Sharp Electronics Corp. v. Solaire Development, LLC ( 2015 )

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SHARP ELECTRONICS CORPORATION v. SOLAIRE
DEVELOPMENT, LLC, ET AL.
(AC 36356)
DiPentima, C. J., and Prescott and Dupont, Js.
Argued November 17, 2014—officially released March 17, 2015
(Appeal from Superior Court, judicial district of
Danbury, Pavia, J. [motion to dismiss]; Ozalis, J.
[judgment; motion to dismiss].)
Marc T. Miller, for the appellants (defendants).
Michelle Arbitrio, with whom, on the brief, was Abi-
gail Elrod, for the appellee (plaintiff).
Opinion
PRESCOTT, J. In this action seeking damages for
breach of contract, the defendants, Solaire Develop-
ment, LLC (Solaire), and its principal, Stuart Longman,
appeal, following a bench trial, from the judgment of
the trial court rendered in favor of the plaintiff, Sharp
Electronics Coproration, in the amount of
$1,334,377.60. The defendants claim that the court
improperly (1) denied their pretrial and posttrial
motions to dismiss a prejudgment remedy of attach-
ment based on the plaintiff’s alleged failure to serve
and return to court its summons and complaint within
thirty days of the court’s order granting the prejudgment
remedy as mandated by General Statutes § 52-278j (a)1;
(2) admitted Longman’s pretrial deposition into evi-
dence despite the plaintiff’s failure to file a sealed depo-
sition with the court pursuant to Practice Book § 13-30
(e); and (3) denied the defendants’ third special defense,
which alleged that the complaint and all causes of
actions failed to state a claim on which relief may be
granted. We disagree with the defendants’ claims and,
accordingly, affirm the judgment of the trial court.
The following facts, as found by the court, and proce-
dural history are relevant to our resolution of the defen-
dants’ claims. In March and April, 2009, Solaire ordered
a total of 2537 solar panels from the plaintiff. The total
price for the panels was $1,534,377.60. Longman signed
the purchase orders for the panels. Before the plaintiff
accepted the orders, it required Longman to submit a
credit application and an unconditional personal guar-
anty of ‘‘all indebtedness and liabilities of any kind
(including all principal, interest, attorney’s fees, late
charges, and other charges becoming due with respect
to such indebtedness) for which [Solaire] is now or
may hereafter become liable to [the plaintiff] . . . .’’
After receiving the credit application and guaranty, the
plaintiff delivered the panels to Solaire.
An authorized representative of Solaire received and
accepted the delivery at 60 Shelter Rock Road in Dan-
bury. Following delivery, the plaintiff sent invoices
totaling $1,534,377.60 to Solaire at its business address
of 424 West Mountain Road in Ridgefield. In September,
2009, Solaire paid the plaintiff $200,000, but the plaintiff
never received the balance due of $1,334,377.60.
In December, 2009, the plaintiff filed and served an
application for a prejudgment remedy of attachment
accompanied by a proposed writ, summons, and com-
plaint and other required documents. See General Stat-
utes § 52-278c. According to the proposed order
attached to the application, the plaintiff sought to attach
certain unspecified bank accounts, real property and
other assets of the defendants. After granting a number
of requests for continuances, the court scheduled an
evidentiary hearing on the application for May 9, 2011.
In the interim, the parties reached a stipulated
agreement that the application should be granted in the
amount of $1,259,377.60. At the May 9, 2011 hearing,
the court, Maronich, J., indicated that it would grant
the application for a prejudgment remedy in accordance
with the parties’ stipulated agreement. The court
informed the parties that the body of the attachment
order needed to include a detailed description of any
real property subject to the order. Both parties agreed
that an amended proposed order could be submitted
at a later date.2
Following the hearing, the court issued the following
order regarding the application for prejudgment rem-
edy: ‘‘The application having been heard by the court
in the presence of counsel for both parties, the court
hereby orders prejudgment remedy [sic] according to
the stipulation of the parties in the amount of
[$1,259,377.60]. This order is stayed until May 31, 2011.’’3
This order did not contain any language indicating that
it authorized any of the specific prejudgment remedies
set forth by General Statutes § 52-278a (d), or describe
any real property, bank accounts or any other type of
property that the court was authorizing to be attached.
