Bruno v. Whipple , 186 Conn. App. 299 ( 2018 )

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LISA BRUNO v. REED WHIPPLE ET AL.
(AC 40282)
Lavine, Keller and Elgo, Js.
Syllabus
The plaintiff sought to recover damages from the defendant H Co. for, inter
alia, breach of contract, in connection with its construction of a new
home for the plaintiff and B, her then husband. The plaintiff’s breach
of contract claim was predicated on H Co.’s failure to provide her
with invoices on a biweekly basis and written change orders regarding
modifications to the contract, which she claimed caused a diminution
of her marital estate, specifically, a certain financial account that had
been used as a source of funds for the construction of the new residence.
The jury returned a verdict in favor of H Co. on the breach of contract
claim, indicating in interrogatories that H Co. had breached its contract
with the plaintiff but that the plaintiff had waived that breach. After the
trial court denied the plaintiff’s motion to set aside the verdict, the
plaintiff appealed to this court, which concluded that the trial court
improperly denied the motion to set aside the verdict in favor of H Co.
on the breach of contract count concerning the jury’s verdict as to
waiver. This court 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. Following a hearing in damages on remand, in which
the trial court held that the plaintiff failed to prove that she was entitled
to any damages, the plaintiff appealed to this court, claiming that the
trial court exceeded the scope of the remand order and improperly
concluded that she failed to prove actual damages. Held:
1. The plaintiff could not prevail on her claim that the trial court improperly
found that she failed to prove actual damages resulting from H Co.’s
breach of the construction contract, which was based on her claim that
had H Co. not breached the terms of its contract, the dissipated funds
would have remained in the financial account earning interest and would
ultimately have been distributed to the plaintiff in the dissolution of her
marriage to B, and that she would have received a larger alimony award
in her divorce; that court’s finding that the plaintiff did not prove that
her marital estate was reduced by H Co.’s breach of contract was not
clearly erroneous, as the evidence in the record indicated that the funds
in question were expended on construction costs of the residence, that
the residence retained its value throughout the dissolution proceeding
and that, following the dissolution of the plaintiff’s marriage, she was
awarded an equal share of the net proceeds of the sale of the residence,
and the plaintiff’s claims were based on conjecture and speculation as
to what the dissolution court would have awarded her if the facts had
been different.
2. The failure of the trial court to award nominal damages and to render
judgment in favor of the plaintiff on her breach of contract count did
not constitute reversible error; although the trial court’s directive for
judgment to be entered in favor of the defendant and against the plaintiff
on the plaintiff’s breach of contract count was improper in light of the
prior jury verdict in favor of the plaintiff on that count, and the plaintiff
was entitled to an award of nominal damages despite her failure to
establish actual damages at the hearing in damages, the trial court’s
directive did not constitute reversible error, as the general rule that an
appellate court will not reverse a judgment of the trial court for a mere
failure to award nominal damages applied, and the case did not warrant
an exception to that rule.
Argued September 14—officially released December 4, 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 judg-
ment in part and remanded the case for further proceed-
ings; 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 ren-
dered judgment in accordance with the verdict, from
which the plaintiff appealed to this court; subsequently,
the court, Doherty, J., issued an articulation of its deci-
sion; 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 hear-
ing in damages, the court, Truglia, J., rendered judg-
ment 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 Heri-
tage Homes Construction Co., LLC).
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 concern-
ing 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 con-
spiring with Bruno to launder his money through the
project, and thus to deprive her of fair, just and reason-
able 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 dissolu-
tion 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, how-
ever, 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 con-
struction 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 evi-
dence 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 plain-
tiff’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 support-
ing an inference of waiver, and the claim that the plain-
tiff knowingly relinquished her contractual rights was
not fully litigated at trial without objection by the plain-
tiff. 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 docu-
mentary evidence. In her testimony, the plaintiff con-
firmed 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 mort-
gage loan; the remaining construction costs were paid
with funds from a Charles Schwab financial account
(Schwab account).5 In December, 2005, Bruno com-
menced a dissolution action against the plaintiff. As
part of that dissolution proceeding, the plaintiff and
Bruno on July 10, 2006, entered into a written stipulation
to complete the construction of the residence. The resi-
dence 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 dis-
solved 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 dis-
solution 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] mar-
riage 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 resi-
dence]. . . . 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 plain-
tiff.’’ (Citation omitted.) The court also rejected the
plaintiff’s ancillary claim that, but for the alleged dimi-
nution 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 if facts
had been different in her dissolution of marriage
action.’’ (Emphasis in original.) The court therefore con-
cluded that the plaintiff had ‘‘failed to prove by a prepon-
derance of the evidence that she is entitled to any
damages on her breach of contract claims . . . .’’ For
that reason, the court stated that ‘‘judgment enters in
favor of [the defendant] and against the plaintiff.’’7 From
that judgment, the plaintiff now appeals.
