Palkimas v. Quilli

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Palkimas v. Quilli

RICHARD R. PALKIMAS v. EDGAR
QUILLI ET AL.
(AC 48078)
Alvord, Suarez and Westbrook, Js.

Syllabus

The defendants, subcontractors and owners of a cabinet building business,
appealed from the trial court’s judgment for the plaintiff, a home construc-
tion contractor, for the defendants’ breach of the parties’ contract to build
cabinets for three residential homes in accordance with the contract’s terms.
The defendants claim, inter alia, that the court erred in finding that the
Uniform Commercial Code (UCC) (§ 42a-1-101 et seq.) did not apply to the
parties’ contract. Held:

The trial court correctly determined that the UCC did not govern the plain-
tiff’s action, as the parties’ contract was primarily a contract for services,
namely, the construction and installation of cabinets, not goods, and that
determination was supported by the parties’ written agreement and their
testimony at trial.

The trial court abused its discretion in holding a posttrial hearing in dam-
ages in response to the defendants’ motion to reargue, as the court did not
issue an order indicating that the issues of liability and damages would be
bifurcated, any evidence pertaining to damages should have been presented
at trial, and the court should not have taken additional evidence after it
rendered judgment.

The trial court’s calculation of its damages awards was improper, as one
award was not supported by evidence in the record, a second damages award
was legally erroneous because it was not based on the plaintiff’s reasonable
cost to complete the work, less the unpaid balance remaining on the contract,
and the plaintiff failed to mitigate his damages by not having the project
completed by another subcontractor in the several years since the contract
was executed and the court failed to make any findings explaining what
monetary value was attached to the plaintiff’s failure to mitigate damages.

Argued December 2, 2025—officially released April 21, 2026

Procedural History

Action to recover damages for breach of contract, and
for other relief, brought to the Superior Court in the
judicial district of Stamford-Norwalk and tried to the
court, Menon, J.; judgment for the plaintiff; thereafter,
the court granted the defendants’ motion to reargue
and sua sponte ordered an evidentiary hearing in dam-
ages; subsequently, the court, following a hearing in
Palkimas v. Quilli

damages, awarded certain damages to the plaintiff, and
the defendants appealed to this court. Reversed in part;
further proceedings.
Steven R. Smart, with whom, on the brief, was Daniel
S. Smart, for the appellants (defendants).
Lindy R. Urso, for the appellee (plaintiff).

Opinion

SUAREZ, J. The defendants, Edgar Quilli and Pablo
Pauta,1 appeal from the judgment of the trial court,
rendered after a court trial, in favor of the plaintiff,
Richard R. Palkimas. On appeal, the defendants claim
that the trial court (1) improperly found that the Uniform
Commercial Code (UCC), General Statutes § 42a-1-101
et seq., did not apply to the parties’ contract, (2) abused
its discretion when it ordered a posttrial hearing in dam-
ages in response to the defendants’ motion to reargue,
and (3) improperly calculated its award of damages. We
agree with the defendants’ second and third claims. We
therefore reverse the judgment of the trial court with
respect to its award of damages and remand the case
to the court with direction to recalculate its award of
damages consistent with this opinion. The judgment
otherwise is affirmed.
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. In November, 2014,
the parties entered into a contract for the sale and con-
struction of cabinets for three homes. The plaintiff is a
home construction contractor, and the defendants are
subcontractors who owned and operated a cabinet shop
where they had been engaged in the business of building
custom-made cabinets for residential properties.
Pursuant to the contract, the defendants agreed to
assemble, paint, and install custom-made cabinets, to
hang interior doors, and to perform trim work in each
1
We refer to Quilli and Pauta collectively as the defendants and indi-
vidually by name when appropriate.
Palkimas v. Quilli

of three residential properties that the plaintiff was con-
structing. The contract price totaled $37,500, to be paid
in three installments of $12,500 for the work completed
at each home. The contract specifies that 50 percent of
each $12,500 installment would be paid when the cabinets
for each respective home were assembled and ready to be
painted. The remaining 50 percent of each installment
would be paid by the plaintiff upon completion of the
painting and installation of the cabinets.
“The contract terms specified that the plaintiff would
examine the work that was completed by the defendants
and would need to approve the completed work prior to
paying the defendants the initial 50 [percent] payment.
After the contract was executed, the plaintiff made writ-
ten changes to the contract and provided the defendants
with a copy of the amended written contract.
“The defendants ceased work on the project after com-
pleting the first set of cabinets. The plaintiff has alleged
that the work that was done on the first set of cabinets
did not meet the requirements specified in the contract,
that he repeatedly communicated this to the defendants,
and that the defendants failed to remedy this while also
continuously demanding payment. The defendants have
alleged that they did complete all work on the first set
of cabinets, that the work was adequate under the terms
of the contract, that the plaintiff failed to pay them as
required by the contract, and that this failure to pay
them caused them to cease work on the remainder of
the project.”
On July 23, 2021, the plaintiff commenced the present
action. In August, 2021, the plaintiff filed a one count
complaint against the defendants, alleging breach of
contract. The plaintiff alleged that the cabinets were not
assembled according to the contract terms, and that the
defendants refused to correct the errors in their work
identified by the plaintiff. Specifically, the plaintiff
alleged, inter alia, that (1) molding was missing from
the range hood cabinet; (2) the range hood cabinet was
improperly constructed, including having “screw heads
Palkimas v. Quilli

