Opinion
No. CV 05-4011550-S
June 1, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE ( # 120)
This lawsuit arises out of the construction of a public high school in North Haven, Connecticut. The plaintiff, Wesconn Company, a fireproofing contractor, has brought suit against the general contractor, the surety on the construction bond, the construction manager and the Town of North Haven (Town). The gist of the plaintiff's complaint is that, due to substandard working conditions and directives to do extra work, the time and cost to complete the fireproofing far exceeded the contract price. The plaintiff seeks damages for the value of the services performed for which it has not been paid.
In the present motion, the Town moves to strike five of the counts directed at it. Specifically, the Town moves to strike the counts alleging breach of contract (Counts Nine and Ten) and the count alleging breach of the covenant of good faith (Count Fifteen) asserting that the complaint fails to allege a contractual relationship between the plaintiff and the Town. The Town further moves to strike the counts alleging unjust enrichment and quantum meruit (Counts Eleven and Twelve) asserting such remedies are unavailable against a municipality in a situation where subcontractors are protected by a construction bond. The plaintiff objects to the motion to strike asserting that all of these counts are legally sufficient. For the reasons set forth below, the motion to strike is granted as to counts nine, ten and fifteen but denied as to counts eleven and twelve.
Background
As relevant to the present motion, the complaint may be summarized as follows:
The Town entered into a contract dated June 19, 2003 with Konover Construction Corporation (Contractor) for the construction of North Haven High School. On or about July 13, 2004, Contractor entered into a contract with the plaintiff as a subcontractor to apply fireproofing on the project for an agreed price. Plaintiff was led to believe that the Contractor, Town and Owner Representatives would adhere to the conditions of the subcontract between plaintiff and Contractor, and the contract between the Town and Contractor.
The Contractor, Town and Owner's Representatives failed to adhere to contract between the Town and Contractor and the subcontract between plaintiff and Contractor thereby causing plaintiff to perform extra work. Such work, in part, was via oral and written directives from the Contractor, Town and Owner Representatives. As a result of extra work, the value of services provided by plaintiff exceeded the contract price and the defendants have failed to pay for the services performed.
Discussion A Standard
The proper method to challenge the legal sufficiency of a complaint is by filing a motion to strike the contested pleading. Practice Book § 10-39. For the purpose of a motion to strike, the moving party admits all facts well pleaded. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2 (1994). A motion to strike is properly granted, however, if the complaint alleges mere conclusions of law that are unsupported by the facts alleged. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992). In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997).
B. Counts Nine, Ten and Fifteen
Count nine (breach of oral contract), count ten (breach of written contract) and count fifteen (breach of covenant of good faith and fair dealing) are all premised on the existence of a contractual relationship between the plaintiff and the Town. The Town asserts that the complaint does not sufficiently allege a contractual relationship between it and the plaintiff. The plaintiff, on the other hand, asserts that the allegation that the Town ordered extra work pursuant to oral or written directives is sufficient to defeat the motion to strike.
"To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties." Richter v. Danbury Hospital, 60 Conn.App. 280, 288 (2000). Even when construed in favor of the plaintiff, the complaint is insufficient to allege a contractual relationship with the Town. The only express contracts alleged in the complaint are those between the Town and the Contractor and between the Contractor and the plaintiff. There is no explicit allegation of an express contract between the Town and the plaintiff. Plaintiff's assertion that the "directives" alleged in paragraph 8 of the complaint are sufficient to create an implied contract is unpersuasive. These allegations lack the most basic of contractual elements-agreement. Judge Hale found similar language to be insufficient to form a contract in Wesconn Co. v. Acmat Corporation et al., superior court, judicial district of Hartford, docket CV 99-0594760 S (April 11, 2001, Hale, J.).
The plaintiff's alternative argument is that it is a third-party beneficiary of the contract between the Town and Contractor. The intent of both parties to a contract determines whether a third party has contract rights as a third-party beneficiary. Grigerik v. Sharpe, 247 Conn. 293, 310 (1998). Moreover, "a third party seeking to enforce a contract must allege and prove that the contracting parties intended that the promissory should assume a direct obligation to the third party." (Emphasis added). Id., 315. The complaint contains no allegation that the plaintiff was an intended beneficiary of the contract between the Town and Contractor.
As to the claim of breach of the covenant of good faith and fair dealing, this count is insufficient because of a lack of an underlying contract between the plaintiff and the Town. Our Supreme Court has stated "the existence of a contract between the parties is a necessary antecedent to a claim of breach of the duty of good faith and fair dealing." Haskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793 (2000).
The motion to strike counts nine, ten and fifteen is granted.
C. Counts Eleven and Twelve
Counts eleven and twelve seek relief under the equitable theories of unjust enrichment and quantum meruit. The Town asserts that the posting of a payment bond pursuant to General Statutes § 49-41 provides a remedy to the plaintiff such that unjust enrichment and quantum meruit are unavailable. The Town relies on Kerite v. City of Norwalk, 32 Conn.Supp. 168 (1975) in support of its position. The plaintiff relies on Ten Hoeve Brothers v. City of Hartford, 17 Conn. L. Rptr. 173 (1996) in support of its opposition to the motion to strike.
Section 49-41, as relevant here, provides:
"Each contract exceeding fifty thousand dollars in amount for the construction of any public building . . . shall include a provision that the person to perform the contract shall furnish . . . a bond in the amount of the contract for the protection of persons supplying labor and materials in the prosecution of the work provided for in the contract . . ."
Whatever the merits of their respective positions, resolution of this issue involves facts beyond the allegations of the complaint. In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. Doe v. Marselle, 38 Conn.App. 360, 364 (1995), rev'd on other grounds, 236 Conn. 845 (1996). It is noted that both cases relied upon were decided either on a demurrer or summary judgment motion.
The Town correctly points out that in count thirty-three, plaintiff has sued Continental Casualty alleging damages under a surety bond. While these allegations support the fact that there was a construction bond, they are inadequate to establish the nature of the bond so as to properly determine the applicability of § 49-41. More importantly, the plaintiff's ability to obtain relief under quantum meruit or unjust enrichment turns, in part, on whether it was in privity with the Town. Although this court has granted the Town's present motion to strike the breach of contract counts, plaintiff has the right to file a new pleading through a substituted complaint. Practice Book § 10-44.
The motion to strike counts eleven and twelve is denied without prejudice to raising similar claims in a motion for summary judgment.
Conclusion
For the reasons set forth above, the motion to strike is granted as to counts nine, ten and fifteen and denied as to counts eleven and twelve.
So Ordered.