KA ENTERPRISES, LLC v. FRIELLO

Full title: KA ENTERPRISES, LLC v. THOMAS FRIELLO

Court: Connecticut Superior Court Judicial District of New Haven at New Haven

Date published: Jul 28, 2011

2011 Conn. Super. Ct. 16755 (Conn. Super. Ct. 2011)

Opinion

No. CV 11 6016646S

July 28, 2011

MEMORANDUM OF DECISION

RICHARD E. BURKE, Judge.

The plaintiff, KA Enterprises, LLC. (hereafter referred to as "KA"), has brought a two-count action against Thomas Friello (hereinafter referred to as "Friello") based upon a contract and quantum meruit. On June 25, 2010, the parties entered into a written agreement in which KA agreed to install a sidewalk and other improvements at the Meriden property owned by Friello. This project was to be performed under the Neighborhood Preservation Program of the City of Meriden whereby the City of Meriden would pay $5,000 and Friello would pay $2,864.50, which is the balance of the cost. According to KA, after the job was completed and passed the inspection by the City of Meriden, KA presented its bill to the City of Meriden and to Friello for $7,864.50. At that time, Friello refused to pay KA his portion of $2,864.50. Moreover, Friello refused to endorse the check from the City of Meriden in the amount of $5,000.

Friello testified that he was not satisfied with various matters, including cracks in the sidewalk, the level of the sidewalk and the inspection report. However, the key issue in this suit has to do with landscape damages which Friello attributes to KA. Friello's front yard has a steep incline towards the sidewalk. After the sidewalk was replaced, there was erosion of some of the soil which included new plants which had to be replaced. The landscaper testified that the replacement of the soil and plants cost Friello $3,205.44. Friello testified that KA should get paid but $3,205.44 should be reduced from the total. In other words, KA would receive a total of $4,659.06.

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.) Keller v. Beckstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).

"'A contract is express if its terms are stated by the parties, either orally or in writing, and it is implied if its terms are not so stated. In other words, an implied contract is one in which some or all of the terms are inferred from the conduct of the parties and the circumstances of the case, though not expressed in words, while an express contract is one in which the parties arrive at their agreement and express it in words, either oral or written.' 17A Am.Jur.2d 48-49, Contracts § 12 (2004). 'An express contract is a contract whose terms are stated by the parties; an implied contract is a contract whose terms are not so stated.' 1 S. Williston, Contracts (4th Ed. Lord 1990) § 1:5, pp. 18-20." Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 738, 901 A.2d 1277 (2006).

"'The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence.' Fortier v. Newington Group, Inc., 30 Conn.App. 505, 509, 620 A.2d 1321, cert. denied, 225 Conn. 922, 625 A.2d 823 (1993). Further, the determination of whether a contract is oral or written is also a question of fact. See Union Trust Co. v. Jackson, 42 Conn.App. 413, 419, 679 A.2d 421 (1996) ('question of whether the parties had an oral contract is material, if, and only if, a trier of fact were to find that there was an oral agreement')." Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn.App. 688, 695-96, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998).

"[W]here evidence as to terms of oral contract is conflicting, it is for the trier of fact to pass upon the facts and determine the terms of the contract. 11 R. Lord, A Treatise on the Law of Contracts (1999) § 30:8, p. 95." (Internal quotation marks omitted.) AM Towing Recovery, Inc. v. Guay, Superior Court, judicial district of Hartford, Docket No. CVH 7221 (May 15, 2006, Bentivegna, J.), aff'd, 282 Conn. 454, 923 A.2d 628 (2007).

General Statutes § 52-550 provides: "(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; (5) upon any agreement that is not to be performed within one year from the making thereof; or (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.

"(b) This section shall not apply to parol agreements for hiring or leasing real property, or any interest therein, for one year or less, in pursuance of which the leased premises have been or are actually occupied by the lessee, or any person claiming under him, during any part of the term."

