Connecticut Light & Power Co. v. Proctor , 324 Conn. 245 ( 2017 )

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CONNECTICUT LIGHT AND POWER COMPANY v.
GARY PROCTOR
(SC 19531)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued September 19—officially released December 28, 2016*
Derek V. Oatis, for the appellant (defendant).
Alexander G. Snyder, for the appellee (plaintiff).
Opinion
McDONALD, J. The sole issue in this certified appeal
is whether the trial court properly found that the defen-
dant, Gary Proctor, manifested assent to enter into an
implied in fact contract with the plaintiff, Connecticut
Light and Power Company, for the provision of electric
services to a third party. We conclude that the Appellate
Court properly determined that the trial court’s finding
that the parties had entered into an implied in fact
contract under which the defendant would be responsi-
ble for payment for those services was not clearly erro-
neous. Connecticut Light & Power Co. v. Proctor, 158
Conn. App. 248, 256, 118 A.3d 702 (2015). Accordingly,
we affirm the judgment of the Appellate Court.
The record reveals the following undisputed facts
and procedural history. Prior to June, 2008, the defen-
dant was employed by Avicula of America as general
manager of its poultry business conducted on a farm
leased by Avicula at 44 Upper Butcher Road in Ellington
(farm). In June, 2008, Avicula sold the business to
Robert Chan, Eastern Poultry Distributors, LLC, and
Pedigree Chicks, LLC, who continued to operate the
business at that site. The defendant was retained by
Pedigree Chicks on a part-time basis to facilitate the
transition. As part of that transition, the defendant was
asked to set up an account for electric services for
the new business. After the defendant contacted the
plaintiff, it provided such service to the farm under an
account in the defendant’s name until August 20, 2009,
at which time service was disconnected for non-
payment.
In December, 2011, the plaintiff brought the present
action against the defendant for breach of an implied
contract and unjust enrichment, alleging that it had
provided electric services to the defendant at his
request and that $14,620.51 in bills remained outstand-
ing. The matter proceeded to a bench trial. The plaintiff
proffered testimony from two of its representatives and
documentary evidence. The defendant proffered his
own testimony and no other evidence.
The plaintiff’s primary witness, Jennifer Dupuis, who
had experience monitoring delinquent accounts for the
plaintiff, testified regarding the plaintiff’s internal pro-
cedures for the creation and maintenance of its electric
services accounts. She testified that whenever there are
communications between the plaintiff and a prospec-
tive customer or a customer with an existing account,
a notation is made in the plaintiff’s internal computer
system documenting the event. These notations,
according to Dupuis, are made during or shortly after
the event described therein. With that foundation, the
plaintiff introduced internal records documenting its
communications with the defendant through Dupuis.
Although Dupuis had no personal knowledge of these
communications, she was able to explain the meaning
of certain abbreviated terms or terms of art used by
the plaintiff’s representatives in the ordinary course of
business to document these interactions.
The internal records reflect that the defendant first
contacted the plaintiff in August, 2008, regarding elec-
tric services for the new business. The representative
who received the ‘‘service inq[uiry]’’ noted that ‘‘[the
defendant] has the business Ped[i]gree Chicks . . . .’’
The record further noted that Pedigree Chicks was not
registered with the Connecticut Secretary of the State
(state), which Dupuis explained was a requirement for
establishing a commercial account. The defendant
informed the representative that he did not want to put
the account in his name. The defendant inquired about
the balance due from the previous business but was
unable to obtain that information because he could not
provide Avicula’s account number, and informed the
representative that he would get in touch with the previ-
ous business to get more information.
The defendant telephoned the plaintiff again in
November, 2008. According to the record of that call,
the defendant informed the plaintiff that the ‘‘company
took serv[ice]’’ as of June 20, 2008. According to Dupuis,
when a prospective customer requests service, the rep-
resentative always asks from what date the customer
wants service to be established under the name of the
newly created account. The record indicated that the
representative cancelled the bill for the previous cus-
tomer back to June 20, 2008, processed documentation
to have an account set up, verified a mailing address,
sent an application, and quoted a deposit of $2520.
Contemporaneous with the creation of that record,
the plaintiff generated a ‘‘customer maintenance page’’
displaying the defendant’s first name, middle initial, and
last name, his home and cell phone numbers, and his
Social Security number.1 Dupuis testified that such
information would be obtained only if the customer
was ‘‘knowingly [accepting] personal responsibility for
an account . . . .’’ The maintenance page indicated
that the ‘‘legal entity’’ for which services were to be
provided is a ‘‘proprietorship’’ for the defendant, with
the defendant’s name as the only entry in the field for
‘‘Responsible Parties.’’ The page also denoted that the
defendant was doing business as Pedigree Chicks with
the farm’s address listed as the service address. Pedi-
gree Chicks was still not registered with the state at
this time or any relevant time thereafter.
