Stratford v. Winterbottom ( 2014 )

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TOWN OF STRATFORD v. EDMUND
WINTERBOTTOM
(AC 35825)
Lavine, Bear and West, Js.*
Argued March 7—officially released June 17, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Hon. Howard T. Owens, Jr., judge trial
referee.)
Michael S. Casey, for the appellant (plaintiff).
Frank B. Cochran, with whom was Edmund E. Win-
terbottom, self-represented, for the appellee
(defendant).
Opinion
LAVINE, J. This is one of three cases in which the
plaintiff, the town of Stratford (town), sought to recoup
a portion of the ‘‘cash-out’’ benefits paid to former
employees that were authorized by the town’s then
mayor who terminated their employment.1 The town
appeals from the judgment of the trial court rendered
in favor of the defendant, Edmund E. Winterbottom, on
the town’s complaint and the defendant’s counterclaim.
On appeal, the town claims that the court erred by
determining that (1) the town improperly reduced the
defendant’s salary, (2) the mayor has the unilateral
power to modify an employee’s monetary benefits, (3)
the defendant may keep his ‘‘cash-out’’ in good con-
science, and (4) the defendant was entitled to attorney’s
fees for bad faith litigation.2 We affirm the judgment of
the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On May 14, 2010,
the town commenced this action, which sounded in
three counts: money had and received, unjust enrich-
ment, and conversion.3 The town alleged that it and
the defendant entered into an employment agreement
(agreement) under which the town paid the defendant
a salary and extended benefits in exchange for his ser-
vices. On December 11, 2009, the then mayor, James
R. Miron,4 terminated the defendant’s employment, and
the town paid the defendant accrued benefits consistent
with the agreement. The town also alleged that it paid
the defendant moneys in excess of that to which he
was entitled, specifically $9744.56. Moreover, the town
alleged that it was free from any moral or legal obliga-
tion to make the overpayment and that the defendant
in equity and good conscience had no right to retain the
overpayment. On January 27, 2010, the town demanded
that the defendant return the overpayment, but he
refused.
In response, the defendant filed an answer, special
defenses and a counterclaim for breach of contract. He
denied the town’s allegations that he was overpaid,
had no right in good conscience to retain the alleged
overpayment, and had been unjustly enriched. He also
pleaded three special defenses: accord and satisfaction,
equitable estoppel or laches, and unclean hands. On
October 19, 2012, the defendant amended his answer
to plead a fourth special defense of collateral estoppel
predicated on Stratford v. Castater, Superior Court,
judicial district of New Haven, Docket No. CV-10-
6011629-S (March 15, 2011), aff’d, 136 Conn. App. 522,
46 A.3d 945, cert. denied, 307 Conn. 903, 53 A.3d 218
(2012), a case in which the town alleged the same three
causes of action and materially similar facts against
another former town employee, Eric Castater.
Prior to trial, the parties stipulated to the following
facts. The defendant was employed by the town as the
director of human resources from May 12, 2008 through
December 11, 2009. He was a salaried, full-time
employee under a written, at-will, agreement that enti-
tled him to benefits pursuant to policies incorporated
in the agreement. The defendant’s annual salary under
the agreement was $90,884, and he was required to
work 37.5 hours per week. The defendant worked
directly under Miron, who was mayor from December
11, 2005 through December 12, 2009. Miron negotiated
and signed the agreement, and terminated the defen-
dant’s employment. After he terminated the defendant’s
employment, Miron approved the categories and hours
used to calculate the accrued benefits owed the defen-
dant. The town paid the defendant benefits, which were
referred to as a ‘‘cash-out.’’ The ‘‘cash-out’’ was calcu-
lated using a nominal hourly rate and was subject to
withholding and other deductions.
The parties also stipulated that in the spring of 2009,
the defendant made a monetary contribution to Miron’s
reelection campaign. When the town council (council)
approved the town budget for July 1, 2009 through June
30, 2010, it denied Miron’s proposed raise for the defen-
dant and directed Miron to reduce the defendant’s
annual salary from $90,884 to $85,884. As a consequence
of the reduction in the defendant’s annual salary, the
nominal hourly rate used to calculate his ‘‘cash-out’’
was reduced from $46.61 to $44.04. Moreover, a new
town administration under Mayor John A. Harkins took
office on December 14, 2009. In January, 2010, the town
sent the defendant a W-2 form for 2009 that included
his ‘‘cash-out’’ income for social security purposes and
itemized deductions. On or about February 1, 2010,
the defendant received a letter from Kevin Kelley, the
assistant town attorney, notifying him that the town
claimed a debt of $9744.56.
