United Amusement & Vending Co. v. Sabia

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
UNITED AMUSEMENTS AND VENDING
COMPANY v. DANIEL SABIA
(AC 38233)
Alvord, Prescott and Lavery, Js.
Syllabus
The plaintiff equipment leasing company sought to recover damages from
the defendant for breach of a contract the parties had entered into,
pursuant to which it would lease equipment, including a video game
machine, dart machines, an automated teller machine, pool tables, and
a jukebox, to the defendant for use in his bar. After the plaintiff pur-
chased the necessary equipment from third parties, the equipment was
never installed at the bar. The plaintiff made multiple failed attempts
to contact the defendant and, thereafter, filed the present breach of
contract action. Following a trial to the court, the court rendered judg-
ment in favor of the plaintiff, awarding the plaintiff, inter alia, $15,000
in damages and $5000 in attorney’s fees, from which the defendant
appealed to this court. Subsequently, the trial court vacated the award
of attorney’s fees. Held:
1. The defendant’s appeal was taken from a final judgment; even though
the issue of contractual attorney’s fees remained outstanding, the judg-
ment on the merits of the breach of contract action was a final judgment
for purposes of appeal.
2. The defendant’s claim that the trial court improperly failed to find that the
contract was unenforceable based on the defendant’s special defenses
of mistake and duress was not reviewable, the defendant having failed
to meet his burden of providing this court with an adequate record for
review of his claim; even though the defendant pleaded mistake and
duress as special defenses in his answer to the complaint and argued
those defenses at trial, the trial court made no findings of fact or any
rulings regarding those defenses, the court did not file a written memo-
randum of decision or prepare and sign a transcript of an oral ruling,
the defendant did not file a notice with the appellate clerk concerning
the trial court’s failure to file either a written memorandum or a signed
transcript, he did not seek an articulation from the court regarding his
special defenses, and although the record before this court included the
trial transcript, this court could not identify any portion of the transcript
that encompassed the trial court’s factual findings or rulings with respect
to the defendant’s claims of mistake and duress.
3. The record was inadequate to review the defendant’s claim that the trial
court incorrectly awarded damages based on unconscionable provisions
of the contract; the court did not make any findings of fact or rulings
regarding unconscionability, file a written memorandum of decision, or
prepare and sign a transcript of an oral ruling, and the defendant did
not seek an articulation regarding this issue or file with the appellate
clerk a notice concerning the trial court’s failure to file either a written
memorandum or a signed transcript.
4. The trial court’s determination of damages was clearly erroneous and
not supported by the record; there was no basis in the evidence for the
court’s award of $10,000 to the plaintiff in damages, based on a 50
percent restocking fee claimed by the plaintiff, nor was there a basis
in the evidence for the court’s award of $500 per month for ten months
as an operator’s commission, and, thus, this court was left with the
definite and firm conviction that a mistake had been committed in the
calculation of damages.
Argued October 25, 2017—officially released February 6, 2018
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 and tried to the court,
Hon. Edward F. Stodolink, judge trial referee; judgment
for the plaintiff, from which the defendant appealed
to this court; thereafter, the court, Hon. Edward F.
Stodolink, judge trial referee, granted the plaintiff’s
motion to vacate the award of attorney’s fees. Reversed
in part; further proceedings.
Joel Z. Green, with whom, on the brief, was Linda
Pesce Laske, for the appellant (defendant).
David Eric Ross, for the appellee (plaintiff).
Opinion
LAVERY, J. In this action for breach of contract aris-
ing out of a commercial lease, the defendant, Daniel
Sabia, appeals, following a trial to the court, from the
judgment rendered in favor of the plaintiff, United
Amusements & Vending Company, on the plaintiff’s sin-
gle count complaint. The trial court, Hon. Edward F.
Stodolink, judge trial referee, awarded $15,000 in dam-
ages. The defendant claims on appeal that the trial court
(1) failed to find the contract unenforceable based on
the defendant’s special defenses of mistake and duress;
(2) awarded damages based on unconscionable provi-
sions of the contract; and (3) awarded damages incon-
sistent with the contract and evidence. We agree with
the defendant’s third claim. Accordingly, we reverse in
part the judgment of the court and remand the case for
a hearing in damages. We otherwise affirm the
court’s judgment.
