Northeast Builders Supply & Home Centers, LLC v. RMM Consulting, LLC ( 2021 )

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NORTHEAST BUILDERS SUPPLY &
HOME CENTERS, LLC v. RMM
CONSULTING, LLC, ET AL.
(AC 41486)
Keller, Prescott and Devlin, Js.
Syllabus
The plaintiff, a building supply company, sought to recover damages from
the defendants for breach of contract after they failed to make payments
owed for building materials sold to them pursuant to a credit agreement.
The credit agreement was signed by the defendant M, who was the sole
member of the defendants R Co. and T Co., and by the defendant J, M’s
husband and a building contractor, in their capacities as both buyers
and personal guarantors. The defendants filed a five count counterclaim
and the plaintiff moved to strike four of the counts on the ground that
they did not arise out of the same transaction that formed the basis for
the plaintiff’s complaint. The trial court granted the motion to strike
and later rendered judgment in favor of the plaintiff on the four stricken
counts. Following a trial to the court, the trial court rendered judgment
for the plaintiff on its complaint and on the remaining count of the
counterclaim alleging breach of contract, from which the defendants
appealed to this court. Held:
1. The trial court did not abuse its discretion in granting the plaintiff’s motion
to strike four counts of the defendants’ counterclaim because the counts
did not arise out of the same transaction that formed the basis for the
complaint: the stricken counts involved issues relating to the plaintiff’s
use of prejudgment remedies, the propriety of the prejudgment remedies,
and their legal effect, and the plaintiff’s motivation in utilizing such
remedies presented factual and legal issues distinct from those necessary
to adjudicate whether the defendants breached the credit agreement;
accordingly, the court should have rendered judgment dismissing the
counts on the ground of improper joinder, and the case was remanded
with direction to render a judgment of dismissal with respect to the
stricken counts of the counterclaim.
2. The trial court properly rendered judgment on the merits of the complaint
and the counterclaim in favor of the plaintiff:
a. The trial court’s finding that the plaintiff was the seller of the building
supplies at issue in the complaint was not clearly erroneous: the defen-
dants failed to provide any basis for this court to conclude that the
court erred in viewing an uncontested allegation in the defendants’
surviving count of its counterclaim as a judicial admission that the
plaintiff was the seller; moreover, even if the court should not have
treated the defendants’ pleadings as constituting a judicial admission,
there was sufficient evidence in the record to support the court’s finding
that the plaintiff was the seller, including the fact that the credit applica-
tion identified the plaintiff as the party extending the credit, invoices
provided to the defendants had the plaintiff’s name and logo printed on
them and indicated that payment should be remitted to the plaintiff, all
funds paid by the defendants were deposited into accounts owned by
the plaintiff, and the plaintiff was the actual owner of the materials
provided to the defendants.
b. The trial court’s finding that J and M acted in dual capacities as
buyers and guarantors was not clearly erroneous; the court was entitled
to rely on the defendants’ allegation in the surviving count of its counter-
claim that the defendants collectively, including J and M, purchased
goods and materials from the plaintiff as a judicial admission that J and
M were buyers under the credit agreement.
c. Contrary to the defendants’ claim, the trial court applied the proper
standard in considering the defendants’ defense of revocation; the court
found that the defendants had failed to present evidence that established
to what extent any defects in the building materials had impaired the
value of the goods delivered to the defendants, which was a necessary
element to justify revocation of acceptance.
d. The defendants’ claim that the trial court misapplied a provision
(§ 42a-2-714) of the Uniform Commercial Code in rendering judgment
for the plaintiff on the breach of contract count of their counterclaim
was unavailing; although the court found that the defendants had shown
that some of the goods may have been nonconforming, the defendants
failed to establish the value of the goods as accepted, which prevented
the court from comparing the value of the goods as received to the
value of the goods had they been received in proper condition.
e. The trial court’s award of damages to the plaintiff was not clearly
erroneous; there was evidence before the court from which it could
make a fair and reasonable calculation of the amount of damages, includ-
ing copies of statements that accounted for all charges and payments
from the time the defendants opened the credit account through the
filing of the action and it was free not to credit the evidence submitted
by the defendants in support of their challenges to the damages claimed
by the plaintiff.
Argued June 15, 2020—officially released January 26, 2021
Procedural History
Action to recover damages for breach of contract,
and for other relief, brought to the Superior Court in
the judicial district of Fairfield, where the court, Rad-
cliffe, J., granted the plaintiff’s motion to strike certain
counts of the defendants’ counterclaim and rendered
judgment thereon; thereafter, the matter was tried to
the court, Arnold, J.; judgment for the plaintiff on the
complaint and the counterclaim, from which the defen-
dants appealed to this court. Improper form of judg-
ment; affirmed in part; reversed in part; judgment
directed.
Irve J. Goldman, with whom was Bruce W. Diamond,
for the appellants (defendants).
Bruce L. Elstein, for the appellee (plaintiff).
Opinion
PRESCOTT, J. The action underlying this appeal
involves a dispute over payment for building supplies
provided by the plaintiff, Northeast Builders Supply &
Home Center, LLC, to the defendants, RMM Consulting,
LLC (RMM); Todd Hill Properties, LLC (Todd Hill Prop-
erties); Maureen Morrill; and Clifford Jones. The defen-
dants appeal, following a trial to the court, from the
judgment rendered in favor of the plaintiff on its one
count breach of contract complaint and from the court’s
earlier partial judgment rendered against the defen-
dants on several counts of their counterclaim following
the granting of a motion to strike those counts.1
On appeal, the defendants claim that the court
improperly (1) granted the plaintiff’s motion to strike
four counts of their counterclaim on the ground that
the counts were improperly joined because they failed
the transaction test set forth in Practice Book § 10-10,2
and (2) rendered judgment in favor of the plaintiff on
its complaint and on the sole remaining count of the
counterclaim because the court (a) incorrectly deter-
mined that the plaintiff was the seller of the goods at
issue, (b) wrongly concluded that the individual defen-
dants, Jones and Morrill, were liable as buyers of the
goods rather than as guarantors only, (c) failed to prop-
erly consider the defendants’ defense of revocation of
acceptance, (d) rendered judgment for the plaintiff
despite having found that some of the goods at issue
were defective and that the plaintiff had refused to
remedy or replace them, and (e) incorrectly found that
the plaintiff proved its damages to a reasonable degree
of certainty.3 We conclude that the court properly
granted the motion to strike, but that the form of the
judgment rendered on the stricken counts of the coun-
terclaim was incorrect, and, accordingly, we reverse
the judgment on the stricken counts of the counterclaim
and remand with direction to render a judgment of
dismissal on those counts. We otherwise affirm the
judgment of the court.
The record reveals the following facts and procedural
history relevant to our review of the claims on appeal.4
In September, 2006, the defendants executed a credit
application form (agreement) provided to them by an
employee of the plaintiff for the purpose of establishing
a $100,000 open line of credit with the plaintiff in the
names of the defendants RMM and Todd Hill Properties.
The agreement was approved and signed by the plaintiff
on September 26, 2006.
The ‘‘general terms and conditions’’ section of the
agreement provides in relevant part that, in exchange
for the extension of credit by the ‘‘[s]eller,’’ the ‘‘[b]uyer’’
agrees to make payments in accordance with the terms
specified in the agreement.5 The agreement expressly
defines the term ‘‘[s]eller’’ as including ‘‘[the plaintiff],
its subsidiaries, divisions, or its assigns and Divisions:
Bridgeport ‘Do It Best’ Lumber, Weed & Duryea Lumber
and Home Center, and The Kitchen & Home Planning
Center . . . .’’6 (Emphasis added.) The term ‘‘[b]uyer’’
is defined in the agreement as including ‘‘any member
of the business entity’’ seeking credit. In addition to
agreeing to make all required payments, the buyer
agreed that, if legal action was needed to enforce pay-
ment, ‘‘the [b]uyer will be responsible for all reasonable
costs and expenses of collection, including [attorney’s]
fees and court costs . . . .’’ As a condition of approval
by the plaintiff, the agreement required that a ‘‘[p]er-
sonal [g]uarantor or [i]ndividual [b]uyer’’ sign the agree-
ment to ensure an ‘‘unlimited guaranty of payment and
a primary and unconditional obligation intending to
cover all existing and future indebtedness of the [b]uyer
to the [s]eller including but not limited to payment of
interest and attorney’s fees and costs due upon default
as provided above and including an[y] indebtedness in
excess of the credit limit approved.’’
Morrill, who was the sole member of both RMM and
Todd Hill Properties, signed the agreement in two
places—once on a line designated for the buyer and,
again, on a separate line marked ‘‘Personal Guarantor
(2nd/Spouse).’’ Jones, who is Morrill’s husband and a
building contractor, signed on a line marked ‘‘Personal
Guarantor or Individual Buyer.’’
Soon after establishing their line of credit with the
plaintiff, the defendants began to purchase and receive
various building materials from the plaintiff for use in
several construction projects, including a project con-
verting a property located at 11 Cornwall Road from a
multifamily residence into a bed and breakfast.7 The
plaintiff provided the defendants with invoices for all
materials purchased and also provided regular monthly
statements for the credit account, which included any
outstanding balances due.8 Beginning in June, 2008, the
defendants failed to make payments when they were
due, and, by the end of July, 2008, the defendants’
account had fallen into arrears.
