Grigerik v. Sharpe

• Decision Date: 24 September 1997
• Docket Number: No. 15099,15099
• Citation: 45 Conn.App. 775,699 A.2d 189
• Court: Connecticut Court of Appeals
• Parties: Joseph GRIGERIK v. Gary SHARPE et al.

Page 189

699 A.2d 189

45 Conn.App. 775

Joseph GRIGERIK v. Gary SHARPE et al.

No. 15099.

Appellate Court of Connecticut.

Argued Jan. 21, 1997.

Decided July 22, 1997.

Certification Granted Limited to the Following Issues Sept.

24, 1997.

Elizabeth Fairbanks Flynn, with whom was Lorinda S. Coon, Hartford, for appellants-defendants.

Michael C. Stumo, with whom, on the brief, was Timothy Brignote, Hartford, for appellee-plaintiff.

Before LANDAU, HEIMAN and SHEA, JJ.

SHEA, Judge.

The defendants, Gary Sharpe and Angus McDonald-Gary Sharpe and Associates, Inc., have appealed from a judgment rendered on a jury verdict awarding the plaintiff, Joseph Grigerik, damages for breach of a contract to perform soil and percolation tests and to design a site plan and septic system for unimproved land of the plaintiff and also for the defendants' negligence in performing the contract. As grounds for reversing the judgment, the defendants claim that (1) the plaintiff, who is not a party to the contract, fails to qualify for the status of a third party beneficiary entitled to enforce the contract, (2) the negligence count ¹ of the complaint is barred by the applicable statute of limitations, and (3) the trial court abused its discretion in allowing amendments to the complaint adding new allegations of misconduct by the defendants and in ruling that the opinions of two expert witnesses for the plaintiff were admissible. We reverse the judgment on the contract count of the complaint because of an improper charge and order a new trial on that count. We agree with the defendants that the judgment on the negligence count must be reversed because of the statute of limitations and order that judgment for the defendants be rendered on that count. That disposition of the negligence count makes it unnecessary to consider the propriety of allowing the amendments to that count. With respect to the challenged rulings on evidence, we find no abuse of discretion.

There is no significant dispute about the facts that the jury might reasonably have found from the evidence in support of their verdict. In 1983, Edward Lang purchased a tract of undeveloped land on Reservoir Road in the town of Killingworth. The property contained a hill, a marshy area, trees and many vines and bushes. Lang removed some of the trees and bushes and also obtained the release of a power line easement that the utility company no longer needed. Because the land was adjacent to a reservoir, it was within a designated watershed area.

In 1985, Lang negotiated with the plaintiff for the sale of the land. The plaintiff offered $9000 for the property "as is." He told Lang, however, that he would pay $16,000 if Lang would do the work necessary to obtain the town's approval of the land as a building lot. Lang agreed to do so. Both of them accompanied the sanitarian for Killingworth when he examined the property. He told them that, because the land was within a watershed district, they needed an engineer to prepare a site plan for drainage.

Lang hired the defendant Gary Sharpe, a professional engineer, and the corporate defendant to prepare a site plan, to design a subsurface sanitary sewage disposal system and to perform the necessary soil testing. Lang told Sharpe that he needed the site plan in order to obtain approval of the land as a building lot and that he had a buyer for the land if the town granted approval. ² Sharpe did some of the work necessary for the application and various employees of his firm performed the remainder. They completed their work on the site plan on October 16, 1985. After receiving the site plan from Sharpe, Lang presented it to the Killingworth inland wetlands commission, which granted its approval. On November 19, 1985, Lang sold the property to the plaintiff for $16,000, as they had agreed.

In the spring of 1986, the plaintiff cleared the land and applied to the town sanitarian for the permits necessary to begin construction of a house in August. The new town sanitarian for Killingworth denied the plaintiff's application for a building permit even though his predecessor had told the plaintiff that the septic system would be approved. The new sanitarian said he was concerned about the suitability of the soil conditions and whether the percolation tests had been performed in the presence of the previous sanitarian. He told the plaintiff that additional percolation tests would have to be performed by an engineer in the presence of a representative of the state department of health during the following spring when the soil would be saturated.