The defendant received at his home address a docu-
ment entitled ‘‘Commercial & Industrial Application for
Service’’ designated for a ‘‘PROPRIETORSHIP,’’ which
was accompanied by a letter dated November 26, 2008,
the same date as the November telephone call. The
defendant’s name was on the first line of the application
under the field for ‘‘Account Name.’’ The application
listed the defendant’s home address as the mailing
address for the account and the farm’s address as the
service address. According to Dupuis, it is the plaintiff’s
regular practice to verify with each customer to what
address he or she wants correspondence to be delivered
and that this correspondence would not have been
mailed to the defendant’s home address unless he had
requested it. There was no reference to Chan, Eastern
Poultry, or Pedigree Chicks in the application, nor to
any addresses associated with any one of them other
than the farm.
The letter accompanying the application was
addressed to the defendant, also noting his home
address. The subject field stated ‘‘Application for Ser-
vice—Deposit Required,’’ listed an account number
underneath, and the farm’s address below the account
number. Just as with the application, there was no refer-
ence to Chan, Eastern Poultry, or Pedigree Chicks in
the letter. As to the content of the letter, it thanked the
defendant for his ‘‘request’’ for electric service, indi-
cated that a security deposit was required for the
account, for which the defendant would be billed
shortly, and asked that he complete and return the appli-
cation.
The defendant neither returned the application nor
paid a deposit. There is no record that any bill for a
deposit was ever issued in connection with the subject
account. Dupuis testified that the plaintiff may—and
routinely does—accept oral applications from prospec-
tive customers or, at its election, may require a written
application as a condition to service. The letter
requested that the application be returned within seven
days but did not state that receipt of a signed and
completed application was a condition to service.
According to the plaintiff’s records, the defendant
telephoned the plaintiff again on January 13, 2009,
‘‘because he had not received a billing.’’ Dupuis testified
that, in order for a representative to discuss matters
relating to an account that had been created, the
account holder would have to verify his personal infor-
mation contained in the plaintiff’s internal database.
The plaintiff’s record of this call first reflects that ‘‘order
instructions indicate that [the] customer has accepted
responsibility for this site as of June 20, 2008.’’2 It then
indicates that the defendant told the representative that
the account should not be in his name because he was
‘‘only the manager.’’ The record noted that the represen-
tative suggested to the defendant that he should get the
company to take over the service, but reminded him
that it would have to be registered with the state. The
record indicated that the defendant responded that he
was immediately ‘‘driving to New Jersey (company
headquarters) to discuss this property.’’ The plaintiff’s
records denote a ‘‘mailing address change’’ on the same
date as this telephone call with the defendant.3
According to the plaintiff’s records, the next commu-
nication was initiated by one of the plaintiff’s represen-
tatives to the defendant’s cell phone in February, 2009,
‘‘to find out what the status is of his parent company
taking over this service going back to June, 2008.’’ The
record indicates that the defendant believed that ‘‘they
already had’’ done so and provided a meter number for
the account on which they were purportedly paying the
bills. The record noted that ‘‘they have new billing in
‘his’ name but have not [received] bills as [the plaintiff
has] not processed this move.’’ Dupuis explained that
bills are not sent to the new customer until the plaintiff
has processed a ‘‘move in order,’’ which results in the
closing of the current account and the substitution of
the new account holder. The defendant identified East-
ern Poultry of Brooklyn, New York as the ‘‘parent com-
pany’’ and ‘‘another company: Pedigree Chicks,’’ with
a New Jersey address. The representative noted that
the defendant was going to contact the ‘‘parent com-
pany’’ one more time. There is no indication in the
records that the defendant asked to terminate service
under the account.4
The first bill for the account was not issued until
May, 2009. That bill and all subsequent bills for the
account were issued in the defendant’s name, but
mailed to the farm. Dupuis stated that the delay in
issuing the first bill resulted from the defendant’s pur-
ported request to retroactively assume responsibility
for services dating back to June 20, 2008, which was a
period for which the prior account holder had been
billed. The plaintiff never sent the defendant written
notification of his responsibility for paying for services,
which was in violation of its policies.
In August, 2009, the plaintiff disconnected service on
the account for nonpayment. The plaintiff thereafter
referred the matter to a collections agency, which
attempted to collect the debt from the defendant.
According to the plaintiff’s records, in April, 2010,
the defendant called the plaintiff regarding the final bill
on the account. The record summarizing this conversa-
tion indicated that the defendant said that ‘‘he worked
for a company that had birds on their farm and needed
a name to ‘borrow’ to have electricity put on so he ‘lent’
them his name, [but] they never paid the bill . . . .’’5
Dupuis testified that, in her experience making nota-
tions in the plaintiff’s internal system, words within
quotation marks reflect the exact words used by the
customer. The plaintiff’s representative who received
this telephone call, Michelle Messier, testified and con-
firmed that the quoted words would have been the
specific words used by the speaker.
