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MICHAEL S. BRACKEN, JR. v. TOWN OF
WINDSOR LOCKS
(AC 39680)
Lavine, Alvord and Prescott, Js.
Syllabus
The plaintiff, who had been employed as a police officer by the defendant
town and had entered into a settlement agreement with the town arising
out of a prior action concerning his wrongful termination, sought to
recover damages arising out of the town’s alleged breach of that
agreement. The agreement provided that, for the period between 1987
and 1993 during which the plaintiff was not employed by the town, the
town would restore him to ‘‘full benefits, privileges and emoluments of
employment.’’ He claimed that the town breached that agreement by
failing to purchase certain credits toward his pension for those years.
The matter was tried to the court, which determined that the plaintiff’s
action, which was commenced in 2014, was barred by the six year
statute of limitations pertaining to contracts (§ 52-576) and the doctrine
of laches. On the plaintiff’s appeal to this court, held:
1. The trial court improperly concluded that the plaintiff’s action was barred
by § 52-576; that court based its conclusion on an erroneous factual
finding that the action accrued when the town first failed to make the
pension contributions after the plaintiff’s employment was reinstated, as
the plaintiff pleaded and proved that pension credits could be purchased
retroactively at any time prior to the date that he began to receive
pension benefits such that the town could have performed its obligation
under the agreement by purchasing the pension credit at any time after
he was reinstated, and because neither the testimony of the former
police chief that he had no involvement in and was not aware of any
decision as to whether the town would purchase the pension credits,
nor the statute (§ 7-441) that obligated the town to make monthly contri-
butions to the pension system while the employee worked for the town
and participated in the system, supported the town’s position that the
breach occurred when the town first failed to make a payment to the
plan after the plaintiff was reinstated, the town failed to meet its burden
of proof on its statute of limitations defense.
2. The trial court improperly determined that the plaintiff’s action was barred
bythe doctrine of laches: that court’s determination that the delay was
unreasonable and inexcusable was premised on its erroneous factual
finding that the alleged breach occurred upon the town’s failure to make
the contribution to the pension plan, and its finding that the town was
prejudiced because it would incur significantly larger damages in order
to purchase the pension credit at that time was clearly erroneous and
not supported by the record, which showed that the town presented no
evidence beyond a certain letter from the retirement commission as to
the relative cost of purchasing the pension credit; accordingly, because
the town failed to show prejudicial delay, the court incorrectly concluded
that it had established the defense of laches.
Argued February 14—officially released June 5, 2018
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
matter was tried to the court, Elgo, J.; judgment for the
defendant, from which the plaintiff appealed to this
court. Reversed; further proceedings.
Gregg D. Adler, with whom, on the brief, was Zachary
L. Rubin, for the appellant (plaintiff).
Kevin M. Deneen, for the appellee (defendant).
Opinion
ALVORD, J. In this action for breach of a settlement
agreement, the plaintiff, Michael S. Bracken, Jr., appeals
from the judgment of the trial court rendered in favor
of the defendant, the town of Windsor Locks. On appeal,
the plaintiff claims that the court erroneously con-
cluded that the plaintiff’s action was barred by (1) the
six year statute of limitations set forth in General Stat-
utes § 52-576, and (2) the doctrine of laches.1 We con-
clude that the central factual finding underlying the
court’s conclusion that the defendant’s special defenses
barred the action was clearly erroneous. We further
conclude that the defendant failed to meet its burden
of proving that its special defenses barred the plaintiff’s
action. Accordingly, we reverse the judgment of the
trial court and remand this case for further proceedings.
The following facts, which were found by the trial
court in its memorandum of decision or are otherwise
undisputed, and procedural history are relevant to this
appeal. At all times relevant, the defendant participated
in the Connecticut Municipal Employee Retirement Sys-
tem (CMERS) for police officers employed by the defen-
dant.2 The plaintiff was formerly employed by the
defendant as a supernumerary police officer, until his
employment was terminated in 1987. In August, 1990,
the plaintiff filed an action in federal court against the
defendant. While that litigation was pending, the plain-
tiff returned to employment with the defendant on June
19, 1993, as a full-time police officer. The federal action
was resolved by way of a written settlement agreement
executed on April 21, 1994, between the plaintiff and
the defendant. That settlement agreement (agreement)
provided, in relevant part: ‘‘As further consideration for
Bracken’s agreement to be bound by the terms of this
agreement, defendant town of Windsor Locks agrees
to reinstate Bracken to a full-time police officer position
as of June 19, 1993 with a seniority date of one day
earlier than Officer Squires and to restore to Bracken
as of June 19, 1993 full benefits, privileges and emolu-
ments of employment based upon that seniority date.’’
