Opinion
No. CV04 0185047-S
January 30, 2008
MEMORANDUM OF DECISION
The plaintiff, Thomas Yurchyk, has brought an action to recover damages resulting from the alleged breach of a site development agreement entered into with the defendant, Stephen Oldakowski. In addition to damages, the plaintiff seeks to recover in quantum meruit or unjust enrichment. The defendant has filed an answer, special defenses and a three-count counterclaim for damages. The matter was tried before the court over a three-day period.
BACKGROUND
The plaintiff, doing business as Thomas Yurchyk Construction entered into a written agreement with the defendant dated July 7, 1999 (the "Agreement") for site development work to be performed by the plaintiff in connection with the construction of a single-family residence on the defendant's property known as Lot 1 Munger Lane, Bethlehem, Connecticut. The plaintiff alleges in count one of his amended complaint that he performed work and supplied materials pursuant to the Agreement for which he hasn't been fully paid and further claims that when he demanded payment, the defendant "terminated his services" in breach of the Agreement. In count two of the amended complaint, the plaintiff claims quantum meruit and unjust enrichment for the same work and services rendered to the defendant.
The defendant has filed special defenses to the plaintiff's complaint, including the statute of limitations, laches and payment. The defendant has also filed a three-count counterclaim seeking money damages for the plaintiff's: (1) failure to complete the work, (2) complete the work in a workmanlike manner and (3) unauthorized removal of topsoil from the defendant's property.
FINDINGS OF FACT
On the basis of the evidence submitted and the credible testimony of the parties and witnesses, the court finds the following facts.
1. On or about July 3, 1999, the plaintiff and defendant met, reviewed plans and maps for a house and septic system provided by the defendant and discussed the work needed to develop the site for the planned construction of the defendant's home in general terms.
2. After the meeting, the parties went to the property and walked the site.
3. The Agreement was drafted by the plaintiff and delivered to the defendant shortly after the meeting and site walk.
4. The Agreement was in the form of a written "Proposal" which provided for specified work and materials (the "Work") to be supplied by the plaintiff in exchange for payment by the defendant of the sum of $20,000 (the "Bid Price"). The Agreement further provided that the Work was to be furnished in accordance with a "site and septic" plan prepared by a professional engineer and a "foundation plan" prepared by an architect previously furnished by the defendant. Attached to the one-page printed form signed by the parties, were three manuscript pages (the "Work Pages") detailing what is described in the Agreement as the "Work included within this bid" followed by a list of items labeled "Work Not included in This Bid." The third manuscripted Work Page ends with a notation that "Any change in plans, adds or deletes, will warrant an adjustment in the bid price." The Agreement called for payment of the $20,000 in installments of $5,000 "upon acceptance," $5,000 when the "foundation is backfilled, $5,000 when "certified septic gravel is in place" and "finial (sic) payment of $5,000 upon complication (sic) of job." There was no date or period of time set forth in the Agreement for completion of the Work.
5. None of the three manuscript Work Pages attached to the printed form has the signature or initials of either party.
6. The Agreement was returned by the defendant, signed by the plaintiff and defendant on July 7, 1999 and the plaintiff began work immediately.
Although the plaintiff is an experienced contractor and the defendant is an attorney, the Agreement is not artfully drafted. One reason may be that the plans and specifications for the work were prepared by third-party professionals and no evidence was offered that the third parties participated in the discussions or preparation of the Agreement. The failure of the parties to incorporate the plans and specifications into the Agreement with any detail made it difficult, if not impossible, to determine the scope and cost of the work. Along the way, the parties developed very different views as to the meaning of the terms of the Agreement and the Work to be performed by the plaintiff within the Bid Price.
The first discussion of the possibility of an "extra" took place at the time of the signing of the Agreement when the parties discussed the possibility of substituting crushed stone for bank run gravel under the foundation. The parties decided to wait until the foundations was dug to decide that issue. When the foundation was dug in late August, a water problem developed and the parties mutually agreed to substitute crushed stone. This substitution is clearly a change from the Agreement but was discussed and contemplated at the time that the Agreement was entered into. The defendant acknowledges that the plaintiff is entitled to claim the additional sum of $468.00 for the substituted materials.
