March 2, 2016
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.).
W. Mills, for the appellee (plaintiff).
Alvord, Prescott and Mullins, Js.
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. 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.
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.
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. 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.
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
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. Ensign Yachts
failed to appear and was defaulted.
matter was tried to the court, Hon. Michael
Hart-mere, judge trial referee, on June 26,
2014. 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.
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.
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.
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
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.
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,
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.
court found that Lovejoy had faxed copies of the deposition
notices to the plaintiff. 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.
defendants next claim that the court’s finding that
they faxed copies of the deposition notices to the plaintiff
was clearly erroneous. We disagree.
will upset a factual determination of the trial court only if
it is clearly erroneous. The trial courtâs 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).
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