The court held the first day of trial on December
19, 2012, when it took evidence and heard arguments
regarding the defendant’s collateral estoppel special
defense. The court recessed to consider the special
defense, and the parties’ stipulated facts. On January
31, 2013, the court issued a memorandum of decision
in which it declined to apply the doctrine of collateral
estoppel in this case.
The court heard evidence on the town’s complaint
and the defendant’s counterclaim on March 5, 2013,
along with the case of Stratford v. Wilson, Superior
Court, judicial district of Fairfield, Docket No. CV-10-
6010163-S (June 10 2013). The court issued its memo-
randum of decision on June 10, 2013. In its decision,
the court stated that the issue raised by the town’s
complaint was whether Miron improperly computed
some of the defendant’s ‘‘cash-out’’ by including hours
for perfect attendance, vacation days, professional
development days, and sick days. The court found the
value of the alleged overpayment to be $9744.56 and
that the town wanted full reimbursement. The court
stated that the claim alleged in the defendant’s counter-
claim was for wages wrongfully withheld due to the
town’s having reduced the defendant’s salary by
$3392.40 that resulted in a $848.10 underpayment of his
‘‘cash-out.’’
The court made the following findings of fact pursu-
ant to the parties’ stipulation. The defendant was the
town’s human resources director from May 12, 2008
through December 11, 2009. Miron hired him pursuant
to an at-will agreement that entitled the defendant to
certain benefits, including a salary of $90,844 per year
and a 37.5 hour work week. In setting the town’s budget
for July 1, 2009 through July 30, 2010, the council denied
the raise for the defendant proposed by Miron and
instead reduced his salary from $90,844 per year to
$85,884 per year. The reduction in the defendant’s salary
caused his nominal hourly rate to be reduced from
$46.61 to $44.04.
Miron lost his bid for reelection, and Harkins
assumed office as the town’s mayor on December 14,
2009. Prior to Harkins’ taking office, the defendant
accepted Miron’s offer to terminate his employment.
Due to the termination of his employment, the defen-
dant was paid for accrued benefits in a ‘‘cash-out’’ that
was included in his last paycheck. Miron personally
approved the ‘‘termination notice’’ listing the categories
and hours to be used in determining the defendant’s
‘‘cash-out.’’ The value of the ‘‘cash-out’’ was calculated
by using a nominal hourly rate and was subject to with-
holding and other deductions. The hourly rate used to
calculate the defendant’s ‘‘cash-out’’ was $44.04.
In January, 2010, under the Harkins administration,
the town sent the defendant a W-2 form, which included
the ‘‘cash-out’’ income for social security purposes
along with appropriately itemized deductions. The
assistant town attorney sent the defendant a letter dated
January 27, 2010, informing him that the town claimed
a debt of $9744.56.
In adjudicating the town’s claim for money had and
received, the court quoted the analysis of the court,
Lager, J., in Stratford v. Castater, supra, Superior
Court, Docket No. CV-10-6011629-S. Pursuant to Judge
Lager’s decision in Castater, the court stated that it
‘‘must first determine whether the cash-out payments
were made by mistake by determining whether the
mayor had the power to alter the cash-out amount under
the town charter, and then, decide whether equity war-
rants the court invalidating this transfer of funds.’’ After
construing various sections of the charter and the
agreement, the court concluded that Miron did not
exceed his authority and that the ‘‘cash-out’’ was not
paid by mistake.
The court also considered whether the defendant had
an equitable right to retain the ‘‘cash-out.’’ It found
that, although the defendant, as the human resources
director, had participated with Miron in calculating the
‘‘cash-outs’’ of others whose employment Miron had
terminated, he did not participate in the calculation of
his own ‘‘cash-out.’’ The court also found that, after
Miron left office, the town provided the defendant with
a W-2 form that included the ‘‘cash-out’’ as part of his
wages, and that the defendant paid taxes on the ‘‘cash-
out.’’ The court therefore concluded that the defendant
had retained the ‘‘cash-out’’ in good conscience.
