Treglia v. Santa Fuel, Inc. , 148 Conn. App. 39 ( 2014 )

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PATRICK A. TREGLIA v. SANTA FUEL, INC.
(AC 34343)
Beach, Alvord and Bear, Js.
Argued October 30, 2013—officially released February 4, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Levin, J.)
Ridgely Whitmore Brown, for the appellant
(plaintiff).
Joel Z. Green, with whom, on the brief, was Linda
Pesce Laske, for the appellee (defendant).
Opinion
ALVORD, J. The plaintiff, Patrick A. Treglia, appeals
from the judgment of the trial court rendered in favor
of the defendant, Santa Fuel, Inc. On appeal, the plaintiff
claims that ‘‘the trial court’s factual findings [are] clearly
erroneous in view of the evidence and pleadings in
the whole record.’’ He contends that these erroneous
factual findings led the court improperly to render judg-
ment in favor of the defendant. We affirm in part and
reverse in part the judgment of the trial court.
The following relevant facts are not in dispute. In
early November, 2007, the plaintiff contacted the defen-
dant regarding possible delivery of home heating oil
to his residence. The plaintiff also submitted a credit
application. On November 2, 2007, the defendant
approved the plaintiff’s credit application and set up
the plaintiff’s account, orally agreeing to a ‘‘cap price
plan’’1 of $2.789 per gallon. The defendant then mailed
the plaintiff a written contract for automatic deliveries
of oil at the agreed upon cap price of $2.789 per gallon.
On November 5, 2007, the defendant delivered 619.9
gallons of oil to the plaintiff’s residence. Some time
later, the plaintiff received a copy of the contract from
the defendant with the $2.789 per gallon cap price.2 The
contract stated it ‘‘must be signed and returned to [the
defendant’s] office on or before 11/06/07 to qualify for
these offers.’’ The plaintiff signed the contract and
returned it to the defendant in an envelope that was
postmarked November 20, 2007.3
Shortly thereafter, the plaintiff received another
envelope from the defendant, postmarked November
23, 2007. Contained within was another 2007 through
2008 pricing options contract now listing a $2.979 cap
price per gallon. Attached to the contract was a ‘‘sticky’’
note informing the plaintiff that ‘‘[the defendant] cannot
accept the old price agreement—it was due back on
11/6/07. Please sign both sides of this agreement.’’
(Emphasis omitted.)
Upon receipt of the new contract, the plaintiff con-
tacted the defendant. The defendant informed the
plaintiff that he could pay a rate of $2.789 for the oil
delivered, but that future deliveries would be at the
new rate of $2.979. The plaintiff signed the new contract
and faxed it to the defendant on November 27, 2007.
In December, 2007, the plaintiff received a past due
notice from the defendant for $1847.28.4 The plaintiff
paid $1728.905 and included a letter, dated December
29, 2007, reminding the defendant that its employee
‘‘told [the plaintiff] that she would honor the quoted
price’’ and that the defendant should ‘‘contact her to
clear up this matter.’’ The plaintiff also wrote that he
has a total capacity of 660 gallons with a new high
efficiency furnace, and he has ‘‘not use[d] one quarter
of that thus far,’’ therefore he ‘‘won’t need a delivery
for some time’’ and that should be included in the defen-
dant’s future delivery calculations. On January 4, 2008,
the defendant delivered 203 gallons of oil to the plaintiff,
and on February 29, 2008, the defendant delivered
another 195.6 gallons to the plaintiff, billing the plaintiff
at a higher rate of $2.979 per gallon for both deliveries.6
The plaintiff did not make payment for either of
these deliveries.
