Opinion
No. HHD-CV-07-5015544-S
August 18, 2009
MEMORANDUM OF DECISION
In the above-captioned matter, the plaintiff, Ampere Electric, LLC ("Ampere") filed this lawsuit against the defendant, Bernie's Audio Video TV Appliance Co., Inc. ("Bernie's") alleging damages for breach of contract, unjust enrichment and quantum meruit. The defendant denies these claims and also asserts special defenses, specifically, that the plaintiff's claim is barred by the statute of limitations, and the doctrine of payment and waiver.
FINDINGS OF FACT
Much of the factual history of this case is not substantially in dispute. The plaintiff, Ampere, is an electrical and mechanical subcontractor, whose owner, Klaus Schleehauf (Schleehauf), has been in the profession since the 1950s. The defendant, Bernie's, is a Connecticut corporation, which was founded in 1947 and currently operates a chain of fifteen retail stores located in Connecticut, Massachusetts and Rhode Island offering televisions, electronic goods and appliances for sale. The defendant's founder and first CEO, Bernie Rosenberg, began doing business with Schleehauf in the 1950s. From 1965 or so through 2006, Bernie's and Ampere developed a long-standing business relationship which Ampere was the only electrical and mechanical contractor used by Bernie's. The professional and personal relationship that Schleehauf enjoyed with Bernie Rosenberg evolved to include Bernie Rosenberg's son, Milton Rosenberg. This relationship between Ampere and Bernie's was sustained during the time Bernie's was purchased by another company and then ultimately purchased by Milton Rosenberg (Rosenberg), who became its chairman and CEO. There is also no dispute that until the circumstances giving rise to this action, the business transactions between the parties were based on handshake agreements founded on mutual trust and borne from a longstanding practice in which Ampere would perform the requested work, would bill Bernie's and be paid accordingly.
In 2003, Rosenberg embarked on a major renovation and then expansion of warehouse space in Enfield, Connecticut which would incorporate not only a retail store but home offices and a new warehouse. With new construction, the 80,000 square-foot space was to expand to 150,000 square feet. Because of the extraordinary trust Bernie's had in the quality and scope of Ampere's work, Milton Rosenberg wanted Ampere to be the electrical and mechanical subcontractor. The size and scope of this project was much larger than any work previously done between the two parties.
The Enfield project was also unique to the extent that Ampere was required to submit a bid to the general contractor, Borghese Building Engineering Company, Inc. (Borghese), whereas previously, Ampere contracted directly with Bernie's. In the course of submitting his initial bid proposals for Rosenberg's review, Ampere prepared an initial estimate of $1.3 million. Rosenberg, however, insisted that Ampere bring these costs down, since as a tenant, Bernie's would pay rent to the owner of the site, Sound Enfield, as determined by the costs of construction incurred in its contract with Borghese. Schleehauf then made reductions in his proposal, bringing the figure down to $1,230,611.90. Although Rosenberg indicated that other electrical and mechanical subcontractors were submitting bids at $900,000, Schleehauf refused to go any lower. Moreover, he argued that Rosenberg could not trust the other subcontractors and he would not have the benefit of his "eyes and ears" on the project. Rosenberg then asked if he would be willing to be paid separately to be his "eyes and ears" on the project; Schleehauf refused to act in that capacity unless he was awarded the electrical/mechanical contract.
As such, Rosenberg asked Schleehauf to bring his bid to $1.1 million, with the understanding that 1) Bernie's would be liable for actual costs which Ampere would incur greater than his contract with Borghese, and 2) Schleehauf would be his eyes and ears on the project as well.
