Argued
September 14, 2018
Procedural
History
Action
to recover damages for, inter alia, breach of contract, and
for other relief, brought to the Superior Court in the
judicial district of Danbury, where the court, Maronich,
J., granted in part the defendants' motion for
summary judgment and rendered judgment thereon, from which
the plaintiff appealed to this court, which dismissed the
appeal in part, reversed the judgment in part and remanded
the case for further proceedings; thereafter, the matter was
tried to the jury before Doherty, J.; subsequently,
the court, Doherty, J., granted the defendants'
motion for permission to file an amended answer and special
defense; verdict for the defendants; thereafter, the court,
Doherty, J., denied the plaintiff's motion to
set aside the verdict and rendered judgment in accordance
with the verdict, from which the plaintiff appealed to this
court; subsequently, the court, Doherty, J., issued
an articulation of its decision; thereafter, this court
reversed the judgment only as to the jury's verdict on
the special defense of waiver and remanded the case for a
hearing in damages on the jury's verdict in favor of the
plaintiff on her breach of contract claim against the
defendant Heritage Homes Construction Co., LLC; subsequently,
following a hearing in damages, the court, Truglia,
J., rendered judgment for the defendant Heritage Homes
Construction Co., LLC, from which the plaintiff appealed to
this court. Affirmed.
Lisa
Bruno, self-represented, the appellant (plaintiff).
Stephen P. Fogerty, for the appellee (defendant Heritage
Homes Construction Co., LLC).
Lavine, Keller and Elgo, Js.
OPINION
ELGO,
J.
This
case returns to us following a remand to the trial court for
a hearing in damages. See Bruno v. Whipple, 162
Conn.App. 186, 130 A.3d 899 (2015), cert. denied, 321 Conn.
901, 138 A.3d 280 (2016). The self-represented plaintiff,
Lisa Bruno, appeals from the judgment of the trial court
rendered in favor of the defendant Heritage Homes
Construction Company, LLC.[1] On appeal, the plaintiff claims that
the trial court (1) improperly concluded that she failed to
prove actual damages resulting from the defendant's
breach of a residential construction contract and (2)
exceeded the scope of the remand order.[2] We affirm the
judgment of the trial court.
As this
court has previously observed, the present case
‘‘arises from dealings between the parties
concerning the construction by [the defendant] of a new home
in Ridgefield for [the plaintiff] and her former husband,
Stephen Bruno (Bruno).'' Id., 188-89. In her
operative complaint, the plaintiff alleged that the
defendant, as a party ‘‘to a contract with
herself and Bruno to build the new home, had breached the
contract . . . by conspiring with Bruno to launder his money
through the project, and thus to deprive her of fair, just
and reasonable alimony and division of assets in connection
with the impending dissolution of her marriage. On that
score, the plaintiff alleged, more particularly, that by
December, 2005, when Bruno initiated marital dissolution
proceedings against her, construction of the new home was
nearly complete for what by then was the total sum of
approximately $1, 800, 000. Thereafter, however, from
December, 2005, to January, 2006, and from May, 2006, to
July, 2006, Bruno paid [the defendant] additional sums
totaling approximately $2, 600, 000, all purportedly for
expenditures on the project that she did not
authorize.'' Bruno v. Whipple, 138 Conn.App.
496, 498-99, 54 A.3d 184 (2012). More specifically, the
plaintiff alleged that the defendant breached the
construction contract by failing to provide her with (1)
invoices on a biweekly basis and (2) written change orders
regarding modifications to the contract.
A trial
was held in 2013. Following the close of evidence and at the
request of the defendant, the court provided the jury with an
instruction on the special defense of waiver. The court
further instructed the jury to ‘‘separately
answer jury interrogatories asking whether it ‘f[ou]nd
in favor of [the plaintiff] on her claim of breach of
contract against [the defendant]' and, if so, whether
‘[the plaintiff] waived the breach of contract by [the
defendant] . . . .' '' Bruno v. Whipple,
supra, 162 Conn.App. 196. The jury subsequently returned a
verdict in favor of the defendant on the breach of contract
claim. In so doing, the jury
‘‘expressly'' based that verdict
‘‘on its answers to jury interrogatories that (1)
[the defendant] had breached its contract with the plaintiff,
but (2) the plaintiff had waived that breach.''
Id. The trial court denied the plaintiff's
subsequent motion to set aside the verdict. Id.,
196-97.
On
appeal, this court concluded that the trial court improperly
denied the motion to set aside the verdict in favor of the
defendant on the breach of contract count. As the court
stated, the trial court ‘‘abused its discretion
by permitting [the defendant] to raise the special defense of
waiver for the first time after the close of evidence at
trial, as it had not been specially pleaded, the pleadings
did not allege any facts supporting an inference of waiver,
and the claim that the plaintiff knowingly relinquished her
contractual rights was not fully litigated at trial without
objection by the plaintiff. Accordingly . . . the court
should have set aside the jury's verdict as to
waiver.'' (Footnote omitted.) Id., 207.
