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MEADOWBROOK CENTER, INC.
v. ROBERT BUCHMAN
(AC 34234)
Gruendel, Bear and Schaller, Js.
Argued May 22, 2013—officially released April 8, 2014
(Appeal from Superior Court, judicial district of
Hartford, Hon. Robert J. Hale, judge trial referee.)
J. Xavier Pryor, for the appellant (defendant).
Edward M. Rosenthal, for the appellee (plaintiff).
Opinion
GRUENDEL, J. The defendant, Robert Buchman,
appeals from the judgment of the trial court in favor
of the plaintiff, Meadowbrook Center, Inc., on its claims
for breach of contract and promissory estoppel. The
principal issue to be decided, which is dispositive of
the appeal, concerns the causation aspect of damages.1
The defendant contends that the award of damages was
impermissibly speculative because the record does not
disclose any evidence indicating that the defendant’s
conduct caused the damages complained of. We agree
and, accordingly, reverse the judgment of the trial court.
The record reveals the following relevant facts and
procedural history. In November, 2006, the defendant
entered into an admission agreement (agreement) with
the plaintiff, a skilled nursing care facility, regarding
residential care for the defendant’s mother, Maude
Buchman, who was suffering from dementia. The
agreement identified the defendant’s mother as ‘‘the
[r]esident’’ and the defendant as ‘‘the [r]esponsible
[p]arty.’’
The agreement outlines, among other things, the
responsibilities of the resident and the responsible party
with respect to payment for the resident’s care at the
facility. Specifically, § II of the agreement, titled ‘‘Pay-
ment,’’ provides in relevant part that ‘‘[t]he resident
. . . agrees to pay the [f]acility the total per diem rate,
[defined in § XIV of the agreement as $323] . . . except
to the extent that payment is made directly to the [f]acil-
ity by a third party such as Medicare [or] Medicaid
. . . . The obligation to pay said total per diem rate
shall commence with the day the [r]esident is admitted
to the [f]acility and continue until the [r]esident has
been discharged and payment in full has been made for
all services rendered.’’ Section III of the agreement,
titled ‘‘Security Deposits,’’ states, inter alia, that upon
admission to the facility, the resident ‘‘agrees to pay
the [f]acility a security deposit equal to one month’s
total per diem rate . . . .’’ Section IV (1) of the
agreement, ‘‘Resident’s Assets,’’ provides in relevant
part that with respect to Medicaid assistance, the resi-
dent and responsible party agree that ‘‘[a]t the time
that the [r]esident’s assets approach [$10,000], if the
[r]esident does not have monthly income sufficient to
pay for the cost of care and services, the [r]esident and
[r]esponsible [p]arty agree to inform the [f]acility of the
status of the [r]esident’s assets and to make prompt
application for Medicaid assistance to the Connecticut
Department of Social Services [department].’’ Section
IV (2) of the agreement provides that the resident and
responsible party ‘‘agree to provide all information that
may be requested by the [department] in connection
with the application in accordance with any deadlines
established by the [d]epartment,’’ and § IV (4) of the
agreement provides in relevant part that the resident
and responsible party ‘‘agree to act promptly and exped-
itiously to establish and maintain eligibility for Medicaid
assistance . . . .’’ Section IV (5) provides that if the
responsible party has received a transfer of assets from
the resident that results in the resident’s ineligibility
for Medicaid, the responsible party ‘‘agrees that these
assets, or an amount of the [r]esponsible [p]arty’s funds
at least equal to these assets, will be used for the cost
of care and services rendered to the [r]esident until
the [r]esident is determined to be eligible for Medicaid
assistance . . . .’’2
The defendant’s mother entered the facility on
November 15, 2006. Until approximately July, 2008, her
care was funded by her assets. Once those assets were
exhausted, a Medicaid assistance application was filed
with the department on behalf of the defendant’s
mother. The department sent a letter to the defendant,
dated August 22, 2008, requesting certain information
to complete the Medicaid application. The letter stated
that the defendant must send in the requested informa-
tion by September 8, 2008, and provided that if the
department did not hear from the defendant or receive
‘‘at least some of the items’’ requested by that date, the
Medicaid application would be denied. The department
sent a second letter to the defendant, dated August 28,
2009, again requiring that the defendant provide the
requested information in connection with his mother’s
Medicaid application. This letter stated: ‘‘Send in this
information by 9/14/09. . . . If I do not get this informa-
tion by the due date, this application will be denied.
You have not responded in a very long time to this
request for information. I am giving you this final
request for the benefit of [the facility].’’ By notice dated
September 16, 2009, the department denied the Medic-
aid application, stating as the basis for denial: ‘‘You
failed to give us enough information or verification we
need to prove you are eligible.’’
The defendant’s mother remained a resident at the
facility until her death on May 11, 2009. At the time of her
death, the defendant’s mother had an unpaid balance of
$99,820.78 due to the facility. The parties stipulated
to the trial court that if the department had granted
Medicaid benefits to the defendant’s mother, the depart-
ment would have paid the facility $47,561.18.
In its complaint, dated January 22, 2010, the plaintiff
alleged, inter alia, that the defendant breached the
agreement by failing to provide the department with
the requested information for his mother’s Medicaid
application in a timely fashion. The plaintiff also alleged
a promissory estoppel claim, asserting, inter alia, that
the defendant promised to utilize his mother’s income
and assets toward the cost of care at the facility, and
to apply for Medicaid benefits and respond promptly
to the department’s requests for information in conjunc-
tion with the Medicaid application, and that the plaintiff
relied upon the defendant’s representations to its detri-
ment in providing care to the defendant’s mother.
A court trial commenced on October 13, 2011. At
the close of the plaintiff’s case-in-chief, the defendant
moved for summary judgment, asserting, inter alia, that
the plaintiff had failed to name the defendant as a party
to the action in his capacity as conservator of his moth-
er’s estate, and that any evidence of the defendant’s
actions or omissions in his role as conservator bore no
relevance to the issues before the court.3 The defendant
also argued that the agreement did not impose any
personal liability on the responsible party except in the
circumstance contemplated by § IV (5) of the
agreement, i.e., where the responsible party has
received a transfer of assets from the resident that
results in the resident’s ineligibility for Medicaid, and
he further contended that the plaintiff had not proven
that his mother would have qualified for Medicaid even
if the requested information had been given to the
department. The court denied that motion, and the
defendant then rested.
Following a luncheon recess, the court issued an oral
decision in favor of the plaintiff. With respect to the
plaintiff’s breach of contract claim, the court found
that: (1) the plaintiff entered into a contract with the
defendant; (2) the contract provided that the defendant
would timely supply all information requested by the
department in connection with an application for Med-
icaid; (3) the consideration for the contract was the
agreement of the plaintiff to supply care to the defen-
dant’s mother; (4) the defendant signed the contract as
the responsible party; (5) the defendant failed to fulfill
the terms of the contract by not supplying the requested
information to the department; and (6) as a result, ‘‘the
defendant caused the plaintiff to lose the Medicaid
money.’’ The court found that the defendant’s appoint-
ment as conservator did not relieve him of his duty to
the plaintiff as the responsible party who signed the
agreement, and that there was no need for the defen-
dant, in his role as conservator, to be named as a sepa-
rate party to the action. Additionally, the court found
that the doctrine of promissory estoppel applied
because (1) the defendant entered into a promise with
the plaintiff to provide information to the department
in connection with his mother’s Medicaid application;
(2) the plaintiff relied on this promise and provided
care to the defendant’s mother; and (3) the plaintiff lost
the benefit of Medicaid as a result of the defendant’s
failure to fulfill the promise.
In accordance with its oral ruling, the court rendered
judgment in the plaintiff’s favor on October 18, 2011,
and awarded damages in the amount of $47,561.15 plus
attorney’s fees to be determined postjudgment.4 The
defendant thereafter filed motions for reargument, for
articulation, and to open the judgment, which the court
denied on January 3, 2012. This appeal followed.
I
We first address the defendant’s claim that the award
of damages stemming from his breach of the agreement
was impermissibly speculative.5 Specifically, the defen-
dant claims that the plaintiff failed to adduce any evi-
dence to support the court’s finding that his breach of
the aforementioned contractual obligations ‘‘caused the
plaintiff to lose the Medicaid money.’’6 On our review
of the record before us, we are compelled to agree.
‘‘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. . . . It has traditionally been
held that a party may recover general contract damages
for any loss that may fairly and reasonably be consid-
ered [as] arising naturally, i.e., according to the usual
course of things, from such breach of contract itself.’’