In C.R. Klewin, Inc. v. Flagship Properties, Inc., 220 Conn. 569, 577-79, 600 A.2d 772 (1991), the court provided a history of how the Connecticut Supreme Court has analyzed oral contracts pursuant to the one-year requirement of the statute of frauds, now codified as § 52-550(a)(5). "In this century, in Appleby v. Noble, 101 Conn. 54, 57, 124 A. 717 (1924), this court held that "'[a] contract is not within this clause of the statute unless its terms are so drawn that it cannot by any possibility be performed fully within one year.'" . . . In Burkle v. Superflow Mfg. Co., 137 Conn. 488, 492-93, 78 A2d 698 (1951), we delineated the line that separates contracts that are within the one-year provision from those that are excluded from it. 'Where the time for performance is definitely fixed at more than one year, the contract is, of course, within the statute . . . If no time is definitely fixed but full performance may occur within one year through the happening of a contingency upon which the contract depends, it is not within the statute.'" (Emphasis in original.) C.R. Klewin, Inc. v. Flagship Properties, Inc., supra, 578-79. The court in C.R. Klewin, Inc. held: "We therefore hold that an oral contract that does not say, in express terms, that performance is to have a specific duration beyond one year is, as a matter of law, the functional equivalent of a contract of indefinite duration for the purposes of the statute of frauds. Like a contract of indefinite duration, such a contract is enforceable because it is outside the proscriptive force of the statute regardless of how long completion of performance will actually take." Id., 583-84.

"For a valid modification to exist, there must be mutual assent to the meaning and conditions of the modification and the parties 'must assent to the same thing in the same sense.' . . . Lar-Rob Bus Corp. v. Fairfield, 170 Conn. 397, 402, 365 A.2d 1086 (1976); see First Hartford Realty Corp. v. Ellis, 181 Conn. 25, 33, 434 A.2d 314 (1980). Modification of a contract may be inferred from the attendant circumstances and conduct of the parties. See Rowe v. Cormier, 189 Conn. 371, 372-73, 456 A.2d 277 (1983); Malone v. Santora, 135 Conn. 286, 292, 64 A.2d 51 (1949).

"Whether the parties to a contract intended to modify the contract is a question of fact. Three S. Development Co. v. Santore, 193 Conn. 174, CT Page 16758 177-78, 474 A.2d 795 (1984); Rowe v. Cormier, supra, 189 Conn. 373. 'The resolution of conflicting factual claims falls within the province of the trial court . . ." Herbert S. Newman Partners v. CFC Construction Ltd. Partnership, 236 Conn. 750, 761-62, 674 A.2d 1313 (1996).

"A parol modification of a contract agreed to by the parties is proper where the original agreement was not in writing and the parties to such an agreement may vary its terms by a subsequent course of dealing. 17A Am.Jur.2d 526." Wilcox Trucking, Inc. v. First Hartford Realty Corp., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 366925 (November 23, 1992, Hammer J.).

"A modification of an agreement must be supported by valid consideration and requires a party to do, or promise to do, something further than, or different from, that which he is already bound to do." (Internal quotation marks omitted.) Harley v. Indian Spring Land Co., 123 Conn.App. 800, 822, 3 A.3d 992 (2010).

"The Restatement (2d) Contracts, § 89 takes a more liberal view. Saying that a modification 'under a contract not fully performed on either side is binding (a) if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made'; comment (a) does not seem to require consideration for 'fair and equitable' modifications for the evident reason that such modification would often occur at or near the time of contract formation when there are ongoing transactions between the parties, cf. 17A Am.Jur.2d 'Contracts,' § 511, p. 483-85." Southern New England Telephone Co. v. Coho, Superior Court, judicial district of New Haven, Docket No. CV 03 0476159 (September 27, 2006, Corradino, J.).

"Generally, when a builder breaches a bilateral construction contract by an unexcused failure to render substantial performance, he cannot maintain an action on the contract to recover the unpaid balance of the contract price because substantial performance, a constructive condition of the owner's duty to pay the balance, has not been satisfied. See 2 Restatement (Second), Contracts 237, comment (d); 3A A. Corbin, Contracts (1964) §§ 701, 710; see generally Lach v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951); Sheketoff v. Prevedine, 133 Conn. 389, 392-93, 51 A.2d 922 (1947). The balance of the contract price, therefore, is not 'due' the builder. See 3A A. Corbin, supra, 701." Argentinis v. Gould, 219 Conn. 151, 157, 592 A.2d 378 (1991).

"The determination of [w]hether a building contract has been substantially performed is ordinarily a question of fact for the trier to determine . . . The analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract. See 2 E. Farnsworth, Contracts § 8.12. Miller v. Bourgoin, 28 Conn.App. 491, 496, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992)." (Citation omitted; internal quotation marks omitted.) Pettit v. Hampton Beech, Inc., 101 Conn.App. 502, 506, 922 A.2d 300 (2007).¹

1 "Although such a determination may involve a factual inquiry into the intention of the parties under the circumstances of a particular case; Anderson v. Yaworski, 120 Conn. 390, 399, 181 A. 205 (1935); if the relevant inquiry turns on the language of unambiguous contractual documents, applicability of the doctrine is a question of law. Levine v. Massey, 232 Conn. 272, 277-78, 654 A.2d 737 (1995)." Mortgage Electronic Registrations Systems, Inc. v. Goduto, 110 Conn.App. 367, 374, 955 A.2d 544, cert. denied, 289 Conn. 956, 961 A.2d 420 (2008).