When it adjudicated the town’s claim for unjust
enrichment, the court again looked to Judge Lager’s
decision in Castater, noting that ‘‘because [Castater]
had paid taxes on [the ‘cash-out,’] ‘it would be inequita-
ble to apply the doctrine of unjust enrichment against
him to order restitution in the town’s favor.’ ’’ Moreover,
the court found that the town had failed to prove that
the defendant was unjustly enriched. The court con-
cluded that it would be inequitable to apply the doctrine
of unjust enrichment to him.
As to the defendant’s counterclaim, the court stated
that the defendant was making a claim against the town
for lowering his salary in violation of the agreement. The
court therefore found that the defendant was entitled to
compensation for lost wages and to payment for the
difference between the ‘‘cash-out’’ he was paid and the
‘‘cash-out’’ he would have been paid at his ‘‘old rate of
pay.’’ Moreover, the court concluded that pursuant to
General Statutes § 31-72,5 if an employer fails to pay an
employee’s wages, the employee is entitled to twice the
lost wages plus attorney’s fees. The court awarded the
defendant damages of $8481, twice the total of the
town’s underpayments, and $6800 for attorney’s fees.
The court also found certain facts that it concluded
justified the imposition of attorney’s fees for bad faith
litigation. See footnote 2 of this opinion. The town
appealed.
We begin by setting forth the applicable standard of
review. ‘‘[T]he scope of our appellate review depends
upon the proper characterization of the rulings made
by the trial court. To the extent that the trial court has
made findings of fact, our review is limited to deciding
whether such findings were clearly erroneous. When,
however, the trial court draws conclusions of law, our
review is plenary and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Shevlin v. Civil Service Com-
mission, 148 Conn. App. 344, 354, 84 A.3d 1207 (2014).
I
The town first claims that the court erred in finding
that the council improperly reduced the defendant’s
salary. This claim is relevant to the court’s judgment
pertaining to the defendant’s counterclaim for breach
of contract. The town contends that (1) it did not breach
the agreement by reducing the defendant’s salary, (2)
the council had the authority to adjust salaries, and the
agreement may not impinge on that authority, and (3)
General Statutes § 7-421 does not afford the defendant
a private cause of action or insulate him from the coun-
cil’s budgetary authority.6 We disagree.
The following facts are relevant to our resolution
of the town’s claim. In his revised counterclaim, the
defendant alleged that he and the town were parties to
a written agreement under which the town employed
him to perform certain services and established his base
salary. In the revised counterclaim, the defendant also
alleged that his ‘‘base salary may be increased on July
1 of each fiscal year, subject to the approval of the
Town Council, which by Charter fixes the salaries of
all mayoral appointees.’’ (Internal quotation marks
omitted.) He also alleged that, in early 2009, he made
a contribution to Miron’s reelection campaign. There-
after, the council reduced his salary to a level below
the salary specified in the agreement, and the town paid
him a reduced salary from July 1, 2009, through the
termination of his employment. The defendant alleged
that the council reduced his salary in retaliation for
his exercise of his political rights pursuant to General
Statutes §§ 7-421 and 7-421b.
Moreover, the defendant alleged that although Miron
terminated the agreement and excused the defendant
from further performance after December 11, 2009, Har-
kins publicly accused the defendant of failing to appear
for duty on December 15, 2009. In addition, he alleged
that his ‘‘cash-out’’ was calculated on a base salary
lower than that specified in the agreement. The defen-
dant claimed double damages and attorney’s fees pursu-
ant to § 31-72. The town denied the material allegations
of the counterclaim and pleaded numerous special
defenses, including a fifth special defense that the
defendant continued to be employed by the town after
his salary was adjusted, he accepted the new terms
moving forward, and he waived his rights or is estopped
under the doctrine of laches from pursuing his claim.
The defendant denied the fifth special defense and, at
trial, placed into evidence an e-mail he sent to Miron
in which he reserved his salary rights under the
agreement.
In its memorandum of decision, the court stated that
the defendant’s counterclaim was for breach of the
agreement, and that the town claimed that the charter
permits the council to set salaries and to approve the
salary schedule proposed by the mayor. The agreement,
a July 11, 2008 letter signed by Miron and the defendant,
was placed into evidence. The court set forth the follow-
ing portions of the agreement in its decision.
‘‘This letter sets forth the mutually agreed upon terms
and conditions of your employment as Human
Resources Director and constitutes the agreement
between you and the [t]own . . . regarding such
employment. This agreement shall remain in effect
unless mutually modified and/or terminated except as
to provisions that survive termination. . . .