(Internal quotation marks omitted.) Torosyan v. Boeh-
ringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1,
32, 662 A.2d 89 (1995). ‘‘The determination of damages
involves a question of fact that will not be overturned
unless it is clearly erroneous. . . . 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.’’ (Citation omitted;
internal quotation marks omitted.) Keith E. Simpson
Associates, Inc. v. Ross, 125 Conn. App. 539, 542, 9 A.3d
394 (2010).
It is well established that ‘‘[t]he 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.) Pelletier v. Galske, 105 Conn. App. 77,
81, 936 A.2d 689 (2007), cert. denied, 285 Conn. 921,
943 A.2d 1100 (2008). Although this court has intimated
that causation is an additional element thereof; see
McCann Real Equities Series XXII, LLC v. David
McDermott Chevrolet, Inc., 93 Conn. App. 486, 503–504,
890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798
(2006); proof of causation more properly is classified as
part and parcel of a party’s claim for breach of contract
damages. As the United States Court of Appeals for the
Federal Circuit aptly explained, ‘‘damages for breach
of contract are recoverable where: (1) the damages
were reasonably foreseeable by the breaching party at
the time of contracting; (2) the breach is a substantial
causal factor in the damages; and (3) the damages are
shown with reasonable certainty.’’ (Internal quotation
marks omitted.) Kansas Gas & Electric Co. v. United
States, 685 F.3d 1361, 1369 (Fed. Cir. 2012); see also
National Market Share, Inc. v. Sterling National Bank,
392 F.3d 520, 525 (2d Cir. 2004) (‘‘[c]ausation is an
essential element of damages in a breach of contract
action’’); West Haven Sound Development Corp. v. West
Haven, 201 Conn. 305, 316, 514 A.2d 734 (1986) (‘‘[w]e
believe that the evidence was sufficient to support the
jury’s determination that the breach of contract caused
the plaintiff to suffer damages in this case’’ [emphasis
added]); 11 J. Perillo, Corbin on Contracts (Rev. Ed.
2005) § 55.7, p. 26 (in action for breach of contract ‘‘a
causal relation [must] be shown to exist between the
defendant’s conduct and the harm for which damages
are sought’’); 3 Restatement (Second), Contracts § 346
(1981) (in order to receive anything other than nominal
damages, party must prove both that breach of contract
‘‘caused’’ loss and amount of loss).
The specific calculation of damages incurred in the
present case definitively was established due to the
parties’ stipulation. The more problematic question is
whether the plaintiff presented sufficient evidence to
establish that the defendant’s breach of the contract
was the cause of those damages.
The causation requirement focuses on whether a loss
‘‘may fairly and reasonably be considered [as] arising
naturally, i.e., according to the usual course of things,
from such breach of contract itself.’’ (Internal quotation
marks omitted.) West Haven Sound Development Corp.
v. West Haven, supra, 201 Conn. 319, quoting Hadley
v. Baxendale, 9 Ex. 341, 354, 156 Eng. Rep. 145 (1854).
This court also has stated that ‘‘in order to recover for
breach of contract, a plaintiff must prove that he or
she sustained damages as a direct and proximate result
of the defendant’s breach.’’7 Warning Lights & Scaffold
Service, Inc. v. O & G Industries, Inc., 102 Conn. App.
267, 271, 925 A.2d 359 (2007), citing McCann Real Equi-
ties Series XXII, LLC v. David McDermott Chevrolet,
Inc., supra, 93 Conn. App. 503–504; see also Carco
Group, Inc. v. Maconachy, 383 Fed. Appx. 73, 75 (2d
Cir. 2010) (damages for breach of contract must be
directly and proximately caused by breach); Kay Petro-
leum Corp. v. Piergrossi, 137 Conn. 620, 624, 79 A.2d 829
(1951) (‘‘[u]nless they are too speculative and remote,
prospective profits are allowable as an element of dam-
age whenever their loss arises directly from and as a
natural consequence of the breach’’).
Our Supreme Court distinguished the causation stan-
dards applicable to tort and breach of contract actions
in Neiditz v. Morton S. Fine & Associates, Inc., 199
Conn. 683, 508 A.2d 438 (1986). That case involved an
action for negligent preparation of a boundary survey.
Id., 684. The court explained that ‘‘the law of torts differs
from the law of contracts with respect to the applicable
causation standard for awarding damages. Under the
circumstances of this case, the plaintiffs are entitled to
recover all damages proximately caused by the defen-
dant’s negligent performance of the contract, whether
or not the consequences were reasonably anticipated.
. . . In an action founded solely on breach of contract,
however, the recovery of the plaintiffs would have been
limited to those damages the defendant had reason to
foresee as the probable result of the breach at the time
when the contract was made.’’ (Citations omitted.) Id.,
689 n.3; accord Exxon Co. v. Sofec, Inc., 517 U.S. 830,
840, 116 S. Ct. 1813, 135 L. Ed. 2d 113 (1996) (‘‘the
requirement of foreseeability may be more stringent in
the context of contract liability than it is in the context
of tort liability’’). In Mattegat v. Klopfenstein, 50 Conn.
App. 97, 717 A.2d 276, cert. denied, 247 Conn. 922,
722 A.2d 810 (1998), this court expressly relied on that
precedent in detailing the causation standard applicable
to an action for negligent performance of a contract,
as contrasted to one for breach of contract. We stated:
‘‘[T]he proximate cause test for negligence applies when
assessing damages for negligent performance of a con-
tract. The requirement of proximate cause is a less
severe limitation of liability than the requirement of
anticipation or foreseeability in breach of contract
cases. A proximate cause is [a]n actual cause that is a
substantial factor in the resulting harm . . . .’’ (Internal
quotation marks omitted.) Id., 105. Accordingly, under
Connecticut law, the causation standard applicable to
breach of contract actions asks not whether a defen-
dant’s conduct was a proximate cause of the plaintiff’s
injuries, but rather whether those injuries were foresee-
able to the defendant and naturally and directly resulted
from the defendant’s conduct.
With that standard in mind, we turn to the measure
of proof in the present case. ‘‘It is incumbent on the
party asserting either direct or consequential damages
to provide sufficient evidence to prove such damages.’’
(Emphasis added.) Sullivan v. Thorndike, 104 Conn.
App. 297, 304, 934 A.2d 827 (2007), cert. denied, 285
Conn. 907, 908, 942 A.2d 415, 416 (2008). Generally,
‘‘[p]roof of damages should be established with reason-
able certainty and not speculatively and problemati-
cally.’’ (Internal quotation marks omitted.) Leisure
Resort Technology, Inc. v. Trading Cove Associates,
277 Conn. 21, 35, 889 A.2d 785 (2006); see also Doeltz
v. Longshore, Inc., 126 Conn. 597, 601, 13 A.2d 505
(1940) (‘‘evidence of such certainty as the nature of the
case permits should be produced’’). At the same time,
the quantum of proof required is relaxed in instances
involving the wrongful breach of a contract by the
defendant. As the United States Supreme Court
observed more than one-half century ago: ‘‘[E]ven
where the defendant by his own wrong has prevented
a more precise computation, the jury may not render
a verdict based on speculation or guesswork. But the
jury may make a just and reasonable estimate of the
damage based on relevant data, and render its verdict
accordingly. In such circumstances juries are allowed
to act on probable and inferential, as well as direct and
positive proof. . . . Any other rule would enable the
wrongdoer to profit by his wrongdoing at the expense
of his victim. It would be an inducement to make wrong-
doing so effective and complete in every case as to
preclude any recovery, by rendering the measure of
damages uncertain.’’ (Citations omitted; internal quota-
tion marks omitted.) Bigelow v. RKO Radio Pictures,
Inc., 327 U.S. 251, 264–65, 66 S. Ct. 574, 90 L. Ed. 652
(1946); see also United States Naval Institute v. Charter
Communications, Inc., 936 F.2d 692, 697 (2d Cir. 1991)
(‘‘it is not error to lay the normal uncertainty . . . at the
door of the wrongdoer who altered the proper course of
events, instead of at the door of the injured party’’);
Jay Edwards, Inc. v. New England Toyota Distributor,
Inc., 708 F.2d 814, 821 (1st Cir.) (‘‘where the defendant’s
wrongdoing created the risk of uncertainty, the defen-
dant cannot complain about imprecision’’), cert. denied,
464 U.S. 894, 104 S. Ct. 241, 78 L. Ed. 2d 231 (1983);
Locke v. United States, 283 F.2d 521, 524 (Ct. Cl. 1960)
(‘‘[t]he defendant who has wrongfully broken a contract
should not be permitted to reap advantage from his
own wrong by insisting on proof which by reason of
his breach is unobtainable’’); Wood v. Pender-Doxey
Grocery Co., 151 Va. 706, 713, 144 S.E. 635 (1928)
(‘‘There are cases, however, and we think this is one,
in which the question of an intentional wrong is
involved. In such cases the degree of proof necessary
is much relaxed in favor of the injured party. Where
the wrongdoer creates the situation that makes proof
of the exact amount of damages difficult, he must realize
that in such cases juries are allowed to act upon proba-
ble and inferential as well as direct and positive, proof.’’
