C & H Shoreline, LLC v. Rubino

C
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          C & H SHORELINE, LLC v. LORRAINE
                   RUBINO ET AL.
                     (AC 43197)
                    Moll, Alexander and DiPentima, Js.

                                  Syllabus

The plaintiff home cleaning company, C Co., sought to recover damages from
   the defendants for breach of contract in connection with the defendants’
   failure to pay for services rendered. The parties’ agreement contained
   a one year limitation provision that provided that no action relating to
   the subject matter of the agreement could be brought more than one
   year after ‘‘the claiming party’’ knew or should have known of the cause
   of action. The trial court found that by September, 2016, C Co. was
   aware that the defendants were refusing to pay and did not commence
   the action until March, 2018. The court therefore found in favor of the
   defendants on their special defense that the action was time barred
   under the agreement. On C Co.’s appeal to this court, held that the trial
   court properly rendered judgment in favor of the defendants on the
   basis that C Co.’s claims were contractually time barred; this court
   concluded that, because C Co. offered a reasonable interpretation of
   the limitation period, that the term ‘‘claiming party’’ referred only to
   the customer, and the defendants offered a competing reasonable inter-
   pretation, that the term ‘‘claiming party’’ was otherwise not defined in
   the agreement and the agreement consistently used the terms ‘‘client,’’
   ‘‘customer,’’ and ‘‘provider’’ when referring to the parties individually,
   so that the newly introduced term meant any party bringing a cause of
   action relating to the agreement, the limitation provision was ambiguous
   and applied the contra proferentem rule, resolving the ambiguity against
   C Co. as the undisputed drafter of the agreement and concluding that the
   one year limitation period applied to any contracting party; accordingly,
   because there was no dispute that C Co. commenced the action after
   one year from the time it knew or should have known of it, its claims
   were contractually time barred.
          Argued January 6—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 New Haven and tried to
the court, Hon. Jon C. Blue, judge trial referee; judg-
ment for the defendants, from which the plaintiff
appealed to this court. Affirmed.
   Frank J. Kolb, Jr., for the appellant (plaintiff).
   Michael P. Barry, for the appellees (defendants).
                          Opinion