Officer Squires had a seniority date of September 14,
1987.3
Following the execution of the agreement, the defen-
dant restored certain benefits, privileges, and emolu-
ments of employment based on a seniority date of
September 13, 1987. The defendant did not purchase
pension credit for the plaintiff covering the period of
time from September 13, 1987 through June 18, 1993
(pre-reinstatement period), and the plaintiff became
aware in late 2002 or early 2003 that the defendant had
not purchased the credit. The plaintiff was placed on
administrative leave in August, 2007. In September,
2007, the plaintiff wrote a letter to CMERS stating that
he had brought the issue of the pension credit to the
defendant’s attention on many occasions, but it had
done nothing to resolve the issue. The plaintiff stated
that Chief of Police John Suchocki had told him that
the defendant wanted to wait until the plaintiff retired
to make the payments, a position that the plaintiff found
‘‘unacceptable.’’ The plaintiff’s employment with the
defendant terminated on or about November 19, 2009.
By letter dated March 16, 2010, the defendant inquired
of the Statement Employee Retirement Commission
(retirement commission) as to the cost to purchase the
pension credit for the pre-reinstatement period. The
retirement commission responded by letter dated April
29, 2010, that a payment in the amount of $99,316 would
be necessary to purchase the additional pension credit.
Beginning in May, 2010, the State Board of Mediation
Arbitration held hearings on a grievance the plaintiff
had filed challenging his termination of employment.
On February 11, 2014, the plaintiff commenced the
present action alleging breach of contract and breach
of the implied covenant of good faith and fair dealing.
In his amended complaint filed December 16, 2015, the
plaintiff alleged that after he resumed his employment
as a police officer, the defendant had restored to him
‘‘all benefits, privileges and emoluments of employment
based on the seniority date of September 13, 1987, with
the exception of his pension benefits.’’ Specifically, he
alleged that ‘‘[p]ension credits for Windsor Locks police
officers are purchased by the town through the State
of Connecticut Municipal Employees Retirement Fund’’
and that such credit ‘‘can be purchased retroactively at
any time prior to the date the employee begins receiving
retirement benefits.’’ He alleged that he became aware
that the defendant had not yet purchased pension credit
for him for the pre-reinstatement period and that he
raised his concerns with the defendant on several occa-
sions. He claimed that ‘‘at no time prior to 2013 was
the plaintiff informed by the town that it would not
comply with its contractual agreement to provide pen-
sion credits’’ for the pre-reinstatement period.
The plaintiff further alleged that his counsel wrote
letters to the defendant on July 30, 2013, and October
3, 2013. The plaintiff alleged that his counsel, in the
October 3, 2013 letter, requested that the defendant
provide ‘‘written confirmation that the town is currently
refusing to purchase pension credits or otherwise pro-
vide retirement benefits to the plaintiff’’ for the pre-
reinstatement period. The plaintiff alleged that the letter
concluded: ‘‘If I do not receive a response to this letter
by October 31, 2013, we will assume that the town has
formally refused to provide these benefits . . . .’’ The
plaintiff alleged that the defendant did not respond to
the letter.
In count two of the complaint, the plaintiff claimed
that the defendant breached the implied covenant of
good faith and fair dealing in that it had no good faith
basis for refusing to purchase the pension credit and
that its reasons for ‘‘refusing to comply with the terms
of the contract are based on personal animosity toward
the plaintiff.’’ The plaintiff sought an order requiring
the defendant to purchase the pension credit for the
pre-reinstatement period.
The defendant answered and filed special defenses
to the amended complaint alleging, inter alia, that the
plaintiff’s action was barred by the statute of limitations
set forth in § 52-5764 and the doctrine of laches. The
parties elected a court trial, which was held on February
17 and 18, 2016. The parties stipulated to a number of
facts, and the stipulation was entered into evidence as
a court exhibit. Eight of the plaintiff’s exhibits and four
of the defendant’s exhibits were agreed upon and
received by the court as full exhibits. During trial, two
witnesses testified: the plaintiff, and John Suchocki,
former chief of police for the town of Windsor Locks.
Both parties filed posttrial briefs.
