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Carvalhos Masonry, LLC v. S and L Variety Contractors, LLC

Court of Appeals of Connecticut

March 13, 2018

CARVALHOS MASONRY, LLC
v.
S AND L VARIETY CONTRACTORS, LLC

          Argued December 7, 2017

         Procedural History

         Action 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).

          Nicole D. Dorman, for the appellee (plaintiff).

          Sheldon, Keller and Eveleigh, Js.

          OPINION

          SHELDON, J.

         In this 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 trial.[1]

         The 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.

         This 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 ‘‘fully 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.

         On July 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.

         ‘‘It 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.''[2] 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 appeal followed.

         The 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.

         ‘‘When . . . 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 ...


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