Spectrum Builders, LLC v. Redner

Full title: SPECTRUM BUILDERS, LLC v. William R. REDNER, et al.

Court: Superior Court of Connecticut

Date published: Nov 5, 2012

No. FSTCV095011106S (Conn. Super. Ct. Nov. 5, 2012)

Opinion

FSTCV095011106S.

11-05-2012

SPECTRUM BUILDERS, LLC v. William R. REDNER, et al.

KEVIN TIERNEY, Judge Trial Referee.

UNPUBLISHED OPINION

KEVIN TIERNEY, Judge Trial Referee.

From an examination of the file, this court determines that the pleadings were not closed at trial and have not since been closed. The court hereby refers the matter to the same Attorney Trial Referee for proceedings in accordance with law. P.B. § 19-17(a).

" Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension." (Citations omitted; internal quotation marks omitted.) ATC Partnership v. Windham, 268 Conn. 463, 466 n. 4, 845 A.2d 389 (2004)." 98 Lords Highway, LLC v. One Hundred Lords Highway, LLC, 138 Conn.App. 776, 797-98 (2012). " The trial judge was remiss in ordering the trial to proceed without insisting upon the filing of proper pleadings. The court's order predictably plunged the case into confusion and possible error to the advantage of no one." Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 106 (1987).

The lawsuit was commenced by the plaintiff's April 3, 2009 complaint seeking payment for home renovations performed by the plaintiff on the defendants' Stamford, Connecticut real property. The three-count complaint alleged breach of contract, quantum meruit, and unjust enrichment. The confusion in the pleadings commenced with the original complaint dated April 3, 2009. The first count contained ten separate paragraphs, but the first two separate paragraphs were both numbered " 1." The remaining paragraphs of the first count were consecutively numbered 2. through 9. The second and third count incorporated by reference paragraphs 1. and 2. of the first count, leaving in doubt as to whether both paragraphs numbered 1. were intended to be incorporated in the second count of quantum meruit and the third count of unjust enrichment, or only the first and third paragraphs were intended to be incorporated. The defendants compounded that confusion by filing a June 26, 2009 Request to Revise (# 102.00) that failed to address the fact that the two paragraphs in the first count were both numbered 1. The plaintiff complied with the Request to Revise by filing a Revised Complaint dated June 29, 2009 (# 104.00), which continued numbering the first two separate paragraphs of the first with the same number 1. and continued to incorporate by reference paragraphs 1. and 2. of the first count in both the second and third count. Thereafter, the defendants filed an Answer, Special Defenses and Counterclaims dated July 15, 2009 (# 105.00). In that Answer, the defendants noted that there were two paragraphs number 1. in the first count. The defendants filed a separate answer as to each of those two paragraphs numbered 1. The defendants failed to address the anomaly caused by the incorporation of paragraphs 1. and 2. in the second and third count. The defendants' Answer put the plaintiff on notice of the numbering problem and should have prompted the plaintiff to file another complaint correcting the numbering errors. On November 29, 2009, the pleadings were closed by the plaintiff's Answer to Counterclaims and Reply to Special Defenses (# 111.00). Neither party filed a Certificate of Closed Pleadings until August 16, 2010 (# 115.00).

By August 16, 2010, the case was already on the preliminary dormancy list pursuant to P.B. § 14-3. Thereafter, the case was placed on the Special Master's list for February 3, 2011 and later continued on the Special Master's list for March 3, 2011. The Special Master was not able to settle the case, and it was assigned to an Attorney Trial Referee (ATR) for trial. The first trial date of September 20, 2011 was continued to October 19, 2011 and thereafter continued to the third trial date of November 16, 2011 (# 118.00).

The day before the third trial date, the plaintiff filed a Request for Leave to Amend the Complaint dated November 15, 2011 (# 121.00), seeking to amend the first count of the complaint sounding in breach of contract. On November 15, 2011, the defendants filed an Objection to Motion to Amend Complaint (# 122.00). On the first trial date, November 16, 2011, the ATR overruled the Objection and permitted the Amended Complaint. The matter was tried over two days, November 16 and November 18, 2011, by the ATR based upon the three-count Amended Complaint dated November 15, 2011 (# 121 .00), despite the fact that the defendants had argued in their Objection to Motion to Amend Complaint that the " Plaintiff's attempt to amend material facts in its complaint on the eve of trial is prejudicial to defendants" (# 122.00, page 1). The defendants did not file an amended answer to the November 15, 2011 Amended Complaint nor did they amend their Special Defenses and Counterclaims previously filed on July 15, 2009 (# 105.00).