The court also did not sign the proposed order of attach-
ment included with the application.
On August 5, 2011, the plaintiff submitted a proposed
amended order. The proposed amended order provided
that, in addition to bank accounts, equipment, and per-
sonal property, the plaintiff sought to attach two parcels
of real property, which were identified only by their
street addresses. Judge Maronich reviewed the pro-
posed amended order, rejected it because it did not
describe sufficiently the real property, and directed the
plaintiff to submit a revised proposed order.4
On that same day, the defendants filed a motion to
dismiss the May 9, 2011 prejudgment remedy on the
ground that the plaintiff had failed to serve and return
to court a valid summons and complaint within the
thirty day period mandated by § 52-278j (a). The plaintiff
opposed the motion to dismiss.
On August 24, 2011, the plaintiff submitted a third
proposed order, which this time included a detailed
legal description of the real property that would be
subject to the attachment order. The defendants
opposed the amendment on the ground that their
motion to dismiss was pending and should be adjudi-
cated first.
The court, Pavia, J., held a hearing on the motion
to dismiss on September 6, 2011. Following the hearing,
the court issued the following brief order denying the
motion to dismiss. ‘‘Neither party disputes that an
agreement was reached before Judge Maronich
whereby the motion for prejudgment remedy was
granted subject to revision of the property description.
Following review by Judge Maronich the original
amendment was denied as insufficient with a directive
to revise. As such, the motion to dismiss is denied.’’
Judge Maronich, on November 16, 2011, granted and
signed a copy of the third proposed order. The plaintiff
then served the summons and complaint and returned
it to the court on December 16, 2011.5
The operative complaint, filed on December 13, 2012,
consists of four counts. Counts one and three are
against Solaire and allege causes of actions sounding
in breach of contract and, alternatively, unjust enrich-
ment. Counts two and four are directed against Long-
man and allege breach of contract based on Longman’s
personal guaranty and, alternatively, unjust enrichment.
The defendants filed an answer containing eleven spe-
cial defenses and six counterclaims. The court, Ozalis,
J., conducted a two day trial. At the conclusion of the
trial, the defendants withdrew a number of their special
defenses and all but two of their counterclaims.
The court issued a memorandum of decision on
November 22, 2013, in which it rejected all of the defen-
dants’ remaining special defenses and found in favor
of the plaintiff on its counts for breach of contract,
rendering judgment against the defendants in the
amount of $1,334,377.60 plus postjudgment interest of
five percent. The court found that it was unnecessary
to address the plaintiff’s remaining unjust enrichment
counts because they were pleaded in the alternative.
Finally, the court ruled in favor of the plaintiff on both
of the defendants’ counterclaims. This appeal followed.
Additional facts will be set forth as necessary.
I
The defendants first claim that the court improperly
denied their pretrial and posttrial motions to dismiss
the prejudgment remedy of attachment. The defendants
argue that a dismissal of the prejudgment remedy was
required because the plaintiff failed to serve and return
the summons and complaint for which the prejudgment
remedy was allowed within thirty days of the court’s
order granting the application for prejudgment remedy
as mandated by § 52-278j (a). The plaintiff argues that
the initial order granting the prejudgment remedy was
conditioned on the filing of an amended proposed order
describing the real property subject to attachment and
that Judge Maronich did not grant that order until
November 16, 2011. The plaintiff further argues that it
timely served and returned the summons and complaint
within thirty days of that date, and, therefore, the court
properly denied the motions to dismiss. We agree with
the plaintiff.