With the exception of the crushed stone, the testimony of both parties discloses that there were no other discussions concerning any changes or divergent views of the Agreement until the later part of September when the plaintiff advised the defendant that there would be an additional charge for the lower driveway. The defendant testified that the plaintiff's request for payment came about two weeks after the driveway was excavated. The defendant expressed the belief that the driveway was included in the Bid Price but the plaintiff maintained otherwise. The defendant testified that when he asked the plaintiff what other work the plaintiff considered to be "additional" and what the cost would be for that work, the plaintiff replied "You'll find out."
The court heard recordings of voice mail messages left by the defendant on the plaintiff's answering machine during the first week of October, expressing his concern about the plaintiff's references to unspecified additional charges and other issues (Plaintiff's Exhibit 3). On or about October 5, 1999 the plaintiff sent the defendant a two-page fax of the plaintiff's list of "extras" (Defendant's Exhibit B). The plaintiff's fax in response to the defendant's messages listed eight "extras" costing a total of $5,500.
The defendant offered in evidence, an additional recording of the defendant's voice mail message to the plaintiff expressing his belief that the extras being claimed in the plaintiff's fax were included in the original Work and Bid Price but that he would be willing to pay an additional $5,000 in order to begin construction of the home before the onset of Winter.
Shortly thereafter, the defendant encountered the plaintiff removing a truckload of topsoil from the site. When the defendant questioned the plaintiff's actions, the plaintiff advised the defendant that there was a provision in the Agreement that "All unused excavated material will become the property of T. Yurchyk Construction."
The parties began to dispute additional matters as a result of which, a stalemate developed and a meeting was held at the office of the plaintiff's attorney in mid-October. At the meeting, the plaintiff presented the defendant with additional charges for "extras" (Plaintiff's Exhibit 4, Page 2). Shortly after this encounter, the plaintiff, in his complaint, claims that the defendant "terminated his services" while the defendant's version in his counterclaim is that, despite the defendant's performance of his obligations, the plaintiff "has neglected to finish said work and refuses to complete the same." Whatever the true cause for the breakup, the parties parted company at that point.
COUNT ONE OF PLAINTIFF'S COMPLAINT
Since the court interprets the plaintiff's allegation in Count One that the defendant "terminated his services" as a breach of contract claim, the first issue to be resolved is whether a valid contract existed between the parties. "If the minds of the parties have not truly met, no enforceable contract exists . . . An agreement must be definite and certain as to its terms and requirements . . . So long as any essential matters are left open for further consideration, the contract is not complete." (Internal quotation marks omitted.) LR Realty v. Connecticut National Bank, 53 Conn.App. 524, 535, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999). A contract requires a clear and definite promise. See Suffield Development Associates Ltd. Partnership v. Society for Savings, 243 Conn. 832, 843, 708 A.2nd 1361 (1998).
"The parties' intentions manifested by their acts and words are essential to the court's determination of whether a contract was entered into and what its terms were . . . If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make." (Citation omitted; internal quotation marks omitted.) Aquarion Water Co. of Connecticut v. Beck Law Products Forms, LLC, 98 Conn.App. 234, 239, 907 A.2d 1274 (2006).
"If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make . . . [A]n agreement must be definite and certain as to its terms and requirements." (Citations omitted; internal quotation marks omitted.) Electrical Wholesalers, Inc. v. M.J.B. Corp., 99 Conn.App. 294, 302, 912 A.2d 1117 (2007). In other words, "[o]ur case law requires definite agreement on the essential terms of an enforceable agreement." (Internal quotation marks omitted.) 111 Whitney Avenue, Inc. v. Commissioner of Mental Retardation, 70 Conn.App. 692, 699, 802 A.2d 117 (2002).