‘‘2. Your salary shall be $90,844 per annum effective
July 1, 2008. Thereafter, the [m]ayor shall review and
evaluate your performance annually within two (2)
months from the beginning of the fiscal year of the
[t]own. Based upon the annual performance evaluation,
and at the [m]ayor’s sole discretion and recommenda-
tion, the base salary may be increased on July 1 of each
fiscal year, subject to the approval of the [council],
which by Charter fixes the salaries of all mayoral
appointees. . . .
‘‘10. You acknowledge and agree that your employ-
ment is ‘at will’ and that nothing contained in this
[a]greement shall be construed to require any cause for
your removal or termination or to give you right to due
process in the event of your suspension, removal or
termination. . . .
‘‘12. This [a]greement contains the entire understand-
ing and agreement between the parties and supersedes
any prior employment letter. This [a]greement may not
be modified or waived except in writing and signed by
[the defendant] and the [m]ayor of the [t]own. This
[a]greement may not be assigned or otherwise trans-
ferred in whole or in part.’’
The court found that provisions in § 2 of the charter
regarding the respective powers of the mayor and coun-
cil also applied to the town’s claim regarding the setting
of the defendant’s salary. After reviewing the agreement
and the charter, the court found that both the mayor
and the council had broad power regarding employment
matters. The court agreed with the defendant that
according ‘‘to the terms of the charter, the . . . council
did not have the power to lower the defendant’s salary
as part of the annual budget process.’’7 The court con-
cluded that the defendant is entitled to compensation
for his lost wages and payment for the difference
between the ‘‘cash-out’’ he was paid and the ‘‘cash-out’’
he would have been paid had the council not lowered
his salary. The court found additionally that pursuant
to § 31-72, if an employer fails to pay an employee’s
wages, the employee is entitled to twice the lost wages
plus attorney’s fees. The court awarded the defendant
$8481 in damages plus attorney’s fees of $6800.8
The town’s claim requires us to construe the
agreement and the charter. ‘‘[I]n construing contracts,
we give effect to all the language included therein, as
the law of contract interpretation . . . militates
against interpreting a contract in a way that renders a
provision superfluous. . . . If a contract is unambigu-
ous within its four corners, intent of the parties is a
question of law requiring plenary review. . . . When
the language of a contract is ambiguous, the determina-
tion of the parties’ intent is a question of fact, and
the trial court’s interpretation is subject to reversal on
appeal only if is clearly erroneous. . . . To identify and
apply the appropriate standard of review, we must,
therefore, initially determine whether the agreement
. . . was ambiguous.’’ (Citations omitted; internal quo-
tation marks omitted.) McKeon v. Lennon, 147 Conn.
App. 366, 373, 83 A.3d 639 (2013).
‘‘In determining whether a contract is ambiguous, the
words of the contract must be given their natural and
ordinary meaning. . . . A contract is unambiguous
when its language is clear and conveys a definite and
precise intent. . . . The court will not torture words
to impart ambiguity where ordinary meaning leaves no
room for ambiguity. . . Moreover, the mere fact that
the parties advance different interpretations of the lan-
guage in question does not necessitate a conclusion
that the language is ambiguous. . . .
‘‘In contrast, a contract is ambiguous if the intent of
the parties is not clear and certain from the language
of the contract itself. . . . [A]ny ambiguity in a contract
must emanate from the language used by the parties.
. . . The contract must be viewed in its entirety, with
each provision read in light of the other provisions . . .
and every provision must be given effect if it is possible
to do so. . . . If the language of the contract is suscepti-
ble to more than one reasonable interpretation, the
contract is ambiguous.’’ (Citations omitted; internal
quotation marks omitted.) Cruz v. Visual Perceptions,
LLC, 311 Conn. 93, 102–103, 84 A.3d 828 (2014).
On the basis of our review of the agreement, we
conclude that the language of the agreement, which
contains twelve numbered paragraphs, is not ambigu-
ous with respect to the defendant’s salary. The defen-
dant’s salary is addressed in paragraph 2 of the
agreement, which states: ‘‘Your salary shall be $90,844
per annum effective July 1, 2008. Thereafter, the
[m]ayor shall review and evaluate your performance
annually within two (2) months from the beginning of
the fiscal year of the [t]own. Based upon the annual
performance evaluation, and at the [m]ayor’s sole dis-
cretion and recommendation, the base salary may be
increased on July 1 of each fiscal year, subject to the
approval of the [council], which by Charter fixes the
salaries of all mayoral appointees.’’ Paragraph 2 clearly
states the amount of the defendant’s salary as of July
1, 2008, and sets forth the manner in which that salary
may be increased. There is no mention in paragraph 2,
nor in any other paragraph of the agreement, of reduc-
ing the defendant’s salary. ‘‘In interpreting a contract
courts cannot add new or different terms.’’ Cirrito v.