[Emphasis omitted; internal quotation marks omitted.]).
For that reason, the Restatement (Second) of Con-
tracts provides that a court may consider the willfulness
of a party’s breach in assessing damages: ‘‘Doubts are
generally resolved against the party in breach. A party
who has, by his breach, forced the injured party to seek
compensation in damages should not be allowed to
profit from his breach where it is established that a
significant loss has occurred. A court may take into
account all the circumstances of the breach, including
willfulness, in deciding whether to require a lesser
degree of certainty, giving greater discretion to the trier
of the facts.’’ 3 Restatement (Second), supra, § 352,
comment (a).
Even under a more relaxed standard, the plaintiff
must furnish some proof that the breach caused the
damages of which it complains. As one court has noted,
while ‘‘damages need not be ascertainable with absolute
exactness or mathematical precision . . . recovery for
speculative damages is precluded.’’ (Internal quotation
marks omitted.) Indiana Michigan Power Co. v. United
States, 422 F.3d 1369, 1373 (Fed. Cir. 2005); accord
Leisure Resort Technology, Inc. v. Trading Cove Asso-
ciates, supra, 277 Conn. 35 (award of damages may not
be based on conjecture). Put simply, the trial court
‘‘must have evidence by which it can calculate the dam-
ages, which is not merely subjective or speculative
. . . .’’ (Emphasis added.) Bronson & Townsend Co. v.
Battistoni, 167 Conn. 321, 326–27, 355 A.2d 299 (1974).
Such evidence of causation is lacking in the present
case. It is true that the record contains testimonial and
documentary evidence demonstrating that the depart-
ment denied the Medicaid application because the
defendant failed to comply with his contractual obliga-
tion to provide the required financial information to
the department. The record also contains the parties’
stipulation that if the department had granted the appli-
cation for Medicaid benefits, the department would
have paid the facility $47,561.18—a figure further sup-
ported in the record by invoices from the plaintiff.8 Yet,
the plaintiff produced no evidence that established or
supported an inference that, had the defendant com-
plied with his obligations under the agreement, the
department would have granted, and the plaintiff would
have received, those Medicaid benefits. The absence of
any such evidence whatsoever is fatal to the plaintiff’s
claim for $47,561 in damages.
The testimonial evidence submitted to the court dem-
onstrated, on the one hand, that submitting the proper
information to the department merely triggered a
review of the resident’s eligibility and, on the other
hand, the submission of such information was not a
guarantee of approval to receive such benefits. John
Leveque, an eligibility services supervisor at the depart-
ment, testified that the department could not determine
whether an applicant qualified for Medicaid absent a
review of the applicant’s financial information, which
was not furnished to the department in the present
case. As the defendant notes in his appellate brief, the
plaintiff did not ask Leveque ‘‘if, based upon the defen-
dant’s testimony regarding the assets maintained by
[his mother], he had an opinion regarding whether . . .
[she] would have qualified for [such] benefits.’’ In addi-
tion, the record before us does not indicate that the
plaintiff was prevented from presenting the proper
financial documentation, expert testimony, or other evi-
dence that would have otherwise established the resi-
dent’s likelihood of approval, nor has the plaintiff in
this appeal directed our attention to any such evidence.
As a result, the court’s implicit yet necessary finding
that the plaintiff would have received the Medicaid
funds had the defendant complied with his obligations
under the agreement9 was little more than ‘‘a pure guess
and was wholly unsupported’’ by the evidence adduced
at trial. Doeltz v. Longshore, Inc., supra, 126 Conn. 602.
Under Connecticut law, damages may not be predi-
cated on a contingency. Leisure Resort Technology,
Inc. v. Trading Cove Associates, supra, 277 Conn. 35.
That precept is perhaps best embodied in Lewis v. Hart-
ford Dredging Co., 68 Conn. 221, 35 A. 1127 (1896).
The plaintiff in that case sought damages based on the
difference between the actual value and the projected
market value of its oyster beds had the defendant dredg-
ing company not breached its contract. Id., 232–35. Our
Supreme Court rejected that measure of damages as
speculative because the projected market value of the
plaintiff’s oyster beds was based on the contingency of
a successful cultivation of oysters in those beds. Id.,
235–36; see also Leisure Resort Technology, Inc. v.
Trading Cove Associates, supra, 36 (claim of damages
speculative because plaintiff’s damages calculus sub-
ject to contingencies that had not been resolved at
operative time); Harper Machinery Co. v. Ryan-
Unmack Co., 85 Conn. 359, 364, 82 A. 1027 (1912) (A
claim of damages is speculative where ‘‘the right to
recover them was still to be determined. The calculation
of such damages would proceed upon a contingency
which might not happen.’’). The plaintiff’s claim for
damages in the present case likewise is predicated on
an unresolved contingency—namely, the approval of
Maude Buchman’s Medicaid application by the depart-
ment following a review of the requisite financial infor-
mation. As a result, the court’s finding that ‘‘[b]y failing
to make the deadlines set by the [department], the
defendant caused the plaintiff to lose the Medicaid
money’’ is mere speculation and conjecture, which ‘‘are
not allowable’’ in a breach of contract action. Harper
Machinery Co. v. Ryan-Unmack Co., supra, 364.
‘‘Causation [is] a question of fact for the [fact finder]
to determine’’; West Haven Sound Development Corp.
v. West Haven, supra, 201 Conn. 316; and, thus, is gov-
erned by the clearly erroneous standard of review.
There is no evidence in the record before us indicating
that, had the defendant complied with his obligations
under the agreement, the plaintiff would have received
any Medicaid payments. The court’s finding to the con-
trary, therefore, is clearly erroneous. Because the plain-
tiff failed to establish that its loss of Medicaid payments
naturally and directly resulted from the defendant’s con-
duct, the award of $47,561.18 in damages is improper.
II
The defendant also claims that the court erred in
finding in the plaintiff’s favor on its promissory estoppel
claim. For three distinct reasons, we agree.
First, the plaintiff has not alleged any promise by
the defendant independent of that made as part of his
entering into the agreement at the time of his mother’s
admission to the plaintiff’s facility. As a result, the
defendant is entitled to rely on the agreement as the
final integration of his rights and duties with respect
to that promise. See Levine v. Massey, 232 Conn. 272,
279, 654 A.2d 737 (1995).
Second, it is well settled that breach of contract and
promissory estoppel are inconsistent theories of recov-
ery, as promissory estoppel is appropriate only when
there is an absence of consideration to support a con-
tract. See Glazer v. Dress Barn, Inc., 274 Conn. 33,
88–89, 873 A.2d 929 (2005); Harley v. Indian Spring
Land Co., 123 Conn. App. 800, 831, 3 A.3d 992 (2010).
As this court has stated previously, ‘‘[a] duty of con-
struction is placed upon the trial court whenever a party
pleads inconsistent theories of recovery. . . .
Although a party may plead, in good faith, inconsistent
facts and theories, a court may not award a judgment
on inconsistent facts and conclusions. . . . [I]t is the
responsibility of the trial court to determine which of
the inapposite sets of facts the party has proved, and
then to render judgment accordingly.’’ (Internal quota-
tion marks omitted.) Harley v. Indian Spring Land
Co., supra, 831–32.
Third, we note that this court in certain circum-
stances has held that an inconsistent judgment is harm-
less, and does not constitute reversible error, where
there is sufficient evidence to support a judgment under
either theory of recovery. See, e.g., 300 State, LLC v.
Hanafin, 140 Conn. App. 327, 331–32, 59 A.3d 287 (2013)
(judgment rendered after court trial in plaintiff’s favor
on ‘‘mutually exclusive’’ claims for breach of lease and
quantum meruit was not reversible error ‘‘because the
plaintiff produced sufficient evidence to support the
judgment under either count’’); Pleines v. Franklin
Construction Co., 30 Conn. App. 612, 616, 621 A.2d
759 (1993) (although ‘‘proof of a contract ordinarily
precludes the remedy of unjust enrichment,’’ judgment
in favor of the plaintiff on both counts after court trial
was harmless error because sufficient evidence was
presented to support judgment under either theory); cf.
