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VIKING CONSTRUCTION, INC. v. TMP
CONSTRUCTION GROUP, LLC
(SC 20484)
Robinson, C. J., and D’Auria, Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiff general contractor sought to recover damages for breach of
contract from the defendant subcontractor in connection with the defen-
dant’s abandonment of work it was purportedly obligated to perform
in constructing an apartment complex. The jury returned a verdict in
favor of the plaintiff and awarded damages. The defendant filed a motion
to set aside the verdict, arguing that the parties’ contract, as a matter
of law, precluded an award of any relief to the plaintiff. The trial court
denied the defendant’s motion, concluding that the jury reasonably could
have based its award of damages on provisions of the contract permitting
an award of damages against the defendant for costs associated with
repairing defective work. Thereafter, the trial court rendered judgment
in accordance with the verdict, and the defendant appealed. Held that
the trial court properly declined to set aside the jury’s verdict: to the
extent that the defendant presented arguments relying on evidence or
arguments that were presented to the jury, and to the extent that the
defendant contended that the plaintiff never claimed at trial that the
provisions of the contract obligating the defendant to cover the cost to
the plaintiff of repairing defective work entitled the plaintiff to damages,
this court was unable to assess such arguments or contention, as the
defendant failed to provide this court with transcripts of the trial court
proceedings; moreover, there was no merit to the defendant’s claim
that, even if the jury had based its award of damages on other provisions
of the contract, those provisions did not entitle the plaintiff to recover
repair damages as a matter of law, as the trial court properly relied on
the provisions of the contract obligating the defendant to cover the cost
of repairing defective work in declining to set aside the jury’s verdict.
Argued November 20, 2020—officially released March 16, 2021*
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Fairfield, where the
defendant filed a counterclaim; thereafter, the case was
tried to the jury before Stewart, J.; verdict for the plain-
tiff on count one of the complaint alleging breach of
contract and on the defendant’s counterclaim; subse-
quently, the court, Stewart, J., denied the defendant’s
motions to set aside the verdict and rendered judgment
in accordance with the verdict, from which the defen-
dant appealed. Affirmed.
James Colin Mulholland, for the appellant (defen-
dant).
Luke R. Conrad, with whom were Timothy T. Corey
and, on the brief, Sara J. Stankus, for the appellee
(plaintiff).
Opinion
KAHN, J. The defendant, TMP Construction Group,
LLC, appeals from the judgment of the trial court in
favor of the plaintiff, Viking Construction, Inc., on a
claim alleging breach of contract. On appeal, the defen-
dant claims that the trial court improperly denied its
motion to set aside the jury’s verdict, which contains
an award of money damages, because the terms of the
underlying contract precluded such relief. We disagree
with the defendant and, accordingly, affirm the judg-
ment of the trial court.
The following facts and procedural history are rele-
vant to our consideration of the present appeal. In 2016,
the plaintiff, a general contractor overseeing the con-
struction of an apartment complex in the city of Bridge-
port, entered into a contract with the defendant, a sub-
contractor, to provide services related to the instal-
lation of drywall and trim in exchange for $1.5 million.
The defendant subsequently undertook performance of
its work in accordance with that agreement.
Disputes eventually developed, and, on May 19, 2017,
the plaintiff mailed a letter to the defendant complaining
that the defendant had fallen behind schedule and had
failed to meet certain financial obligations. That letter
stated in relevant part: ‘‘This is your notice pursuant
to [a]rticle 11.1 [of the contract] that if these defaults
are not remedied within [twenty-four] hours, [the plain-
tiff] will supplement your crew until the remaining por-
tion of your contract is completed. [The plaintiff] will
seek damages for all losses and costs above the balance
to bill of the [contract]. The remaining balance to bill
is $350,685.56.’’1 As a result of these disputes, the defen-
dant abandoned its work on the project.