In the present case, the acts and words of the parties leave little doubt that there was no meeting of the minds and therefore no enforceable contract between the parties. The Agreement is ambiguous and fails to include a number of terms essential to the subject matter of the transaction with even any general degree of certainty. For example, the parties failed to specify whether the line item 610 entitled "Mass excavation Cuts and fills" included the drive-out basement which was discussed at the initial meeting. Additionally, although the burial of tree stumps was referred to in the Agreement as part of the "Work Included" there was no provision for the contingency that the location selected might require additional work and no accounting for the cost of that work other than the "catch all" provision that "All extras will be charged at current contractor's rates." The plaintiff seeks to invoke this provision with regard to the defendant's obligation to pay for several "extras" without being able to demonstrate what was meant by the term "contractor's rates." The topsoil incident serves to illustrate another key provision on which the parties' minds never met. Although the plaintiff testified that he calculated and discounted his bid in reliance on his unexpressed belief that he would be able to extract and take a number of truckloads of topsoil from the site for resale, there was no discussion of this expectation with the defendant. True, there is a provision in a lengthy paragraph in fine print that "All unused excavated material will become the property of T. Yurchyk Construction" but no clarification of what was meant by "unused" or any estimates of the quantity anticipated. This was borne out by the conflicting testimony of the plaintiff and the defendant's expert, James Kacerguis, as to the necessary depth of the overall topsoil coverage required to remain after construction. Moreover, although it never became an issue because the parties terminated their relationship, the Agreement also failed to provide any time for performance of the Work.
The court finds, on the basis of the evidence and testimony, that there was no mutual understanding of the essential terms of the transaction by the parties nor the "meeting of the minds" required by the law to create an enforceable contract, and therefore, none existed. Without a contract, the plaintiff's claim of the defendant's breach alleged in count one must fail. "Absent a binding contract, there can be no breach." Feinberg v. Berglewicz, 32 Conn.App. 857, 862, 632 A.2d 709 (1993).
COUNT TWO OF THE PLAINTIFF'S COMPLAINT
In Count Two of the plaintiff's Amended Complaint, the plaintiff alternatively claims sums due from the defendant on the basis of "quantum meruit/unjust enrichment." Having found that no enforceable contract existed does not, by itself, mean that the plaintiff cannot recover altogether. An action which seeks damages for unjust enrichment and quantum meruit is allowable as an alternative basis for recovery in the event of a failure to prove a breach of contract claim. See Bolmer v. Kocet, 6 Conn.App. 595, 612, 507 A.2d 129 (1986).
"Both unjust enrichment and quantum meruit are doctrines allowing damages for restitution, that is, the restoration to a party of money, services or goods of which he or she was deprived that benefitted another." Burns v. Koellmer, 11 Conn.App. 375, 383, 527 A.2d 1210 (1987). Quantum meruit is usually a remedy based on implied contract and usually relates to the benefit of work, labor or services received by the party who was unjustly enriched, whereas unjust enrichment relates to a benefit of money or property. Id., 384.
A claim based on quantum meruit, as "[o]ur Supreme Court has explained . . . literally means as much as he has deserved . . ." (Internal quotation marks omitted.) Shapero v. Mercede, 262 Conn. 1, 7, 808 A.2d 666 (2002). It "is the form of action which has been utilized when the benefit received was the work, labor, or services of the party seeking restitution." (Internal quotation marks omitted; external citation omitted.) Chiulli v. Zola, 97 Conn.App. 699, 707-08, 905 A.2d 1236 (2006).
"Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered . . ." (Internal quotation marks omitted.) Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 737-38, 901 A.2d 1277 (2006), quoting Total Aircraft, LLC v. Nascimento, 93 Conn.App. 576, 582 n. 5, 889 A.2d 950, cert. denied, 277 Conn. 928, 695 A.2d 800 (2006).
THE DEFENDANT'S SPECIAL DEFENSES 1. STATUTE OF LIMITATIONS
The defendant asserts that the plaintiff's claims are for extras which were not reduced to writing and are therefore barred by CGS § 52-581 which establishes a three-year statute of limitations for oral contracts. The court has found that in light of the failed written Agreement, the plaintiff is entitled to recover in quantum meruit for any services rendered for which he can prove that he wasn't paid. An action in quantum meruit is an action on an implied contract. "Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered . . ." (Internal quotation marks omitted, emphasis added.) Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 737-38, 901 A.2d 1277 (2006), quoting Total Aircraft, LLC v. Nascimento, 93 Conn.App. 576, 582 n. 5, 889 A.2d 950, cert. denied, 277 Conn. 928, 895 A.2d 800 (2006).