In a letter to the plaintiff’s collection agency dated
seven days after this call, the defendant disputed his
responsibility for the debt, asserting that he neither
leased nor owned the farm, and merely had been
employed by the company that leased the farm. He
further stated: ‘‘I did not know of any issue until recently
regarding this account. . . . I have no connection to
this account except to have been asked by the company
I worked for and . . . Chan to get the [electric] account
set up for him as he is out of state. . . . When I found
out that this bill had my name on it, I telephoned [the
plaintiff] informing them again, as I had during our
first conversation, that this account belongs to [Chan],’’
listing an address for him in New Jersey.
In his testimony, the defendant could not recall the
substance of most of the telephone calls with the plain-
tiff’s representatives but he denied setting up the
account in his name and authorizing the plaintiff to
charge him for services, retroactive or otherwise. He
testified that he had served only as a consultant to Chan
and Pedigree Chicks for approximately three and one-
half months, on a part-time basis, to facilitate the take-
over of the poultry business and to set up an electric
service account with the plaintiff. He testified that he
had been paid expenses only for his efforts. He admitted
that opening such an account was beneficial to the
continuation of his relationship with Chan.
With respect to the various communications with the
plaintiff’s representatives, the defendant recalled being
told during the initial telephone call that he could not
establish the account in the name of Pedigree Chicks
because it was not registered with the state. The defen-
dant confirmed that the plaintiff’s customer mainte-
nance page displayed his correct personal information.
When asked on cross-examination if he had provided
this information, the defendant replied, ‘‘I don’t know
honestly,’’ ‘‘I could have,’’ and ‘‘[i]t’s possible,’’ and con-
ceded that there was no reason to believe the plaintiff
had misappropriated the information from another
source. He later testified that his ‘‘guess’’ was that Chan
had used his name to open the account after the defen-
dant brought him the application, although he could
not say that for a fact. He acknowledged that he did
not know whether Chan had his Social Security number
but upon further prompting from the plaintiff’s counsel
testified that it was ‘‘very possible’’ that Chan had misap-
propriated his personal information. With regard to the
application for service, the defendant testified that,
upon receiving it: ‘‘I got in my car, and I took it directly
to . . . Chan and said, you know, you’ve got to have
this in your name, and you’ve got to pay the bill, or,
you know, pay the application fee.’’
When asked on cross-examination about the April,
2009 telephone call with Messier, the defendant stated
that he could not recall whether he had made certain
statements reflected in the plaintiff’s record of that call.
The following exchange then occurred between the
plaintiff’s counsel and the defendant with regard to one
of those statements:
‘‘Q. And that that company needed a name to, quote,
borrow, quote, to have electricity put on, so he lent
them his name. Do you see that part?
‘‘A. I do.
‘‘Q. Do you recall making that statement?
‘‘A. No, I don’t.
‘‘Q. Is it your position that you did not make that
statement or that you can’t recall whether you did or
not?
‘‘A. I can’t recall, but I can’t imagine I would lend
my name knowing that it was going to be billed for
electrical service.
‘‘Q. Well, do you think you lent your name without
knowing that it would be your responsibility to pay
the bill?
‘‘A. I don’t recall lending my name to this. I made
it very clear to [Chan] that he needed to fill out the
application and pay the bills.’’
The defendant initially testified on direct examination
that he first had learned that the bills were in his name
in April, 2010, after receiving notification from the col-
lections agency. He admitted on cross-examination that
he knew the account was in his name either after he
received the application for service in November, 2008,
or during the January, 2009 telephone call, which led
to the following exchange between the plaintiff’s coun-
sel and the defendant:
‘‘Q. . . . You testified that at this point in time, when-
ever that was, you knew the account had your name
on it?
‘‘A. Yes.
‘‘Q. Did you understand that to mean that you were
responsible for the account?
‘‘A. No.
‘‘Q. Did you understand that [the plaintiff] expected
you to be responsible for the account?
‘‘A. I don’t know how to answer that. I think if it
was—you know, I realized it was in my name, and that
scared me. I wanted to get out of it. I went down and
saw . . . Chan, and I said, you have got to take this
over, and he said he would take care of it, and I never
heard anything different from then on, so I assumed he
was paying the bills.
‘‘Q. Did you ever tell [the plaintiff] to terminate the
account? . . .
‘‘A. No, I didn’t because I thought it was still ongoing.
I thought he was paying for it. I had no idea it was in
my name still.’’
On the basis of the aforementioned evidence, the trial
court rendered judgment for the plaintiff on the first
count of breach of an implied contract and for the
defendant on the second count of unjust enrichment.
