71 Conn. App. 576 | Conn. App. Ct. | 2002
Opinion
The plaintiff, Riccardo I. Ambrogio, appeals from the summary judgment rendered by the trial court in his favor but awarding him no damages after the court granted the motion in limine filed by the defendant Paul DiMascio Construction Company, Inc.,
The following facts and procedural history are not in dispute. The plaintiff, an oral surgeon, leased office
Shortly after signing the lease, the plaintiff entered into an agreement with the defendant, a general contractor, for the construction of his office. As part of the contract, the defendant agreed to “secure and provide ... all the materials necessary and perform or cause to be performed all the work necessary for the completion of improvements to the Premises ... in accordance with the General Specifications” and that “[a]ll work shall be done in a good and workmanlike manner, using experienced labor and first-quality materials as per the specifications.”
The defendant thereafter contracted with Z-Florz, Inc., to install the flooring in the plaintiffs two surgical rooms. The floors, Forbo Forshaga AB smaragd sheet vinyl flooring with Forbo’s heat welding system, were to be installed in accordance with the manufacturer’s instructions to ensure coverage under the manufacturer’s five year warranty. Z-Florz, Inc., installed the surgical flooring, and the plaintiff opened his practice on November 16, 1992.
Several months after opening his practice, the plaintiff noticed “moisture seepage, slippery conditions, offensive odors and bubbling in the flooring in the surgical areas of the office.” As a result, unsafe and unhealthy conditions caused the plaintiff to close one of the surgical rooms.
The plaintiff subsequently discovered that improper ventilation of the concrete slab under the flooring had caused the seepage problem. Attempts by the plaintiff
After filing this action, the plaintiff notified the defendant that he intended to call two expert witnesses to testily during the trial, Michael C. Matzkin, a dentist, and Conrad A. Kappel, a certified public accountant. Matzkin and Kappel were to testify as to the projected growth of the plaintiffs practice and the profits that were lost as a result of the defective installation of the flooring in the surgical rooms. Prior to the date the trial was to begin, the defendant filed a motion in limine seeking to preclude the plaintiff from introducing any evidence “which [purports] to show that the plaintiff lost patients, lost patient referrals or lost business growth opportunities as elements of his damages.” It was the defendant’s contention that “[l]ost business and loss of business opportunities are not included in the measure of damages for the breach of a construction contract.”
Following a hearing, the court granted the defendant’s motion, precluding the plaintiffs witnesses from testifying. The plaintiff filed a motion to reargue, claiming that the court had decided an issue that was not before it, namely, whether lost profits were an appropriate remedy in this specific case. The court denied the motion. The plaintiff then filed a motion for summary judgment as to liability only, which the court granted. This appeal followed.
“A trial court may entertain a motion in limine made by either party regarding the admission or exclusion of anticipated evidence. . . . The judicial authority may grant the relief sought in the motion or such other relief as it may deem appropriate, may deny the motion with
“Generally, [t]rial courts have wide discretion with regard to evidentiary issues and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. . . . Every reasonable presumption will be made in favor of upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Holmes, 64 Conn. App. 80, 85, 778 A.2d 253, cert. denied, 258 Conn. 911, 782 A.2d 1249 (2001).
As we previously stated, the defendant’s motion in hmine was premised on the basis that lost profits “are not included in the measure of damages for the breach of a construction contract.” In its objection to the defendant’s motion, the plaintiff focused on the question that the defendant had presented to the court, arguing that lost profits were an appropriate remedy in breach of construction contract cases. In its reply to the plaintiffs objection, the defendant, for the first time, claimed that “if [the trial court was] to accept the plaintiffs argument that Hadley v. Baxendale, [9 Ex. 341, 354, 156 Eng. Rep. 145 (1854)] applies, [the court] must then consider what damages were reasonably foreseen by the parties when they executed their contract.”
During the hearing on the defendant’s motion, the plaintiff, without contradiction from the court or from the defendant’s counsel, stated that the issue of whether lost profits reasonably were contemplated by both par
In granting the defendant’s motion, the court held: “Applying the rule in [Hadley v. Baxendale, supra, 9 Ex. 354] to the present case, the court concludes that [the defendant] could not reasonably have contemplated lost profits as a measure of damages in the event it were to breach the building agreement. Also, lost patients, lost patient referrals and loss of business growth are not losses of the type usually resulting from a general contractor’s breach of contract for failure to properly inspect, direct and supervise a subcontractor’s installation of flooring. The contract does not state that [the defendant] was aware of special circumstances at the time of contracting, and, therefore, [the defendant] cannot reasonably be supposed to have foreseen liability for lost profits in the event of breach. The widely accepted case of Hadley v. Baxendale [supra, 9 Ex. 354] supports this court’s preclusion of evidence on the ground that [the plaintiffs] alleged loss of patients, loss of patient referrals and loss of business growth was not reasonably foreseeable by [the defendant] at the time of contracting.”
The court correctly held that lost profits are a remedy available to a plaintiff in a breach of construction contract case. “The general rule in breach of contract cases is that the award of damages is designed to place the
The court, however, improperly applied the principles of Hadley v. Baxendale, supra, 9 Ex. 341, to determine that lost profits were not a reasonably foreseeable remedy in this particular case. Whether lost profits were available in this case was not before the court. The motion in limine sought to have expert witnesses excluded on the theory that lost profits “are not included in the measure of damages for the breach of a construction contract.” During oral argument before this court, the defendant agreed that the issue before the trial court was “whether lost damages were appropriate in this kind of case.” (Emphasis added.) The trial court was not asked to decide the question of whether it was reasonably foreseeable that the defendant, in this case, contemplated lost profits as a measure of damages in the event the contract was breached.
Even if the issue of whether damages were foreseeable in this particular case had been properly before the trial court at that stage of the proceedings, the finding that damages could not be awarded would have been improper in light of the fact that the court had only three pages of the seven page contract before it. More importantly, the court did not have a copy of the “outline specifications” that were incorporated into the contract. The contract specifically stated that “[t]he work is to be completed in such a manner as to comply fully with the General Specifications and any changes made thereto.” The outline specifications provided the special instructions with which the flooring installation in the surgical rooms needed to comply, namely, that it had to be installed in accordance with the manufacturer’s instructions to ensure coverage under the five year warranty. The manufacturer’s instructions stated that “[i]t was most important that sub-surfaces be thoroughly DRY and free of moisture prior to installation of Smaragd. Maximum content of moisture 2.5%.”
By going beyond the issue raised in the motion in limine, the court entered into the province of the fact finder. The court decided a question of fact when it held that the defendant “could not reasonably have contemplated lost profits as a measure of damages in the event he were to breach the building agreement.” “The determination as to whether future profits were within the contemplation of the parties when contracting necessarily turns on the specific facts established at trial.” Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1362 (7th Cir. 1996). Without having the complete contract, the court could not determine that the parties did not contemplate lost profits as a measure of damages in this case. Accordingly, the trial court improperly concluded that lost profits were not allowable.
The judgment is reversed in part and the case is remanded for a hearing in damages.
In this opinion the other judges concurred.
The other defendants, Beaver Road Associates, Rosario S. Mangiafico, Robert H. Tabshey, John Palazzo and Z-Florz, Inc., are not involved in this appeal. We therefore refer to Paul DiMascio Construction Company, Inc., as the defendant.
Subsequent, testing revealed that the moisture content was between 15 percent and 20 percent.
The plaintiff claims that the tests required to determine whether the concrete slab was suitable for the specialized flooring were not performed before Z-Florz, Inc., installed the floors.