The plaintiff commenced an action against the defen-
dant in small claims court. On April 29, 2009, the defen-
dant moved to transfer the action to the regular docket
to assert a counterclaim, setoff, and special defense. In
the plaintiff’s revised, three count complaint, he alleged
that the defendant (1) did not charge him the agreed
upon price for the first delivery of oil, and therefore he
‘‘[c]laims as damages the difference between the price
that [he] originally agreed to pay and the price that [the
defendant] charged [him]’’; (2) furnished the plaintiff
with more home heating oil than he required; and (3)
‘‘damage[ed] [the plaintiff’s] credit history’’ and violated
‘‘CUTPA [the Connecticut Unfair Trade Practices Act]
for its unfair trade practices,’’ and therefore he is enti-
tled to collect attorney’s fees. The defendant, in its
answer, asserted two special defenses: (1) ‘‘there has
been an accord and satisfaction with respect to the
dispute between the parties regarding the per gallon
price of home heating oil’’; and (2) ‘‘[p]ursuant to the
revised agreement between the parties, the plaintiff
agreed to accept deliveries of home heating oil by auto-
matic delivery from the defendant,’’ and ‘‘[a]t no time
did the plaintiff ever notify the defendant to stop deliv-
ering home heating oil to his home.’’ By way of setoff
and counterclaim, the defendant claimed (1) a balance
due and owing on account of the oil sold and delivered
to the plaintiff subsequent to November 27, 2007, and
(2) that the plaintiff had been unjustly enriched to the
detriment of the defendant. In its prayer for relief, the
defendant claimed damages, attorney’s fees, interest,
and costs.
On December 8, 2011, the matter was tried to the
court. In the court’s order dated December 12, 2011, it
found ‘‘for the defendant on the revised complaint and
. . . for the defendant on the counterclaim . . . .’’
Thereafter, on January 23, 2011, the court issued a sup-
plemental order awarding damages, interest, and rea-
sonable attorney’s fees to the defendant on the
counterclaim ‘‘in the amount of $1448.81, principal bal-
ance; $1016.71 interest; and $478.11 attorney’s fees, for a
total judgment of $2943.63. Postjudgment interest shall
accrue at 5 percent until further order from the court.’’
On February 10, 2012, the plaintiff filed this appeal.
I
The plaintiff claims that the trial court’s factual find-
ings regarding the applicable contract and the agreed
upon price are clearly erroneous in view of the evidence
and pleadings in the whole record. We disagree.
In reviewing the court’s factual findings, we apply
the clearly erroneous standard of review. Petrucelli v.
Travelers Property Casualty Ins. Co., 146 Conn. App.
631, 638, A.3d (2013). ‘‘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 mis-
take has been committed. . . . In making this determi-
nation, every reasonable presumption must be given in
favor of the trial court’s ruling.’’ (Internal quotation
marks omitted.) Bailey v. Lanou, 138 Conn. App. 661,
667, 54 A.3d 198 (2012).
A
Count one of the plaintiff’s revised complaint sounds
in breach of contract and alleges that the defendant did
not charge the plaintiff the agreed upon price for the
first delivery of oil. It is not disputed that the defendant
agreed to accept payment at the lower rate of $2.789
per gallon for the first delivery of 619.9 gallons; the
defendant states in its special defense that ‘‘[i]n Novem-
ber of 2007, the plaintiff and the defendant entered into
an agreement pursuant to which the plaintiff agreed to
pay and the defendant agreed to accept a reduced price
of $2.789 for the home heating oil that had previously
been delivered to the plaintiff with the express under-
standing that the plaintiff would pay to the defendant
a price of $2.979 per gallon for future deliveries of home
heating oil by the defendant to the plaintiff.’’7 It also
is not in dispute that the plaintiff paid the defendant
$1728.90,8 which was credited against his account. The
evidence before the court, however, reveals that despite
the plaintiff making payment for the first delivery in
full at the lower rate, the defendant continued to bill
the plaintiff for an outstanding principal balance of
$118.38 on the first delivery.9 Furthermore, an employee
of the defendant admitted at trial that ‘‘all three deliver-
ies were priced at [$] 2.979 [per gallon].’’ The pleadings
and the record make clear that the parties agreed to
the lower price of $2.789 per gallon for the first delivery
of 619.9 gallons of heating oil, that the defendant did
not charge the plaintiff this lower price, and that the
defendant continuously attempted to recover more than
the agreed upon lower price from the plaintiff.
Nonetheless, the fact that the defendant charged the
plaintiff at rate higher than the contract rate does not
render the court’s finding that the plaintiff ‘‘must pay
for the oil he purchased at the agreed [upon] price’’
clearly erroneous, nor does it impact the court’s judg-
ment in favor of the defendant on this count because
the plaintiff is not entitled to damages. ‘‘The elements
of a breach of contract action are the formation of an
agreement, performance by one party, breach of the
agreement by the other party and damages.’’ (Internal
quotation marks omitted.) Ibar v. Stratek Plastic Ltd.,
145 Conn. App. 401, 410, 76 A.3d 202 (2013). ‘‘The gen-
eral rule in breach of contract cases is that the award
of damages is designed to place the injured party, so
far as can be done by money, in the same position as
that which he would have been in had the contract been
performed.’’ (Internal quotation marks omitted.) RBC
Nice Bearings, Inc. v. SKF USA, Inc., 146 Conn. App.