and plywood end-grain showing on the finished face of the
cabinet” that would not be covered; (3) some cabinets did
not have backs installed; (4) the fireplace cabinetry was
not built according to plan; and (5) many of the drawers
and doors were not properly installed. The defendants
filed an answer and special defense on September 30,
2021, in which they denied the material allegations in
the plaintiff’s complaint and alleged, by way of special
defense, that the plaintiff’s claims were barred by the
applicable statute of limitations. Thereafter, the court
granted the defendants’ request to amend their spe-
cial defenses. In their amended special defenses filed on
September 11, 2023, the defendants alleged that (1) the
action was barred by the four year statute of limitations
in General Statutes § 42a-2-7252 because the contract
was for the sale of goods under the UCC, and (2) should
the UCC not apply, the plaintiff’s claim is barred by
the six year statute of limitations pursuant to General
Statutes § 52-576.3
The court, Menon, J., conducted a trial on September
26, 2023. The plaintiff presented testimony from himself
and Quilli, and submitted various documentary exhib-
its. The plaintiff testified, inter alia, that he incurred
between $8000 and $12,000 in out-of-pocket expenses
for materials related to the project, and that, as a result
of the defendants’ breach, the plaintiff was not able to
complete the project and was paying mortgages and
taxes on the three properties, which he was not able to
rent. At the close of the plaintiff’s case, the defendants’
2
General Statutes § 42a-2-725 provides in relevant part: “(1) An action
for breach of any contract for sale must be commenced within four years
after the cause of action has accrued. . . .”
3
General Statutes § 52-576 (a) provides: “No action for an account, or
on any simple or implied contract, or on any contract in writing, shall
be brought but within six years after the right of action accrues, except
as provided in subsection (b) of this section.”
Although the defendants’ answer and special defenses referenced
General Statutes § 52-577, the statute of limitations applicable to tort
actions, it appears that this was a scrivener’s error. We further note
that it appears that the defendants did not argue at trial, or on appeal
before this court, that the present action was untimely commenced
under § 52-576.
Palkimas v. Quilli

counsel orally moved for a directed verdict, arguing that
the plaintiff did not present any evidence of damages.
The court denied the motion, stating that, “given that
we have heard testimony from . . . the plaintiff that he
had three homes that needed to be completed and that
he had mortgages on them and that the homes were not
able to be rented or sold . . . there [was] some evidence
regarding damages. The exact amount may not have been
specified as yet. But, based on that, I’m going to deny the
motion for a directed verdict at this time.” At the end of
trial, the court directed the parties to file posttrial briefs
and asked the plaintiff to “clarify what damages you
are seeking and how you come up with that figure . . . .”
After the close of evidence, the parties submitted post-
trial briefs. In the plaintiff’s posttrial brief, he argued
that the court should award $28,740.68 in damages plus
statutory interest, which he asserted “was “the total of
[his] out-of-pocket costs and the loss in the form of one
year of property taxes that he paid for a property for
which he could get no valuable use, as a direct result of
the [defendants’] breach.” The plaintiff attached to his
posttrial brief “Exhibit A,” which was a copy of an out-
standing tax bill from the city of Stamford. On January
9, 2024, the defendants filed a motion for permission to
file an objection to the plaintiff’s posttrial brief, arguing
that, in his posttrial brief, the plaintiff improperly had
requested that the court take judicial notice of the alleged
tax bill, which had not been introduced into evidence
during trial. The court granted the defendants’ motion.
On April 26, 2024, the court issued a memorandum of
decision in which it rendered judgment for the plaintiff.
The court first noted that the plaintiff had submitted a
tax bill in his posttrial brief that had not been admitted
into evidence and that it would “disregard this exhibit
from consideration.” The court then concluded that the
UCC did not apply to the parties’ contract, determining
that, “[b]ased on the plain language of the contract, it is
clear that the predominant purpose of the contract is the
construction and installation of custom-made cabinets
based on the specifications listed in the contract. . . .
Palkimas v. Quilli

As such, the contract in this case is a service contract
and is therefore governed by the common law of con-
tracts and not by the [UCC]. Consequently, the statute
of limitations listed in article 2 of the [UCC] does not
apply and the plaintiff’s claim is not time barred.” With
respect to the plaintiff’s breach of contract claim, the
court determined, on the basis of the evidence presented,
that the defendants failed to meet the workmanship
quality requirements specified in the contract, which
the court concluded was a condition precedent to the
plaintiff’s obligation to pay the defendants under the
contract. Accordingly, the court concluded that the plain-
tiff established a breach of contract by the defendants.
With respect to damages, the court stated: “Judgment
may enter for the plaintiff in the amount of $28,740.68
plus statutory interest.” The court did not articulate the
basis for the sum that it awarded.
On May 15, 2024, the defendants filed a motion to
reargue the court’s decision. The defendants argued
that the court’s award of damages was not based on
evidence in the trial record. Specifically, the defendants
argued that the court’s damages award in the amount of
$28,740.68 plus statutory interest “appears to be based
on two values argued in the plaintiff’s brief, neither of
which is based on evidence submitted at trial . . . .” The
defendants noted that the first value “appears to origi-
nate from the plaintiff’s [posttrial] brief, which argued
that the plaintiff was damaged in ‘out-of-pocket damages
totaling approximately $14,500,’ ” and that the second
value of damages was “seemingly based on evidence not
submitted or before the court in the trial of the matter,”
namely, the property tax bill totaling $14,240.68. In
response to the defendants’ motion, the court, sua sponte,
issued an order on May 16, 2024, stating, inter alia: “In
light of the claims raised by the defendants regarding
the court’s determination of an award of damages, the
court shall schedule an evidentiary hearing solely for the
limited purpose of determining the amount of damages.”
The defendants thereafter filed a motion for recon-
sideration of the court’s May 16, 2024 order, arguing
Palkimas v. Quilli

