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PATRICK A. TREGLIA v. SANTA FUEL, INC.

(AC 34343)

Beach, Alvord and Bear, Js.

Argued October 30, 2013—officially released February 4, 2014

(Appeal from Superior Court, judicial district of

Fairfield, Levin, J.)

Ridgely Whitmore Brown, for the appellant

(plaintiff).
Joel Z. Green, with whom, on the brief, was Linda

Pesce Laske, for the appellee (defendant).
Opinion

ALVORD, J. The plaintiff, Patrick A. Treglia, appeals

from the judgment of the trial court rendered in favor

of the defendant, Santa Fuel,Inc. On appeal, the plaintiff

claims that ‘‘the trial court’s factualfindings [are] clearly

erroneous in view of the evidence and pleadings in

the whole record.’’ He contends that these erroneous

factual findings led the court improperly to render judgment in favor of the defendant. We affirm in part and

reverse in part the judgment of the trial court.

The following relevant facts are not in dispute. In

early November, 2007, the plaintiff contacted the defendant regarding possible delivery of home heating oil

to his residence. The plaintiff also submitted a credit

application. On November 2, 2007, the defendant

approved the plaintiff’s credit application and set up

the plaintiff’s account, orally agreeing to a ‘‘cap price

plan’’1 of $2.789 per gallon. The defendant then mailed

the plaintiff a written contract for automatic deliveries

of oil at the agreed upon cap price of $2.789 per gallon.

On November 5, 2007, the defendant delivered 619.9

gallons of oil to the plaintiff’s residence. Some time

later, the plaintiff received a copy of the contract from

the defendant with the $2.789 per gallon cap price.2 The

contract stated it ‘‘must be signed and returned to [the

defendant’s] office on or before 11/06/07 to qualify for

these offers.’’ The plaintiff signed the contract and

returned it to the defendant in an envelope that was

postmarked November 20, 2007.3

Shortly thereafter, the plaintiff received another

envelope from the defendant, postmarked November

23, 2007. Contained within was another 2007 through

2008 pricing options contract now listing a $2.979 cap

price per gallon. Attached to the contract was a ‘‘sticky’’

note informing the plaintiff that ‘‘[the defendant] cannot

accept the old price agreement—it was due back on

11/6/07. Please sign both sides of this agreement.’’

(Emphasis omitted.)

Upon receipt of the new contract, the plaintiff contacted the defendant. The defendant informed the

plaintiff that he could pay a rate of $2.789 for the oil

delivered, but that future deliveries would be at the

new rate of $2.979. The plaintiff signed the new contract

and faxed it to the defendant on November 27, 2007.

In December, 2007, the plaintiff received a past due

notice from the defendant for $1847.28.4 The plaintiff

paid $1728.905 and included a letter, dated December

29, 2007, reminding the defendant that its employee

‘‘told [the plaintiff] that she would honor the quoted

price’’ and that the defendant should ‘‘contact her to

clear up this matter.’’ The plaintiff also wrote that he

has a total capacity of 660 gallons with a new high

efficiency furnace, and he has ‘‘not use[d] one quarter

of that thus far,’’ therefore he ‘‘won’t need a delivery
for some time’’ and that should be included in the defendant’s future delivery calculations. On January 4, 2008,

the defendant delivered 203 gallons of oil to the plaintiff,

and on February 29, 2008, the defendant delivered

another 195.6 gallons to the plaintiff, billing the plaintiff

at a higher rate of $2.979 per gallon for both deliveries.6

The plaintiff did not make payment for either of

these deliveries.

The plaintiff commenced an action against the defendant in small claims court. On April 29, 2009, the defendant moved to transfer the action to the regular docket

to assert a counterclaim, setoff, and special defense. In

the plaintiff’s revised, three count complaint, he alleged

that the defendant (1) did not charge him the agreed

upon price for the first delivery of oil, and therefore he

‘‘[c]laims as damages the difference between the price

that [he] originally agreed to pay and the price that [the

defendant] charged [him]’’; (2) furnished the plaintiff

with more home heating oil than he required; and (3)