I
The plaintiff claims that the court improperly found
that she failed to prove actual damages resulting from
the defendant’s breach of the construction contract.
We disagree.
It is well established that ‘‘[t]he trial court has broad
discretion in determining damages. . . . The determi-
nation of damages involves a question of fact that will
not be overturned unless it is clearly erroneous. . . .
[W]hether the decision of the trial court is clearly erro-
neous . . . involves a two part function: where the
legal conclusions of the court are challenged, we must
determine whether they are legally and logically correct
and whether they find support in the facts set out in
the memorandum of decision; where the factual basis
of the court’s decision is challenged we must determine
whether the facts set out in the memorandum of deci-
sion are supported by the evidence or whether, in light
of the evidence and the pleadings in the whole record,
those facts are clearly erroneous. . . . In a case tried
before a court, the trial judge is the sole arbiter of the
credibility of the witnesses and the weight to be given
specific testimony. . . . On appeal, we will give the
evidence the most favorable reasonable construction
in support of the verdict to which it is entitled. . . . A
factual finding may be rejected by this court only if it
is clearly erroneous. . . . A finding is clearly erroneous
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.) Gia-
netti v. Norwalk Hospital, 304 Conn. 754, 780, 43 A.3d
567 (2012). In addition, we note that the plaintiff bears
the burden of proving the extent of the damages suf-
fered in a breach of contract action. Naples v. Keystone
Building & Development Corp., 295 Conn. 214, 224, 990
A.2d 326 (2010).
As the plaintiff acknowledges in her principal appel-
late brief, her theory of damages pertains to the dissipa-
tion of marital funds in the Schwab account. Following
a hearing at which it received both documentary and
testimonial evidence, the trial court found that the funds
withdrawn from that account all were ‘‘paid to [the
defendant] to satisfy invoices’’ regarding the construc-
tion of the residence. The court further found that ‘‘[t]he
plaintiff introduced no evidence . . . to contradict this
finding.’’ On our review of the record, we cannot say
that those findings are clearly erroneous.
The court further found that the newly constructed
residence ‘‘retained the value of the cash [from the
Schwab account] expended in its construction and
remained a significant asset of the marital estate avail-
able for distribution to the plaintiff.’’ That finding too
is substantiated by the evidence in the record before
us. In its March 17, 2008 memorandum of decision,
which was admitted into evidence as a full exhibit at
the hearing in damages, the dissolution court found
that the total cost of construction of the residence was
$7,746,462.08 and that the fair market value of that
property at the time of dissolution was $7,900,000. The
plaintiff provided no evidence that the property lost
any value between the time that the funds from the
Schwab account were expended on construction costs
and the date of dissolution. As the dissolution court
noted in its memorandum of decision, the plaintiff, at
the time of dissolution, averred that ‘‘the value of this
property is $7,777,433’’—approximately $31,000 more
than the total cost of construction.
On appeal, the plaintiff claims that, if the defendant
had not breached the terms of its contract, (1) ‘‘the
dissipated funds would have remained safely in the
Schwab account earning interest and would ultimately
have been required to be distributed in [the] plaintiff’s
divorce’’ and (2) she would have received a larger ali-
mony award due to the existence of those additional
funds in the Schwab account. (Emphasis omitted.)
Those contentions are entirely speculative. See Leisure
Resort Technology, Inc. v. Trading Cove Associates,
277 Conn. 21, 35, 889 A.2d 785 (2006) (award of damages
may not be based on conjecture); Narumanchi v. DeS-
tefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005)
(‘‘[s]peculation and conjecture have no place in appel-
late review’’). As the trial court aptly noted in its memo-
randum of decision, the plaintiff’s contentions are little
more than conjecture as to what the dissolution court
would have awarded her ‘‘if facts had been different’’
in her dissolution proceeding.