In support of the judgment on the implied contract
count, the court made the following findings: ‘‘The prop-
erty was utilized as a business enterprise known as
‘Pedigree Chicks,’ which was not registered as a busi-
ness with the [state]. Pedigree Chicks was a poultry
operation and [the defendant] was a part-time employee
who, at the time, worked about three hours a day twice
a week.
‘‘The owner of the business (which was just starting
up in June, 2008) was a gentleman from New Jersey
named ‘Chan.’ At that point in time [the defendant]
(rather naively) called [the plaintiff] to arrange for elec-
trical service for the poultry business. [Chan] was not
present at the trial . . . .
‘‘When [the defendant] finally realized [that] he was
being billed he drove to New Jersey and met with
[Chan], trying to persuade him to take responsibility for
the [plaintiff’s] bill. That effort was unsuccessful . . . .
‘‘[The defendant] was of the opinion that he was doing
[Chan] a favor by arranging for electrical service, but
[the plaintiff] had [the defendant’s] name, his Social
Security number, and his home address on the applica-
tion form. [The defendant] never asked to close off the
account and [the plaintiff] complied with public utility
regulations in its handling of the account.
‘‘While the court is sympathetic to [the defendant’s]
plight the court finds there was an implied contract
entered into by [the defendant] with the plaintiff. [The
defendant] mistakenly relied on [Chan] to pay the elec-
trical bills.’’ The court awarded the plaintiff $14,620.51,
covering the entire amount of unpaid bills.
The defendant appealed from the trial court’s judg-
ment, and the Appellate Court affirmed the judgment.
Connecticut Light & Power Co. v. Proctor, supra, 158
Conn. App. 256. The Appellate Court observed that,
although the trial court did not state so expressly, it
had found a contract implied in fact, not implied in law.
Id.; see also id., 249 n.1. The Appellate Court held that
the defendant had failed to establish that the trial court’s
finding that an implied in fact contract existed was
clearly erroneous under either prong of the clear error
standard. Id., 256. We thereafter granted the defendant’s
petition for certification to appeal from that judgment.
Connecticut Light & Power Co. v. Proctor, 319 Conn.
905, 122 A.3d 639 (2015).
The defendant asserts that the trial court’s finding
that an implied in fact contract existed was clearly
erroneous because (a) it was contrary to the evidence
showing that he had made explicit his intention not to
have his name on the account, and (b) the plaintiff
deviated from its own procedures by rendering service
prior to its receipt of the application for service or a
security deposit and by failing to give written notifica-
tion that he was being billed for such service. He also
asserts that the trial court’s subordinate findings of fact
are legally insufficient to establish the ultimate issue
of fact of the existence of an implied in fact contract.
We disagree.
It is well settled that the existence of an implied in
fact contract is a question of fact for the trier. See
Simmons v. Simmons, 244 Conn. 158, 187, 708 A.2d
949 (1998); see also Rahmati v. Mehri, 188 Conn. 583,
587, 452 A.2d 638 (1982) (‘‘[w]hether and on what terms
a contractual commitment has been undertaken are
ultimately questions of fact’’). Accordingly, our review
is limited to a determination of whether the decision
of the trial court is clearly erroneous. ‘‘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. . . . Because it is
the trial court’s function to weigh the evidence and
determine credibility, we give great deference to its
findings. . . . In reviewing factual findings, [w]e do not
examine the record to determine whether the [court]
could have reached a conclusion other than the one
reached. . . . Instead, we make every reasonable pre-
sumption . . . in favor of the trial court’s ruling.’’
(Internal quotation marks omitted.) Stevenson Lumber
Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn.
205, 216–17, 932 A.2d 401 (2007); accord Bender v.
Bender, 292 Conn. 696, 728–29, 975 A.2d 636 (2009).
With respect to implied in fact contracts, we have
recognized that ‘‘[w]hether [a] contract is styled express
or implied involves no difference in legal effect, but
lies merely in the mode of manifesting assent.’’ (Internal
quotation marks omitted.) Boland v. Catalano, 202
Conn. 333, 337, 521 A.2d 142 (1987). ‘‘A true implied [in
fact] contract can only exist [however] where there is
no express one. It is one which is inferred from the
conduct of the parties though not expressed in words.’’
(Internal quotation marks omitted.) Janusauskas v.
Fichman, 264 Conn. 796, 804, 826 A.2d 1066 (2003); see
also Hydro-Hercules Corp. v. Gary Excavating, Inc.,
166 Conn. 647, 652, 353 A.2d 714 (1974) (‘‘[t]he intention
of the parties manifested by their words and acts is
essential to determine whether a contract was entered
into and what its terms were’’ [internal quotation
marks omitted]).
