LAVINE, J.
This appeal arises from a breach of contract action for failure to pay for materials allegedly delivered by the plaintiff,
The following facts and procedural history are relevant to our resolution of the plaintiff's claims. The plaintiff commenced this action in May, 2009, seeking payment for certain goods that the plaintiff alleged it had delivered to the defendant's storage facility at 330 Ledyard Street in Hartford. The plaintiff claimed that, although it had delivered the goods to the defendant's satisfaction, the defendant refused to pay pursuant to a certain credit agreement between the parties. The plaintiff claimed that the defendant owed $59,114.67 plus interest.
The plaintiff's first claim is that it was improper for the court to apply the preponderance of the evidence standard, when ruling on the defendant's motion to dismiss for failure to make out a prima facie case pursuant to Practice Book § 15-8. We agree that the preponderance of the evidence standard is inapplicable to a motion to dismiss for failure to make out a prima facie case, but conclude that the court's error in applying the preponderance standard was harmless, as ultimately the court was the trier of fact. See Berchtold v. Maggi, 191 Conn. 266, 272, 464 A.2d 1 (1983); Friends of Animals, Inc. v. United Illuminating Co., 124 Conn.App. 823, 842 n. 12, 6 A.3d 1180 (2010).
In order to prevail on a breach of contract action, a plaintiff must prove "the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn.App. 699, 706-707, 905 A.2d 1236 (2006).
The following facts, as gleaned from our review of the transcript and on which the parties generally agree, provide the context for the plaintiff's claim. On or about June 6, 2006, the defendant placed an order for 100 Quazite boxes,
At trial, the plaintiff produced a receipt signed by one of the defendant's agents for the drop shipped order and an internal document noting delivery prepared by one of its employees for the stock order shipment. Although the plaintiff claims that it delivered 100 boxes to the defendant's storage facility via two deliveries on August 10, 2006, it failed to obtain a receipt signed by one of the defendant's agents confirming delivery of the stock order shipment.
At the conclusion of the plaintiff's case-in-chief, counsel for the defendant made an oral motion to dismiss the action for the plaintiff's failure to make out a prima facie case. See Practice Book § 15-8. Following argument by counsel for the parties on the motion to dismiss, the court rendered an oral decision granting the motion. In its decision, the court stated in relevant part, "the burden to prove the case here is on the plaintiff, by a preponderance of the evidence." The court also stated in relevant part: "[L]et me start off also by talking about credibility. I have no doubt of the credibility of the defendant's witnesses. I think that Mr. Sullivan I found to be very credible, very honest, to the extent of what he knew. And I have no question with his credibility. I do have somewhat of a credibility problem with [Jeremy] Avery. He was the one who accompanied the truck driver to deliver the [stock order shipment] that is in question, the shipment. And because we don't know what happened to that shipment, the question comes in, did it really exist and was it really delivered, as Mr. Avery said. I don't know the answer to that, but because of the mystery about that shipment that we're talking about, I find it hard to believe that he was helping to unload the shipment, and was with the truck driver."
In this case, the court applied the preponderance of the evidence standard when ruling on the defendant's motion to dismiss rather than accepting the plaintiff's evidence as true and viewing it in the light most favorable to the plaintiff. See Winn v. Posades, 281 Conn. 50, 54-55, 913 A.2d 407 (2007). The court also predicated its decision, in part, on the credibility of witnesses, which was not proper given the stage of the proceedings. The court, however, was the trier of fact, and ultimately would have had to weigh the evidence, which includes credibility determinations. See LPP Mortgage, Ltd. v. Lynch, 122 Conn.App. 686, 700, 1 A.3d 157 (2010) (province of trier of fact to make credibility determinations).
Here, we conclude that the court's errors were harmless. The court found that the plaintiff had failed to prove performance, that is, that it had delivered the boxes to the defendant pursuant to the alleged stock order shipment. The plaintiff therefore could not prevail on its breach of contract claim. Although the court improperly applied a preponderance of the evidence standard to the defendant's motion to dismiss for failure to make out a cause of action, we conclude that the court properly rendered judgment for the defendant given this failure of proof.
The plaintiff also claims that the court erred in denying its motion to open the judgment and by ruling that it had failed to comply with the court's order to submit new evidence that was reasonably likely to change the outcome of the case. We disagree with the plaintiff's claims.
The following facts are relevant to our determination. Near the end of its presentation of evidence, the plaintiff requested a continuance to subpoena testimony from the Hartford city engineer and an agent of Micon Electrical, LLC, regarding the number of boxes that were used in certain streetscape projects in Hartford. In response, the court stated: "Well, first of all, I have a trial management report. You don't list any of those witnesses.... But I do want to see justice done here, and if there's been some lack of investigation on [the part of the plaintiff's counsel], here's what I'm going to do, depending upon what I hear from [the defendants' counsel and the plaintiff's counsel on the motion to dismiss]. But if I should rule in favor of the defendants, if you want to make a motion to reopen on the basis of new evidence that is material, you're free to do so.... I can leave the case open for that purpose—so there'll be a pending case, but strictly open for that purpose, so that you can issue subpoenas and do depositions for people from Micon or the city.... You've got to pin it down. You can't just say, well, additional boxes were used. You've still got to tie that up to the delivery. ..." After rendering judgment for the defendant, the court then stated: "Do whatever depositions you want. But you may reopen, and I'm conditioning on showing me what you have to make sure that it is material, relevant and provable. And if it is, does it somehow make a difference in the verdict for the defendant...." (Emphasis added.)
On June 4, 2010, the plaintiff filed a motion to open the judgment and present evidence it claimed was newly discovered. On July 23, 2010, the defendant filed an objection to the motion to open the judgment. The court denied the motion to open following oral argument on August 3, 2010.
In considering the plaintiff's motion to open, the court made the following observation: "I think what [the plaintiff's counsel] is trying to do here is to show that somehow the defendants had boxes additional to those on Maple and Main
"A motion to open and vacate a judgment ... is addressed to the [trial] court's discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.... The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did." (Internal quotation marks omitted.) Marion's Appeal from Probate, 119 Conn.App. 519, 521, 988 A.2d 390 (2010).
On the basis of our review of the plaintiff's motion to open the judgment and the transcript of the arguments made on August 3, 2010, we conclude that, through its representations in the motion and its offer of proof, the plaintiff attempted to prove that the defendant took delivery of the stock order shipment because the number of boxes installed on the various streetscapes exceeded 100. Although the proffered evidence may demonstrate that the parties, the city and nonparty contractors disagree as to who performed what services in various locations, and who supplied the boxes and when, those facts and issues are not relevant to the court's resolution of the plaintiff's case.
In this case, the plaintiff pleaded breach of contract against the defendant. At trial, the plaintiff presented evidence of the defendant's purchase order for 100 boxes, which were delivered by the manufacturer, accepted and paid for by the defendant. The plaintiff presented no evidence that the defendant placed a second order for 100 boxes and took delivery of them.
The judgment is affirmed.
In this opinion the other judges concurred.
"Now, I asked this question during the trial. If the plaintiff's shipment had been delivered on August 10, as alleged, of 2006, then when the drop ship came in on August 14 of 2006, the defendant would have rejected it, since he already had one. And that doesn't make any sense. He didn't reject the second one...."