CGS § 52-576 provides in pertinent part that: "(a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . ." (Emphasis added.) The quasi contract claims in count two of the plaintiff's complaint were brought within the six-year period permitted by CGS § 52-576 and, therefore, the defendant's special defense is without merit.
2. LACHES
The defendant claims that the plaintiff's claims are barred by laches. "Laches consists of two elements. First, there must have been a delay that was inexcusable, and second, that delay must have prejudiced the defendant." Burrier v. Burrier, 59 Conn.App. 593, 596, 758 A.2d 373 (2000). The defendant failed to present any evidence at trial concerning either element of the defense of laches and therefore, the defendant has failed to meet his burden of proof with regard to this special defense.
3. FAILURE TO COMPLETE THE WORK IN THE AGREEMENT AND UNSKILLFUL AND NEGLIGENT WORK
As a special defense to the plaintiff's breach of contract claim, the defendant asserts that the plaintiff "failed to perform all the work required of him under the contract." Having found no enforceable contract, it is not necessary to revisit the issue of the scope of the Work. In his Third Special Defense, the defendant also claims that the work done by the plaintiff was performed in such an "unskillful and negligent manner" so as to require the defendant to "hire another contractor to perform the work required in the contract, to the Defendant's financial detriment." Although the defendant can raise the issue of the quality of the plaintiff's services to dispute the reasonable value of services claimed in quantum meruit, the defendant's allegations concerning the plaintiff's workmanship do not satisfy the defendant's obligation to plead facts in his special defense that demonstrate that the plaintiff has no cause of action. "The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 718, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002); see Practice Book § 10-50.
4. BREACH OF CONTRACT
In his fourth special defense, the defendant asserts that the plaintiff "breached his contract . . . by removing fill . . . without the Defendant's permission." As in the case of the third special defense, the defendant has failed to plead facts that demonstrate that the plaintiff has no cause of action as is required to support a special defense.
5. PAYMENT
The defendant asserts that he has paid the reasonable value of any services provided by the plaintiff under the terms of the contract. Practice Book § 10-50 specifically permits the assertion of "payment (even though nonpayment is alleged by the plaintiff)" as a special defense. The defendant claims that he paid the plaintiff $10,000 for the plaintiff's services, which the plaintiff does not deny and which sum will be taken into account by the court in assessing the parties' competing claims for money damages.
CONCLUSION
"[I]t is the trier's exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness's testimony." (Internal quotation marks omitted.) Hoffer v. Swan Lake Ass'n., Inc., 66 Conn.App. 858, 861, 786 A.2d 436 (2001). On the basis of the credible testimony of the parties and witnesses, the full exhibits received in evidence, including videotapes and photographs of the site and recorded voicemail messages, the court concludes as follows.
Each party has claimed that the other "breached their Agreement." The Agreement was poorly written, ambiguous and failed to describe the essential terms of its subject matter with the degree of certainty required by the law to form a valid contract. By their actions and testimony, the parties have clearly established that there was no meeting of the minds. The court finds that there was no express contract made by the parties which could be breached.
In the absence of an express contract, the parties stood in a quasi-contractual relationship. In this relationship, the plaintiff may recover the reasonable value of his services in quantum meruit, provided he has fulfilled the implied condition that his services be performed in a workmanlike manner. To the extent that the plaintiff's services were not performed in a workmanlike manner, the defendant may offset against the plaintiff's quantum meruit claim, the reasonable cost of correcting the work and to the extent that the plaintiff has been paid for defective work, or paid for work not done at all, the defendant may recover those sums from the plaintiff.
DAMAGES
The parties' failure to include specific progress payments or clear milestones in the Agreement makes it difficult to determine how much work was completed when the plaintiff ceased work. The testimony offered was not particularly illuminating. The plaintiff testified that he completed sixty-five percent of the original work while Kacerguis claimed that only thirty-five to forty percent was done. Despite the conflicting testimony as to percentages, the parties seem to agree, and the court finds, that the plaintiff completed the following items on the original Work Pages (Plaintiff's Exhibit 10).
