Butler v. O'Connor
| Decision Date | 19 January 2017 |
| Docket Number | FSTCV126014644S |
| Court | Connecticut Superior Court |
| Parties | Shane Butler et al. v. Charles O'Connor et al |
UNPUBLISHED OPINION
The plaintiffs homeowners, Shane and Colleen Butler, have brought a six-count complaint against Charles O'Connor (" O'Connor"), a building contractor, Mingolello and Hayes, Architects, P.C. and R. Neil Hayes, a professional architect and member of the P.C.[1] The three counts asserted against O'Connor allege breach of a residential construction contract, negligent supervision of O'Connor's employees and independent contractors, and negligent hiring of his employees and independent contractors. In his answer, O'Connor has denied the allegations and has interposed five special defenses with a counterclaim seeking foreclosure of a mechanic's lien damages for breach of contract and unjust enrichment. The plaintiffs' reply denies the allegations and sets up several special defenses to the counterclaim.
On January 2, 2012 the plaintiffs and O'Connor entered into a written contract under which O'Connor agreed to perform certain wood framing work in accordance with architectural plans and drawings prepared by the defendant, architectural firm of Mingolello and Hayes, Architects, P.C., (" the architect") which were expressly incorporated by reference into the contract. By Shane Butler's testimony the architectural drawings called for completion of phase I of a multi-phase alteration to the plaintiffs' residence which was under consideration for future implementation. O'Connor's responsibility was to frame out a new kitchen, second floor hallway, a bedroom and new bathroom for the plaintiffs' son, all to be completed by February 15 2012. The contract price was $51, 500. The contract did not contain a time of the essence clause.
When February 15, 2012 arrived, the plaintiffs did not believe that O'Connor had completed his work and furthermore claimed that the work that was performed was done in a faulty and unworkmanlike manner. O'Connor contends that not only did he perform in a timely and workmanlike manner but he did extra work at the plaintiffs' request for which he has not been fully paid. Furthermore, O'Connor contends that the only delay which occurred in performance resulted from the architect's default in performance of his contractual obligation as construction manager pursuant to which he was to assist the plaintiffs in compiling a qualified list of subcontractors which were essential for completion of the job. O'Connor further contends that with the architect's default, he undertook to obtain them at the plaintiffs' request.
At the outset, it is noted that in their trial brief the plaintiffs set forth four " legal theories" to support their recovery which include the second and third counts alleging negligent supervision and negligent hiring. Although at page 16, headings II and III are so entitled, the brief contains no analysis whatsoever of these " theories." They are therefore deemed to have been abandoned, leaving only the breach of contract count.[2] (Alternate citations omitted.) Connecticut Light & Power Co. v. Depart. Of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
The fourth legal theory which the plaintiffs assert in their brief is based on claim of " misrepresentation and fraud." It is well settled that the right of a plaintiff to recover is limited to the allegations of the complaint and that a plaintiff may not allege one cause of action and recover upon another . . . " These pronouncements relate to the requirement that a pleading must provide adequate notice of the facts claimed and the issues to be tried." Tedesco v. Stamford, 215 Conn. 450, 458, 576 A.2d 1273 (1990). " The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial in under way and the . . . witnesses have testified." Du Bose v. Carabetta, 161 Conn. 254, 261, 287 A.2d 357 (1971). If an appellate court will not consider issues briefed but not raised at trial, Ajadi v. Commissioner of Correction, 280 Conn. 514, 549, 911 A.2d 712 (2006), neither will this court.
Moreover, " The essential elements of an action in fraud, as we have repeatedly held, are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury." Miller v. Appleby, 183 Conn. 51, 55, 438 A.2d 811 (1981). Even if the plaintiffs had alleged fraud and misrepresentation there was no proof of either especially since the standard of proof for fraud is by clear and convincing evidence. Verrastro v. Middlesex Insurance Company, 207 Conn. 179, 540 A.2d 693 (1988).
Additionally, the plaintiffs have included in their brief arguments relating to the Home Improvement Act (G.S. § 20-429) and the New Home Warranties Act (G.S. Chapter 27). Because none of these causes of action or claims have been pleaded the court is not at liberty to adjudicate them.[3]
The plaintiffs have also argued in their brief that the court should award rescission of the contract " due to the material breach of contract." Once again, it is noted that the revised complaint contains no cause of action in rescission and that the prayers for relief do not contain a claim for such a remedy although prayer for relief #5 is a catchall request for " such additional relief as may be required in law or equity." Notwithstanding these omissions, " rescission of a contract is an appropriate remedy if there has been a material misrepresentation of fact upon which a party relied and which caused it to enter the contract." Kavarco v. T.J.E., Inc., 2 Conn.App. 294, 298, 478 A.2d 257 (1984). As noted above there was no evidence whatsoever that O'Connor made any fraudulent misrepresentation or any misrepresentation of fact, whether intentional or negligent.[4]
And finally at page 20 of their brief the plaintiffs have introduced for the first time a claim for " restitution" of one third of the contract price of $51, 500.00, admitting for the purpose of this claim that O'Connor has substantially performed two-thirds of the contract but failed to properly frame the kitchen ceiling heights.[5] Again, the equitable remedy of restitution has not been pleaded as a cause of action and but for the catchall claim for relief, the remedy of restitution has not been sought until it appeared in the brief. A restitutionary remedy may take many forms in order to achieve an equitable result. While plaintiffs do not specify what equitable remedy they seek as an alternative to rescission, the common form of remedy which is essentially equitable and restitutionary is unjust enrichment.
" A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment . . ." Jo-Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn.App. 179, 880 A.2d 945 (2005). It is well settled that the remedy of unjust enrichment is available only when no remedy is available by an action on the contract. Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282, 649 A.2d 518 (1994). The court must first consider the breach of contract count because the case has been pleaded and tried on the basis of that cause of action.
Breach of Contract
" It is well established that " (t)he elements of a breach of contract action are the formation of an agreement performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) (Alternate citations omitted.) Meadowbrook Center, Inc. v. Buchman, 149 Conn.App. 177, 185, 90 A.3d 219 (2014). The starting point for determining whether there has been a breach of contract is to assess whether O'Connor performed his obligations under the written contract. The major issue in contention between the parties is whether O'Connor's contract obligated him to frame out a hallway and doorway leading from that hallway to a new bedroom intended for the plaintiffs' son. The plaintiffs contend that O'Connor's failure to do so prevented them from obtaining a certificate of occupancy from the City of Stamford.[6] O'Connor contends that he framed the particular doorway but was under no obligation to frame out the hallway because he understood from the architect as well as from the drawings that...
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