Shah v. Cover-It, Inc.

• Decision Date: 16 November 2004
• Docket Number: (AC 24314).
• Citation: 86 Conn. App. 71,859 A.2d 959
• Court: Connecticut Court of Appeals
• Parties: KHALID SHAH v. COVER-IT, INC., ET AL.

86 Conn. App. 71

859 A.2d 959

KHALID SHAH v. COVER-IT, INC., ET AL.

(AC 24314).

Appellate Court of Connecticut.

Submitted on briefs September 16, 2004.

Officially released November 16, 2004.

Lavery, C. J., and Schaller and Dranginis, Js.

James T. Baldwin filed a brief for the appellant (plaintiff).

Anthony J. Pantuso III filed a brief for the appellees (named defendant et al.).

Opinion

SCHALLER, J.

The plaintiff, Khalid Shah, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendants Cover-It, Inc., and Brian Goldwitz.¹ On appeal, the plaintiff claims that the court improperly found that he materially breached the employment contract between the parties. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our discussion. On November 12, 1997, the parties entered into an employment contract by which the plaintiff became the structural engineering manager of Cover-It, Inc. Pursuant to the terms of the employment contract, the plaintiff was to receive an annual salary of $70,000, payable weekly, for a period of five years and subject to cost of living adjustments. In addition to his salary, the plaintiff was entitled to a commission of 2 percent of the sales generated from those products that he designed while employed, up to $1.5 million.

In addition to standard company benefits, the plaintiff also received three paid weeks of vacation on the completion of his first year of employment and the use of a company car. Furthermore, the plaintiff was permitted to work a flexible full-time schedule of thirty-five hours per week. He also was allowed to take time off from work to attend professional workshops and activities, and to resolve any prior professional obligations. The employment contract was subject to termination by either party with ninety days written notice. If the defendants terminated the contract, the plaintiff, on the completion of his first year of employment, was to receive monthly salary payments for the remainder of the five year period pursuant to a schedule.²

In June, 1998, the plaintiff requested and received permission for a period of vacation time. Goldwitz approved the time off with the understanding that the plaintiff would be gone for several weeks. At the end of August, 1998, the plaintiff had not returned. Goldwitz believed that the plaintiff had abandoned the employment contract and sent him notice that his health benefits were cancelled. The plaintiff returned to work in early September, 1998, and continued working until the middle of October. During that time period, the plaintiff worked two or three days per week and spent long periods of time visiting Internet web sites that were unrelated to his employment duties. The plaintiff also refused to use a time clock to document his attendance; instead, he simply indicated on his time card that he was present. On October 14, 1998, Goldwitz asked the plaintiff if certain designs would be completed. The plaintiff stated that he was not sure when the designs would be completed and that he would take his time in completing them. Goldwitz then terminated the plaintiff's employment.

The plaintiff commenced the present action on October 6, 1999. By way of a fourteen count amended complaint filed on November 20, 2001, the plaintiff alleged various causes of action against the defendants, including breach of contract, breach of the implied covenant of good faith and fair dealing, failure to pay wages in violation of General Statutes § 31-72 and negligent misrepresentation. The defendants filed an answer and a two count counterclaim. With respect to the plaintiff's claims, the court found in favor of the defendants on all counts and rendered judgment accordingly. As to the counterclaim, the court concluded that the defendants had failed to prove damages and rendered judgment in favor of the plaintiff. This appeal followed.

On appeal, the plaintiff claims that the court improperly found that he had breached the contract or, in the alternative, that any breach was not material. Specifically, the plaintiff argues that the court failed to identify an express term or condition that was breached and instead merely found that certain acts, considered together, demonstrated a material breach prior to the termination of his employment.³ Therefore, according to the plaintiff, the defendants were not relieved of their obligations, under the terms of the contract, to pay his full salary for ninety days and to pay his posttermination salary pursuant to the schedule set forth in the contract. We disagree.

As a preliminary matter, we identify the applicable standard of review. "The determination of whether a contract has been materially breached is a question of fact that is subject to the clearly erroneous standard of review. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it. . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citations omitted; internal quotation marks omitted.) Efthimiou v. Smith, 268 Conn. 487, 493-94, 846 A.2d 216 (2004); see also Miller v. Guimaraes, 78 Conn. App. 760, 766-67, 829 A.2d 422 (2003). "Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence." (Internal quotation marks omitted.) LaVelle v. Ecoair Corp., 74 Conn. App. 710, 716, 814 A.2d 421 (2003).

"It is a general rule of contract law that a total breach of the contract by one party relieves the injured party of any further duty to perform further obligations under the contract." (Emphasis added.) Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., 18 Conn. App. 384, 391, 558 A.2d 265 (1989); see also State v. Lex Associates, 248 Conn. 612, 624, 730 A.2d 38 (1999); 669 Atlantic Street Associates v. Atlantic-Rockland Stamford Associates, 43 Conn. App. 113, 125-26, 682 A.2d 572, cert. denied, 239 Conn. 949, 950, 686 A.2d 126 (1996); 2 Restatement (Second) Contracts § 237 (1981).

In Bernstein v. Nemeyer, 213 Conn. 665, 672, 570 A.2d 164 (1990), our Supreme Court endorsed the use of the multifactor test set forth in the Restatement (Second) of Contracts, supra, § 241, when determining whether a breach is material. "Section 241 of the Restatement (Second) of Contracts provides: `In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be...