‘‘A contract implied in fact, like an express contract,
depends on actual agreement.’’ (Internal quotation
marks omitted.) Coehlo v. Posi-Seal International, Inc.,
208 Conn. 106, 111, 544 A.2d 170 (1988); see also Hoff-
man v. Fidelity & Casualty Co. of New York, 125 Conn.
440, 443–44, 6 A.2d 357 (1939) (if parties’ ‘‘minds have
never met, no contract has been entered into by them’’).
However, ‘‘[i]t is not fatal to a finding of an implied
contract that there were no express manifestations of
mutual assent if the parties, by their conduct, recog-
nized the existence of contractual obligations.’’ (Inter-
nal quotation marks omitted.) Janusauskas v.
Fichman, supra, 264 Conn. 805; see also Therrien v.
Safeguard Mfg. Co., 180 Conn. 91, 94–95, 429 A.2d 808
(1980) (plaintiff has burden of proving that defendant
‘‘agreed, either by words or action or conduct, to under-
take [some] form of actual contract commitment’’).
Thus, ‘‘conduct of one party, from which the other may
reasonably draw the inference of a promise, is effective
in law as a promise.’’ 1 R. Lord, Williston on Contracts
(4th Ed. 2007) § 4:2, pp. 344–46. ‘‘As long as the conduct
of [the] party is volitional and that party knows or
reasonably ought to know that the other party might
reasonably infer from the conduct an assent to con-
tract, such conduct will amount to a manifestation of
assent.’’ (Emphasis added.) Id., pp. 352–53; accord 1
Restatement (Second), Contracts § 19 (2) (1981).
In the traditional terms of offer and acceptance, when
a ‘‘request is made under such circumstances that a
reasonable person would infer an intent to pay for them
. . . the request amounts to an offer, and a contract
is created by the performance of the work.’’ (Internal
quotation marks omitted.) Butler v. Solomon, 127 Conn.
613, 615, 18 A.2d 685 (1941). We have recognized, con-
sistent with that principle, that ‘‘[a]n implied [in fact]
contract would arise if the plaintiff rendered services,
at the request of the defendant, under an expectation
that they were to be paid for and if the defendant either
intended to pay for them or the services were rendered
under such circumstances that the defendant knew, or,
as a reasonable person, should have known, that the
plaintiff did expect payment.’’6 Id.; see also Charter Oak
Estates, Inc. v. Kearney, 160 Conn. 522, 531–32, 280
A.2d 885 (1971); Casey v. McFarlane Bros. Co., 83 Conn.
442, 443, 76 A. 515 (1910); Weinhouse v. Cronin, 68
Conn. 250, 253, 36 A. 45 (1896). It is of particular rele-
vance in this case that ‘‘[t]he question . . . is not
whether the defendant in fact expected to pay for the
services but whether they were rendered under such
circumstances that the defendant either knew, or as a
reasonable man, should have known, that the plaintiff
expected compensation.’’ Butler v. Solomon, supra, 616;
accord Casey v. McFarlane Bros. Co., supra, 443; cf.
Cecio Bros., Inc. v. Greenwich, 156 Conn. 561, 568, 244
A.2d 404 (1968).
With these principles in mind, we turn to the Appel-
late Court’s conclusion that the trial court’s finding of
an implied in fact contract was not clearly erroneous.
We recognize, as an initial matter, that the trial court’s
subordinate factual findings are not as clear or as
detailed as might be expected for such a fact intensive
determination.7 Nevertheless, certain essential subordi-
nate findings are necessarily implicit in those expressly
made. For example, the logical implication of the trial
court’s finding that the defendant ‘‘rather naively’’ tele-
phoned the plaintiff to arrange electric service for the
farm is that the defendant set up the account in his
own name. Moreover, the finding that the defendant
‘‘mistakenly relied’’ on Chan to pay the bills necessarily
implies that the defendant knew or should have known
he would be held responsible for paying the electric
bills if Chan did not. It is also apparent that the trial
court credited the plaintiff’s records as an accurate
reflection of the communications with the defendant.
Indeed, the trial court’s findings indicate that, except
for those limited instances in which the defendant’s
testimony directly contradicted those records, the court
credited his testimony.8 Finally and significantly, this
is a case in which the defendant did not directly dispute
most of the plaintiff’s evidence. When asked whether
he had made certain statements or undertaken certain
actions reflected in the plaintiff’s evidence, the defen-
dant did not unequivocally deny having said or done
such things. Instead, he most often stated that he could
not recall having done so and effectively conveyed that
it was possible but not likely that he had done so. Thus,
we are not compelled to remand the present case to
the trial court for an articulation of its decision. See,
e.g., State v. Lafferty, 191 Conn. 73, 76–77, 463 A.2d 238
(1983) (articulation necessary where trial court failed to
make requisite finding of fact); Kaplan v. Kaplan, 185
Conn. 42, 46, 440 A.2d 252 (1981) (articulation necessary
where trial court denied motion without providing any
oral or written basis for decision).