‘‘damage[ed] [the plaintiff’s] credit history’’ and violated

‘‘CUTPA [the Connecticut Unfair Trade Practices Act]

for its unfair trade practices,’’ and therefore he is entitled to collect attorney’s fees. The defendant, in its

answer, asserted two special defenses: (1) ‘‘there has

been an accord and satisfaction with respect to the

dispute between the parties regarding the per gallon

price of home heating oil’’; and (2) ‘‘[p]ursuant to the

revised agreement between the parties, the plaintiff

agreed to accept deliveries of home heating oil by automatic delivery from the defendant,’’ and ‘‘[a]t no time

did the plaintiff ever notify the defendant to stop delivering home heating oil to his home.’’ By way of setoff

and counterclaim, the defendant claimed (1) a balance

due and owing on account of the oil sold and delivered

to the plaintiff subsequent to November 27, 2007, and

(2) that the plaintiff had been unjustly enriched to the

detriment of the defendant. In its prayer for relief, the

defendant claimed damages, attorney’s fees, interest,

and costs.

On December 8, 2011, the matter was tried to the

court. In the court’s order dated December 12, 2011, it

found ‘‘for the defendant on the revised complaint and

. . . for the defendant on the counterclaim . . . .’’

Thereafter, on January 23, 2011, the court issued a supplemental order awarding damages, interest, and reasonable attorney’s fees to the defendant on the

counterclaim ‘‘in the amount of $1448.81, principal balance; $1016.71 interest; and $478.11 attorney’s fees,for a

total judgment of $2943.63. Postjudgment interest shall

accrue at 5 percent until further order from the court.’’

On February 10, 2012, the plaintiff filed this appeal.

I

The plaintiff claims that the trial court’s factual findings regarding the applicable contract and the agreed

upon price are clearly erroneous in view of the evidence
and pleadings in the whole record. We disagree.

In reviewing the court’s factual findings, we apply

the clearly erroneous standard of review. Petrucelli v.

Travelers Property Casualty Ins. Co., 146 Conn. App.

631, 638, A.3d (2013). ‘‘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. . . . In making this determination, every reasonable presumption must be given in

favor of the trial court’s ruling.’’ (Internal quotation

marks omitted.) Bailey v. Lanou, 138 Conn. App. 661,

667, 54 A.3d 198 (2012).

A

Count one of the plaintiff’s revised complaint sounds

in breach of contract and alleges that the defendant did

not charge the plaintiff the agreed upon price for the

first delivery of oil. It is not disputed that the defendant

agreed to accept payment at the lower rate of $2.789

per gallon for the first delivery of 619.9 gallons; the

defendant states in its special defense that ‘‘[i]n November of 2007, the plaintiff and the defendant entered into

an agreement pursuant to which the plaintiff agreed to

pay and the defendant agreed to accept a reduced price

of $2.789 for the home heating oil that had previously

been delivered to the plaintiff with the express understanding that the plaintiff would pay to the defendant

a price of $2.979 per gallon for future deliveries of home

heating oil by the defendant to the plaintiff.’’7

It also

is not in dispute that the plaintiff paid the defendant

$1728.90,8 which was credited against his account. The

evidence before the court, however,reveals that despite

the plaintiff making payment for the first delivery in

full at the lower rate, the defendant continued to bill

the plaintiff for an outstanding principal balance of

$118.38 on the first delivery.9 Furthermore, an employee

of the defendant admitted at trial that ‘‘all three deliveries were priced at [$] 2.979 [per gallon].’’ The pleadings

and the record make clear that the parties agreed to

the lower price of $2.789 per gallon for the first delivery

of 619.9 gallons of heating oil, that the defendant did

not charge the plaintiff this lower price, and that the

defendant continuously attempted to recover more than

the agreed upon lower price from the plaintiff.

Nonetheless, the fact that the defendant charged the

plaintiff at rate higher than the contract rate does not

render the court’s finding that the plaintiff ‘‘must pay

for the oil he purchased at the agreed [upon] price’’

clearly erroneous, nor does it impact the court’s judgment in favor of the defendant on this count because

the plaintiff is not entitled to damages. ‘‘The elements

of a breach of contract action are the formation of an

agreement, performance by one party, breach of the

agreement by the other party and damages.’’ (Internal
quotation marks omitted.) Ibar v. Stratek Plastic Ltd.,

145 Conn. App. 401, 410, 76 A.3d 202 (2013). ‘‘The general rule in breach of contract cases is that the award

of damages is designed to place the injured party, so

far as can be done by money, in the same position as

that which he would have been in had the contract been

performed.’’ (Internal quotation marks omitted.) RBC

Nice Bearings, Inc. v. SKF USA, Inc., 146 Conn. App.