Consistent with their practice, they did not put their agreement in writing at the time they entered into it. Indeed, this court finds that the informality in their transactions persisted, to a point, even with respect to the Enfield project. For example, the court finds that there was no cap on the actual costs figure, i.e., no agreement that Bernie's would be liable for costs limited to the estimate of $1,230,611.90. The parties historically have conducted their business transactions so informally that it would be inconceivable that they would have found it suddenly necessary to agree even upon an upper limit. While this court recognizes that Rosenberg might have reasonably believed that he would not incur costs above the $1,230,611.90, having relied for years on Schleehauf's judgment with respect to costs and billing in general, this court finds that there was no specific agreement of a cap, outside of what Rosenberg might have assumed. The court concludes that the parties simply agreed that Bernie's would pay those costs over and above the contract amount with Borghese. As the defendant aptly described their business dealings: "Whenever Rosenberg required electrical or mechanical work, he would advise Schleehauf who would proceed to do the work without any prior commitment to or agreement upon a price, and then send Rosenberg a bill, which was devoid of any supporting documentation for time expended or materials consumed, but which was nonetheless promptly paid by Rosenberg. Never once in all those years did Schleehauf offer or Rosenberg request any explanation or support for the Ampere invoices." There is no reason for this court to believe that they deviated from this practice in their agreement with respect to the Enfield project, even accounting for the fact that it was, in size and scope, far larger or more expensive than any prior project in which the parties had collaborated.
The first deviation from this practice was in June 2004, when Schleehauf drafted a memorandum in which he sought to put Rosenberg on notice of the likelihood of cost overruns and to memorialize their agreement that Bernie's would pay the actual costs over the Borghese contract. Rosenberg signed the memorandum. Evidently neither party considered including any other aspect of their agreement, including Schleehauf's role as Bernie's eyes and ears on the project nor Schleehauf's discount of various markups Ampere ordinarily charged.
In December 2004, when the project was completed and after a certificate of occupancy was issued, Schleehauf approached Rosenberg regarding payment for the Enfield project. On one hand, Rosenberg was willing to pay for Enfield "extras," e.g. fixtures, plugmold and other materials and labor, which were outside the original contract. With respect to payment relating to Ampere's actual costs relevant to the construction contract with Borghese, Rosenberg sought to defer payment, told Schleehauf he didn't have the money at that time and explained that Bernie's went over budget.
Over the course of 2005 and 2006, Schleehauf approached Rosenberg four times, wanting to discuss payment for the Enfield project. Specifically, this court credits the testimony of both Ron Stacy and Schleehauf with respect to these findings. In those two years, never once did Rosenberg insist on backup documentation or the existence of a cap or suggest that final payment had been made in December 2004, as Rosenberg now claims. If there was a cap and especially, if Rosenberg had believed he had made final payment on the Enfield project to Schleehauf, this court would have expected Rosenberg to have confronted Schleehauf with this fact. Instead, this court finds according to both Stacy and Schleehauf that Rosenberg continued to say he didn't have the money to pay Ampere and he would need to have payment deferred.
At the same time, the court also finds that there was no agreement that Schleehauf would be specifically paid for his "eyes and ears" time. This court's conclusion is based on numerous factors and inferences it makes from the conduct of the parties. First, Schleehauf testified only that he assumed that he would be paid and ultimately admitted that in fact, there was no agreement that he would be paid for this time. Second, his relationship with Rosenberg was such that over the forty years of their business relationship, Schleehauf played this informal role of advising Bernie's and overseeing various projects to varying degrees. There is no credible evidence that Schleehauf was ever paid for this function, above and beyond labor and material costs specific to discrete projects. Moreover, it is this court's distinct impression that Schleehauf nevertheless played this role because of his company's exclusive relationship with Bernie's as the sole electrical and mechanical contractor for over forty years.
Similarly, with respect to the Enfield project, the parties had significant discussions with respect to the eyes and ears issue. Schleehauf warned Rosenberg that he could not trust other subcontractors but was unwilling to be compensated to act only as Rosenberg's "eyes and ears," notwithstanding Rosenberg's offer to this effect. Schleehauf wanted Ampere to do the electrical and mechanical work and only then would he be willing to act as Schleehauf's eyes and ears.
Moreover, there is no dispute that the other electrical and mechanical subcontractors had bid substantially lower than Ampere on the Enfield project, specifically $900,000 compared with Ampere's initial first estimate of $1.2 million. The parties were aware of this and while, albeit motivated differently, they agreed as a result that Ampere would get the contract so long as Schleehauf would play the additional role of being Bernie's eyes and ears on the job. This role justified the premium Rosenberg understood he was paying and gave Ampere the edge he could offer to win the job on his terms, e.g., to bid successfully for the contract with the general contractor and get paid the additional actual costs above his contract bid of $1.1 million.