The plaintiff commenced the underlying action on
December 31, 2008. In its one count complaint, the
plaintiff alleged that the defendants had failed to pay
amounts due and owing to it under the parties’ agree-
ment, despite its demands for payment. According to
the complaint, the balance due and owing on the defen-
dants’ credit account was $68,886.58, plus interest. The
plaintiff also alleged that it was entitled to recover attor-
ney’s fees that it incurred in seeking to collect payment.
Together with the complaint, the plaintiff served the
defendants with notice of an ex parte prejudgment rem-
edy in accordance with General Statutes § 52-278f.9
The defendants filed their initial answer to the com-
plaint in April, 2009. In that answer, the defendants
admitted ‘‘that they purchased some items from the
plaintiff’’ but denied that they had done so at any agreed
upon price or that they had failed to make required
payments. The initial answer included four special
defenses and a two count counterclaim directed against
the plaintiff. The counts of the counterclaim sounded
in breach of contract and a violation of the Connecticut
Unfair Trade Practices Act (CUTPA), General Statutes
§ 42-110a et seq.
In June, 2010, the plaintiff filed notice with the court
that Morrill had filed a Chapter 11 bankruptcy petition
in March, 2010. This resulted in a stay of further pro-
ceedings in the underlying action until July, 2015, at
which time the Bankruptcy Court, with the consent of
the parties, granted relief from the automatic bank-
ruptcy stay to allow the parties ‘‘to proceed with the
state court action to conclusion.’’
On September 2, 2015, the defendants filed an
amended answer, special defenses, and counterclaim.
In the amended answer, the defendants no longer admit-
ted to having purchased items from the plaintiff, leaving
the plaintiff to its proof on that allegation. The defen-
dants also added a fifth special defense in which they
asserted that they had not purchased any of the goods
and materials referenced in the complaint from the
plaintiff and that any such items were supplied by and
purchased from the plaintiff’s subsidiary, Northwest
Lumber and Hardware (Northwest Lumber). The defen-
dants also added two new counts to the counterclaim.
Counts one and two continued to sound, respectively,
in breach of contract based on the defendants’ alleged
receipt of defective materials and a CUTPA violation.
The third count challenged, inter alia, whether the
agreement was ‘‘an effective obligation or guarantee of
debts incurred as a result of goods and materials sold
and delivered by Northwest [Lumber].’’10 The fourth
count sought to recover damages that had arisen
because of the plaintiff’s allegedly improper use of pre-
judgment remedies in this matter.
The plaintiff filed a motion to strike the amended
counterclaim, arguing that the defendants had failed to
join Northwest Lumber as a party despite the allegations
that suggested that Northwest Lumber was the proper
party plaintiff and counterclaim defendant, and that the
allegations of damages arising as a result of prejudg-
ment attachments were insufficient to state any cause
of action upon which the court could grant relief. The
defendants filed an objection. The court, Radcliffe, J.,
issued an order granting the motion to strike as to
counts two and four of the counterclaim without preju-
dice to the defendants’ refiling within fifteen days. As
part of that order, the court also stated: ‘‘The court
makes a further finding that there is only one counter-
claim defendant, which is the [plaintiff] and there is no
other party to the counterclaim.’’
The defendants timely amended their counterclaim
for a second time on March 8, 2016. Count one of the
counterclaim, which they labeled as ‘‘breach of con-
tract/reasonable reliance,’’ and count three, which
remained unidentified as to the cause of action it pur-
ported to allege, were essentially unchanged. Count
two contained several new factual allegations and was
labeled by the defendants as asserting a cause of action
for ‘‘abuse of process/CUTPA.’’ The defendants also
made changes to count four, which purportedly now
asserted a cause of action for slander of title resulting
from the prejudgment remedies of attachment pursued
by the plaintiff in conjunction with this action.
In response to the second amended counterclaim,
the plaintiff filed an extensive request to revise, to which
the defendants objected. On May 17, 2016, the court,
Hon. George N. Thim, judge trial referee, issued an
order overruling the defendants’ objections with
respect to the requested revisions except for a couple
of objections with respect to which the court agreed
with the defendants that the plaintiff improperly sought
the disclosure of evidentiary materials.
Following the court’s order, the defendants filed a
revised counterclaim on June 22, 2016, which is the
operative counterclaim at issue in this appeal. The first
count of the counterclaim continued to allege breach
of contract by the plaintiff. The second count of the
counterclaim, which previously had asserted both
abuse of process and a violation of CUTPA, now
sounded in abuse of process only. The defendants
moved the CUTPA allegations to a new fifth count.
Significantly, the defendants revised the opening para-
graphs of their first and second counts to now allege
that the defendants collectively had ‘‘purchased a sun-
dry of materials and goods from [the plaintiff].’’
(Emphasis added.) The third count, however, did not
incorporate this revised allegation but, instead, asserted
in its opening paragraph that the allegations in the plain-
tiff’s complaint ‘‘[arise] out of goods and materials sold
and delivered by [Northwest Lumber], not [the plaintiff],
to [RMM] . . . and/or the other [defendants].’’ Count
four alleged slander of title resulting from prejudgment
remedy liens of attachment, and, as already indicated,
count five alleged a CUTPA violation.11
On June 24, 2016, the plaintiff filed a motion to strike
all but the first count of the counterclaim, arguing that
the remaining four counts did ‘‘not arise out of the
transactions that are the basis of the plaintiff’s com-
plaint and, therefore, must be stricken.’’ The plaintiff
also filed a memorandum in support of its motion to
strike. The defendants filed an objection to the motion
to strike, stating as grounds for their objection that the
challenged counts ‘‘are legally sufficient in that they
properly set forth causes of action.’’ (Emphasis added.)
They simultaneously filed a memorandum of law in
support of their objection to the motion to strike.
On August 8, 2016, following a hearing, Judge Rad-
cliffe issued an order granting the plaintiff’s motion to
strike all the challenged counts of the revised counter-
claim.12 On September 22, 2016, the court, pursuant to
a motion for judgment filed by the plaintiff, rendered
judgment in favor of the plaintiff on the four stricken
counts of the counterclaim. The plaintiff thereafter filed
an answer and special defenses to the defendants’ sole
remaining count, in which they admitted the allegation
contained in the first and only remaining count of the
counterclaim that ‘‘[the defendants] purchased a sundry
of materials and goods from [the plaintiff].’’
The matter was assigned for a court trial before Judge
Arnold. The court heard evidence over nine days begin-
ning on September 22, 2016, and concluding on January
26, 2017. The court heard testimony from multiple wit-
nesses and received well over 140 exhibits. The parties
each filed posttrial briefs and reply briefs. On February
2, 2018, the court issued its memorandum of decision
finding in favor of the plaintiff on the complaint and
the counterclaim.
In its decision, the court first addressed the defen-
dants’ arguments regarding the identity of the seller of
the materials for which payment was sought. The court
noted that if, as argued by the defendants, Northwest
Lumber was the actual seller rather than the plaintiff,
‘‘the issue becomes one of standing as it pertains to the
[plaintiff’s] ability to prosecute this action.’’ The court
rejected the defendants’ arguments. It found that the
plaintiff was the seller of the goods at issue and, accord-
ingly, that it had standing to seek payment from the
defendants pursuant to the agreement. The court based
its decision on its review of the evidence presented at
trial, which, on balance, the court concluded, demon-
strated that the defendants both knew and acknowl-
edged that the plaintiff was the seller.13 The court also
relied in part on Judge Radcliffe’s earlier ruling that the
plaintiff was the only counterclaim defendant and that
‘‘there is no other party to the counterclaim,’’ conclud-
ing that this finding was the law of the case. The court
further treated the allegations that the defendants had
made in their various withdrawn, amended, or super-
seded pleadings indicating that the plaintiff was the
seller of the building materials at issue as constituting
evidentiary admissions that the plaintiff ‘‘and no one
else’’ was the seller.
The court next turned to the merits of the parties’
competing breach of contract claims. As identified by
the court, the plaintiff sought damages of $128,294.75,
which consisted of principal and interest owed for the
building materials that it provided to the defendants
pursuant to the agreement. The defendants, on the other
hand, claimed by way of defense and counterclaim that,
inter alia, a substantial portion of the building materials
at issue were nonconforming or otherwise defective
and, therefore, they either had no obligation to pay the
plaintiff for the materials or were entitled to consequen-
tial damages resulting from the plaintiff’s refusal to
repair or to replace the defective materials.14
In resolving the parties’ claims, the court first recog-
nized that the case had been improperly tried and
briefed by the parties as a ‘‘simple debt collection action
based on a simple common-law breach of contract’’
rather than as a commercial contract for the sale of
goods governed by the provisions of article 2 of the
Uniform Commercial Code (UCC), General Statutes
§ 42a-2-101 et seq. After citing relevant provisions of
the UCC and discussing the evidence presented at trial,
the court ultimately concluded that the plaintiff had
established the allegations in the complaint and that it
was owed the balance on the account, plus interest, as
alleged. The court also ruled for the plaintiff on the
defendants’ counterclaim. Although the court found
that some of the materials provided by the plaintiff
had been nonconforming or defective, it nevertheless
concluded: ‘‘The court agrees with the plaintiff that the
defendants did not plead that the goods had a different
value in its counterclaim. They presented no evidence
on the difference in value of the materials. They pre-
sented no evidence of any actual amounts spent to
fix or repair any claimed defective goods that were
measurable at the time of trial. Proof was submitted as
to the claimed cost to repair, but no award can be
based upon that as no defendant any longer owns such
property or is under any obligation to make any such
repair. The properties in question have either been fore-
closed upon or sold. . . .
