Finnochio Brothers, Inc. v. 587 CTA, LLC

************************************************
The “officially released” date that appears near the
beginning of an opinion is the date the opinion will be
published in the Connecticut Law Journal or the date it
is released as a slip opinion. The operative date for the
beginning of all time periods for the filing of postopin-
ion motions and petitions for certification is the “offi-
cially released” date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports. In the event
of discrepancies between the advance release version of
an opinion and the version appearing in the Connecti-
cut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports, the latest
version is to be considered authoritative.
The syllabus and procedural history accompanying
an opinion that appear in the Connecticut Law Jour-
nal and subsequently in the Connecticut Reports or
Connecticut Appellate Reports are copyrighted by the
Secretary of the State, State of Connecticut, and may
not be reproduced or distributed without the express
written permission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
************************************************
Page 0 CONNECTICUT LAW JOURNAL 0, 0

2 ,0 0 Conn. App. 1
Finocchio Brothers, Inc. v. 587 CTA, LLC

FINOCCHIO BROTHERS, INC. v. 587 CTA, LLC
(AC 46392)
Alvord, Seeley and Bear, Js.

Syllabus

The plaintiff, a provider of refuse hauling and recycling services, sought to
recover damages from the defendant, the owner of an apartment build-
ing, for, inter alia, breach of contract. The plaintiff claimed that the
defendant failed to terminate the contract in accordance with the notice
provision set forth therein and, therefore, that the contract had been
renewed automatically for a two year period. The defendant claimed
that it timely provided notice of its intention to terminate the contract.
Following a court trial, the trial court rendered judgment for the defen-
dant, from which the plaintiff appealed to this court. Held that the trial
court’s finding that the defendant properly cancelled the contract within
the time frame required by the parties’ contract was not clearly errone-
ous: the trial court expressly credited the testimony of D, the president
of the parent company of the defendant, and found that his testimony
should be accorded greater weight than other evidence introduced at
trial; moreover, on the basis of D’s testimony and statements he made
in emails to the plaintiff, the court found that the defendant sent its
cancellation notice to the plaintiff by certified mail as required and the
plaintiff received this notice within the time frame to terminate the
parties’ contract, and it is well established that 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.

Argued February 6—officially released June 18, 2024

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 Stamford-Norwalk, and
tried to the court, Golger, J.; judgement for the defen-
dant, from which the plaintiff appealed to this court.
Affirmed.

Nicholas J. Adamucci, for the appellant (plaintiff).
Laura B. Indellicati, for the appellee (defendant).
0, 0 CONNECTICUT LAW JOURNAL Page 1

0 Conn. App. 1 ,0 3
Finocchio Brothers, Inc. v. 587 CTA, LLC

Opinion

BEAR, J. The 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 judg-
ment of the trial court.
The following facts, as set forth in the court’s memo-
randum of decision, and procedural history are relevant
to the resolution of this appeal. ‘‘[T]he plaintiff, [a pro-
vider of refuse hauling and recycling services] and the
defendant, [the owner of an apartment building] exe-
cuted a two year contract for refuse and recycling ser-
vices on or about September 12, 2016, and . . . the
contract was automatically renewable for two years
thereafter. The contract further stated that, if the defen-
dant 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
before] the expiration of the two year term.’’ The par-
ties’ contract renewed on September 12, 2018, for
another two year period. The parties dispute whether
the contract renewed again for the time period of Sep-
tember 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
Page 2 CONNECTICUT LAW JOURNAL 0, 0

4 ,0 0 Conn. App. 1
Finocchio Brothers, Inc. v. 587 CTA, LLC

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 obliga-
tions under the service 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, reck-
less breach of contract, and intentional breach of con-
tract.

The court, Golger, J., conducted a trial on January
11, 2023. The plaintiff presented two witnesses, Christo-
pher Vigilante, an office manager employed by the plain-
tiff, and Thomas Finocchio, the president of the plain-
tiff. 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 summa-
rized the evidence presented by the defendant as fol-
lows: ‘‘The defense presented testimony through Bryan
Dietz, the president of EDG Properties, the parent com-
pany of the defendant. Dietz testified that he signed the
original contract between the parties and agreed to the
initial 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 defen-
dant’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
0, 0 CONNECTICUT LAW JOURNAL Page 3

0 Conn. App. 1 ,0 5
Finocchio Brothers, Inc. v. 587 CTA, LLC

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 vari-
ous communications with representatives of the plain-
tiff 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 termina-
tion by certified mail within a certain time frame, was
clearly erroneous. Specifically, it argues that the con-
tract required actual delivery of the termination notice
to the plaintiff, and there was insufficient evidence sup-
porting the court’s finding that the notice was actually
received by the plaintiff. Additionally, the plaintiff con-
tends 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.
As an initial matter, we identify the relevant legal
principles and our standard of review. This court has
Page 4 CONNECTICUT LAW JOURNAL 0, 0

6 ,0 0 Conn. App. 1
Finocchio Brothers, Inc. v. 587 CTA, LLC

observed that, ‘‘[i]f a party who has a power of termina-
tion 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 repudi-
ated 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 pro-
vision in a termination clause . . . amounts to a mate-
rial breach of the contract.’’ (Citation omitted; internal
quotation marks omitted.) Semac Electric Co. v. Skan-
ska 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, 705.
Additionally, we note that, ‘‘[i]n a case tried before
the court, the trial judge is the sole arbiter of the credi-
bility of witnesses and the weight to be afforded to
specific testimony. . . . [When] 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 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
0, 0 CONNECTICUT LAW JOURNAL Page 5