Before commencing our analysis of whether the find-
ing of an implied in fact contract was clearly erroneous,
we observe that the defendant has not advanced a claim
that, even if such a contract were found to exist, his
liability thereunder is more limited than that found by
the trial court. Therefore, our review is limited to the
question of whether an implied in fact contract for
electric service ever existed. See footnote 6 of this
opinion.
The record supports the trial court’s finding that the
defendant requested that the plaintiff establish an
account for the provision of electric service to the farm.
The defendant admitted that Chan and his former
employer had asked him to create an account with the
plaintiff. He also conceded that, consistent with the
plaintiff’s internal record, he had made the initial call
in August, 2008, for that purpose. The evidence supports
a conclusion that the defendant telephoned again on
November 26, 2008, and that, as a result of the discus-
sion that ensued, the plaintiff took steps to cancel the
bill for the previous account holder and establish a new
account for the provision of services at the farm. The
plaintiff mailed a letter to the defendant acknowledging
his request for service at the farm’s address. After
receiving the letter and the application for service, the
defendant did not contact the plaintiff to inform it either
that an account should not have been created or that
service should not be provided to the farm.
The record also supports the trial court’s implicit
finding that the defendant knew, or reasonably should
have known, that the account was opened in his name.
The defendant admitted at trial that, as alluded to in
the plaintiff’s record of the August, 2008 telephone call,
he was informed that the plaintiff would not establish
an account in the name of Pedigree Chicks unless it
was registered with the state. There is no evidence that
the defendant had any reason to believe that Pedigree
Chicks had registered at some point thereafter, and
Dupuis testified that the company had never been regis-
tered as of the time of trial. With knowledge of this
impediment, the defendant initiated a second attempt
to open an account in November, 2008.
The evidence firmly supports the conclusion that,
in the course of this communication, the defendant
provided the plaintiff with his personal information,
including his Social Security number, which the plaintiff
would not have elicited unless the defendant had
accepted personal responsibility for the account.9 There
is no evidence that anyone other than the defendant
communicated with the plaintiff with regard to estab-
lishing this account or even that anyone else had this
information to give to the plaintiff. There is no evidence
that similar identifying information was elicited from,
or provided by, the defendant for any other person
or entity. As previously indicated, when the defendant
received the letter and the application for service in
November, 2008, unambiguously showing the account
in his name, he did not contact the plaintiff to inform it
that there had been an error. Significantly, the plaintiff’s
records indicate that the defendant admitted in his call
with Messier that Pedigree Chicks needed a name to
‘‘ ‘borrow’ ’’ so he ‘‘ ‘lent’ ’’ his. The defendant did not
dispute having made this statement; rather, he thought
it unlikely that he would have made it.
There is no dispute that the defendant knew that
the plaintiff was providing electric service to the farm
during the relevant period. The defendant admitted that
he had seen the electricity on during the time that he
worked for Chan and Pedigree Chicks. The defendant
acknowledged that it was his job to establish an account
to continue electric service to facilitate the transition
after June, 2008. The unpaid bills admitted into evidence
establish that the plaintiff provided service to the farm
from June, 2008, until August, 2009. The record of the
November, 2008 telephone call reflects that the defen-
dant knew electric bills had continued to accrue after
Pedigree Chicks took over the farm in June, 2008. The
January, 2009 call initiated by the defendant because
he had not received a billing necessarily implies that
he knew that services were continuing to be provided.
The record of the February, 2009 call also shows that
the defendant believed that the farm was still receiving
service under a specific meter tied to the account.
Finally, the record supports a finding that the parties
reached an agreement under which the defendant
would be billed for services provided to the account in
his name until such time as Chan, Pedigree Chicks, or
Eastern Poultry properly changed the account over to
one of their names. Dupuis testified that the personal
information elicited by the plaintiff in the November,
2008 telephone call would not have been obtained
unless the prospective customer understood that he
would be responsible for obligations on the account.
The letter and the application for service sent in Novem-
ber, 2008, to the defendant put the defendant on notice
that he alone was responsible for payment on the
account by designating him as the sole account holder
and the sole ‘‘Responsible Part[y].’’ His home address
was also designated as the account’s mailing address.
The defendant’s telephone numbers were the sole con-
tact numbers elicited at the time the account was
opened. The defendant’s call in January, 2009, to the
plaintiff asking why he had not received a bill necessar-
ily implies that he was expecting one. Finally, it is even
questionable whether the defendant subjectively
believed that opening the account in his name would not
subject him to liability on the account. The defendant
admitted that he was ‘‘scared’’ when he found out the
account was in his name and that he ‘‘wanted to get
out of it,’’ reactions that belie such a subjective under-
standing.