‘‘The court enters a verdict for the plaintiff on its
complaint and finds that the plaintiff has established
that the balance on the account due and owing to the
plaintiff by the defendants at the time of the complaint
was $68,886.58, plus interest on that principal debt. The
court enters a verdict for the plaintiff on the defendants’
counterclaim, and as such there is no offset to the
plaintiff’s claim of the balance due and owing by the
defendants.’’ (Footnote omitted.) The court further indi-
cated that it would schedule a postverdict hearing to
determine ‘‘if the court would award attorney’s fees
and costs to the plaintiff and, if so, what amounts may
be reasonable.’’15 The court later denied the defendants’
motion to reargue, and this appeal followed.
As previously indicated; see footnote 12 of this opin-
ion; after filing this appeal, the defendants filed a motion
for articulation. With respect to Judge Arnold’s decision
on the merits of the complaint and sole remaining count
of the counterclaim, the defendants argued that the
court had overlooked or failed to decide certain issues
properly raised to the court, its decision was ambiguous
and in need of clarification, and it failed to set forth
sufficient factual or legal bases for its decision. Judge
Arnold denied the portion of the motion for articulation
pertaining to his decision without comment.
In response to a motion for review filed by the defen-
dants, however, this court ordered Judge Arnold ‘‘(1)
to articulate whether [the court] found that [Morrill
and Jones] were guarantors or individual buyers of the
materials that are the subject of the plaintiff’s complaint
and, if it found that they were individual buyers, to
provide the factual basis for that finding; and, (2) to
articulate whether it found that the trim that the plaintiff
delivered to 11 Cornwall Road was defective and
whether it found that RMM had revoked its acceptance
of that trim, as well as the factual and legal basis for
the court’s finding.’’
On May 28, 2019, Judge Arnold filed an articulation
in response to this court’s order. In that articulation,
the court indicated that it found that ‘‘Morrill and Jones
acted in dual capacities as both buyers and guarantors.’’
Although seeming to acknowledge the ambiguity in its
original memorandum of decision, in which the court
had indicated that Morrill and Jones had signed the
agreement as ‘‘personal guarantors and/or individual
buyers’’ (emphasis added), the court nonetheless
explained that, in the sole remaining count of the coun-
terclaim, the defendants, which necessarily included
both Morrill and Jones, had alleged that they collec-
tively had ‘‘purchased’’ goods and materials from the
plaintiff, and the court viewed this allegation as a bind-
ing judicial admission that Morrill and Jones, although
undisputedly guarantors, were also buyers of the goods
for purposes of this action. With respect to the trim for
the 11 Cornwall Road project, the court noted that it
had failed expressly to address in its decision the defen-
dants’ claim that trim items were defective. Although
the court found that the evidence presented supported
a finding that certain trim pieces were defective, it nev-
ertheless indicated that ‘‘[e]vidence was lacking as to
any monetary amounts expended by the defendants in
repairing or replacing the trim while waiting for the
matter to be resolved with the plaintiff. This matter was
not resolved prior to the defendants’ loss of the property
through foreclosure proceedings. Thus, the court could
not determine how defective trim in the noted areas of
the structure affected the value of the property when
the foreclosure took place.’’16
I
We begin with the defendants’ claim that the court
improperly granted the plaintiff’s motion to strike four
of their five counts of the revised counterclaim and
subsequently rendered judgment on those stricken
counts in favor of the plaintiff. Specifically, the defen-
dants claim that, in striking their counts, the court mis-
applied the ‘‘transaction test’’ as set forth in Practice
Book § 10-10. See footnote 2 of this opinion. We are
not persuaded.17
At issue are counts two, three, four, and five of the
revised counterclaim filed by the defendants on June
22, 2016. Count two purported to sound in abuse of
process arising from the plaintiff’s use of prejudgment
remedies in the present action. Specifically, the grava-
men of count two was that ‘‘[the plaintiff’s] actions in
filing prejudgment remedy attachments on [the defen-
dants’] properties and bank accounts and its actions in
filing mechanic’s liens on property of customers of the
[defendants] constituted an abuse of process in that
such attachments and liens were filed with an improper
motive and/or for an improper purpose in one or more
. . . respects . . . .’’
Count three, unlike the other counts at issue, was
not labeled by the defendants as to the cause of action
it purported to assert. It was comprised of only three
paragraphs. The first two paragraphs alleged that the
goods at issue in the plaintiff’s complaint had been sold
by Northwest Lumber and that Northwest Lumber was
not a party to the agreement that was the subject of
the plaintiff’s breach of contract complaint. The final
paragraph concluded that the defendants ‘‘sustained
damages as a result of [the plaintiff] bringing this action
against them and filing prejudgment remedy liens and
mechanic’s liens against them and [their] clients for
goods that were sold and delivered by Northwest Lum-
ber and not by the [plaintiff].’’
The allegations in count four also pertained to the
plaintiff’s prejudgment remedies. More specifically,
count four purported to assert an action for slander
of title alleging, in relevant part, that the plaintiff had
‘‘caused prejudgment attachment liens to be placed
against real estate owned by the [defendants], as well
as against the [defendants’] bank account . . . when
the [plaintiff] knew that the facts set forth in such appli-
cation and affidavit were false and untrue.’’
Finally, count five incorporated the allegations from
the earlier counts regarding the plaintiff’s actions in
securing prejudgment remedies. It asserted that the
plaintiff’s actions constituted a CUTPA violation
‘‘resulting in ascertainable losses and damages to the
[defendants], including [their] inability to operate their
businesses and several of such businesses were forced
into bankruptcy and/or forced to close.’’
We now turn to the applicable law. ‘‘A counterclaim
is a cause of action existing in favor of the defendant
against the plaintiff and on which the defendant might
have secured affirmative relief had he sued the plaintiff
in a separate action. . . . A motion to strike tests the
legal sufficiency of a cause of action and may properly
be used to challenge the sufficiency of a counterclaim.’’
(Emphasis omitted; internal quotation marks omitted.)
Ameriquest Mortgage Co. v. Lax, 113 Conn. App. 646,
649, 969 A.2d 177, cert. denied, 292 Conn. 907, 973 A.2d
103 (2009). A motion to strike is also the proper vehicle
to challenge whether a counterclaim has been properly
joined with the plaintiff’s action pursuant to the transac-
tion test as set forth in Practice Book § 10-10. See Bank
of New York Mellon v. Mauro, 177 Conn. App. 295, 315,
172 A.3d 303, cert. denied, 327 Conn. 986, 175 A.3d 45(2017).18 Although our review of a trial court’s ruling
on a motion to strike challenging the legal sufficiency
of a pleading is ordinarily plenary, we apply a more
deferential abuse of discretion standard when
reviewing whether a court properly has granted a
motion to strike a counterclaim upon a finding that it
does not satisfy the transaction test. See id., 317. ‘‘In
general, abuse of discretion exists when a court could
have chosen different alternatives but has decided the
matter so arbitrarily as to vitiate logic, or has decided
it based on improper or irrelevant factors.’’ (Internal
quotation marks omitted.) D’Ascanio v. Toyota Indus-
tries Corp., 133 Conn. App. 420, 428, 35 A.3d 388 (2012),
aff’d, 309 Conn. 663, 72 A.3d 1019 (2013).
As previously noted, ‘‘Practice Book § 10-10 provides
that [i]n any action for legal or equitable relief, any
defendant may file counterclaims against any plaintiff
. . . provided that each such counterclaim . . . arises
out of the transaction or one of the transactions which
is the subject of the plaintiff’s complaint. . . . This sec-
tion is a commonsense rule designed to permit the
joinder of closely related claims [if] such joinder is in
the best interests of judicial economy. . . . The trans-
action test is one of practicality, and the trial court’s
determination as to whether that test has been met
ought not be disturbed except for an abuse of discre-
tion.’’ (Internal quotation marks omitted.) South Wind-
sor Cemetery Assn., Inc. v. Lindquist, 114 Conn. App.
540, 546, 970 A.2d 760, cert. denied, 293 Conn. 932, 981
A.2d 1076 (2009).
‘‘Our Supreme Court has instructed that the [r]elevant
considerations in determining whether the transaction
test has been met include whether the same issues of
fact and law are presented by the complaint and the
[counter]claim and whether separate trials on each of
the respective claims would involve a substantial dupli-
cation of effort by the parties and the courts.’’ (Internal
quotation marks omitted.) Id., 547. In other words,
proper application of the transaction test requires a
trial court to consider ‘‘whether a duplication of judicial
effort and resources would result if the subject of the
complaint and counterclaim were tried in separate
actions.’’ Ceci Bros., Inc. v. Five Twenty-One Corp., 81
Conn. App. 419, 423 n.3, 840 A.2d 578, cert. denied, 268
Conn. 922, 846 A.2d 881 (2004).
In ruling on the motion to strike in the present case,
the court seemingly agreed with the argument advanced
by the plaintiff that the challenged counts of the coun-
terclaim did ‘‘not [arise] out of the claim made during
the breach of contract count.’’ Although the court’s
brief order does not contain a precise discussion of the
factual or legal basis for its conclusion; see footnote
12 of this opinion; it is entirely reasonable for us to
infer, in the absence of any indication to the contrary,
that the court predicated its ruling on the legal reason-
ing offered by the plaintiff as the proponent of the
motion to strike and adopted the same. In support of
its argument that the transaction test was not met, the
plaintiff stated: ‘‘In this case, the plaintiff has sued for
simple breach of contract. Although tort claims can
arise out of the same transaction as a contract claim
. . . they only do so when they are so connected to
the complaint that [their] consideration is necessary
for a full determination of the rights of the parties. . . .