that the court should not hold a posttrial evidentiary
hearing in damages. The defendants asserted that hold-
ing a posttrial evidentiary hearing impermissibly would
allow the plaintiff a second bite at the apple because the
trial was not bifurcated between liability and damages,
and there was no basis to hold a posttrial evidentiary
hearing in damages. The defendants further asserted
that the court should not have ordered that a posttrial
evidentiary hearing take place sua sponte.
The court proceeded to hold a posttrial evidentiary
hearing in damages over the defendants’ objection on
September 3, 2024. Before the hearing commenced,
the court stated that, “in rendering its decision, the
court did have a scrivener’s error in the amount of dam-
ages that was listed. And, for that reason, the court
did grant the motion for reargument that was filed by
the defendant[s].” The defendants’ counsel objected
to the hearing taking place, stating: “I’d like to renew
my objection to this hearing in general. The purpose of
reargument is not to provide either party with a second
bite of the apple, but it’s to reargue on the record before
the court originally, which was the trial that was held
almost a year ago at this point.” The court overruled the
objection, stating that, “because there was an issue raised
in the motion [to reargue] about the issue of damages,
the court felt it would be most appropriate to give both
parties an opportunity to address damages and so did
treat this as a separate damages phase, having already
determined liability.” At the posttrial hearing, the court
took additional testimony from the plaintiff and Quilli
relating to the plaintiff’s damages claim. Subsequently,
the parties filed additional briefs on the issue of damages.
On September 12, 2024, the court issued an order in
which it increased its damages award to $37,625. In
its order, the court made additional findings based on
the evidence presented at the hearing. The court, inter
alia, found that the plaintiff had failed to mitigate his
damages with respect to the first home because he had
not completed the remaining 5 percent of the work on
Palkimas v. Quilli

that home “during the many years since the defendants
breached the agreement” and that this failure to mitigate
was not warranted. The court, however, did not make
any findings as to the monetary value attendant to the
plaintiff’s failure to mitigate damages. The court noted
that, in issuing its updated damages award, it relied on
“evidence presented by the parties at the trial and the
hearing to address damages . . . .” (Emphasis added.)
The court calculated its updated damages award as fol-
lows: “Cost of work to be completed on the three homes:
$25,625. Cost of materials: $12,000. Total damages:
$37,625.” This appeal followed. Additional facts and
procedural history will be set forth as necessary.
I
The defendants’ first claim is that the trial court incor-
rectly determined that article 2 of the UCC, General
Statutes § 42a-2-101 et seq., did not apply to the parties’
contract. Specifically, the defendants argue that the
essence of the transaction between the parties was for
the sale of goods and, therefore, the four year statute
of limitations in § 42a-2-725 bars the plaintiff’s action.
We disagree.
The following additional facts are relevant to our
resolution of this claim. The first section of the parties’
contract, titled “Cabinet Description,” provides that
the defendants would “[b]uild all kitchen cabinetry,
[two] bathroom vanities and [two] bathroom cabinets;
second floor hallway cabinets; fireplace shelving/cabi-
nets; library cabinets (see plans: all woodwork, cabi-
netry and painting are included).” (Emphasis added.)
The parties later added to that section of the contract
that the defendants would also perform “trim” work
for each house.4 The contract further provides that the
project would require the defendants to “[b]uild, paint,
and install all cabinets/moldings according to plans,
[and] [h]ang interior doors.” The section of the contract
4
The contract contains several handwritten addendums that, both
parties testified, were added to the contract by the plaintiff as the
defendants worked on the project.
Palkimas v. Quilli

titled “[m]aterials” specifically provides that “[a]ll wood/
materials [would be] supplied by [the plaintiff] [and] . . .
[a]ll hardware [would be] supplied by [the plaintiff] . .
. .” Paint was also to be supplied by the plaintiff under
the contract. Moreover, under the “Terms & Conditions”
section of the contract, the defendants were obligated to
“construct and paint” all cabinets, with “[a]ll wood and
paint supplied by the [plaintiff].”
At trial, Quilli testified that, under the contract, the
plaintiff “agreed to provide [the defendants] with all
materials; wood, plywood, cabinet materials, paint,
hinges, and [the defendants] were then going to assemble
the cabinets according to certain specifications.” He
further testified that the only items the plaintiff did
not pay for besides the defendants’ labor were “screws,
sandpaper and finishing paint.” Finally, Quilli testified
that the contract price was based on the defendants’
labor, not any materials that the defendants provided.
The plaintiff similarly testified that he had agreed to
“provide all material, three quarter inch plywood, half
inch plywood, all prefinished plywood. Which means
it’s already been clear-coated and sanded. And then raw
material, maple, screws, sandpaper, primer, paint, door
slides, door hinges, trim, which I supplied all of.”
“The court’s application of the UCC to the facts and
circumstances in a given case presents a mixed question
of fact and law over which we exercise plenary review.”
Northeast Builders Supply & Home Centers, LLC v.
RMM Consulting, LLC, 202 Conn. App. 315, 346–47,
245 A.3d 804, cert. denied, 336 Conn. 933, 248 A.3d
709 (2021). Further, “[o]ur analysis of the UCC involves
questions of statutory interpretation over which our
review is plenary. . . . When construing a statute, [o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the meaning
of the statutory language as applied to the facts of [the]
case, including the question of whether the language
actually does apply. . . . In seeking to determine that
Palkimas v. Quilli