Line No. Work Cost/Value 600
602 Grub Stump 40,000 S/F $1,500 603 Strip Stockpile Loam 975 604 Erosion Silt Fence 330 604a Anti-tracking Pad 360 605 Excavate Frost Walls 410 607 Back-fill Frost Walls 410 608 Crushed Stone 468 608a Grade Concrete 635 610 Mass Excavation 2,000 610d Water Plug Total Original Work Completed $7,688The Work Pages in the Agreement attached to the complaint do not have line item cost figures. For some reason, the plaintiff offered as a full exhibit, at trial, Work Pages identical to those attached to the complaint with the exception that they include line item costs for specific components of the Work (Plaintiff's Exhibit 10). The defendant testified that these cost figures were never shown to him by the plaintiff during their discussions. Although, neither party can claim the absolute benefit or burden of these figures, the court deems it appropriate to give partial consideration to them in reviewing the parties' claims.
THE PLAINTIFF'S SPECIFIC CLAIMS FOR UNPAID ADDITIONAL WORK A. STAKE OFF-SETS FOR THE FOUNDATION
The plaintiff claims that as he was preparing to commence excavation of the foundation, he advised the defendant that the defendant's surveyor needed to set the off-set stakes to locate the area to be excavated. The plaintiff testified that the defendant requested that the plaintiff stake the site which the parties agree was done. The plaintiff has claimed that the staking was not included in the Work and seeks $200 for the job. The defendant's expert, James Kacerguis ("Kacerguis"), testified that it is customary for the party doing the excavation work to install the offsets. The plaintiff claims that the task took one-half day. Kacerguis testified that the job should take one-half hour. The work was done by the plaintiff's employee, Thomas Alexson ("Alexson") who testified that it took two hours. The court notes that line 625 of the original Agreement, although unenforceable, specifically excluded "Stake Out and Survey Work." The court finds the reasonable value of work and benefit to the defendant to be $150 and credits that sum to the plaintiff.
B. ADDITIONAL STUMPING AND GRUBBING
The plaintiff claims that the defendant requested, or made necessary, 16,854 s/f of stumping and grubbing of the site in addition to the original 40,000 s/f discussed. The plaintiff claims that the additional work was made necessary by the defendant's removal of more trees than planned. The defendant does not dispute that the work was done but claims that the plaintiff removed more trees than authorized by the defendant which made the additional work necessary. Alexson testified that he witnessed the defendant cutting trees on the site on more than one occasion and the defendant acknowledged having done so. On the basis of the testimony and acknowledgment that the work was done the court finds for the plaintiff on this claim. The plaintiff claims an additional $1,475 for the additional grubbing and stumping work. The cost for the grubbing and stumping of 40,000 s/f on line 602 of Plaintiff's Exhibit 10 is $1,500. Applying the ratio of 16,854/40,000 (or .42135%) to $1,500, the court finds for the plaintiff on this issue and credits the plaintiff with an additional sum of $632.03.
C. THE "ROADWAY" TO BURY THE STUMPS
The plaintiff claims the sum of $1,200 for the creation of a "roadway" to transport tree stumps to a burial site on the property. The defendant testified that the plaintiff suggested burial of the stumps on site at their first meeting. In view of the defendant's expert, Kacerguis' testimony that the burial of tree stumps on site is prohibited and since line 602 of the original Work Pages states that the Work includes "Bury Stumps On Site" the court finds for the defendant on this claim.
D. LOWER DRIVEWAY
The plaintiff claims that he is due the additional sum of $2,500 for the excavation of a "lower driveway." The defendant testified that the lower driveway and drive-out basement were discussed at their first meeting. The defendant claims that his understanding was that the excavation of the lower driveway and drive-out basement was included in the term "mass excavation Cuts and fills" on line 610. The defendant testified that he was present when the work was done by Alexson and that Alexson began working at 5:00 p.m. and finished by sunset. The defendant's expert, Kacerguis, testified that the work should take less than four hours to complete at a cost of $600 or $150 per hour. The court finds on the basis of the credible testimony that the lower driveway was not included in the original Work as contemplated by the parties and credits the plaintiff with the sum of $900 (six hours at $150 per hour).