Moreover, the plaintiff’s claim that the dissolution
court would have altered its financial orders had funds
from the Schwab account not been expended on con-
struction costs without her approval overlooks the fact
that the plaintiff raised that very issue in the dissolution
proceeding. The record before us indicates that she
filed a ‘‘Motion for Order—Pendente Lite’’ on January
17, 2006, in which she alleged in relevant part that
‘‘[s]ince the commencement of this [dissolution] action
[Bruno] has continued with the construction of the new
[residence], unilaterally expending large sums of mari-
tal assets . . . without the knowledge and consent of
the [plaintiff].’’ She therefore requested an order prohib-
iting Bruno from making any further expenditures with-
out her written consent. Months later, the plaintiff
entered into a stipulation with Bruno to complete the
construction of the new residence. The plaintiff subse-
quently filed a motion for contempt regarding Bruno’s
alleged noncompliance with the terms of that stipula-
tion. In its decision, the dissolution court specifically
found that ‘‘there has been no evidence presented that
the amount spent [on construction costs] constituted
a dissipation of marital assets.’’
The record also indicates that the plaintiff filed a
second motion for contempt with the dissolution court
predicated on an alleged violation of the automatic
order prohibiting the sale, transfer, or disposal of mari-
tal property. See generally Practice Book § 25-5 (b)
(1). In that motion, the plaintiff alleged that Bruno had
violated that order since the commencement of the
dissolution by refusing ‘‘to keep [her] involved in the
construction’’ of the new residence and by ‘‘unilaterally
[making] decisions to spend huge sums of money which
were never previously contemplated, discussed or
approved by the [plaintiff].’’8 (Emphasis in original.)
The dissolution court denied that motion for contempt
on March 17, 2008—the very same day that it dissolved
the marriage and entered its financial orders. The disso-
lution court, therefore, was well aware of the plaintiff’s
allegations regarding the payment of construction costs
during the pendency of the divorce. Indeed, that court,
in fashioning its financial orders, awarded the plaintiff
the lump sum of $300,000 from the Schwab account
prior to dividing the remainder equally between her
and Bruno. That order may well have been issued in
response to the plaintiff’s repeated claims regarding the
unauthorized payment of construction costs from the
Schwab account. On the record before us, we cannot
conclude, without resort to conjecture, that the dissolu-
tion court would have granted the plaintiff a greater
property distribution or alimony award had the funds
from the Schwab account not been expended on the
construction costs in question.
Furthermore, the plaintiff did not adduce evidence
at the hearing in damages that her claimed damages
were the foreseeable result of the defendant’s failure
to provide her with invoices on a biweekly basis and
written change orders regarding modifications to the
contract. As our Supreme Court has explained, ‘‘[i]n an
action founded . . . on breach of contract . . . the
recovery of the plaintiffs [is] limited to those damages
the defendant had reason to foresee as the probable
result of the breach at the time when the contract was
made.’’ Neiditz v. Morton S. Fine & Associates, Inc.,
199 Conn. 683, 689 n.3, 508 A.2d 438 (1986); see also
Meadowbrook Center, Inc. v. Buchman, 149 Conn. App.
177, 188–89, 90 A.3d 219 (2014) (‘‘under Connecticut
law, the causation standard applicable to breach of
contract actions asks . . . whether [the plaintiff’s dam-
ages] were foreseeable to the defendant and naturally
and directly resulted from the defendant’s conduct’’).
The evidence in the record does indicate that the
funds in question from the Schwab account were
expended on construction costs of the new residence,
as the trial court found. The evidence further indicates
that the new residence retained its value throughout
the dissolution proceeding and that, following the disso-
lution of her marriage to Bruno, the plaintiff was
awarded an equal share of the net proceeds of the sale
of that residence. We therefore conclude that the court’s
finding that the plaintiff ‘‘has not proven . . . that the
marital estate was reduced by [the defendant’s] breach
of contract’’ is not clearly erroneous. Accordingly, the
court properly determined that the plaintiff had not
met her burden in demonstrating entitlement to her
claimed damages.