Here, whether the [credit] agreement was breached has
absolutely nothing to do with the manner in which [the]
ex parte [prejudgment remedy (PJR)] was obtained, nor
the attachments made pursuant thereto. The consider-
ation of the second, third, fourth and fifth counts of
the revised counterclaim—all solely and directly related
to the ex parte PJR—is completely unnecessary to
determining whether, and to what extent, the [credit]
agreement was breached. As a result, the second, third,
fourth and fifth counts of the revised counterclaim do
not arise out of the same transactions that serve as the
basis of the complaint and, therefore, they should be
stricken.’’ (Citations omitted; internal quotation
marks omitted.)
We conclude on the basis of our careful review of
the pleadings that the court did not abuse its discretion
by striking counts two through five of the counterclaim
because the court reasonably could have concluded, as
argued by the plaintiff, that, at their core, the stricken
counts involved a different set of facts and law than
were at issue in the breach of contract complaint. The
propriety of the plaintiff’s prejudgment remedies, their
legal effect on the defendants and their customers, and
the motivations of the plaintiff in utilizing them in this
case present factual and legal issues that are distinct
from those necessary to adjudicate whether the defen-
dants breached the credit agreement that was the sole
subject matter of the complaint. All the allegations
made by the defendants in the stricken counts either
involved issues relating to the plaintiff’s use of prejudg-
ment remedies, which, at best, are only tangentially
related to the breach of contract action, or contained
allegations that are simply duplicative of those con-
tained in their response to the complaint, in the asserted
special defenses, or in the remaining breach of contract
count, which was not a subject of the motion to strike.
This court previously has stated that the ‘‘adjudica-
tion made by the court on the application for a prejudg-
ment remedy is not part of the proceedings ultimately
to decide the validity and merits of the plaintiff’s cause
of action. It is independent of and collateral thereto
and primarily designed to forestall any dissipation of
assets by the defendant. . . . [P]rejudgment remedy
proceedings . . . are not involved with the adjudica-
tion of the merits of the action brought by the plaintiff
or with the progress or result of that adjudication.’’
(Emphasis added; internal quotation marks omitted.)
Orsini v. Tarro, 80 Conn. App. 268, 272–73, 834 A.2d
776 (2003).
In short, we cannot conclude on the basis of the
record before us that the court’s decision to disallow
joinder of the defendants’ counts would thwart the goal
of judicial economy at the heart of the transaction test
because their joinder undoubtedly would have
expanded the focus of the trial proceedings to addi-
tional issues well outside the nexus of the breach of
contract action before the court.19 If the defendants
elected to bring a separate action raising claims of abuse
of process, slander of title and unfair trade practices
flowing from the plaintiff’s use of prejudgment reme-
dies, adjudication of those claims would not necessarily
‘‘involve a substantial duplication of effort by the parties
and the courts.’’ (Internal quotation marks omitted.)
South Windsor Cemetery Assn., Inc. v. Lindquist,
supra, 114 Conn. App. 547.
Although we conclude that the court properly granted
the motion to strike, the judgment rendered on those
stricken counts nonetheless is incorrect as a matter
of form. As this court recently explained, if a court
determines that counts of a counterclaim are not part
of the same transaction that is the subject of the com-
plaint, the appropriate remedy is not a final judgment on
the merits of the stricken counts but, rather, a judgment
dismissing the counts of the counterclaim on the ground
of improper joinder with the primary action. See Bank
of New York Mellon v. Mauro, supra, 177 Conn. App.
320. Further, unless otherwise barred as a matter of
law, such dismissal should be without prejudice to the
right to replead any stricken claim in a separate action.
Id. Here, rather than having rendered judgment on the
stricken counts in favor of the plaintiff, the court should
have rendered a judgment dismissing the stricken
counts so as to preserve the defendants’ right to pursue
their claims, if possible, in a separate action. Because
the court’s judgment rendered in favor of the plaintiff
on the four counts of the counterclaim could be miscon-
strued as a judgment on the merits, we reverse that
judgment and remand with direction to render a judg-
ment of dismissal with respect to the counts at issue.
II
The defendants next claim on appeal that the court
improperly rendered judgment on the merits of the com-
plaint in favor of the plaintiff. The defendants raise
several arguments in support of this claim. Specifically,
they argue that the court improperly (1) relied on the
allegation in their counterclaim that the plaintiff was
the seller of the goods as a judicial admission and also
failed to credit overwhelming evidence that the actual
seller was the plaintiff’s wholly owned subsidiary,
Northwest Lumber, (2) found, solely on the basis of a
judicial admission, that Jones and Morrill were liable
for damages as buyers rather than as guarantors, (3)
failed to consider and properly resolve the defendants’
defense of revocation of acceptance, (4) rendered judg-
ment for the plaintiff despite finding that the plaintiff
had refused to remedy or replace certain materials that
the court determined were defective, and (5) incorrectly
determined that the plaintiff had proven its damages
to a reasonable degree of certainty. For the reasons
that follow, we are not persuaded.
A
The defendants first argue that the court improperly
found that the plaintiff established that it was the seller
of the goods and materials at issue in the complaint
such that it was entitled to damages for the defendants’
nonpayment. The defendants contend that, in making
this finding, the court improperly construed and relied
on an allegation in their pleading as a judicial admission
by the defendants that the plaintiff was the seller of
the goods at issue. Further, the defendants contend
that the court failed to credit what they describe as
‘‘overwhelming’’ evidence that the actual seller was the
plaintiff’s wholly owned subsidiary, Northwest Lumber.
For the following reasons, we reject both contentions.
1
The defendants first argue that the court miscon-
strued an allegation in the breach of contract count
of their revised counterclaim—namely, their allegation
that they collectively had ‘‘purchased a sundry of mate-
rial and goods from [the plaintiff]’’—as a judicial admis-
sion that the plaintiff was, in fact, the seller of the
building supplies at issue in this matter. We disagree.
‘‘Factual allegations contained in pleadings upon
which the cause is tried are considered judicial admis-
sions and hence irrefutable as long as they remain in
the case.’’ (Emphasis added; internal quotation marks
omitted.) Bartlett v. Metropolitan District Commis-
sion, 125 Conn. App. 149, 162, 7 A.3d 414 (2010), cert.
denied, 300 Conn. 913, 13 A.3d 1101 (2011). ‘‘For a
factual allegation to be held to be a judicial admission,
the fact admitted should be one within the speaker’s
particular knowledge and one about which the speaker
is not likely to be mistaken.’’ Mamudovski v. BIC Corp.,
78 Conn. App. 715, 728, 829 A.2d 47 (2003), appeal
dismissed, 271 Conn. 297, 857 A.2d 328 (2004). ‘‘An
admission in pleading dispenses with proof, and is
equivalent to proof. . . . It is the full equivalent of
uncontradicted proof of these facts by credible wit-
nesses . . . and is conclusive on the pleader. . . . A
party is bound by a judicial admission unless the court,
in the exercise of its discretion, permits the admission
to be withdrawn, explained or modified.’’ (Citations
omitted; internal quotation marks omitted.) Days Inn
of America, Inc. v. 161 Hotel Group, Inc., 55 Conn.
App. 118, 126–27, 739 A.2d 280 (1999). ‘‘The distinction
between judicial admissions and mere evidentiary
admissions is a significant one that should not be
blurred by imprecise usage. . . . While both types are
admissible, their legal effect is markedly different; judi-
cial admissions are conclusive on the trier of fact,
whereas evidentiary admissions are only evidence to
be accepted or rejected by the trier. . . .
‘‘In contrast with a judicial admission, which prohib-
its any further dispute of a party’s factual allegation
contained in its pleadings on which the case is tried,
[a]n evidential admission is subject to explanation by
the party making it so that the trier may properly evalu-
ate it. . . . Thus, an evidential admission, while rele-
vant as proof of the matter stated . . . [is] not conclu-
sive. . . . As a general rule statements in withdrawn
or superseded pleadings . . . may be considered as
evidential admissions [of] the party making them, just as
would any extrajudicial statements of the same import.’’
(Citations omitted; internal quotation marks omitted.)
Nationwide Mutual Ins. Co. v. Allen, 83 Conn. App.
526, 541–42, 850 A.2d 1047, cert. denied, 271 Conn. 907,
859 A.2d 562 (2004). The parties agree that whether
the allegation in the defendants’ counterclaim that they
purchased materials from the plaintiff amounted to a
judicial admission that the plaintiff was the seller of
the goods involves interpretation of the pleadings and,
thus, presents a question of law over which our review
is plenary. See Mamudovski v. BIC Corp., supra, 78
Conn. App. 727.