Harley v. Indian Spring Land Co., supra, 123 Conn.
App. 831, 833 n.25 (considering, inter alia, whether to
treat inconsistent judgment on promissory estoppel and
breach of contract counts as harmless error, citing
Pleines, and ultimately invoking supervisory powers to
vacate judgment on promissory estoppel count due to
unique procedural circumstances present in case). Even
if we were to apply such an analysis to the present
case, the plaintiff cannot prevail.
Proof of detrimental reliance necessarily entails evi-
dence of injury to a plaintiff. See, e.g., Stewart v. Cen-
dant Mobility Services Corp., 267 Conn. 96, 113, 837
A.2d 736 (2003) (‘‘[T]o rely, in the law of promissory
estoppel, is not merely to do something in response to
the inducement offered by the promise. There must be
a cost to the promisee of doing it.’’ [Internal quotation
marks omitted.]); W. v. W., 256 Conn. 657, 661, 779 A.2d
716 (2001) (promisee ‘‘must actually change his position
or do something to his injury which he otherwise would
not have done’’ [internal quotation marks omitted]);
Curcio v. Hartford Financial Services Group, 472 F.
Supp. 2d 239, 245 (D. Conn. 2007) (promissory estoppel
claim not viable ‘‘due to failure to allege sufficient detri-
mental reliance injury’’). In ruling in favor of the plaintiff
on its promissory estoppel claim, the court specifically
found that the defendant’s failure ‘‘to fulfill the terms
of the agreement of the promise to [the plaintiff]’’
caused the plaintiff to lose the benefit of Medicaid pay-
ments.10 As detailed in part I of this opinion, there is
no evidentiary support in the record before us to sub-
stantiate that finding, as the plaintiff’s receipt of any
Medicaid payments was dependent on the department’s
approval of Maude Buchman’s application. Accordingly,
even if subject to a harmlessness analysis, the plaintiff
has not met its burden in providing sufficient evidence
to support a judgment under a promissory estoppel
theory.
III
Mindful that ‘‘sound principles of judicial restraint
and judicial economy counsel [an appellate court] to
resolve only those issues that are necessary to the
proper determination of [an] appeal’’; (internal quota-
tion marks omitted) Stuart v. Stuart, 297 Conn. 26, 48,
996 A.2d 259 (2010); accord State v. Carrasquillo, 290
Conn. 209, 217 n.10, 962 A.2d 772 (2009) (‘‘we will not
entertain an appeal when the question presented is
purely academic’’); we ordinarily would not engage in
an interpretation of certain disputed contractual provi-
sions. In light of our conclusion in part I of this opinion
that the plaintiff cannot prevail on its breach of contract
claim because the record does not disclose any evi-
dence indicating that the defendant’s conduct caused
the damages complained of,11 interpretation of the dis-
puted contractual provisions is a purely academic exer-
cise. See Kevin Roche-John Dinkeloo & Associates v.
New Haven, 205 Conn. 741, 748–49, 535 A.2d 1287 (1988)
(‘‘[a]s we find that the [defendant] did not offer appro-
priate evidence to establish damages for breach of con-
tract, we need not address whether the allegations in
the complaint were sufficient to establish the cause of
action’’). The concurrence nevertheless has determined
to decide that issue. We thus, with great reluctance,
join that academic exercise because the legal exposition
set forth in the concurring opinion is contrary to several
well reasoned decisions of our trial judges; see, e.g.,
Cook Willow Health Center v. Andrien, Superior Court,
judicial district of New Britain, Docket No. CV-11-
6008672 (September 28, 2012) (54 Conn. L. Rptr. 729);
Glastonbury Healthcare Center, Inc. v. Esposito, Supe-
rior Court, judicial district of Hartford, Docket No. CV-
XX-XXXXXXX (June 23, 2008) (45 Conn. L. Rptr. 671); as
well as courts in other jurisdictions.12
A
The concurrence concludes that the defendant can-
not be held personally liable for breaching his obliga-
tions under the agreement.13 Central to its analysis is
the discussion of a body of federal law concerning
admissions practices that the parties to this appeal did
not raise in any manner before the trial court, or in
their appellate briefs and arguments before this court.
Unfortunately, the narrative provided in the concur-
rence tells but half the story with respect to that body
of federal law, which, in turn, leads it to mistakenly
declare that ‘‘[w]hen an individual with legal access to
a resident’s income signs an admission agreement, he
or she does so ‘without incurring personal financial
liability’ . . . . 42 U.S.C. § 1396r (c) (5) (B) (ii).’’
Section 1396r (c) (5) (A) of title 42 of the United States
Code provides in relevant part that ‘‘[w]ith respect to
admissions practices,’’ a nursing facility must ‘‘(ii) not
require a third party guarantee of payment to the facility
as a condition of admission (or expedited admission)
to, or continued stay in, the facility . . . .’’ Similarly,
General Statutes § 19a-550 (b) (26) provides in relevant
part that a patient ‘‘shall not be required to give a third-
party guarantee of payment to the facility as a condition
of admission to, or continued stay in, the facility . . . .’’
As at least one court in this state previously has recog-
nized, these provisions do not operate as an absolute
ban on third party liability in the nursing home contract
context—rather, they provide only that a third party
guarantor/surety relationship cannot be made a condi-
tion of admission or continued stay. See Cook Willow
Health Center v. Andrien, Superior Court, judicial dis-
trict of New Britain, Docket No. CV-11-6008672 (July
21, 2011) (52 Conn. L. Rptr. 329, 330) (Section 1396r
[c] [5] [A] [ii] of title 42 of the United States Code and
General Statutes § 19a-550 [b] [26] ‘‘make it illegal for
a nursing home such as the plaintiff here to refuse to
admit a potential resident unless a third party guarantee
of payment is made. Neither prohibits, however, third
party guarantees in a nursing home contract under all
circumstances. Moreover, courts have held that 42
U.S.C. § 1396r [c] [5] [A] [ii] does not prohibit voluntary
third party guarantee contracts.’’). The agreement in
the present case complies with the aforementioned
Medicaid provisions, as § XVIII (2) expressly provides
that the responsible party is not a guarantor for pay-
ment. See Sunrise Healthcare Corp. v. Azarigian, 76
Conn. App. 800, 808, 821 A.2d 835 (2003) (The contract
at issue ‘‘unambiguously complies with . . . statutory
requirements’’ where it provided, inter alia, that the
‘‘responsible party does not personally guarantee or
serve as surety for payment as described in [the enumer-
ated sections of the contract]. The responsible party
agrees that his or her liability for the failure to perform
any of the other obligations set forth in this agreement
shall be determined in accordance with these [p]ara-
graphs.’’ [Emphasis omitted; internal quotation marks
omitted.]).
Courts across this country have held that a responsi-
ble party may voluntarily undertake contractual obliga-
tions in agreements such as the one at issue here. For
example, in Podolsky v. First Healthcare Corp., 50 Cal.
App. 4th 632, 646, 58 Cal. Rptr. 2d 89 (1996), the court
explained that ‘‘[c]ontrary to appellant’s position, we do
not believe that the solicitation of otherwise voluntary
third party guarantors violates or subverts the terms of
applicable federal or state law in and of itself. Neither
federal nor state law prohibits nursing homes from vol-
untarily obtaining the signature of a willing responsible
party or third party guarantor when admitting nursing
home residents. Instead, the applicable statutes make
it unlawful to require third party guarantees as a condi-
tion of admission or continued residence in such facili-
ties. . . . Had Congress intended to forbid third party
guarantees under any circumstances, we presume it
would have said so.’’ (Citations omitted.) Likewise, the
court in Pioneer Ridge Nursing Facility Operations,
L.L.C. v. Ermey, 41 Kan. App. 2d 414, 419, 203 P.3d 4
(2009), concluded that although the trial court properly
stated that the nursing facility could not require a third
party guarantee as a condition of admission under fed-
eral law, its decision ‘‘fails to account for the fact that
[the responsible party] could have voluntarily made
himself responsible for any valid charges incurred by
his mother.’’ (Emphasis altered.)
Put simply, federal law prohibited the plaintiff from
requiring, as a prerequisite to admission, that the defen-
dant guarantee all of the debts incurred by his mother.
See Manor of Lake City, Inc. v. Hinners, 548 N.W.2d
573, 575 n.1 (Iowa 1996) (agreement requiring responsi-
ble party ‘‘to be bound in his or her individual capacity
by all of the terms and conditions of the [a]greement
pertaining to the [r]esident’’ invalid under 42 U.S.C.