meaning, [we first] consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does not
yield absurd or unworkable results, extratextual evidence
of the meaning of the statute shall not be considered.”
(Citation omitted; internal quotation marks omitted.)
Seven Oaks Enterprises, L.P. v. Devito, 185 Conn. App.
534, 545–46, 198 A.3d 88, cert. denied, 330 Conn. 953,
197 A.3d 893 (2018).
To the extent that the defendants’ first claim requires
us to interpret the parties’ contract, we note that,
“[a]lthough ordinarily the question of contract inter-
pretation, being a question of the parties’ intent, is a
question of fact . . . [when] there is definitive contract
language, the determination of what the parties intended
by their . . . commitments is a question of law [over which
our review is plenary]. . . . In ascertaining the contractual
rights and obligations of the parties, we seek to effec-
tuate their intent, which is derived from the language
employed in the contract, taking into consideration the
circumstances of the parties and the transaction. . . . We
accord the language employed in the contract a rational
construction based on its common, natural and ordinary
meaning and usage as applied to the subject matter of
the contract. Furthermore, [i]n giving meaning to the
language of a contract, we presume that the parties did
not intend to create an absurd result.” (Citations omitted;
internal quotation marks omitted.) Id., 542.
Article 2 of the UCC, General Statutes § 42a-2-101 et
seq., applies to “transactions in goods.” General Statutes
§ 42a-2-102 (a). General Statutes § 42a-2-106 provides
that article 2 applies to those contracts “relating to the
present or future sale of goods. . . .” “Goods” is defined in
General Statutes § 42a-2-105 (1) as “all things, including
specially manufactured goods, which are movable at the
time of identification to the contract for sale other than
the money in which the price is to be paid . . . .” Further,
goods “must be both existing and identified before any
Palkimas v. Quilli

interest in them can pass. Goods which are not both exist-
ing and identified are ‘future’ goods. A purported present
sale of future goods or of any interest therein operates
as a contract to sell.” General Statutes § 42a-2-205 (2).
“[T]he term goods is not to be given a narrow construc-
tion but instead should be viewed as being broad in scope
so as to carry out the underlying purpose of the [c]ode
of achieving uniformity in commercial transactions.”
(Internal quotation marks omitted.) Western Dermatol-
ogy Consultants, P.C. v. VitalWorks, Inc., 146 Conn. App.
169, 177, 78 A.3d 167 (2013) (Western Dermatology),
aff’d, 322 Conn. 541, 153 A.3d 574 (2016). The UCC’s
provisions are generally not applicable, however, to ser-
vice contracts. See id., 176.
If a contract is a mixed or hybrid agreement that pro-
vides for both services and goods, courts look to deter-
mine whether the contract’s predominant purpose is to
provide for the sale of goods, or, alternatively, whether
service predominates, and the sale of such items is inci-
dental.5 Id., 178 (“[t]o determine whether a contract
including both goods and services is governed by the
[UCC], the court must determine whether the dominant
factor or essence of the transaction is the sale of the
materials or the services” (internal quotation marks omit-
ted)); see also, e.g., Cacace v. Morcaldi, 37 Conn. Supp.
735, 739–40, 435 A.2d 1035 (1981) (plaintiff’s claims
were based on alleged breach of contract to perform
services in construction of chimney and not on breach
of contract for sale of goods under UCC, reasoning that
term “[g]oods” did not include services performed in
completing chimney intended to be permanently affixed
5
In reviewing this determination, which presents a relatively novel
issue concerning the applicability of the UCC in Connecticut, we may
look to persuasive case law from other jurisdictions. See, e.g., Stan-
dard Structural Steel Co. v. Debron Corp., 515 F. Supp. 803, 809 (D.
Conn. 1980) (“in deciding novel issues under [a]rticle 2 . . . Connecti-
cut [appellate courts] often [look] to well-reasoned opinions in other
jurisdictions”); Western Dermatology Consultants, P.C. v. VitalWorks,
Inc., supra, 146 Conn. App. 176 (looking to persuasive jurisprudence in
determining whether software license was sale of goods under purview
of UCC, when case law concerning that issue was unclear).
Palkimas v. Quilli

to house). “Key factors in making this distinction include
whether the subject of the agreement is declared to be
goods and whether the defendant’s compensation is based
on the price of the goods sold or the provision of related
services. . . . This inquiry depends heavily on the facts
and terms peculiar to that contract.” (Citations omitted;
internal quotation marks omitted.) Alessi Equipment,
Inc. v. American Piledriving Equipment, Inc., 578 F.
Supp. 3d 467, 492 (S.D.N.Y. 2022).
The determination of whether a contract is for the sale
of goods or for services provided is generally considered
to be a question of fact but, “[g]iven a sufficient factual
record a [court] properly may determine as a matter of
law whether an agreement falls under the UCC.” (Internal
quotation marks omitted.) Larkin v. Saber Automotive,
LLC, 736 F. Supp. 3d 193, 200 (S.D.N.Y. 2024). It is
“not whether they are mixed, but, granting that they are
mixed, whether their predominant factor, their thrust,
their purpose, reasonably stated, is the rendition of
service, with goods incidentally involved (e.g., contract
with artist for painting) or is a transaction of sale, with
labor incidentally involved (e.g., installation of a water
heater in a bathroom). . . . The courts also consider it
significant whether the parties’ agreement specifies any
allocation between the costs of materials and services and
the relative costs of the goods to the total contract price.”
(Citations omitted; internal quotation marks omitted.)
John C. Grimberg Co. v. Nudura Corp., 775 F. Supp. 3d
946, 959–60 (D. Md. 2025).
In the present case, we agree with the court that the
plaintiff’s cause of action was essentially one for breach
of a contract for services, namely, the construction and
installation of the cabinets for each property. The court
found that the predominant purpose of the contract
was for the rendition of services, rather than the sale of
goods.6 First, as stated previously, the contract provides
6
We note that the court did not expressly determine that the contract
was a “mixed” or “hybrid” contract, but it applied the predominant
purpose test to conclude that the contract was a services contract. We
conclude that, assuming that the cabinets constituted “goods” under
Palkimas v. Quilli