Turner Construction Co., 189 Conn. 701, 706–707, 458
A.2d 678 (1983).
Moreover, paragraph 12 of the agreement states in
relevant part: ‘‘This [a]greement may not be modified
or waived except in writing and signed by you and the
[m]ayor of the [t]own.’’ Pursuant to paragraph 12, the
defendant’s salary could not have been modified, unless
the mayor recommended an increase that the council
approved, or the parties reached a new agreement that
was signed by the defendant and the mayor.
In support of its claim that the council could reduce
the defendant’s salary, the town relies on paragraph 10
of the agreement, which established that the defendant
was an at-will employee. Paragraph 10 states: ‘‘You
acknowledge and agree that your employment is ‘at
will’ and that nothing contained in this [a]greement
shall be construed to require any cause for your removal
or termination or to give you right to due process in
the event of your suspension, removal or termination.’’
In its appellate brief, the town argues that the ‘‘defen-
dant’s at will agreement with the [town] could have
been terminated at any time, subject to the [sixty] day
notice provision.9 The contention that the defendant
had a vested right to maintain his salary without pro-
spective modification is simply not supported by the
agreement and the law. . . . Further, the express lan-
guage that the salary is subject to Town Council
approval and that it fixes the salaries of all mayoral
appointee[s] puts any employee on clear notice that the
Town Council is empowered to adjust salaries yearly.
. . . If the defendant objected to the reduction in his
salary and did not want to remain under the new salary,
the defendant could have left without liability, consis-
tent with an at will agreement. Rather, the defendant
chose to remain under the unambiguous change in his
salary.’’10 (Footnote added.) The town’s reasoning is
unpersuasive.
First, if the town’s argument is that the at-will provi-
sion of the agreement permitted it to terminate the
defendant’s employment and then to rehire him at a
reduced salary, the town had to demonstrate that it
gave the defendant notice that it was terminating his
employment under the agreement. See footnote 9 of
this opinion. The court did not find that the town gave
the defendant notice that it was terminating his employ-
ment or paid him his base salary and benefits for sixty
days. Second, the town’s argument that the defendant’s
salary was subject to council approval does not mean
that the council could change the defendant’s salary at
will, much less reduce it. The agreement provided that
the defendant’s salary could be increased annually upon
recommendation of the mayor, which was subject to
council approval. Although the council was responsible
for setting the town’s annual budget, the charter did
not give the council authority to change the defendant’s
salary, except to increase it.
The ‘‘law’’ or cases, that the town relies upon also
do not support its position as they are factually distin-
guishable; they concern implied contracts, not a written
agreement. In Fennell v. Hartford, 238 Conn. 809, 814,
681 A.2d 934 (1996), our Supreme Court considered
whether ‘‘the pension manual created an implied con-
tract.’’ In Biello v. Watertown, 109 Conn. App. 572, 573,
953 A.2d 656, cert. denied, 289 Conn. 934, 958 A.2d 1244
(2008), this court addressed an implied contract. ‘‘An
implied contract is an agreement between parties which
is not expressed in words but which is inferred from
the acts and conduct of the parties.’’ Brighenti v. New
Britain Shirt Corp., 167 Conn. 403, 406, 356 A.2d 181
(1974). In the present case, there is a written agreement
signed by Miron and the defendant, and thus the cases
cited by the town do not support its position.
The town contends that the agreement may not
impinge on the provisions of the charter. ‘‘In construing
a city charter, the rules of statutory construction gener-
ally apply.’’ (Internal quotation marks omitted.) Stam-
ford Ridgeway Associates v. Board of Education, 214
Conn. 407, 423, 572 A.2d 951 (1990). ‘‘The officer, body
or board duly authorized must act [on] behalf of the
municipality, otherwise a valid contract cannot be cre-
ated. Generally the power to make contracts on behalf
of the municipality rests in the council or governing
body . . . . Generally, no officer or board, other than
the common council, has power to bind the municipal
corporation by contract, unless duly empowered by
statute, the charter, or authority conferred by the com-
mon council, where the latter may so delegate its pow-
ers . . . .’’ (Internal quotation marks omitted.) Fennell
v. Hartford, supra, 238 Conn. 813.