The informality with which Ampere and Bernie's dealt with each other over the years thus continued on and permeated their transactions with respect to the Enfield project, until a number of factors came into play. First, Bernie's began to have financial difficulties. Second, those difficulties eventually led to Bernie's becoming more stringent about Ampere's documentation. Third, Ampere, whose business accounts and invoicing were managed by Schleehauf's wife, evidently had a very informal system of bookkeeping, which for forty years, at least with respect to Bernie's, was not problematic. With respect to the Enfield project, however, given the size of the project and the amount of money that was in dispute, Ampere's bookkeeping issues and the conflicting numbers became themselves a source of dispute. Finally, these circumstances converged around the time Bernie's assumed new management, whereupon it became clear that Ampere's relationship with Bernie's would no longer be exclusive and informally conducted, nor based upon trust and their longstanding history of business together. Instead, if it had any relationship at all, it would be subject to the competitive bidding process and stricter standards with respect to invoicing.
From its review of the evidence and its assessment of the various witnesses, the court finds by a preponderance of evidence that Ampere fully performed the electrical and mechanical work pursuant to its contract with Bernie's. In addition, the court similarly finds that the plaintiff sought payment in 2005 and 2006 for its costs above and beyond its contract with Borghese and he was refused, not because he failed to open his books or otherwise provide documentation, but because Rosenberg made it dear that Bernie's was unable to pay at the various times he requested.
For his part, Rosenberg denied any financial difficulties and claims that Schleehauf never pursued him for payment for the Enfield project until September 2007. This court, however, cannot credit these claims especially in light of Ron Stacy's credible testimony. Specifically, Rosenberg never denied to Schleehauf either alone or in the presence of Ron Stacy, that he still owed Ampere payment for the Enfield project.
II. DISCUSSION A. Statute of Limitations
The defendant asserts as its first special defense that Ampere's claim is barred by General Statutes § 52-581(a), which provides, in relevant part: "No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues." The plaintiff, however, argues that his action is not barred by General Statutes § 52-581 because the contract was memorialized in a writing on June 30, 2004 and that the contract is not an executory contract, but rather an executed contract. This court agrees.
In a document dated June 30, 2004, the defendant signed a memorandum drafted by the plaintiff which, inter alia, asserted that Rosenberg had agreed to pay the difference from Borghese's contract to the actual cost. Contrary to the defendant's claims, the document signed by Rosenberg reflected Schleehauf's intention to memorialize in writing the parties' intentions, i.e., that Ampere would provide electrical and mechanical services pursuant to his contract with Borghese but that Rosenberg would pay the difference between the contract price and actual costs incurred.
Notwithstanding Schleehauf's intention to memorialize the agreement, the defendant argues that the June 30, 2004 memorandum does not constitute a note or memorandum within the meaning of General Statutes § 52-581. The defendant candidly admits that there is no authority which defines what is meant by "note or memorandum" under General Statutes § 52-581. Nevertheless, it references the memorandum exception to the statute of frauds which requires inclusion of the "essential terms concerning the performance contemplated by the contract." Faloutico v. Maher, 182 Conn. 448, 438 A.2d 710 (1980). Therefore, in the absence of what it claims are essential terms, i.e. the eyes and ears agreement, the open book agreement and Schleehauf's proposal to discount the markups he usually charges for vendors and materials, the defendant asserts that the writing is invalid for purposes of § 52-581.