In the present case, in answering the question of who
the actual seller of the building materials at issue was,
the court expressly found that ‘‘the ‘seller’ of the goods
and materials in this matter was . . . the named plain-
tiff, and [the plaintiff] has standing to bring this claim
[for breach of contract].’’ The court noted multiple
bases supporting this finding, including agreeing with
the plaintiff’s argument that the allegations by the defen-
dants in their sole remaining count of their operative
revised counterclaim dated June 22, 2016, amounted to
a judicial admission that the plaintiff was the seller.20
Here, the defendants’ one remaining breach of con-
tract count in the counterclaim was, along with the
complaint, a pleading on which the underlying case was
tried. The defendants, who had the burden to establish
that the plaintiff had breached the parties’ agreement
by, inter alia, supplying defective or nonconforming
building materials, alleged in their counterclaim that
they had ‘‘purchased a sundry of materials and goods
from [the plaintiff].’’ The plaintiff admitted this allega-
tion in its answer to the counterclaim. Whether the
plaintiff was the party that sold the materials to the
defendants unquestionably was a fact that was within
the defendants’ particular knowledge as the buyer of
the materials, and it was a fact about which they were
not likely to be mistaken. Although the defendants
attempt to explain away the legal import of their admis-
sion by arguing that they were entitled to argue in the
alternative that Northwest Lumber rather than the plain-
tiff was the actual seller, and, in fact, had alleged such
in other counts of their counterclaim, those alternative
allegations were contained in counts that had been
stricken and, thus, were no longer a part of the pleadings
on which the case was tried. The defendants never
sought the court’s permission to withdraw or to amend
their allegation after the granting of the motion to strike,
and, therefore, the court, as the trier of fact, was entitled
to rely on the defendants’ own factual allegations, made
in their operative pleading, as conclusively establishing
the fact asserted therein, without any need for addi-
tional proof. Simply put, the defendants have failed to
provide any basis on which we could conclude that the
court committed legal error by recognizing uncontested
allegations in the defendants’ own pleading as a judi-
cial admission.
2
We turn next to the defendants’ related contention
that, regardless of their admission, there was other
‘‘overwhelming’’ evidence before the court that North-
west Lumber was the seller. Even if we agreed that the
court should not have treated the defendants’ pleadings
as constituting a judicial admission regarding the iden-
tity of the seller, as we have already indicated, that was
not the sole basis that the court relied on in finding that
the plaintiff was the seller. Contrary to the defendants’
assertion, there was more than sufficient evidence in
the record to support the court’s factual finding that
the plaintiff was the seller.
‘‘Our standard of review of a challenge to a court’s
factual findings is well settled. [W]e 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 credibility
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.) U.S.
Bank National Assn. v. Palmer, 88 Conn. App. 330, 336,
869 A.2d 666 (2005). ‘‘Weighing the evidence and judging
the credibility of the witnesses is the function of the
trier of fact and this court will not usurp that role.’’
Faulkner v. Marineland, Inc., 18 Conn. App. 1, 4, 555
A.2d 1001 (1989).
The court, as the trier of fact, was not required to
credit any of the evidence offered by the defendants
to establish that Northwest Lumber, rather than the
plaintiff, was the actual seller. See Wall Systems, Inc.
v. Pompa, 324 Conn. 718, 741, 154 A.3d 989 (2017) (trier
of fact may credit some, all, or none of conflicting
evidence). The question for this court is not whether
there was ‘‘overwhelming’’ evidence to support the posi-
tion taken by the defendants and rejected by the trier,
but whether there was evidence in the record from
which the court reasonably could have reached a con-
trary finding. The following evidence in the record
amply supports the court’s finding that the plaintiff was
the seller.
The agreement itself identifies that the plaintiff was
the party extending credit to the defendants for all
materials purchased. Dan Sirois, who was the salesper-
son who provided the credit application to the defen-
dants and who placed their orders for materials, testi-
fied that he was employed at all relevant times by the
plaintiff and had in fact told the defendants that he
worked for the plaintiff.21 The plaintiff employed all of
the persons who worked at its various retail locations,
including at Northwest Lumber’s location in Cornwall
Bridge. Sirois testified that although most materials
ordered by the defendants were supplied out of inven-
tory located at the plaintiff’s Northwest Lumber/Corn-
wall Bridge location, the plaintiff was the supplier of
all materials provided to the defendants. The plaintiff
paid for the rent, utilities, and insurance for the Corn-
wall Bridge location. The defendants had been provided
with invoices for all materials purchased, copies of
which were entered as exhibits at trial. The invoices
had the plaintiff’s name and logo printed on them. The
invoices indicated that all payments should be remitted
to the plaintiff. The defendants made some payments
for materials to the plaintiff. As indicated by the court,
despite claiming that Northwest Lumber was the seller
and that payments had been made to it and not the
plaintiff, Morrill had faxed authorization to the plaintiff
to charge her credit card. The defendants also issued
a payment by check that was made payable to the plain-
tiff. In response to a letter from the plaintiff demanding
payment, which was written on the plaintiff’s letter-
head, Morrill sent a letter that referred to the balance
that the plaintiff claimed it was owed for materials
provided to the defendants, and she raised no concern
in her letter that Northwest Lumber, rather than the
plaintiff, was the actual seller of the goods at issue.
Finally, all of the defendants’ payments for material were
deposited into accounts that were owned by the plain-
tiff. The plaintiff also collected and paid the sales taxes
to the state for all materials that were sold out of its
Cornwall Bridge location. The plaintiff was the entity
that filed the tax returns for all its businesses, includ-
ing the former Northwest Lumber location in Cornwall
Bridge.
Taken as a whole, there was evidence from which
the court reasonably could have found that the plaintiff
was the seller of the materials as alleged in both the
plaintiff’s complaint and the defendants’ sole remaining
count of the counterclaim. The defendants’ arguments
to the contrary simply amount to an invitation for this
court to retry the issue and, thus, are unavailing.
B
The defendants next argue that the court improperly
found that Jones and Morrill were buyers of the goods
sold by the plaintiff solely on the basis of a judicial
admission in count one of the operative counterclaim.
The defendants maintain that, in the absence of this
admission relied on by the court, there was no eviden-
tiary basis to support a finding that Jones and Morrill
were buyers, and the lack of a separate count in the
complaint seeking to impose liability on them as guaran-
tors means that the judgment rendered against them
was in error. We are not persuaded.
As we have already indicated, ‘‘[c]onstruction of the
effect of pleadings is a question of law and, as such,
our review is plenary. . . . Pleadings are intended to
limit the issues to be decided at the trial of a case and
[are] calculated to prevent surprise. . . . [The] pur-
pose of pleadings is to frame, present, define, and nar-
row the issues, and to form the foundation of, and
to limit, the proof to be submitted on the trial. . . .
Accordingly, [t]he admission of the truth of an allega-
tion in a pleading is a judicial admission conclusive on
the pleader.’’ (Internal quotation marks omitted.) Brye
v. State, 147 Conn. App. 173, 177, 81 A.3d 1198 (2013).
It is unnecessary to repeat our discussion of judicial
admissions, which we set forth in part II A 1 of this
opinion.
In its articulation, the court found that ‘‘Morrill and
Jones acted in dual capacities as both buyers and guar-
antors.’’ In making this finding, the court treated the
same allegation in the defendants’ counterclaim that
we determined established that the plaintiff was the
seller of the goods as a judicial admission that also
established that Jones and Morrill were buyers. Specifi-
cally, the defendants alleged in paragraph one of the
sole unstricken count of the counterclaim that ‘‘Coun-
terclaim Plaintiffs, [RMM], [Todd Hill Properties], [Mor-
rill] and [Jones], hereinafter referred to collectively as
‘Counterclaim Plaintiffs,’ purchased a sundry of materi-
als from [the plaintiff].’’ (Emphasis added.) There are
no allegations in the count that seek to distinguish Mor-
rill and Jones as guarantors only. The plaintiff admitted
the entirety of this allegation in its answer to the coun-
terclaim. It was both legally and logically sound to con-
strue that anyone who admittedly purchased goods
from the seller is a ‘‘buyer’’ of those goods.22
As the court concluded, because this action concerns
the sale of goods, relevant provisions of the UCC apply.
See General Statutes § 42a-2-102 (indicating that UCC
‘‘applies to transactions in goods’’).23 Buyer is defined
in the UCC as ‘‘a person who buys or contracts to buy
goods.’’ General Statutes § 42a-2-103 (1) (a). Because
the verb ‘‘to purchase’’ is generally synonymous with
the verb ‘‘to buy,’’ the allegation by the defendants in
their counterclaim that they collectively, including Mor-
rill and Jones, purchased materials from the plaintiff
properly was construed by the court as an admission
by Morrill and Jones that they were buyers under the
agreement. The fact that they also may have been guar-
antors of the debt is immaterial.
The defendants suggest that it should have been
‘‘unmistakably clear’’ from a review of the agreement,
which was admitted into evidence, that Jones and Mor-
rill signed the agreement only as guarantors, and thus
we should view the court’s contrary finding as clear
error. The agreement, however, is, at best, ambiguous
in establishing whether Jones and Morrill signed the
agreement as guarantors, buyers, or both. Jones’ signa-
ture appears on a line designated for ‘‘[p]ersonal [g]uar-
antor or [i]ndividual [b]uyer.’’ (Emphasis added.) Nei-
ther designation is crossed out or circled on the form,
leaving open to interpretation whether Jones signed as
guarantor, buyer, or both. Morrill, the sole member of
the two business defendants, signed the agreement in
two places—once on a line designated for the ‘‘[p]er-
sonal [g]uarantor (2nd/[s]pouse)’’ and on a separate line
as buyer in her representative capacity for the two
business entities. The general terms and conditions sec-
tion of the agreement, however, contained language
indicating that the plaintiff was extending credit to the
‘‘[b]uyer or any member of the business entity . . .