A few weeks later, the plaintiff commenced the pres-
ent action against the defendant. The operative com-
plaint, dated September 29, 2017, alleged that the defen-
dant had breached the contract by abandoning per-
formance. The complaint also alleged that the defen-
dant had failed to provide a sufficient number of work-
ers to complete the project on schedule, that the defen-
dant had failed to supervise and direct its own agents,
and that certain work that the defendant had performed
prior to abandonment failed to comply with project
specifications. The plaintiff claimed that these breaches
resulted in monetary damages including, inter alia, (1)
the cost of correcting the work that had been improp-
erly performed, and (2) the cost of completing the work
that remained undone.2
The case was tried to a jury before the court, Stewart,
J., over the course of several days.3 At trial, the plaintiff
sought to prove that its total damages exceeded the
balance to bill ($350,685.56) on the contract by
$515,080.224 and argued that it was entitled to an award
of money damages in that amount. In support of its
claims, the plaintiff entered the contract itself into evi-
dence as a full exhibit. The jury ultimately found the
defendant liable for breach of contract but chose to
award the plaintiff only $45,373.88 above the balance
to bill, an amount precisely equal to the sum that the
plaintiff had paid others to correct the defendant’s
defective work. In reaching its verdict, it is clear that
the jury chose not to award the plaintiff damages for
the cost of completing the remaining drywall work.
The defendant subsequently filed a motion to set
aside the jury’s verdict, arguing, among other things,
that ‘‘the parties’ contract, as a matter of law, unambigu-
ously precluded the court or the jury from awarding
any relief to [the plaintiff].’’ The defendant’s argument
was premised on the interplay of two particular provi-
sions of the contract. The first, article 11.1, permits
the plaintiff to recover costs incurred by it for labor,
materials, and equipment required to cure defects or
defaults caused by the defendant from the balance to
bill after providing notice to the defendant.5 The second,
article 11.2, allows the plaintiff to expressly terminate
the contract as the result of the defendant’s delay, defec-
tive work, or nonpayment of debts after providing writ-
ten notice to the defendant. This latter provision not
only permitted the plaintiff to retain the balance to bill,
but also provided that ‘‘all charges, expenses, losses,
costs, damages, and attorney’s fees’’ in excess thereof
would be paid ‘‘directly by’’ the defendant.6 The defen-
dant’s motion argued that, because the formal notice
it had received from the plaintiff expressly invoked only
article 11.1, and because the parties agreed that the
contract had never been terminated, the plaintiff’s relief
was limited to the relief under article 11.1, which was
retention of the balance to bill.
The trial court rejected this argument because it con-
cluded that other provisions of the contract permitted
an award of money damages against the defendant for
costs associated with repairing defective work. Specifi-
cally, the trial court noted that article 11.7 of the con-
tract, an election of remedies clause, provides that the
plaintiff ‘‘may sue [the defendant] . . . and recover
damages’’ in order to recover ‘‘[a]ny sum or sums
chargeable to [the defendant] under any provision of
[the contract] . . . .’’ The trial court then observed that
the warranty provision set forth in article 9.1 of the
contract, which relates directly to the repair of defective
work, provides that the plaintiff ‘‘shall have the right
itself, or [through] others, to remove said part of the
[w]ork and to purchase from others in the market or
otherwise and install new materials or equipment in
replacement thereof, and the cost and expense thereof,
together with the expense to [the plaintiff] of making
good all other work and property destroyed or damaged
by the condition requiring such replacement, shall be
paid by [the defendant] to [the plaintiff] on demand.’’7
The trial court found that the jury could have reasonably
based its award of damages on these provisions and,
accordingly, declined to set aside the verdict. This
appeal followed.8
We begin our analysis of the present case by briefly
stating what is not at issue. The defendant does not
presently contest the jury’s finding that it was liable for
breach of contract. The defendant also does not contest
the claim that its work was, in fact, defective or in
any way challenge the adequacy of the plaintiff’s proof
relating to the cost of repairing it. The issue presented
in this appeal is a narrow one: whether the defendant
has demonstrated, on the basis of the record presented,
that the trial court committed reversible error by declin-
ing to set aside the jury’s award of $45,373.88 in dam-
ages. We answer this question in the negative.9
The standard for reviewing a trial court’s denial of a
motion to set aside a jury’s verdict is well established.