that the defendants would “[b]uild, paint, and install
all cabinets,” and that all materials would be provided
by the plaintiff. Second, the contract is titled “Cabinet
Project,” rather than a “purchase” or “sale.” See, e.g.,
Gulash v. Stylarama, Inc., 33 Conn. Supp. 108, 111,
364 A.2d 1221 (1975) (concluding that contract was for
services and did not fall under UCC because agreement to
sell and install swimming pool was not labeled as “sale,”
and materials were merely incidental to main purpose of
agreement); Epstein v. Giannattasio, 25 Conn. Supp.
109, 113, 197 A.2d 342 (1963) (concluding that contract
for beauty parlor services was services contract, and stat-
ing that “[b]uilding and construction transactions which
include materials to be incorporated into the structure
are not agreements of sale”); see also In re Trailer &
Plumbing Supplies, 133 N.H. 432, 437, 578 A.2d 343
(1990) (services aspect of contract to install plumbing
predominated when agreement was termed “project”).
Third, the contract price was based on the defendants’
labor in completing the project: the section of the con-
tract concerning the price is titled “[t]otal labor cost
of projects.” (Emphasis added.) Fourth, the plaintiff’s
allegations in his complaint relate to the defendants’
alleged defective services in assembling the cabinets,
rather than to the goods themselves.7 Cf., e.g., KSW
Mechanical Services v. Johnson Controls, Inc., 992 F.
Supp. 2d 135, 142 (E.D.N.Y. 2014) (contract fell under
UCC because allegations in complaint did not mention
services, and courts “may look to the face of the complaint
when considering whether an agreement is subject to the
UCC” (internal quotation marks omitted)).
Essentially, the contract describes the defendants’
obligations as furnishing their labor in order to con-
struct the cabinets, as well as the trim and hanging of
interior doors. The materials that were provided by the
plaintiff to the defendants to build the cabinets clearly
the UCC, the court correctly determined that the predominant purpose
of the parties’ contract was one for the rendition of services.
7
For example, the plaintiff alleges that the defendants “refused to
correct the obvious errors in their work . . . .”
Palkimas v. Quilli

were incidental to the defendants’ labor in performing
the contract. See, e.g., Connie Beale, Inc. v. Plimpton,
Superior Court, judicial district of Stamford-Norwalk,
Docket No. CV-XX-XXXXXXX-S (January 13, 2010) (49
Conn. L. Rptr. 200, 202) (agreement to perform interior
decorating services did not constitute sale of goods, as
predominant purpose of contract was for services, and
noting that transaction that requires incorporation of
materials does not make it agreement for sale, even if
contract “necessarily incorporates the provision of some
materials”); Page v. Hotchkiss, Superior Court, judicial
district of Windham, Docket No. CV-XX-XXXXXXX (Decem-
ber 2, 2003) (36 Conn. L. Rptr. 193, 196) (finding that
essence of transaction was for services when plaintiff pur-
chased defendant’s “work and labor,” plaintiff “supplied
[the defendant] with the material, a software program,
he wanted customized, and the essential consideration
of the transaction was [the defendant’s] hourly labor,”
and concluding that “[t]his purchaser contracted for a
service to be performed and he carried away a tangible
result of that service” (emphasis added)). Further, as
stated previously, even if the finished cabinets were
considered “goods,” the defendants’ performance under
the contract clearly was intended to be for the rendition
of services, specifically, for their labor in constructing
and installing the cabinets. See footnote 5 of this opinion.
Western Dermatology Consultants, P.C. v. Vitalworks,
Inc., supra, 146 Conn. App. 169, which is relied on by
the defendants, is distinguishable. In that case, this
court determined that the UCC applied to the parties’
contract, which concerned the purchase of “software
licenses, hardware, services and concomitant support.”
Id., 176. This court determined that the “support ser-
vices to be provided by [the defendant] via the agreement
were all related to and dependent upon the software and
hardware purchased under the agreement. Without the
sale of the software and hardware, i.e., the goods, there
would have been no need for the concomitant support
services. The essence of th[e] agreement, therefore, was
Palkimas v. Quilli

a ‘transaction in goods’ under § 42a-2-102 and, as such,
the UCC governs th[e] agreement.” Id., 178–79.
Unlike in Western Dermatology, however, the mate-
rials in the present case were provided by the plaintiff,
not the defendants.8 See id., 172–73. Moreover, the
services that were rendered in Western Dermatology
were “concomitant,” or ancillary, to the hardware and
software products that the defendants installed; id., 173;
whereas, in the present case, the defendants’ labor was
their essential obligation under the contract. Accord-
ingly, here, we conclude that “service predominates and
the sale of [the] items is incidental.” (Internal quotation
marks omitted.) Alessi Equipment, Inc. v. American
Piledriving Equipment, Inc., supra, 578 F. Supp. 3d
492. Rather than the defendants merely constructing
the cabinets without any input from the plaintiff, the
parties worked together to construct the custom cabi-
nets to the plaintiff’s specifications, which is reflected
in the contract language, the handwritten addendums
thereto,9 and the parties’ testimony concerning their
8
For the same reason, we conclude that Charter Oak Fire Ins. Co. v.
Yeadon Fabric Domes, LLC, 783 F. Supp. 3d 696, 714 (N.D.N.Y. 2024)
(Charter Oak), is also distinguishable. That case concerned a contract to
provide a recreational air supported sports dome for a college. Id., 703.
As in Western Dermatology, in Charter Oak, the defendant contractor
provided all materials that made up the dome, including the dome itself
and, inter alia, inflation units with furnaces, a remote access thermo-
stat, and a snow sensor. Id., 704–705. The court in Charter Oak first
determined that the dome was movable at the time of identification
of the contract and, second, concluded that the primary objective of
the contract was to supply the dome, not to render services relating to
it. Id., 716. Here, by contrast, the plain language of the parties’ con-
tract provides that the defendants’ services were the primary focus of
their obligations, namely, to construct and install the cabinets per the
plaintiff’s specifications, as well as to perform trim work and to hang
interior doors in each property.
9
For example, under “Project Details,” the contract provides specific
requirements regarding the workmanship of the cabinets and further
provides that, for the defendants to receive the initial 50 percent
deposit payment for each property, the plaintiff’s satisfaction with the
defendants’ construction of the cabinets was required.
Palkimas v. Quilli