(hereinafter referred to as the ‘buyer’) . . . .’’ (Empha-
sis added.) Contrary to the defendants’ assertion, there-
fore, the agreement is open to more than one possible
interpretation as to the intent of the parties with respect
to who constituted a buyer. Nevertheless, because a
judicial admission is conclusive as to the facts admitted,
it was not necessary for the court to look for or to
consider any additional evidence or proof regarding the
identity of the buyers or to resolve any ambiguity arising
from the agreement. Because the court was entitled to
rely on the defendants’ judicial admission that they
collectively purchased goods and materials from the
seller and, thus, collectively were all buyers of those
goods, a fact that the defendants were in a position to
know, the defendants’ assertion that the court’s finding
to that effect was clearly erroneous necessarily fails.
C
The defendants next argue that the court failed to
recognize and properly address their defense of revoca-
tion of acceptance. The defendants posit that the court’s
analysis improperly focused on a legal standard applica-
ble only to a claim of breach of warranty rather than
addressing each of the elements of the defense of revo-
cation of acceptance. We do not agree.
As we previously stated, this action is governed by
relevant provisions of the UCC. The court’s application
of the UCC to the facts and circumstances in a given
case presents a mixed question of fact and law over
which we exercise plenary review. See Auto Glass
Express, Inc. v. Hanover Ins. Co., 98 Conn. App. 784,
792, 912 A.2d 513 (2006), cert. denied, 281 Conn. 914,
916 A.2d 55 (2007). Further, to the extent that we must
interpret the UCC or determine its applicability, these
each present a legal question over which we also exer-
cise plenary review. See Seven Oaks Enterprises, L.P.
v. Devito, 185 Conn. App. 534, 545, 198 A.3d 88, cert.
denied, 330 Conn. 953, 197 A.3d 893 (2018).
‘‘Under article 2 [of the UCC], the rights and liabilities
of the parties are determined, at least in part, by the
extent to which the contract has been executed. The
buyer’s acceptance of goods, despite their alleged non-
conformity, is a watershed. After acceptance, the buyer
must pay for the goods at the contract rate . . . and
bears the burden of establishing their nonconformity.
. . . Acceptance does not, however, constitute a defini-
tive election to waive all claims and defenses with
respect to the accepted goods. If the buyer can demon-
strate that he has been damaged by the nonconformity
of the goods that he has accepted, he is entitled to
recover such damages as he can prove. . . . Alterna-
tively, if the buyer can demonstrate that the goods are
substantially nonconforming, he is entitled, with some
qualifications, to revoke his acceptance and recover the
purchase price. . . . Whichever route the buyer elects,
he is required to give timely notice to the seller within
a reasonable time after he discovers or should have
discovered the seller’s breach.’’ (Citations omitted; foot-
notes omitted; internal quotation marks omitted.) Supe-
rior Wire & Paper Products, Ltd. v. Talcott Tool &
Machine, Inc., 184 Conn. 10, 13–14, 441 A.2d 43 (1981).
‘‘Under the [UCC], a buyer’s revocation of acceptance
is a distinct course of action not to be confused with
rescission by mutual consent . . . nor is it an alterna-
tive remedy for breach of warranty. . . . When a buyer
justifiably revokes acceptance, he may cancel and
recover so much of the purchase price as has been
paid. . . . On the other hand, the basic measure of
damages for breach of warranty is the difference
between the value of the goods accepted and the value
that they would have had if they had been as war-
ranted. . . .
‘‘Section 42a-2-608 of the General Statutes sets up
the following conditions for the buyer who seeks to
justify revocation of acceptance:24 (1) a nonconformity
which substantially impairs the value to the buyer;
(2) acceptance (a) with discovery of the defect, if the
acceptance is on the reasonable assumption that the
nonconformity will be cured, or (b) without discovery
of the defect, when the acceptance is reasonably
induced by the difficulty of the discovery or the seller’s
assurances; (3) revocation within a reasonable time
after a nonconformity was discovered or should have
been discovered; and (4) revocation before a substan-
tive change occurs in the condition of the goods not
caused by their own defects. The buyer has the burden
of establishing any breach with respect to the goods
accepted. . . . Revocation of acceptance is possible
only [if] the [nonconformity] substantially impairs
the value of the goods to the buyer. For this purpose,
the test is not what the seller had reason to know at
the time of contracting; the question is whether the
[nonconformity] is such as will in fact cause a substan-
tial impairment of value to the buyer though the seller
had no advance knowledge as to the buyer’s particular
circumstances.’’ (Citation omitted; emphasis added;
footnote added; internal quotation marks omitted.)
Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112,
120–21, 374 A.2d 144 (1976).
The defendants argue that, in ruling for the plaintiff,
the court stated that, although it had sufficient evidence
of the price the defendants had paid for the defective
building materials, ‘‘there was no evidence as to the
value of the windows, doors, and trim in their defective
nonconforming condition . . . .’’ The defendants view
this statement as evidence that the court focused on
an element relevant only to proof of damages for breach
of warranty, which General Statutes § 42a-2-714 (2) pro-
vides is calculated by measuring ‘‘the difference at the
time and place of acceptance between the value of the
goods accepted and the value they would have if they
had been as warranted.’’ We agree with the defendants
that the defense of revocation of acceptance was legally
distinct from any assertion of damages for breach of a
warranty. We do not agree, however, that the court’s
focus on the lack of evidence offered by the defendants
regarding the value of the defective materials as
received demonstrates that the court was applying an
incorrect legal standard.
The court determined that the defendants had failed
to present evidence that establishes to what extent any
defects in the building materials had impaired the value
of the goods delivered to the defendants. A nonconfor-
mity that substantially impaired the value of the goods
to the buyer was a necessary element to justify a revoca-
tion of acceptance. Thus, the defendants had the burden
to demonstrate not only the existence of a defect in
materials provided by the plaintiff, but also needed to
provide some evidence from which the court could
determine that the defect complained of had caused a
substantial impairment in the value of the goods. It is
this lack of evidence necessary to quantify the impair-
ment in value that the court identified as the basis for
rejecting the revocation of acceptance defense.
As the court properly recognized, the party claiming
damages always has the burden of proving them with
reasonable certainty, and a trial court ‘‘must have evi-
dence by which it can calculate the damages, which is
not merely subjective or speculative, but which allows
for some objective ascertainment of the amount.’’ Bron-
son & Townsend Co. v. Battistoni, 167 Conn. 321, 326–
27, 355 A.2d 299 (1974). The court rejected and found
not credible the testimony of the defendants’ expert,
John Downs, regarding replacement costs for noncon-
forming windows and doors provided for the defen-
dants’ 11 Cornwall Road project. The court concluded,
among other things, that Downs’ opinion was not based
upon personal knowledge, that he had never inspected
the windows or doors at issue, he was uncertain even
of the number of windows affected, and ‘‘could not
comment on whether or not settling of the new con-
struction could have had an effect on the installed win-
dows’ [purported nonconformity].’’ (Internal quotation
marks omitted.)
The defendants have not directed our attention to
anything in the record that contradicts the evidentiary
lacuna identified by the court. Instead, the defendants
focus on the evidence they presented to the court
regarding the costs that would be necessary to repair
the identified defects or to replace the materials. But the
court rejected this evidence as failing to demonstrate
damages attributable to the defendants. The defendants
had never sought to repair the defects when they con-
trolled the properties at issue and could no longer incur
the purported replacement or repair costs because, as
found by the court and not challenged by the defen-
dants, they had lost title to all relevant properties in
foreclosure. Accordingly, any cost associated with
repairing defects or obtaining replacement materials,
even if proven, did not accurately reflect a recoverable
measure of damages.
D
The defendants make a related argument with respect
to their breach of contract count of the counterclaim,
contending that the court improperly rendered judg-
ment for the plaintiff despite having found that the
plaintiff refused to remedy or to replace goods that the
court determined were defective. More specifically, the
defendants claim that the court misapplied § 42a-2-714
(2). We disagree.
Whether the court properly construed and applied
§ 42a-2-714 (2) of the UCC presents a question of law
over which we exercise plenary review. Section 42a-2-
714, which describes the measure of damages available
to a buyer for a seller’s breach in regard to accepted
goods, provides in relevant part: ‘‘(1) Where the buyer
has accepted goods and given notification as provided
in subsection (3) of section 42a-2-607 he may recover
as damages for any nonconformity of tender the loss
resulting in the ordinary course of events from the sell-
er’s breach as determined in any manner which is rea-
sonable.
‘‘(2) The measure of damages for breach of warranty
is the difference at the time and place of acceptance
between the value of the goods accepted and the value
they would have had if they had been as warranted,
unless special circumstances show proximate damages
of a different amount.’’
Here, as with their revocation of acceptance defense,
the defendants failed to prove any recoverable measure
of damages. The court found that the defendants had
failed to establish the value of the goods as accepted.
Therefore, although the court found that the defendants
had shown that some of the goods provided may have
been nonconforming, the defendants failed to present
evidence from which the court could calculate the value
of the goods as they were received to compare with
the value of the goods had they been received in proper
condition, evidence of which presumably was the pur-
chase price. Stated succinctly, the court’s finding that
the defendants had proven some of their allegations of
nonconforming goods did not alleviate the defendants’
burden to provide evidence from which the court could
determine whether and to what extent the defendants
were harmed by the nonconformities. The defendants’
argument that the court misapplied § 42a-2-714 is
unavailing.