‘‘The proper appellate standard of review when consid-
ering the action of a trial court in granting or denying
a motion to set aside a verdict is the abuse of discretion
standard. . . . In determining whether there has been
an abuse of discretion, every reasonable presumption
should be given in favor of the correctness of the court’s
ruling. . . . Reversal is required only [when] an abuse
of discretion is manifest or [when] injustice appears to
have been done. . . . [T]he role of the trial court on a
motion to set aside the jury’s verdict is not to sit as [an
added] juror . . . but, rather, to decide whether, view-
ing the evidence in the light most favorable to the pre-
vailing party, the jury could reasonably have reached
the verdict that it did.’’ (Internal quotation marks omit-
ted.) Ulbrich v. Groth, 310 Conn. 375, 414, 78 A.3d 76
(2013).
This general standard does not, however, warrant
deference to the trial court’s legal conclusions. See,
e.g., Snell v. Norwalk Yellow Cab, Inc., 332 Conn. 720,
763, 212 A.3d 646 (2019) (‘‘[a]lthough we ordinarily
review the denial of a motion to set aside a verdict
under an abuse of discretion standard . . . our review
is plenary when . . . the trial court’s decision turned
on a question of law’’ (citation omitted)); see also Pat-
ino v. Birken Mfg. Co., 304 Conn. 679, 687–88, 41 A.3d
1013 (2012). The defendant asserts, and we agree, that
a plenary standard of review applies to the extent the
contract at issue employs plain and unambiguous lan-
guage. Cruz v. Visual Perceptions, LLC, 311 Conn. 93,
101, 84 A.3d 828 (2014) (‘‘When the language of a con-
tract is ambiguous, the determination of the parties’
intent is a question of fact . . . . [W]here there is defin-
itive contract language, [however] the determination of
what the parties intended by their contractual commit-
ments is a question of law.’’ (Citation omitted; internal
quotation marks omitted.)).
In the present appeal, the defendant raises both legal
and factual issues in support of its claim that the trial
court erred in denying its motion to set aside the jury’s
verdict. Specifically, the defendant argues that the con-
tract provision the plaintiff sought to enforce, article
11.1, does not allow for the damages the jury awarded,
and, even if the plaintiff had sought relief under other
provisions of the contract, including article 9.1, it failed
to introduce evidence from which the jury could have
awarded damages under those provisions. Before
addressing the particular arguments raised by the defen-
dant, we note that, to the extent that those arguments
rely on the evidence or arguments presented to the
jury, this court is unable to assess them because, as
previously stated; see footnote 3 of this opinion; the
defendant has failed to provide this court with tran-
scripts of the proceedings before the trial court.
We turn first to the threshold issue of whether the
plaintiff sought relief under other provisions of the con-
tract, including article 9.1. The defendant claims that
it was unfairly surprised by the breach of warranty issue
because the plaintiff ‘‘[n]ever raise[d] article [9.1] in
support of any claim for repair damages’’ during the
course of trial. The plaintiff argues, in response, that it
relied on the entirety of the contract in presenting its
claims to the jury. In declining to set aside the jury’s
verdict, the trial court concluded that the jury could
have reasonably relied on article 9.1 in reaching the
result that it did. In order to independently determine
whether a breach of warranty claim under article 9.1
was made at trial, however, we would need to review
the transcripts of that proceeding to assess the precise
manner in which the plaintiff presented its claim for
repair damages to the jury, including both its presenta-
tion of the evidence and the closing arguments of coun-
sel. Without transcripts of the trial, however, we are
unable to engage in such an assessment and resolve
this claim. See Practice Book § 61-10 (a) (‘‘It is the
responsibility of the appellant to provide an adequate
record for review. The appellant shall determine
whether the entire record is complete, correct and oth-
erwise perfected for presentation on appeal.’’); see also,
e.g., State v. Spillane, 257 Conn. 750, 758–59 and n.12,
778 A.2d 101 (2001) (appellant responsible for filing
transcripts necessary for appellate review); O’Halpin
v. O’Halpin, 144 Conn. App. 671, 675, 74 A.3d 465
(same), cert. denied, 310 Conn. 952, 81 A.3d 1180 (2013).
