Khalid Shah v. Cover-It, Inc., et al.

The plaintiff, Khalid Shah, appeals
from the judgment of the trial court, rendered after a
trial to the court, in favor of the defendants Cover-It,
Inc., and Brian Goldwitz.1 On appeal, the plaintiff claims
that the court improperly found that he materially
breached the employment contract between the parties.
We disagree and, accordingly, affirm the judgment of
the trial court.

The following facts and procedural history are relevant
to our discussion. On November 12, 1997, the parties
entered into an employment contract by which the
plaintiff became the structural engineering manager of
Cover-It, Inc. Pursuant to the terms of the employment
contract, the plaintiff was to receive an annual salary
of $70,000, payable weekly, for a period of five years
and subject to cost of living adjustments. In addition
to his salary, the plaintiff was entitled to a commission
of 2 percent of the sales generated from those products
that he designed while employed, up to $1.5 million.
In addition to standard company benefits, the plaintiff
also received three paid weeks of vacation on the completion
of his first year of employment and the use of
a company car. Furthermore, the plaintiff was permitted
to work a flexible full-time schedule of thirty-five hours
per week. He also was allowed to take time off from
work to attend professional workshops and activities,
and to resolve any prior professional obligations. The
employment contract was subject to termination by
either party with ninety days written notice. If the defendants
terminated the contract, the plaintiff, on the completion
of his first year of employment, was to receive
monthly salary payments for the remainder of the five
year period pursuant to a schedule.2

In June, 1998, the plaintiff requested and received
permission for a period of vacation time. Goldwitz
approved the time off with the understanding that the
plaintiff would be gone for several weeks. At the end
of August, 1998, the plaintiff had not returned. Goldwitz
believed that the plaintiff had abandoned the employment
contract and sent him notice that his health benefits
were cancelled. The plaintiff returned to work in
early September, 1998, and continued working until the
middle of October. During that time period, the plaintiff
worked two or three days per week and spent long
periods of time visiting Internet web sites that were
unrelated to his employment duties. The plaintiff also
refused to use a time clock to document his attendance;
instead, he simply indicated on his time card that he
was present. On October 14, 1998, Goldwitz asked the
plaintiff if certain designs would be completed. The
plaintiff stated that he was not sure when the designs
would be completed and that he would take his time
in completing them. Goldwitz then terminated the plaintiff's
employment.

The plaintiff commenced the present action on October
6, 1999. By way of a fourteen count amended complaint
filed on November 20, 2001, the plaintiff alleged
various causes of action against the defendants, including
breach of contract, breach of the implied covenant
of good faith and fair dealing, failure to pay wages
in violation of General Statutes § 31-72 and negligent
misrepresentation. The defendants filed an answer and
a two count counterclaim. With respect to the plaintiff's
claims, the court found in favor of the defendants on
all counts and rendered judgment accordingly. As to
the counterclaim, the court concluded that the defendants
had failed to prove damages and rendered judgment
in favor of the plaintiff. This appeal followed.

On appeal, the plaintiff claims that the court improperly
found that he had breached the contract or, in the
alternative, that any breach was not material. Specifically,
the plaintiff argues that the court failed to identify
an express term or condition that was breached and
instead merely found that certain acts, considered
together, demonstrated a material breach prior to the
termination of his employment.3 Therefore, according
to the plaintiff, the defendants were not relieved of their
obligations, under the terms of the contract, to pay his
full salary for ninety days and to pay his posttermination
salary pursuant to the schedule set forth in the contract.
We disagree.

As a preliminary matter, we identify the applicable
standard of review. ‘‘The determination of whether a
contract has been materially breached is a question of
fact that is subject to the clearly erroneous standard
of review. . . . A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.'' (Citations omitted; internal quotation
marks omitted.) Efthimiou v. Smith, 268 Conn. 487,
493–94, 846 A.2d 216 (2004); see also Miller v. Guimaraes,
78 Conn. App. 760, 766–67, 829 A.2d 422 (2003).
‘‘Our authority, when reviewing the findings of a judge,
is circumscribed by the deference we must give to decisions
of the trier of fact, who is usually in a superior
position to appraise and weigh the evidence.'' (Internal
quotation marks omitted.) LaVelle v. Ecoair Corp., 74
Conn. App. 710, 716, 814 A.2d 421 (2003).

