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*********************************************** 
JOANN ANDERSON v. TOWN OF

BLOOMFIELD ET AL.

(AC 42905)

Bright, C. J., and Prescott and Flynn, Js.

Syllabus

The plaintiff sought to recover damages caused by an allegedly defective

roof installed by the defendant P Co. The defendant town of Bloomfield

had hired P Co. to install a new roof on the plaintiff’s home pursuant to

a residential rehabilitation program, whereby the town offered financial

assistance for home improvements to qualified homeowners. Under

the program, the town acted on behalf of the homeowner to secure

appropriate contractors to do the work and entered into all necessary

contracts. P Co. completed work on the plaintiff’s roof in July, 2013,

and was paid by the town. In October, 2013, the plaintiff noticed water

entering her home and an inspection determined that P Co. had installed

a defective roof. The plaintiff brought this action alleging in part that

P Co. breached its contract to the town when it installed a defective

roof and that she was a third-party beneficiary of the contract. The trial

court granted P Co.’s motion to dismiss, and rendered judgment thereon,

from which the plaintiff appealed to this court. Held that the trial court

improperly dismissed the plaintiff’s action for lack of standing, that

court having improperly determined that the plaintiff was not a thirdparty beneficiary of the contract: because the language of the contract

was ambiguous as to whether the town and P Co. intended for the

plaintiff to be a third-party beneficiary of that contract, it was a question

for the ultimate fact finder and, thus, the question of whether the plaintiff

had standing as a third-party beneficiary could not be resolved without

an evidentiary hearing and, because resolution of the factual issue is

intertwined with the merits of the case, resolution of this jurisdictional

question should be resolved by the ultimate fact finder as part of the

trial on the merits; accordingly, this court reversed the judgment of the

trial court and remanded this case for further proceedings.

Argued November 12, 2020—officially released March 9, 2021

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 Hartford, where the

court, Gordon, J., granted the motion to dismiss filed by

the defendant Plourde Enterprises, LLC, and rendered

judgment thereon, from which the plaintiff appealed to

this court. Reversed; further proceedings.

Jeremy S. Donnelly, for the appellant (plaintiff).

Deborah Etlinger, with whom, on the brief, was Erin

Canalia, for the appellee (defendant Plourde Enterprises, LLC).
Opinion

BRIGHT, C. J. In this third-party beneficiary breach

of contract case, the plaintiff, Joann Anderson, appeals

from the judgment of the trial court dismissing her

complaint against the defendant Plourde Enterprises,

LLC,1 on the ground that she lacks standing to pursue

the action. On appeal, the plaintiff claims that the court

erred in concluding that she was not an intended thirdparty beneficiary of a contract between the defendant

and the town of Bloomfield (town), to whom the defendant owed a direct obligation. She argues that the contract at issue, at the very least, was ambiguous as to

the intent of the defendant and the town and, therefore,

the court should have reserved this question for the

fact finder. We agree with the plaintiff and, accordingly,

reverse the judgment of the trial court.

The following relevant facts, as alleged by the plaintiff

in her complaint, and procedural history are relevant

to our consideration of the plaintiff’s claim on appeal.

The plaintiff owns a single-family home in the town,

which has been her family home for twenty years. Her

home was in need of a new roof, and the plaintiff investigated a number of contractors that could perform the

work. She also began looking at financing options. The

plaintiff learned that the town offered financial assistance for home improvements to qualified homeowner

residents, at no immediate cost to the homeowner,

through a residential rehabilitation assistance program

(program). Under the program, the town acted on behalf

of the homeowner to secure appropriate contractors

to do the work. The town would enter into all necessary

contracts in order to facilitate the projects, and it would

be responsible for review and payment to the contractors once the work was completed. In exchange, the

homeowner had to agree to a lien in the town’s favor

on his or her property in an amount equal to what

the town paid for the work completed. The financial

assistance offered through the program carried no interest, and no payments were due from the homeowner

until he or she decided to sell or transfer title to the

property.

Having recently been laid off from her employment

and working only a part-time job, the plaintiff, on or

about November 28, 2012, applied for the program. She

provided detailed information about her income and

assets, and, on January 7, 2013, the plaintiff was

approved for the program. The town contracted with

the defendant to install, inter alia, a new roof on the

plaintiff’s home. The agreement between the town and

the defendant was entered into on or about May 20,

2013. The town agreed to pay the defendant $12,000 for

the plaintiff’s new roof.