We turn next to the defendant’s claim that, even if
the jury had been presented with, and based its award
of damages on, other provisions of the contract, those
provisions would not entitle the plaintiff to recover
repair damages as a matter of law. The defendant raises
four distinct arguments in an attempt to show that the
trial court improperly relied on article 9.1 of the con-
tract in declining to set aside the jury’s verdict. First,
the defendant argues that the plaintiff ‘‘never alleged
or claimed . . . breach of warranty . . . in any itera-
tion of its complaint,’’ and that the trial court unfairly
interjected ‘‘an entirely new cause of action’’ into the
case. The defendant’s brief, however, has cited no sup-
port for the proposition that the plaintiff was legally
required to plead breach of warranty as a separate cause
of action. Several Superior Court decisions have, in
fact, reached the opposite conclusion, reasoning that
a breach of either an implied or express warranty can
also constitute a breach of contract. See ACE American
Ins. Co. v. Hunter Mechanical, Inc., Docket No. CV-
XX-XXXXXXX-S, 2020 WL 3791480, *4 (Conn. Super. June
15, 2020) (granting defendant’s motion to strike sepa-
rate claim for breach of warranty and permitting plain-
tiff to replead as part of simple breach of contract
claim); Ferrigno v. Pep Boys—Manny, Joe & Jack of
Delaware, Inc., 47 Conn. Supp. 580, 582–83, 818 A.2d
903 (2003) (violation of implied warranty requiring auto-
mobile services to be performed in workmanlike man-
ner alleged as simple breach of contract); see also Total
Look of Southport, Inc. v. Rock Bottom Furniture &
Carpet, Inc., Superior Court, judicial district of Fair-
field, Docket No. CV-XX-XXXXXXX-S (January 30, 2019)
(67 Conn. L. Rptr. 784, 786) (‘‘[t]he breach of warranty
claim adds nothing more to this lawsuit than the breach
of contract claims’’). We, therefore, decline the defen-
dant’s invitation to conclude that the plaintiff was pre-
cluded from recovering under article 9.1 of the contract,
as a matter of law, simply because the allegations relat-
ing to defective work were not alleged as a stand-alone
claim for breach of warranty.
Second, the defendant claims that article 9.1 cannot
permit recovery because the contract does not define
the ‘‘guarantee or warranty period’’ during which it
would apply. See footnote 7 of this opinion. The defen-
dant’s claim is not supported by the record in this case.
Although the contract itself expressly indicates that
the warranty period is established by the ‘‘[c]ontract
[d]ocuments,’’ a category that includes a number of
other documents by definition,10 the defendant has
failed to submit the contents of these documents—or
even to discuss them—in briefing the present appeal.
Even if the warranty period had been completely omit-
ted by mistake, we fail to see why the only reasonable
conclusion that the jury could have reached is that
article 9.1 of the contract was rendered unenforceable
as a result of that omission. The jury also could have
reasonably concluded that, whatever warranty period
had actually been intended by the parties, the claims
related to the defective work in the present case would
likely have fallen within that period because the com-
plaint was filed only weeks after the defendant aban-
doned its work on the project.11
Third, the defendant argues that, even if it was pre-
sented to the jury, article 9.1 of the contract cannot
support the jury’s award because the plaintiff never
provided formal notice of the defective work. We
observe that, unlike other provisions, article 9.1 of the
contract uses the phrase ‘‘promptly after notice from
the owner’’ and does not require ‘‘formal notice’’ or
written notice. Compare footnote 6 of this opinion (text
of article 11.2) with footnote 7 of this opinion (text of
article 9.1). Whether such a notice was provided by the
plaintiff is a question of fact. Cf. T. J. Stevenson & Co.,
Inc. v. 81,193 Bags of Flour, 629 F.2d 338, 359 (5th Cir.