course of performance.10 See also, e.g., Incomm, Inc. v.
Thermo-Spa, Inc., 41 Conn. Supp. 566, 570, 595 A.2d
954 (1991) (concluding that contract for production of
brochure did not fall under UCC because “[t]he ‘essence’
of what was being purchased . . . was work, labor and
services rather than materials” and parties would closely
work together in producing brochure). Notably, the par-
ties’ agreement encompassed more than the construc-
tion of the custom cabinets; here, the defendants also
agreed to install the cabinets, to hang interior doors,
and to perform trim work in each house. Therefore, we
conclude that the court correctly determined that the
contract was primarily one for services, not goods, and
that determination was supported by the parties’ written
agreement and their testimony at trial.11 Accordingly,
the UCC does not govern the plaintiff’s action, and we
reject the defendants’ first claim.
II
The defendants’ second claim is that the court abused
its discretion when it conducted a posttrial hearing in
damages in response to their motion for reargument.
The plaintiff’s counsel conceded at oral argument before
this court that the trial court abused its discretion by
ordering a posttrial hearing in damages. We view this
concession as having effectively waived any and all argu-
ments concerning the court’s decision to proceed with
a posttrial hearing in damages. We agree that the court
abused its discretion in holding a posttrial hearing in
damages in response to the defendants’ motion to reargue
10
Quilli, for example, testified at trial that, “every time [the plaintiff]
wanted something new added to the contract . . . [h]e would ask us if we
could do this, and we would agree to it.”
11
Although not binding on this court, we note that the Vermont
Supreme Court, in a case addressing a hybrid contract for goods and
services, similarly concluded that the contract was not subject to the
UCC. Cf., e.g., Openaire, Inc. v. L.K. Rossi Corp., 182 Vt. 636, 637, 940
A.2d 724 (2007) (contract was not subject to UCC when it included more
than simply production of components of retractable swimming pool
enclosure, which was specially manufactured good, but also required
subcontractor to deliver components and construct new, independent
structure on jobsite).
Palkimas v. Quilli

and, therefore, we reverse the court’s judgment with
respect to this claim.
We begin with the standard of review and relevant
legal principles. “[I]n reviewing a court’s ruling on a
motion to open, reargue, vacate or reconsider, we ask
only whether the court acted unreasonably or in clear
abuse of its discretion. . . . When reviewing a decision
for an abuse of discretion, every reasonable presump-
tion should be given in favor of its correctness. . . . As
with any discretionary action of the trial court . . . the
ultimate [question for appellate review] is whether the
trial court could have reasonably concluded as it did. .
. . [T]he purpose of a reargument is . . . to demonstrate to
the court that there is some decision or some principle of
law which would have a controlling effect, and which has
been overlooked, or that there has been a misapprehen-
sion of facts. . . . It also may be used to address . . . claims
of law that the [movant] claimed were not addressed by
the court. . . . [A] motion to reargue [however] is not to
be used as an opportunity to have a second bite of the
apple . . . .” (Internal quotation marks omitted.) Loch
View, LLC v. Windham, 237 Conn. App. 462, 504–505,
A.3d (2026).
In Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 249,
919 A.2d 421 (2007), our Supreme Court concluded that
the trial court improperly allowed the plaintiff to prove
its damages at a posttrial hearing in damages. The court
stated: “When neither party has reason to believe that
the trial has been bifurcated . . . the only function of a
posttrial damages hearing would be to allow the party
claiming damages a second bite at the apple.” Id., 253.
The court further reasoned that neither party reason-
ably anticipated that there would be a separate damages
hearing, and the trial court did not indicate that the
issue of damages would be tried in a separate proceeding.
Id., 253–54; see also, e.g., Expressway Associates II v.
Friendly Ice Cream Corp. of Connecticut, 218 Conn. 474,
476–78, 590 A.2d 431 (1991) (concluding that this court
incorrectly ordered remand of case for retrial on issue of
Palkimas v. Quilli

damages when plaintiff sought injunctive relief and did
not produce evidence of damages at trial).
In the present case, the court did not issue an order
indicating that the issues of liability and damages would
be bifurcated. See, e.g., Carrillo v. Goldberg, 141 Conn.
App. 299, 313–14, 61 A.3d 1164 (2013) (court properly
denied plaintiffs’ motion for hearing on punitive dam-
ages because plaintiffs “cite[d] no evidence in the record
. . . that indicates that either party requested or expected
that the trial would be bifurcated with a posttrial dam-
ages hearing,” and, therefore, court had no authority to
grant plaintiffs’ motion). Neither party filed a motion to
open the evidence, which the court effectively ordered
sua sponte. The plaintiff did not argue before the trial
court, for example, that he did not have adequate time,
through discovery or otherwise, to develop his damages
claim or that he was otherwise prevented from obtain-
ing and presenting evidence at trial. Cf., e.g., Weiss v.
Smulders, 313 Conn. 227, 261–62, 96 A.3d 1175 (2014)
(court did not abuse its discretion in granting defendants’
motion to reargue and reversing its sua sponte decision
to hold posttrial evidentiary hearing in damages when
plaintiffs had ample pretrial opportunity to obtain evi-
dence pertaining to damages). For these reasons, the
court should not have proceeded to a posttrial hearing
in damages.
Although the court stated at the September 3, 2024
hearing that its reasoning for granting the defendants’
motion to reargue its damages award was that it had
made a “scrivener’s error,” the court did not explain the
basis of this alleged error.12 Although trial courts are
vested with discretion to permit reopening of the evi-
dence when “mere inadvertence or some other compelling
circumstances . . . justifies a reopening and no substan-
tial prejudice will occur,” in this case, the court did not
12
Indeed, if the court determined that it had made a scrivener’s error,
it could have granted the motion to reargue and issued a corrected
memorandum of decision. See, e.g., Milazzo v. Schwartz, 88 Conn.
App. 592, 596, 871 A.2d 1040 (2005) (clerical errors may be corrected
at any time).
Palkimas v. Quilli