At the outset, we are mindful of the principle ‘‘that
prejudgment remedies are in derogation of the common
law and, therefore, that prejudgment remedy statutes
must be strictly construed . . . .’’ Feldmann v. Sebas-
tian, 261 Conn. 721, 726, 805 A.2d 713 (2002). General
Statutes § 52-278a (d) defines a prejudgment remedy
as ‘‘any remedy or combination of remedies that enables
a person by way of attachment, foreign attachment,
garnishment or replevin to deprive the defendant in a
civil action of, or affect the use, possession or enjoy-
ment by such defendant of, his property prior to final
judgment but shall not include a temporary restraining
order.’’ General Statutes § 52-278j (a) provides: ‘‘If an
application for a prejudgment remedy is granted but
the plaintiff, within thirty days thereof, does not serve
and return to court the writ, summons and complaint
for which the prejudgment remedy was allowed, the
court shall dismiss the prejudgment remedy.’’ (Empha-
sis added.)
Nothing in the language of § 52-278j implicates the
jurisdiction of the court to continue to hear a civil
matter in which a plaintiff has been granted a prejudg-
ment remedy but has failed to comply with § 52-278j
(a). Rather, the statutory mandate in § 52-278j (a) is
best viewed as a sanction intended to prevent a plaintiff
from unduly encumbering assets of a defendant by
delaying initiation of the civil action in which the par-
ties’ dispute can be fully and fairly litigated. Although
failure to comply with § 52-278j (a) does not implicate
the court’s jurisdiction, and therefore falls outside the
scope of Practice Book § 10-30 and other rules govern-
ing motions to dismiss civil actions, a motion seeking
to dismiss a prejudgment remedy is nevertheless an
appropriate vehicle with which to alert the court of a
plaintiff’s failure to comply with § 52-278j (a). If a court
determines that the plaintiff has failed to serve its sum-
mons and complaint within thirty days of the court’s
order granting an application for prejudgment remedy,
the court lacks authority to do anything but to ‘‘dismiss’’
(in the parlance of the statute) the prejudgment
remedy.
In reviewing a court’s decision on a motion to dismiss
a prejudgment remedy, we apply the same standard
applicable to review of other motions to dismiss, which
in part turns on whether the claim is directed at the
court’s legal conclusions or its factual determinations.
See State v. Bonner, 290 Conn. 468, 477–78, 964 A.2d
73 (2009). Factual findings underlying a court’s decision
on a motion to dismiss will not be disturbed unless
they are clearly erroneous; however, we review a trial
court’s ultimate legal conclusion and resulting ruling
on the motion de novo. Id., 478.
In the present case, it is undisputed that the plaintiff
returned the duly served summons and complaint for
which the prejudgment remedy of attachment was
allowed on December 16, 2011. The disputed issue is
whether the application for prejudgment remedy was
granted for purposes of § 52-278j (a) when the court
first accepted the parties’ stipulated agreement and
issued an order that did not grant any specific prejudg-
ment remedy on May 9, 2011, or when a complete and
final order granting the specific prejudgment remedy
of attachment was signed and filed by the court on
November 16, 2011. We conclude, under the circum-
stances of this case, that the prejudgment remedy was
not granted until November 16, 2011.
On May 9, 2011, the parties first appeared before
Judge Maronich for a hearing on the plaintiff’s applica-
tion for a prejudgment remedy of attachment. The par-
ties informed the court at that time that the defendants
had agreed to stipulate to a prejudgment remedy of
attachment in the amount of $1,259,377.60. During the
hearing, the court indicated to the parties that the body
of the proposed order submitted with the application
failed to state what assets would be subject to attach-
ment and that a full description of any real property
subject to attachment would need to be included in the
body of the order. In ruling on the application, the court
did not sign the order of attachment submitted with
the application. Rather, the court issued an order that
states that it ‘‘hereby orders prejudgment remedy’’ in
the amount of $1,259,377.60, but the court failed to
indicate the nature of that remedy, i.e., whether the
remedy granted was one of attachment, foreign attach-
ment, garnishment, replevin or some combination
thereof. See General Statutes § 52-278a (d).