§ 1396r [c] [emphasis added]). At the same time, federal
law did not proscribe the defendant’s voluntary election
to undertake certain specific contractual obligations,
thereby exposing himself to liability for his failure to
comply therewith. See Podolsky v. First Healthcare
Corp., supra, 50 Cal. App. 4th 646; Cook Willow Health
Center v. Andrien, supra, 52 Conn. L. Rptr. 330. Accord-
ingly, holding a responsible party personally liable in
such instances does not run afoul of federal law. Proper
interpretation of the agreement, therefore, centers on
the language employed therein.
B
Notably, the defendant entered into the agreement
as ‘‘the [r]esponsible [p]arty.’’ That designation is some-
thing of a term of art in admission agreements,
appearing routinely in such contracts. See, e.g., Aaron
Manor, Inc. v. Irving, 307 Conn. 608, 57 A.3d 342 (2013);
Olympus Healthcare Group, Inc. v. Muller, 88 Conn.
App. 296, 870 A.2d 1091 (2005); Sunrise Healthcare
Corp. v. Azarigian, supra, 76 Conn. App. 800; Athena
Holdings, LLC v. Marcus, Superior Court, judicial dis-
trict of Danbury, Docket No. CV-10-6003581 (April 23,
2013); Orchard Grove Specialty Care Center, LLC v.
Clairwood, Superior Court, judicial district of New Lon-
don, Docket No. CV-11-6008580 (April 9, 2012); Cook
Willow Health Center v. Andrien, supra, 52 Conn. L.
Rptr. 329; Torrington Health & Rehabilitation Center v.
Cisowski, Superior Court, judicial district of Litchfield,
Docket No. CV-10-5007241 (April 29, 2011); Whitney
Manor Convalescent Center, Inc. v. Lumpkin, Superior
Court, judicial district of New Haven, Docket No. CV-
XX-XXXXXXX (April 8, 2010) (49 Conn. L. Rptr. 653); Spec-
trum Healthcare Derby, LLC v. Stevens, Superior Court,
judicial district of New Britain, Docket No. CV-08-
5006913 (May 15, 2008) (45 Conn. L. Rptr. 612); Bishop
Wicke Health Center v. Gorel, Superior Court, judicial
district of Ansonia-Milford, Docket No. CV-06-5001424
(July 27, 2007) (43 Conn. L. Rptr. 626); Haven Health
Center of Litchfield Hills, LLC v. Parente, Superior
Court, judicial district of Litchfield, Docket No. CV-
XX-XXXXXXX (January 8, 2007) (42 Conn. L. Rptr. 583);
Saybrook Convalescent Hospital, Inc. v. Klevecz, Supe-
rior Court, judicial district of New London, Docket No.
CV-04-4001606 (October 12, 2006); Alzheimer’s
Resource Center of Connecticut, Inc. v. Carlstrom,
Superior Court, judicial district of New Britain, Docket
No. CV-04-4002045 (May 23, 2005).
In Sturman v. Socha, 191 Conn. 1, 11, 463 A.2d 527
(1983), our Supreme Court addressed a claim that the
term ‘‘responsible party,’’ as used in admission
agreements, was ambiguous. In that case, the plaintiff
nursing facility brought an action against the defendant
pursuant to a contract between the parties for an unpaid
bill for services rendered to the defendant’s father. Id.,
2. Although the defendant signed the admission
agreement as the ‘‘responsible party’’; id., 4; he argued
on appeal that ‘‘he is not personally liable on the admis-
sion agreement which he signed with the nursing home.
He argues that the words ‘Responsible Party,’ which
appear in the admission agreement immediately below
his signature, are ambiguous with regard to his personal
liability on the agreement.’’ Id., 9. Our Supreme court
disagreed, stating in relevant part: ‘‘From an examina-
tion of the admission agreement between the parties,
it is clear that the words ‘responsible’ and ‘responsible
party’ as they describe the defendant in the context of
this contract should be given their natural and ordinary
meaning; that being so, the defendant is liable for and
legally accountable or answerable for the discharge of
the duties and obligations which he had clearly under-
taken upon signing the instrument. . . . The court will
not torture words to impart ambiguity where ordinary
meaning leaves no room for ambiguity. . . . The cir-
cumstances surrounding the making of the contract,
the purposes which the parties sought to accomplish
and their motives cannot prove an intent contrary to the
plain meaning of the language used. . . . Therefore, in
construing the contract as a whole . . . we agree with
the trial judge that the admission agreement in this case
unambiguously placed the defendant in a position of
personal liability for the duties and obligations specified
therein.’’ (Citations omitted; internal quotation marks
omitted.) Id., 11–12. Perhaps mindful of Sturman, the
defendant in this appeal has not claimed that the
agreement, or the term ‘‘responsible party,’’ specifically,
is ambiguous, vague or misleading.
We also note that, in Sunrise Healthcare Corp. v.
Azarigian, supra, 76 Conn. App. 800, this court rejected
a claim that a responsible party as to an admission
agreement is merely an agent of the resident. Although
the defendant in that case had executed the agreement
‘‘both as [the resident’s] power of attorney and as the
‘responsible party’ ’’; id., 812; the court distinguished
those two capacities, stating: ‘‘The defendant clearly
signed the contract as the ‘responsible party.’ In so
doing, the defendant assumed the obligations of the
‘responsible party’ as set forth under the contract. These
obligations extend well beyond the defendant’s role’’
as the resident’s agent. Id., 813.
C
With that context in mind, we turn to the disputed
contractual provisions addressed by the concurring
opinion. The defendant argues, and the concurrence
agrees, that the language of the agreement does not
permit him to be held personally liable for breaching
certain specific contractual obligations that he volunta-
rily elected to undertake. We strongly disagree.
‘‘Where the language of the contract is clear and
unambiguous, the contract is to be given effect
according to its terms. . . . [I]n construing contracts,
we give effect to all the language included therein, as
the law of contract interpretation . . . militates
against interpreting a contract in a way that renders a
provision superfluous. . . . If a contract is unambigu-
ous within its four corners, intent of the parties is a
question of law requiring plenary review.’’14 (Internal
quotation marks omitted.) Assn. Resources, Inc. v. Wall,
298 Conn. 145, 183, 2 A.3d 873 (2010).
The defendant first contends that the language of
the agreement clearly and unambiguously limits the
responsible party’s personal liability to the plaintiff,
and, thus, that the court erred by awarding the plaintiff
damages in a circumstance purportedly not authorized
under the agreement’s terms. According to the defen-
dant, § IV (5) of the agreement sets forth the only cir-
cumstance under which the plaintiff could seek
satisfaction from the responsible party’s personal
funds—where the responsible party has received a
transfer of assets from the resident that results in the
resident’s ineligibility for Medicaid, and the responsible
party is required to use those assets, or at least an equal
amount of his own assets, to pay for the resident’s care
until the resident is determined eligible for Medicaid
assistance.15 In all other circumstances, the defendant
asserts, the responsible party’s liability is limited by the
first sentence of § XVIII (2) of the agreement, which
provides that the responsible party ‘‘does not personally
guarantee or serve as surety for payment as described
in paragraphs II [payment], III [security deposits], and
XIV [per diem rate].’’
Reading the agreement as a whole, as we must, we
cannot conclude that the responsible party’s liability
for a breach of the agreement is as limited as the defen-
dant and the concurrence suggest. Section XVIII (1)
provides that, in executing the agreement, the responsi-
ble party accepts a duty to ‘‘undertake faithfully all of
the obligations of [the] agreement.’’ (Emphasis added.)
Although the first sentence of § XVIII (2) does establish
that the responsible party is not a surety for payment
as described in three enumerated sections of the
agreement, the second sentence of the section explicitly
leaves open the possibility that the responsible party
can be found liable ‘‘for failure to perform any of the
other obligations set forth in [the] agreement,’’ and
provides that such liability ‘‘shall be determined in
accordance with the provisions of [the] agreement.’’16
(Emphasis added.)
Section IV of the agreement sets forth the responsible
party’s obligations with respect to Medicaid assistance,
‘‘all’’ of which the defendant, as the responsible party,
promised to ‘‘undertake faithfully’’ when he signed the
contract. Specifically, he agreed to ‘‘provide all informa-
tion that may be requested by the [department] in con-
nection with the application [for Medicaid] in
accordance with any deadlines established by the
[d]epartment,’’ and to ‘‘act promptly and expeditiously
to establish and maintain [his mother’s] eligibility for
Medicaid assistance . . . .’’ These obligations are dis-
tinct from the obligations set forth in §§ II, III, and XIV
of the agreement, and, in accordance with § XVIII (2)
of the agreement, the defendant properly can be found
liable for his failure to fulfill his duties.17 Indeed,
allowing the defendant to escape liability for his undis-
puted failure to satisfy the obligations set forth in § IV
would be effectively to read these provisions out of the
agreement, which cannot be the result under our case
law requiring that all provisions of a contract be given
meaning, and none be rendered superfluous.18 See, e.g.,
Assn. Resources, Inc. v. Wall, supra, 298 Conn. 183.