We agree with the town that pursuant to §§ 2.2.5 and
5.8.1 of the Stratford Charter (charter),11 the council
had the power to approve the wage and salary schedules
recommended by the mayor for administrative depart-
ment employees.12 We disagree, however, with the
town’s contention that the agreement impinged on the
council’s authority under the charter. Under the charter,
the mayor is charged with the selection, appointment
and hiring of department heads, and with recommend-
ing salaries and wages to the council for its approval.
The agreement also required the mayor to submit the
defendant’s salary to the council for approval. When
read together, the charter and the agreement are not
inconsistent. The town’s argument fails because once
the council approved the defendant’s salary as recom-
mended by Miron and the salary was incorporated in
the agreement, the only change the council could make
to the defendant’s salary was to increase it pursuant to
the mayor’s recommendation.
For the foregoing reasons, we reject the town’s claim
that the court erred in finding that the council improp-
erly reduced the defendant’s salary.
II
The town’s second claim is that the court erred by
holding that the mayor has the unilateral power to mod-
ify town employee’s monetary benefits. We decline to
review this claim.
In its brief on appeal, the town states that the court
referenced §§ 1.2, 2.2.14, 5.6.6 and 6.2.1 of the charter
‘‘to support the conclusion that as long as he is mayor,
[Miron] has broad authority to modify the terms of the
defendant’s employment agreement and to determine
the categories and hours used to calculate the defen-
dant’s cash-out benefits upon termination.’’ The town’s
brief does not identify the portion of the court’s memo-
randum of decision to which it refers. Our review of the
court’s memorandum of decision discloses reference to
the enumerated sections of the charter in that portion
of the court’s memorandum of decision concerning the
town’s claim for money had and received.
To prevail on a claim for money had and received,
a plaintiff must prove both the lack of authority to
authorize the payment and that it is inequitable for the
recipient to retain it. Stratford v. Castater, supra, 136
Conn. App. 531. Because a cause of action for money
had and received requires proof of two prongs, this
court may affirm the judgment of the trial court on proof
‘‘that the payment was authorized or that its retention by
the defendant is equitable under all of the circum-
stances.’’ Id. In both Castater and Stratford v. Wilson,
Conn. App. , A.3d (2014), this court
affirmed the judgments of the trial courts on the equita-
ble prong and did not address whether Miron had the
authority to authorize the defendants’ ‘‘cash-outs.’’ The
cause of action in the present case is the same, and
there are no material differences among the facts of
the three cases. This court’s previous resolution of the
equitable prong of the town’s claim for money had and
received in Stratford v. Castater, supra, 528–32, is con-
trolling, and we, therefore, need not address the town’s
claim regarding the mayor’s authority.
III
The town’s third claim is that the court erred in find-
ing that the defendant may in good conscience retain
the ‘‘excess cash-out.’’ We do not agree.
In count one of its complaint, the town alleged a
cause of action sounding in money had and received.
This court outlined the development of the common-
law cause of action for money had and received in
Stratford v. Castater, supra, 136 Conn. App. 529.
‘‘[W]hen money is paid by one on the basis of a mistake
as to his rights and duties and the recipient has no right
in good conscience to retain the money, an action of
indebitatus assumpsit may be maintained to recover
the money, regardless of whether the mistake was one
of fact or of law. . . . The action of indebitatus
assumpsit for the recovery of money had and received
and for money paid . . . is an action of the common
law, but, to a great extent, an equitable action, adopted
for the enforcement of many equitable, as well as legal
rights.’’ (Internal quotation marks omitted.) Id.
‘‘The action for money had and received is an equita-
ble action to recover back money paid by mistake where
the payor is free from any moral or legal obligation to
make the payment and the payee in good conscience
has no right to retain it. Is the plaintiff in this action,
as between it and the defendant, in equity and good
conscience entitled to the money? If it is, then it is
entitled to recover. The real ground of recovery is the
equitable right of the plaintiff to the money.’’ Bridgeport
Hydraulic Co. v. Bridgeport, 103 Conn. 249, 261–62,
130 A. 164 (1925).
‘‘We will reverse a trial court’s exercise of its equita-
ble powers only if it appears that the trial court’s deci-
sion is unreasonable or creates an injustice. . . .
[E]quitable power must be exercised equitably . . .