On August 3, 2016, the court issued a memorandum
of decision, in which it rendered judgment for the defen-
dant after concluding that the plaintiff’s action was
barred both by the statute of limitations and the doc-
trine of laches. The court in its memorandum noted
that the action involved the plaintiff’s claim that the
agreement included the retroactive purchase of pension
credit for the pre-reinstatement period. The court also
found that the ‘‘defendant has consistently denied hav-
ing an obligation under the contract’’ to purchase the
credit, and that the plaintiff learned in late 2002 or early
2003 that the defendant had not purchased the credit.
The court in its memorandum stated that since then,
the plaintiff had been in a dispute with the defendant
and had engaged counsel to assist with his claim. After
referencing both parties’ inquiries to the retirement
commission, the plaintiff in September, 2007, and the
defendant in spring, 2010, the court then rejected the
plaintiff’s argument that the defendant’s spring, 2010
inquiry constituted evidence that the defendant had not
yet decided that it would not purchase the pension
credit for the plaintiff. It found instead that the plaintiff
had been aware since 2002 that the defendant ‘‘was
refusing to make those contributions’’ pursuant to
the agreement.
Turning to when the cause of action accrued, the
court found that ‘‘[t]he plaintiff does not dispute that
the defendant, if it had been required to make pension
contributions, would have been making those monthly
contributions from the time of his reinstatement in 1993.
Under well established law, the plaintiff’s ignorance
until 2002 of the fact that those contributions were not
being made, absent fraud which is not alleged here,
does not save his action.’’ Recognizing that there was
‘‘no basis in law’’ for a claim that the plaintiff’s knowl-
edge of the defendant’s decision in late 2002 or early
2003 should operate as the accrual date, the court stated
that even using that later date the plaintiff’s action was
still untimely.
With respect to the defendant’s special defense of
laches, the court found: ‘‘In this case, the plaintiff dis-
covered for the first time in late 2002 or early 2003 that
the defendant had not been making contributions to
his retirement since his reinstatement. He did not file
this action until 2014, nearly eleven years after he first
learned of the alleged breach. The plaintiff cannot refute
the defendant’s claim that the delay is unreasonable
and inexcusable. Moreover, the defendant has offered
credible evidence that it would incur significantly larger
damages in order to purchase pension credits at this
time, compared to the costs it would have incurred had
the plaintiff timely [filed] his claim.’’
The plaintiff filed a motion to reargue pursuant to
Practice Book § 11-11, which the court denied on Sep-
tember 14, 2016. This appeal followed.
I
The plaintiff first claims that the trial court errone-
ously concluded that his action is barred by the six
year statute of limitations set forth in § 52-576. Specifi-
cally, he claims that the defendant had no obligation
under the agreement to purchase the pension credit
until October 10, 2017—the date on which the plaintiff
became eligible to receive retirement benefits. He
argues that ‘‘the town’s October, 2013 refusal to honor
its obligation to provide retirement benefits covering
the pre-1993 period as required under the agreement
(by failing to respond to plaintiff’s counsel’s second
letter on the issue) is a repudiation of its promise to
do so upon [the plaintiff’s] future retirement.’’5 In other
words, the plaintiff claims that this action accrued in
October, 2017, but that the defendant’s October, 2013
repudiation permitted the plaintiff to proceed with his
action under the theory of anticipatory breach. The
defendant responds that ‘‘[t]he fact that pension bene-
fits could not be realized until [the plaintiff’s] 2009
retirement or 2017 eligibility is immaterial here, as the
town would have been obligated to make monthly con-
tributions toward pension funds throughout the entirety
of its member’s employment, creating a cause of action
the first time it fails to do so. (Conn. Gen. Stat. Section
7-441).’’6 We first conclude that the factual finding
underlying the court’s conclusion that the action was
time barred was clearly erroneous. Second, mindful
that the statute of limitations is an affirmative defense
that the defendant must prove by a preponderance of
the evidence, we conclude that the defendant failed to
meet its burden.
As an initial matter, we set forth the appropriate
standard of review. ‘‘The question of whether a party’s
claim is barred by the statute of limitations is a question
of law, which this court reviews de novo. . . . The
factual findings that underpin that question of law, how-
ever, will not be disturbed unless shown to be clearly
erroneous.’’ (Internal quotation marks omitted.) Nassra
v. Nassra, 180 Conn. App. 421, 435, A.3d (2018);
accord Travelers Casualty & Surety Co. of America v.
Caridi, 144 Conn. App. 793, 801, 73 A.3d 863 (2013).
‘‘[When] the factual basis of the court’s decision is chal-
lenged we must determine whether the facts set out
in the memorandum of decision are supported by the
evidence or whether, in light of the evidence and the
pleadings in the whole record, those facts are clearly
erroneous. . . . A finding is clearly erroneous 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.)
