Dunleavey v. Paris Ceramics Usa, Inc.

• Decision Date: 16 December 2002
• Docket Number: No. CV02-0395709S.,CV02-0395709S.
• Citation: 819 A.2d 945,47 Conn.Sup. 565
• Court: Connecticut Superior Court
• Parties: Ann DUNLEAVEY v. PARIS CERAMICS USA, INC.

Page 945

819 A.2d 945

47 Conn.Sup. 565

Ann DUNLEAVEY v. PARIS CERAMICS USA, INC.

No. CV02-0395709S.

Superior Court of Connecticut, Judicial District of Fairfield at Bridgeport.

December 16, 2002

Day, Berry & Howard, Greenwich, for the plaintiff.

Zeldes, Needle & Cooper, Bridgeport, for the defendant.

INTRODUCTION

LEVIN, J.

The principal issue raised by this application for a prejudgment remedy is whether the plaintiff wrongfully denied the defendant the opportunity to "cure" its defective performance of a contract for goods, as provided in General Statutes § 42a-2-508.¹

The plaintiff, Anne Dunleavey, doing business as Unique Interiors, is an interior designer. The defendant, Paris Ceramics USA, Inc., is a supplier of limestone for exterior and interior use in "high end" homes. The plaintiff contracted with Terry and Nancy McClinch to renovate completely their home in Fairfield, including the swimming pool area and terrace. After consulting with the defendant, the plaintiff decided to have the McClinches' terrace paved with French Antique Bourgogne limestone. The defendant represented that this limestone was suitable for exterior use. The plaintiff purchased the stone from the defendant in June 2001, and August 2001, at a total cost of $124,963. She promptly resold it to the McClinches at a substantial markup, plus shipping, and the stone was installed by an independent contractor retained by the McClinches' general contractor, John Desmond.

By late October and early November 2001, some of the stones were flaking and scaling. By January 2002, most of the stones were breaking up. A meeting was held at the site in January 2002, at which the plaintiff, John Abbott (the defendant's vice-president of operations), and Desmond were present. Those present agreed that the stone had to be taken up. Abbott stated at the meeting that he would do what was necessary to correct the situation.

The following day, the plaintiff wrote to Abbott, thanking him for his candor and asking for a refund "as Mr. McClinch has adjusted our payment already. ($124963.33) is the total amount due Unique Interiors." In response, the defendant wrote to the plaintiff, stating: "In the circumstances we feel we should be afforded the opportunity to right this situation by supplying suitable replacement stone.

"We greatly regret the situation at the McClinch residence, but feel it is our obligation to put this right."

When the plaintiff failed to reply, the defendant, on February 25, 2002, again wrote to the plaintiff, stating: "We remain keen to resolve this issue, and confident of the fact that we can now supply product to the site that will be suitable for the installation. We do apologize for the aggravation and inconvenience caused by the supply of the previous batch of material."

When the defendant still did not receive a response, Abbott wrote to the "McClinch Residence" in Fairfield, expressing the defendant's desire to remove and replace the existing stone. In fact, the McClinches indicated to the plaintiff in February 2002, that they would no longer be using her services.

The plaintiff has filed an application for a prejudgment remedy and an unsigned complaint, the allegations of which the plaintiff, in her affidavit, states are true and accurate to the best of her knowledge. The complaint is in three counts: breach of contract; breach of warranty; and, fraud. The gravamen of the complaint is that the defendant did not supply French Antique Bourgogne limestone as represented.² On October 7, 2002, the court held a hearing on the plaintiff's application at which both sides presented evidence and argument. The parties subsequently filed briefs.

I

General Statutes § 52-278d (a) provides in relevant part that a hearing on a prejudgment remedy "shall be limited to a determination of (1) whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or setoffs, will be rendered in the matter in favor of the plaintiff.... If the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or set-offs ... finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiff's favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or as modified by the court...."