articulate, and the record does not reveal, that any such
circumstance existed. (Emphasis added.) State v. Free-
man, 132 Conn. App. 438, 446–47, 33 A.3d 256 (2011),
aff’d, 310 Conn. 370, 77 A.3d 745 (2013). Moreover,
cases such as Freeman are distinguishable because they
address a court’s decision to reopen the evidence before
judgment is rendered, whereas, in the present case, the
court reopened the evidence after it rendered judgment.
See Fountain Pointe, LLC v. Calpitano, 144 Conn. App.
624, 641, 76 A.3d 636 (“[i]n the ordinary situation where
a trial court feels that, by inadvertence or mistake, there
has been a failure to introduce available evidence upon
a material issue in the case of such a nature that in its
absence there is serious danger of a miscarriage of justice,
it may properly permit that evidence to be introduced
at any time before the case has been decided” (emphasis
added; internal quotation marks omitted)), cert. denied,
310 Conn. 928, 78 A.3d 147 (2013). Thus, the court’s
posttrial hearing in damages effectively “reopen[ed]
the trial record and [admitted] new evidence [that] the
[p]laintiff could have offered during the trial but did
not.” (Internal quotation marks omitted.) Manzo-Ill v.
Schoonmaker, 188 Conn. App. 343, 363, 204 A.3d 1207,
cert. denied, 331 Conn. 925, 207 A.3d 27 (2019); see also,
e.g., Lynch v. Lynch, 153 Conn. App. 208, 244–45, 100
A.3d 968 (2014) (trial court did not abuse its discretion
in denying motion to reargue when movant did not ask
court to consider overlooked legal authority or claim or
to reconsider misapprehended fact but, instead, sought
reevaluation of facts), cert. denied, 315 Conn. 923, 108
A.3d 1124, cert. denied, 577 U.S. 839, 136 S. Ct. 68,
193 L. Ed. 2d 66 (2015).
Moreover, the plaintiff’s counsel conceded at oral
argument before this court that the trial court should
not have taken additional evidence at a posttrial hearing
in damages and should have relied on only the evidence
originally submitted at trial to determine damages. “Con-
cessions made during oral argument may be properly
considered by the appellate courts in rendering their deci-
sion.” (Internal quotation marks omitted.) In re David
Palkimas v. Quilli

P., 154 Conn. App. 508, 516, 105 A.3d 960 (2014), cert.
denied, 315 Conn. 922, 107 A.3d 959 (2015). Although
the plaintiff asserts that any error was harmless because
the court’s second damages award was based on evi-
dence in the record, we do not agree because the court’s
September 12, 2024 order states explicitly that it was
issuing its $37,625 award on the basis of “the evidence
presented by the parties at the trial and the hearing to
address damages . . . .” (Emphasis added.) We further
conclude, in part III of this opinion, that the court’s
September 12, 2024 damages award was also erroneous.
We agree with the parties that, because the trial was
not bifurcated as to the issues of liability and damages,
any evidence pertaining to damages should have been
presented at trial, and the court should not have taken
additional evidence after it rendered judgment in the
present case. Accordingly, on remand, the court, in recal-
culating damages consistent with this opinion; see part
III of this opinion; should consider only evidence, if any,
that was submitted at the original trial.
III
The defendants’ final claim is that the court improp-
erly calculated its damages awards.13 Specifically, the
defendants assert that the court abused its discretion
when it awarded damages because the plaintiff did not
demonstrate his damages to a reasonable certainty at
trial or at the posttrial hearing in damages, and that the
trial court improperly awarded damages on the basis of
the outstanding contract price. We agree that the court
improperly calculated its damages awards.
“Although the calculation of the amount of damages
is a factual determination, the formula used in making
that calculation is a question of law. . . . Thus, [w]e accord
plenary review to the [trial] court’s legal basis for its
13
Although our resolution of the defendants’ second claim is disposi-
tive of this appeal, we also address the defendants’ third claim because
it is likely to arise on remand. See, e.g., Budlong & Budlong, LLC v.
Zakko, 213 Conn. App. 697, 714 n.14, 278 A.3d 1122 (2022).
Palkimas v. Quilli

damages award. . . . Ray Weiner, LLC v. Connery, 146
Conn. App. 1, 7, 75 A.3d 771 (2013) (It is well settled
that [t]he trial court has broad discretion in determin-
ing damages . . . . When, however, a damages award is
challenged on the basis of a question of law, our review
is plenary. . . .).
“As a general rule, in awarding damages upon a breach
of contract, the prevailing party is entitled to compensa-
tion which will place [him] in the same position [he] would
have been in had the contract been properly performed
. . . . Such damages are measured as of the date of the
breach. . . . For a breach of a construction contract involv-
ing defective or unfinished construction, damages are
measured by computing either (i) the reasonable cost of
construction and completion in accordance with the con-
tract, if this is possible and does not involve unreasonable
economic waste; or (ii) the difference between the value
that the product contracted for would have had and the
value of the performance that has been received by the
plaintiff, if construction and completion in accordance
with the contract would involve unreasonable economic
waste. . . .
“Guarding against excessive compensation, the law of
contract damages limits the injured party to damages
based on his actual loss caused by the breach. . . . The
concept of actual loss accounts for the possibility that
the breach itself may result in a saving of some cost that
the injured party would have incurred if he had had to
perform. . . . In such circumstances, the amount of the
cost saved will be credited in favor of the wrongdoer . . .
that is, subtracted from the loss . . . caused by the breach
in calculating [the injured party’s] damages. . . . It is on
this ground that . . . when an owner receives a defective
or incomplete building, any part of the price that is as
yet unpaid is deducted from the cost of completion that
is awarded to him . . . . Otherwise, the owner would be
placed in a better position than full performance would
have put him, thereby doubly compensating him for the
injury occasioned by the breach.” (Citations omitted;
Palkimas v. Quilli

