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Computer Reporting Services, LLC v. Lovejoy & Associates, LLC

Court of Appeals of Connecticut

July 19, 2016

COMPUTER REPORTING SERVICE, LLC
v.
LOVEJOY AND ASSOCIATES, LLC, ET AL.

          Argued March 2, 2016

         Appeal from Superior Court, judicial district of Fairfield, Hon. Michael Hartmere, judge trial referee.

          Frederick A. Lovejoy, self-represented, for the appellants (named defendant et al.).

          John W. Mills, for the appellee (plaintiff).

          Alvord, Prescott and Mullins, Js.

          OPINION

          PRESCOTT, J.

         The defendants Lovejoy & Associates, LLC (law firm), and Attorney Frederick A. Lovejoy appeal from the judgment of the trial court rendered in favor of the plaintiff, Computer Reporting Service, LLC, on its complaint alleging, inter alia, breach of contract arising from the defendants’ failure to pay for court reporting services that the plaintiff provided for several depositions taken by Lovejoy in an unrelated federal action.[1] The defendants also appeal from the judgment rendered in favor of the plaintiff on their counterclaims. The defendants claim on appeal that the court improperly (1) determined that an enforceable contract existed; (2) found that the defendants had faxed copies of the deposition notices to the plaintiff; (3) determined that Lovejoy was personally liable to the plaintiff for breach of contract in the absence of any evidence showing that he acted in his individual capacity rather than on behalf of the law firm; (4) failed to conclude that the defendants’ client in the federal action, Ensign Yachts, was solely responsible for paying the plaintiff for its services; (5) awarded $13, 564.64 in attorney’s fees pursuant to General Statutes § 52-251a; (6) rejected the defendants’ counterclaims, which alleged slander, abuse of process, and violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (2012); and (7) admitted evidence presented by the plaintiff at trial despite the plaintiff’s failure to comply with the court’s trial management order and its alleged spoliation of other evidence.

         On the basis of our review of the record, we agree with the defendants that the court improperly held Lovejoy individually liable for breach of contract, but we are not persuaded by the remainder of the defendants’ claims. Accordingly, we reverse the judgment of the trial court in part, and remand the case with direction to render judgment in favor of Lovejoy as to count one of the operative complaint alleging breach of contract. We affirm the judgment in all other respects, including the court’s decision to award costs and attorney’s fees.

         The following facts, which either were found by the court in its oral memorandum of decision or are undisputed in the record, and procedural history are relevant to our consideration of the defendants’ appeal.[2] The plaintiff is a Connecticut company that provides court reporting services to attorneys throughout the state. The law firm is a limited liability company with Lovejoy as its sole member.

         On or around June 18, 2010, Lovejoy, on behalf of the law firm, noticed the deposition of a witness in a federal action. Lovejoy faxed a copy of the deposition notice to the plaintiff, which the parties understood to be a request that the plaintiff provide a court reporter to record and transcribe the noticed deposition, which was scheduled for June 24, 2010. The plaintiff performed as requested, and the defendants were later provided with a copy of a deposition transcript and a bill for $1401.32. This same procedure was followed with respect to two additional depositions, one conducted on August 20, 2010, and the other on August 23, 2010. In each instance, the plaintiff was faxed a copy of the deposition notice, provided the requested court reporting services, and later provided the defendants with a transcript and a bill. The bills for the latter two depositions were for $1246.56 and $812.49, respectively. The bills for the three depositions totaled $3460.37. The defendants accepted delivery of the transcripts and utilized them without raising any complaint about the plaintiff’s services or the quality of the work product provided. The bills, however, were never paid, despite repeated collection efforts by the plaintiff.[3]

         In January, 2013, the plaintiff commenced a small claims action against the defendants alleging breach of contract. The defendants successfully moved to transfer the matter to the regular docket of the Superior Court, arguing that they had a good defense to the plaintiff’s claim and wished to preserve their right to appeal. See General Statutes § 51-197a (a) (no right of appeal from small claims judgment). They filed an answer on May 23, 2013, asserting a number of special defenses and three counterclaims alleging slander, abuse of process, and unfair debt collection practices. The plaintiff subsequently impleaded Ensign Yachts and filed an amended complaint. This operative amended complaint consisted of two counts: count one alleged breach of contract against the defendants, and count two alleged unjust enrichment on the part of Ensign Yachts.[4] Ensign Yachts failed to appear and was defaulted.

         The matter was tried to the court, Hon. Michael Hart-mere, judge trial referee, on June 26, 2014.[5] Following testimony and closing arguments by counsel, the court issued a brief oral decision from the bench. The court found in favor of the plaintiff on both counts of the operative complaint. With respect to the breach of contract count, the court found that the defendants had contracted with the plaintiff for court reporting services, and that they breached that contract by failing to pay for the services rendered, irrespective of any separate payment arrangement that may have existed between the defendants and Ensign Yachts. The court rejected all of the defendants’ special defenses, and awarded damages of $3460.37. It also found in favor of the plaintiff on each of the defendants’ counterclaims. The court noted that attorney’s fees and costs would be decided at a later date, after the plaintiff had submitted the appropriate paperwork. The court rendered judgment in accordance with its oral decision on July 3, 2014.[6]

         Also on July 3, 2014, the plaintiff filed a motion for attorney’s fees and prejudgment interest pursuant to General Statutes § 37-3a (a). It also filed a bill of costs. On August 11, 2014, the trial court clerk issued an order indicating that, in the absence of any objection to the plaintiff’s bill of costs, costs would be taxed pursuant to Practice Book § 18-5. On September 11, 2014, the court granted the plaintiff’s motion for attorney’s fees and awarded prejudgment interest at a rate of 5 percent. The defendants filed this appeal on October 1, 2014.[7]

         I

         The defendants first claim that the court improperly determined that an enforceable contract existed. Specifically, they argue that the plaintiff failed to meet its burden of establishing that there was a ‘‘meeting of the minds, ’’ which is a prerequisite to the formation of a valid contract. We are not persuaded.