In
light of that conclusion, this court explained that it
‘‘must now address the scope of the remand of
this case to the trial court. Specifically, we must determine
whether the case should be remanded for a hearing in damages
on the plaintiff's breach of contract claim or whether
the jury's verdict on her breach of contract claim also
must be set aside and remanded for a retrial on that
issue.'' Id., 207-208. The court noted that,
‘‘[i]n finding in favor of the plaintiff on her
breach of contract claim, the jury essentially has determined
liability in her favor against [the defendant] and the
remaining determination is damages resulting from that
breach.'' Id., 208. Accordingly, this court
concluded that ‘‘because the improper verdict on
the special defense of waiver is wholly separable from the
verdict in favor of the plaintiff on her breach of contract
claim . . . limiting the remand to a hearing in damages on
the breach of contract verdict does not work injustice in
this case.'' Id. The court thus ordered the
case to be ‘‘remanded for a hearing in damages on
the jury's verdict in favor of the plaintiff on her
breach of contract claim.''[3]Id., 216.
The
trial court held a hearing in damages on January 26, 2017, at
which the plaintiff submitted testimony from herself and
James Bolan, a financial consultant employed by Charles
Schwab, as well as certain documentary evidence. In her
testimony, the plaintiff confirmed that her breach of
contract claim was predicated on the defendant's failure
to provide her with invoices on a biweekly basis and written
change orders regarding modifications to the contract. The
plaintiff maintained that those failures caused a diminution
of her marital estate.
In its
February 21, 2017 memorandum of decision, the court made a
number of factual findings that are not contested in this
appeal. The court found that the plaintiff and Bruno entered
into the contract at issue on October 28, 2004. The contract
did not specify ‘‘a final, fixed price for
construction of the residence, '' as the parties had
agreed that the defendant would be paid for all services
rendered.[4] The construction costs were paid in part
from the proceeds of a construction mortgage loan; the
remaining construction costs were paid with funds from a
Charles Schwab financial account (Schwab
account).[5] In December, 2005, Bruno commenced a
dissolution action against the plaintiff. As part of that
dissolution proceeding, the plaintiff and Bruno on July 10,
2006, entered in to a written stipulation to complete the
construction of the residence. The residence ultimately was
completed and a certificate of occupancy issued on July 28,
2006. The final cost of construction, including land, totaled
$7, 746, 462.[6]
In its
memorandum of decision, the trial court also found that the
plaintiff's marriage to Bruno was dissolved on March 17,
2008. As part of that judgment of dissolution, the
dissolution court ordered that the net proceeds of the sale
of the newly constructed residence shall be
‘‘divide[d] equally'' between the
plaintiff and Bruno. The dissolution court further found
that, at the time of dissolution, the residence had a fair
market value of $7.9 million. The dissolution court also
awarded the plaintiff weekly alimony in the amount of $4000,
culminating upon the death of the plaintiff or Bruno, or the
remarriage of the plaintiff. With respect to the Schwab
account that had been used as a source of funds for the
construction of the new residence, the dissolution court
found that it had a current balance of $2, 451, 343.62. As
part of its financial orders, the dissolution court awarded
the plaintiff $300, 000 from that account and ordered that
$22, 826 be paid from that account to the defendant for an
outstanding invoice. The dissolution court then ordered the
remainder of the Schwab account ‘‘to be divided
equally between'' the plaintiff and Bruno.
In her
complaint, the plaintiff alleged in relevant part that the
defendant's breach of contract deprived her
‘‘of fair, just and reasonable alimony and
division of assets in connection with the dissolution of
[her] marriage to Bruno.'' In ruling on the issue of
damages, the court thus stated that ‘‘the
plaintiff's claim for damages [on the breach of contract
count] is measured by the amount that the marital estate was
diminished as a direct and proximate result of [the
defendant's] failure to provide her with biweekly
invoices and change orders.'' The court found,
‘‘after careful review of the evidence introduced
at the hearing in damages . . . that the plaintiff has not
proven (and cannot prove from the evidence presented) that
the marital estate was reduced by [the defendant's]
breach of contract. The ‘missing' funds [from the
Schwab account] were paid to [the defendant] to satisfy
invoices for services rendered and materials furnished in
constructing the [new residence]. . . . The plaintiff
introduced no evidence at the hearing in damages to
contradict this finding. The [new residence] retained the
value of the cash expended in its construction and remained a
significant asset of the marital estate available for
distribution to the plaintiff.'' (Citation omitted.)
The court also rejected the plaintiff's ancillary claim
that, but for the alleged diminution of the marital estate
due to the defendant's breach of contract, she would have
received a larger award of alimony and property distribution.
In this regard, the court found that the plaintiff's
claim was ‘‘entirely too speculative, ''
as it was predicated solely on a
‘‘projection'' of what the court in the
dissolution proceeding ‘‘likely would have
awarded to her ...