Although the concurrence alleges that the plaintiff
‘‘seeks to hold [the defendant] liable for damages predi-
cated on the resident’s financial obligations,’’ the facts
of this case belie that assertion. Unlike Sunrise Health-
care Corp. v. Azarigian, supra, 76 Conn. App. 800, this is
not a case in which the breach of contract and resulting
litigation stem from a responsible party’s failure to com-
ply with a contractual obligation to use a resident’s
‘‘assets for the payment of services.’’ (Emphasis omit-
ted.) Id., 808. This case concerns the defendant’s con-
ceded breach of entirely separate provisions in the
admission agreement regarding his duty to provide all
requested information to the department and timely
establish his mother’s eligibility for Medicaid following
the exhaustion of her financial assets. Count one of the
plaintiff’s complaint specifically alleges that the defen-
dant breached the agreement, inter alia, by his failure
‘‘to provide the [department] with the information they
sought within the time frames they sought it in order
to review [his mother’s] Medicaid application . . . .’’
Throughout this litigation, the plaintiff has sought to
obtain damages stemming from the defendant’s breach
of that contractual obligation pursuant to § XVIII (2),
which provides in relevant part that the defendant’s
liability for his failure to perform that obligation ‘‘shall
be determined in accordance with the provisions of this
agreement.’’ Significantly, the parties at trial entered
into a written stipulation that the department would
have paid the plaintiff’s facility $47,561.18 if it had
granted Medicaid benefits to the defendant’s mother.
At the time of her death, however, the defendant’s
mother had an unpaid balance of $99,820.78 due to the
facility. Thus, the plaintiff’s alleged loss is not predi-
cated on the financial obligations of the defendant’s
mother. Rather, it is predicated entirely on the loss
allegedly incurred as a result of the defendant breaching
his contractual obligation to provide all requested infor-
mation to the department and timely establish his moth-
er’s eligibility for Medicaid.
In conflating the concepts of ‘‘guarantor’’ and
‘‘responsible party’’ liability, the concurrence reasons
that a responsible party who breaches a specific con-
tractual obligation that it voluntarily agreed to perform
and which allegedly resulted in the nonpayment of tens
of thousands of dollars in nursing care costs neverthe-
less is immune from liability. We disagree. The trial
court found that the defendant breached his contractual
obligations to comply with all requests from the depart-
ment, and to act promptly and expeditiously to establish
and maintain his mother’s eligibility for Medicaid assis-
tance. The defendant does not challenge that finding
in this appeal. In our view, finding the defendant liable
for breach of contract for failing to perform obligations
he voluntarily undertook as a signatory to the
agreement is not the same as making him a guarantor
for his mother’s care under all circumstances. By way
of example, we agree that the defendant could not be
held personally responsible for paying for his mother’s
care if he had furnished all of the necessary documenta-
tion, but the department nevertheless denied Medicaid
benefits, because in that case, the defendant would
have satisfied his obligations under the agreement, and
there would have been no breach. Moreover, § XVIII
(2) of the agreement expressly leaves open the possibil-
ity that the responsible party can be held liable for
failure to perform any obligations other than the pay-
ment obligations set forth in §§ II, III, and XIV. To allow
the defendant to evade liability for his voluntary con-
tractual obligation under a provision that does not spec-
ify a remedy effectively rewrites the parties’ agreement
and removes all references to the responsible party’s
duties except for § IV (5), in contravention of the funda-
mental principle of contract law that all provisions of
a contract must be given effect. See Connecticut
National Bank v. Rehab Associates, 300 Conn. 314, 322,
12 A.3d 995 (2011) (reviewing court must ‘‘give effect to
all the language included therein, as the law of contract
interpretation . . . militates against interpreting a con-
tract in a way that renders a provision superfluous’’
[emphasis added; internal quotation marks omitted]).
Accordingly, we disagree with the concurrence that
the court improperly concluded that the defendant
could be held personally liable for breaching specific
contractual obligations that he voluntarily elected to
undertake.
The judgment is reversed and the case is remanded
with direction to render judgment in favor of the
defendant.
In this opinion BEAR, J., concurred.
1
See National Market Share, Inc. v. Sterling National Bank, 392 F.3d
520, 525 (2d Cir. (2004) (‘‘[c]ausation is an essential element of damages in
a breach of contract action’’); accord 3 Restatement (Second), Contracts
§ 346 (1981) (to prevail in breach of contract action, party must prove, in
addition to amount of loss sustained, that defendant’s breach of contract
‘‘caused’’ loss).
2
In addition, § XVIII of the agreement, titled ‘‘Obligations of the Parties,’’
states: ‘‘(1) The execution of this agreement will constitute an acceptance
[on] the part of the [f]acility, the [r]esident and the [r]esponsible [p]arty
to undertake faithfully all of the obligations of this agreement. (2) The
[r]esponsible [p]arty does not personally guarantee or serve as surety for
payment as described in paragraphs II, III, and XIV. Responsible [p]arty
liability for failure to perform any of the other obligations set forth in
this agreement shall be determined in accordance with the provisions of
this agreement.’’
3
The Probate Court for the district of Granby appointed the defendant
as conservator of his mother’s estate on May 22, 2007. On September 24,
2008, the court-appointed attorney for the defendant’s mother moved before
the Probate Court for the defendant’s removal as conservator, asserting that
the defendant had (1) failed to file an inventory with the Probate Court in
the time allowed by law; (2) failed to continue to pay the premium for the
court-ordered surety bond; (3) failed to respond to inquiries from the court
and other parties in interest, and failed to attend a status conference
requested by the court; and (4) failed to ‘‘successfully perform his duties’’
as conservator. On September 30, 2009, the Probate Court issued a memoran-
dum regarding a status conference held on September 15, 2009, regarding
the $99,820.78 balance owed to the plaintiff for the care of the defendant’s
mother and the allegation that Medicaid assistance ‘‘has been or will be
denied due to lack of cooperation by the [defendant].’’ In the memorandum,
the court decreed, inter alia, that the defendant’s $10,000 surety bond was
to be paid to the plaintiff.
The defendant contends on appeal, as he did before the trial court, that
the plaintiff’s failure to name him in his capacity as conservator as a party
to the action precluded the court from allowing the plaintiff to recover
against him for actions/omissions committed as conservator. We agree with
the trial court that the defendant’s appointment as conservator did not
relieve him of personal liability as the ‘‘responsible party’’ under the terms
of the agreement, and, accordingly, we reject this argument.
4
Although the parties stipulated that the department would have paid the
facility $47,561.18 if it had granted Medicaid benefits to the defendant’s
mother, both the oral decision and written judgment of the court awarded
the plaintiff $47,561.15. Neither party has taken issue with this $.03 discrep-
ancy in the judgment.
5
To be clear, it is undisputed that the defendant breached the agreement.
The court specifically found that the defendant failed to comply with his
contractual obligations, and the defendant does not contest that finding in
this appeal.
6
This claim properly was preserved at trial. In moving for summary judg-
ment at the close of the plaintiff’s case-in-chief, the defendant claimed, inter
alia, that ‘‘the plaintiff hasn’t proved causation in this matter. . . . There
has been absolutely no evidence, not one scintilla of evidence that if [the
defendant] had provided this [financial] information to the [department]
that Maude Buchman would have qualified for Medicaid, and that is the key
issue before the court. If [the court] decides that [the defendant] is somehow,
as the responsible party, liable, would she have qualified for Medicaid, we
haven’t heard from anybody. The witness from the [department], himself,
has said . . . to determine whether she qualified for Medicaid, whether she
would have received it, they would have needed the information, financial
information. Counsel has asked . . . many questions of [the defendant],
whether he provided documentation pursuant to subpoenas, whether he
was questioned at deposition; counsel had access to this information and
could have retained an expert to review all of Maude Buchman’s financial
history and testify whether she actually would [have] qualified for [Medicaid].
If we’re to assume that [the defendant] breached this contract, and we’re
putting the plaintiff in as good a position as it would [have] been [in] had
he not breached, then we’ve got Maude Buchman sitting, waiting to be—
to be determined whether she is—whether she would be granted Medicaid.
