The plaintiff, Weber's Nursery, Inc., appeals from the judgment of the trial court denying
The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff and the defendants, without a written contract, agreed that the plaintiff would perform certain landscaping work on the defendants' premises. The plaintiff subsequently brought an action seeking the unpaid balance owed to it for the work performed. The defendants filed a counterclaim to recover for damage resulting from the allegedly negligent manner in which the plaintiff performed the landscaping.
The plaintiff first claims that the court improperly made findings of fact without hearing from a single witness or taking any evidence. The plaintiff bases this claim on 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 301, 685 A.2d 305 (1996), in which our Supreme Court stated that a "finding of fact is clearly erroneous when there is no evidence ... to support it...." (Internal quotation marks omitted.)
We agree with the plaintiff that a finding of fact, without any evidence to support it, is clearly erroneous. This court has so held in Record Journal Publishing Co. v. Meriden, 51 Conn.App. 508, 517, 722 A.2d 291 (1999). We disagree, however, with the plaintiff's assertion that there was no evidence in the present case to support the findings of fact that led to the court's
The plaintiff, in its complaint, alleged that it had set forth a proposal in response to the defendants' solicitation for nursery services on their premises. There is no written contract in evidence, and the defendants deny that one exists. Therefore, if the work performed by the plaintiff is found to be a home improvement rather than the construction of a new home, the act applies
The court had before it the fact finder's report, which contained the finding that "nothing in the proposal referenced new home construction or specified performance at a certain stage of the home construction." The court heard argument by counsel, considered the parties' briefs on the issue, and reviewed the pleadings, the plaintiff's proposal for landscaping, the certificate of occupancy and the performance bond. In support of its conclusion that the landscaping was not an integral part of the construction of a new home, the court considered the fact that a certificate of occupancy was issued before the landscaping was begun and the fact that the plaintiff was not the general contractor building the house, nor was the plaintiff working for the general contractor.
The plaintiff, however, contends that the fact that the town of Berlin required the defendants to acquire a performance bond to ensure that certain grading and fence work be done is proof that this work is part of the construction of the house. The court concluded that the grading and fence work performed by the plaintiff may have had some incidental relation to the defendants' satisfaction of the requirement and release of the performance bond, but "represents only a tiny [portion] of the work" done by the plaintiff for the defendants. It did not transform the landscaping into "the construction of a new home."
The plaintiff also claims that the court improperly denied its motion for articulation. The court denied the motion for articulation without comment. The plaintiff timely filed a motion for review of the denial with this court. We granted review but denied the relief requested. The matter has been reviewed, therefore, in accordance with Practice Book § 66-6. The plaintiffs claim, in which the plaintiff is requesting that, in effect, we again review its motion for articulation is dismissed as being improperly presented before us.
The judgment is affirmed.
In this opinion the other judges concurred.