The following facts, which the trial court reasonably
could have found, and procedural history are pertinent
to our decision. Around September, 2012, the plaintiff’s
president, Jonathan Dentz, contacted the defendant to
arrange a meeting to discuss a possible business rela-
tionship between the parties. Dentz then met with the
defendant on September 9, 2012, at the South Side Cafe´
in Torrington (bar), which the defendant owns through
a limited liability company. The two discussed the possi-
bility of the plaintiff leasing equipment to the defendant
for use in the bar, including a video game machine, dart
machines, an automated teller machine (ATM), pool
tables, and a jukebox. The defendant already had similar
equipment in the bar, but was not under contract with
his then current vendor. Dentz went over the standard
contract the plaintiff used, and the two came to an
agreement on the terms for revenue sharing. The defen-
dant inquired as to an advance on the commissions that
would be due. Upon learning that the defendant was
earning about $500 per month from his current vendor,
Dentz agreed to advance $6000 to the defendant.
Dentz left the bar and drew up the contract. The next
day, one of the plaintiff’s other employees went to the
bar with the contract and an advance commission
check. The defendant signed the contract on September
10, 2012, and accepted the check. The plaintiff then
purchased the equipment pursuant to the contract from
third parties.
The purchased equipment was never installed at the
bar. About three weeks after the contract was signed,
Dentz attempted to call the defendant and left multiple
messages, but received no response. Then, in October,
2012, the defendant mailed the uncashed commission
check to the plaintiff. The plaintiff sent a demand letter
on November 2, 2012, informing the defendant that it
believed the defendant had breached the contract, and
that it would seek damages if the defendant did not
settle the matter within seven days.
The plaintiff filed a breach of contract action on
December 5, 2012, seeking damages, costs of suit, attor-
ney’s fees, and interest. In his answer, the defendant
admitted signing the contract, but denied defaulting on
the agreement. After a trial on July 22, 2015, the court
awarded the plaintiff $15,000 in damages, $5000 in attor-
ney’s fees, and $687.48 in costs. At the plaintiff’s request,
the court vacated the award of attorney’s fees on May
10, 2016, because the parties had agreed at trial to
address attorney’s fees after trial. The defendant
appealed. We will set forth additional facts as necessary.
As a threshold issue, we must address whether this
appeal was taken from a final judgment, as the award
of attorney’s fees was vacated and is still pending. In
Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634
(1988), our Supreme Court promulgated a bright line
rule that ‘‘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 deter-
mined.’’ Although Paranteau itself concerned statutory
attorney’s fees under the Connecticut Unfair Trade
Practices Act, its holding has been applied to other
attorney’s fees awards. See Hylton v. Gunter, 313 Conn.
472, 484–85, 97 A.3d 970 (2014) (applying Paranteau
rule to punitive damages); Benvenuto v. Mahajan, 245
Conn. 495, 501, 715 A.2d 743 (1998) (applying Paranteau
rule to strict foreclosure case).
Although our Supreme Court has not addressed con-
tractual attorney’s fees outside of dicta or footnotes,
this court applied the Paranteau bright line rule in
Doyle Group v. Alaskans for Cuddy, 164 Conn. App.
209, 222, 137 A.3d 809, cert. denied, 321 Conn. 924, 138
A.3d 284 (2016), holding that ‘‘regardless of whether
the issue of . . . contractual attorney’s fees remained
outstanding, the [trial] court’s . . . judgment was final
for purposes of appeal.’’ Thus, despite the issue of attor-
ney’s fees in the present case being unresolved, the
judgment on the breach of contract is a final judgment
for purposes of appeal.
I
On appeal, the defendant first claims that the trial
court failed to find the contract unenforceable based on
the defendant’s special defenses of mistake and duress.1
We set forth the relevant standard of review regarding
equitable claims. ‘‘The determination of what equity
requires in a particular case . . . is a matter for the
discretion of the trial court. . . . This court must make
every reasonable presumption in favor of the trial
court’s decision when reviewing a claim of abuse of
discretion. . . . 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 correctly applied
the law and could reasonably have reached the conclu-
sion that it did.’’ (Internal quotation marks omitted.)
People’s United Bank v. Sarno, 160 Conn. App. 748,
754, 125 A.3d 1065 (2015).
We must first consider whether we have an adequate
record for review of the defendant’s claim regarding
his special defenses. We conclude that we do not.
