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CONNECTICUT LIGHT AND POWER COMPANY v.
GARY PROCTOR
(AC 35952)
Lavine, Alvord and Bear, Js.
Argued April 15—officially released June 30, 2015
(Appeal from Superior Court, judicial district of
Tolland, Hon. Lawrence C. Klaczak, judge trial referee.)
Derek V. Oatis, for the appellant (defendant).
Alexander G. Snyder, for the appellee (plaintiff).
Opinion
BEAR, J. The defendant, Gary Proctor, appeals from
the judgment of the trial court in favor of the plaintiff,
Connecticut Light & Power Company, on the first count
of its complaint alleging an implied in fact contract
between the parties.1 The defendant claims on appeal
that the court improperly found the existence of an
implied in fact contract subjecting him to liability for
certain electrical services. We affirm the judgment of
the court.
The record reveals the following relevant facts and
procedural history. Prior to June, 2008, the defendant
was employed by Avicola of America (Avicola) as a
general manager of a chicken business located on a
farm at 44 Upper Butcher Road in Ellington.2 In June,
2008, the chicken business was purchased by Robert
Chan doing business as Eastern Poultry and Pedigree
Chicks (Pedigree Chicks). When the Avicola business
was sold, the defendant became employed as a consul-
tant to Pedigree Chicks.
On August 20, 2008, the defendant telephoned the
plaintiff and sought to establish an electrical services
account for Pedigree Chicks. Pedigree Chicks, however,
was not registered with the Secretary of State, and
thus, under the plaintiff’s rules, was not eligible for an
account with it.3 The defendant declined to assume
personal responsibility for the costs of providing elec-
tricity to the farm for Pedigree Chicks by having the
account placed in his name, and, therefore, no such
account was established at that time.
On November 26, 2008, the defendant again tele-
phoned the plaintiff concerning the establishment of
an electrical services account for Pedigree Chicks. Dur-
ing the telephone call to the plaintiff, the defendant
provided the plaintiff with his full name, home address,
home and cellular telephone numbers, and his social
security number. This information, according to the
plaintiff, is obtained only when a party such as the
defendant is assuming responsibility for an electrical
services account. The defendant additionally told the
plaintiff that he would assume responsibility for all
electrical services to the farm and chicken business on
and after June 20, 2008, the date of the purchase of
the chicken business by Pedigree Chicks.4 The plaintiff
mailed to the defendant a written application for service
and a letter asking the defendant to complete, sign, and
return the application with a security deposit.5
According to the plaintiff, the application for service is
sent contemporaneously with the creation of an
account, and the letter addressed to the defendant and
sent with the application was dated November 26, 2008.
The defendant did not complete and return the applica-
tion, but rather claimed to have traveled in his car to
New Jersey to deliver the application to Chan.6
The plaintiff did not receive any payment for the
electrical services it provided, and on August 20, 2009,
it terminated the provision of electrical services to the
defendant for the Pedigree Chicks business. At the time
of the termination of services, the total amount owed
was $14,620.51.
On October 26, 2011, the defendant was served with
the plaintiff’s two count complaint, alleging breach of
an implied in fact contract in the first count, and unjust
enrichment in the second count. On June 11, 2013, the
case was tried to the court, and on June 19, 2013, the
court rendered judgment in favor of the plaintiff in the
amount of $14,620.51 on the count of implied in fact
contract and found in favor of the defendant on the
count of unjust enrichment.7 In a brief memorandum
of decision, the court stated: ‘‘The plaintiff brings this
action in two counts (implied contract and unjust
enrichment) alleging that it provided electrical service
to property located at 44 Upper Butcher Road in Elling-
ton, Connecticut at the request of [the defendant]. The
amount of the unpaid billings is $14,620.51. The defen-
dant claims he is not responsible for said debt.
‘‘The property was utilized as a business enterprise
known as ‘Pedigree Chicks,’ which was not registered
as a business with the State of Connecticut. Pedigree
Chicks was a poultry operation and [the defendant] was
a part-time employee who, at the time, worked about
three hours a day twice a week.
‘‘The owner of the business (which was just starting
up in June 2008) was a gentleman from New Jersey
named ‘Chan.’ At that point in time [the defendant]
(rather naively) called [the plaintiff] to arrange for elec-
trical service for the poultry business. Mr. Chan was
not present at the trial and [the defendant] was the
only defense witness. Two [of the plaintiff’s] employees
testified from business records about the contact per-
son ([the defendant]) and the billings for electrical ser-
vice before the account was closed in August 2009.