The analogy to the statute of frauds has some merit, to the extent that the earliest predecessor to the current version of § 52-581 passed in the General Assembly of 1771 in the same act as the statute of frauds. Hitchcock v. Union New Haven Trust Co., 134 Conn. 246, 257-58, 56 A.2d 655 (1947) (reviewing the history and evolution of General Statutes § 6010, the predecessor to § 52-581). Yet even in the context of the statute of frauds, the meaning of "essential terms" is subject to debate. As our Supreme Court observed in Lynch v. Davis, 181 Conn. 434, 438-39, 435 A.2d 977 (1980), "[o]ur statute does not require that the memorandum of the contract be the contract itself . . . instead, it is sufficient if the memorandum, with reasonable certainty, furnishes reliable evidence that the parties have come to a complete agreement." (Citation omitted.) "The function of the statute is evidentiary, to prevent enforcement through fraud or perjury of contracts never in fact made . . . That function is adequately served by a writing stating, with reasonable accuracy the essential terms of the agreement." (Citations omitted.) Id., 440-41. 111 Whitney Avenue, Inc. v. Commissioner of Mental Retardation, 70 Conn.App. 692, 701, 802 A.2d 117 (2002), the court observed, "[w]e acknowledge that there is no bright line rule describing the essential elements of any and all enforceable contracts. Whether a term is essential turns on the particular circumstances of each case." (Internal quotation marks omitted.)
In this light, the court considers whether the "eyes and ears" component of the contract and the open book requirement are essential terms. With respect to the "eyes and ears" aspect of the agreement, the court finds that while it is an agreed-upon term, it is difficult to conclude that it is an essential term. There was a dearth of evidence as to what was meant by the parties' agreement that Schleehauf act as the "eyes and ears" for Bernie's. While there was evidence that Schleehauf was at the site everyday, 8 hours a day, six days a week, there was no evidence that this level of monitoring constituted the agreement and understanding of the parties, or whether every day for one hour, one day a week or once a month, might have instead sufficed. Moreover, as previously noted, there was no evidence that the parties agreed that Schleehauf would be specifically paid for this function. In addition, Schleehauf crafted and Rosenberg signed the June 30, 2004 memorandum with no mention or amendment to include this term. While there is no dispute that the parties agreed to this term, the parties did not see fit to include it in the agreement. See Lynch v. Davis, supra, 181 Conn. 441 (court considers the conduct of the parties in concluding what terms are essential for purposes of the statute of frauds). Given the vagueness of the parameters of this aspect of the agreement, the court cannot find it was an essential term of the contract such that its absence defeats the validity of the writing.
This court comes to a similar conclusion with respect to the so-called open book agreement and the agreement with respect to lowering the markups normally charged to the subcontractors. Obviously, Rosenberg was keenly interested in keeping his costs down, especially to the extent that at least with respect to the Borghese bid, the contract amount would directly affect how much rent he would pay the property owner. Nevertheless, while this court finds that Schleehauf described how he planned to reduce his bid by specifically lowering the normal markups, the court cannot find that the documentation of his intention to do so was essential for purposes of establishing the existence of an agreement.
Because it does not find that there was a cap with respect to the defendant's liability, the court does not address this claim as made by the defendant.
With respect to the open book agreement, this court is also not persuaded it was an essential term. First of all, in all of their history doing business together, the parties were exceedingly informal in their billing and payment practices. Moreover, in Schleehauf's efforts to get paid after December 2004, Rosenberg consistently responded that he did not have the money to pay him; there was no demand for an open book accounting as a precondition to payment. Thus, whether or not this part of the agreement was addressed when the parties were engaged in negotiations, this court concludes that it too was not an essential term.
For all the above reasons, this court concludes that the June 30, 2004 memorandum constitutes reliable written evidence that the parties had come to an agreement. Even if, however, the June 30, 2004 memorandum does not constitute such a writing pursuant to General Statutes § 52-581, its provisions do not bar this action given that the court also finds that the contract was an executed contract.
It is well-settled law that General Statutes § 52-581 applies only to executory contracts. See Hitchcock v. Union New Haven Trust Co., supra, 134 Conn. 257-58 (citing Chittingdon v. Fowler, 2 Root 387 (1796) for its holding that the earliest predecessor to § 52-581 applied only to executory contracts). Indeed, "the issue of whether the contract is oral is not dispositive . . ." John H. Kolb Sons, Inc. v. G L Excavating, Inc., 76 Conn.App. 599, 610, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003). As such, written as well as executed oral contracts are governed by General Statutes § 52-576, which limits contract actions to six years. "In Cupina v. Bernklau, 17 Conn.App. 159, 551 A.2d 37 (1988), [the court] explained the distinction between §§ 52-576 and 52-581. These two statutes, each establishing a different period of limitation, can both be interpreted to apply to actions on oral contracts. Our Supreme Court has distinguished the statutes, however, by construing § 52-581, the three year statute of limitations, as applying only to executory contracts . . . A contract is executory when neither party has fully performed its contractual obligations and is executed when one party has fully performed its contractual obligations." (Citation omitted; internal quotation marks omitted.) Id.