Gugliemi v. Willowbrook Condominium Assn., Inc.,
151 Conn. App. 806, 811, 96 A.3d 634 (2014).
Both parties agree that the six year statute of limita-
tions set forth in § 52-576 (a) applies in the present
case. That statute provides: ‘‘No action for an account,
or on any simple or implied contract, or on any contract
in writing, shall be brought but within six years after
the right of action accrues, except as provided in sub-
section (b) of this section.’’ General Statutes § 52-576
(a). Our Supreme Court has previously recognized that
‘‘[o]rdinarily, a defendant must plead the failure to meet
the applicable statute of limitations as an affirmative
defense, and the defendant bears the burden of proving
the elements of the defense by a preponderance of the
evidence.’’ St. Paul Travelers Companies, Inc. v. Kuehl,
299 Conn. 800, 815, 12 A.3d 852 (2011).
We next set forth the well settled law concerning
when a breach of contract action accrues. ‘‘[I]n an
action for breach of contract . . . the cause of action
is complete at the time the breach of contract occurs,
that is, when the injury has been inflicted. . . .
Although the application of this rule may result in occa-
sional hardship, [i]t is well established that ignorance
of the fact that damage has been done does not prevent
the running of the statute, except where there is some-
thing tantamount to a fraudulent concealment of a
cause of action.’’7 (Citations omitted; emphasis omitted;
internal quotation marks omitted.) Tolbert v. Connecti-
cut General Life Ins. Co., 257 Conn. 118, 124–25, 778
A.2d 1 (2001). ‘‘Applied to a cause of action, the term
to accrue means to arrive; to commence; to come into
existence; to become a present enforceable demand.’’
(Internal quotation marks omitted.) Bouchard v. State
Employees Retirement Commission, 328 Conn. 345,
369, 178 A.3d 1023 (2018). ‘‘While the statute of limita-
tions normally begins to run immediately upon the
accrual of the cause of action, some difficulty may arise
in determining when the cause or right of action is
considered as having accrued. The true test is to estab-
lish the time when the plaintiff first could have success-
fully maintained an action.’’ (Internal quotation marks
omitted.) Amoco Oil Co. v. Liberty Auto & Electric Co.,
262 Conn. 142, 153, 810 A.2d 259 (2002). ‘‘The phrase
‘successfully maintain an action’ refers to the time at
which the facts exist (or allegedly exist) to establish
the legal elements of the cause of action.’’ Bouchard v.
State Employees Retirement Commission, supra, 370.
In the present case, the trial court’s legal conclusion
that the statute of limitations barred the plaintiff’s
action was premised on its factual finding that ‘‘[t]he
plaintiff does not dispute that the defendant, if it had
been required to make pension contributions, would
have been making those monthly contributions from
the time of his reinstatement in 1993. Under well estab-
lished law, the plaintiff’s ignorance until 2002 of the
fact that those contributions were not being made,
absent fraud which is not alleged here, does not save
his action.’’8 We conclude that this factual finding, in
light of the evidence and the pleadings in the record,
was clearly erroneous because there was no evidence
in the record to support it. To the contrary, the plaintiff
consistently represented to the trial court, beginning
with the allegations of his complaint, that ‘‘[p]ension
credits can be purchased retroactively at any time prior
to the date the employee begins receiving retirement
benefits.’’ In his posttrial brief, the plaintiff repeated
his claim that the defendant could have performed its
obligation under the agreement by purchasing the pen-
sion credit at any time. Finally, in his motion to reargue,
the plaintiff again argued that he ‘‘has not alleged that
the town had a duty to purchase the credits in 1994.
Rather, the plaintiff has alleged that the town must
comply with the settlement agreement by restoring
Bracken’s retirement benefits for the period of Septem-
ber 13, 1987 through June 18, 1993 and that the town
may retroactively purchase pension credits at any time
prior to the date [Bracken] begins receiving retire-
ment benefits.’’
On appeal, the plaintiff reiterates that the present
dispute has ‘‘nothing to do with’’ monthly contributions
made by the defendant to the retirement commission
pursuant to § 7-441. The plaintiff argues, and we agree,
that his recognition that the defendant had been making
such contributions while he was employed as a police
officer is unrelated to and does not weigh against his
claim that the defendant was obligated, at any time
until the date on which the plaintiff became eligible to
receive retirement benefits, to purchase pension credit
for the pre-reinstatement period.