In June, 2013, the defendant began work on the plaintiff’s roof, and it completed the work the following
month. The town paid the defendant the contract price.

In October, 2013, the plaintiff noticed water entering

her home through the walls and ceiling in her kitchen

and in the basement. The plaintiff’s home was

inspected, and it was determined that the defendant

had installed a defective roof. As a result, it was recommended that the roof be completely replaced. The plaintiff notified the town in October, 2013, through e-mail,

telephone, and in person.

As water continued to enter the home because of the

faulty roof installation, the walls and ceilings sustained

damage, and a significant amount of mold began to

grow in the attic and in other parts of the home. Damage

to other parts of the home also occurred because of

the excessive moisture in the walls, including the malfunction of a wall oven and the electrical wiring in the

kitchen. The damage to the plaintiff’s home made it

uninhabitable, and the plaintiff was forced to move out

of her family home.

In a complaint filed on July 17, 2018, the plaintiff

claimed in relevant part that the defendant was in

breach of its contract with the town and that the plaintiff

was a third-party beneficiary of that contract. She

alleged that when the defendant entered into its contract with the town, it assumed a direct obligation to

the plaintiff to provide a serviceable roof to her home,

and that the defendant knew that its failure to do so

would cause direct harm to the plaintiff. She further

alleged that the defendant breached its contract when

it installed a defective roof, causing her to sustain

damages.

On September 28, 2018, the defendant filed a motion

to dismiss the plaintiff’s complaint on the ground that

the plaintiff did not have standing as a third-party beneficiary of the town’s contract with the defendant and

that the court, therefore, did not have jurisdiction over

the case. The defendant’s motion was accompanied by

a memorandum in support and the affidavit of Jason

Plourde, the defendant’s managing member. Attached

to Plourde’s affidavit as exhibit 1 was the contract

between the town and the defendant. Included as part

of the contract were addenda setting forth general and

supplementary conditions and the defendant’s bid

prices for the work described in the contract.

On April 18, 2019, the court, agreeing with the defendant, rendered judgment dismissing the plaintiff’s complaint. Specifically, the court concluded that, even if the

plaintiff was a foreseeable beneficiary of the contract

between the defendant and the town, ‘‘that is insufficient to provide the plaintiff with standing to assert a

claim against [the defendant] as a third-party beneficiary of the contract.’’ The court reasoned that ‘‘[a]

careful review of the contract between [the defendant]

and the town indicates that the plaintiff is not a thirdparty beneficiary . . . because, although the plaintiff’s
home is specifically referenced in the contract, and

although the purpose of the contract includes, inter

alia, performing work on the plaintiff’s home, there is

no expressed intent to create an obligation on the part

of [the defendant] directly to the plaintiff. Instead, all

of the contract terms were negotiated with the town,

including the liquidated damages provision and the limitation on assignments. . . . [I]t is incumbent on the

plaintiff to identify specific language in the contract

evidencing [the defendant’s] intent to create a direct

obligation to her. The court cannot identify any such

language in the contract.’’ This appeal followed.

On appeal, the plaintiff claims that the court improperly concluded that she was not an intended third-party

beneficiary to whom the defendant owed a direct obligation. She argues that the contract establishes that she

is a third-party beneficiary because she is the intended

beneficiary of the work that the defendant contracted

to perform and because her address is listed in the

contract in two places. The plaintiff ‘‘concedes that a

reasonable opposing position [however] might be that

the contract language is ambiguous on this point’’ and

that ‘‘the issue [therefore] is for the fact finder.’’ The

defendant argues that the court properly determined

that the plaintiff lacks standing to bring this action

because the plaintiff was neither a party to the contract

nor an intended third-party beneficiary under the language of the contract. We conclude that the contract

is ambiguous as to whether the town and the defendant

intended the plaintiff to be a third-party beneficiary

to the contract and that, therefore, the issue properly

cannot be resolved based on the defendant’s motion

and the documents attached thereto. Instead the issue

requires an evidentiary hearing before the ultimate fact

finder at which the fact finder can consider the parties’

intent, in light of the circumstances surrounding the

making of the contract, including the motives and purposes of the parties.