Although the defendant pleaded mistake and duress as
special defenses in his answer to the complaint and
argued these defenses at trial, the trial court made no
findings of fact or any rulings regarding these defenses,
nor did the court file a written memorandum of decision
or prepare and sign a transcript of an oral ruling. See
Practice Book § 64-1 (a). The defendant did not file, in
accordance with our rules of practice, a notice with
the appellate clerk of the failure of the trial court to
file either a written memorandum or a signed transcript.
See Practice Book § 64-1 (b). When the defendant later
sought an articulation from the court, he only requested
articulation regarding damages and attorney’s fees, and
did not ask the court to address his special defenses. ‘‘As
the appellant, the defendant has the burden of providing
this court with a record from which this court can
review any alleged claims of error. . . . It is not an
appropriate function of this court, when presented with
an inadequate record, to speculate as to the reasoning
of the trial court or to presume error from a silent
record.’’ (Citation omitted; internal quotation marks
omitted.) Village Mortgage Co. v. Veneziano, 175 Conn.
App. 59, 72, 167 A.3d 430, cert. denied, 327 Conn. 957,
172 A.3d 205 (2017); see also Practice Book § 61-10 (a)
(‘‘[i]t is the responsibility of the appellant to provide
an adequate record for review’’); Michaels v. Michaels,
163 Conn. App. 837, 844–45, 136 A.3d 1282 (2016)
(record inadequate where there was no memorandum
of decision or signed transcript, appellant did not file
notice pursuant to Practice Book § 64-1, and appellant
did not seek articulation). Although the record before
us includes the trial transcript, we cannot readily iden-
tify any portion of the transcript that encompasses the
court’s factual findings or rulings with respect to the
defendant’s claims of mistake and duress. Additionally,
because there is neither a memorandum of decision
nor an articulation regarding these claims, the record
is inadequate to review the defendant’s claim. See
Michaels v. Michaels, supra, 845.
II
The defendant also claims that the court incorrectly
awarded damages based on unconscionable provisions
of the contract. ‘‘Because unconscionability is a matter
of law to be decided by the court . . . our review on
appeal is not limited by the clearly erroneous standard
. . . but is, rather, a plenary review. . . . We defer,
however, to the trial court’s factual findings that under-
lie the determination of unconscionability unless they
are clearly erroneous.’’ (Citations omitted.) Emlee
Equipment Leasing Corp. v. Waterbury Transmission,
Inc., 31 Conn. App. 455, 461, 626 A.2d 307 (1993); see
also General Statutes § 42a-2A-107 (a).
The defendant argued that the contract provisions
were unconscionable at trial, but, like the defendant’s
special defenses, the trial court did not make any find-
ings of fact or rulings regarding unconscionability, file
a written memorandum of decision, or prepare and sign
a transcript of an oral ruling, nor did the defendant
seek an articulation regarding this issue or file with the
appellate clerk a notice of the failure of the trial court
to file either a written memorandum or a signed tran-
script. We likewise conclude that because there were
no factual findings regarding unconscionability, either
written or oral, the record is inadequate to review the
defendant’s claim of error. See Michaels v. Michaels,
supra, 163 Conn. App. 845.
III
Finally, the defendant claims that the trial court incor-
rectly calculated damages. Specifically, he claims that
the award was inconsistent with the evidence presented
at trial.2 We agree.
‘‘The general rule in breach of contract cases is that
the award of damages is designed to place the injured
party, so far as can be done by money, in the same
position as that which [it] would have been in had the
contract been performed. . . . The determination of
damages involves a question of fact that will not be
overturned unless it is clearly erroneous. . . . A find-
ing of fact is clearly erroneous when there is no evi-
dence 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.’’ (Cita-
tion omitted; internal quotation marks omitted.) Mead-
owbrook Center, Inc. v. Buchman, 149 Conn. App. 177,
185, 90 A.3d 219 (2014).
The following additional evidence, which was pre-
sented at trial, and procedural history are pertinent to
our decision. At trial, Dentz testified that the defendant
told him that the defendant was receiving approxi-
mately $500 per month as his share of revenue under
his then current arrangement.3 Dentz and the defendant
used this figure to determine what amount the plaintiff
would advance the defendant. Dentz then testified that
the plaintiff incurred costs of $19,574.78 in acquiring
from third parties the dart machines, jukebox, and ATM
for the bar, and presented the invoices to support
this claim.
