Montanaro Bros. Builders, Inc. v. Snow

• Decision Date: 14 May 1985
• Docket Number: No. 2865,2865
• Citation: 492 A.2d 223,4 Conn.App. 46
• Court: Connecticut Court of Appeals
• Parties: MONTANARO BROTHERS BUILDERS, INC., et al. v. Maurice H. SNOW et al.

Page 223

492 A.2d 223

4 Conn.App. 46

MONTANARO BROTHERS BUILDERS, INC., et al. v. Maurice H. SNOW et al.

No. 2865.

Appellate Court of Connecticut.

Argued Feb. 13, 1985.

Decided May 14, 1985.

Bernard Green, Bridgeport, with whom, on the brief, was Daniel Green, Bridgeport, for appellants (defendants).

Bourke G. Spellacy, Hartford, with whom, on the brief, was Daniel Shepro, Bridgeport, for appellees (plaintiffs).

Before DUPONT, C.P.J., and BORDEN and SPALLONE, JJ.

SPALLONE, Judge.

The defendants have appealed from a judgment of the trial court ordering the return of $16,000 paid to them by the plaintiffs pursuant to a purported agreement for an option to purchase real estate.

This action was initiated in 1978 for specific performance of the alleged agreement. The case was tried in 1981, and the trial court, Geen, J., found that the option agreement was void and unenforceable under the Statute of Frauds. While that decision was upheld on appeal; Montanaro Bros. Builders, Inc. v. Snow, 190 Conn. 481, 460 A.2d 1297 (1983) (Montanaro I ); the Supreme Court "[i]n the interests of justice" remanded the case "so that the plaintiffs may have an opportunity to establish the extent to which the defendants have been enriched by their receipt of $16,000." Id., 490. The court expressed no opinion on whether there had been any unjust enrichment. Id. On remand, the trial court, after an evidentiary hearing, held that the defendants had been unjustly enriched in the amount of $16,000. This appeal followed.

The facts underlying the creation of the purported agreement are set forth in Montanaro I, and need not be repeated here. It is pertinent to note, however, that pursuant to the purported agreement the plaintiffs paid the defendants $15,000 for a twelve month option to purchase real estate owned by the defendants. At the end of the twelve month period, the plaintiffs sent the defendants' attorney a check for $1000 to extend the option for two additional months. These are the funds that are now in dispute.

The first claim of error raised by the defendants concerns the trial court's action upon their motion for a special finding. Special findings by the trial court may be requested under General Statutes § 52-226. The statute provides, in pertinent part, that "[i]n any trial to a court, except a trial at a small claims session, the court shall find, upon written motion of either party made within fourteen days after the entry of judgment, the facts upon which its judgment is founded, and make the finding a part of the record." A special finding is an incident of the judgment. Faiola v. Faiola, 156 Conn. 12, 15, 238 A.2d 405 (1968). If a finding under General Statutes § 52-226 is insufficient to support the judgment, the error is considered to be upon the record; Carvette v. Fidelity & Deposit Co., 152 Conn. 697, 698, 204 A.2d 409 (1964); and thus subject to appellate review. Tower v. Camp, 103 Conn. 41, 45, 130 A. 86 (1925).

In this case, the defendants requested that the trial court make seventeen special findings which they claimed were material to the issues tried. The trial court denied the motion, and the defendants claim that the denial was improper. In denying the motion, the court noted that General Statutes § 52-226 applies specifically to actions for legal relief. ¹ The court correctly reasoned that since the relief which the plaintiffs sought was based on the theory of unjust enrichment, their action was one for equitable relief and, therefore, the statute did not apply. Tilden v. Century Realty Co., 112 Conn. 439, 441, 152 A. 707 (1930). The court, however, proceeded to examine the requested findings and concluded that none of them furthered the purpose of detailing "the material facts upon which the judgment is based." Practice Book § 333. It found that twelve of the requested findings related back to the factual underpinnings of Montanaro I. Of the remaining five, the trial court found that one was irrelevant, that one was a matter of court record, and that three did not rest upon credible evidence.

We are constrained, at this point, to note that the defendants' claim of error based on the court's action upon their motion for special findings is not properly before us. The essence of the defendants' argument is that the trial court's denial of their motion has rendered the record unclear for purposes of this appeal. This claim ignores the intent of General Statutes § 52-226. "The purpose of a special finding is to place upon the record the material facts upon which the judgment is based; other matters have no place in it and can only be presented in a finding made for the purpose of an appeal." Practice Book § 333. A party whose motion for a special finding under General Statutes § 52-226 has been denied may not assign that denial as error. Davis v. P. Gambardella & Son Cheese Corporation, 147 Conn. 365, 367 n. 1, 161 A.2d 583 (1960).