The standard of review on a challenge to the trial

court’s granting of a motion to dismiss is well established. ‘‘In ruling upon whether a complaint survives a

motion to dismiss, a court must take the facts to be

those alleged in the complaint, including those facts

necessarily implied from the allegations, construing

them in a manner most favorable to the pleader. . . .

A motion to dismiss tests, inter alia, whether, on the

face of the record, the court is without jurisdiction. . . .

[B]ecause [a] determination regarding a trial court’s

subject matter jurisdiction is a question of law, our

review is plenary.’’ (Internal quotation marks omitted.)

Chiulli v. Zola, 97 Conn. App. 699, 703–704, 905 A.2d

1236 (2006).

‘‘It is a basic principle of law that a plaintiff must have

standing for the court to have jurisdiction. Standing is

the legal right to set judicial machinery in motion. One
cannot rightfully invoke the jurisdiction of the court

unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal

or equitable right, title or interest in the subject matter

of the controversy. . . . It is well settled that one who

[is] neither a party to a contract nor a contemplated

beneficiary thereof cannot sue to enforce the promises

of the contract . . . . [W]hether a party has standing,

based upon a given set of facts, is a question of law for

the court . . . and in this respect the label placed on

the allegations by the parties is not controlling.’’ (Citations omitted; internal quotation marks omitted.)

Dow & Condon, Inc. v. Brookfield Development Corp.,

266 Conn. 572, 579–80, 833 A.2d 908 (2003).

Where, as here, the motion to dismiss is supported

by an affidavit and the contract central to the dispute,

the court may consider supplementary undisputed

facts contained in those documents in deciding the

motion to dismiss. ‘‘If affidavits and/or other evidence

submitted in support of a defendant’s motion to dismiss

conclusively establish that jurisdiction is lacking, and

the plaintiff fails to undermine this conclusion with

counteraffidavits . . . or other evidence, the trial court

may dismiss the action without further proceedings.

. . . If, however, the defendant submits either no proof

to rebut the plaintiff’s jurisdictional allegations . . . or

only evidence that fails to call those allegations into

question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but

may rest on the jurisdictional allegations therein. . . .

‘‘[Furthermore] where a jurisdictional determination

is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in

the absence of an evidentiary hearing to establish jurisdictional facts. . . . Likewise, if the question of jurisdiction is intertwined with the merits of the case, a

court cannot resolve the jurisdictional question without

a hearing to evaluate those merits. . . . An evidentiary

hearing is necessary because a court cannot make a

critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties. . . .

[D]efendants’ states of mind and motives [are] facts

that . . . are not ordinarily subject to determination

on the basis of documentary proof alone.’’ (Citations

omitted; footnotes omitted; internal quotation marks

omitted.) Conboy v. State, 292 Conn. 642, 652–54, 974

A.2d 669 (2009); id., 654 (issue of sovereign immunity

could not be resolved on motion to dismiss because

state’s argument ‘‘turned on [the] particular resolution

of [a] factual dispute’’ requiring ‘‘a full trial on the merits

of the action’’); see Giannoni v. Commissioner of

Transportation, 322 Conn. 344, 355 n.12, 141 A.3d 784

(2016) (when evidence necessary to court’s determination of jurisdiction requires weighing by fact finder,

issue may be ‘‘more appropriate for consideration at

trial’’).
‘‘The [third-party] beneficiary doctrine provides that

[a] [third-party] beneficiary may enforce a contractual

obligation without being in privity with the actual parties to the contract. . . . Therefore, a [third-party] beneficiary who is not a named obligee in a given contract

may sue the obligor for breach.’’ (Internal quotation

marks omitted.) Wykeham Rise, LLC v. Federer, 305

Conn. 448, 473, 52 A.3d 702 (2012). ‘‘[A] third party

seeking to enforce a contract must allege and prove

that the contracting parties intended that the promisor

should assume a direct obligation to the third party.’’

Stowe v. Smith, 184 Conn. 194, 196, 441 A.2d 81 (1981).