288, 312, 78 A.3d 195 (2013). The plaintiff claimed as

damages the difference between the price that he

agreed to pay and the amount charged by the defendant.

It is not in dispute that the plaintiff paid the defendant

$1728.90 for the first delivery of 619.9 gallons, and that

this is the agreed upon price. It is also not in dispute

that the plaintiff did not make any subsequent payments

to the defendant. The plaintiff is therefore not entitled

to damages on this count because he has not been

injured; he never paid the defendants in excess of the

contract rate of $2.789 per gallon, and he is in the same

position as he would have been had the contract been

performed. Accordingly, we affirm the judgment of the

trial court as to count one of the plaintiff’s revised complaint.

B

Count two of the plaintiff’s revised complaint alleges

that the defendant furnished the plaintiff with more

home heating oil than he required. It is not in dispute

that the plaintiff signed the contract at the higher rate,

and that he was informed that all subsequent deliveries

would be governed by that rate.10 The terms of the

contract make clear that the ‘‘[c]ustomer agrees that

[the defendant] is the sole supplier of heating oil and

agrees to accept deliveries by automatic delivery from

[the defendant].’’11 (Emphasis added.) On the basis of

the record, we conclude that it was not clearly erroneous for the trial court to find that the plaintiff ‘‘must

pay for the oil he purchased at the agreed [upon] price’’

because ‘‘the plaintiff signed up for automatic delivery

and, while he wrote the defendant on December 29,

2007, that ‘I won’t need a delivery for some time,’ he

did not specify what amount of time was ‘some time,’

never terminated his contract for automatic delivery

and never told the defendant not to deliver fuel.’’

(Emphasis added.) Accordingly, the findings related to

count two of the plaintiff’s revised complaint were not

clearly erroneous.

C

Count three of the plaintiff’s revised complaint

alleges that the defendant violated CUTPA.12 The plaintiff has provided no analysis or legal authority to support a challenge to the court’s finding on this count. It

is well established that ‘‘[w]e are not required to review

claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere

abstract assertion, is required in order to avoid aban-
doning an issue by failure to brief the issue properly.

. . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties

must clearly and fully set forth their arguments in their

briefs. . . . [A]ssignments of error which are merely

mentioned but not briefed beyond a statement of the

claim will be deemed abandoned and will not be

reviewed by this court.’’(Internal quotation marks omitted.) Russell v. Russell, 91 Conn. App. 619, 634–35, 882

A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92

(2005). Accordingly, we decline to reach this claim.

II

In its counterclaim, the defendant claimed ‘‘a balance

due and owing’’ on account of the home heating oil

sold and delivered to the plaintiff ‘‘[s]ubsequent to

November 27, 2007,’’ together with interest, attorney’s

fees, and costs. The defendant also claimed that the

plaintiff had been unjustly enriched to the detriment of

the defendant. The court awarded the defendant principal balance, interest, and attorney’s fees. The plaintiff

asserts that the amount awarded was clearly erroneous

and ‘‘was not the subject of any computation or reconciliation.’’ ‘‘The determination of damages involves a

question of fact that will not be overturned unless it is

clearly erroneous.’’ (Internal quotation marks omitted.)

Ed Lally & Associates, Inc. v. DSBNC, LLC, 145 Conn.

App. 718, 733, 78 A.3d 148 (2013). Our review of the

record reveals that the court’s calculation of damages is

clearly erroneous.13 Accordingly, we reverse the court’s

judgment as to the counterclaim and remand the case

for a new hearing regarding the proper amount of

damages.

The judgment on the defendant’s counterclaim is

reversed and the case is remanded for a new hearing

regarding the proper amount of damages thereon; the

judgment is affirmed in all other respects.

In this opinion the other judges concurred.