Adding to the confusion was the fact that some corre-
spondence about the account was sent to the Ellington
business address while the defendant’s home address
was in Bolton.
‘‘When [the defendant] finally realized he was being
billed he drove to New Jersey and met with Mr. Chan,
trying to persuade him to take responsibility for the
[plaintiff’s] bill. That effort was unsuccessful and this
lawsuit was commenced.
‘‘[The defendant] was of the opinion that he was doing
Mr. Chan a favor by arranging for electrical service, but
[the plaintiff] had the [defendant’s] name, his social
security number, and his home address on the applica-
tion form. [The defendant] never asked to close off the
account and [the plaintiff] complied with Public Utility
regulations in its handling of the account.
‘‘While the court is sympathetic to [the defendant’s]
plight the court finds there was an implied contract
entered into by [the defendant] with the plaintiff. He
mistakenly relied on Mr. Chan to pay the electrical bills.
‘‘Judgment for the plaintiff in the amount of
$14,620.51 (on the count of implied contract). Judgment
for the defendant on the count of unjust enrichment.
Costs are not awarded.’’8
On August 15, 2013, the defendant appealed to this
court.
We begin by setting forth the relevant standard of
review and the legal principles that inform our analysis.
As this court has previously explained in cases of
implied in fact contracts, ‘‘[a] contract implied in fact
depends on an actual agreement that there be an obliga-
tion created by law that imposes a duty to perform,
and it may be inferred from words, actions or conduct.
. . . It is not fatal to a finding of an implied contract
that there were no express manifestations of mutual
assent if the parties, by their conduct, recognized the
existence of contractual obligations. . . . Whether and
on what terms a contractual commitment has been
undertaken are ultimately questions of fact which, like
any other findings of fact, may be overturned only if
the trial court’s determinations are clearly erroneous.’’
(Internal quotation marks omitted.) Gould v. Hall, 64
Conn. App. 45, 54, 779 A.2d 208 (2001).
‘‘The resolution of conflicting factual claims falls
within the province of the trial court. . . . The trial
court’s findings are binding upon this court unless they
are clearly erroneous in light of the evidence and the
pleadings in the record as a whole.’’ (Internal quotation
marks omitted.) Old Colony Construction, LLC v.
Southington, 316 Conn. 202, 224, 113 A.3d 406 (2015).
‘‘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.’’
(Internal quotation marks omitted.) Budrawich v.
Budrawich, 156 Conn. App. 628, 637, A.3d (2015).
‘‘Where there is conflicting evidence . . . we do not
retry the facts or pass upon the credibility of the wit-
nesses. . . . The probative force of conflicting evi-
dence is for the trier to determine. . . . [I]t is well
established that a reviewing court is not in the position
to make credibility determinations. . . . This court
does not retry the case or evaluate the credibility of
the witnesses. . . . Rather, we must defer to the [trier
of fact’s] assessment of the credibility of the witnesses
based on its firsthand observation of their conduct,
demeanor and attitude.’’ (Citation omitted; internal quo-
tation marks omitted.) Eaddy v. Bridgeport, 156 Conn.
App. 597, 606–607, 112 A.3d 230 (2015).
‘‘Whether [a] contract is styled express or implied
involves no difference in legal effect, but lies merely in
the mode of manifesting assent. . . . A true implied
[in fact] contract can only exist [however] where there
is no express one. It is one which is inferred from the
conduct of the parties though not expressed in words.
Such a contract arises where a plaintiff, without being
requested to do so, renders services under circum-
stances indicating that he expects to be paid therefor,
and the defendant, knowing such circumstances, avails
himself of the benefit of those services. In such a case,
the law implies from the circumstances, a promise by
the defendant to pay the plaintiff what those services
are reasonably worth. . . . Although both express con-
tracts and contracts implied in fact depend on actual
agreement . . . [i]t is not fatal to a finding of an implied
contract that there were no express manifestations of
mutual assent if the parties, by their conduct, recog-
nized the existence of contractual obligations.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Janusauskas v. Fichman, 264 Conn. 796, 804–805, 826
A.2d 1066 (2003).
‘‘The term implied contract . . . often leads to con-
fusion because it can refer to an implied in fact contract
or to an implied in law contract. An implied in fact
contract is the same as an express contract, except that
assent is not expressed in words, but is implied from
the conduct of the parties. . . . On the other hand, an
implied in law contract is not a contract, but an obliga-
tion which the law creates out of the circumstances
present, even though a party did not assume the obliga-
tion . . . . It is based on equitable principles to operate
whenever justice requires compensation to be made.