The court finds that Ampere's role in the Enfield project was completed by early December 2004. The court also finds that Rosenberg thanked Schleehauf for Ampere's work on the project in a letter dated October 25, 2004, just before the certificate of occupancy was issued in November 2004. Moreover, the defendant's insistence that its payment in December 2004 was the final settlement of the Enfield project necessarily assumes that Ampere had fully performed. Their billing practices notwithstanding, the issue before this court is not whether Ampere had fully performed, but how much, if anything, they are due. As noted in one of the earliest cases interpreting whether a contract is executory or executed in the context of the predecessors to both General Statutes § 52-576 and § 52-581, the court in Baker v. Lee, 52 Conn. 145, 146 (1884) defined the critical issue as whether "the plaintiff fully performed his contract and rendered to the defendant the entire consideration for his promise . . ." As such, this court dismisses the claim that the contract is executory and finds as a matter of law that the contract was executed. This action is therefore governed by General Statutes § 52-576 with its six-year limitation period and not barred by the three-year limitation period under § 52-581.
B. Breach of Contract
"`The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.' (Internal quotation marks omitted.) Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 780-81, 887 A.2d 420." Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A.2d 1236 (2006). Breach of contract is to be proven by the preponderance of the evidence. Waicunas v. Macari, 151 Conn. 134, 137, 193 A.2d 709 (1963); Daley v. Wesleyan University, 63 Conn.App. 119, 131-32, 772 A.2d 725, cert. denied, 256 Conn. 930, 776 A.2d 1145 (2001). See Colliers, Dow Condon, Inc. v. Schwartz, 77 Conn.App. 462, 823 A.2d 438 (2003).
"Whether there was a breach of contract is ordinarily a question of fact . . . Further, where a breach of contract is alleged, [t]he amount, if any, of the [defendant's] actual damages is a question of fact . . . [T]he general rule for the measure of damages in contract is that the award should place the injured party in the same position as he would have been in had the contract been performed . . ." (Citations omitted; internal quotation marks omitted.) Ridgefield v. Eppoliti Realty Co., 71 Conn.App. 321, 338, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002).
Based on this court's findings of fact by a preponderance of the evidence, it concludes that there was an agreement that Ampere would provide electrical and mechanical work for Bernie's on the Enfield project, and that it would be Bernie's "eyes and ears" on the project, that Bernie's agreed that it would pay Ampere's actual costs above the contract price with Borghese, and that Ampere fully performed its part of the agreement. The court further finds that Bernie's has failed to pay Ampere for its actual costs and thus is liable for breach of contract.
3. Unjust enrichment and quantum meruit
Under the theory of unjust enrichment and quantum meruit, the plaintiff also seeks damages for his "eyes and ears" time and for the value of inventory that he purchased specifically for Bernie's.
The elements of unjust enrichment are well established. "Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment." (Internal quotation marks omitted.) Jo-Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn.App. 179, 194, 880 A.2d 945 (2005). "Unjust enrichment is a very broad and flexible doctrine that has as its basis the principle that it is contrary to equity and good conscience for a defendant to retain a benefit that has come to him at the expense of the plaintiff." Gagne v. Vaccaro, 255 Conn. 390, 409, 766 A.2d 416 (2001), on appeal after remand, 80 Conn.App. 436, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004).
"Quantum meruit is a theory of contract recovery that does not depend upon the existence of a contract, either express or implied in fact. Fischer Co. v. Morrison, 137 Conn. 399, 403, 78 A.2d 242 (1951). Rather, quantum meruit arises out of the need to avoid unjust enrichment to a party, even in the absence of an actual agreement. Fischer v. Kennedy, 106 Conn. 484, 492, 138 A. 503 (1927); see also Sidney v. DeVries, 215 Conn. 350, 351-52 n. 1, 575 A.2d 228 (1990) (quantum meruit and unjust enrichment are common-law principles of restitution; both are noncontractual means of recovery without valid contract)." Id., 401.