II
The plaintiff also contends that the court committed
reversible error by exceeding the scope of the remand
order when it directed judgment to enter ‘‘in favor of
the defendant and against [the] plaintiff’’ on the breach
of contract count of the complaint.9 We agree that the
court’s directive was improper in light of the prior jury
verdict in favor of the plaintiff on that count. Guided
by the precedent of our Supreme Court, we nonetheless
conclude that the court’s directive does not constitute
reversible error under the facts of this case.
‘‘Determining the scope of a remand is a matter of
law because it requires the trial court to undertake a
legal interpretation of the higher court’s mandate in
light of that court’s analysis. . . . Because a mandate
defines the trial court’s authority to proceed with the
case on remand, determining the scope of a remand is
akin to determining subject matter jurisdiction. . . .
We have long held that because [a] determination
regarding a trial court’s subject matter jurisdiction is a
question of law, our review is plenary. . . .
‘‘Well established principles govern further proceed-
ings after a remand by this court. In carrying out a
mandate of this court, the trial court is limited to the
specific direction of the mandate as interpreted in light
of the opinion. . . . This is the guiding principle that
the trial court must observe. . . . The trial court should
examine the mandate and the opinion of the reviewing
court and proceed in conformity with the views
expressed therein. . . . The trial court cannot adjudi-
cate rights and duties not within the scope of the
remand. . . . It is the duty of the trial court on remand
to comply strictly with the mandate of the appellate
court according to its true intent and meaning. No judg-
ment other than that directed or permitted by the
reviewing court may be rendered . . . .’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) State v. Brundage, 320 Conn. 740, 747–48, 135
A.3d 697 (2016).
In the present case, the jury completed interrogato-
ries indicating that it found that the defendant ‘‘had
breached its contract’’ with the plaintiff. Bruno v. Whip-
ple, supra, 162 Conn. App. 196. Yet those completed
interrogatories also demonstrate that the jury never
determined the amount of damages sustained by the
plaintiff as a result of that breach. Rather, after finding
that the plaintiff had waived her breach of contract
claim, the jury proceeded to enter a verdict in favor of
the defendant.10 In light of that procedural history, this
court explained 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 defen-
dant] and the remaining determination is damages
resulting from that breach.’’ (Emphasis added.) Id., 208.
Put simply, the plaintiff’s damages in this case never
were determined by the jury.
Because the jury’s verdict in favor of the plaintiff on
the breach of contract count was ‘‘wholly separable’’
from the jury’s improper verdict on the special defense
of waiver, the court concluded that ‘‘limiting the remand
to a hearing in damages on the breach of contract ver-
dict does not work injustice in this case.’’ Id. The court
thus remanded the case ‘‘for a hearing in damages on
the jury’s verdict in favor of the plaintiff on her breach of
contract claim.’’ Id., 216; accord Channing Real Estate,
LLC v. Gates, 326 Conn. 123, 132, 161 A.3d 1227 (2017)
(‘‘[w]hen no question of liability remains . . . the
appropriate scope of the remand is limited to a hearing
in damages’’).
‘‘[T]he underlying purpose of a hearing in damages
is to assist the trial court in determining the amount
of damages to be awarded.’’ (Internal quotation marks
omitted.) Catalina v. Nicolelli, 90 Conn. App. 219, 222–
23, 876 A.2d 588 (2005). When the liability of a defendant
has been established, ‘‘the plaintiff’s burden at a hearing
in damages is limited to proving that the amount of
damages claimed is derived from the injuries suffered
and is properly supported by the evidence.’’ Murray v.
Taylor, 65 Conn. App. 300, 335, 782 A.2d 702, cert.
denied, 258 Conn. 928, 783 A.2d 1029 (2001). In addition
to the precise quantum of damages, a plaintiff in a
breach of contract action must prove that the damages
‘‘were foreseeable to the defendant and naturally and
directly resulted from the defendant’s conduct.’’ Mead-
owbrook Center, Inc. v. Buchman, supra, 149 Conn.
App. 188–89.