1 According to the defendant’s 2007 through 2008 pricing options, ‘‘[t]he

‘[c]ap’ is the maximum price per gallon [a customer] will pay through May

31, 2008. If [the defendant’s] [d]aily [p]osted [p]rice falls below [the] [c]ap

on the day of delivery, [the customer] pay[s] the lower price per gallon.

Requires automatic delivery.’’

2 There is significant debate as to when the plaintiff received the contract

in the mail. The postage meter date on the envelope is November 5, 2007.

The plaintiff claims that he received the envelope several days later than

that date, due to the incorrect zip code in the address.

3 The defendant’s mail stamp indicates that it received this contract on

November 21, 2007.

4 The defendant initially charged the plaintiff at a rate of $3.209 per gallon

for the first delivery, which it claimed was the retail price of the day on

November 5, 2007, for a total of $1989.88. We note, however, that the ticket

that the defendant’s delivery driver gave to the plaintiff upon delivery of

the oil states ‘‘today’s price’’ as $3.159, which an employee of the defendant

testified at trial ‘‘was the retail price for customers that weren’t on any

plans as of that date.’’ The defendant subsequently credited the $1989.88

total by $142.60, which is the source of the $1847.28 bill. Based upon this

adjusted price, the defendant charged the plaintiff an adjusted rate of $2.9799

per gallon for the first delivery.

5 This amount represents the original per gallon price of $2.789 for the
619.9 gallons delivered.

6 The principal balance of the second delivery was $604.94, and it was

$582.89 for the third delivery.

7

‘‘It is bedrock law that an admission in an answer to an allegation in a

complaint is binding as a judicial admission. . . . A judicial admission dispenses with the production of evidence by the opposing party as to the fact

admitted, and is conclusive upon the party making it.’’ (Citations omitted,

internal quotation marks omitted.) Hartford v. McKeever, 139 Conn. App.

277, 304, 55 A.3d 787 (2012), cert. granted on other grounds, 307 Conn. 956,

59 A.3d 1191 (2013).

8 See footnote 5 of this opinion.

9 The only credit by the defendant on the plaintiff’s account for this first

delivery is $142.60, which brought the amount listed by the defendant as

remaining due to $1847.28. As we previously have established, based upon

this adjusted price, the rate per gallon was $2.9799, which was higher than

then $2.979 rate of the second contract.

10 In his complaint, the plaintiff states that he ‘‘called and spoke to [the

defendant’s employee] and explained the situation, and she told me to pay

the $2.789 for the oil that was delivered, but that I would have to pay the

higher price for future deliveries. I signed the new contract and faxed it in

on December 27, 2007.’’ It is well settled that ‘‘[f]actual allegations contained

in pleadings upon which the case is tried are considered judicial admissions

and hence irrefutable as long as they remain in the case.’’ (Internal quotation

marks omitted.) New London County Mutual Ins. Co. v. Bialobrodec, 137

Conn. App. 474, 481, 48 A.3d 742 (2012).

11 There is some debate over whether the plaintiff checked off any of the

contract’s price plan options: the original contract, which the plaintiff faxed

to the defendant, did not have any of the options checked, but the fax

receipt provided by the defendant shows a check mark by the cap price

plan option. Nevertheless, all three price plan options required automatic

deliveries.

12 See General Statutes § 42-110a et seq.

13 The court awarded damages to the defendant in the amount of $1448.81

for the principal balance, which was the amount that the defendant orally

claimed at the January 23, 2011 hearing as being due and owing as of

February 29, 2008. Although neither the court nor the defendant provided

a basis for their calculation of this amount, the record reveals that it is the

full amount of the first delivery of 619.9 gallons at the erroneous rate of

$3.209 per gallon, plus the amounts of the second and third deliveries at

the higher contract rate of $2.979 per gallon, minus the plaintiff’s payment

of $1728.90. The mathematics of this calculation is as follows: $1989.88 +

$604.94 + $582.89 - $1728.90 = $1448.81. As we have previously established,

the defendant applied a credit of $142.60 against the first delivery, and

ultimately agreed to accept the lower rate of $2.789 per gallon for the

first delivery of 619.9 gallons. Neither modification to the plaintiff’s bill

is correctly captured in the court’s calculation of the principal balance.

Accordingly, the calculation of the principal balance is clearly erroneous,

as are the interest charges and attorney’s fees that result therefrom.