‘‘[T]he fact that a person is a foreseeable beneficiary

of a contract is not sufficient for him to claim rights

as a [third-party] beneficiary. . . . Performance of a

contract will often benefit a third person. But unless

the third person is an intended beneficiary . . . no duty

to him is created.’’ (Citation omitted; footnote omitted;

internal quotation marks omitted.) Hilario’s Truck Center, LLC v. Rinaldi, 183 Conn. App. 597, 604, 193 A.3d

683, cert. denied, 330 Conn. 925, 194 A.3d 776 (2018).

‘‘Section 302 of 2 Restatement (Second) of Contracts

(1981) defines intended and incidental beneficiaries

as follows:

‘‘(1) Unless otherwise agreed between promisor and

promisee, a beneficiary of a promise is an intended

beneficiary if recognition of a right to performance in

the beneficiary is appropriate to effectuate the intention

of the parties and either

‘‘(a) the performance of the promise will satisfy an

obligation of the promisee to pay money to the beneficiary; or

‘‘(b) the circumstances indicate that the promisee

intends to give the beneficiary the benefit of the promised performance.

‘‘(2) An incidental beneficiary is a beneficiary who is

not an intended beneficiary.’’ (Internal quotation marks

omitted.) Id., 604 n.5.

‘‘The law regarding the creation of contract rights in

third parties in Connecticut is . . . well settled. . . .

[T]he ultimate test to be applied [in determining

whether a person has a right of action as a third-party

beneficiary] is whether the intent of the parties to the

contract was that the promisor should assume a direct

obligation to the [third-party] [beneficiary] and . . .

that intent is to be determined from the terms of the

contract read in the light of the circumstances attending

its making, including the motives and purposes of the

parties. . . . [I]t is not in all instances necessary that

there be express language in the contract creating a

direct obligation to the claimed [third-party] beneficiary

. . . . [T]he only way a contract could create a direct

obligation between a promisor and a [third-party] beneficiary would have to be, under our rule, because the
parties to the contract so intended. . . .

‘‘The requirement that both contracting parties must

intend to confer enforceable rights in a third party rests,

in part at least, on the policy of certainty in enforcing

contracts. That is, each party to a contract is entitled

to know the scope of his or her obligations thereunder.

That necessarily includes the range of potential third

persons who may enforce the terms of the contract.

Rooting the range of potential third parties in the intention of both parties, rather than in the intent of just

one of the parties, is a sensible way of minimizing the

risk that a contracting party will be held liable to one

whom he neither knew, nor legitimately could be held

to know, would ultimately be his contract obligee.’’

(Citations omitted; internal quotation marks omitted.)

Dow & Condon, Inc. v. Brookfield Development Corp.,

supra, 266 Conn. 580–81. Where the language of the

contract is unambiguous, ‘‘a proper analysis of the language at issue is not dependent on extrinsic evidence

of the parties’ intent. See Parisi v. Parisi, 315 Conn.

370, 383, 107 A.3d 920 (2015) (‘[w]hen only one interpretation of the contract is possible, the court need not

look outside the four corners of the contract’ . . .).’’

Raczkowski v. McFarlane, 195 Conn. App. 402, 411 n.4,

225 A.3d 305 (2020).

In the present case, the contract between the town

and the defendant is made up of the following contract

documents: the agreement, the supplementary conditions, the general conditions, the addenda (if any), and

the defendant’s bid. The agreement provides in relevant

part that the defendant ‘‘shall complete all [w]ork as

specified . . . in the [c]ontract [d]ocuments,2

including

all necessary incidental work. The purpose of the project is miscellaneous residential upgrades at [four residential addresses, including the plaintiff’s address].’’

(Footnote added.) The agreement requires that all work

be completed within sixty days. It also contains a liquidated damages provision that includes a ‘‘time is of the

essence’’ clause, requiring the defendant to pay to the

town $500 each day that the work is incomplete after

the sixty day time period. The agreement also provides

that the town will pay the defendant $12,000 for the

work to be done to the plaintiff’s property, and it provides a mechanism for progress payments.