1980) (‘‘[N]otification of breach of warranty [under the
Uniform Commercial Code] need not be in any particu-
lar words and is ordinarily a question of fact, looking
to all the circumstances of the case. Notice need not
be written. It may be given in a single communication
or derived from several.’’ (Footnotes omitted.)). The
defendant has failed to provide this court with any trial
transcripts. See footnote 3 of this opinion. Without an
adequate record of the proceedings at trial, we have no
way of determining whether evidence of the ‘‘formal
notice’’ the defendant claims is a condition precedent
to invoking article 9.1 was ever presented or argued to
the jury during the trial.12 See, e.g., Brown & Brown,
Inc. v. Blumenthal, 288 Conn. 646, 656 n.6, 954 A.2d
816 (2008) (‘‘[i]t is the responsibility of the appellant
to provide an adequate record for review’’ (internal
quotation marks omitted)). As a result, we are unable
to assess the defendant’s claim that the evidence was
insufficient to support the jury’s damages award.
Finally, the defendant argues that the trial court’s
reliance on article 9.1 of the contract renders article
11.1 of the agreement superfluous. This argument also
lacks merit. Although both articles 9.1 and 11.1 of the
contract address the plaintiff’s remedies for defective
work, they differ in significant ways. Most notably, arti-
cle 9.1 addresses the narrow topic of defective work
and permits the plaintiff to recover repair costs by
demanding direct payment from the defendant. See
footnote 7 of this opinion (‘‘shall be paid by [s]ubcon-
tractor to [c]ontractor on demand’’). Article 11.1, by
contrast, addresses a wider range of conduct and per-
mits a different form of relief, namely, retention of the
balance to bill. See footnote 5 of this opinion (‘‘[c]on-
tractor may . . . deduct the cost[s] [of labor, material,
and equipment] together with all losses or damages
occasioned thereby . . . from any money then due or
thereafter to become due to the [s]ubcontractor under
this [a]greement’’). The fact that these two provisions
provide alternative means for the plaintiff to recoup
the cost of repairing defective work does not require
the conclusion that one renders the other superfluous.
Apart from its arguments relating to the text of article
9.1, the defendant makes the broader contention that,
because the plaintiff only invoked article 11.1 of the
contract in the letter sent on May 19, 2017, its recovery
was limited to the balance to bill. An award of additional
money damages, the defendant argues, could have only
followed a formal termination of the contract pursuant
to article 11.2. Article 12.7 of the contract, however,
provides: ‘‘All of the rights and remedies of [c]ontractor
under this [s]ubcontract shall be cumulative, and shall
be in addition to any other rights and remedies of [c]on-
tractor. The exercise by [c]ontractor of any particular
right or remedy on any one occasion shall not be con-
strued as a waiver of any other right or remedy which
[c]ontractor might elect to pursue on the same or any
other occasion. Similarly, [c]ontractor’s failure to exer-
cise any particular right or remedy on any one occasion,
or thereafter shall not be construed as a waiver thereof.’’
Concluding that the singular reference to article 11.1
contained within the letter precluded the plaintiff from
seeking relief under other provisions of the contract
would contravene this plain and unambiguous lan-
guage. As a result, we reject the defendant’s claim that
the mere reference to article 11.1 in the letter limited
the plaintiff’s relief, as a matter of law, to a retention
of the balance to bill.13
On the basis of the record before us, we conclude
that the defendant has failed to meet its burden of
demonstrating that the jury could not have reasonably
reached the verdict that it did. As a result, the defen-
dant’s claim that the trial court erred in denying the
motion to set aside that verdict must fail.
The judgment is affirmed.
In this opinion the other justices concurred.
* March 16, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Although the phrase ‘‘balance to bill’’ is not defined in the contract, the
parties in the present case agree that it refers to ‘‘any money then due or
thereafter to become due’’ to the defendant under the terms of the contract.
See footnote 5 of this opinion. The precise method of calculating this sum
is not in dispute.
2
The operative complaint contained two additional counts that, respec-
tively, sought indemnification for certain expenses incurred by the plaintiff
and alleged unjust enrichment. In response to the complaint, the defendant
pleaded various special defenses and counterclaims. These issues are not,
however, relevant to the present appeal.