Accordingly, while a defendant may not challenge
the issue of its liability at a hearing in damages, it never-
theless remains free to contest the issues of both the
amount of the plaintiff’s breach of contract damages
and whether those damages derive from the defendant’s
conduct. It is well established that the ‘‘[d]etermination
of damages necessarily contemplates a finding that the
breach was the cause of the damages claimed.’’ West
Haven Sound Development Corp. v. West Haven, 207
Conn. 308, 314, 541 A.2d 858 (1988); see also National
Market Share, Inc. v. Sterling National Bank, 392 F.3d
520, 525 (2d Cir. 2004) (‘‘[c]ausation is an essential
element of damages in a breach of contract action’’);
Calig v. Schrank, 179 Conn. 283, 286, 426 A.2d 276
(1979) (‘‘[i]t is hornbook law that to be entitled to dam-
ages in contract a plaintiff must establish a causal rela-
tion between the breach and the damages flowing from
that breach’’); Meadowbrook Center, Inc. v. Buchman,
supra, 149 Conn. App. 186 (‘‘proof of causation . . .
properly is classified as part and parcel of a party’s
claim for breach of contract damages’’); 3 Restatement
(Second), Contracts § 346 (1981) (in order to receive
anything other than nominal damages, party must prove
both that breach of contract ‘‘caused’’ loss and amount
of loss).
For that reason, a trial court does not violate public
policy or otherwise undermine the validity of a prior
determination of liability by permitting the defendant
at a hearing in damages to offer evidence disputing
the existence of damages resulting from its breach of
contract. As our Supreme Court explained years ago,
even when liability on the part of a defendant has been
established, ‘‘[i]t does not follow that the plaintiff is
entitled to a judgment for the full amount of the relief
claimed. The plaintiff must still prove how much of the
judgment prayed for in the complaint he is entitled to
receive.’’ United National Indemnity Co. v. Zullo, 143
Conn. 124, 130, 120 A.2d 73 (1956); see also Mackin v.
Mackin, 186 Conn. 185, 190, 439 A.2d 1086 (1982) (‘‘[t]o
sustain an award of substantial damages requires a
showing of an actual, as opposed to a mere technical
injury’’).
Following a hearing at which the plaintiff was
afforded ample opportunity to present evidence rele-
vant to the issues at hand, the court in the present case
found that she had not met her burden in demonstrating
that the defendant’s conduct, in failing to furnish
invoices on a biweekly basis and written change orders,
caused the diminution of her marital estate as alleged
in the operative complaint. In part I of this opinion, we
concluded that this finding was not clearly erroneous.
The court, therefore, properly declined to award the
actual damages claimed by the plaintiff.
It nevertheless remains that the jury found that the
defendant ‘‘had breached its contract with the plaintiff’’;
Bruno v. Whipple, supra, 162 Conn. App. 196; thereby
establishing the liability of the defendant. Id., 208. When
a plaintiff can demonstrate a technical breach of con-
tract, but no pecuniary damages resulting therefrom,
the plaintiff ‘‘is entitled to nominal damages . . . under
its breach of contract claim.’’11 Lydall, Inc. v. Rusch-
meyer, 282 Conn. 209, 254, 919 A.2d 421 (2007). That
precept is consistent with the rule that ‘‘[w]here the
[trier of fact] has found that the plaintiff has suffered
a technical legal injury, the plaintiff is entitled to at
least nominal damages.’’ Lyons v. Nichols, 63 Conn.
App. 761, 768, 778 A.2d 246, cert. denied, 258 Conn. 906,
782 A.2d 1244 (2001); see also Wasko v. Manella, 87
Conn. App. 390, 400 n.8, 865 A.2d 1223 (2005) (‘‘[n]omi-
nal damages are recoverable where there is a breach
of a legal duty or the invasion of a legal right and no
actual damages result or where, as here, such damages
are not proven’’); News America Marketing In-Store,
Inc. v. Marquis, 86 Conn. App. 527, 535, 862 A.2d 837
(2004) (‘‘[i]f a party has suffered no demonstrable harm
. . . that party may be entitled . . . to nominal dam-
ages for breach of contract’’), aff’d, 276 Conn. 310, 885
A.2d 758 (2005). Because the defendant’s liability was
established by the jury verdict in favor of the plaintiff on
the breach of contract count, the plaintiff was entitled
to an award of nominal damages despite her failure to
establish actual damages at the hearing in damages.
The defendant in this appeal has provided no authority
to the contrary. The trial court, therefore, erroneously
directed judgment to enter in favor of the defendant in
this case.