internal quotation marks omitted.) Vilwell Builders I,
LLC v. Pereira, 237 Conn. App. 45, 60, 349 A.3d 590
(2026); see also 11 J. Perillo, Corbin on Contracts (2005)
§ 60.1, pp. 606–608 (“For a breach by defective construc-
tion, whether it is partial or total, and for a total breach
by refusal and failure to complete the work, the injured
party can usually get a judgment for damages measured
by the reasonable cost of reconstruction and comple-
tion in accordance with the contract, if this is possible
and does not involve unreasonable economic waste . . . .
This measure of damages applies even if the owner does
not complete or repair the structure.” (Emphasis added;
footnotes omitted.))
In the present case, the court awarded damages totaling
$28,740.68 in its April 26, 2024 memorandum of deci-
sion, but it did not explain how it arrived at this award or
what evidence it relied on in reaching that amount. This
figure is the exact amount that the plaintiff requested
to be awarded as damages in his posttrial brief. The
plaintiff, however, submitted additional evidence in
his posttrial brief, namely, a tax bill, that was not in the
trial record, and asserted therein that he had incurred
$14,500 in out-of-pocket expenses for cabinet materials,
even though, at trial, the plaintiff testified that his out-
of-pocket expenses were between $8000 and $12,000. We
therefore conclude that this award is erroneous because
it is not supported by evidence in the record.
We also conclude that the court’s September 12, 2024
damages award was legally erroneous. The court articu-
lated its second damages award as follows: “Cost of work
to be completed on the three homes: $25,625. Cost of
Materials: $12,000. Total Damages: $37,625.” First,
the court based its September 12, 2024 award on evi-
dence that was submitted at trial and at the posttrial
hearing in damages, which we previously concluded
was improper. See part II of this opinion. Second, the
court’s award of $25,625 represented the outstanding
contract price. We conclude that the award of $25,625
was legally erroneous because it was not based on the
Palkimas v. Quilli

plaintiff’s reasonable cost to complete the work, less the
unpaid balance remaining on the contract. See, e.g., Hees
v. Burke Construction, Inc., 290 Conn. 1, 8–9, 961 A.2d
373 (2009) (concluding that attorney trial referee should
have calculated damages in construction contract case
by determining plaintiffs’ reasonable cost to complete
or repair work, less unpaid balance on contract). The
plaintiff offers no authority for the proposition that
the outstanding contract price, which is the amount the
defendants would have received had the contract been
fully performed, is an appropriate measure of damages in
a breach of construction contract action by a contractor
against a subcontractor.14 Finally, the court also found
that the plaintiff failed to mitigate his damages by not
having the project completed by another subcontractor
in the several years since this contract was executed, but
failed to make any findings explaining what monetary
value was attached to his failure to mitigate damages.
See, e.g., United Concrete Products, Inc. v. NJR Con-
struction, LLC, 207 Conn. App. 551, 567, 263 A.3d 823
(2021) (“We have often said in the contracts and torts
contexts that the party receiving a damage award has a
duty to make reasonable efforts to mitigate damages. .
. . What constitutes a reasonable effort under the cir-
cumstances of a particular case is a question of fact for
the trier.” (Internal quotation marks omitted.)). Accord-
ingly, we conclude that the court’s damages awards were
improper.15
The judgment is reversed only as to the trial court’s
calculation of damages and the case is remanded for
further proceedings to recalculate the award of damages
14
Although the plaintiff testified that, because of the defendants’
breach, the property was “just sitting [there]” and the project therefore
could not be completed because he had intended to rent out the proper-
ties, the plaintiff could have introduced evidence of a cost estimate in
the form of expert testimony and/or reports as to the proposed cost of
completion, which the court properly could have considered in deter-
mining damages.
15
The defendants also assert that the court’s September 12, 2024
award of $12,000 for out-of-pocket expenses was speculative because
it was based only on the plaintiff’s testimony, without any supporting
Palkimas v. Quilli

consistent with this opinion; the judgment is affirmed
in all other respects.
In this opinion the other judges concurred.

documentation. The defendants therefore ask this court to direct the
trial court to award the plaintiff only nominal damages.
The court, however, in its April 26, 2024 memorandum of decision,
generally credited the plaintiff’s testimony. See, e.g., Bhatia v. Debek,
287 Conn. 397, 419, 948 A.2d 1009 (2008) (trial court was entitled to
credit plaintiff’s testimony concerning compensatory damages). The
defendants do not argue that the court could not, as a matter of law,
award damages for out-of-pocket expenses that the plaintiff incurred
before the defendants’ breach. See West Haven Sound Development
Corp. v. West Haven, 201 Conn. 305, 328, 514 A.2d 734 (1986) (“[w]e
have no difficulty with the basic idea that a party injured by a breach of
contract may under certain circumstances recover the cost of his reli-
ance as part of his expectation interest”); cf. 3 Restatement (Second),
Contracts § 349, p. 124 (1981) (damages based on reliance interest may
be awarded as alternative to expectations interest for expenditures made
in preparation for performance or in performance). We thus decline to
direct an order of nominal damages and, instead, direct the court to
recalculate its damages award on remand on the basis of the evidence
presented at trial.