Although our review of the transcript of the May 9,
2011 hearing does not reveal any express statement by
the court that it was issuing a conditional order with
respect to the application for prejudgment remedy, the
parties later indicated at the hearing on the motion to
dismiss before Judge Pavia that they had understood
that the court’s May 9, 2011 order granting the applica-
tion for prejudgment remedy was conditioned upon the
plaintiff submitting an amended order containing the
missing property descriptions. In particular, we note
that the defendants’ counsel, in reference to the May
9, 2011 order, stated to Judge Pavia: ‘‘I would agree,
Your Honor, that the judge instructed the plaintiff that
the order was ineffective and need to be amended.’’
(Emphasis added.)
Despite that admission, the defendants argue on
appeal that once the stay of the court’s May 9, 2011
ruling expired, the order became effective and ‘‘[the
plaintiff’s] difficulty in obtaining an accurate real prop-
erty description had no effect on its ability to attach
the bank accounts, equipment, and personal property
of the defendants.’’ At that point in time, however, the
court had not signed any order of attachment. The
court’s May 9, 2011 order indicated its intent to grant
a prejudgment remedy, but failed to state what form
of prejudgment remedy it was granting or what property
was subject to the order. An order containing that infor-
mation was not signed and filed by the court until
November 16, 2011.
We conclude that, at the time Judge Pavia rendered
her decision denying the pretrial motion to dismiss,
there was not yet an effective, final order regarding the
application for prejudgment remedy. Judge Maronich
was still in the process of reviewing the real property
descriptions submitted by the plaintiff in its second
proposed order. The mandate in § 52-278j (a) that the
summons and complaint be filed within thirty days of
the granting of a prejudgment remedy was therefore
not yet applicable, and the court properly denied the
defendants’ pretrial motion to dismiss on that basis.
After the final order setting forth a detailed description
of the property subject to attachment was signed and
filed by Judge Maronich on November 16, 2011, the
plaintiff served and returned its summons and com-
plaint by December 16, 2011, which was within thirty
days and in full compliance with § 52-278j (a). Thus,
the court also properly denied the defendants’ posttrial
motion to dismiss the prejudgment remedy to the extent
that it claimed a failure to comply with § 52-278j (a).
Accordingly, we reject the defendants’ claim.
II
The defendants next claim that the court improperly
admitted Longman’s deposition transcript into evidence
at trial despite the fact that the plaintiff never filed a
sealed copy of the deposition with the court in accor-
dance with Practice Book § 13-30 (e).6 The plaintiff
argues that the defendants’ claim lacks merit because
Longman’s deposition was never made a full exhibit as
suggested by the defendants, but was used during trial
solely for the purpose of impeachment and was marked
for identification only. According to the plaintiff, Prac-
tice Book § 13-30 (e) is inapplicable, and even if the
plaintiff’s use of the unsealed deposition transcript at
trial was improper, the defendants have not shown that
they suffered any prejudice. The defendants cannot pre-
vail on this claim because the transcript was never
admitted into evidence.
Our standard of review on evidentiary claims is well
settled. A trial court’s evidentiary ruling is entitled to
great deference, and, if premised on a correct view of
the law, is subject to review for an abuse of discretion.
State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007).
To the extent that an evidentiary claim is premised,
however, on the trial court’s interpretation of a provi-
sion of the Code of Evidence, our rules of practice, or
a statute, a question of law is presented over which
our review is plenary. See id.; see also New England
Savings Bank v. Bedford Realty Corp., 246 Conn. 594,
599 n.7, 717 A.2d 713 (1998). In the present case, the
defendants’ claim calls on us to examine whether the
court properly allowed a deposition transcript that was
not sealed and filed with the court in accordance with
Practice Book § 13-30 (e) to be used at trial for impeach-
ment purposes. To the extent that this requires us to
construe the applicability of Practice Book § 13-30 or
other provisions of our rules of practice to the facts
and circumstances presented, our review is plenary.