‘‘It is a general rule of contract law that a total breach
of the contract by one party relieves the injured party
of any further duty to perform further obligations
under the contract.'' (Emphasis added.) Rokalor, Inc.
v. Connecticut Eating Enterprises, Inc., 18 Conn. App.
384, 391, 558 A.2d 265 (1989); see also State v. Lex
Associates, 248 Conn. 612, 624, 730 A.2d 38 (1999); 669
Atlantic Street Associates v. Atlantic-Rockland Stamford
Associates, 43 Conn. App. 113, 125–26, 682 A.2d
572, cert. denied, 239 Conn. 949, 950, 686 A.2d 126
(1996); 2 Restatement (Second) Contracts § 237 (1981).
In Bernstein v. Nemeyer, 213 Conn. 665, 672, 570
A.2d 164 (1990), our Supreme Court endorsed the use
of the multifactor test set forth in the Restatement (Second)
of Contracts, supra, § 241, when determining
whether a breach is material. ‘‘Section 241 of the
Restatement (Second) of Contracts provides: ‘In
determining whether a failure to render or to offer performance
is material, the following circumstances are
significant: (a) the extent to which the injured party
will be deprived of the benefit which he reasonably
expected; (b) the extent to which the injured party can
be adequately compensated for the part of that benefit
of which he will be deprived; (c) the extent to which
the party failing to perform or to offer to perform will
suffer forfeiture; (d) the likelihood that the party failing
to perform or to offer to perform will cure his failure,
taking account of all the circumstances including any
reasonable assurances; [and] (e) the extent to which
the behavior of the party failing to perform or to offer
to perform comports with standards of good faith and
fair dealing.' '' Bernstein v. Nemeyer, supra, 672 n.8;
Strouth v. Pools by Murphy & Sons, Inc., 79 Conn. App.
55, 60, 829 A.2d 102 (2003). ‘‘The standards of materiality
[are] to be applied in the light of the facts of each case
in such a way as to further the purpose of securing for
each party his expectation of an exchange of performances.
[Section 241] therefore states circumstances,
not rules, which are to be considered in determining
whether a particular failure is material. 2 Restatement
(Second), supra, § 241, comment (a).'' (Internal quotation
marks omitted.) Strouth v. Pools by Murphy &
Sons, Inc., supra, 60.

In the present case, the court found that the plaintiff
took a ten week vacation, which exceeded the time
authorized. After the plaintiff returned, he reported for
work only two or three days per week and spent long
periods of time visiting Internet web sites that were
unrelated to his professional duties. Additionally, after
being instructed by the human resources manager to
document his attendance by use of a time clock, the
plaintiff refused and simply marked his time sheets
with a ‘‘P'' for present. Last, the court found that when
Goldwitz asked when certain designs would be completed,
the plaintiff responded that he was not sure and
that he would take his time in completing them. When
reviewing those findings in light of the factors set forth
in § 241 of the Restatement (Second) of Contracts, we
conclude that the court's finding of a material breach
was not clearly erroneous.

It is clear from the court's findings that the plaintiff
failed to perform under the obligations of the employment
contract. As the court properly stated: ‘‘[O]ne
cannot recover upon a contract unless he has fully
performed his own obligation under it, has tendered
performance or has some legal excuse for not performing.''
See Automobile Ins. Co. v. Model Family
Laundries, Inc., 133 Conn. 433, 437, 52 A.2d 137 (1947).
As a result of the material breach by the plaintiff, the
defendants were excused from further performance
under the contract, and were relieved of the obligation
to pay the plaintiff his full salary for ninety days and
to pay his posttermination salary pursuant to the schedule
set forth in the contract.