E
Finally, the defendants argue that the court incor-
rectly determined that the plaintiff had proven the
amount of its damages. According to the defendants,
the plaintiff’s accounting practices ‘‘were so shoddy
that [it] could not prove with reasonable certainty that
the defendants’ owed the plaintiff anything.’’ The plain-
tiff responds that the defendants have failed to demon-
strate that the court’s finding as to the amount of the
debt owed to the plaintiff is clearly erroneous.25 We
agree with the plaintiff.
Well established legal principles govern our review
of damage awards. In an action for breach of contract,
‘‘[t]he plaintiff has the burden of proving the extent of
the damages suffered. . . . Although the plaintiff need
not provide such proof with [m]athematical exactitude
. . . the plaintiff must nevertheless provide sufficient
evidence for the trier to make a fair and reasonable
estimate.’’ (Internal quotation marks omitted.) Naples
v. Keystone Building & Development Corp., 295 Conn.
214, 224, 990 A.2d 326 (2010). Our Supreme Court has
held that ‘‘[t]he trial court has broad discretion in
determining damages. . . . The determination of dam-
ages involves a question of fact that will not be over-
turned unless it is clearly erroneous. . . . In a case
tried before a court, the trial judge is the sole arbiter
of the credibility of the witnesses and the weight to be
given specific testimony. . . . On appeal, we will give
the evidence the most favorable reasonable construc-
tion in support of the verdict to which it is entitled.’’
(Internal quotation marks omitted.) Gianetti v. Nor-
walk Hospital, 304 Conn. 754, 780, 43 A.3d 567 (2012). In
other words, we are ‘‘constrained to accord substantial
deference to the fact finder on the issue of damages.’’
Id. Under the clearly erroneous standard, we will over-
turn a factual finding only if ‘‘there is no evidence in
the record to support it . . . or [if] 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.) Naples v. Keystone Building & Devel-
opment Corp., supra, 225.
In the present case, the court properly stated that it
placed the burden of proving damages on the plaintiff
and found that that the plaintiff had ‘‘established that
the [unpaid] balance on the account due and owing to
the plaintiff by the defendants at the time of the com-
plaint was $68,886.58 . . . .’’ Although the court did
not identify with any specificity the evidence that it
relied on in reaching that conclusion, numerous
invoices and account statements were submitted by the
plaintiff as full exhibits. The court also heard extensive
testimony about the account from several witnesses.
In particular, plaintiff’s exhibit C contained copies of
statements that accounted for all charges and payments
from the time the defendants opened the credit account
through the filing of the underlying action. A consoli-
dated account statement with the closing date of
December 31, 2008, showed recent charges of $1021.92,
resulting in a total outstanding balance of $69,908.50.
Subtracting those current charges for which payment
was not then due and owing from the total new balance
demonstrates a total overdue amount of $68,886.58, the
precise amount awarded by the court as the amount
due and owing under the contract when the underlying
action was filed. Accordingly, there was evidence
before the court from which it could make a fair and
reasonable calculation of the amount of damages.
Although the defendants raised a number of chal-
lenges to the court related to damages, including claims
that (1) they were charged for items that they never
ordered or never received, and (2) the plaintiff had
failed to credit them for certain payments they made,
the court rejected each of these claims, concluding that
the defendants had failed to meet their evidentiary bur-
den of proof with respect to each claim. It was the
exclusive function of the court as the trier of fact to
weigh the evidence and to evaluate the credibility of
witnesses presented, and it was free not to credit evi-
dence presented in support of the defendants’ claims
regarding damages.
Having reviewed the evidentiary record before the
court and affording the trial court the broad discretion
it is entitled to in calculating damages, we are not con-
vinced that the damages award was clearly erroneous
or that a mistake was made. Accordingly, we reject the
defendant’s claim that the plaintiff failed to meet its
burden of proving damages ‘‘with reasonable certainty.’’
(Internal quotation marks omitted.) Gianetti v. Nor-
walk Hospital, supra, 304 Conn. 780.
The form of the judgment with respect to stricken
counts two, three, four and five of the counterclaim is
improper, the judgment with respect to those counts
is reversed and the case is remanded with direction to
render judgment of dismissal on counts two, three, four
and five of the counterclaim; the judgment on the com-
plaint and on count one of the counterclaim is affirmed.
In this opinion the other judges concurred.
1
Because the judgment rendered on those counts of the counterclaim did
not dispose of all of the counts brought by the defendants against the
plaintiff, it was not immediately appealable at the time the court rendered
judgment on the stricken counterclaims. See Practice Book § 61-4.
2
Practice Book § 10-10 provides in relevant part: ‘‘In any action for legal
or equitable relief, any defendant may file counterclaims against any plaintiff
. . . provided that each such counterclaim . . . arises out of the transac-
tion or one of the transactions which is the subject of the plaintiff’s com-
plaint; and if necessary, additional parties may be summoned in to answer
any such counterclaim . . . .’’
3
We have reordered, combined, or restated some of the defendants’ appel-
late claims for purposes of clarity and comprehension. We also note that
the defendants raised a number of additional claims on appeal directed at
the court’s decision to grant the motion to strike. Specifically, the defendants
claim that the court (1) impermissibly relied on grounds not raised by the
plaintiff in its motion to strike or supporting memorandum of law, (2)
incorrectly concluded that the defendants had failed to state a proper cause
of action for abuse of process, and (3) misinterpreted the defendants’ allega-
tion that they had not purchased goods from the plaintiff but from the
plaintiff’s wholly owned subsidiary as failing to state a legally cognizable
counterclaim. Because we conclude that the court did not abuse its discre-
tion by striking the four counts of the counterclaim on the basis that they
failed the transaction test, it is not necessary for us to reach the merits of
these additional claims of error. See also footnote 18 of this opinion.
4
We rely on the facts as found and set forth by the court in its memorandum
of decision on the merits of the plaintiff’s complaint as well as on additional
undisputed facts disclosed in the record.
5
Specifically, the agreement provided: ‘‘All purchases made during the
statement period will be paid for within [thirty] days from the statement
date. Purchases paid within such time shall not incur a [finance charge].
. . . If payment is not made in accordance with the terms specified above,
the [b]uyer will be deemed to be in default, and agrees to pay finance charges
computed at the rate of [1.5 percent] per month on outstanding balances
remaining unpaid [thirty] days after the prior statement date for the month
in which purchase was made.’’
6
The record shows that these enumerated ‘‘[d]ivisions’’—whose names,
addresses, and phone numbers appeared with the plaintiff’s name and com-
pany logo on the agreement’s header—corresponded with the plaintiff’s
retail business names and locations, presumably as they existed when the
credit application form was printed. The parties executed the agreement
nearly one year after the plaintiff had acquired Northwest Lumber and
Hardware as a wholly owned subsidiary, but the credit application form
does not reflect this acquisition.
7
The defendants primarily were engaged in residential real estate develop-
ment and construction.
8
Invoices were generated on a triplicate form. As found by the court, ‘‘[i]f
materials were delivered, the plaintiff’s driver left a delivery copy of the
invoice with the purchaser and brought the other two carbon copies to the
plaintiff’s office.’’ The court noted that the ‘‘defendants admitted that they
did not keep copies of the delivery portion of the invoice, despite some
having been left at the job site.’’ The court also indicated that the defendants
presented no evidence contradicting the testimony of the plaintiff’s manager,
Jan Cohen, that ‘‘the prices charged for the goods and materials were the
fair and reasonable amount,’’ noting that the substance of the defendants’
claims against the plaintiff concerned the delivery of allegedly defective or
nonconforming goods rather than a dispute over pricing.
9
The agreement states that it constitutes a commercial transaction as
defined by General Statutes § 52-278a, and that the buyer and guarantor
expressly agreed to waive all rights to notice and a hearing before prejudg-
ment remedies could be imposed by the seller, which remedies include the
garnishment of bank accounts and the attachment of property.
10
It also purported to allege in the alternative that the defendants had
overpaid for the goods and materials at issue or that those items were
defective.
11
Counts four and five of the counterclaim each incorporated by reference
the contradictory factual assertions about the identity of the seller that the
defendants made in their second and third counts. Although it is permissible
under our pleading practices for a party ‘‘to plead various alternatives . . .
even when those assertions are contradictory’’; Vidiaki, LLC v. Just Break-
fast & Things!!! LLC, 133 Conn. App. 1, 24, 33 A.3d 848 (2012); this right
to plead in the alternative cannot account for a party’s having alleged through
incorporation two wholly irreconcilable factual assertions within a single
count of a complaint or counterclaim.
12
The court’s ruling on the motion to strike stated in its entirety: ‘‘The
plaintiff’s motion to strike is hereby granted as to counts [two, three, four,
and five]. The court finds that these counts do not [arise] out of the claim
made during the breach of contract count. These matters are adequately
made in count one. Count [three] should be stricken in that it does not set
forth a cause of action. It is not a consumer action under CUTPA and it
does not fall under the ‘cigarette rule’. This is without prejudice to the right
of the defendant[s] to reduce or resolve the prejudgment attachment, should
it not be supported by probabl[e] cause or should it be excessive.’’
The court later denied a motion to reargue and an amended motion to
reargue filed by the defendants. After this appeal was filed, the defendants
sought articulation of, inter alia, the court’s ruling on the motion to strike,
arguing that Judge Radcliffe’s order contained several ambiguities and
lacked any legal analysis supporting its conclusions. Judge Radcliffe denied
the motion for articulation without comment, and this court, in response to
a motion for review filed by the defendants, granted review, but denied relief.