" If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading." P.B. § 10-61. The court has reviewed carefully the November 15, 2011 Amended Complaint (# 121.00) line by line and compared it word for word with the July 15, 2009 Answer (# 105.00). No longer does the plaintiff's complaint contain two separate paragraphs each numbered 1. The plaintiff has added at least one new numbered paragraph to the first count. The original complaint contained ten separate paragraphs in the first count, the first two both numbered 1. and the remainder numbered 2. through 9. The November 15, 2011 Amended Complaint (# 121.00) contains eleven paragraphs numbered consecutively 1. through 11. The defendant's July 15, 2009 Answer (# 105.00) contains separate answers to each of the ten paragraphs of the first count labeled Paragraph 1., Paragraph 1., and then Paragraphs 2 through 9. If the court utilizes P.B. § 10-61 and holds that the July 15, 2009 Answer remains the operative Answer to the November 15, 2011 Amended Complaint, the paragraph numbers do not match. For example, the July 15, 2009 Answer to paragraph 2. admitted Paragraph 2. of the Revised Complaint dated June 29, 2009 (# 104.00). Paragraph 2. of the June 29, 2009 Revised Complaint states: " On November 9, 2006, the plaintiffs executed a contract (" Contract") with the defendants to perform home renovations to property owned by the defendants at 69 Urban Street, Stamford, CT., a copy of which is attached hereto as Exhibit A." Those same allegations are now contained in paragraph number 3. in the November 15, 2011 Amended Complaint. The July 15, 2009 Answer as to paragraph number 3. denied the allegations of paragraph 3.

The November 15, 2011 Amended Complaint contains an additional paragraph that was added to the previous complaints. That new paragraph is First Count paragraph 8. and it alleges: " The defendants owe a balance of $23,432.80 which constitutes $15,000 as a final contract payment and $8,432.80 as Extras." The defendants have failed to plead to this new paragraph 8. of the first count.

The final change in the November 15, 2011 Amended Complaint is the fact that the preexisting Revised Complaint made a claim only for extras in the amount of $23,432.80. " 6. The defendants paid $27,481.76 for the Extras, leaving a balance due of $23,432.80" (# 104.00). The principal reason that the defendants opposed the Amended Complaint was that they had been raising issues concerning violations of the home improvement act and the failure of the plaintiff to abide by the change order requirements of both the contract and the act. The original lawsuit and its Revised Complaint only made a claim for extras. The November 15, 2011 Amended Complaint now claims both extras of $8,432.80 and a $15,000 amount due on the original base contract. Although the monetary amount is the same in all three complaints, $23,432.80, the breakdown is different in the November 15, 2011 Revised Complaint. The defendants have failed to address those issues in any Answer, Special Defense, and/or Counterclaim filed after the November 15, 2011 Amended Complaint was approved by the ATR on November 16, 2011.

This court therefore concludes that the pleadings were not closed in the trial before the ATR. The Appellate Court has reviewed decisions of trial courts when the trial occurred in the absence of closed pleadings. " Although the court allowed the trial to proceed in the absence of closed pleadings, we are not prohibited from reviewing its judgment in this appeal. See Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 106, 523 A.2d 888 (1987); Rummel v. Rummel, 33 Conn.App. 214, 219, 635 A.2d 295 (1993)." D'Appollonio v. Griffo-Brandao, 138 Conn.App. 304, 310 fn. 2 (2012). " We are not unmindful of the time already spent in hearing this case. Justice more than judicial economy requires an attempt to decide the case rather than reversing and remanding with instructions to put the pleadings in proper form before rendition of appropriate judgment. Reluctantly, we have made an independent examination of the whole record. We are satisfied that the facts the court find are those upon which the parties expect the appeal to be decided. We are convinced that we can decide the appeal with certainty and without exceeding the limits of our jurisdiction." Berlingo v. Sterling Ocean House, Inc., supra, 203 Conn. at 106.

In evaluating the sufficiency of the pleadings, we are mindful of " [t]he modern trend, which is followed in Connecticut ... to construe pleadings broadly and realistically, rather than narrowly and technically ... Although essential allegations may not be supplied by conjecture or remote implication ... the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery." (Citations omitted; internal quotation marks omitted.) Lyons v. Nichols, 63 Conn.App. 761, 765, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001). " Whether a complaint gives sufficient notice is determined in each case with reference to the character of the wrong complained of and the underlying purpose of the rule which is to prevent surprise upon the defendant." (Internal quotation marks omitted.) Stamford Landing Condominium Assn., Inc. v. Lerman, 109 Conn.App. 261, 274, 951 A.2d 642, cert. denied, 289 Conn. 938, 958 A.2d 1246 (2008).