288, 312, 78 A.3d 195 (2013). The plaintiff claimed as
damages the difference between the price that he
agreed to pay and the amount charged by the defendant.
It is not in dispute that the plaintiff paid the defendant
$1728.90 for the first delivery of 619.9 gallons, and that
this is the agreed upon price. It is also not in dispute
that the plaintiff did not make any subsequent payments
to the defendant. The plaintiff is therefore not entitled
to damages on this count because he has not been
injured; he never paid the defendants in excess of the
contract rate of $2.789 per gallon, and he is in the same
position as he would have been had the contract been
performed. Accordingly, we affirm the judgment of the
trial court as to count one of the plaintiff’s revised com-
plaint.
B
Count two of the plaintiff’s revised complaint alleges
that the defendant furnished the plaintiff with more
home heating oil than he required. It is not in dispute
that the plaintiff signed the contract at the higher rate,
and that he was informed that all subsequent deliveries
would be governed by that rate.10 The terms of the
contract make clear that the ‘‘[c]ustomer agrees that
[the defendant] is the sole supplier of heating oil and
agrees to accept deliveries by automatic delivery from
[the defendant].’’11 (Emphasis added.) On the basis of
the record, we conclude that it was not clearly errone-
ous for the trial court to find that the plaintiff ‘‘must
pay for the oil he purchased at the agreed [upon] price’’
because ‘‘the plaintiff signed up for automatic delivery
and, while he wrote the defendant on December 29,
2007, that ‘I won’t need a delivery for some time,’ he
did not specify what amount of time was ‘some time,’
never terminated his contract for automatic delivery
and never told the defendant not to deliver fuel.’’
(Emphasis added.) Accordingly, the findings related to
count two of the plaintiff’s revised complaint were not
clearly erroneous.
C
Count three of the plaintiff’s revised complaint
alleges that the defendant violated CUTPA.12 The plain-
tiff has provided no analysis or legal authority to sup-
port a challenge to the court’s finding on this count. It
is well established that ‘‘[w]e are not required to review
claims that are inadequately briefed. . . . We consis-
tently have held that [a]nalysis, rather than mere
abstract assertion, is required in order to avoid aban-
doning an issue by failure to brief the issue properly.
. . . [F]or this court judiciously and efficiently to con-
sider claims of error raised on appeal . . . the parties
must clearly and fully set forth their arguments in their
briefs. . . . [A]ssignments of error which are merely
mentioned but not briefed beyond a statement of the
claim will be deemed abandoned and will not be
reviewed by this court.’’ (Internal quotation marks omit-
ted.) Russell v. Russell, 91 Conn. App. 619, 634–35, 882
A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92(2005). Accordingly, we decline to reach this claim.
II
In its counterclaim, the defendant claimed ‘‘a balance
due and owing’’ on account of the home heating oil
sold and delivered to the plaintiff ‘‘[s]ubsequent to
November 27, 2007,’’ together with interest, attorney’s
fees, and costs. The defendant also claimed that the
plaintiff had been unjustly enriched to the detriment of
the defendant. The court awarded the defendant princi-
pal balance, interest, and attorney’s fees. The plaintiff
asserts that the amount awarded was clearly erroneous
and ‘‘was not the subject of any computation or recon-
ciliation.’’ ‘‘The determination of damages involves a
question of fact that will not be overturned unless it is
clearly erroneous.’’ (Internal quotation marks omitted.)
Ed Lally & Associates, Inc. v. DSBNC, LLC, 145 Conn.
App. 718, 733, 78 A.3d 148 (2013). Our review of the
record reveals that the court’s calculation of damages is
clearly erroneous.13 Accordingly, we reverse the court’s
judgment as to the counterclaim and remand the case
for a new hearing regarding the proper amount of
damages.