. . . An implied in law contract may arise due to one
party being unjustly enriched to the detriment of the
other party. . . . Accordingly, an implied in law con-
tract is another name for a claim for unjust enrichment.’’
(Citations omitted; internal quotation marks omitted.)
Vertex, Inc. v. Waterbury, 278 Conn. 557, 573–74, 898
A.2d 178 (2006).9
To establish the existence of an implied in fact con-
tract, the plaintiff must prove that it rendered services
with the reasonable expectation that the defendant
would pay for the services and that the defendant
accepted those services in a manner that reasonably
would lead the plaintiff to believe that the defendant
intended to pay for the services. See Janusauskas v.
Fichman, supra, 264 Conn. 804–805 (implied in fact
contract ‘‘arises where a plaintiff, without being
requested to do so, renders services under circum-
stances indicating that he expects to be paid therefor,
and the defendant, knowing such circumstances, avails
himself of the benefit of those services’’ [internal quota-
tion marks omitted]).
The court found that the plaintiff proved the exis-
tence of an implied in fact contract,10 and we conclude
that the defendant has not demonstrated that finding
to be clearly erroneous under either prong of the clear
error standard, e.g., that 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 sup-
port it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake
has been committed.
The judgment is affirmed.
In this opinion the other judges concurred.
1
As set forth and discussed in more detail in this opinion, the first count
of the plaintiff’s complaint alleged an implied in fact contract, and the second
count alleged unjust enrichment, which is also known as an implied in
law contract.
2
The farm located at 44 Upper Butcher Road in Ellington was leased to
Avicola, and later to Eastern Poultry and Pedigree Chicks, by its owner,
Henry Seifert.
3
To set up a commercial account with the plaintiff, a business must be
registered with the Secretary of State in accordance with the applicable
state statutes and regulations.
4
When this assumption of responsibility occurred, the plaintiff was able
to close the account of Avicola, its prior customer with respect to the
chicken business on the farm. The new account was denominated by the
plaintiff as ‘‘Gary Proctor d/b/a Pedigree Chicks.’’
5
We note that the application for service and letter were mailed to the
defendant’s home address and not to Pedigree Chick’s business address.
6
The defendant testified that ‘‘I got in my car, and I took it directly to
Mr. Chan and said, you know, you’ve got to have this in your name, and
you’ve got to pay the bill, or, you know, pay the application fee.’’
7
We note that the equitable remedy of unjust enrichment is not available
to a plaintiff if there was in fact a contract between the parties, as found
by the court in this case, although both theories may be pleaded separately
in a complaint. See Meaney v. Connecticut Hospital Assn., Inc., 250 Conn.
500, 517–18, 735 A.2d 813 (1999) (party cannot be held liable simultaneously
for breach of express contract and implied in law contract governing same
subject matter); Vertex, Inc. v. Waterbury, 278 Conn. 557, 574, 898 A.2d 178
(2006) (‘‘an implied in law contract is another name for a claim for unjust
enrichment’’). A court, therefore, cannot grant relief on a theory of unjust
enrichment unless the court first finds that there was no contract between
the parties. See Laser Contracting, LLC v. Torrance Family Ltd. Partner-
ship, 108 Conn. App. 222, 229, 947 A.2d 989 (2008).
8
Because the court rendered judgment for the defendant on the unjust
enrichment count and the plaintiff did not file an appeal or cross appeal,
we do not discuss the substance of the second count further in this opinion.
9
‘‘Unjust enrichment applies wherever justice requires compensation to
be given for property or services rendered under a contract, and no remedy
is available by an action on the contract. . . . A right of recovery under
the doctrine of unjust enrichment is essentially equitable, its basis being
that in a given situation it is contrary to equity and good conscience for
one to retain a benefit which has come to him at the expense of another.
. . . With no other test than what, under a given set of circumstances, is
just or unjust, equitable or inequitable, conscionable or unconscionable, it
becomes necessary in any case where the benefit of the doctrine is claimed,
to examine the circumstances and the conduct of the parties and apply this
standard.’’ (Citations omitted; internal quotation marks omitted.) Hartford
Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282–83,
649 A.2d 518 (1994).
10
There was no express written contract between the parties in this case
because the defendant did not complete, sign, and return the application
for service with a deposit to the plaintiff. The absence of a written contract
or agreement, however, was not fatal to the plaintiff’s claim, as the court
found that there was an implied in fact contract pursuant to the allegations
of the first count of the plaintiff’s complaint.