Multi-Service Contractors, Inc. v. Town of Vernon

• Decision Date: 19 June 1984
• Docket Number: MULTI-SERVICE
• Citation: 193 Conn. 446,477 A.2d 653
• Court: Connecticut Supreme Court
• Parties: CONTRACTORS, INC. v. TOWN OF VERNON et al.

Page 653

477 A.2d 653

193 Conn. 446

MULTI-SERVICE CONTRACTORS, INC. v.TOWN OF VERNON et al.

Supreme Court of Connecticut.

Argued April 12, 1984.

Decided June 19, 1984.

Richard J. Broadman, Hartford, with whom, on brief, was John G. Tunila, legal intern, for appellant(plaintiff).

Francis H. Morrison III, Hartford, with whom, on brief, was J. Rene Frechette, Hartford, for appellees(defendant members of the building committee of the town of Vernon).

Mitchell E. Kallet, Town Atty., Rockville, for appellee(named defendant).

Before PETERS, HEALEY, SHEA, GRILLO and HENNESSY, JJ.

PETERS, Associate Justice.

This case concerns the scope of liability of a municipal property owner and the members of the municipality's building committee for nonpayment of moneys allegedly due under a construction contract.The plaintiff, Multi-Service Contractors, Inc., brought an action in four counts, three of which sought to recover from the defendant, the town of Vernon, for breach of contract, and the fourth of which sought damages from the named members of the permanent municipal building committee of the town of Vernon¹ for tortious interference with the contract between the plaintiff and the defendant town.The trial court, Budney, J., granted the defendants' motion for summary judgment on the fourth count.The trial court, Schaller, J., thereafter denied a motion by the plaintiff to amend its complaint to add a fifth count in tort charging the defendant town with negligence and fraud, and, after a full trial, rendered judgment for the defendant town.The plaintiff has appealed from each of these adverse rulings.

The trial court's memorandum of decision reveals the following.The plaintiff and the defendant town entered into a contract on October 28, 1977, under which the plaintiff agreed to construct the footings and the foundation for a new town police headquarters.Under the terms of the contract, the work was to begin on November 2, 1977, and was to be completed not later than January 5, 1978.In lieu of performance, labor and materials bonds, the plaintiff executed a letter of delayed payment stipulating that "no payment will be made on the contract until final completion of the work and acceptance by the architect and owner," except that the owner had the right, at its discretion, upon receipt of properly executed applications and certificates for payment, to make partial payment.The plaintiff received payments from the defendant town totalling $44,399.10, but the remainder of the $58,436 contract price was not paid.The defendant town issued two formal change orders totalling $1425 on the same payment terms as were applicable to the remainder of the contract.

Despite the fact that the contract called for performance to be completed by January 5, 1978, the plaintiff did not terminate its work until May 27, 1978.This delay was found by the trial court to have resulted from the plaintiff's negligence and failure properly to perform the contract, in particular from the plaintiff's failure properly to protect the work site from adverse weather conditions and its failure to have the necessary personnel and equipment on the job site.

The trial court further found that the plaintiff had failed to comply with the procedural conditions of the contract.Although the plaintiff at trial claimed a right to additional compensation for work which constituted "extras," it had not, except in two limited instances, applied for the requisite formal change orders.With respect to its claimed entitlement to a final payment, the plaintiff had never submitted, as the contract required, a final certificate for payment to be issued by the architect upon completion of the work.No such final certificate for payment could have been issued without a written notice that the work was ready for final inspection and without an affidavit that all indebtedness connected with the work had been paid.The plaintiff never filed either a proper application for a final certificate nor did it tender the necessary documentation therefore.There were in fact unpaid bills from subcontractors on the job.The defendant town had not waived the requirement of compliance with the contractual document.

On the basis of these findings of fact, the trial court concluded that the defendants were liable neither for the unpaid principal amount of the contract price nor for the claimed extras.The trial court also concluded that the plaintiff had failed to produce any credible evidence in support of its claims of loss of profit and damage to reputation and financial standing.²

The plaintiff, in its appeal, claims that the trial court improperly: (1) granted summary judgment with respect to the plaintiff's claim of tortious interference with its contract; (2) denied the plaintiff's motion to amend its complaint; (3) enforced the contractual conditions on the plaintiff's right to collect the contract price; and (4) denied the plaintiff's claim for compensation for extra work.We find no error.