[but] [t]he determination of what equity requires in a
particular case, the balancing of the equities, is a matter
for the discretion of the trial court. . . . In determining
whether the trial court has abused its discretion, we
must make every reasonable presumption in favor of
the correctness of its action. . . . Our review of a trial
court’s exercise of the legal discretion vested in it is
limited to the questions of whether the trial court cor-
rectly applied the law and could reasonably have
reached the conclusion that it did.’’ (Citation omitted;
internal quotation marks omitted.) Croall v. Kohler, 106
Conn. App. 788, 791–92, 943 A.2d 1112 (2008).
The parties stipulated that the defendant was
employed by the town pursuant to a written agreement
and that Miron terminated the defendant’s employment
on December 11, 2009. Miron authorized the ‘‘cash-out’’
payment to the defendant. The town paid the defendant
his accrued benefits in his last paycheck, and the bene-
fits were subject to withholding and other deductions.
In January, 2010, the town sent the defendant a W-2
form that included that ‘‘cash-out’’ income for social
security purposes and itemized deductions.
In determining whether the defendant may keep the
‘‘cash-out’’ in good conscience, the court made the fol-
lowing factual findings. The defendant was the human
resources director who met with Miron, the chief
administrative officer, and the finance director to deter-
mine the ‘‘cash-outs’’ of those town employees whose
employment was terminated. The defendant, however,
did not participate in the calculation of his ‘‘cash-out.’’
The town sent the defendant his W-2 form after Miron’s
term as mayor had ended. The defendant’s W-2 form
included the ‘‘cash-out’’ as part of his wages, and he
paid taxes on the ‘‘cash-out.’’ On the basis of the evi-
dence, the court determined that the defendant retained
the ‘‘cash-out’’ in good conscience.
Our review of the record, including the parties’ stipu-
lation of facts and the court’s findings, reveals that the
town intentionally terminated the defendant’s employ-
ment and that it knowingly—not mistakenly—paid him
the ‘‘cash-out’’ authorized by Miron. The town also
admitted those facts in its complaint and is bound by
them. See Rudder v. Mamanasco Lake Park Assn., Inc.,
93 Conn. App. 759, 769, 890 A.2d 645 (2006) (parties
bound by their pleadings). The town confirmed the
wages it paid the defendant by sending him a W-2 form
that included the ‘‘cash-out.’’ Approximately two weeks
later, the town acting under the Harkins administration,
caused a letter to be sent to the defendant informing
him that the town was seeking to collect a debt predi-
cated on the ‘‘cash-out.’’ We agree with the court that
the equities of this situation tip in favor of the defendant.
‘‘The plaintiff’s change of mind and heart [with regard
to the ‘cash-out’] has come too late.’’ Monroe National
Bank v. Catlin, 82 Conn. 227, 230, 73 A. 3 (1909) (plain-
tiff sought to recover money voluntarily paid with
knowledge of facts). We therefore conclude that the
court’s finding that the defendant retained the ‘‘cash-
out’’ in good conscience was not erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
See Stratford v. Wilson, Conn. App. , A.3d (2014); Strat-
ford v. Castater, 136 Conn. App. 522, 46 A.3d 945, cert. denied, 307 Conn.
903, 53 A.3d 218 (2012). This case and Wilson were tried together; the
appeals to this court were argued on the same day.
2
Because we conclude that the court properly awarded the defendant
attorney’s fees pursuant to General Statutes § 31-72, we need not decide
whether the plaintiff engaged in bad faith litigation, and, if so, whether bad
faith litigation provided an additional ground for the court to award the
defendant attorney’s fees.
3
The court, Hon. Howard T. Owens, Jr., judge trial referee, rendered
judgment in favor of the defendant on the town’s conversion count. In its
memorandum of decision, the court stated that the town failed to address
the claim in its pretrial brief and that it made no case for conversion. The
court also referenced the findings and analysis of the trial court in Stratford
v. Castater, Superior Court, judicial district of New Haven, Docket No. CV-
10-6011629-S (March 15, 2011), aff’d, 136 Conn. App. 522, 46 A.3d 945, cert.
denied, 307 Conn. 903, 53 A.3d 218 (2012).
In Castater, the court, Lager, J., found that the town failed to make out
a prima facie case because it failed to offer evidence to establish that
Eric Castater’s conduct with respect to his being paid the ‘‘cash-out’’ was
unauthorized and that his ‘‘cash-out’’ injured the town. In fact, Judge Lager
found that Castater was authorized to receive the payments and that the
conversion claim failed on its merits. In the present case, the trial court
found that the defendant believed that he was receiving an appropriate
‘‘cash-out’’ benefit and that he was authorized to receive the payment. In
its brief on appeal, the town stated that it was withdrawing the conver-
sion count.
