Carvalhos Masonry, LLC v. S&L Variety Contractors, LLC

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CARVALHOS MASONRY, LLC v. S AND L VARIETY
CONTRACTORS, LLC
(AC 39565)
Sheldon, Keller and Eveleigh, Js.

Syllabus

The plaintiff sought to recover damages from the defendant for breach of
contract. After the trial court had denied the plaintiff’s posttrial motion
for leave to amend its complaint, in which it sought a reduced amount
of damages on the basis of proposed amendments to certain allegations
in its original complaint, the court wrote a letter to the parties, stating
that while it was drafting its memorandum of decision, it had reviewed
the plaintiff’s motion for leave to amend the complaint, that the parties
should revisit the plaintiff’s suggestion in the proposed amended com-
plaint that the matter be resolved for $35,005, and that if the parties
agreed on that sum the court would render judgment in that amount.
The plaintiff thereafter agreed to settle the matter for the $35,005 sum,
but the defendant declined to do so. The court then issued its memoran-
dum of decision and rendered judgment for the plaintiff in the amount
of $35,005, from which the defendant appealed to this court. Held that
the trial court should have disqualified itself from deciding the issues
of liability and damages in the plaintiff’s action for breach of contract
following the court’s failed attempt to convince the parties to stipulate
to judgment in the amount of $35,005; although the record did not reflect
that the court was biased in fact, it was clear that the court impermissibly
adjudicated the issues of liability and damages after it recommended
that the parties stipulate to judgment in the amount of damages to which
the plaintiff claimed it was entitled in its proposed amended complaint,
and even though this case did not involve the dangers often associated
with a settlement judge presiding over the trial, such as a potential
revelation during settlement discussions that would not be admissible
at trial and could prejudice a party, and this court did not find that the
defendant’s rejection of the court’s suggested settlement resulted in
some retributive sanction or the incurrence of judicial displeasure, to
eliminate any appearance of impropriety and to avoid subtle suspicions
of prejudice or bias, the trial court should have disqualified itself from
deciding the issues presented, and a new trial was warranted.
Argued December 7, 2017—officially released March 13, 2018

Procedural History

Action to recover damages for breach of contract,
and for other relief, brought to the Superior Court in
the judicial district of Waterbury and tried to the court,
Hon. Barbara J. Sheedy, judge trial referee; judgment
for the plaintiff, from which the defendant appealed to
this court. Reversed; new trial.
William J. Ward, for the appellant (defendant).
Nicole D. Dorman, for the appellee (plaintiff).
Opinion