   MOLL, J. The sole issue in this appeal is whether
the one year limitation period set forth in the parties’
agreement1 applies to the claims brought by the plain-
tiff. The plaintiff, C & H Shoreline, LLC d/b/a Servpro,
appeals from the judgment of the trial court rendered
in favor of the defendants, Lorraine Rubino and John
Rubino. On appeal, the plaintiff argues that the court
improperly concluded that the contractual limitation
period barred the plaintiff’s claims. We affirm the judg-
ment of the trial court.
   The trial court’s memorandum of decision sets forth
the following relevant facts and procedural history.
‘‘[The plaintiff] does business as ‘Servpro.’ . . . [The
plaintiff] . . . commenced the present action by ser-
vice of process on March 26, 2018. . . . The complaint
consists of six counts. The first count alleges breach
of contract. The second count alleges unjust enrich-
ment. The third count alleges quantum meruit. The
fourth count alleges conversion. The fifth count alleges
breach of the implied covenant of good faith and fair
dealing. The sixth count alleges negligent misrepresen-
tation. All counts relate to a contract between [the plain-
tiff] and Lorraine Rubino signed on January 7, 2016.
Substantively, [the plaintiff] claims that the [defen-
dants] hired it to clean their summer home after a flood
caused by bursting pipes and haven’t paid for services
rendered. The [defendants’] substantive defense is that
[the plaintiff] failed to perform its contractual duties.
   ‘‘In addition to its substantive defense, the [defen-
dants] . . . asserted a special defense [as its first spe-
cial defense] that, ‘[t]his action is barred by paragraph
7 of the parties’ agreement.’ The special defense refers
to paragraph 7 of the January 7, 2016 contract between
the parties . . . . The paragraph in question provides
that: ‘7. Any claim by Client for faulty performance,
for nonperformance or breach under this Contract for
damages shall be made in writing to Provider within
sixty (60) days after completion of services. Failure to
make such a written claim for any matter which could
have been corrected by Provider shall be deemed a
waiver by Client. NO ACTION, REGARDLESS OF
FORM, RELATING TO THE SUBJECT MATTER OF
THIS CONTRACT MAY BE BROUGHT MORE THAN
ONE (1) YEAR AFTER THE CLAIMING PARTY KNEW
OR SHOULD HAVE KNOWN OF THE CAUSE OF
ACTION.’ . . . The contract defines [the plaintiff] as
the ‘Provider.’ The term ‘Client’ is not expressly defined
(Lorraine Rubino is identified as ‘Customer’), but the
term presumably refers to the recipient of services.
The term ‘claiming party’ is not defined.’’ (Emphasis in
original.)
  The action was tried to the court, Hon. Jon C. Blue,
judge trial referee, on June 19, 2019. On July 11, 2019,
the court rendered judgment in favor of the defendants
on all counts of the plaintiff’s complaint, concluding
that the defendants’ first special defense was dispositive
of the action. With respect to its interpretation of para-
graph 7 of the parties’ agreement, the court concluded
that the one year limitation provision contained therein
was unambiguous and applied to the plaintiff’s claims.
The court reasoned as follows: ‘‘Paragraph 7 consists
of three sentences. The first two sentences expressly
refer to claims by ‘Client.’ The third sentence, con-
taining the one year limitation period in question here,
does not. The third sentence instead expressly refers
to ‘the claiming party.’ ‘Claiming party’ is not a defined
term in the contract. Under these circumstances, ‘claim-
ing party’ can be safely assigned its meaning in ordinary
English as ‘a party making a claim.’ This meaning is
reinforced by the third sentence’s express reference to
the time when ‘the claiming party knew or should have
known of the cause of the action.’ A ‘claim’ is ‘a cause
of action.’ . . .
   ‘‘The typeface of the contract reinforces the conclu-
sion that the third sentence of paragraph 7 has a mean-
ing significantly broader than that of the first two sen-
tences. The first two sentences are in ordinary print. The
third sentence is entirely in capital letters and boldface
print. The contractual typeface, like the contractual
language, emphasizes the fact that the third sentence
has an independent—and crucially important—mean-
ing.’’ (Citations omitted.)
   In rendering its decision, the court recognized that,
in a separate case, another Superior Court judge had
reached a different conclusion with respect to the iden-
tical paragraph of the same Servpro contract executed
here. In Servpro of Milford-Orange-Stratford v. Byman,
Docket No. CV-XX-XXXXXXX-S, 

2012 WL 2044570

, *2
(Conn. Super. May 11, 2012), the court concluded that,
in ‘‘[v]iewing the contract in its entirety, it is clear that
paragraph [7] is a warranty provision and that the sen-
tence relied upon by the [defendant customers] contem-
plates claims brought by a customer, including claims
for faulty performance, nonperformance or breach of
contract. In this regard, the court agrees with the plain-
tiff [service provider] that the intention of paragraph
[7] is not to limit the plaintiff’s ability to seek reimburse-
ment for goods and services.’’ (Emphasis in original.)
   The court in the present action went on to conclude,
in the alternative, that a judicial finding of ambiguity
with respect to the one year limitation provision would
not aid the plaintiff because any ambiguity would be
construed against the drafter. Relevant to this conclu-
sion, the court found that ‘‘the contract is a boilerplate
instrument prepared by [the plaintiff]. It was not a nego-
tiated contract. [The plaintiff] does not contest this
issue.’’ The court also referred to the parties’ agreement
as ‘‘Servpro’s standard contract of adhesion . . . .’’
   Having concluded that the one year limitation provi-
sion applied to all parties to the contract, the court
found in favor of the defendants on their first special
defense as to all counts.2 In this connection, the court
found that the plaintiff ‘‘did not commence this action
within the limitation period mandated by its own con-
tract . . . . [The plaintiff] was fully aware by the end
of August, 2016, that the [defendants] did not intend to
pay for the services allegedly rendered. Lorraine Rubino
credibly testified that she informed [the plaintiff] of her
intention to refuse payment during the summer of 2016.
A business record compiled by [the plaintiff] . . . indi-
cates that this conversation occurred on June 7, 2016.
Giving [the plaintiff] every benefit of the doubt, the
conversation occurred no later than September 1, 2016.
. . . [The plaintiff] commenced the present action by
service of process on March 26, 2018. That date was,
at a minimum, more than one year and six months after
[the plaintiff] knew or should have known of the cause
of action. The action is consequently time barred by [the
plaintiff’s] own contract.’’ The court therefore rendered
judgment in favor of the defendants on all counts of
the plaintiff’s complaint. This appeal followed.
   Because the plaintiff’s claim challenges the court’s
interpretation of the parties’ agreement, we begin our
analysis by setting forth the applicable standard of
review and general principles of law relevant to the
construction of contracts. ‘‘The law governing the con-
struction of contracts is well settled. When a party
asserts a claim that challenges the trial court’s construc-
tion of a contract, we must first ascertain whether the
relevant language in the agreement is ambiguous.’’
(Internal quotation marks omitted.) EH Investment Co.,
LLC v. Chappo, LLC, 