The judgment on the defendant’s counterclaim is
reversed and the case is remanded for a new hearing
regarding the proper amount of damages thereon; the
judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
According to the defendant’s 2007 through 2008 pricing options, ‘‘[t]he
‘[c]ap’ is the maximum price per gallon [a customer] will pay through May
31, 2008. If [the defendant’s] [d]aily [p]osted [p]rice falls below [the] [c]ap
on the day of delivery, [the customer] pay[s] the lower price per gallon.
Requires automatic delivery.’’
2
There is significant debate as to when the plaintiff received the contract
in the mail. The postage meter date on the envelope is November 5, 2007.
The plaintiff claims that he received the envelope several days later than
that date, due to the incorrect zip code in the address.
3
The defendant’s mail stamp indicates that it received this contract on
November 21, 2007.
4
The defendant initially charged the plaintiff at a rate of $3.209 per gallon
for the first delivery, which it claimed was the retail price of the day on
November 5, 2007, for a total of $1989.88. We note, however, that the ticket
that the defendant’s delivery driver gave to the plaintiff upon delivery of
the oil states ‘‘today’s price’’ as $3.159, which an employee of the defendant
testified at trial ‘‘was the retail price for customers that weren’t on any
plans as of that date.’’ The defendant subsequently credited the $1989.88
total by $142.60, which is the source of the $1847.28 bill. Based upon this
adjusted price, the defendant charged the plaintiff an adjusted rate of $2.9799
per gallon for the first delivery.
5
This amount represents the original per gallon price of $2.789 for the
619.9 gallons delivered.
6
The principal balance of the second delivery was $604.94, and it was
$582.89 for the third delivery.
7
‘‘It is bedrock law that an admission in an answer to an allegation in a
complaint is binding as a judicial admission. . . . A judicial admission dis-
penses with the production of evidence by the opposing party as to the fact
admitted, and is conclusive upon the party making it.’’ (Citations omitted,
internal quotation marks omitted.) Hartford v. McKeever, 139 Conn. App.
277, 304, 55 A.3d 787 (2012), cert. granted on other grounds, 307 Conn. 956,
59 A.3d 1191 (2013).
8
See footnote 5 of this opinion.
9
The only credit by the defendant on the plaintiff’s account for this first
delivery is $142.60, which brought the amount listed by the defendant as
remaining due to $1847.28. As we previously have established, based upon
this adjusted price, the rate per gallon was $2.9799, which was higher than
then $2.979 rate of the second contract.
10
In his complaint, the plaintiff states that he ‘‘called and spoke to [the
defendant’s employee] and explained the situation, and she told me to pay
the $2.789 for the oil that was delivered, but that I would have to pay the
higher price for future deliveries. I signed the new contract and faxed it in
on December 27, 2007.’’ It is well settled that ‘‘[f]actual allegations contained
in pleadings upon which the case is tried are considered judicial admissions
and hence irrefutable as long as they remain in the case.’’ (Internal quotation
marks omitted.) New London County Mutual Ins. Co. v. Bialobrodec, 137
Conn. App. 474, 481, 48 A.3d 742 (2012).
11
There is some debate over whether the plaintiff checked off any of the
contract’s price plan options: the original contract, which the plaintiff faxed
to the defendant, did not have any of the options checked, but the fax
receipt provided by the defendant shows a check mark by the cap price
plan option. Nevertheless, all three price plan options required automatic
deliveries.
12
See General Statutes § 42-110a et seq.
13
The court awarded damages to the defendant in the amount of $1448.81
for the principal balance, which was the amount that the defendant orally
claimed at the January 23, 2011 hearing as being due and owing as of
February 29, 2008. Although neither the court nor the defendant provided
a basis for their calculation of this amount, the record reveals that it is the
full amount of the first delivery of 619.9 gallons at the erroneous rate of
$3.209 per gallon, plus the amounts of the second and third deliveries at
the higher contract rate of $2.979 per gallon, minus the plaintiff’s payment
of $1728.90. The mathematics of this calculation is as follows: $1989.88 +
$604.94 + $582.89 - $1728.90 = $1448.81. As we have previously established,
the defendant applied a credit of $142.60 against the first delivery, and
ultimately agreed to accept the lower rate of $2.789 per gallon for the
first delivery of 619.9 gallons. Neither modification to the plaintiff’s bill
is correctly captured in the court’s calculation of the principal balance.
Accordingly, the calculation of the principal balance is clearly erroneous,
as are the interest charges and attorney’s fees that result therefrom.