On cross-examination, Dentz admitted that the plain-
tiff did not return the equipment and that it was still
in its warehouse. Dentz stated that he inquired about
returning the equipment, but upon finding out that there
would be a restocking fee of about 50 percent, he
elected not to return the equipment. After the defendant
did not accept delivery, the plaintiff leased out other
jukeboxes and ATMs, but no other dart machines.4
At the conclusion of trial, the court stated: ‘‘I’ve heard
the testimony of the parties. I’ve also reviewed in brief
the exhibits. This is sort of a mixed basis for a damage
award. We have the fact that the contract calls for some
$20,000 in equipment to be reimbursed. It also calls for
liquidated damages over a large period of time. On the
other hand, the defense has indicated that there are
some questions about the accuracy of those claims.
. . . [T]he court will enter a judgment in favor of the
plaintiff for a principal amount of $15,000 . . . .’’
The defendant later moved for an articulation, asking
(1) the manner and method by which the court calcu-
lated and determined the amount of damages awarded
and (2) the evidence and findings of fact relied upon
in fashioning the award of damages. In its articulation,
the court stated: ‘‘The judgment of $15,000 consists of
a $10,000 restocking charge for the equipment pur-
chased, as shown in exhibit 4, and an operator’s com-
mission of $500 per month for ten months, a reasonable
period of time, in order that the plaintiff can redirect
the use of the machines shown in exhibit 4 to other
locations.’’ As to the basis of its findings, the court
directed the defendant to ‘‘[s]ee exhibits 1 and 4 and
the testimony of . . . Dentz.’’
We conclude that the court’s calculation of damages
was incorrect. First, the court awarded $10,000 in dam-
ages based on a 50 percent restocking fee claimed by
the plaintiff. This damages award for a restocking fee
finds no basis in the evidence. Although Dentz testified
to being quoted a restocking fee of about 50 percent,
Dentz also testified that the plaintiff did not return the
equipment, and, therefore, did not incur any restocking
fee. Moreover, at least one invoice in exhibit 4 belies
the 50 percent figure. The second invoice, for the ATM,
clearly states that ‘‘all returned merchandise will be
subject to a 25 percent restocking fee plus the original
shipping cost.’’ Thus, the plaintiff would have forfeited
the $250 freight cost, and the restocking fee for the
return of the $3698 machine would have been $924.50,
not $1849.
Second, the court’s award of $500 per month for ten
months as an operator’s commission finds no basis in
the evidence. At trial, Dentz testified that the plaintiff
advanced the defendant $6000 because the defendant
claimed he had been receiving approximately $500 per
month under his then current equipment deal. There is
no evidence in the record to support that this arrange-
ment was in any way similar to the revenue sharing
agreed to in the parties’ contract. In addition, that $500
figure included revenue derived from all equipment in
the bar, which would necessarily include any pool
tables or video game machines then present. Although
the contract included provisions for the lease of two
pool tables and a video game machine, the plaintiff did
not claim any damages with respect to this equipment,
which in turn would have affected the calculation of
revenue. Additionally, the $500 per month figure repre-
sented the defendant’s share of revenue, not his previ-
ous lessor’s share. Thus, it is inappropriate to equate
the parties’ shares of revenue under this contract
because not all revenue was to be split evenly between
the parties. Although evidence showed that some of
the leased equipment would have involved a 50-50 split
of revenue under the contract, notably, the jukebox and
ATM would not.5
On the basis of our review of the evidence, we are
left with the definite and firm conviction that a mistake
has been committed in the calculation of damages;
therefore, we cannot uphold it. In light of our conclu-
sion, we do not address whether the plaintiff failed to
mitigate its damages, as that issue will be addressed
on remand.
Finally, we ‘‘must observe that this case has been
presented with virtually total disregard of the relevant
provisions of our statutes, in particular . . . the Uni-
form Commercial Code . . . . While it is true that the
Code incorporates, by reference, supplementary gen-
eral principles of contract law and of the law merchant
. . . such supplemental bodies of law cannot displace
those provisions of the Code that are directly applica-
ble.’’ (Citations omitted.) Bead Chain Mfg. Co. v. Saxton
Products, Inc., 183 Conn. 266, 270, 439 A.2d 314 (1981)
(Peters, J.). Article 2A of the Uniform Commercial Code
‘‘applies to any transaction regardless of form which
creates a lease.’’6 General Statutes § 42a-2A-103. There-
fore, on remand, we direct the parties’ attention to the
sections of article 2A pertaining to remedies for default,
General Statutes § 42a-2A-701 et seq.7
The judgment is reversed with respect to the award
of damages and the case is remanded for a hearing in
damages in accordance with this opinion; the judgment
is affirmed in all other respects.