E. EXCESS BOULDERS AND LEDGE
While digging the foundation, the plaintiff claims that he encountered "excessive" boulders and ledge which required additional time and labor beyond that originally contemplated. The plaintiff points to the provision in the Agreement that "any unforeseen site conditions such as ledge, large rocks, . . . involving additional labor and/or materials will be considered an extra cost charged in addition to the above set price." The plaintiff seeks an additional sum of $1,500 for this claim. Alexson testified that the foundation took twelve hours to excavate. The defendant testified that he was present during the excavation, that the work took one day and although he saw rocks and boulders come out of the ground, none were significant enough to impede the work or require addition time or labor. There was no testimony that the rocks or boulders were taken offsite. The defendant's expert testified that he inspected the site when the plaintiff ceased working, and that he saw no rocks or boulders around the foundation site which couldn't be readily excavated "like a bucket of dirt" by equipment of the kind used by the plaintiff. The defendant testified that the first mention of the additional charge for the rocks and boulders was in the fax received from the plaintiff on October 5, 1999 and that there was never any reference to any difficulty with ledge. The court finds that the plaintiff has failed to sustain his burden of proof with respect to this claim.
F. SEPTIC SYSTEM
The plaintiff has made a claim for work done on a "larger" septic system than originally requested by the defendant. Although the plaintiff acknowledges that he did not complete the septic system work, he claims that he "began stripping and scarifying the top soil" and "would have completed" it if the defendant hadn't "asked him to cease" the work. The plaintiff claims the sum of $680 for this work. On the basis of the testimony, the court credits the plaintiff with two hours at $150 per hour for a total of $300 for this work.
G. BOX AND GRADE UPPER DRIVEWAY
The plaintiff claims the additional sum of $535 to "box and grade the upper driveway." Little testimony was submitted by either party on this component of the project. The court notes that this item is included on line 616 of the Work Pages and therefore cannot be considered an "extra."
H. ADDITIONAL STRIPPING OF 8,140 S/F OF TOPSOIL
The plaintiff seeks the sum of $407 for "additional" stripping of 8,140 s/f of topsoil in the lower driveway and the stump burial area. On the basis of the testimony, the court credits the plaintiff with the sum of $407 for this work.
I. REMOVAL AND STORAGE OF INSULATION FOR FOUNDATION
The plaintiff claims that the defendant placed foam around the concrete foundation and "threw" pieces around the foundation hole which interfered with the plaintiff's ability to perform his work. The plaintiff claims $30 to remove the insulation. The defendant has not responded to this claim and the court credits the plaintiff with $30.
J. ADDITIONAL 180 LINEAR FEET OF DRAINS WITHIN THE FOUNDATION
The plaintiff claimed the sum of $270 for this item but failed to submit sufficient evidence upon which the court could make an award.
K. CRUSHED STONE
The plaintiff and defendant acknowledge that they agreed to substitute crushed stone for bank run gravel in the foundation area and the court credits the plaintiff with the sum of $468.
In addition to the plaintiff's claims for payment of additional work, the plaintiff also seeks to recover the following:
L. THE TOPSOIL
The plaintiff claims that his Bid Price of $20,000 was predicated on his receipt of excess topsoil from the site worth $5,000. There was no evidence submitted that this aspect of the transaction was discussed by the parties and the first documentary evidence of the $5,000 topsoil adjustment, according to the defendant, appeared on Plaintiff's Exhibit 10, along with the line item cost figures. The plaintiff further claims that by "terminating his services," the defendant has prevented him from receiving the benefit of his bargain. The plaintiff relies on the provision in the Agreement that "all unused excavated material" was to become the plaintiff's property. He also acknowledges that he removed three truckloads of topsoil before he ceased work and conceded that "unused" or excess topsoil could not be identified until completion of the job. The defendant's expert, Kacerguis, testified that in order to complete the job, "a few loads" of topsoil needed to be, and were, brought to the site. Since the plaintiff can only recover in quantum meruit, the court awards no damages to the plaintiff for this claim.