I

In the fourth count of its complaint, the plaintiff alleged that the members of the permanent municipal building committee of the town had individually and in their official capacities interfered tortiously with the contract between the plaintiff and the town by complaining about the quality of the plaintiff's work, by requiring the plaintiff to attend meetings concerning the progress of the work, and by usurping the role of the architect and ignoring his approval in order to withhold payments properly due for work performed by the plaintiff.In supporting affidavits responding to the individual defendants' motion for summary judgment, the plaintiff reiterated that the individual defendants had made performance demands which the plaintiff deemed unreasonable, particularly by insisting that the work be completed within the deadline provided by the contract.Neither in the complaint nor in these affidavits were the defendants expressly charged with having acted in bad faith.There was no express claim that the conduct of the defendants did not fall within the scope of their authority, pursuant to the town charter, "to act as agent of the Town to ... engage architects and engineers and approve plans, procure bids and enter into contract [sic] for construction, supervise construction, and accept the work."Vernon Town Charter, Ch. VIII, § 9.

The trial court held that the individual defendants' motion for summary judgment should be granted because there can be no intentional interference with contractual relations by someone who is directly or indirectly a party to the contracts.Paint Products Co. v. Minwax Co., 448 F.Supp. 656, 658(D.Conn.1978);Kecko Piping Co. v. Monroe, 172 Conn. 197, 201-202, 374 A.2d 179(1977);R an W Hat Shop, Inc. v. Sculley, 98 Conn. 1, 14, 118 A. 55(1922);Hiers v. Cohen, 31 Conn.Super. 305, 312329 A.2d 609(1973).As agents of the town which was a party to the contract, the named defendants could not be considered strangers to the contract at issue.

The plaintiff does not challenge the legal proposition upon which the trial court acted, but asserts that the pleadings and the affidavits raised a genuine issue as to a material fact so that summary judgment was inappropriate.Practice Book§ 384.³The plaintiff relies on cases in which we have held that questions about motive, intent and good faith should not be resolved by summary judgment;Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971(1978);United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596(1969); to argue that if the individual defendants in this case acted in bad faith, maliciously, wantonly or beyond the scope of their authority, they bacame third parties to the contract and would then be liable for tortious interference.The plaintiff failed, however, to present a factual predicate for this argument.The plaintiff's complaint contains no allegations of willful misconduct or lack of good faith.The affidavits at most indicate that the defendants manifested their insistence on timely performance of the contract in a manner that was impatient and overbearing.Such allegations are insufficient to raise a factual issue concerning the defendants' good faith.The trial court therefore properly rendered summary judgment on behalf of these defendants.

II

On the opening day of the trial of the case against the defendant town, the plaintiff sought leave to amend its complaint to add a fifth count alleging that the defendant's failure to warn the plaintiff of unfavorable subsurface water conditions was a breach of warranty of specifications, a negligent misrepresentation and fraudulent.The plaintiff acknowledged that he sought thereby to add a count in tort to a complaint which otherwise contained only claims for breach of contract.The trial court refused to permit the amendment because of potential prejudice to the defendant unless additional time were allowed to prepare a new defense.The court stated that it did not believe delay of the trial was appropriate since the matters raised by the proposed amendment could have been discovered at an earlier time.

The plaintiff argues on this appeal that the trial court's action was an abuse of the discretion vested in the court by Practice Book§ 176.⁴It contests the finding of prejudice and of likely delay in the trial, and argues that it acted diligently to uncover the basic facts upon which the proposed amendment was premised.These claims of excuse for the belated filing were, however, not presented to the trial court when the motion was being ruled upon.The court was therefore entitled to presume that discovery could have been pursued more vigorously and town records examined at an earlier time.We have not previously found an abuse of discretion when a trial court, on the eve of trial, concluded that prejudice and delay would result from a substantial amendment to the...