"Unjust enrichment and quantum meruit are forms of the equitable remedy of restitution by which a plaintiff may recover the benefit conferred on a defendant in situations where no express contract has been entered into by the parties." Burns v. Koellmer, 11 Conn.App. 375, 385, 527 A.2d 1210 (1987). See also David M. Somers Associates, P.C. v. Busch, 283 Conn. 396, 408, 927 A.2d 832 (2007) ("A party may not recover the reasonable value of services rendered, pursuant to the doctrine of quantum meruit, when the actions for which it seeks relief were governed by an express contact").
a. Eyes and ears time
As discussed, infra, this court has previously found that the "eyes and ears" function was a term of the agreement negotiated by the parties and thus integrated within a valid contract. As such, this court concludes that the plaintiff cannot recover based on either restitutionary theory. The plaintiff's consideration for his eyes and ears time was the award of the contract and the premium that the defendant was willing to pay on the contract.
Moreover, the indefiniteness of the terms of that agreement, while questionable in terms of its enforcement under contract law, does not therefore provide the plaintiff with a remedy for unjust enrichment. In other words, if there was an allegation that the plaintiff had failed to perform, it is unclear how a court would determine whether there was a breach of contract.
On the other hand, as the Supreme Court observed in Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 522, 735 A.2d 813 (1999), "[a]s long as there is some objective benchmark against which to measure the scope of the parties' contractual undertaking, or the reasonableness of a party's reliance, it may no longer be necessary to resort to the law of restitution to provide a remedy for the enforcement of indefinite terms contained therein. If there is no such benchmark, it may correspondingly be difficult to justify a residual remedy in restitution because it may be difficult to avoid a recovery that is too speculative to be sustainable." Based on the evidence, this court infers that for the premium that the defendant paid in order to secure the plaintiff as his electrical and mechanical contractor and as his eyes and ears on the project, the defendant left to Schleehauf's judgment how much time he would require effectively to perform that aspect of the agreement.
b. Inventory
The plaintiff also claims damages for inventory it currently possesses that was purchased and stored solely for Bernie's stores. Schleehauf claims that Rosenberg had agreed to purchase this inventory since their exclusive relationship ended. Given the circumstances under which their relationship ended, this court doubts that the parties came to such an agreement. Moreover, this court cannot find that the defendant somehow benefited from inventory still in the possession of Ampere such that a cause of action in unjust enrichment and quantum meruit may lie.
4. Payment and Waiver
The defendant's second and fifth special defense is that the defendant had paid the plaintiff in full as of December 17, 2004, and any right to payments was waived by his "silence" for over twenty-two months subsequent to the project's completion. "Waiver is the intentional relinquishment of a known right." Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 251, 618 A.2d 506 (1992). "Waiver need not be express, `but may consist of acts or conduct from which a waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so.'" Id., 252. The court, however, finds that Ampere was not paid in full for the Enfield project because it credits the testimony of Schleehauf and Ron Stacy who testified that Rosenberg acknowledged that Bernie's was having financial difficulties. Moreover, given that this court credits the testimony of Schleehauf and Stacy, this court finds that Schleehauf persisted in seeking payment for the Enfield project and as such, cannot find waiver here.
To the extent that the defendant did not brief remaining special defenses raised in its answer, this court deems them abandoned.
5. Damages
"Damages are an essential element of the plaintiff's proof before he is entitled to recover . . . They must be proved with reasonable certainty." (Internal quotation marks omitted.) Falco v. James Peter Associates, Inc., 165 Conn. 442, 445, 335 A.2d 301 (1973), citing Braithwaite v. Lee, 125 Conn. 10, 14, 2 A.2d 380 (1938). "The general rule of contract damages is that the injured party should be placed in a position he would have been in had the contract been fully performed . . ." (Internal quotation marks omitted.) Gerrety Co. v. Palmieri, 11 Conn.App. 226, 230, 526 A.2d 555 (1987).