We have independently examined the record and con-
clude that there is no evidentiary support for a factual
finding that the alleged breach occurred upon the failure
to make ‘‘monthly contributions’’ following the execu-
tion of the agreement. The defendant presented no testi-
monial evidence in support of its claim that any alleged
breach of the agreement would have occurred the first
time it failed to make a monthly contribution. The only
witness for the defendant was Suchocki, who testified
that he did not recall having any conversations with
the plaintiff regarding the defendant’s purchase of any
pension credit on his behalf; he never spoke to the
plaintiff about the credit; he was not aware of anyone
communicating on behalf of the defendant to the plain-
tiff that the defendant would not be purchasing the
credit; he did not believe that he made any representa-
tions to the plaintiff that the defendant would purchase
the credit when he retired and that he did not have ‘‘the
authority to do that’’; the decision as to whether to
purchase the credit would not have been his; he was
unaware of any decision by the board of selectmen or
the police commission as to whether or not to purchase
the credit; and he was aware the defendant was making
inquiries in the spring of 2010 regarding the cost of
purchasing the credit during a grievance proceeding
related to the termination of the plaintiff’s employment,
but he did not know what happened to that settlement.
The defendant argues that ‘‘the crux of the decision
came down to the issue of the credibility of the two
witnesses,’’ and that the trial court found Chief
Suchocki’s testimony credible and the plaintiff’s testi-
mony not credible. The plaintiff responds that the court
did not expressly make credibility findings, and that
the credibility issues raised by the defendant are not
relevant to the appeal. The record reveals that the plain-
tiff testified that when he inquired of Suchocki after
learning that the defendant had not purchased the pen-
sion credit, Suchocki told him that ‘‘they would make
me whole when I was ready to retire.’’ Suchocki denied
having any such conversation, and the trial court prop-
erly could have credited Suchocki’s testimony on this
point. See Martinez v. Commissioner of Correction,
147 Conn. App. 307, 324, 82 A.3d 666 (2013) (‘‘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’’ [internal quota-
tion marks omitted]), cert. denied, 311 Conn. 917, 85
A.3d 652 (2014). The core of Suchocki’s testimony, how-
ever, was that he had no involvement in and was not
aware of any decision as to whether the defendant
would purchase the pension credit, and therefore, his
testimony provides no support for the defendant’s argu-
ment that the alleged breach would have occurred upon
the failure to make a monthly contribution.
Moreover, the defendant produced no documentary
evidence to support its statute of limitations defense.
To the contrary, the only documentary evidence
addressing the method for retroactive purchase of pen-
sion credit for the plaintiff consisted of communications
between the defendant and the retirement commission
in 2010. The trial court found that the defendant made
inquiries in the spring of 2010 regarding purchasing the
pension credit for the pre-reinstatement period as part
of settlement discussions. The retirement commission
informed the defendant that it could purchase pension
credit for the plaintiff for the pre-reinstatement period
at a cost of $99,316. The letter further informed the
defendant that the calculation would be effective
through May 1, 2010, and that if the defendant ‘‘does
not purchase the service within this one-year period a
new calculation will be required.’’
The trial court rejected the plaintiff’s claim that the
inquiry to the retirement commission constituted evi-
dence that the defendant had not, by that point, decided
that it would not provide retirement benefits to the
plaintiff. The court’s rejection of the evidentiary signifi-
cance ascribed by the plaintiff, however, does not bear
on the status of the record. That is, the commission’s
response, calculating the cost of the pension credit
should the defendant wish to purchase it in the spring
of 2010 is the only evidence in the record as to any
process for the retroactive purchase of credit, and it
provides no support for the defendant’s claim that the
defendant ‘‘would have been obligated to make monthly
contributions . . . creating a cause of action the first
time it fails to do so.’’
The defendant cites § 7-441 as support for its argu-
ment that its ‘‘obligation is to make monthly contribu-
tions while an employee works for the town and
participates’’ in CMERS. The plaintiff recognizes that
§ 7-441 requires monthly payments for ‘‘ ‘[m]embers,’ ’’
which the statute defines, with certain exceptions, as
‘‘any regular employee or elected official receiving pay
from a participating municipality . . . who has been
included by such municipality in the pension plan as
provided in [§] 7-427 . . . .’’ General Statutes § 7-425
(5). The plaintiff argues, however, that he was not a
member of CMERS during the pre-reinstatement period
and that ‘‘the defendant obviously did not and could
not make retirement contributions for him during that
time frame.’’ The plaintiff claims that after his ‘‘rein-
statement on June 19, 1993 until his employment ended
on November 19, 2009, he was a member of [CMERS]
and the defendant made monthly retirement contribu-
tions for him as required by the statute. . . . The issue
here has nothing to do with those monthly contribu-
tions; it is about at what point in time the defendant
had to purchase credits for the designated period prior
to the time [the plaintiff] was reinstated as an active
employee.’’