Also in the agreement are several representations of

the defendant, including that the defendant has studied

the contract documents and other data identified in the

bidding documents, it has visited the work sites and

become familiar with them, and it does not believe

any further information or examination is necessary in

order for it to complete the project. The agreement

further provides that the rights and obligations under

it cannot be assigned without the consent of the other

party and that the defendant and the town ‘‘each binds

itself and its partners, successors, assigns, and to the
other party hereto and its partners, successors and

assigns in respect of all covenants, agreements, and

obligations contained in the [c]ontract [d]ocuments.’’

In the agreement, the defendant also agrees to comply

with all federal, state, and local laws, and all rules,

regulations, and ordinances of the town that may affect

the work or services rendered by the defendant.

In the supplementary conditions, there is, inter alia,

an indemnification provision that provides that the

defendant will indemnify and hold harmless the town

from any and all claims made against it to the extent

that any claim directly and proximately results from

the wrongful, wilful, or negligent performance of the

defendant during its performance of the agreement. In

the general conditions,3

the defendant, among other

things, is prohibited from placing a lien on any property

on which it is working under the agreement.

The plaintiff argues that, although the defendant and

the town were the parties to the contract, the contract

was meant to benefit the plaintiff. ‘‘The town’s role was

only to facilitate the work and to pay the defendant

from funds made available through the program. No

services were provided to the town [and] the intended

beneficiary was [the plaintiff] . . . .’’ She argues that,

unlike the plaintiff in Grigerik v. Sharpe, 247 Conn.

293, 721 A.2d 526 (1998), a case relied on by the defendant and the trial court, she is not merely a foreseeable

beneficiary, but, rather, she is ‘‘the beneficiary—the

person to whom all obligations under the contract were

owed.’’ (Emphasis in original.) She also argues that if

the intent of the contracting parties cannot be ascertained from the contract alone, the court should have

reserved the question for the fact finder.

In Grigerik, the plaintiff, who was the purchaser of

a property, brought breach of contract and negligence

claims against the defendants, an engineering company

and its owner, who had been hired by the plaintiff’s

predecessor in title to test soil and design a septic

system for the property. Id., 296. The plaintiff alleged

that he was a foreseeable third-party beneficiary to the

contract. Id. The jury found in favor of the plaintiff,

concluding that he was a foreseeable beneficiary of the

contract although not an intended beneficiary, and the

court rendered judgment in accordance with the verdict. Id. After the Appellate Court reversed that judgment and ordered, in part, a new trial on the breach

of contract count, our Supreme Court, after granting

certification to appeal, held in relevant part that the

fact that the plaintiff may have been a foreseeable beneficiary of the contract between the plaintiff’s predecessor in title and the defendants was inconsequential to

whether he was a third-party beneficiary to the contract.

Id., 309–10.

Our Supreme Court specifically quoted and relied on

§ 302 of the Restatement (Second), which provides in
relevant part: ‘‘Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an

intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate

the intention of the parties and . . . the circumstances

indicate that the promisee intends to give the beneficiary the benefit of the promised performance.’’

(Emphasis omitted; internal quotation marks omitted.)

Id., 317. The court explained that ‘‘the language of the

Restatement (Second) suggests that the right to performance in a [third-party] beneficiary is determined both

by the intention of the contracting parties and by the

intention of one of the parties to benefit the third party.’’

Id. The court held, therefore, that the intent of both

parties to the contract determines whether a third party

is entitled to third-party beneficiary status, and the fact

that the plaintiff in that case may have been a foreseeable beneficiary of the contract was not sufficient to

confer third-party beneficiary status on him because

the jury specifically had found that the plaintiff was

not an intended beneficiary of the contract. Id., 317–18.

We agree with the plaintiff that Grigerik is inapposite.

The issue of the intent of the town and the defendant

in the present case has not been presented to a jury as

it was in Grigerik. Rather, in the present case, the court

ruled as a matter of law that the plaintiff did not have

standing because there was no ‘‘specific language in the

contract evidencing [the defendant’s] intent to create

a direct obligation to her.’’ Such specific language, however, is not necessary. See Dow & Condon, Inc. v.Brookfield Development Corp., supra, 266 Conn. 580–81.