In considering the damages to award the plaintiff, this court credits the testimony of the plaintiff's expert, Lawrence Marziale, a certified public accountant licensed in Connecticut for thirty years. As director of litigation services for his firm, he specializes in forensic accounting in the area of business litigation. Marziale was retained by the plaintiff to calculate the actual costs incurred by the plaintiff in the performance of its electrical/mechanical contract for the construction of the Enfield project. Marziale's review of the documentation resulted in his conclusion which he rendered with reasonable certainty amounted to $330,159.55.
The defendant urges this court to reject the opinion of the plaintiff's expert. Citing to Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 285, 649 A.2d 518 (1994), the defendant asserts that the standard of reasonable certainty "was grossly misplaced" and "not applicable to this case and only applies when damages `are appropriate but difficult to prove.'" The defendant further criticizes the methodology used by the plaintiff's expert, pointing to inconsistencies in his calculations and conclusions. However, the court in Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co. not only discussed damages in the context of unjust enrichment, but never addressed the reasonable certainty standard as implied by the defendant.
More relevant authority for the applicable standard for damages in a breach of contract case is found in the case of Duplissie v. Devino, 96 Conn.App. 673, 699, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). In that case, the trial court found that the defendant construction company breached its contract with the plaintiff to pay him a commission of 10 percent of the profit earned from construction projects where the plaintiff acted as construction manager. The court found that there was an agreement that said profit would be calculated by subtracting the job costs from the contract price. On appeal, the defendant claimed certain evidence admitted by the court were incomplete statements of the costs attributable to one of the construction projects. The court rejected its claim that the trial court had abused its discretion holding that "[d]amages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty . . . Thus, the court must have evidence by which it can calculate the damages, which is not merely subjective or speculative, but which allows for some objective ascertainment of the amount." (Internal quotation marks omitted.) Id., 699.
This court is satisfied by a preponderance of the evidence that the plaintiff's expert has provided this court with an adequate basis for estimating the plaintiff's damages with reasonable certainty. The plaintiff's expert, however, makes certain assumptions which this court finds are inapplicable as a matter of law and thus deducts the following from his conclusion that the plaintiff has incurred $330,159.55 in actual costs. The plaintiff concedes that Mrs. Schleehauf's time and office help charges are not part of the actual costs properly claimed in this litigation; the court also finds that Schleehauf's consulting time may not be awarded for breach of contract. As such $69,606 is deducted. The plaintiff concedes that additional errors of $6,598.32 may be further deducted. The court also agrees with the defendant that the agreement included the discounted markups for all the vendors as well as the materials, and included no markup for the Northern Electric subcontractor. Since Marziale's figure assumed the normal markups of 30 percent for materials and 20 percent for the subcontractors, as opposed to 20 percent and 15 percent respectively (excluding Northern Electric), $133,904.92 should be further deducted. The award for actual costs under the agreement between Ampere and Bernie's is $120,050.31.
6. Prejudgment interest
The award of prejudgment interest under § 37-3a is an equitable determination that lies within the trial court's discretion. Nor'easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 482, 542 A.2d 692 (1988); Newington v. General Sanitation Service Co., 196 Conn. 81, 90, 491 A.2d 363 (1985). An allowance of prejudgment interest under § 37-3a turns on "whether the detention of the money is or is not wrongful under the circumstances." (Internal quotation marks omitted.) Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 748, 557 A.2d 525 (1989); Cecio Brothers, Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 (1971); Alderman v. RPM of New Haven, Inc., 20 Conn.App. 566, 569, 568 A.2d 1068 (1990). Cecio states that "[t]he determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of any arbitrary rule." (Internal quotation marks omitted.) Cecio Brothers, Inc. v. Feldmann, supra, 161 Conn. 275, quoting Bernhard v. Rochester German Ins. Co., 79 Conn. 388, 398, 65 A. 134 (1906).
Based on the evidence and this court's findings and conclusions, prejudgment interest under General Statutes § 37-3a in the amount of $35,014.67 is awarded the plaintiff as well.
III. CONCLUSION
Based on the court's findings of fact and conclusions of law, this court finds for the plaintiff in the amount of $120,050.31 and $35,014.67 in interest.
It is SO ORDERED.