We have no evidence to that point. And the defendant has failed to prove
causation in the matter.’’ The defendant renewed that claim in both his
motion for articulation and his motion to reargue, which the court sum-
marily denied.
7
We note that some jurisdictions have recognized a ‘‘but-for’’ causation
requirement with respect to breach of contract actions. See Barkan v.
Dunkin’ Donuts, Inc., 627 F.3d 34, 40 (1st Cir. 2010) (holding that to succeed
on breach of contract claim under Rhode Island law, plaintiff must prove
defendant’s breach was but-for cause of damages); Citizens Federal Bank
v. United States, 474 F.3d 1314, 1319 (Fed. Cir. 2007) (requiring injured
party to prove but-for causation in lost profits breach of contract cases is
one approach taken by courts in Federal Circuit); Point Productions A.G.
v. Sony Music Entertainment, Inc., 215 F. Supp. 2d 336, 341 (S.D.N.Y. 2002)
(in breach of contract action, ‘‘[p]laintiff cannot recover if it would have
suffered the harm regardless of defendant’s actions’’).
8
The written stipulation entered into by the parties and admitted into
evidence on October 13, 2011, states: ‘‘The parties agree and stipulate as
follows: (1) Maude Buchman was admitted to [the plaintiff’s facility] on
November 15, 2006, with a diagnosis of dementia. [The defendant] signed
the Admission Agreement as Responsible Party. Maude Buchman remained
a resident of [the plaintiff’s facility] until her death on May 11, 2009. Had the
[department] granted Medicaid benefits to Maude Buchman, [the plaintiff’s
facility] would have been paid $47,561.18 from the [department]. (2) The
Admission Agreement can be admitted into evidence as a full exhibit.’’
9
In its oral decision, the court found both that the defendant’s breach of
contract caused the plaintiff to lose ‘‘its ability to receive $47,561.18 in
Medicaid assistance’’ and that ‘‘[b]y failing to make the deadlines set by the
[department], the defendant caused the plaintiff to lose the Medicaid money.’’
10
US Ecology, Inc. v. State, 129 Cal. App. 4th 887, 28 Cal. Rptr. 3d 894
(2005), discussed the causation requirement in the context of damages for
promissory estoppel. The court in that case noted that the Restatement
(Second) of Contracts ‘‘considers a promissory estoppel claim as equivalent
to one for breach of contract: ‘A promise binding under this section is a
contract, and full-scale enforcement by normal remedies is often appro-
priate.’ ’’ (Emphasis omitted.) Id., 903, citing 1 Restatement (Second), Con-
tracts § 90, comment (d) (1981). The court then observed that ‘‘except for
its equitable nature and the lack of a necessity for consideration, promissory
estoppel claims are akin to contract actions, including the recovery of dam-
ages and the proof necessary to recover them.’’ Id.; cf. Sheets v. Teddy’s
Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980) (promissory
estoppel originated as ‘‘[t]he development of liability in contract for action
induced by reliance upon a promise, despite the absence of common-law
consideration normally required to bind a promisor’’ [emphasis added]). As
a result, the court concluded that ‘‘because promissory estoppel claims are
aimed solely at allowing recovery in equity where a contractual claim fails
for a lack of consideration, and in all other respects the claim is akin to
one for breach of contract, it is logical and proper to require that any claimed
damages be caused by a defendant’s breach of the agreement. Because
promissory estoppel is viewed as an ‘informal contract,’ causation must be
required as an element that a plaintiff must prove, just as in ordinary contract
actions.’’ US Ecology, Inc. v. State, supra, 904; accord Rhode Island Hospital
Trust National Bank v. Varadian, 419 Mass. 841, 850, 647 N.E.2d 1174
(1995) (promissory estoppel action ‘‘is equivalent to a contract action, and
the party bringing such an action must prove all the necessary elements of
a contract other than consideration’’). The court further emphasized that
‘‘[a] party allowed in equity to pursue a claim for promissory estoppel
because it has no enforceable contract should not be placed in a position
better than one with an enforceable contract.’’ US Ecology, Inc. v. State,
supra, 905. We agree with that reasoning.
11
At no point has the concurrence ever expressed any disagreement with
that legal conclusion.
12
To be clear, the discussion contained in part III of this opinion is dictum.
‘‘Dictum is generally defined as [a]n expression in an opinion which is not
necessary to support the decision reached by the court. . . . A statement
in an opinion with respect to a matter which is not an issue necessary for
decision. . . . Our Supreme Court has instructed that dicta have no prece-
dential value.’’ (Citation omitted; internal quotation marks omitted.) Foun-
tain Pointe, LLC v. Calpitano, 144 Conn. App. 624, 653–54, 76 A.3d 636,
cert. denied, 310 Conn. 928, 78 A.3d 147 (2013). Having concluded that the
plaintiff cannot prevail in this action because evidence of the requisite causal
link for an award of damages is lacking—a conclusion with which the
concurrence does not quarrel—interpretation of the disputed contractual
provisions in this case is not necessary to support the decision reached by
the court.
13
It is undisputed that the defendant breached the agreement with the
plaintiff. The plaintiff’s complaint contained such allegations and the court,
as finder of fact, specifically found that the defendant failed to comply with
his contractual obligations. The defendant does not contest that finding in
this appeal.
14
Neither party has asserted that the agreement is ambiguous.
15
We are not persuaded by the defendant’s contention that § IV (5) of
the agreement sets forth the only delineated remedy contemplating the
responsible party’s personal liability. Indeed, that section provides only that,
‘‘[i]f the [r]esponsible [p]arty has received a transfer of assets’’ from the
resident that renders the resident ineligible for Medicaid assistance, the
responsible party agrees to use the transferred assets, or an equal amount
of his own assets, for the cost of the resident’s care. (Emphasis added.)
The agreement contains no promise by the responsible party that such a
transfer will not occur, and accordingly, the reference to payment from the
responsible party’s personal assets is better construed as another duty of
the responsible party than as a remedy for some unspecified breach of
the agreement.
As we read it, the concurring opinion suggests that the scope of the
defendant’s liability, and hence any ensuing remedies, must be expressly
provided for in the agreement. See concurring opinion and footnote 15 of
concurring opinion (‘‘the responsible party was liable only for using the
resident’s funds for purposes other than payment to the facility’’; ‘‘[t]he
agreement obligated the responsible party to pay the plaintiff only to the
extent that it had access and control of the resident’s resources’’ [emphasis
omitted]). Significantly, however, § XVIII (2) does not say that responsible
party liability shall be determined as ‘‘set forth’’ in the other provisions of
the agreement; it simply says that it shall be determined ‘‘in accordance
with’’ the other provisions of the agreement. (Emphasis added.) In our view,
that diction plainly leaves open the possibility that liability for a breach
must be determined by looking at the language of the provision breached
and then applying well established principles of contract law and expectation
damages to place the plaintiff in the position that it would have been in
had the responsible party performed as promised. Although § XVIII (2) does
not specify its own remedies, contract law imposes no such requirement.
See, e.g., International Marine Holdings, Inc. v. Stauff, 44 Conn. App. 664,
676, 691 A.2d 1117 (1997) (The court noted that parties to a contract ‘‘may
agree on the remedies available in the event of a breach . . . . If the lan-
guage of the agreement discloses that the parties intended to limit the
remedies to those stated, the agreement will be enforced and the party will
be limited to the exclusive remedies outlined in the agreement. . . . A
contract will not be construed to limit remedial rights unless there is a
clear intention that the enumerated remedies are exclusive,’’ and the court
concluded that there was no intention to limit the available remedies where
the plaintiff’s proposed reading of the agreement required a ‘‘bizarre result
. . . .’’ [Citation omitted; internal quotation marks omitted.]). In the present
case, it would be a bizarre result indeed if § XVIII (2) provides for the
imposition of remedies ‘‘in accordance with’’ the other provisions of the
agreement, yet none of those other provisions provide a remedy.
Sunrise Healthcare Corp. v. Azarigian, supra, 76 Conn. App. 800, on which
the concurrence relies, is instructive in this regard. That case concerned a
contract with provisions nearly identical to those in the agreement at issue
here. On appeal, this court found that the language of the agreement did
not violate the Medicaid statutes. Further, we held that the responsible party
was properly found liable for transferring the resident’s assets—over which
she had control—instead of using them to pay the facility, which was specifi-
cally prohibited under the agreement. Id., 808. Notably, it does not appear
that the provision at issue in Sunrise Healthcare Corp. set forth a specific
remedy requiring the responsible party to repay the amount of any improp-
erly transferred assets, yet that was the remedy imposed by the trial court
and affirmed by this court. The application of general principles of contract
law to furnish an appropriate remedy in that case undermines the defendant’s
argument that he can be found liable only if the parties contracted for a
specific remedy in the event of a breach of one of the agreement’s provisions.