The defendant’s failure to return a completed applica-
tion for service or to pay the security deposit does not
compel a conclusion that the trial court’s finding of an
implied in fact contract was clearly erroneous. To the
contrary, the January, 2009 telephone call initiated by
the defendant to inquire why he had not received a bill
compels the conclusion that he knew that services were
being rendered and that bills were accruing on the
account, notwithstanding his failure to submit the appli-
cation or pay the security deposit. Moreover, although
the letter stated that a security deposit was required
for the account and requested return of the application,
the letter did not state that such actions were a condi-
tion precedent to service. Indeed, the security deposit
was not due until billed, and no bill ever was issued.
We observe that, if the defendant had returned a signed
and completed application for service, that fact would
establish an express contract, thus eliminating the pos-
sibility of a contract implied in fact. Cf. Janusauskas
v. Fichman, supra, 264 Conn. 804 (‘‘[a] true implied [in
fact] contract can only exist . . . where there is no
express one’’ [internal quotation marks omitted]).
We also are not persuaded that the plaintiff’s violation
of its own policy requiring written notification to a
customer of his obligation to pay for services compels
a different conclusion. The defendant did not assert
a special defense of estoppel. Regardless, there is no
evidence that the defendant knew of any such policy
and, therefore, relied upon it. Moreover, the defendant’s
January, 2009 telephone call asking why he had not
received bills contradicts a lack of notice in this respect.
The mere fact that the bills were sent to the farm
address rather than to the defendant’s home address
is not dispositive on the existence of an implied in fact
contract. As indicated previously, the defendant knew
that the plaintiff was providing services in accordance
with his request. The defendant has asserted no equita-
ble defenses relating to the late notice of the amount
of the bills. Moreover, the January and February, 2009
telephone calls indicate that the defendant had actual
notice that bills were accruing under the account. It is
also unclear who initiated the ‘‘mailing address change’’
on the defendant’s account on the same date as the
January, 2009 telephone call. The confluence of this
change and the defendant’s inquiry about billing, in
the context of Dupuis’ testimony that correspondence
would be sent where the customer directed it, would
logically support one conclusion—that the defendant’s
statements indicated that all correspondence should be
sent to the farm, which was the service address.
Finally, to the extent the defendant’s argument may
be construed as asserting that there was no meeting of
the minds because, subjectively, he never intended to
be responsible for the account, that argument mischar-
acterizes the phrase meeting of the minds. We have
recognized, consistent with the objective theory of con-
tracts, that ‘‘[t]he making of a contract does not depend
upon the secret intention of a party but upon the inten-
tion manifested by his words or acts, and on these
the other party has a right to proceed.’’ Nutmeg State
Machinery Corp. v. Shuford, 129 Conn. 659, 661, 30
A.2d 911 (1943); see also Hess v. Dumouchel Paper Co.,
154 Conn. 343, 348, 225 A.2d 797 (1966). Although ‘‘[t]he
phrase ‘meeting of the minds’ is . . . commonly used
by the courts to determine whether there has been
mutual assent,’’ it has been described as a ‘‘misnomer
because the minds of the parties to a contract need
not, in fact, subjectively meet; rather . . . objective
assent is all that is required.’’ 1 R. Lord, supra, § 3:2, p.
259 n.1; see also Address v. Millstone, 208 Md. App. 62,
82, 56 A.3d 323 (2012), cert. denied, 430 Md. 646, 62
A.3d 731 (2013). The inquiry, therefore, is whether a
reasonable person in the defendant’s position would
have understood that by opening an account in his name
with his personal information, he would be responsible
for paying the electric bills if a third party neither paid
the bills nor took over the account; it is not whether
the defendant subjectively and/or unreasonably
believed that he would never be held responsible for
the bills because he intended for a third party to assume
responsibility for the account.
We acknowledge that an obvious question exists as
to why a part-time, temporary employee of a poultry
business would have agreed to place himself in a posi-
tion where he could be held liable for the farm’s electric
bills, even if, as the trial court found, the defendant
naively believed that Chan would pay the bills. That
question may have been answered if the defendant had
called Chan as a witness or impleaded Chan, Pedigree
Chicks, or Eastern Poultry as a third-party defendant.
For reasons that are not apparent from the record, he
declined to do so. Nonetheless, the trial court was not
bound to determine the defendant’s motivation for
entering into the agreement with the plaintiff.
Our function is not to substitute our own judgment
for that of the trier of fact; instead, we must make every
reasonable presumption in favor of the trial court’s
ruling. See Stevenson Lumber Co.-Suffield, Inc. v.
Chase Associates, Inc., supra, 284 Conn. 216–17. In light
of the record before that court, the Appellate Court
properly concluded that the trial court’s finding that
the defendant ‘‘ ‘rather naively’ ’’ entered into an implied
in fact contract with the plaintiff; Connecticut Light &
Power Co. v. Proctor, supra, 158 Conn. App. 252; garners
sufficient support in the evidence and does not give
rise to a firm and definite conviction that a mistake has
been committed.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, ZARELLA, ESPINOSA and
ROBINSON, Js., concurred.