The following additional facts are relevant to our
consideration of the defendants’ claim. At trial, the
defendants elicited testimony from Longman suggesting
that the solar panels provided to the defendants by the
plaintiff were defective. Specifically, Longman testified
on direct examination that the panels operated at a
reduced capacity than was indicated in the specifica-
tions provided by the plaintiff.7 The plaintiff, on cross
examination, sought to impeach Longman by confront-
ing him with a statement that he allegedly made during
his deposition that he could not recall at that time
whether the solar panels had met the specifications
requested by Solaire.
When it became clear to the defendants that the plain-
tiff was going to try to impeach Longman by confronting
him with his prior deposition testimony, the defendants
raised several objections, including that the deposition
transcript thus far had not been admitted into evidence
and that the plaintiff was utilizing an unsealed and unau-
thenticated document. The defendants did not refer-
ence Practice Book § 13-30 (e) or any other rule of
practice or statute in support of their objection.
After briefly referring to the Practice Book, the court
stated that it could not find any requirement that the
transcript be sealed and overruled the defendants’
objection on that ground. The court instructed the plain-
tiff that the deposition still needed to be marked for
identification purposes. The deposition was marked for
identification as plaintiff’s exhibit 26. The defendants
continued to object to the use of the deposition, arguing
that it did not contain a proper certification and was
not properly prepared in other respects. The court ruled
that the defendants, who admitted to having received
a copy of the deposition prior to trial, had waived any
such errors by operation of Practice Book § 13-31 (c)
(4), which provides: ‘‘As to completion and return of
deposition: Errors and irregularities in the manner in
which the testimony is transcribed or the deposition is
prepared, signed, certified, sealed, endorsed, transmit-
ted, filed or otherwise dealt with by the officer are
waived unless a motion to suppress the deposition or
some part thereof is made with reasonable promptness
after such defect is, or with due diligence might have
been, ascertained.’’ The plaintiff proceeded to ask Long-
man a series of questions, while at times referencing
portions of his pretrial deposition. The defendants, on
redirect, also referred back to the deposition. Long-
man’s deposition was never offered by either party and
it was not admitted by the court as a full exhibit.
We reject the defendants’ claim that the plaintiff’s
use of the deposition in this manner was improper under
Practice Book § 13-30. Practice Book § 13-30 is a techni-
cal rule setting forth various procedures to be followed
in conducting a pretrial deposition. Subsection (e) of
§ 13-30 provides in relevant part that the person that
recorded the deposition testimony ‘‘shall then securely
seal the deposition in an envelope endorsed with the
title of the action, the address of the court where it is
to be used and marked ‘Deposition of (here insert the
name of the deponent),’ shall then promptly deliver it
to the party at whose request it was taken and give to
all other parties a notice that the deposition has been
transcribed and so delivered. The party at whose
request the deposition was taken shall file the sealed
deposition with the court at the time of trial.’’ (Emphasis
in original.)
Practice Book § 13-30 does not specify any sanction
for a failure to follow the procedures set forth therein,
and the defendants have provided no authority, nor
have we found any, for the proposition that a trial court
loses its inherent discretion to permit a deposition to
be used during trial in the manner it was used here if
it was not sealed and filed in accordance with Practice
Book § 13-30 (e).8 To the contrary, Practice Book § 13-
31 (a) provides in relevant part that ‘‘[a]t the trial of a
civil action . . . any part or all of a deposition, so far
as admissible under the rules of evidence applied as
though the witness were there present and testifying,
may be used against any party who was present or
represented at the taking of the deposition or who had
reasonable notice thereof, in accordance with any of
the following provisions: (1) Any deposition may be
used by any party for the purpose of contradicting or
impeaching the testimony of the deponent as a wit-
ness.’’ (Emphasis added.)
In the present case, the plaintiff sought to use Long-
man’s deposition only to confront Longman with a prior
inconsistent statement he made during that deposition.
The plaintiff never sought to admit the deposition into
evidence as a full exhibit as extrinsic evidence of that
statement. See Conn. Code Evid. § 6-10 (c).9 A party is
generally free to confront a witness testifying in court
with any prior inconsistent statement allegedly made
out-of-court, regardless of whether that statement is
oral or written, sworn or unsworn or in compliance
with Practice Book § 13-30.10 In sum, we reject the
defendants’ claim that the court improperly allowed
the plaintiff to confront Longman with his deposition
testimony for impeachment purposes simply because
a sealed copy of the deposition was not filed with the
court prior to trial as provided in Practice Book § 13-
30 (e).