M. LOST PROFITS
The plaintiff claims that he is entitled to his profit on the job which he lost as a result of the defendant's actions. The plaintiff testified that he anticipated a profit of thirty-three percent on the job and seeks $3,330 without any supporting evidence. The defendant's expert, Kacerguis, testified that the customary profit in the construction industry was ten percent. Since the plaintiff can only recover in quantum meruit, it is not necessary for the court to determine any lost profits, as the measure of the plaintiff's recovery is limited to the reasonable value of his services rendered and materials furnished. The measure of damages in quantum meruit is the value of the services rendered. McCullough v. Waterside Associates, 102 Conn.App. 23, 30 (2007). "Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered . . ." (Internal quotation marks omitted.) Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 737-38, 901 A.2d 1277 (2006), quoting Total Aircraft, LLC v. Nascimento, 93 Conn.App. 576, 582 n. 5, 889 A.2d 950, cert. denied, 277 Conn. 928, 695 A.2d 800 (2006).
N. ATTORNEYS FEES
The plaintiff seeks to recover attorneys fees in his prayer for relief In Connecticut, "[t]he general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed . . . absent a contractual or statutory exception." (Internal quotation marks omitted.) MD Drilling and Blasting, Inc. v. MLS Construction, LLC, 93 Conn.App. 451, 457-58, 889 A.2d 850 (2006), quoting Rizzo Pool v. Del Grosso, 240 Conn. 58, 72, 689 A.2d 1097 (1997). Since the court has found that the Agreement is unenforceable, the plaintiff's claim for attorneys fees is denied.
O. INTEREST
The court finds, in the exercise of its discretion pursuant to Connecticut General Statutes § 37-3a, that the sums claimed to be mutually due and owing were unliquidated sums which were hotly disputed by both parties and awards no interest to either party.
P. DAMAGE TO TRACTOR
The plaintiff claims that the defendant copied the key to the plaintiff's tractor, which was stored on the site, and used it without authorization on several occasions. The plaintiff claims that on one occasion, the defendant broke the drive shaft which required $360 to repair. Although the defendant disputed the plaintiff's claim, based on the testimony heard, the court finds for the plaintiff on this claim and awards the sum of $360 to the plaintiff.
THE DEFENDANT'S COUNTERCLAIMS
The defendant has filed a three-count counterclaim.
First Count. In the first count, the defendant alleges that the plaintiff has breached the Agreement, "has neglected to finish the work and refuses to complete the same." Having found no enforceable agreement, this count is not viable.
Second Count. The defendant alleges in the second count that the plaintiff "performed the work required of him in so unskillful and negligent a manner that the Defendant was required to hire another contractor to perform said work required, to the Defendant's financial detriment."
The defendant submitted evidence that, after the plaintiff and defendant parted ways, the unfinished work was completed by Kacerguis. The defendant testified that he paid Kacerguis $22,432 to complete the job. The defendant, having paid in cash, had no canceled checks, but submitted a "paid" invoice from Kacerguis dated almost three years after the work was done (Erroneously marked Plaintiff's Exhibit 9). The financial detriment claimed by the defendant is that the sum he paid Kacerguis was greater than the sum he contracted for with the plaintiff. This is in the nature of a "benefit of the bargain" claim. On the basis of the evidence submitted, the court was not presented with sufficient evidence to determine whether the work performed by Kacerguis was the same work that was to be done by the plaintiff. More importantly, since the Agreement was unenforceable, the defendant's "benefit of the bargain" is lost in the same manner as the plaintiff's "lost profits." However, in order to recover on a theory of quantum meruit, a plaintiff must show that the services were performed in a workmanlike manner. John Hill Construction Co. v. Acevedo, 2004 Ct.Sup. 13476, judicial district of New Haven, Docket No. CV03-0475083 S (Sept. 9, 2004, Corradino, J.). Accordingly, if the defendant can show that he paid Kacerguis to correct or complete work that the plaintiff had already been paid for, then the defendant would be entitled to recover those sums from the defendant.