3
The defendant has affirmatively declined to provide this court with tran-
scripts of these proceedings. Specifically, the defendant sent a letter to the
Office of the Appellate Clerk on April 1, 2019, stating: ‘‘No transcript[s] [are]
deemed necessary to prosecute this appeal.’’ By that representation, the
defendant failed to make the trial transcripts a part of the record on appeal.
4
The total amount of damages sought by the plaintiff was $865,765.78.
5
Article 11.1 of the contract provides: ‘‘If, in the opinion of the [c]ontractor,
the [s]ubcontractor fails at any time to supply a sufficient number of properly
skilled workmen or sufficient material and equipment of the proper quality
and/or quantity, or fails in any respect to prosecute the [w]ork with prompt-
ness and diligence, or fails to promptly correct defective work, or causes
by any action or omission the stoppage or interference with the work of
the [c]ontractor or other subcontractors or fails in the performance of any
of the covenants herein contained, the [c]ontractor may, at its option, after
having given [s]ubcontractor notice of said defects and/or defaults and
[twenty-four] hours for [s]ubcontractor to commence to cure said defects
and/or defaults, provide such labor, material and equipment and deduct the
cost thereof, together with all losses or damages occasioned thereby, from
any money then due or thereafter to become due to the [s]ubcontractor
under this [a]greement.’’
6
Article 11.2 of the contract provides: ‘‘In addition to any rights of [c]on-
tractor under the prior paragraph, if, in the opinion of the [c]ontractor, the
[s]ubcontractor at any time fails or refuses or neglects to supply sufficient
number of properly skilled workmen or sufficient materials or equipment
of the proper quality and/or quantity, or fails in any respect to prosecute
the [w]ork with promptness and diligence, or fails to promptly correct
defective [w]ork, or causes by any action or omission the stoppage or
interference with the work of the [c]ontractor or other subcontractors, or
fails in the performance of any of the covenants herein contained, or fails
to make payment to any of its subcontractors or vendors or employees or
any union benefit funds or taxes, or is otherwise not able to meet its debts
as they mature, the [c]ontractor may, at its option at any time, and after
serving written notice of such default with direction to cure same within
[three] days as well as the [s]ubcontractor’s failure to cure the default within
[three] days, terminate this [a]greement for [s]ubcontractor’s default by
delivering written notice of termination to the [s]ubcontractor. Thereafter,
the [c]ontractor may take possession of the plant and work, materials, tools,
appliances and equipment of the [s]ubcontractor at the [p]roject [s]ite and
any material stored off site, and through itself or others provide labor,
equipment and materials to prosecute [s]ubcontractor’s [w]ork on such
terms and conditions as shall be deemed necessary, and shall deduct the
cost thereof, including without restriction thereto all charges, expenses,
losses, costs, damages, and attorney’s fees, incurred as a result of the [s]ub-
contractor’s failure to perform, which sums shall be set off from any money
then due or thereafter to become due to the [s]ubcontractor under this
[a]greement or paid directly by [s]ubcontractor or in the event that any
sums remain unpaid after set off.’’
7
Article 9.1 of the contract provides: ‘‘The [s]ubcontractor agrees to
promptly repair and make good without cost to the [o]wner or [c]ontractor
any and all defects due to faulty workmanship and/or materials which may
appear within the guarantee or warranty period so established in the [c]on-
tract [d]ocuments. The [w]arranty will [e]nsure that:
‘‘(1) all the work and materials furnished and installed by [s]ubcontractor
as part of the [w]ork are in compliance with [c]ontract [d]ocuments and
the approval of [o]wner and . . . [a]rchitect or [e]ngineer; and
‘‘(2) that, promptly after notice from the [o]wner and/or the [c]ontractor
regarding defective work or materials, the [s]ubcontractor shall immediately
remove and replace said part of the [w]ork with [w]ork in strict conformity
to the provisions of the [c]ontract [d]ocuments and shall bear the expense
of making good all other [w]ork and property destroyed or damaged by the
condition requiring such removal and replacement, or, should [c]ontractor
or [o]wner, in their sole discretion, decide that such removal or replacement
is not expedient, [c]ontractor shall have the right to accept said part of the
[w]ork, in which event [s]ubcontractor shall be liable for paying the differ-
ence in value between the [w]ork required by this [a]greement and the
[w]ork so furnished by [s]ubcontractor. The exercise by [c]ontractor of such
option, however, shall not affect any right or remedy which [c]ontractor
may otherwise have. In case of the failure of [s]ubcontractor to promptly
remove and replace any part of the [w]ork as aforesaid, [c]ontractor shall
have the right itself, or [through] others, to remove said part of the [w]ork
and to purchase from others in the market or otherwise and install new
materials or equipment in replacement thereof, and the cost and expense
thereof, together with the expense to [c]ontractor of making good all other
work and property destroyed or damaged by the condition requiring such
replacement, shall be paid by [s]ubcontractor to [c]ontractor on demand.