SHELDON, J. In this action stemming from a con-
struction contract, the defendant, S&L Variety Contrac-
tors, LLC, appeals from the judgment of the trial court
rendered after a bench trial in favor of the plaintiff,
Carvalhos Masonry, LLC. The defendant claims that the
trial court should have disqualified itself from deciding
the issues of liability and damages when it sent a corre-
spondence to both parties, after the trial but before it
rendered its decision, suggesting that they stipulate to a
judgment for a specific dollar amount, the exact amount
that the court ultimately awarded to the plaintiff. We
agree with the defendant and, accordingly, reverse the
judgment of the trial court and remand the case for a
new trial.1
The following procedural history is relevant to our
consideration of this appeal. The plaintiff commenced
this action by service of the writ of summons and com-
plaint on January 6, 2014. The plaintiff alleged that
the defendant breached a contract in failing to pay for
materials and services rendered in connection with the
installation of a cinder block structure at 199 Laze Lane
in Southington. The defendant denied the plaintiff’s alle-
gations and asserted four special defenses, which the
plaintiff denied.
This case was tried to the court on April 19, 2016.
On April 28, 2016, the plaintiff filed a motion for leave
to amend its complaint to conform to the proof submit-
ted at trial. The plaintiff sought to amend two of the
five paragraphs of its complaint. In paragraph 4 of its
original complaint, the plaintiff alleged: ‘‘Plaintiff fully
performed its obligations under its agreement with the
defendant.’’ It sought to amend that paragraph to allege:
‘‘Plaintiff performed the work which was completed in
July, 2012.’’ The plaintiff also sought to amend para-
graph 5 of its original complaint, which alleged that the
defendant failed to ‘‘fully pay for the materials and
services rendered’’ in the amount of ‘‘$41,960.71.’’ It
sought to amend that paragraph to allege that the defen-
dant failed to ‘‘fully pay the balance due for the materials
and services rendered’’ in the amount of ‘‘$35,005.’’ The
defendant objected to the plaintiff’s motion for leave
to amend its complaint on the ground that the proposed
amendments did not, in fact, conform to the evidence
adduced at trial. On May 16, 2016, the court sustained
the defendant’s objection. The parties filed posttrial
briefs on May 19, 2016.
On July 21, 2016, the court faxed a letter to both
parties, which stated: ‘‘I’ve taken a ‘second look’ at [the
plaintiff’s] motion for leave to amend complaint dated
4/27/16 and denied by me on 5/16/16. That second look
came as I was writing a memorandum of decision.
‘‘It occurs to me the parties ought to revisit [the
plaintiff’s] suggestion [that] the matter be resolved for
the sum referenced in paragraph 5 of that 4/27/16 pro-
posed amended complaint. If the parties are agreed on
the sum referenced therein, I will enter judgment in
that amount. This assumes of course none of the ‘relief’
([in paragraphs] 1-5) would be granted.’’2 The court
ordered the parties to respond to its inquiry by July 26,
2016. On July 25, 2016, the plaintiff responded to the
court that it would agree to the court’s suggested settle-
ment amount, $35,005. After the defendant’s attorney
secured a one week extension to respond to the court’s
inquiry because he was on vacation, the defendant, on
August 1, 2016, declined to stipulate to the judgment
proposed by the court. Eight days later, on August 9,
2016, the court issued a written memorandum of deci-
sion in which it rendered judgment in favor of the plain-
tiff in the amount of $35,005. This appeal followed.
The defendant claims on appeal that the court should
have disqualified itself from deciding the issues of liabil-
ity and damages following its failed attempt to convince
the parties to stipulate to judgment in the amount of
$35,005. We agree.
‘‘When . . . a judge engages in [discussions] looking
to the settlement of a case . . . in which he will be
called upon to decide the issues of liability and damages
. . . [i]t is . . . impossible to avoid questions as to
whether the judge can disregard . . . matters dis-
closed in the conference . . . and whether a prelimi-
nary judgment, formed at the conference and
predicated on unsubstantiated claims of proof, may
have some subtle influence on a final judgment after a
full hearing. . . . It is inevitable that the basis is laid
for suspicion, no matter how unfounded or unjustified
it may be, and that failure to concur in what the judge
may consider an adequate settlement may result in the
imposition, upon a litigant or his counsel, of some retrib-
utive sanction or the incurrence of judicial displea-
sure. . . .
‘‘When a civil case is to be tried before a jury, partici-
pation by the trial judge in pretrial settlement discus-
sions is not likely to be raised as an issue for the purpose
of disqualification of the judge. When [however] a judge
engages in a pretrial settlement discussion in a court
case, he should automatically disqualify himself from
presiding in the case in order to eliminate any appear-
ance of impropriety and to avoid subtle suspicions of
prejudice or bias. Canons 2, 3 C (1) [now rule 2.11],
Code of Judicial Conduct. If, however, all parties agree
on the record, and stipulate that the judge may preside,
then the infirmity is cured. See General Statutes § 51-
39 (c) (When any judge is disqualified to act in any
proceeding before him, he may act if the parties thereto
consent in open court.).’’ (Citation omitted; internal
quotation marks omitted.) Timm v. Timm, 195 Conn.
202, 204, 487 A.2d 191 (1985).
‘‘The standard for appellate review of whether the
facts require disqualification is whether the court’s dis-
cretion has been abused. . . . Any conduct that would
lead a reasonable [person] knowing all the circum-
stances to the conclusion that the judge’s impartiality
might reasonably be questioned is a basis for the judge’s
disqualification. Thus, an impropriety or the appearance
of impropriety . . . that would reasonably lead one to
question the judge’s impartiality in a given proceeding
clearly falls within the scope of the general standard
. . . . The question is not whether the judge is impartial
in fact. It is simply whether another, not knowing
whether or not the judge is actually impartial, might
reasonably question his . . . impartiality, on the basis
of all of the circumstances.’’ (Citation omitted; internal
quotation marks omitted.) Advanced Financial Ser-
vices, Inc. v. Associated Appraisal Services., Inc., 79
Conn. App. 22, 50, 830 A.2d 240 (2003).
Here, the defendant does not claim, nor does the
record reflect, that the trial court was biased in fact.
Nevertheless, it is clear that the court impermissibly
adjudicated the issues of liability and damages after it
recommended that the parties stipulate to judgment in
the amount of damages to which the plaintiff claimed
it was entitled in its proposed amended complaint.
Although this case does not involve the dangers often
associated with a settlement judge presiding over the
trial, such as the potential revelation during settlement
discussions that would not be admissible at trial and
may prejudice one of the parties, one contemplated
concern is directly at issue in this case, to wit: that the
defendant’s rejection of the court’s suggested settle-
ment may result in ‘‘some retributive sanction or the
incurrence of judicial displeasure.’’ (Internal quotation
marks omitted.) Timm v. Timm, supra, 195 Conn. 204.
We have not found, and need not find, that such retribu-
tion occurred in this case. In order, however, to ‘‘elimi-
nate any appearance of impropriety and to avoid subtle
suspicions of prejudice or bias’’; id.; we conclude that
the court should have disqualified itself from deciding
the issues presented in this case.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
The defendant also challenges the trial court’s judgment on its merits.
Because we reverse the matter for a new trial, we need not reach those
arguments.
2
Paragraphs 1 through 5 of the plaintiff’s prayer for relief requested com-
pensatory damages, interest, reasonable attorney’s fees, costs and ‘‘[s]uch
other relief in law or equity as determined by this court.’’