16
To be clear, § XVIII (2) provides simply that liability for failure to perform
any of the obligations in the agreement other than those set forth in §§ II,
III, and XIV ‘‘shall be determined in accordance with the provisions of this
agreement.’’ We do not read this language as requiring that a specific remedy
be set forth in the agreement; rather, the responsible party’s liability can be
determined ‘‘in accordance with’’ the agreement by examining the provision
breached and determining the remedy that would put the facility in the
position it would have been in had the responsible party performed as
promised. See, e.g., Torosyan v. Boehringer Ingelheim Pharmaceuticals,
Inc., supra, 234 Conn. 32 (purpose of contract damages to place injured
party in position he would have been in had contract been performed).
Indeed, reading § XVIII (2) in the manner proposed by the concurrence
would render the provision superfluous because no section of the agreement
can properly be read to set forth a specific remedy in the event of a breach
by the responsible party.
17
We note that Aaron Manor, Inc. v. Irving, 126 Conn. App. 646, 654–55,
12 A.3d 584 (2011), rev’d in part, 307 Conn. 608, 57 A.3d 342 (2013), patently
is distinguishable from the present case. Aaron Manor, Inc., concerned the
alleged breach of a provision in the admission agreement providing: ‘‘[i]f
the responsible party has control of or access to the patient/resident’s income
and/or assets, the responsible party agrees that these funds shall be used
for the patient/resident’s welfare, including but not limited to making prompt
payment for care and services rendered to the patient/resident in accordance
with the terms of this agreement.’’ (Emphasis omitted; internal quotation
marks omitted.) Id., 654. The court ultimately concluded that the responsible
party was not liable for a breach of that specific provision because she did
not have the requisite control over, or access to, the funds as contemplated
by the agreement. Id., 654–55. Sunrise Healthcare Corp. v. Azarigian, supra,
76 Conn. App. 800, likewise concerned the same provision of the relevant
admission agreement; this court held that the responsible party properly
was held liable where she did have control over the resident’s assets. Id.,
808–10. By contrast, in the present case, the breach at issue stems from
the entirely separate provisions in the admission agreement regarding the
responsible party’s duty to provide all requested information to the depart-
ment and timely establish his mother’s eligibility for Medicaid. The responsi-
ble party’s access to or control over the resident’s funds is irrelevant to his
liability for breach of these contractual duties.
Although this specific issue has not been reached previously by this
court, we note that the defendant’s principal contention, championed by
the concurring opinion, has been flatly and repeatedly rejected in our Supe-
rior Court. In Cook Willow Health Center v. Andrien, supra, 54 Conn. L.
Rptr. 729, the plaintiff nursing home brought an action for breach of contract
against the defendant, who had signed an admission agreement as the respon-
sible party. The defendant filed a special defense alleging that the agreement
was ‘‘void and unenforceable pursuant to 42 U.S.C. § 1396r (c) (5) (A) (ii)
and General Statutes § 19a-550 (b) (26) because the agreement makes the
defendant personally liable for the cost of [her mother’s] nursing care.’’ Id.,
730. The court granted the plaintiff’s motion to strike that defense, reasoning
as follows: ‘‘[The defendant claims that the agreement] contains a personal
guarantee. The plaintiff argues that the agreement does not contain a per-
sonal guarantee, and furthermore, the complaint is one based upon a breach
of contract rather than a personal guarantee. [Section 1396r (c) (5) (A) and
§ 19a-550 (b)] make it illegal for a nursing home to refuse to admit a potential
resident unless a third party guarantee of payment is made.
‘‘Section IV.2. of the agreement states: ‘The responsible party does not
personally guarantee or serve as surety for payment for the care provided
to the resident by the facility. The responsible party acknowledges and
agrees that he or she wants the resident to be admitted to and to receive
the care and services provided by the facility; that he or she is making
certain promises in this agreement; and that the facility is admitting the
resident and providing care and services in reliance upon these promises.
The responsible party is personally liable for any damage incurred by the
facility due to the responsible party’s failure to fulfill these promises.’ This
provision of the agreement clearly indicates that the defendant as the respon-
sible party is not guaranteeing the payment. Her failure to meet her obliga-
tions would only indicate that she breached the agreement, resulting in
damages to the plaintiff because of nonpayment for her mother’s care that
would have been available through Medicaid had the defendant acted prop-
erly. . . .
‘‘The defendant relies on Sunrise Healthcare Corp. v. Azarigian, [supra,
76 Conn. App. 800], for the proposition that the use of the term ‘personally
liable’ in a nursing home admission contract per se violates the federal and
state statutes. In that case, the Appellate Court held that the contract before
it did not violate 42 U.S.C. § 1396r because (1) it had a provision expressly
prohibiting personal liability of the responsible party for the payments made
from the resident’s account; and (2) it merely obligated the responsible
party to use the assets of the resident to make the payments. Id., 808. A
contract unambiguously complies with the statutory requirements in the
Medicaid Act, 42 U.S.C. § 1396r (c), when, ‘[f]irst, it expressly prohibits
personal liability on the part of the defendant for payments made to the
plaintiff from [the resident’s] account,’ and second, ‘the contract obligates
the defendant to use . . . [the resident’s] assets for the payment of services.’
Id. The Appellate Court did not hold that the voluntary making of a third
party guarantee was illegal. The agreement does not contain a personal
guarantee. The agreement does set forth a scenario in which the responsible
party would be liable for any costs of care and services for the resident
incurred should the resident make a transfer rendering him/her ineligible for
Medicaid payment or assistance.’’ (Footnote omitted.) Cook Willow Health
Center v. Andrien, supra, 54 Conn. L. Rptr. 730–31. Accordingly, the court
concluded that ‘‘[i]n this case, the defendant assumed the responsibility of
admitting her mother to the plaintiff’s facility and agreed to serve as the
primary contact for her care. The defendant undertook certain obligations
under the agreement, which the plaintiff alleges she failed to perform. The
plaintiff’s complaint is not based upon a breach of a promise to answer for
the debt of another, but rather a breach of contract.’’ Id., 731.
Even more directly on point is Glastonbury Healthcare Center, Inc. v.
Esposito, supra, 45 Conn. L. Rptr. 671. In Glastonbury Healthcare Center,
Inc., the plaintiff care facility brought an action against the defendant to
recover expenses incurred for the care of his mother after the department
denied his mother’s Medicaid application ‘‘ ‘due to the lack of sufficient
information’ ’’ regarding his mother’s assets. Id., 673. As in the present case,
the admission agreement at issue in Glastonbury Healthcare Center, Inc.,
‘‘[required] the responsible party to provide all information that may be
requested by [the department] in connection with an application for Medicaid
and to promptly and expeditiously establish and maintain eligibility for
[Medicaid assistance] . . . .’’ Id., 672. Though the defendant in Glastonbury
Healthcare Center, Inc., signed the agreement only as his mother’s represen-
tative, and not as the responsible party, the court nevertheless found that
the defendant had entered into an oral contract with the facility to undertake
the obligations of the responsible party because the facility informed him
that he was the responsible party at the time he signed the agreement and
informed him of his duties as the responsible party—including to establish
his mother’s eligibility for Medicaid and provide all information requested
by the department—and the defendant did not object. Id., 672–73. The court
then found that the defendant violated this contract by failing to provide
the department with the requested information regarding his mother’s assets
and failing to act promptly to establish and maintain her Medicaid eligibility.
Id., 674. The court stated explicitly that the defendant’s ‘‘liability . . . in
breach of contract is not based upon the promise to answer for the debt
of [his mother], but rather for his failure to meet his entirely separate
responsibility as a responsible party,’’ and awarded the plaintiff damages
resulting from the defendant’s breach. (Emphasis added.) Id. We find the
reasoning of Andrien and Glastonbury Healthcare Center, Inc., to be highly
persuasive and instructive.
18
To the extent that the defendant argues that he should not be liable for
his failure to perform his obligations under § IV of the agreement because
the plaintiff could have, or should have, filed a Medicaid application on
behalf of his mother, we are not persuaded by that assertion. Under the
plain terms of the agreement, it was the defendant as the responsible party—
and not the plaintiff facility—who undertook the contractual obligation to
apply for and establish the resident’s eligibility for Medicaid assistance.
Moreover, the record does not establish that the plaintiff had access to
the confidential financial information necessary to complete a Medicaid
application for the defendant’s mother.