III
Finally, the defendants claim that the court improp-
erly denied their third special defense by determining
that the operative complaint alleged legally sufficient
causes of action against each of the defendants for
breach of contract.11 As to Solaire, the defendants argue
that the plaintiff failed to allege in the complaint that
the parties had formed an agreement, failed to allege
performance by the plaintiff and failed to identify a
specific contractual provision breached by Solaire. As
to Longman, the defendants again argue that the com-
plaint contains no allegation that the plaintiff had per-
formed, and also argue that the complaint contains no
specific allegation of consideration. We are not per-
suaded.
‘‘[I]t is well settled that [t]he failure to include a
necessary allegation in a complaint precludes a recov-
ery by the plaintiff under that complaint . . . . As a
result, [i]t is incumbent on a plaintiff to allege some
recognizable cause of action in his complaint. . . . Yet
[w]e previously have recognized [that] . . . if the com-
plaint puts the defendant on notice of the relevant
claims, then a plaintiff’s failure specifically to allege a
particular fact or issue is not fatal to his claim unless
it results in prejudice to the defendant.’’ (Citations omit-
ted; internal quotation marks omitted.) Sturm v. Harb
Development, LLC, 298 Conn. 124, 130–31, 2 A.3d 859
(2010).
Our review of a trial court’s determination regarding
the legal sufficiency of a pleading is plenary. See Laro-
bina v. McDonald, 274 Conn. 394, 403, 876 A.2d 522
(2005). In exercising that review, ‘‘[w]e take the facts
to be those alleged in the complaint . . . and we con-
strue the complaint in the manner most favorable to
sustaining its legal sufficiency. . . . [W]e assume the
truth of both the specific factual allegations and any
facts fairly provable thereunder.’’ (Internal quotation
marks omitted.) Sturm v. Harb Development, LLC,
supra, 298 Conn. 130. Moreover, we are mindful that
‘‘pleadings must be construed broadly and realistically,
rather than narrowly and technically.’’ (Internal quota-
tion marks omitted.) Connecticut Coalition for Justice
in Education Funding, Inc. v. Rell, 295 Conn. 240, 253,
990 A.2d 206 (2010).
‘‘The elements of a breach of contract action are the
formation of an agreement, performance by one party,
breach of the agreement by the other party and dam-
ages.’’ (Internal quotation marks omitted.) Hawley Ave-
nue Associates, LLC v. Robert D. Russo, M.D. &
Associates Radiology, P.C., 130 Conn. App. 823, 832,
25 A.3d 707 (2011). With respect to Solaire, the plaintiff
alleged in its operative complaint that ‘‘the plaintiff, at
the request of Solaire, sold solar modules . . . to
Solaire for the reasonable value of $1,534,337.60,’’ that
‘‘[the plaintiff] delivered and Solaire accepted [the solar
modules],’’ that Solaire paid the plaintiff $200,000
toward the sum owed, but ‘‘failed to pay the remaining
$1,334,337.60 owed to the plaintiff for the [solar pan-
els],’’ that ‘‘Solaire breached the contractual agreements
by its failure to pay the plaintiff the sum owed,’’ and
that, as a result of Solaire’s breach of its contractual
obligations, ‘‘the plaintiff has suffered damages in
excess of $1,334,337.60 plus interest, costs and attor-
ney’s fees.’’
Viewed in their most favorable light and construed
broadly and realistically, these allegations are sufficient
to establish that the plaintiff and Solaire had formed a
contract for the sale of goods, that the plaintiff had
performed its obligation under that contract by deliv-
ering the requested goods, and that Solaire breached
the contract when it failed to pay for the goods, thereby
resulting in damages to the plaintiff. The operative com-
plaint alleged a legally sufficient cause of action for
breach of contract against Solaire, and we reject the
defendants’ argument to the contrary.
