Fuessenich v. DiNardo
| Decision Date | 05 February 1985 |
| Citation | 487 A.2d 514,195 Conn. 144 |
| Parties | John C. FUESSENICH et al. v. Pasquale DiNARDO et al. |
| Court | Connecticut Supreme Court |
E. Seward Stevens, Litchfield, with whom, on brief, was H. Gibson Guion, Thomaston, for appellees (plaintiffs).
Lorraine W. Osborne, Bridgeport, with whom, on brief, was Daniel Shepro, Bridgeport, for appellants (defendants).
Before PETERS, C.J., and HEALEY, PARSKEY, SHEA and DANNEHY, JJ.
The defendants, Pasquale DiNardo, Trustee, and Pat DiNardo & Associates, appeal from a judgment for the plaintiffs rendered by the trial court, Sullivan, J., in this case involving a road construction contract. The defendants were held jointly and severally liable to the plaintiffs in the amount of $40,240 plus costs.
The plaintiffs, John C. Fuessenich and Barry Construction Co., both have thirty years of experience as excavating contractors. On May 4, 1978, the plaintiffs entered into a contract with the defendant Pasquale DiNardo, under which the plaintiffs agreed to construct in accordance with certain plans four town roads, designated as Roads A, B, C, and D, in the Avalon Farms subdivision located in the town of Litchfield. These roads were to be "built to Town of Litchfield highway specifications." The contract was signed by the plaintiffs and "Pat DiNardo, Trustee." The trial court found that Pat DiNardo, also known as Pasquale DiNardo, was trustee for Myron Chapko, Ralph DiNardo and himself. The contract was submitted by the plaintiffs to the defendant "Pat DiNardo & Associates" which was also comprised of Pasquale DiNardo, Ralph DiNardo and Myron Chapko. The defendants owned the Avalon Farms subdivision.
The contract provided for the completion by the plaintiffs of nine listed items, and the price was specified "for payment purposes" for each item as follows:
"Clearing and grubing (sic) ($)8,000.00
"Rough excavating 25,000.00
"Catchbasins & storm
drainage 25,000.00
"Ledge 5,000.00
"Under drain 15,000.00
"Rip Rap 15,000.00
"Gravel on roads 25,000.00
"Top soil in place 12,000.00
"Paving & curbs" 95,000.00"
The total price provided in the contract for completed performance by the plaintiffs was $225,000. The parties did not expressly provide in the contract for progress payments or any kind of a payment schedule; nor was a completion date stated for any of the work to be performed thereunder.
The plaintiffs commenced performance of the contract about one week after it was signed and subsequently terminated their work in June, 1979. During that period, the plaintiffs completed the first six items specified in the contract, the contract price of which totalled $93,000. The plaintiffs also completed performance of parts of each of the remaining three contract items. In June, 1979, the plaintiffs refused to do any further work under the contract as there was "zero cash flow" from the defendants who could no longer make payments to the plaintiffs for the work being performed. At the time work ceased, roads B and C were completed.
In May, 1979, the plaintiffs had subcontracted out the paving portion of the contract to the Waters Construction Company, Inc. Because the defendants had ceased payments, the plaintiffs themselves each had to pay this subcontractor $18,120, for a total payment of $36,240. Meanwhile, the defendants had "paid the plaintiffs a total of $120,000 toward the contract price." No indication exists in the record that the town of Litchfield or the defendants were dissatisfied with the quality of the plaintiffs' completed work.
The plaintiffs initiated this action by a complaint in one count seeking an additional $53,300 above the $120,000 sum already paid them by the defendants. The defendants denied the amount claimed was due, and in a special defense they alleged that the plaintiffs were in breach for refusing "to perform the remainder of the work outlined in the contract" and that "Pat DiNardo, Trustee" had paid them "the full amount due and owing under the aforesaid contract." The defendants also counterclaimed against the plaintiffs seeking a refund of $27,000 from the $120,000 originally paid to the plaintiffs and other damages allegedly flowing from the claimed breach. The record discloses that at no time did the defendants challenge the lack of specificity of the plaintiffs' pleadings nor did the defendants claim at trial ambiguity or confusion as to the nature of the plaintiffs' claim.
