December 7, 2017
to recover damages for breach of contract, and for other
relief, brought to the Superior Court in the judicial
district of Waterbury and tried to the court, Hon.
Barbara J. Sheedy, judge trial referee; judgment for the
plaintiff, from which the defendant appealed to this court.
Reversed; new trial.
William J. Ward, for the appellant (defendant).
D. Dorman, for the appellee (plaintiff).
Sheldon, Keller and Eveleigh, Js.
action stemming from a construction contract, the defendant,
S&L Variety Contractors, LLC, appeals from the judgment
of the trial court rendered after a bench trial in favor of
the plaintiff, Carvalhos Masonry, LLC. The defendant claims
that the trial court should have disqualified itself from
deciding the issues of liability and damages when it sent a
correspondence to both parties, after the trial but before it
rendered its decision, suggesting that they stipulate to a
judgment for a specific dollar amount, the exact amount that
the court ultimately awarded to the plaintiff. We agree with
the defendant and, accordingly, reverse the judgment of the
trial court and remand the case for a new
following procedural history is relevant to our consideration
of this appeal. The plaintiff commenced this action by
service of the writ of summons and complaint on January 6,
2014. The plaintiff alleged that the defendant breached a
contract in failing to pay for materials and services
rendered in connection with the installation of a cinder
block structure at 199 Laze Lane in Southington. The
defendant denied the plaintiff's allegations and asserted
four special defenses, which the plaintiff denied.
case was tried to the court on April 19, 2016. On April 28,
2016, the plaintiff filed a motion for leave to amend its
complaint to conform to the proof submitted at trial. The
plaintiff sought to amend two of the five paragraphs of its
complaint. In paragraph 4 of its original complaint, the
plaintiff alleged: ‘‘Plaintiff fully performed
its obligations under its agreement with the
defendant.'' It sought to amend that paragraph to
allege: ‘‘Plaintiff performed the work which was
completed in July, 2012.'' The plaintiff also sought
to amend paragraph 5 of its original complaint, which alleged
that the defendant failed to ‘‘fully pay for the
materials and services rendered'' in the amount of
‘‘$41, 960.71.'' It sought to amend that
paragraph to allege that the defendant failed to
‘âfully pay the balance due for the materials and
services rendered'' in the amount of
‘‘$35, 005.'' The defendant objected to
the plaintiff's motion for leave to amend its complaint
on the ground that the proposed amendments did not, in fact,
conform to the evidence adduced at trial. On May 16, 2016,
the court sustained the defendant's objection. The
parties filed posttrial briefs on May 19, 2016.
21, 2016, the court faxed a letter to both parties, which
stated: ‘‘I've taken a ‘second
look' at [the plaintiff's] motion for leave to amend
complaint dated 4/27/16 and denied by me on 5/16/16. That
second look came as I was writing a memorandum of decision.
occurs to me the parties ought to revisit [the
plaintiff's] suggestion [that] the matter be resolved for
the sum referenced in paragraph 5 of that 4/27/16 proposed
amended complaint. If the parties are agreed on the sum
referenced therein, I will enter judgment in that amount.
This assumes of course none of the ‘relief' ([in
paragraphs] 1-5) would be granted.'' The court ordered
the parties to respond to its inquiry by July 26, 2016. On
July 25, 2016, the plaintiff responded to the court that it
would agree to the court's suggested settlement amount,
$35, 005. After the defendant's attorney secured a one
week extension to respond to the court's inquiry because
he was on vacation, the defendant, on August 1, 2016,
declined to stipulate to the judgment proposed by the court.
Eight days later, on August 9, 2016, the court issued a
written memorandum of decision in which it rendered judgment
in favor of the plaintiff in the amount of $35, 005. This
defendant claims on appeal that the court should have
disqualified itself from deciding the issues of liability and
damages following its failed attempt to convince the parties
to stipulate to judgment in the amount of $35, 005. We agree.
. . . a judge engages in [discussions] looking to the
settlement of a case . . . in which he will be called upon to
decide the issues of liability and damages . . . [i]t is . .
. impossible to avoid questions as to whether the judge can
disregard . . . matters disclosed in the conference . . . and
whether a preliminary judgment, formed at the conference and
predicated on unsubstantiated claims of proof, may have some
subtle influence on a final judgment after a full hearing. .
. . It is inevitable that the basis is laid for suspicion, no
matter how unfounded or unjustified it may be, and that
failure to concur in what the judge ...