187 Conn. App. 282
Conn. App. Ct.2019Background
- Watson Real Estate, LLC bought lot 1 in a four‑lot subdivision; the common driveway was partially paved. An escrow agreement with Woodland Ridge, LLC (defendant) required completion of the common driveway and creation of an escrow fund of $51,000. Exhibit A required a "final course of bituminous pavement" but tied the final course to either completion of all four houses or five years after the agreement.
- The escrow agreement included a procedure allowing the buyer to hire a third party and submit invoices to the escrow agent for reimbursement if the developer failed to timely complete work. The plaintiff did not submit invoices for two expenditures (paving to plaintiff’s lot entrance and payment of an easement map invoice) to the escrow agent.
- Plaintiff paid $4,914 to extend the paved portion to its lot entrance (to obtain a certificate of occupancy) and $530.70 toward an unpaid easement map bill; later the developer paid another contractor to pave the remaining portion but did not install what plaintiff believed was a second, final layer of pavement.
- At bench trial, parties presented conflicting parol evidence about whether the escrow required two pavement layers (plaintiff’s witnesses said yes; defendant’s attorney relied on a paving proposal suggesting only an extension). The court found the agreement ambiguous and that there was no meeting of the minds on the pavement specification, and entered judgment for the defendant on the breach claim.
- After trial the court acknowledged plaintiff had paid sums that arguably could support an unjust enrichment recovery but denied relief because that theory was not pleaded; plaintiff sought leave to amend to add unjust enrichment after judgment, which the court denied; plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court should have found a meeting of the minds that escrow required two pavement layers (drawing adverse inference from defendant’s failure to call a witness) | Court should have drawn an adverse inference from defendant’s failure to call or elicit testimony from Zak, so finding mutual intent for two coats | Parol evidence conflicted; witness (Zak) was equally available and the adverse inference is permissive, not mandatory | Affirmed: adverse inference is permissive; court properly declined to draw it and the finding of no meeting of the minds was not legal error |
| Whether defendant breached by failing to reimburse plaintiff for costs plaintiff incurred extending driveway and paying easement invoice | Plaintiff argues costs were the developer’s responsibility and defendant must reimburse under the escrow agreement | Defendant points out plaintiff never submitted invoices to escrow agent and reimbursement was not pled as a separate breach at trial | Not reviewed on appeal: plaintiff did not plead or litigate a contractual reimbursement claim, so appellate court will not consider it |
| Whether trial court abused discretion by denying leave to amend complaint postjudgment to add unjust enrichment for those unpaid costs | Plaintiff argues court itself recognized unjust enrichment and should have allowed amendment to conform to evidence | Defendant argues the amendment was untimely and would prejudice it; amendment sought long after trial and judgment | Affirmed: denial of leave to amend was within court’s discretion given the belated request made months after judgment |
| Whether parol evidence was ignored or incorrectly weighed by trial court | Plaintiff claims court failed to consider uncontroverted parol evidence showing two coats were promised | Defendant contends parol evidence conflicted and the agreement was ambiguous; trier of fact entitled to weigh evidence | Court acted within bounds: factfinder may weigh conflicting parol evidence; no clear error shown |
Key Cases Cited
- State v. Malave, 250 Conn. 722 (establishes limits on the Secondino missing‑witness instruction and discusses why that instruction was abandoned)
- Foncello v. Amorossi, 284 Conn. 225 (pleadings limit recovery; parties may not recover on unpleaded claims)
- Motzer v. Haberli, 300 Conn. 733 (trial court has discretion to deny late amendment to pleadings after trial begins)
- Secondino v. New Haven Gas Co., 147 Conn. 672 (historical missing‑witness rule discussed in Connecticut jurisprudence)
- Murallo v. United Builders Supply Co., 182 Conn. App. 594 (meeting of the minds is a factual inquiry reviewed for clear error)
- LM Ins. Corp. v. Connecticut Dismanteling, LLC, 172 Conn. App. 622 (standard of review where an alleged legal error concerns use of an adverse inference)