The remaining question is whether that improper
determination constitutes reversible error. In answer-
ing that query, we are mindful that our Supreme Court
repeatedly has applied the general rule that it ‘‘will not
reverse’’ a judgment of the trial court ‘‘for a mere failure
to award nominal damages.’’ (Internal quotation marks
omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255
Conn. 20, 37, 761 A.2d 1268 (2000); see also Riccio v.
Abate, 176 Conn. 415, 418–19, 407 A.2d 1005 (1979);
Sessa v. Gigliotti, 165 Conn. 620, 622, 345 A.2d 45 (1973);
Went v. Schmidt, 117 Conn. 257, 259–60, 167 A. 721
(1933). This court has adhered to that precedent. See,
e.g., NPC Offices, LLC v. Kowaleski, 152 Conn. App.
445, 458, 100 A.3d 42 (2014), rev’d on other grounds,
320 Conn. 519, 131 A.3d 1144 (2016); Rossman v.
Morasco, 115 Conn. App. 234, 243 n.7, 974 A.2d 1, cert.
denied, 293 Conn. 923, 980 A.2d 912 (2009); Froom
Development Corp. v. Developers Realty, Inc., 114 Conn.
App. 618, 635 n.10, 972 A.2d 239, cert. denied, 293 Conn.
922, 980 A.2d 909 (2009); Hughes v. Lamay, 89 Conn.
App. 378, 386 n.7, 873 A.2d 1055, cert. denied, 275 Conn.
922, 883 A.2d 1244 (2005); DeVito v. Schwartz, 66 Conn.
App. 228, 237, 784 A.2d 376 (2001).
The rationale for that general rule against reversal is
that ‘‘[n]ominal damages mean no damages at all. They
exist only in name, and not in amount.’’ (Internal quota-
tion marks omitted.) Beattie v. New York, N. H. & H.
R. Co., 84 Conn. 555, 559, 80 A. 709 (1911); accord
DeVito v. Schwartz, supra, 66 Conn. App. 237 (‘‘nominal
damages . . . imply the smallest appreciable quantity
. . . with one dollar being the amount frequently
awarded. The law . . . does not concern itself with
trifles . . . and a judgment for [the] plaintiff will not
be reversed on appeal for a failure to award nominal
damages, even though [the] plaintiff is entitled to
recover nominal damages as a matter of law’’ [internal
quotation marks omitted]). Furthermore, the Supreme
Court has applied that general rule in cases involving
liability for a technical breach of contract. As the court
explained in Waicunas v. Macari, 151 Conn. 134, 139,
193 A.2d 709 (1963), ‘‘[e]ven though the failure of the
defendants to do the work might be considered a techni-
cal breach of the contract, the plaintiff has suffered no
actual damage, and no injustice was done to him when
he was denied recovery . . . . The failure to award
nominal damages would not justify a reversal of the
judgment.’’
Like the present case, Riccio v. Abate, supra, 176
Conn. 415, involved a hearing in damages following a
finding of liability on the part of the defendants. As our
Supreme Court noted, ‘‘[t]he issue of liability had been
previously decided . . . and, therefore, the [finder of
fact] had before [it] only a hearing in damages. The
defendants were found liable by the [finder of fact] and
the effect of their liability was to establish the fact that
a technical legal injury had been done by them to the
plaintiff, and this entitled the plaintiff to at least nominal
damages.’’ Id., 418–19. The court nevertheless recog-
nized the general rule that it will not reverse a judgment
of the trial court ‘‘for a mere failure to award nominal
damages.’’ Id., 419. Because the case did not warrant
an exception to that rule, the court concluded that ‘‘it
was not reversible error that the plaintiff was not
awarded nominal damages’’; id.; despite the fact that
judgment had been rendered in favor of the defendants
by the court. Id., 417. That logic applies equally to the
present case. We therefore conclude that the failure of
the trial court to award nominal damages and render
judgment in favor of the plaintiff on her breach of con-
tract count does not constitute reversible error.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Reed Whipple, who at all relevant times was the owner of Heritage
Homes Construction Company, LLC, also was named as a defendant in the
plaintiff’s complaint. Prior to trial, the court rendered summary judgment
in favor of Whipple on the breach of contract and breach of the implied
covenant of good faith and fair dealing counts of the operative complaint,
which judgment this court affirmed. See Bruno v. Whipple, 138 Conn. App.