"The traditional explication of the test of substantial performance was that it 'contemplates the performance of all items of a building contract except for minor details, those easily remedied by minor expenditures.' Argentinis v. Gould, [ 23 Conn.App., 9, 14, 579 A.2d 1078 (1990), aff'd in part, rev'd in part on other grounds, 219 Conn. 151, 592 A.2d 1078 (1991)], citing Rosnick v. Aetna Sheet Metal Works, Inc., 146 Conn. 565, 568, 153 A.2d 435 (1959). More modern authorities set out a variety of factors for the court to consider . . ." Abatement Industries Group v. Britto, Superior Court, judicial district of Fairfield, Docket No. CV 08 5017355 (March 22, 2011, Gilardi, J.T.R.). The court in Abatement cited to 2 Restatement (Second) Contracts, § 237, comment (d) and § 241. 2 Restatement (Second), Contracts, § 241 (1981) states: "In determining whether a failure to render or to offer performance is material, the following circumstances are significant:

"(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;

"(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;

"(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;

"(d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;

"(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing." 2 Restatement (Second), supra, § 237, comment (d) provides in relevant part: "In an important category of disputes over failure of performance, one party asserts the right to payment on the ground that he has completed his performance, while the other party refuses to pay on the ground that there is an uncured material failure of performance . . . A typical example is that of the building contractor who claims from the owner payment of the unpaid balance under a construction contract. In such cases it is common to state the issue, not in terms of whether there has been an uncured material failure by the contractor, but in terms of whether there has been substantial performance by him. This manner of stating the issue does not change its substance, however, and the rule stated in this Section also applies to such cases. If there has been substantial although not full performance, the building contractor has a claim for the unpaid balance and the owner has a claim only for damages. If there has not been substantial performance, the building contractor has no claim for the unpaid balance, although he may have a claim in restitution (§ 374). The considerations in determining whether performance is substantial are those listed in § 241 for determining whether a failure is material. See Comment b to § 241. If, however, the parties have made an event a condition of their agreement, there is no mitigating standard of materiality or substantiality applicable to the non-occurrence of that event. If, therefore, the agreement makes full performance a condition, substantial performance is not sufficient and if relief is to be had under the contract, it must be through excuse of the non-occurrence of the condition to avoid forfeiture."

"There is no reason why one who has substantially performed . . . a [building] contract, but unintentionally failed of strict performance in the matter of minor details, should have imposed upon him as a condition of recovery for that of which the other party has received the benefit, the burden of showing by direct evidence its reasonable value, or why he should be deprived of all benefit of the contract which he has substantially performed . . . Edens v. Kole Construction Co., 188 Conn. 489, 494, 450 A.2d 1161 (1982)."² (Internal quotation marks omitted.) Pettit v. Hampton Beech, Inc., supra, 101 Conn.App. 508.

2 Edens was overruled on other grounds, which pertain to a plaintiff's recovery in breach of contract actions involving a builder's failure to render substantial performance in Argentinis v. Gould, supra, 219 Conn. 152, 156.

Unjust Enrichment

"To prevail on a claim of unjust enrichment, the plaintiff must prove (1) that the [defendant was] benefited, (2) that the [defendant] unjustly did not pay the [plaintiff] for the benefits, and (3) that the failure of payment was to the [plaintiff's] detriment." (Internal quotation marks omitted.) Hall v. Bergman, 296 Conn. 169, 182 n. 7, 994 A.2d 666 (2010).

Findings

The court finds that there was a contract between the parties. However, as a result of actions of the plaintiff, the defendant suffered damages for which the plaintiff is liable. According, the court finds that Friello should obtain a credit for eighty percent of the cost of the replacement landscaping, that is $2,564.44. Therefore, KA should be paid $5,300.06. Friello is ordered to endorse the check from the City of Meriden in the amount of $5,000. Friello shall also pay KA the amount of $300.06.

No attorneys fees or prejudgment interest is granted. There will be 10% postjudgment interest for any unpaid amount due under this judgment which starts accruing as of the date as of September 1, 2011.