At trial, the plaintiffs claimed due a total of $40,240 for the seventh, eighth and ninth contract items. For the first six items the trial court found the plaintiffs were due $93,000 "on the contract between the parties." The trial court further found that the plaintiffs were due $25,000 for gravel; $6000 for topsoil; and $36,240 for paving and curbs. In total, the plaintiffs were owed the amount of $160,240, $120,000 of which had already been paid, leaving a balance of $40,240. The trial court rendered judgment in that amount plus costs for the plaintiffs against the defendants, Pasquale DiNardo, Trustee, and Pat DiNardo Associates, jointly and severally. The trial court subsequently amended its memorandum of decision and judgment to include judgment for the plaintiffs on all of the counts set forth in counterclaims, which the defendants do not contest on this appeal.
The defendants claim on appeal that the trial court erred: (1) in allowing the plaintiffs to recover both on the express contract and for quantum meruit; (2) because the allegations of the plaintiffs' complaint do not provide a basis for recovery; (3) because the plaintiffs did not prove damages; (4) in admitting into evidence the contract and other transactions between the plaintiffs and the subcontractor, Waters Construction Company; and (5) in admitting into evidence testimony regarding Pasquale DiNardo's associates and by rendering judgment against the defendant Pat DiNardo & Associates. We find no error.
The defendants challenge first the sufficiency of the plaintiffs' pleadings. Specifically, they claim that the plaintiffs impermissibly recovered damages under a single count complaint for both express contract and quantum meruit which the defendants contend are two mutually exclusive theories of recovery. Additionally, they claim that the allegations of the plaintiffs' complaint do not provide any basis for recovery. The plaintiffs, on the other hand, argue that the allegations in the complaint set forth a claim under an express contract and that the present case was tried by the parties and heard and decided by the trial court on an express contract theory. The plaintiffs also contend that the defendants waived any right to complain about the sufficiency of the pleadings by not raising these claims with the trial court. We find these claims of the defendants unpersuasive.
When a pleading does not fully disclose the grounds relied thereon, our rules of practice allow the responding party to move the trial court to order a more complete statement of the claim raised in a pleading. Practice Book §§ 108 and 147(1); 1 Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982). In the event that a party believes it is called upon to respond to a pleading that improperly combines two or more claims in a single count, our rules permit the filing of a timely request to revise that pleading. Practice Book § 147(3); 2 see Burgess v. Vanguard Ins. Co., 192 Conn. 124, 470 A.2d 244 (1984); Rodriguez v. Mallory Battery Co., 188 Conn. 145, 448 A.2d 829 (1982). We note that the defendants in the present case did not pursue with the trial court either of these procedural avenues to seek relief from the infirmities they now assert on appeal. The appeal process should not be utilized to seek to correct pleading deficiencies the party complaining clearly could have remedied under our rules in the trial court. 3 Schaeffer v. Schaeffer, 128 Conn. 628, 636-37, 25 A.2d 243 (1942); Nocera v. LaMattina, 109 Conn. 589, 592-93, 145 A. 271 (1929); cf. General Statutes § 52-123; Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 478, 423 A.2d 141 (1979).
Further, the defendants' contention that the complaint impermissibly sounded in both express contract and quantum meruit is not persuasive. 4 The complaint alleged that the plaintiffs submitted a "proposal" to the defendants which was accepted and under which the plaintiffs and the defendants began performance. The plaintiffs' complaint sought damages for the "reasonable worth" of work performed and materials supplied. O'Brien v. Seyer, 183 Conn. 199, 210-11, 439 A.2d 292 (1981). We note that the "reasonable worth" language in the complaint is reflected in prior decisions of this court involving part performance of a contract. See, e.g., Automobile Ins. Co. v. Model Family Launderies, Inc., 133 Conn. 433, 439-41, 52 A.2d 137 (1947). While the complaint does not expressly state that damages were sought on the contract, a fair and reasonable interpretation of the record and the trial transcript indicates that not only did the parties present the case at trial on an express contract theory, but also the trial court so understood the case. 5 We review this case on the theory upon which it was tried and upon which the trial court decided it. See Machiz v. Homer Harmon, Inc., 146 Conn. 523, 525, 152 A.2d 629 (1959); Cole v. Steinlauf, 144 Conn. 629, 632, 136 A.2d 744 (1957); Maltbie, Conn.App.Proc. § 42.
The trial court could have properly concluded on the evidence presented that the defendants were in...
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