When the percolation tests were performed on March 5, 1987, it was concluded that a curtain drain would have to be installed on the land in order to control the seasonally high groundwater. After the plaintiff had constructed the curtain drain, more percolation tests were completed and submitted to the state health department. On May 20, 1987, that department informed the plaintiff that the tests indicated that the land was unsuitable for a septic sewage disposal system. Additional percolation testing was done in the spring of 1989 in the presence of a health department representative, who determined that the tests indicated that minimum public health standards for a septic system could not be met and that the building permits could not be issued.

The plaintiff commenced this action by service on Sharpe on September 20, 1989, and, pursuant to a motion to cite in an additional defendant, his corporation was served on June 5, 1991. After a trial, the jury found the issues for the plaintiff and rendered a verdict for damages of $44,024, including interest, on both the negligence and breach of contract counts of the complaint.

I THIRD PARTY BENEFICIARY

Because the plaintiff was not a party to the oral contract between Lang and Sharpe, he cannot prevail in this suit on that contract unless he was a third party beneficiary thereof. On this issue the trial court charged the jury that, "[i]f it was intended that Mr. Grigerik was an intended, contemplated or foreseeable beneficiary to the contract, then you must find that Mr. Grigerik was a third party beneficiary to the contract." The court submitted three interrogatories to the jurors inquiring whether they found the plaintiff to be an "intended third party beneficiary," "a contemplated third party beneficiary," or "a foreseeable third party beneficiary." The jurors responded no to the first and second inquiries and yes to the third. The defendants claim that the charge was erroneous because the test to be applied is "whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party...." (Internal quotation marks omitted.) Knapp v. New Haven Road Construction Co., 150 Conn. 321, 325, 189 A.2d 386 (1963). The defendants also claim that the negative responses to the first and second interrogatories indicate that the jury found that the parties to the contract never intended to create such a direct obligation to the plaintiff.

The first Restatement of the Contracts recognized the right of a nonparty to enforce a contract made by others if he was either a donee or creditor beneficiary thereof. 1 Restatement (First), Contracts § 133(1)(a) and (b) (1932). Any other persons who might benefit from performance of the contract were termed "incidental beneficiaries" and would have no legal rights under the contract. Id., §§ 133(1)(c) and 147. In this case, the plaintiff was not a donee beneficiary because there is no evidence that the promisee, Lang, intended to make a gift to him. Id., § 133(1)(a). Their relationship was contractual, involving the sale of land. The plaintiff qualifies as a creditor beneficiary of Sharpe's agreement with Lang, however, if "performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary...." Id., § 133(1)(b). Lang agreed to obtain the necessary permits from the town for construction of a house on the land he sold to the plaintiff as a condition of their agreement. In order to fulfill his obligation to the plaintiff, Lang employed the defendants to design a septic system and to perform the percolation tests required. He informed Sharpe of his intention to sell the land upon obtaining such approval rather than use the lot himself. ³ Lang's purpose in contracting with the defendants was to fulfill his obligation to the plaintiff to convey and approved building lot to him. The evident purpose of the transaction with the defendants was to enable Lang to sell his land to the plaintiff at the enhanced price agreed on for the lot. Thus, "performance of the promise [would] satisfy an actual duty of the promisee to the [plaintiff]" and the plaintiff would qualify as a creditor beneficiary of that contract according to § 133(1)(b) of the Restatement (First) of Contracts.

The second Restatement of Contracts classifies third party beneficiaries into two categories, "intended beneficiaries," who have a right to enforce a contract made by others, and "incidental beneficiaries," who have no such right. 2 Restatement (Second), Contracts § 302 (1981). "Unless otherwise agreed ... a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either (a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance." Id. The apparent reason for abandonment of the "donee" and "creditor" beneficiary classifications was to inaugurate a fresh start in this area of the law by adopting the view of Professor Corbin that nonparties eligible to qualify as third party beneficiaries ought not to be restricted to the donee and creditor categories that Professor Williston...