496, 504–513, 54 A.3d 184 (2012). A jury thereafter returned a verdict in
favor of Whipple on the third and final count against him, which alleged a
violation of the Connecticut Unfair Trade Practices Act, General Statutes
§ 42-110a et seq. The trial court subsequently denied the plaintiff’s posttrial
motion to set aside that verdict, and this court affirmed the propriety of
that determination on appeal. See Bruno v. Whipple, supra, 162 Conn.
App. 209–12.
The present appeal does not involve any claim against Whipple. Rather,
it pertains only to the breach of contract count against Heritage Homes
Construction Company, LLC. For that reason, we refer to Heritage Homes
Construction Company, LLC, as the defendant in this appeal.
2
The plaintiff also alleges that the court improperly denied her request
for an award of attorney’s fees pursuant to General Statutes § 42-150bb. We
decline to review that inadequately briefed claim. See Brady-Kinsella v.
Kinsella, 154 Conn. App. 413, 420 n.6, 106 A.3d 956 (2014), cert. denied, 315
Conn. 929, 110 A.3d 432 (2015). We further conclude that the plaintiff’s
claims that the court violated her constitutional rights to procedural and
substantive due process during the hearing in damages are unfounded and
do not merit substantive discussion.
3
The rescript to that decision states in full: ‘‘The judgment is reversed
only as to the jury’s verdict on the special defense of waiver and the case
is remanded for a hearing in damages on the jury’s verdict in favor of the
plaintiff on her breach of contract claim. The judgment is affirmed in all
other respects.’’ Bruno v. Whipple, supra, 162 Conn. App. 216.
4
At the hearing in damages, a copy of the construction contract at issue
was admitted into evidence. That contract does not specify any price.
Instead, it provides in relevant part that the plaintiff and Bruno agree ‘‘to
pay for all work, labor, and materials’’ provided by the defendant.
5
At the hearing in damages, the plaintiff testified that ‘‘the bulk of our
liquid [marital] assets’’ had been held in the Schwab account.
6
It is undisputed that approximately $1.1 million of that total cost was
expended on land acquisition.
7
The judgment file likewise states in relevant part that ‘‘judgment is
entered in favor of [the defendant] on [the breach of contract count] of
the complaint.’’
8
At oral argument before this court, the plaintiff acknowledged that she
had raised the issue of Bruno’s allegedly improper expenditure of funds
from the Schwab account during the dissolution proceeding.
9
In her appellate brief, the plaintiff also claims that the court (1) ‘‘violated
public policy,’’ (2) effectively opened and set aside the jury’s verdict, (3)
violated the doctrines of res judicata and collateral estoppel, and (4) ‘‘lacked
jurisdiction to hear evidence or argument of [the defendant’s] new
unplead[ed] theories.’’ Resolution of those intertwined claims is subsumed
by our analysis of her principal contention that the court exceeded the
scope of the remand order.
10
The fourth interrogatory on the jury interrogatory form stated: ‘‘We find
that [the plaintiff] waived the [b]reach of [c]ontract by [the defendant].’’
The jury foreperson checked the ‘‘Yes’’ box under that interrogatory. The
jury interrogatory form then instructed: ‘‘If Yes, go to [the defendant’s]
Verdict Form.’’ In accordance with that instruction, the jury foreperson
signed the defendant’s verdict form, which stated: ‘‘In this case, we the jury
find the issues in favor of [the defendant].’’
Had the jury answered the fourth interrogatory in the negative, the form
directed it to proceed to a fifth interrogatory, which asked the jury to specify
‘‘the amount of [c]ompensatory [d]amages as against [the defendant].’’
11
Nominal damages have been defined as ‘‘a trivial sum of money awarded
to a litigant who has established a cause of action but has not established
that he is entitled to compensatory damages.’’ 4 Restatement (Second), Torts
§ 907, p.462 (1979). ‘‘Nominal damages are usually fixed at one cent, one
dollar, or some similar small amount. . . . While no exact standard has
been fixed as to what amount should be given as nominal damages, it must
be insubstantial, a few cents or dollars.’’ (Internal quotation marks omitted.)
Hartford v. International Assn. of Firefighters, Local 760, 49 Conn. App.
805, 816 n.7, 717 A.2d 258, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998).