"`The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim.... The court's role in such a hearing is to determine probable success by weighing probabilities....' (Internal quotation marks omitted.) Calfee v. Usman, 244 Conn. 29, 37, 616 A.2d 250 (1992). Probable cause for purposes of the [prejudgment remedy] statutes is a flexible common sense standard that does not demand that a belief be correct or more likely true than false. Goodwin v. Pratt, 10 Conn.App. 618, 621, 524 A.2d 1168 (1987)." Fischel v. TKPK, Ltd., 34 Conn.App. 22, 24, 640 A.2d 125 (1994). "`In acting on a prejudgment remedy motion, the trial court must evaluate the arguments and evidence produced by both parties to determine whether there is probable cause to sustain the validity of the plaintiffs' claim.... [T]he trial court, vested with broad discretion, need determine only the likely success of the plaintiffs' claim by weighing probabilities.' (Citations omitted; internal quotation marks omitted.) Haxhi v. Moss, 25 Conn.App. 16, 18-19, 591 A.2d 1275 (1991); E.J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 628-30, 356 A.2d 893 (1975). Civil probable cause constitutes a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, in advancing the action. One Fawcett Place Ltd. Partnership v. Diamandis Communications, Inc., 24 Conn.App. 524, 525, 589 A.2d 892 (1991)." Tyler v. Schnabel, 34 Conn.App. 216, 219-20, 641 A.2d 388 (1994).

Although the plaintiff has not shown probable cause that the stone provided to it by the defendant was not French Antique Bourgogne limestone, it has shown probable cause that the stone was not fit for the purpose for which it was intended; to wit, exterior use. The plaintiff, therefore, has shown probable cause that the defendant breached its contract and its warranty to the plaintiff. See General Statutes § 42a-2-313 through 42a-2-315;³ see also Superior Wire &amp Paper Products, Ltd. v. Talcott Tool & Machine, Inc., 184 Conn. 10, 13, 441 A.2d 43 (1981) ("If the buyer can demonstrate that he has been damaged by the nonconformity of the goods that he has accepted, he is entitled to recover such damages as he can prove. General Statutes §§ 42a-2-607 (3), 42a-2-714."); Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 95, 3 A.2d 224 (1938) (breach of warranty for particular purpose); Acme Pump Co. v. National Cash Register Co., 32 Conn.Supp. 69, 72-73, 337 A.2d 672 (1974).

The defendant, however, contends that the plaintiff is barred from recovering damages because it refused the defendant's offer to cure the breach. Since this is a defense to the plaintiff's action for damages for breach of warranty; Travelers Indemnity Co. v. MAHO Machine Tool Corp., 952 F.2d 26, 30 (2d Cir.1991); 3A R. Anderson, Uniform Commercial Code (3d Ed.) § 2-508:29; the court is duty bound to consider it. General Statutes § 52-278d (a); Rafferty v. Noto Bros. Construction, LLC, 68 Conn.App. 685, 795 A.2d 1274 (2002).

General Statutes § 42a-2-508, which corresponds to § 2-508 of the Uniform Commercial Code provides: "(1) Where any tender or delivery by the seller is rejected because nonconforming and the time for performance has not yet expired, the seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery.

"(2) Where the buyer rejects a nonconforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conforming tender." When the seller has the right to make a curative tender and the buyer improperly refuses to accept the tender, the buyer is not entitled to damages for breach of contract or breach of warranty with respect to the goods tendered. Travelers Indemnity Co. v. MAHO Machine Tool Corp., supra, 952 F.2d 30; cf. Plateq Corp. v. Machlett Laboratories, Inc., 189 Conn. 433, 442-43, 456 A.2d 786 (1983); 3A R. Anderson, supra, §§ 2-508:28, 2-508:29.

However, "[t]he seller's right to cure, as provided in [2-508], is in terms limited to the situation where nonconforming goods have been rejected by the buyer." Bonebrake v. Cox, 499 F.2d 951, 957 (8th Cir. 1974); Jensen v. Seigel Motor Homes Group, 105 Idaho 189, 193, 668 P.2d 65 (1983); accord Berning v. Drumright, 122 Idaho 203, 208, 832 P.2d 1138 (App. 1992); Coyle Chevrolet Co. v. Carrier, 397 N.E.2d 1283, 1289 (Ind.App.1979); Fleet Maintenance, Inc. v. Burke Energy Midwest Corp., 11 Kan.App.2d 523, 524-25, 728 P.2d 408 (1986); Linscott v. Smith, 3 Kan.App. 2d 1, 4, 587 P.2d 1271 (1978); Johannsen v. Minnesota Valley Ford Tractor Co., Inc., 304 N.W.2d 654, 657 (Minn.1981); 3A R. Anderson, supra, § 2-508:6. There is no right to cure after goods have been accepted. Jensen v. Seigel Motor Homes Group, supra, 193; Berning v. Drumright, supra, 208-209, 832 P.2d 1138.

The defendant argues that the plaintiff, in effect, rejected the stone. The court disagrees. Although rejection is not comprehensively defined in the Uniform Commerical Code; Ramirez v. Autosport, 88 N.J. 277, 288, 440 A.2d 1345 (1982); it is inconsistent with acceptance....