Bruno v. Whipple

• Decision Date: 04 December 2018
• Docket Number: AC 40282
• Citation: 199 A.3d 604,186 Conn.App. 299
• Court: Connecticut Court of Appeals
• Parties: Lisa BRUNO v. Reed WHIPPLE et al.

186 Conn.App. 299

199 A.3d 604

Lisa BRUNO

v.Reed WHIPPLE et al.

AC 40282

Appellate Court of Connecticut.

Argued September 14, 2018

Officially released December 4, 2018

Lisa Bruno, self-represented, the appellant (plaintiff).

Stephen P. Fogerty, Westport, for the appellee (defendant Heritage Homes Construction Co., LLC).

Lavine, Keller and Elgo, Js.

ELGO, J.

This case returns to us following a remand to the trial court for a hearing in damages. See Bruno v. Whipple , 162 Conn. App. 186, 130 A.3d 899 (2015), cert. denied, 321 Conn. 901, 138 A.3d 280 (2016). The self-represented plaintiff, Lisa Bruno, appeals from the judgment of the trial court rendered in favor of the defendant Heritage Homes Construction Company, LLC.¹ On appeal, the plaintiff claims that the trial court (1) improperly concluded that she failed to prove actual damages resulting from the defendant's breach of a residential construction contract and (2) exceeded the scope of the remand order.² We affirm the judgment of the trial court.

As this court has previously observed, the present case "arises from dealings between the parties concerning the construction by [the defendant] of a new home in Ridgefield for [the plaintiff] and her former husband, Stephen Bruno (Bruno)." Id., at 188–89, 130 A.3d 899. In her operative complaint, the plaintiff alleged that the defendant, as a party "to a contract with herself and Bruno to build the new home, had breached the contract ... by conspiring with Bruno to launder his money through the project, and thus to deprive her of fair, just and reasonable alimony and division of assets in connection with the impending dissolution of her marriage. On that score, the plaintiff alleged, more particularly, that by December, 2005, when Bruno initiated marital dissolution proceedings against her, construction of the new home was nearly complete for what by then was the total sum of approximately $1,800,000. Thereafter, however, from December, 2005, to January, 2006, and from May, 2006, to July, 2006, Bruno paid [the defendant] additional sums totaling approximately $2,600,000, all purportedly for expenditures on the project that she did not authorize." Bruno v. Whipple , 138 Conn. App. 496, 498–99, 54 A.3d 184 (2012). More specifically, the plaintiff alleged that the defendant breached the construction contract by failing to provide her with (1) invoices on a biweekly basis and (2) written change orders regarding modifications to the contract.

A trial was held in 2013. Following the close of evidence and at the request of the defendant, the court provided the jury with an instruction on the special defense of waiver. The court further instructed the jury to "separately answer jury interrogatories asking whether it ‘f[ou]nd in favor of [the plaintiff] on her claim of breach of contract against [the defendant]’ and, if so, whether ‘[the plaintiff] waived the breach of contract by [the defendant] ....’ " Bruno v. Whipple , supra, 162 Conn. App. at 196, 130 A.3d 899. The jury subsequently returned a verdict in favor of the defendant on the breach of contract claim. In so doing, the jury "expressly" based that verdict "on its answers to jury interrogatories that (1) [the defendant] had breached its contract with the plaintiff, but (2) the plaintiff had waived that breach." Id. The trial court denied the plaintiff's subsequent motion to set aside the verdict. Id., at 196–97, 130 A.3d 899.

On appeal, this court concluded that the trial court improperly denied the motion to set aside the verdict in favor of the defendant on the breach of contract count. As the court stated, the trial court "abused its discretion by permitting [the defendant] to raise the special defense of waiver for the first time after the close of evidence at trial, as it had not been specially pleaded, the pleadings did not allege any facts supporting an inference of waiver, and the claim that the plaintiff knowingly relinquished her contractual rights was not fully litigated at trial without objection by the plaintiff. Accordingly ... the court should have set aside the jury's verdict as to waiver." (Footnote omitted.) Id., at 207, 130 A.3d 899.