We agree with the plaintiff that § 7-441 does not pro-
vide support for the defendant’s claim that the cause
of action for breach of the settlement agreement would
have accrued upon the failure to make a monthly pay-
ment.9 Section 7-441 (c) provides in relevant part: ‘‘All
participating municipalities shall pay monthly to the
Retirement Commission to be credited to the fund such
proportion of the pay of all members employed by such
municipality as is determined from time to time by the
Retirement Commission on sound actuarial principles
to be necessary in addition to the contributions by mem-
bers to provide future pensions based on service ren-
dered by members subsequent to the effective date of
participation as defined in section 7-427 other than the
excess pensions referred to in subsection (b) of this
section. . . .’’ The defendant does not direct this court
to any provision of the statute addressing the procedure
for the retroactive purchase of pension credit, pursuant
to a settlement agreement, covering a period of time
prior to that employee’s reinstatement.10
Accordingly, we conclude that the court’s central
finding that ‘‘[t]he plaintiff does not dispute that the
defendant, if it had been required to make pension con-
tributions, would have been making those monthly con-
tributions from the time of his reinstatement in 1993’’
is clearly erroneous because there is no evidence in
the record to support it. ‘‘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 mis-
take has been committed.’’ (Internal quotation marks
omitted.) Noroton Properties, LLC v. Lawendy, 154
Conn. App. 367, 378, 107 A.3d 980 (2014); see also Tobet
v. Tobet, 119 Conn. App. 63, 70, 986 A.2d 329 (2010)
(where this court’s review of the transcript revealed
that no evidence as to the cost of tuition and board at
University of Connecticut at Storrs was provided to the
court, court’s finding that the tuition and board was
‘‘$16,000 or $17,000’’ was clearly erroneous). We further
conclude that because the evidence adduced at trial
did not support the defendant’s claim that the statute
of limitations began to run upon its failure to make a
monthly contribution, the defendant has failed to meet
its burden of proof on its statute of limitations spe-
cial defense.
II
The plaintiff next claims that the court erroneously
concluded that his action was barred by the doctrine
of laches. Specifically, he claims that he did not inexcus-
ably delay filing suit and that the defendant failed to
prove that the alleged delay has caused undue preju-
dice. We conclude that the defendant failed to meet its
burden of proving that the elements of the doctrine of
laches had been satisfied.
We first note the standard of review. ‘‘The defense of
laches, if proven, bars a plaintiff from seeking equitable
relief in a case in which there has been an inexcusable
delay that has prejudiced the defendant. . . . First,
there must have been a delay that was inexcusable,
and, second, that delay must have prejudiced the defen-
dant. . . . A conclusion that a plaintiff has been guilty
of laches is one of fact for the trier and not one that
can be made by this court, unless the subordinate facts
found make such a conclusion inevitable as a matter
of law. . . . We must defer to the court’s findings of
fact unless they are clearly erroneous. . . . Whether
the defense of laches was applicable to this action,
however, is a question of law. When there is a question
of law, our review of the court’s decision is plenary.’’
(Citation omitted; internal quotation marks omitted.)
Florian v. Lenge, 91 Conn. App. 268, 281, 880 A.2d 985
(2005). ‘‘[T]he burden is on the party alleging laches
to establish that defense.’’ (Internal quotation marks
omitted.) Lynwood Place, LLC v. Sandy Hook Hydro,
LLC, 150 Conn. App. 682, 690, 92 A.3d 996 (2014); see
also Price v. Independent Party of CT—State Central,
323 Conn. 529, 544, 147 A.3d 1032 (2016).
The trial court, in support of its conclusion that the
doctrine of laches barred the plaintiff’s action, stated:
‘‘In this case, the plaintiff discovered for the first time
in late 2002 or early 2003 that the defendant had not
been making contributions to his retirement since his
reinstatement. He did not file this action until 2014,
nearly eleven years after he first learned of the alleged
breach. The plaintiff cannot refute the defendant’s claim
that the delay is unreasonable and inexcusable. More-
over, the defendant has offered credible evidence that
it would incur significantly larger damages in order to
purchase pension credits at this time, compared to the
costs it would have incurred had the plaintiff timely
[filed] his claim.’’