With respect to Longman, the plaintiff incorporated
all allegations against Solaire and, in addition, alleged
that ‘‘Longman executed an ‘unconditional guaranty’
ensuring Solaire’s prompt payment,’’ that ‘‘Longman
breached his agreement to personally guaranty Solaire’s
prompt and full payment to [the plaintiff],’’ and that,
as a result, the plaintiff ‘‘has suffered damages in excess
of $1,334,337.60 plus interest, costs and attorney’s fees.’’
Viewed in their most favorable light and taking into
account not only the specific factual allegations pleaded
but those facts necessarily implied and provable there-
under, the allegations are sufficient to establish that
Longman executed a contract personally guaranteeing
Solaire’s payment for solar panels provided by the plain-
tiff, that the plaintiff performed its obligation by provid-
ing the solar panels to Solaire on credit, and that
Longman breached the agreement by failing to pay the
plaintiff when Solaire defaulted on its obligation to pay,
resulting in damages to the plaintiff. Moreover, an alle-
gation of legal consideration, which consists of ‘‘ ‘a ben-
efit to the party promising, or a loss or detriment to
the party to whom the promise is made’ ’’; Osborne v.
Locke Steel Chain Co., 153 Conn. 527, 531, 218 A.2d 526
(1966); can reasonably be inferred from the allegation
that Longman executed the guaranty so that his com-
pany could order products from the plaintiff on credit.
The operative complaint alleged a legally sufficient
cause of action for breach of contract against Longman.
In sum, the court correctly rejected the defendants’
third special defense
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 52-278j (a) provides: ‘‘If an application for a prejudg-
ment remedy is granted but the plaintiff, within thirty days thereof, does
not serve and return to court the writ, summons and complaint for which
the prejudgment remedy was allowed, the court shall dismiss the prejudg-
ment remedy.’’
2
The relevant colloquy occurred as follows:
‘‘The Court: What’s the attachment for? Is it real estate or is it—
‘‘[The Defendants’ Counsel]: Some of both, your honor.
‘‘The Court: Some of both.
‘‘[The Defendants’ Counsel]: I don’t think it was identified in the appli-
cation.
‘‘[The Plaintiff’s Counsel]: Yeah. Any and all assets, Your Honor.
‘‘The Court: Okay. All right. Does the order specifically have the real
estate that’s being attached because that’s got to be in the body of the order?
‘‘[The Defendants’ Counsel]: It would have to be amended, Your Honor.
‘‘[The Plaintiff’s Counsel]: Yeah. We’ll have to amend—
‘‘[The Defendants’ Counsel]: I don’t know if—
‘‘[The Plaintiff’s Counsel]: —that and submit it.
‘‘[The Defendants’ Counsel]: —they’ve done any discovery in that vein,
Your Honor.
‘‘The Court: All right. Well, I suppose if we could—we could just prepare
a regular straight order. And if you wanted to come back in at some point
to include real estate, and you have an agreement, we could do that as well.
‘‘[The Plaintiff’s Counsel]: That’s fine with us.
‘‘The Court: Okay.’’
3
The parties had requested the stay because they purportedly were ‘‘on
the cusp’’ of a settlement.
4
Although the trial court file contains no express written order or notice
from Judge Maronich regarding the August 5, 2011 proposed order, Judge
Pavia references Judge Maronich’s actions in her subsequent September 6,
2011 order.
5
In a posttrial motion, the defendants renewed their claim that the prejudg-
ment remedy should be dismissed for failure to serve and return to court the
summons and complaint within thirty days of the granting of the prejudgment
remedy. The motion was denied by the court, Ozalis, J., which explained
that a prejudgment remedy was not granted by Judge Maronich until Novem-
ber 16, 2011, and that the plaintiff timely served and returned process
thereafter.