In light of that conclusion, this court explained that it "must now address the scope of the remand of this case to the trial court. Specifically, we must determine whether the case should be remanded for a hearing in damages on the plaintiff's breach of contract claim or whether the jury's verdict on her breach of contract claim also must be set aside and remanded for a retrial on that issue." Id., at 207–208, 130 A.3d 899. The court noted that, "[i]n finding in favor of the plaintiff on her breach of contract claim, the jury essentially has determined liability in her favor against [the defendant] and the remaining determination is damages resulting from that breach." Id., at 208, 130 A.3d 899. Accordingly, this court concluded that "because the improper verdict on the special defense of waiver is wholly separable from the verdict in favor of the plaintiff on her breach of contract claim ... limiting the remand to a hearing in damages on the breach of contract verdict does not work injustice in this case." Id. The court thus ordered the case to be "remanded for a hearing in damages on the jury's verdict in favor of the plaintiff on her breach of contract claim."³ Id., at 216, 130 A.3d 899.

The trial court held a hearing in damages on January 26, 2017, at which the plaintiff submitted testimony from herself and James Bolan, a financial consultant employed by Charles Schwab, as well as certain documentary evidence. In her testimony, the plaintiff confirmed that her breach of contract claim was predicated on the defendant's failure to provide her with invoices on a biweekly basis and written change orders regarding modifications to the contract. The plaintiff maintained that those failures caused a diminution of her marital estate.

In its February 21, 2017 memorandum of decision, the court made a number of factual findings that are not contested in this appeal. The court found that the plaintiff and Bruno entered into the contract at issue on October 28, 2004. The contract did not specify "a final, fixed price for construction of the residence," as the parties had agreed that the defendant would be paid for all services rendered.⁴ The construction costs were paid in part from the proceeds of a construction mortgage loan; the remaining construction costs were paid with funds from a Charles Schwab financial account (Schwab account).⁵ In December, 2005, Bruno commenced a dissolution action against the plaintiff. As part of that dissolution proceeding, the plaintiff and Bruno on July 10, 2006, entered into a written stipulation to complete the construction of the residence. The residence ultimately was completed and a certificate of occupancy issued on July 28, 2006. The final cost of construction, including land, totaled $7,746,462.⁶

In its memorandum of decision, the trial court also found that the plaintiff's marriage to Bruno was dissolved on March 17, 2008. As part of that judgment of dissolution, the dissolution court ordered that the net proceeds of the sale of the newly constructed residence shall be "divide[d] equally" between the plaintiff and Bruno. The dissolution court further found that, at the time of dissolution, the residence had a fair market value of $7.9 million. The dissolution court also awarded the plaintiff weekly alimony in the amount of $4000, culminating upon the death of the plaintiff or Bruno, or the remarriage of the plaintiff. With respect to the Schwab account that had been used as a source of funds for the construction of the new residence, the dissolution court found that it had a current balance of $2,451,343.62. As part of its financial orders, the dissolution court awarded the plaintiff $300,000 from that account and ordered that $22,826 be paid from that account to the defendant for an outstanding invoice. The dissolution court then ordered the remainder of the Schwab account "to be divided equally between" the plaintiff and Bruno.

In her complaint, the plaintiff alleged in relevant part that the defendant's breach of contract deprived her "of fair, just and reasonable alimony and division of assets in connection with the dissolution of [her] marriage to Bruno." In ruling on the issue of damages, the court thus stated that "the plaintiff's claim for damages [on the breach of contract count] is measured by the amount that the marital estate was diminished as a direct and proximate result of [the defendant's] failure to provide her with biweekly invoices and change orders." The court found, "after careful review of the evidence introduced at the hearing in damages ... that the plaintiff has not proven (and cannot prove from the evidence presented) that the marital estate was reduced by [the defendant's] breach of contract. The ‘missing’ funds [from the Schwab account] were paid to [the defendant ] to satisfy invoices for services rendered and materials furnished in constructing the [new residence].... The plaintiff introduced no evidence at the hearing in damages to contradict this finding. The [new residence] retained the value of the cash expended in its construction and remained a significant asset of the marital estate available for distribution to the plaintiff." (Citation omitted.) The court also rejected the plaintiff's ancillary claim that, but for the alleged diminution of the marital estate due to the defendant's breach of contract, she would have received a larger award of alimony and property distribution. In this regard, the court found that the plaintiff's claim was "entirely too speculative," as it was predicated solely on a "projection" of what the court in the dissolution proceeding "likely would have awarded to her if facts had been different in her dissolution of marriage action." (Emphasis in original.) The court therefore concluded that the plaintiff had "failed to prove by...