The plaintiff first argues that ‘‘[t]he trial court’s find-
ing that the action is barred by the doctrine of laches
was premised on the court’s erroneous conclusion that
the plaintiff could have maintained a cause of action
in 2002 or 2003 when he first learned that the defendant
had not purchased pension credits covering the period
identified in the settlement agreement—despite the
defendant having no obligation to provide him with
retirement benefits until 2017 and the town not yet
having repudiated its obligation to do so.’’ We agree
that the trial court’s determination that the delay was
unreasonable and inexcusable was premised on its erro-
neous factual finding that the alleged breach occurred
upon the failure to make a monthly contribution, as
shown by its statement that the plaintiff learned in 2002
or 2003 that ‘‘the defendant had not been making contri-
butions to his retirement since his reinstatement.’’ See
part I of this opinion.
The plaintiff further claims that the defendant has
failed to prove that the alleged delay has caused undue
prejudice and argues that the trial court’s finding that
the defendant would incur significantly larger damages
in order to purchase the pension credit at this time is
unsupported by any evidence. The plaintiff claims that
the ‘‘only evidence in the record concerning the costs
associated with purchasing the pension credits’’ is the
letter from the retirement commission dated April 29,
2010, indicating that a payment in the amount of $99,316
would be necessary to purchase the additional pension
credit. The plaintiff claims that although the letter
reflected that a new calculation would be required if
the defendant declined to purchase the credit within
one year and that it indicated an interest adjustment
would be required up until the date of payment, there
was no evidence that the ‘‘apparent increase would
unduly prejudice the defendant.’’ He further argues that
‘‘[t]he defendant presented no evidence concerning the
relative cost of purchasing the pension credits in 1994
as opposed to in 2014 when this action was filed.’’
The defendant, in its three sentence response in its
brief on appeal, generally asserts that the lapse of time
would unduly prejudice the defendant; cf. Lynwood
Place, LLC v. Sandy Hook Hydro, LLC, supra, 150 Conn.
App. 691 (‘‘[a] mere lapse of time does not constitute
laches unless it results in prejudice to the defendants’’
[internal quotation marks omitted]); and repeats the
trial court’s challenged finding. The defendant does not
direct this court to any evidence in the record that
supports the challenged finding underlying the court’s
prejudice determination. Moreover, our independent
review of the record reveals that the defendant pre-
sented no evidence, beyond the April 29, 2010 letter,
as to the relative cost of purchasing the pension credit.
Accordingly, we conclude that the trial court’s finding
that the defendant was prejudiced is clearly erroneous
because it is not supported by evidence in the record.
Because the defendant failed to show prejudicial delay,
the court incorrectly concluded that it had established
the defense of laches. See Cifaldi v. Cifaldi, 118 Conn.
App. 325, 336, 983 A.2d 293 (2009); see also Burrier v.
Burrier, 59 Conn. App. 593, 597, 758 A.2d 373 (2000)
(holding that trial court incorrectly concluded that
laches barred the plaintiff from seeking the relief she
requested after it concluded that prejudicial delay had
not been established where defendant failed to offer
evidence concerning prejudice).
In its memorandum of decision, the trial court did
not reach the merits of the plaintiff’s claims because it
concluded that the action was barred by the statute of
limitations and the doctrine of laches. Accordingly, we
remand this case to the trial court to decide the merits
of the plaintiff’s claims.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
By way of relief, the plaintiff asserts that he is entitled to judgment as
a matter of law and requests that this court ‘‘find that the defendant breached
the settlement agreement when it refused to purchase pension credits or
otherwise provide plaintiff with retirement benefits from the period of Sep-
tember 13, 1987 through June 18, 1993.’’ Because the trial court rendered
judgment in favor of the defendant on its special defenses, the court did
not reach the merits of the plaintiff’s claims, which involve questions of
fact. See McCoy v. Brown, 130 Conn. App. 702, 707, 24 A.3d 597 (‘‘[w]hether
there was a breach of contract is ordinarily a question of fact’’ [internal
quotation marks omitted]), cert. denied, 302 Conn. 941, 29 A.3d 467 (2011).
‘‘This court cannot find facts in the first instance.’’ Fazio v. Fazio, 162 Conn.
App. 236, 251, 131 A.3d 1162, cert. denied, 320 Conn. 922, 132 A.3d 1095
(2016). Accordingly, although we agree with the plaintiff that the judgment
of the court must be reversed, we cannot grant the relief requested, and
we remand this case to the trial court to consider the merits of the plaintiff’s
cause of action. See id. (concluding that trial court improperly found separa-
tion agreement unambiguous and remanding case to trial court to determine
‘‘the intent of the parties after consideration of all the available extrinsic
evidence and the circumstances surrounding the entering of the agreement’’).