0 Conn. App. 1 ,0 7
Finocchio Brothers, Inc. v. 587 CTA, LLC

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. Colon,
213 Conn. App. 375, 387, 277 A.3d 821 (2022); see also
Kohl’s Dept. Stores, Inc. v. Rocky Hill, 219 Conn. App.
464, 485, 295 A.3d 470 (2023).
In the present case, the defendant presented testi-
mony from Dietz, the president of the parent company
of the defendant. Dietz explained that he wanted to
terminate the parties’ contract to consolidate the refuse
and recycling service for the defendant’s property with
another provider. Dietz recalled that he was aware of
the limited time frame for cancellation, and he therefore
reviewed the termination language of the parties’ con-
tract several times. He also referenced his intention
to avoid the financial consequences of breaching the
contract that would result from the failure to comply
with the contract’s terms regarding cancellation.
Dietz further testified that he sent the cancellation
letter, dated May 13, 2020, via certified mail from the
Darien post office.1 He could not recall the exact date
that he had mailed it, but he did testify on redirect
examination that he sent it in May, 2020, which was
within the time frame for cancellation of the parties’
contract. Dietz then stated that he received a phone
call from a representative of the plaintiff one or two
weeks after he sent the termination letter. This repre-
sentative acknowledged the receipt of the letter and
1
Dietz specifically testified: ‘‘I recall going to the Darien post office [where]
I handle my correspondence through and I was kicking myself that I did
not bring a copy to staple the receipt to, the little yellow or green slip.’’
Dietz then explained that he made efforts to locate the receipt for the
certified letter, but was not able to locate it, either in his office or in the
defendant’s archives.
Page 6 CONNECTICUT LAW JOURNAL 0, 0

8 ,0 0 Conn. App. 1
Finocchio Brothers, Inc. v. 587 CTA, LLC

inquired about the defendant’s ‘‘dissatisfaction and how
they could correct it.’’2 Dietz informed the plaintiff’s
representative that the only reason for ending the con-
tract was the defendant’s intention to consolidate its
refuse and recycling services.
Dietz subsequently spoke with a representative of
the plaintiff in either June or July of 2020 regarding the
removal of the plaintiff’s containers from the defen-
dant’s property. In an effort to facilitate the removal of
these containers, Dietz ceased payment to the plaintiff.3
In September of 2020, he sent a letter to the plaintiff,
stating that it was the defendant’s ‘‘second attempt’’
to terminate the contract. Dietz also indicated that he
emailed the plaintiff on September 22, 2020, in which
he referenced his prior communications with the plain-
tiff.4 In his subsequent email on September 24, 2020,
Dietz declared: ‘‘As I wrote before, someone reached
out to me from [the plaintiff] after my first notice in
May, but never followed up.’’ (Emphasis added.)
The trial court expressly credited Dietz’ testimony
and found that it ‘‘should be accorded greater weight
2
Dietz testified as follows: ‘‘So, I remember receiving the call because I
was working with a contractor on my house. The call came in saying that
they were from [the plaintiff] and that they received the letter and they
wanted to know . . . what was my dissatisfaction and how they could
correct it. And I said that it was simply that I wanted to consolidate but—
and I had no other reason. And they said that someone else would be
calling me.’’
3
Dietz subsequently testified that he ‘‘withheld payment for the last two
to three invoices so that [he] would get some attention’’ from the plaintiff
and that he eventually paid the invoices in October, 2020.
4
This email stated: ‘‘I am writing to you because I have tried more than
once to terminate my contract with [the plaintiff] and have not gotten any
response. Attached is a second notice [a letter dated September 12, 2020,
requesting information on coordinating the last date of service and collection
of the plaintiff’s containers] that was recently mailed. I had hoped that there
would be a professional response on [the plaintiff’s] side, but I haven’t
heard from anyone other than an initial call from someone who promised
a follow up call, which never happened.’’ (Emphasis added.)
0, 0 CONNECTICUT LAW JOURNAL Page 7

0 Conn. App. 1 ,0 9
Finocchio Brothers, Inc. v. 587 CTA, LLC

than other evidence introduced in this proceeding.’’
(Emphasis added.) We emphasize that ‘‘[i]t is well estab-
lished that [i]n 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. . . . As
trier of fact, the court was free to accept or reject, in
whole or in part, the testimony offered by either party.’’
(Citation omitted; internal quotation marks omitted.)
Jalbert v. Mulligan, 153 Conn. App. 124, 135, 101 A.3d
279, cert. denied, 315 Conn. 901, 104 A.3d 107 (2014);
see also Companions & Homemakers, Inc. v. A&B
Homecare Solutions, LLC, 348 Conn. 132, 148, 302 A.3d
283 (2023); Hebrand v. Hebrand, 216 Conn. App. 210,
223, 284 A.3d 702 (2022). Additionally, this court will
make every reasonable presumption in favor of the trial
court’s factual findings and does not examine the record
to determine whether it could have reached a different
conclusion. See Clark v. Quantitative Strategies
Group, LLC, 224 Conn. App. 224, 236 n.11, 311 A.3d
732 (2024); see also Commissioner of Transportation
v. ACP, LLC, 221 Conn. App. 708, 722, 302 A.3d 936
(2023). On the basis of Dietz’ testimony and the state-
ments he made in his emails to the plaintiff, the court
found that the defendant sent its cancellation notice to
the plaintiff by certified mail and the plaintiff received
this notice within the time frame to terminate the par-
ties’ contract. We conclude, therefore, that the court’s
finding that the defendant properly cancelled the con-
tract within the time frame required by the parties’
contract was not clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.