Bruno v. Whipple, 138 Conn.App. 496, 515-16 (2012).

In Connecticut, " [p]leadings are intended to limit the issues to be decided at the trial of a case and [are] calculated to prevent surprise ... [The] purpose of pleadings is to frame, present, define, and narrow the issues and to form the foundation of, and to limit, the proof to be submitted on the trial ..." (Citations omitted; internal quotation marks omitted.) Birchard v. New Britain, 103 Conn.App. 79, 83, 927 A.2d 985, cert. denied, 284 Conn. 920, 933 A.2d 721 (2007).

Perez v. Cumba, 138 Conn.App. 351, 367 (2012).

Pleadings have an essential purpose in the judicial process ... The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried ... For that reason, " [i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings." (Citations omitted; internal quotation marks omitted.) Somers v. Chan, 110 Conn.App. 511, 528, 955 A.2d 667 (2008). " [ A ] ny judgment should conform to the pleadings, the issues and the prayers for relief. " (Emphasis added; internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002). " The [trial] court is not permitted to decide issues outside of those raised in the pleadings." (Internal quotation marks omitted.) Gaffey v. Gaffey, 91 Conn.App. 801, 804 n. 1, 882 A.2d 715, cert. denied, 276 Conn. 932, 890 A.2d 572 (2005). " Facts found but not averred cannot be made the basis for a recovery." (Internal quotation marks omitted.) Moulton Bros., Inc. v. Lemieux, 74 Conn.App. 357, 361, 812 A.2d 129 (2002).

Warner v. Brochendorff, 136 Conn.App. 24, 34 (2012).

The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically ... Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988), and cases cited therein. Although essential allegations may not be supplied by conjecture or remote implication; Cahill v. Board of Education, supra, at 236; the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. Price v. Bouteiller, 79 Conn. 255, 257, 64 A.2d 27 (1906). As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery. Tedesco v. Stamford, 215 Conn. 450, 459, 576 A.2d 1273 (1990), on remand, 24 Conn.App. 377, 588 A.2d 656 (1991), rev'd, 222 Conn. 233, 610 A.2d 574 (1992); Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 434, 534 A.2d 213 (1987) ... [I]f the parties at trial have adopted a certain construction of the pleadings; see, e.g., Milardo v. Branciforte, 109 Conn. 693, 695, 145 A.573 (1929); we should give deference to that construction." (Citations omitted; internal quotation marks omitted.) Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 629-30, 646 A.2d 772 (1994). Finally, the practice of reading pleadings broadly applied to special defenses as well. Doe v. Yale University, 252 Conn. 641, 683, 748 A.2d 834 (2000).

Travelers Insurance Company v. Namerow, 257 Conn. 812, 832-33 (2001), Concurring Opinion.

This court has applied those liberal standards. In doing so, it has reviewed P.B. § 10-61 and the requirement that pleadings be closed in P.B. § 14-8(a). It noted the Objection raised by the defendants to the Motion to Amend Complaint wherein the defendants claim that amending material facts would be prejudicial to the defendants. This court does not have a copy of the transcript before it of the November 16 and November 18, 2011 trial. Based upon this court's detailed review of the pleadings before it, it cannot determine what issues were contested before the court based upon the matching of various numbered paragraphs in the then operative pleadings.

Based upon the failure of the pleadings to be closed at the time that the ATR tried the case, the court cannot, on this record, act on the ATR's report. The court refers this issue to the ATR for proceedings in accordance with law.

The ATR should, among other acts, determine whether there was an Amended Answer filed by the defendants to the November 15, 2011 Amended Complaint (# 121.00), whether the parties corrected the numbering error contained in the original complaint and the June 29, 2009 Revised Complaint, whether the defendants' counsel waived the filing of an Answer, whether the ATR rightly understood the legal and factual issues based on the above recited pleadings, whether the allegations of the Amended Complaint dated November 15, 2011 were admitted and/or denied based upon the parties' statements in court, counsel's statements in court, the parties' testimony and/or the Answer dated July 15, 2009 (# 105.00), and whether there is a missing pleading in the nature of an Answer that is not in the file but was provided to the ATR at trial.

The ATR may require briefing from the parties, oral argument and/or an evidentiary hearing, or the ATR make its determination on the record. The ATR shall sign and file an Amended Decision of Attorney Trial Referee.