Here, the trial court prepared a written memorandum of decision in accordance with Practice Book § 3060B, which provides, in part, that "when rendering judgments in trials to the court, the court shall, either orally or in writing, state its decision on the issues in the case and, if there are factual issues, the factual basis of its decision." Such memoranda have replaced findings made for the purpose of appeal.

In arguing that the court's action upon their motion has left the record inadequate for appellate review, the defendants do so in apparent disregard of the avenues of relief provided by our rules of practice which they might have pursued at an early stage of this appeal. The defendants could have sought an order to complete the record under Practice Book § 3096 or rectification for purposes of appeal under Practice Book § 3082. Generally, one who seeks further articulation of the factual basis of the trial court's decision should file a motion with the trial court under Practice Book § 3082 "setting forth the special factual issues he seeks to have resolved...." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222 n. 5, 435 A.2d 24 (1980). If a party is aggrieved by the action of the trial court on such a motion, he may seek review of that action by motion to this court under Practice Book § 3108. Practice Book § 3082; see Maltbie, Conn.App.Proc. § 281.

The defendants have raised five additional claims of error. Two of these claims ² refer back to Montanaro I, and were disposed of in the underlying adjudication that the option agreement was unenforceable under the Statute of Frauds. It is well established "that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory upon the parties to the action and upon the trial court. Laurel, Inc. v. Commissioner of Transportation, 173 Conn. 220, 222, 377 A.2d 296 (1977); Gray v. Mossman, 91 Conn. 430, 434, 99 A. 1062 (1917); 5 Am.Jur.2d, Appeal and Error § 744." Dacey v. Connecticut Bar Assn., 184 Conn. 21, 23, 441 A.2d 49 (1981). Since the Supreme Court determined that no agreement existed between the parties in Montanaro I, that determination was the law of the case upon a retrial. See Manchester Modes, Inc. v. Ellis, 2 Conn.App. 261, 262, 477 A.2d 164 (1984). Consequently, the defendants' claims that could be sustained only upon a finding that the option agreement was viable do not warrant our consideration. The defendants, "[h]aving previously relied upon the unenforceability of the option agreement to defeat the plaintiffs' claim for specific performance ... cannot now invoke the provisions of that unenforceable agreement as an absolute bar to the plaintiffs' claim of unjust enrichment." Montanaro I, supra, 190 Conn. 489, 460 A.2d 1297.

In connection with the trial court's finding of unjust enrichment, the defendants claim that the trial court misplaced the burden of proof by requiring them to prove that they were not unjustly enriched through their receipt of the $16,000. Although there was colloquoy before the court as to where the burden of proof properly lay, our review of the record discloses that the defendants voluntarily went forward with their evidence and never raised any objection to the allocation of the burden of proof. An issue not raised in the trial court will not generally be considered on appeal. Practice Book § 3063; Mazur v. Blum, 184 Conn. 116, 120, 441 A.2d 65 (1981). The only circumstances under which we will consider such an issue require either that a new, unforeseeable constitutional right has arisen since trial or that the record indicates a clear deprivation of a fundamental constitutional right and a fair trial. Mazur v. Blum, supra, 120-21 n. 5, 441 A.2d 65; State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). Neither of those circumstances exists in this case.

We note, moreover, that although the trial court did not specifically address the allocation of the burden of proof in its memorandum of decision, it indicated its recognition of the fact that the burden fell upon the plaintiffs by citing Montanaro I. See Capozzi v. Luciano, 174 Conn. 170, 173, 384 A.2d 359 (1978). In Montanaro I, the Supreme Court directed that the case be remanded "so that the plaintiffs may have an opportunity to establish the extent to which the defendants have been enriched by their receipt of $16,000." (Emphasis added.) Montanaro I, supra, 190 Conn. 490, 460 A.2d 1297. On remand, a trial court must comply strictly with the mandate of the appellate court according to its true intent and meaning. Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 795, 462 A.2d 1043 (1983).

The defendants next claim that the trial court erred in concluding that they were unjustly enriched. "Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to a contract. 5 Williston, Contracts (Rev.Ed.) § 1479. In order for the plaintiff to recover under the doctrine, it must...