4
Miron lost his bid for reelection in November, 2009.
5
General Statutes § 31-72 provides in relevant part: ‘‘When any employer
fails to pay an employee wages in accordance with the provisions of sections
31-71a to 31-71i, inclusive, or fails to compensate an employee in accordance
with section 31-76k . . . such employee . . . may recover, in a civil action,
twice the full amount of such wages, with costs and such reasonable attor-
ney’s fees as may be allowed by the court . . . .’’
General Statutes § 31-76k provides in relevant part: ‘‘If an employer policy
. . . provides for the payment of accrued fringe benefits upon termination,
including but not limited to paid vacations, holidays, sick days and earned
leave, and an employee is terminated without having received such accrued
fringe benefits, such employee shall be compensated for such accrued fringe
benefits exclusive of normal pension benefits in the form of wages in accor-
dance with such . . . policy but in no case less than the earned average
rate for the accrual period pursuant to sections 31-71a to 31-71i, inclusive.’’
6
In its brief on appeal, the town acknowledges that the court did not
address the § 7-421 issue in its memorandum of decision. Indeed, our review
of the memorandum of decision reveals that the court merely recited the
defendant’s claim and testimony without reaching a legal conclusion as to
the applicability of § 7-421 to the facts of this case. The town has failed to
note where in the record it brought its jurisdictional claim to the attention
of the court or that it sought an articulation from the court. See Practice
Book § 66-5. Regardless of whether the town preserved the issue for appeal
or whether the record is adequate for our review, the court did not award
the defendant damages pursuant to § 7-421, but rather pursuant to § 31-72.
Moreover, on the basis of our plenary review of the defendant’s counterclaim;
see Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn. App.
569, 576, 966 A.2d 813 (construction of pleadings plenary), cert. denied, 292
Conn. 911, 973 A.2d 661 (2009); the defendant alleged a claim for breach
of contract.
7
The court noted the defendant’s claims with regard to §§ 7-421 and 7-
421b, and cited the language of those statutes and the defendant’s testimony
that the town violated the statutes by lowering his salary after he contributed
to Miron’s reelection campaign. Despite the defendant’s claim and testimony,
the court made no finding that the town violated the defendant’s rights
under the statutes nor did it make a finding as to why the council reduced
the defendant’s salary.
8
The court stated that it carefully had calculated the defendant’s claims
for attorney’s fees.
9
Paragraph 5 of the agreement provides in relevant part: ‘‘In the event
that the [t]own terminates your employment, written notice shall be given
not less than sixty (60) calendar days in advance of the date of said termina-
tion, or in the alternative, the [t]own may terminate your employment with-
out advance notice and pay you your full salary and benefits for the sixty
(60) calendar day period immediately following your date of termination.
In the event of termination in lieu of notice and payment as provided, you
shall be immediately relieved of your duties. . . .’’
10
The defendant placed in evidence a copy of the e-mail he sent to Miron
reserving his rights under the agreement.
11
Section 2.2.5 of the Stratford Charter provides: ‘‘The Council shall fix
the salaries of the Mayor and of all Council or Mayoral appointees. Prior
to the first day of July during the year in which the regular election of the
Mayor is held, the Council shall approve by ordinance the salary for the
Mayor, to be effective with the commencement of the Mayoral term next
following the election. The Mayor’s salary shall not be subject to any further
interim increase or decrease during said term of office. The Council shall
further have the power to approve or disapprove wage and salary schedules
recommended by the Mayor for administrative department employees.’’
Section 1.2 (13) of the Stratford Charter concerns the duties of the mayor
and provides: ‘‘Selection, appointment and hiring of department heads,
except as otherwise provided in this Charter.’’
Section 5.8.1 of the Stratford Charter provides: ‘‘The Mayor shall develop
a wage and salary schedule for Town employees, which schedule shall be
approved by the Town Council.’’
12
The council apparently approved the defendant’s salary as stated in the
agreement, which was signed on July 11, 2009, subsequent to the beginning
of the fiscal year.
Section 6.1.1 of the Stratford Charter provides: ‘‘The fiscal year of the
Town shall commence July first of each year and expire the thirtieth day
of June next succeeding.’’