174 Conn. App. 344

, 357–58, 

166 A.3d 800

(2017). ‘‘When the language of a contract is
ambiguous, the determination of the parties’ intent is
a question of fact . . . . [When] there is definitive con-
tract language, [however] the determination of what
the parties intended by their contractual commitments
is a question of law. . . . It is implicit in this rule that
the determination as to whether contractual language
is plain and unambiguous is itself a question of law
subject to plenary review.’’ (Internal quotation marks
omitted.) Gold v. Rowland, 

325 Conn. 146

, 157–58, 

156 A.3d 477

(2017).
   ‘‘We accord the language employed in the contract
a rational construction based on its common, natural
and ordinary meaning and usage as applied to the sub-
ject matter of the contract. . . . Where the language
is unambiguous, we must give the contract effect
according to its terms. . . . Where the language is
ambiguous, however, we must construe those ambigu-
ities against the drafter [sometimes referred to as the
contra proferentem rule]. . . . A contract is unambigu-
ous when its language is clear and conveys a definite
and precise intent. . . . The court will not torture
words to impart ambiguity where ordinary meaning
leaves no room for ambiguity. . . . Moreover, the mere
fact that the parties advance different interpretations
of the language in question does not necessitate a con-
clusion that the language is ambiguous. . . . In con-
trast, a contract is ambiguous if the intent of the parties
is not clear and certain from the language of the contract
itself. . . . [A]ny ambiguity in a contract must emanate
from the language used by the parties. . . . The con-
tract must be viewed in its entirety, with each provision
read in light of the other provisions . . . and every
provision must be given effect if it is possible to do so.
. . . If the language of the contract is susceptible to
more than one reasonable interpretation, the contract
is ambiguous.’’ (Citations omitted; internal quotation
marks omitted.) Cantonbury Heights Condominium
Assn., Inc. v. Local Land Development, LLC, 