         ‘‘The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.’’ (Internal quotation marks omitted.) Sullivan v. Thorndike, 104 Conn.App. 297, 303, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907, 908, 942 A.2d 415, 416 (2008). ‘‘In order to form a binding and enforceable contract, there must exist an offer and an acceptance based on a mutual understanding by the parties. . . . The mutual understanding must manifest itself by a mutual assent between the parties.’’ (Internal quotation marks omitted.) Krondes v. O’Boy, 37 Conn.App. 430, 434, 656 A.2d 692 (1995). In other words, to prove the formation of an enforceable agreement, a plaintiff must establish the existence of ‘‘a mutual assent, ora‘meeting of the minds’ . . . .’’ Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 764, 674 A.2d 1313 (1996); see also Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970) (‘‘burden rested on the plaintiff to prove a meeting of the minds to establish its version of the claimed contract’’).

         ‘‘The parties’ intentions manifested by their acts and words are essential to the court’s determination of whether a contract was entered into and what its terms were. . . . Whether the parties intended to be bound without signing a formal written document is an inference of fact [to be made by] the trial court . . . .’’ (Internal quotation marks omitted.) MD Drilling & Blasting, Inc. v. MLS Construction, LLC, 93 Conn.App. 451, 454–55, 889 A.2d 850 (2006). ‘‘[M]utual assent is to be judged only by overt acts and words rather than by the hidden, subjective orsecret intention of the parties.’’ 1 S. Williston, Contracts (4th Ed. Lord 2007) § 4.1, p. 325.

         Turning to the present case, the court determined that there was ‘‘a contractual agreement between the plaintiff and the defendants.’’ Because there was no written agreement, and, therefore, no definitive contract language to interpret, determining who was a party to the contract and the intent of those parties with respect to the terms of any contractual agreement involved factual determinations that we will reverse only if clearly erroneous. See Joseph General Contracting, Inc. v. Couto, 317 Conn. 565, 574–75, 119 A.3d 570 (2015). Although its decision contains no specific reference to a ‘‘meeting of the minds’’ and, in fact, contains very few factual findings relative to the formation of a contract, [8] a finding of mutual assent is nevertheless implicit within the court’s express finding that a contract existed. See Tsionis v. Martens, 116 Conn.App. 568, 577, 976 A.2d 53 (2009). Moreover, our review of the record before the trial court reveals that there was sufficient evidence to support the court’s finding that a valid contact existed.

         The court found that Lovejoy had faxed copies of the deposition notices to the plaintiff.[9] It was not disputed at trial that the purpose of providing the plaintiff with notice of the depositions was to alert the plaintiff of the defendants’ need for a court reporter to assist with the deposition at the time and place indicated. All parties agreed it was customary for attorneys to request court reporting services in this manner, and, thus, it was reasonable for the court to have viewed Lovejoy’s actions as manifesting an offer of payment in exchange for the plaintiff’s services, an offer that the plaintiff accepted by sending a reporter to the depositions to perform the requested services. The defendants have never argued that there was any confusion regarding the type of services bargained for or the cost for such services. Although the defendants claim that it was their intent that their client ultimately be responsible for the cost of the depositions, the court found that that intent was never communicated to the plaintiff until after the plaintiff sought payment from the defendants. The existence of a hidden or subjective intent on the part of one party to a contract does not render a finding of mutual assent clearly erroneous. See 1 S. Williston, supra, § 4.1, p. 325. On the basis of our review, we conclude that the court’s finding that an enforceable agreement existed was supported by the record, and the evidence before the court was sufficient to support its implicit finding of mutual assent to that agreement.

         II

         The defendants next claim that the court’s finding that they faxed copies of the deposition notices to the plaintiff was clearly erroneous. We disagree.

         ‘‘[W]e will upset a factual determination of the trial court only if it is clearly erroneous. 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.) Surrells v. Belinkie, 95 Conn.App. 764, 767, 898 A.2d 232 (2006).

         The defendants rely heavily upon the fact that the copies of the deposition notices admitted as exhibits at trial contained fax transmittal data that indicated that the notices had been faxed to the plaintiff long after this action was commenced and by someone other than the defendants. The plaintiff’s principal testified at trial, however, that copies of the deposition notices were faxed to the plaintiff’s office by the defendants prior to the depositions and that this was how the plaintiff knew to send a reporter to cover the depositions. The plaintiff also explained that it had not kept copies of the deposition notices faxed by Lovejoy as part of its business records, and, thus, it had to obtain copies from a third party, namely, the firm that opposed the defendants in the federal action for which the depositions were noticed. Lovejoy provided contradictory testimony at trial, first agreeing that he had faxed the notices to the plaintiff, but later claiming that he had not. The court was entitled to believe the plaintiff’s testimony over the testimony of Lovejoy, and, as we have often stated, it is not our role to second-guess the court’s credibility determinations. SeeState v.DeMarco, 311 Conn. 510, 519–20, 88 A.3d 491 (2014) (‘‘It is the exclusive province of the trier of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of any given witness’ testimony. . . . Questions of whether to believe or to disbelieve a competent witness are beyond our ...


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