6
Practice Book § 13-30 (e) provides: ‘‘The person recording the testimony
shall certify on the deposition that the witness was duly sworn by the person,
that the deposition is a true record of the testimony given by the deponent,
whether each adverse party or his agent was present, and whether each
adverse party or his agent was notified, and such person shall also certify
the reason for taking the deposition. The person shall then securely seal
the deposition in an envelope endorsed with the title of the action, the
address of the court where it is to be used and marked ‘Deposition of (here
insert the name of the deponent),’ shall then promptly deliver it to the party
at whose request it was taken and give to all other parties a notice that the
deposition has been transcribed and so delivered. The party at whose request
the deposition was taken shall file the sealed deposition with the court at
the time of trial. . . .’’ (Emphasis in original.)
7
The relevance of such testimony is not entirely clear because the defen-
dants had never asserted by way of special defense or counterclaim that
the solar panels provided by the plaintiff were defective or that such defects
justified nonpayment.
8
The requirement that a party file with the court the sealed copy of a
deposition helps to ensure its authenticity and prevents alteration of its
content, which would be particularly important if a deposition was to be
admitted in full at a trial for use as substantive evidence. Documents marked
at trial only for identification and not entered as full exhibits, however, are
not substantive evidence for consideration by the trier of fact. See State v.
Kamel, 115 Conn. App. 338, 345, 972 A.2d 780 (2009); see also C. Tait & E.
Prescott, Tait’s Handbook of Connecticut Evidence (5th Ed. 2014) § 1.29.3,
p. 93 (‘‘[e]xhibits for identification are not in evidence’’). In such instances,
the importance of any safeguards afforded by Practice Book § 13-30 (e) is
significantly diminished.
9
Section 6-10 of the Connecticut Code of Evidence provides:
‘‘(a) Prior inconsistent statements generally. The credibility of a witness
may be impeached by evidence of a prior inconsistent statement made by
the witness.
‘‘(b) Examining witness concerning prior inconsistent statement. In exam-
ining a witness concerning a prior inconsistent statement, whether written
or not, made by the witness, the statement should be shown to or the
contents of the statement disclosed to the witness at that time.
‘‘(c) Extrinsic evidence of prior inconsistent statement of witness. If a
prior inconsistent statement made by a witness is shown to or if the contents
of the statement are disclosed to the witness at the time the witness testifies,
and if the witness admits to making the statement, extrinsic evidence of
the statement is inadmissible, except in the discretion of the court. If a prior
inconsistent statement made by a witness is not shown to or if the contents
of the statement are not disclosed to the witness at the time the witness
testifies, extrinsic evidence of the statement is inadmissible, except in the
discretion of the court.’’
Thus, in accordance with the code, in confronting a witness about a
prior inconsistent statement made at a deposition, the alleged inconsistent
statement must first be disclosed to the witness prior to seeking to admit
any extrinsic evidence of the statement such as transcript of the deposition.
This is because, if, upon disclosure of the statement, the witness admits to
making the statement, then it is not necessary to admit the transcript or
any other extrinsic evidence.
10
Because the plaintiff never sought to admit the deposition transcript,
we need not decide whether it was properly admissible as a full exhibit.
11
The defendants asserted in their third special defense that ‘‘[t]he allega-
tions of the [c]omplaint and each count thereof fail to state a claim against
the [defendants] upon which relief can be granted.’’ In its decision, the court
concluded that the third special defense had no merit. First, the court
reasoned that the defendants had waived their right to challenge the legal
sufficiency of the allegations in the complaint by failing to file a motion to
strike any count prior to filing their answer to the complaint. The court
further reasoned that, even if the defendants properly could assert a claim
of legal insufficiency by way of a special defense, the plaintiff properly had
asserted in the operative complaint legally sufficient causes of action for
breach of contract against both defendants. We recognize that there is a
split of authority among our trial court judges with respect to whether
failure to state a claim upon which relief can be granted constitutes a valid
special defense. Because, in the present case, we agree with the trial court
that the complaint contained sufficient allegations to plead an action for
breach of contract against the defendants, we leave for another day whether
a party should be permitted to assert by way of special defense that a
complaint or count therein fails to state a claim upon which relief may be
granted and, if so, under what circumstances.