2
The statutory framework establishing and governing the retirement sys-
tem for certain municipal employees is codified at General Statutes § 7-425
et seq., and is referred to as the Municipal Employees’ Retirement Act. See
Maturo v. State Employees Retirement Commission, 326 Conn. 160, 172,
162 A.3d 706 (2017). Section 7-425 defines a ‘‘ ‘[m]ember’ ’’ of the retirement
system as, among other things, ‘‘any regular employee or elective officer
receiving pay from a participating municipality . . . who has been included
by such municipality in the pension plan as provided in [§] 7-427 . . . .’’
General Statutes § 7-425 (5). ‘‘General Statutes § 7-427 (a) authorizes each
municipality to opt into the retirement system with respect to any depart-
ment or departments that it chooses to designate for participation.’’ Maturo
v. State Employees Retirement Commission, supra, 172. General Statutes
(Supp. 2018) § 7-441 (c) provides in relevant part: ‘‘All participating munici-
palities shall pay monthly to the Retirement Commission to be credited to
the fund such proportion of the pay of all members employed by such
municipality as is determined from time to time by the Retirement Commis-
sion on sound actuarial principles to be necessary in addition to the contribu-
tions by members to provide future pensions based on service rendered by
members subsequent to the effective date of participation as defined in
section 7-427 other than the excess pensions referred to in subsection (b)
of this section. . . .’’
3
Officer Squires was the police officer who was hired into the position
that the plaintiff contended should have been given to him.
4
Although the defendant has cited various statutory sections in its plead-
ings and posttrial brief, such discrepancies appear to reflect scrivener’s
errors, given that the defendant has consistently argued at trial and on
appeal that the plaintiff’s action is barred by the six year breach of contract
statute of limitations.
5
We resolve the plaintiff’s appeal on the ground that the defendant failed
to carry its burden of proving that the action was commenced outside the
statute of limitations or barred by the doctrine of laches. Our resolution of
the appeal on these narrow grounds obviates the need for this court to
address the question of when the plaintiff’s cause of action accrued.
6
Section 7-441 was recently amended by No. 17-107, § 1, of the 2017 Public
Acts. These amendments have no bearing on the outcome of this appeal.
All references in this opinion to § 7-441 are to the 2018 supplement of the
General Statutes.
7
We note that the plaintiff does not claim that the statute of limitations
was tolled by the continuing course of conduct doctrine or by the doctrine
of fraudulent concealment.
8
On appeal, the defendant construes this statement contained in the trial
court’s memorandum as determining that if the plaintiff was entitled to
pension credit for the pre-reinstatement period pursuant to the agreement,
his ‘‘right of action would have accrued at the time of the breach, that is
in 1993.’’ (Emphasis added.) The defendant’s position is untenable, given
that the agreement was not executed until April 21, 1994.
9
The defendant argues that the plaintiff misstates the defendant’s obliga-
tions under the retirement system and contends that it ‘‘does not provide
or administer retirement benefits.’’ Although the plaintiff at times has charac-
terized his claim as one for ‘‘retirement benefits,’’ he specifically sought, in
his prayer for relief, ‘‘[a]n order directing the defendant to perform the
contract by purchasing pension credits for the plaintiff covering the period
of September 13, 1987 through June 18, 1993.’’ He further indicated in his
appellate brief: ‘‘As an administrative and practical matter, in order to pro-
vide Bracken with retirement benefits pursuant to the town’s pension plan
with CMERS, the town must purchase the pension credits through CMERS
based on an employee’s accrued service.’’
At oral argument before this court, the plaintiff’s counsel represented
that the plaintiff had turned fifty-five in October, 2017, and had begun
receiving pension benefits. He further represented that in the event the
judgment for the defendant was reversed, the plaintiff would seek to amend
its prayer for relief to seek damages, rather than specific performance, in
order to make up the difference between the retirement benefits the plaintiff
is currently receiving and the benefits he would have received had the
defendant purchased the pension credit for the pre-reinstatement period.
10
Neither party argues that the date the plaintiff discovered that the defen-
dant had not yet purchased the pension credit serves as the accrual date
for the plaintiff’s action, and the trial court correctly recognized that ‘‘there
is no basis in law’’ for any claim that the plaintiff’s discovery in 2002 or
2003 that the defendant had not yet purchased the credit could serve as the
accrual date.