Anything in this [s]ection or any other [s]ection of this [a]greement to the
contrary notwithstanding, [s]ubcontractor shall also make good, replace or
repair all electrical, mechanical and other equipment, including bearings
which have been damaged by physical injury or have deteriorated from rust,
dust or other causes during the progress of the [w]ork.’’
8
The defendant appealed to the Appellate Court from the judgment of
the trial court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
9
The defendant’s brief posits, in a conclusory fashion, that the trial court
lacked subject matter jurisdiction over the plaintiff’s breach of contract
claim because no ‘‘practical relief’’ could ultimately be afforded on it under
the terms of the contract. (Internal quotation marks omitted.) The plaintiff’s
request for money damages in the present case was, however, sufficient to
render the matter justiciable. See, e.g., Burbank v. Board of Education, 299
Conn. 833, 841 n.11, 11 A.3d 658 (2011); see also All Cycle, Inc. v. Chittenden
Solid Waste District, 164 Vt. 428, 435, 670 A.2d 800 (1995). The defendant’s
contention that the contractual provisions at issue legally preclude such
relief relates to an analysis of the merits of the case, not to the threshold
issue of jurisdiction. See Milford Power Co., LLC v. Alstom Power, Inc.,
263 Conn. 616, 626, 822 A.2d 196 (2003).
10
Article 9.1 of the contract provides in relevant part that the defendant
‘‘agrees to promptly repair and make good without cost . . . any and all
defects due to faulty workmanship and/or materials which may appear
within the guarantee or warranty period so established in the [c]ontract
[d]ocuments. . . .’’ (Emphasis added.) Article 3.1 of the contract, in turn,
defines the phrase ‘‘[c]ontract [d]ocuments’’ to include a variety of docu-
ments such as the agreement between the plaintiff and the owner of the prop-
erty.
11
In a single sentence in its principal brief, the defendant raises a related
argument that construction warrantees like those required under article 9.1
‘‘typically’’ do not commence until work under a contract has been completed
in full and accepted by the owner. Because this argument is unsupported by
any citations to authority or independent analysis, we decline to consider it.
12
The exhibits admitted into evidence during the course of trial reveal
some correspondence between the parties about the defendant’s substan-
dard work. It is unclear from this record, however, if these precise issues
were addressed by the defendant prior to its abandonment.
13
This conclusion is also sufficient to foreclose the defendant’s derivative
claim that the trial court improperly declined to issue an instruction to the
jury directing a verdict in its favor on the breach of contract claim on the
ground that recovery was, as a matter of law, limited under article 11.1 to
the outstanding balance to bill. Even if we were to reach the propriety of
the jury instructions, however, a proper review of a claim of instructional
error would require this court to have access to the relevant transcripts,
including the presentation of evidence, the closing arguments of counsel,
and a full copy of the instructions actually given by the trial court. See, e.g.,
Kos v. Lawrence + Memorial Hospital, 334 Conn. 823, 837, 225 A.3d 261
(2020) (‘‘[I]ndividual jury instructions should not be judged in artificial
isolation . . . . The pertinent test is whether the charge, read in its entirety,
fairly presents the case to the jury in such a way that injustice is not done
to either party under the established rules of law.’’ (Internal quotation marks
omitted.)).