We, instead, are guided by our Supreme Court’s decision in Gateway Co. v. DiNoia, 232 Conn. 223, 654

A.2d 342 (1995). In Gateway Co., the trial court had

concluded that the plaintiff, The Gateway Company

(Gateway), was not a third-party beneficiary because

‘‘there was nothing to indicate either that [the original

parties to the lease had] intended to confer a benefit

upon Gateway, or that they [had] intended to give Gateway a right to sue [the defendant] DiNoia.’’ (Emphasis

in original; internal quotation marks omitted.) Id., 230.

Our Supreme Court concluded that the trial court had

‘‘focused on the wrong inquiry,’’ explaining that ‘‘[t]he

proper test to determine whether a lease creates a

[third-party] beneficiary relationship is whether the parties to the lease intended to create a direct obligation

from one party to the lease to the third party.’’ (Emphasis omitted.) Id., 231. The court further explained that,

‘‘[a]lthough ordinarily the question of contractual intent

presents a question of fact for the ultimate fact finder,’’

where, as in Gateway Co., the language of the contract

is clear and unambiguous ‘‘it becomes a question of

law for the court.’’ (Internal quotation marks omitted.)

Id., 232.

In the present case, we conclude that the trial court

also misconstrued the appropriate inquiry when it deter-
mined that the plaintiff failed to establish standing simply because there was no ‘‘specific language in the contract evidencing [the defendant’s] intent to create a

direct obligation to her.’’ A review of the contract documents reveals that there also is no specific language in

the contract evidencing the defendant’s intent that it

have no direct obligation to the plaintiff. The contract

did provide, however, that the defendant would install

a new roof on the plaintiff’s home and that the defendant

would comply with applicable laws, regulations and

ordinances. The identification of the plaintiff’s home

as the location where the work is to be done can be

read as evidencing an intent that she is a third-party

beneficiary of the contract. At the same time, the fact

that the contract provides rights to review the work

performed by the defendant and remedies for breach

of the defendant’s obligations solely to the town can

be read as evidencing the parties’ intent that the plaintiff

is not a third-party beneficiary. The court failed to consider these competing interpretations when it focused

its inquiry singularly on whether there was express

language in the contract creating a direct obligation

from the defendant to the plaintiff.

Given that it is unclear from the terms of the agreement between the town and the defendant whether they

intended the plaintiff to be a third-party beneficiary of

their contract, the court also failed to consider the terms

of the contract ‘‘in the light of the circumstances

attending its making, including the motives and purposes of the parties.’’ (Internal quotation marks omitted.) Dow & Condon, Inc. v. Brookfield Development

Corp., supra, 266 Conn. 580–81.4 Consequently, this is

not a case in which the defendant’s motion to dismiss

can be decided simply on the basis of the affidavit

submitted by the defendant and the language of the

contract. Instead, an evidentiary hearing is required

to make the critical factual finding as to whether the

plaintiff has standing as a third-party beneficiary. See

Conboy v. State, supra, 292 Conn. 653–54. Furthermore,

because resolution of this factual issue is intertwined

with the merits of the case, resolution of this jurisdictional question should be resolved by the ultimate fact

finder as part of the trial on the merits. Id.

The judgment is reversed and the case is remanded

for further proceedings according to law.

In this opinion the other judges concurred.

1 The plaintiff also named as a defendant the town of Bloomfield. Before

the court rendered a judgment of dismissal, however, the plaintiff withdrew

her claims against the town. For purposes of this appeal, we refer to Plourde

Enterprises, LLC, as the defendant.

2 Only one page of the bidding documents is in the record. This page lists

each address for which the defendant was submitting a bid, and it separately

lists the bid for each individual aspect of each home address. For example,

for the plaintiff’s address, the defendant set forth her street with the description ‘‘roof’’ and a bid of $12,000. For a property on Brooke Street, it listed

‘‘insulation’’ with a bid of $5600, and it listed ‘‘flooring’’ with a bid of $7800.

3 The general conditions are set forth in a document prepared by the

United States Department of Housing and Urban Development.
4 Although the terms of the program, including the requirement that the

plaintiff agree that the town could place a lien on her property in the

amount that the town had paid to complete repairs to her roof, evidence

circumstances strongly indicative of the town’s intent to make the plaintiff

an intended third-party beneficiary of the contract, whether the defendant

was aware of the program and shared the same intent is less clear.