricity service can support an implied in fact con-
tract that he was going to pay for those services. This
is also not a case in which the plaintiff began performing
services in response to a request by the defendant that
it was not already performing. Cf. Butler v. Solomon,
supra, 127 Conn. 614–15 (defendant asked plaintiff to
perform certain work defendant had agreed to perform
for third party); Casey v. MacFarlane Bros. Co., 83
Conn. 442, 443, 76 A. 515 (1910) (defendant asked plain-
tiff to do additional work in connection with construc-
tion of factory). The record reflects, and the majority
agrees, that throughout a period starting even before
the defendant’s abortive attempt to set up an account
in August, 2008, the plaintiff was providing electric ser-
vices to the farm. Consequently, the defendant would
have had no basis to know that electricity was being
provided to the farm as a result of his request or that
the plaintiff expected compensation from him in light
of the fact that he did not complete and return the
application for service or pay the required deposit.
According to the record, in his very first contact with
the plaintiff’s representative after receiving this corre-
spondence, the defendant expressly stated to the repre-
sentative that the account should not be in his name.
To be sure, the defendant did also inquire about not
receiving a bill. This, however, does not, as the majority
suggests, ‘‘[compel] the conclusion that he knew that
services were being rendered and that bills were accru-
ing on the account, notwithstanding his failure to sub-
mit the application or pay the security deposit.’’ Indeed,
the record reflects that the plaintiff expressly stated in
its letter that the defendant would receive a bill for the
required deposit ‘‘shortly.’’ The defendant had no reason
to believe that he would receive a bill for any services
provided to the farm given that he did not provide the
required deposit and he did not sign and return the
application for service. Likewise, evidence of the defen-
dant’s subjective knowledge in January and February,
2009, of the plaintiff’s intention to bill the defendant
for the electric service does not support an implied in
fact contract because the defendant did not complete
the process indicated by the plaintiff for assuming
responsibility for the electric service.
A reasonable person would believe, and the defen-
dant did believe, that, upon receipt of the plaintiff’s
correspondence, there had not yet been a meeting of the
minds and that compliance with the plaintiff’s request
to sign and return the application for service, which
included assent to the terms proposed therein, and pay-
ment of the required deposit were steps necessary to
consummate an agreement. To the extent that the trial
court made the necessary implicit subordinate factual
finding otherwise, I would conclude that finding was
clearly erroneous. The majority’s conclusion in the pres-
ent case allows the plaintiff to have used the correspon-
dence to create the illusion of the power of acceptance
in the defendant, while actually retaining for itself the
power to proceed with the contract by merely continu-
ing to provide electric services to the farm. The plain-
tiff’s correspondence understandably led the defendant
to believe the ball was in his court as to whether to
proceed with the contract for service on the terms indi-
cated in the correspondence; it is little wonder that the
defendant was ‘‘scared’’ when he found out that the
plaintiff intended to hold him responsible for the elec-
tric service given he never signed and returned the
application to the plaintiff or paid the required deposit.
I agree with the majority’s observation that if the defen-
dant had completed, signed, and returned the written
application for service, that fact would establish an
express contract. I disagree, however, with the majority
that the plaintiff in the present case could simply con-
tinue to furnish electric service thereby creating an
implied in fact contract in lieu of its proposed express
contract to which the defendant never agreed. On the
basis of this evidence, I am left with the definite and
firm conviction that a mistake has been committed.
Accordingly, I would reverse the judgment of the Appel-
late Court concluding that the trial court’s finding of
an implied in fact contract was not clearly erroneous
and remand the case to the Appellate Court with instruc-
tions to reverse the judgment of the trial court and
remand the case to the trial court with direction to
render judgment for the defendant.
I respectfully dissent.
1
The term implied contract refers to both implied in fact contracts and
implied in law contracts. ‘‘An implied in fact contract is the same as an
express contract, except that assent is not expressed in words, but is implied
from the conduct of the parties. . . . On the other hand, an implied in law
contract is not a contract, but an obligation which the law creates out of
the circumstances present, even though a party did not assume the obligation
. . . . It is based on equitable principles to operate whenever justice requires
compensation to be made. . . . An implied in law contract may arise due
to one party being unjustly enriched to the detriment of the other party.
. . . Accordingly, an implied in law contract is another name for a claim for
unjust enrichment.’’ (Citations omitted; internal quotation marks omitted.)
Vertex, Inc. v. Waterbury, 278 Conn. 557, 573–74, 898 A.2d 178 (2006). This
case concerns an implied in fact contract.
2
In the November 26, 2008 call log there is an annotation ‘‘UNABLE TO
CLS ORDER//PROCESSED CBS REF TO HAVE ACCT SET UP . . . .’’ The
plaintiff’s primary witness, Jennifer Dupuis, who had experience monitoring
delinquent accounts for the plaintiff, testified that this entry mentioning a
‘‘CBS REF’’ was merely a record that a submission to the billing department
was necessary ‘‘to close the order to show that the account is now active
and being billed on a regular basis.’’ In other words, it was a memorialization
of what the plaintiff’s representative did. There is also an annotation that
the bill was cancelled back to June 20, 2008, for the previous customer.