In this opinion the other judges concurred.
1
In his principal brief, the defendant did not raise any claim of error
regarding the court’s disposition of his special defense of unclean hands.
In its brief, the plaintiff addresses an unclean hands claim that the defendant
did not brief. In his reply, the defendant then analyzes unclean hands for
the first time. It is well established that we do not review claims raised for
the first time in a reply brief, because ‘‘[o]ur practice requires an appellant
to raise claims of error in his original brief, so that the issue as framed by
him can be fully responded to by the appellee in its brief . . . .’’ (Internal
quotation marks omitted.) SS-II, LLC v. Bridge Street Associates, 293 Conn.
287, 302, 977 A.2d 189 (2009). The defendant, however, did not frame the
issue, so even though the plaintiff addressed unclean hands, it could not
fully respond to an argument that did not exist. Accordingly, we decline to
review this claim.
2
The defendant also claims that the damages award was inconsistent with
the liquidated damages provision of the contract. Because we are firmly
convinced that the damages award as articulated by the court was incorrectly
calculated based on the evidence adduced at trial, we do not address whether
the award was consistent with the liquidated damages provision of the
contract.
3
This is the only evidence of any revenue in the entire record.
4
The plaintiff made no claim for damages regarding the pool tables or
video game machine it purchased, as those were placed in other estab-
lishments.
5
The revenue splitting for the ATM was to be: the full surcharge to the
plaintiff and $0.50 per transaction to the defendant. The revenue splitting
for the jukebox was to be: the first $75 kept each week and then 50 percent
of the balance to the plaintiff, and the first $75 deducted each week and
then 50 percent to the defendant.
6
We note that, prior to the present case, no appellate court of this state
has addressed article 2A since its adoption in this state, although it was
used before its adoption for its instructiveness in a claim of unconscionability
in a finance lease in Emlee Equipment Leasing Corp. v. Waterbury Trans-
mission, Inc., supra, 31 Conn. App. 455.
7
We particularly direct the parties’ attention to General Statutes § 42a-
2A-716, which provides in part: ‘‘(a) If the lessee wrongfully rejects or
revokes acceptance of goods or fails to make a payment when due or
repudiates with respect to a part or the whole, the lessee is in default under
the lease contract with respect to any goods involved, and with respect to
all of the goods if under an installment lease contract the value of the whole
lease contract is substantially impaired, and the lessor may do one or more
of the following:
‘‘(1) Withhold delivery of the goods and take possession of goods pre-
viously delivered;
‘‘(2) Stop delivery of the goods by any carrier or bailee under subsection
(b) of section 42a-2A-719;
‘‘(3) Proceed under section 42a-2A-718 with respect to goods still unidenti-
fied to the lease contract or unfinished;
‘‘(4) Obtain specific performance under section 42a-2A-708 or recover the
rent under section 42a-2A-722;
‘‘(5) Dispose of the goods and recover damages under section 42a-2A-720
or retain the goods and recover damages under section 42a-2A-721;
‘‘(6) Recover incidental and consequential damages under sections 42a-
2A-706 and 42a-2A-707;
‘‘(7) Cancel the lease contract under section 42a-2A-709;
‘‘(8) Recover liquidated damages under section 42a-2A-710;
‘‘(9) Enforce limited remedies under section 42a-2A-711;
‘‘(10) Recover damages under section 42a-2A-705; or
‘‘(11) Exercise any other rights or pursue any other remedies provided
in the lease agreement.
‘‘(b) If the lessor does not fully exercise a right or obtain a remedy to
which the lessor is entitled under subsection (a) of this section, the lessor
may recover the loss resulting in the ordinary course of events from the
lessee’s default as determined in any reasonable manner, together with
incidental damages, less expenses avoided as a result of the lessee’s default.
. . .’’ We note that some of these remedies may be inapplicable to the
present case.