Finocchio Brothers, Inc. v. 587 CTA

317 A.3d 838

226 Conn.App. 351

FINOCCHIO BROTHERS, INC.

v.587 CTA, LLC

(AC 46392)

Appellate Court of Connecticut.

Argued February 6, 2024

Officially Released June 18, 2024

Nicholas J. Adamucci, Stamford, for the appellant (plaintiff).

Laura B. Indellicati, for the appellee (defendant).

Alvord, Seeley and Bear, Js.

BEAR, J.

₃₅₂The plaintiff, Finocchio Brothers, Inc., appeals from the judgment of the trial court, rendered after a court trial, in favor of the defendant, 587 CTA, LLC. On appeal, the plaintiff claims that the court improperly found that the defendant had cancelled the parties’ contract in accordance with the terms set forth therein. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, as set forth in the court’s memorandum of decision, and procedural history are relevant to the resolution of this appeal. "[T]he plaintiff, [a provider of refuse hauling and recycling services] and the defendant, [the owner of an apartment building] executed a two year contract for refuse and recycling services on or about September 12, 2016, and … the contract was automatically renewable for two years thereafter. The contract further stated that, if the defendant desired to terminate its contract with the plaintiff and not exercise its renewal option, it would have to provide notice to the plaintiff by certified mail no less than ninety days prior to [and not more than 180 days ₃₅₃before] the expiration of the two year term." The parties’ contract renewed on September 12, 2018, for another two year period. The parties dispute whether the contract renewed again for the time period of September 12, 2020, to September 12, 2022, as the plaintiff claims, or whether the defendant timely provided notice of its intention to terminate the contract.

On May 17, 2021, the plaintiff commenced the present action. In its revised complaint dated September 15, 2021, the plaintiff alleged a breach of contract claim. Specifically, it contended that the defendant had failed to terminate the contract in accordance with the terms contained therein and, therefore, that the contract had been renewed automatically and remained in effect for the time period of September 12, 2020, until September 12, 2022. The plaintiff further alleged that the defendant "unambiguously stated it will not perform its obligations under the ser- vice contract," and thereby breached the contract, causing the plaintiff to suffer damages. The plaintiff’s revised complaint also set forth a claim of breach of the implied covenant of good faith and fair dealing, as well as three causes of action that the plaintiff described as negligent breach of contract, reckless breach of contract, and intentional breach of contract.

The court, Golger, J., conducted a trial on January 11, 2023. The plaintiff presented two witnesses, Christopher Vigilante, an office manager employed by the plaintiff, and Thomas Finocchio, the president of the plaintiff. Both of the plaintiff’s witnesses testified that they did not recall receiving a cancellation letter sent by certified mail from the defendant. The court summarized the evidence presented by the defendant as follows: "The defense presented testimony through Bryan Dietz, the president of EDG Properties, the parent company of the defendant. Dietz testified that he signed the original contract between the parties and agreed to the ₃₅₄initial two year renewal of that contract. He further testified that he notified the plaintiff in May of 2020 that the defendant did not wish to renew its contract with the plaintiff for an additional two years. He testified that his decision to terminate was based on a desire to consolidate the waste removal needs of [the defendant’s] properties with one company. Dietz testified that he sent the notice of his intention not to renew by certified mail but did not request a return receipt. He, however, did produce an email string demonstrating communications with the plaintiff concerning this issue subsequent to the initial notice having been allegedly sent and he testified that he received a phone call from a representative of the plaintiff acknowledging receipt of his cancellation notice."

As the trier of fact, the court concluded that the testimony of Dietz "was credible notwithstanding the fact that he could not produce a receipt for the certified letter that he sent out. According to Dietz, he had various communications with representatives of the plaintiff after he sent his initial cancellation notice. Those communications were initiated by the plaintiff. The court finds that this testimony serves as confirmation of the plaintiff’s receipt of the initial notice and that the notice was sent well within the time frame for proper cancellation of the contract between the parties." The court then noted that all of the plaintiff’s causes of action were "premised on the proposition that the defendant did not properly cancel the contract at issue [and] having found to the contrary, [rendered] judgment in favor of the defendant on all counts." This appeal followed. Additional facts will be set forth as necessary.

On appeal, the plaintiff claims that the court’s finding that the defendant cancelled the parties’ contract in accordance with the terms set forth therein, which required the defendant to give written notice of termination by certified mail within a certain time frame, was ₃₅₅clearly erroneous. Specifically, it argues that the contract required actual delivery of the termination notice to the plaintiff, and there was insufficient evidence supporting the court’s finding that the notice was actually received by the plaintiff. Additionally, the plaintiff contends that the evidence was insufficient to establish when the defendant sent the termination notice. We conclude that the court’s findings regarding the timing and manner of the defendant’s notice of termination of the parties’ contract were not clearly erroneous and, therefore, the plaintiff’s arguments are without merit.

[1] As an initial matter, we identify the relevant legal principles and our standard of review. This court has observed that, "[i]f a party who has a power of termi- nation by notice fails to give the notice in the form and at the time required by the agreement, it is ineffective as a termination. … One who deviates from the terms and the circumstances specified in the agreement for giving notice … may be regarded as having repudiated the contract, with all the effects of repudiation including giving the injured party a right to damages …. [A] party’s failure to comply with the notice provision in a termination clause … amounts to a material breach of the contract." (Citation omitted; internal quotation marks omitted.) Semac Electric Co. v. Skanska USA Building, Inc., 195 Conn. App. 695, 715, 226 A.3d 1095, cert. denied, 335 Conn. 944, 238 A.3d 17 (2020), and cert. denied, 335 Conn. 945, 238 A.3d 19 (2020); see also Li v. Yaggi, 212 Conn. App. 722, 732, 276 A.3d 976, cert. denied, 345 Conn. 904, 282 A.3d 981 (2022). Whether a contract has been breached is a question of fact. Centerplan Construction Co., LLC v. Hartford, 343 Conn. 368, 419, 274 A.3d 51 (2022); Semac Electric Co. v. Skanska USA Building, Inc., supra, at 705, 226 A.3d 1095.

[2–5] Additionally, we note that, "[i]n a case tried before the court, the trial judge is the sole arbiter of the credibility of witnesses and the weight to be afforded to ₃₅₆specific testimony. … [When] the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision 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 other words, to the extent that the trial court has made findings of fact, our review is limited to deciding whether those findings were 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. … In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling." (Internal quotation marks omitted.) Downing v. Dragone, 216 Conn. App. 306, 316, 285 A.3d 59 (2022), cert. denied, 346 Conn. 903, 287 A.3d 601 (2023); Parrott v....