The defendant claims the following items in this counterclaim for damages, for which he acknowledges, in his memorandum of law, he has the burden of proof. Ruscito v. F-Dyne Electronics Co, Inc., 177 Conn. 149, 411 A.2d 1371 (1979).
1. The defendant's expert, Kacerguis, testified that when he arrived at the site following the plaintiff's departure, the property "wasn't graded very well at all" and needed to be re-graded. The defendant paid Kacerguis $1,200 to re-grade the site. The defendant failed to prove that regrading the site was a task which was made necessary by the plaintiff's faulty work rather than final grading which would customarily be done at or near completion of the job.
2. Kacerguis also testified that the driveway, as the plaintiff left it, "took a wicked dive . . ." and also needed to be re-graded at a cost of $1.50 per square foot for a total cost of $4,815. It appears that the work on the approximately 3,200 square feet driveway was estimated by the plaintiff on lines 616 and 616d of Plaintiff's Exhibit 10 at a cost of approximately $2,500. The defendant's evidence did not clearly show whether the plaintiff had or hadn't completed the grading of the driveway, including the "wicked dive" at the time that he ceased work. The defendant has not sustained his burden of proof with respect to this claim.
3. Kacerguis testified that he put 10 yards of crushed stone on the driveway entrance at a cost of $200, which he described as necessary to make access to the site easier. There was no evidence to impose responsibility on the plaintiff for this expense and the defendant's claim for reimbursement of this expense is denied.
4. Kacerguis testified that the drains installed by the plaintiff were not working and estimated their cost of repair at $1,000. The defendant testified that rather than repairing the drains, he replaced them, but offered no evidence of the actual cost to replace the drains. Accordingly, this claim is denied.
5. Kacerguis also testified that at a cost of $465, he "finished" filling and compacting the garage which the plaintiff left unfinished. In the absence of any evidence that this expense was necessary to correct faulty work by the plaintiff or that he was paid for this work but failed to perform it, the defendant cannot recover this cost.
6. Kacerguis testified that the plaintiff's burial of the tree stumps on the site was illegal. He further testified that the cost of removing the stumps would have been $5,000 in 1999 and the cost would be approximately forty percent greater at the present time. Testimony was received that the parties discussed the issue of the tree stump prior to determining the method and location of their disposal. The defendant offered no evidence, other than the testimony of Kacerguis, that the plaintiff's actions were, in fact, illegal or that the plaintiff, as a contractor, should be charged with any greater knowledge of the law than the defendant attorney, for what was, apparently, a mutual decision. The court makes no award to the defendant on this claim.
7. Finally, the defendant seeks recovery for the three truckloads of topsoil removed from the site by the plaintiff which was undisputed. The defendant's claim for the value of the topsoil is $384 based on 16 cubic yards per truckload at $8 per cubic yard. The court finds that despite the plaintiff's belief that the Agreement was in effect at the time, the plaintiff could not have reasonably considered the topsoil to be "unused" or excess until the job was completed. Accordingly, the court finds for the defendant on this claim.
FINAL AWARD
The court's award to the plaintiff for claims for additional work is summarized as follows. Additional Work Award$ 360.00 $ 2,779.03
1. Stable out Foundation $ 150.00 2. Additional Stump Grub (16,854 S/F) $ 632.03 3. Driveway $ 900.00 4. Septic System Preparation $ 300.00 5. Additional Stripping of Topsoil (8,140 S/F) $ 407.00 6. Insulation Clean-up $ 30.00 7. Tractor Repair Total Additional Work $ 2,779.03 Total For Original Work Completed $ 7,688.00 Total For Additional Work Total $10,467.03The parties agree that the defendant paid the plaintiff the sum of $10,000 in two payments of $5,000 each for which the defendant is entitled to credit.$10,000.00
Total Award $10,467.03 Less Payment from Defendant Final Award to Plaintiff $ 467.03Judgment on the complaint is entered in favor of the plaintiff, Thomas Yurchyk against the defendant, Stephen Oldakowski in the amount of $467.03. Judgment on the counterclaim is entered in favor of Oldakowski against Yurchyk in the amount of $387. No fees or costs are awarded.