13
The court relied on the following evidence as supporting its decision:
the plaintiff was the actual owner of the materials provided to the defendants;
the invoices given to the defendants indicated that payment should be
remitted to the plaintiff; the plaintiff employed all of the persons who worked
at its various locations, including at Northwest Lumber’s location in Cornwall
Bridge; the plaintiff paid for the rent, utilities, and insurance for the Cornwall
Bridge location; all funds paid by the defendants were deposited into
accounts owned by the plaintiff; the plaintiff collected and paid sales taxes
to the state for all materials sold out of the Cornwall Bridge location; and
the plaintiff filed ‘‘state and federal tax returns for business conducted at
all its locations, including the Cornwall [Bridge] location.’’ Further, the court
noted that despite the defendants’ assertions that Northwest Lumber was
the seller, the evidence established that the defendants knowingly made
payments for materials to the plaintiff. Specifically, the court mentioned
that, despite asserting that payments had been made to Northwest Lumber,
Morrill had faxed authorization to the plaintiff to charge her credit card.
The defendants also issued a check made payable to the plaintiff. In response
to a letter from the plaintiff, written on the plaintiff’s letterhead, demanding
payment, Morrill sent a reply letter that referenced the balance claimed by
the plaintiff, she made no mention of Northwest Lumber, and raised no
concern that the plaintiff was not the actual seller of the goods at issue.
14
The defendants claimed that the plaintiff had provided defective win-
dows, doors, trim and siding for the 11 Cornwall Road project. They also
claimed that they received defective cedar shakes for a project at 75 Todd
Hill Road and a defective door for a project at 79 Todd Hill Road. In addition
to their claims of defective materials, the defendants also sought damages
based on the plaintiff’s having changed a price quote for a railing system
intended for a project at 90 Spooner Hill Road. The court determined that
the defendants failed to present sufficient evidence needed to quantify its
damages with respect to the 11 Cornwall Road and 75 Todd Hill Road
projects, and rejected outright its claims of damages related to the 79 Todd
Hill Road and 90 Spooner Hill Road projects.
15
‘‘[A] judgment on the merits is final for purposes of appeal even though
the recoverability or amount of attorney’s fees for the litigation remains to
be determined.’’ Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634(1988). On September 4, 2018, following a hearing, the court issued a decision
awarding the plaintiff $35,346.87 in attorney’s fees as well as postjudgment
interest pursuant to General Statutes § 37-3a of 6 percent per annum. The
defendants did not amend the present appeal or file a separate appeal
challenging this ruling.
16
The defendants filed a second motion for review arguing that the court’s
articulation failed to address adequately all elements of revocation of accep-
tance and asking this court for an order requiring the trial court to articulate
further its decision. This court granted review, but denied the relief requested
in the motion.
17
As previously noted, because we conclude that the court did not abuse
its discretion in striking the four counts of the counterclaim on the ground
that they failed to satisfy the transaction test as asserted in the motion to
strike, we do not address the defendants additional claims that the court
improperly (1) granted the motion to strike in part on grounds not raised
by the plaintiff in its motion, (2) determined that the defendants had failed
to state properly a cause of action for abuse of process, and (3) concluded
that the defendants could not maintain a counterclaim based solely on
allegations that the goods at issue were not purchased from the plaintiff
but from Northwest Lumber. Even if we reached the merits of these addi-
tional claims, however, the defendants would fare no better in obtaining a
reversal of the court’s ruling on the motion to strike. In ruling on a motion
to strike, a court ordinarily should limit itself to the grounds on which the
proponent of the motion relies. See Gazo v. Stamford, 255 Conn. 245, 259,
765 A.2d 505 (2001). The obvious rationale underlying this rule is that it
would be unfair for a court to grant a motion on a ground of which the
opposing party had no notice and against which it lacked an opportunity
to defend. We are not convinced that this rationale is implicated in the
present case. Here, the defendants’ opposition to the motion to strike the
counts of the counterclaim stated that its counts were ‘‘legally sufficient in
that they properly set forth causes of action,’’ which, reasonably construed,
evinces an understanding by the defendants that the plaintiff’s motion to
strike, in addition to invoking the transaction test, also challenged the legal
sufficiency of the counts to state a proper cause of action. Furthermore,
the defendants have not directed our attention to anything that undermines
the court’s additional determination that a counterclaim that alleges nothing
more than that the plaintiff was not the seller of the goods does not state
any proper cause of action. Such an allegation properly can be construed
only as a denial of the allegations in the complaint or an affirmative defense
to breach of contract. Finally, a counterclaim sounding in abuse of process
is premature and cannot lie in the very action that allegedly forms the basis
for the alleged abuse of process. See U.S. Bank National Assn. v. Bennett,
195 Conn. App. 96, 107–108, 223 A.3d 381 (2019), citing Larobina v. McDon-
ald, 274 Conn. 394, 407–408, 876 A.2d 522 (2005). Thus, the court’s reliance
on these additional bases for granting the motion to strike likely would
provide us with proper alternative grounds for affirming the court’s judgment
in the present case. See Gazo v. Stamford, supra, 259.
18
In Bank of New York Mellon v. Mauro, supra, 177 Conn. App. 295, this
court also held ‘‘that a litigant may use a motion for summary judgment as
a means of testing whether a party’s counterclaims [fail to] satisfy the
transaction test of [Practice Book] § 10-10.’’ Id., 320.
19
This opinion should not be misconstrued as holding that, in the face of
a similar counterclaim, a court necessarily would abuse its discretion if it
denied a motion to strike and allowed the defendants to proceed on such
counterclaim. As indicated, proper application of Practice Book § 10-10
involves common sense, practicality, and requires accounting for a myriad
of factors that reasonably could lead to different results.
20
Although the court’s recognition of the judicial admission arguably
would have been conclusive and required no additional support, the court
nevertheless credited other evidence admitted at trial that supported its
finding that the plaintiff was the seller, including noting that the defendants
had made a number of allegations in earlier, superseded or stricken pleadings
that the court considered as evidentiary admissions by the defendants that
the plaintiff was the seller. The defendants do not challenge the court’s
analysis regarding its reliance on evidentiary admissions.
21
Sirois testified that when Northwest Lumber was purchased by the
plaintiff, the plaintiff kept the former Northwest Lumber signage in place,
which could be confusing at times to customers. He explained: ‘‘I’ve always
made a point to tell clients, you know, Northwest [Lumber] is owned by
[the plaintiff] and how we kept the same—it was always Northwest Lumber
from the prior owners so they didn’t want to change the name because it’s
kind of hometown atmosphere, so they kept the name of the lumberyard
owned by [the plaintiff].’’
22
That a party could be found to have dual status as both a buyer of
goods and as a personal guarantor of debt incurred cannot be discounted
as wholly implausible or illogical. There may be legal advantages for both
sides in permitting a party to sign a contract for the sale of goods as both
a buyer and as a guarantor. Although it is indisputable that both the buyer
and the guarantor ultimately could be held responsible to the seller in the
event of a failure to pay for goods under the contract, there are significant
differences involved, both procedurally and substantively, depending on if
the seller seeks to pursue a claim against a buyer or a guarantor. Further-
more, a party that is a buyer has additional duties to the seller and remedies
available to it against the seller in the event of a seller’s breach that would
be unavailable to a guarantor. Accordingly, the court’s finding is not facially
implausible and, in this case, is supported by the parties’ agreement.
23
‘‘ ‘Goods’ ’’ is defined in General Statutes § 42a-2-105 (1) in relevant part
as ‘‘all things, including specially manufactured goods, which are movable
at the time of identification to the contract for sale . . . .’’
The building materials at issue in this case certainly fall under that broad
definition and, therefore, the commercial transactions between the parties
fall within the purview of the UCC.
24
General Statutes § 42a-2-608 provides: ‘‘(1) The buyer may revoke his
acceptance of a lot or commercial unit whose nonconformity substantially
impairs its value to him if he has accepted it (a) on the reasonable assumption
that its nonconformity would be cured and it has not been seasonably
cured; or (b) without discovery of such nonconformity if his acceptance was
reasonably induced either by the difficulty of discovery before acceptance
or by the seller’s assurances.
‘‘(2) Revocation of acceptance must occur within a reasonable time after
the buyer discovers or should have discovered the ground for it and before
any substantial change in condition of the goods which is not caused by
their own defects. It is not effective until the buyer notifies the seller of it.
‘‘(3) A buyer who so revokes has the same rights and duties with regard
to the goods involved as if he had rejected them.’’ (Emphasis added.)
The defendants have not cited to any evidence in the record demonstrating
that they timely notified the plaintiff of their choice to revoke acceptance
other than to point at attempts they made to get the plaintiff to remedy the
defects they discovered. As stated in the commentary to § 42a-2-608, how-
ever, revocation of acceptance ‘‘will be generally resorted to only after
attempts at adjustment have failed’’; Conn. Gen. Stat. Ann. § 42a-2-608 (West
2009), comment (4), p. 237; which can only mean that notifying a seller of
perceived defects or nonconformity in goods received and accepted could
not itself constitute proper notice of an intent to revoke acceptance of those
goods. Because the court did not rely on or discuss a lack of notice as a
basis for rejecting the defendants’ revocation of acceptance defense, we do
not address this issue further other than to note it could provide an alterna-
tive ground for rejecting the defendants’ argument.
25
The plaintiff also argues that the claim is inadequately briefed because
the defendants failed to identify a standard of review. To the contrary, the
defendants state in their brief that we should review whether the plaintiff
proved damages with reasonable certainty under our clearly erroneous stan-
dard of review.