* December 28, 2016, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Although the date of this document’s creation is not reflected on the
printout, Dupuis testified that it would be ‘‘created at or near the time of
the event,’’ i.e., the date the account was created. That the account was
created on November 26, 2008, the day of the telephone call, is plainly
reflected in the record of the call indicating that the representative had
processed documentation to set up an account and the plaintiff’s letter to
the defendant dated November 26, 2008, reflecting that an account number
had been assigned to the defendant.
2
No such ‘‘order instructions’’ were proffered at trial, or thereafter made
a part of the record.
3
Dupuis was never shown the mailing address change entry in this exhibit
and asked to explain it. When asked well after this exhibit was discussed
as to other entries therein why bills had been sent to the farm address and
not to the defendant’s home address, Dupuis replied that she did not know.
4
This record also notes that the defendant ‘‘understands that we will close
order with it in his name.’’ Dupuis explained that closing an order, in the
plaintiff’s parlance, is synonymous with activating an account. Because it
is unclear how this matter was conveyed to the defendant and it is not
dispositive in our review of the trial court’s ruling, we have disregarded
this statement.
5
Although the record of this conversation identified the caller as ‘‘George,’’
not Gary, the only reasonable conclusion that can be drawn from the evi-
dence, which the trial court implicitly reached, is that this was merely a
scrivener’s error. Dupuis’ testimony established that the plaintiff’s represen-
tatives could not discuss an account with the account holder until he had
discuss the account with a third party unless the account holder had author-
ized the plaintiff to do so. In addition, the summary of the call reflects facts
consistent with the defendant’s unique circumstances. Finally, in a letter
that the defendant wrote to the plaintiff’s collections agency dated seven
days after this telephone call, the defendant referred to a recent call that
he had made to the plaintiff after learning that the bills were in his name,
and the fact that he had helped facilitate Chan’s takeover of ‘‘the flock of
chickens housed on this farm . . . .’’
6
We have most recently described the test for demonstrating the existence
of an implied in fact contract under circumstances wherein the defendant’s
assent to the contract was manifested in the acceptance of performance.
See, e.g., Janusauskas v. Fichman, supra, 264 Conn. 804–805 (implied in
fact contract ‘‘arises where a plaintiff, without being requested to do so,
renders services under circumstances indicating that he expects to be paid
therefor, and the defendant, knowing such circumstances, avails himself of
the benefit of those services’’); see also Vertex, Inc. v. Waterbury, 278 Conn.
557, 574, 898 A.2d 178 (2006). Our earlier case law properly recognized that
the defendant’s assent to the implied in fact contract could be inferred
either when the defendant requests services or when the defendant accepts
services with knowledge that the plaintiff expected to be paid for them.
See, e.g., Summa v. Dereskiawicz, 82 Conn. 547, 550–51, 74 A. 906 (1909);
Weinhouse v. Cronin, 68 Conn. 250, 253, 36 A. 45 (1896).
7
The defendant filed a motion for articulation, which the trial court denied.
He did not seek review of that denial. Although the trial court should have
made a finding as to when the contract was created, as the discussion that
follows demonstrates, the evidence establishes that the defendant made an
offer in the November, 2008 telephone call, and the plaintiff accepted that
offer by opening an account at that time and thereafter providing services in
accordance with the defendant’s request. Given, however, that the defendant
does not independently challenge any specific period of time as not falling
within the scope of the implied in fact contract, the precise date of offer
and acceptance is not determinative.
8
Thus, to the extent that the defendant claimed that he had informed the
plaintiff’s representatives in every conversation that he did not want the
account in his name, the evidence is to the contrary. The fact that the
plaintiff’s records do reflect such a comment in the initial August, 2008
call and the January, 2009 call suggests that the plaintiff’s representatives
understood that such a comment was of significant enough importance that
they should memorialize it when stated. In addition, the personal information
elicited from the defendant in the second call in November, 2008, is wholly
inconsistent with him having made such a statement at that time.
9
As previously noted, the defendant acknowledged that it was possible
that he had given this information to the plaintiff. Although he later specu-
lated that Chan could have given this information to the plaintiff, even
though the defendant had no knowledge whether Chan had all of this infor-
mation, the trial court properly would not base a finding on such speculation.
See State v. Sunrise Herbal Remedies, Inc., 296 Conn. 556, 572, 2 A.3d 843
(2010) (‘‘[a] person who has no personal knowledge about the subject matter
of his or her testimony, i.e., the person is guessing or speculating, is an
incompetent witness as to that matter’’ [internal quotation marks omitted]).