273 Conn. 724

, 735, 

873 A.2d 898

(2005).
  We continue with a review of paragraph 7 of the
parties’ agreement, which, as stated previously, pro-
vides: ‘‘Any claim by Client for faulty performance, for
nonperformance or breach under this Contract for dam-
ages shall be made in writing to Provider within sixty
(60) days after completion of services. Failure to make
such a written claim for any matter which could have
been corrected by Provider shall be deemed a waiver
by Client. NO ACTION, REGARDLESS OF FORM,
RELATING TO THE SUBJECT MATTER OF THIS CON-
TRACT MAY BE BROUGHT MORE THAN ONE (1)
YEAR AFTER THE CLAIMING PARTY KNEW OR
SHOULD HAVE KNOWN OF THE CAUSE OF ACTION.’’
(Emphasis in original.)
   The parties disagree about the applicability of the
third sentence of paragraph 7, which contains the one
year limitation period, to the plaintiff’s claims. The
plaintiff argues that because the first two sentences
of paragraph 7 relate solely to claims brought by the
‘‘Client,’’ it necessarily follows that the term ‘‘Claiming
Party’’ in the third sentence refers only to the customer.
In contrast, while urging us to adopt the trial court’s
conclusion, the defendants counter that paragraph 7 is
unambiguous and that the term ‘‘Claiming Party,’’ which
is otherwise not defined in the parties’ agreement and
appears only once therein, means any party asserting
a cause of action. Relatedly, the defendants highlight
the fact that the parties’ agreement consistently uses
(1) the terms ‘‘Client’’ and ‘‘Customer’’ when referring
solely to the party receiving the services and (2) the
term ‘‘Provider’’ when referring to the Servpro franchi-
see providing the services. The defendants argue that
it follows, therefore, that the newly introduced term—
’’Claiming Party’’—means any party bringing a cause of
action relating to the parties’ agreement. In the alterna-
tive, the defendants argue that, even if the use of the
term ‘‘Claiming Party’’ were deemed ambiguous, the
plaintiff’s claim still fails because, in the absence of the
trial transcript being made a part of the record, there
is an inadequate record on appeal. We agree that the
plaintiff’s claim is unavailing.
   Because the plaintiff offers a reasonable interpreta-
tion of the third sentence on the one hand (i.e., akin
to the one espoused by the court in Servpro of Milford-
Orange-Stratford v. 

Byman, supra

, 

2012 WL 2044570

,
*2) and the defendants offer a competing, reasonable
interpretation on the other hand (i.e., the one espoused
by the court in the present case), we conclude that
the third sentence of paragraph 7 is ambiguous as to
whether the term ‘‘Claiming Party’’ refers only to the
client or, instead, to any party asserting a cause of
action relating to the contract. ‘‘If the language of the
contract is susceptible to more than one reasonable
interpretation, the contract is ambiguous.’’ (Internal
quotation marks omitted.) Cantonbury Heights Condo-
minium Assn., Inc. v. Local Land Development, 

LLC, supra

, 

273 Conn. 735

.
   Having determined that the third sentence in para-
graph 7 of the parties’ agreement is ambiguous, and
because the plaintiff does not suggest that there is any
countervailing extrinsic evidence to support a finding
that the parties understood the third sentence to apply
only to claims brought by the ‘‘Client’’ or ‘‘Customer,’’
we apply the contra proferentem rule, which resolves
the ambiguity against the plaintiff as the undisputed
drafter. See Cruz v. Visual Perceptions, LLC, 

311 Conn. 93

, 108, 

84 A.3d 828

(2014) (contra proferentem rule
should be invoked ‘‘only as a last resort if [the trial
court] is unable to resolve the ambiguity . . . by con-
sidering the extrinsic evidence’’).
  In sum, we construe the ambiguity in the third sen-
tence of paragraph 7 of the parties’ agreement against
the plaintiff as the drafter and conclude that the one
year limitation period contained therein applies to any
contracting party asserting a cause of action. Because
there is no dispute that the plaintiff commenced the
present action after one year from the time it knew or
should have known of its cause of action, we conclude
that judgment was properly rendered in favor of the
defendants on the basis that the plaintiff’s claims were
contractually time barred.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
    Although the contract at issue was signed only by Lorraine Rubino on
the part of the defendants, for ease of reference, we refer in this opinion
to the contract as ‘‘the parties’ agreement.’’ The fact that the defendant John
Rubino is not a signatory to the parties’ agreement is not a subject of
this appeal.
  2
    We pause to note that reasonable contractual limitation periods have
long been deemed valid under Connecticut law. See, e.g., Monteiro v. Ameri-
can Home Assurance Co., 

177 Conn. 281

, 283, 

416 A.2d 1189

(1979) (‘‘[s]ince
a provision in a fire insurance policy requiring suit to be brought within
one year of the loss is a valid contractual obligation, a failure to comply
therewith is a defense to an action on the policy unless the provision has
been waived or unless there is a valid excuse for nonperformance; and such
a condition requiring suit to be brought within one year does not operate
as a statute of limitations’’). Here, the validity of the one year limitation
period in the parties’ agreement is not disputed.

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