96 Conn. App. 673 | Conn. App. Ct. | 2006
These are appeals from the trial court’s judgment on claims by the plaintiff, Glen Duplis-sie, that his former employers, the defendants Kenneth M. Devino and Building Structures, Inc. (Building Structures),
The following facts and procedural history, found by the court, are relevant to the claims on appeal. In 1982, the plaintiff began working for Devino’s wife as a subcontractor, performing various landscaping and other handyman jobs at their family residence.
Throughout the course of the employment relationship, the plaintiff worked for Devino’s various business entities, including the Industrial Development Group (Industrial Development)
In March, 2000, the plaintiff initiated a lawsuit against Devino and Building Structures, alleging that the defendants failed to fulfill their obligations under each of these oral agreements. The matter was tried to the court on December 15 and 16, 2004. On May 6, 2005, the court rendered judgment in favor of the plaintiff in part and in favor of the defendants in part, and awarded the
I
The first set of claims on appeal relate to the agreement between the plaintiff and Devino for the payment of $10,000 each July.
In its well reasoned memorandum decision, the court found the following facts relevant to this claim. “Prior to beginning full-time employment with . . . Devino, [the plaintiff] owned and operated a small construction business that built custom additions to residential properties and performed other simple carpentry and landscaping services. [The plaintiff] continued to perform this work in his spare time after he became employed full-time by . . . Devino.
“Sometime in June, 1986 . . . Devino learned that [the plaintiff] continued to perform construction work for others. . . . Devino discussed the matter with [the plaintiff] and the parties orally agreed that, in exchange for [the plaintiff] forgoing any additional ‘moonlighting’ activities . . . Devino would pay [the plaintiff] a lump sum of $10,000 each July while [the plaintiff] remained employed by . . . Devino. The parties agreed that this payment was to be in addition to [the plaintiffs] base salary and other benefits. [The parties] also agreed that the plaintiff would have the option of temporarily forgoing receipt of the yearly $10,000 payment and, instead, allow it to be held by [Industrial Development]. Any funds temporarily retained by Industrial Development were to accrue interest at the compounded rate of 10
“Pursuant to this agreement . . . Devino paid the plaintiff the lump sum compensation in 1987, 1988 and 1989. In 1990, [Devino] asked the plaintiff, pursuant to their oral agreement, to defer receiving the $10,000 payment for that year because of the declining real estate market. The plaintiff agreed. The parties reaffirmed their prior agreement that the plaintiff would receive interest for any sums that the plaintiff allowed . . . Devino to hold back.
“In 1991 . . . Devino paid the plaintiff $8500 pursuant to their oral agreement. Although this payment was made prior to the July date established by the parties’ oral agreement, the court rejects, as a factual matter . . . Devino’s claim that these payments were discretionary bonuses that he was not obligated to make. The plaintiff never received the remaining $1500 in lump sum compensation for that year.
“In 1992, [the plaintiff] demanded the payment of the funds, with interest, for which he was entitled from prior years. At this time . . . Devino paid [the plaintiff] $8000 as either partial payment toward this obligation or as part of the $10,000 lump sum compensation that the plaintiff was owed for that year. The court rejects . . . Devino’s assertion that this payment constituted a loan to the plaintiff. The plaintiff never received the additional $2000 owed for 1992. [The plaintiff] did not receive any additional lump sum compensation from 1993 until his termination on August 22, 1997.”
A
The plaintiff first claims on his appeal that the court improperly concluded that he failed to meet his burden of proof on the claim of fraudulent misrepresentation. Specifically, he challenges the court’s finding that there was “no credible evidence that . . . Devino had the present intention that he would not make the agreed upon payments to the plaintiff once the business climate improved.” We are not persuaded.
Before reaching the merits of the plaintiffs claim on appeal, we begin by setting forth our standard of review and the relevant legal principles. “The party claiming fraud . . . has the burden of proof. . . . Whether that burden has been met is a question of fact that will not be overturned unless it is clearly erroneous. ... A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing
“Under the common law ... it is well settled that the essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury. ... All of these ingredients must be found to exist .... Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which ... we have described as clear and satisfactory or clear, precise and unequivocal.” (Citation omitted; internal quotation marks omitted.) Ferris v. Faford, 93 Conn. App. 679, 692, 890 A.2d 602 (2006).
In this case, the basis of the court’s conclusion that the plaintiff did not prove fraud is its finding that there was “no credible evidence that . . . Devino had the present intention that he would not make the agreed upon payments to the plaintiff once the business climate improved.” “A representation about a promise to do something in the future, when linked with a present intention not to do it, is a false representation.” (Internal quotation marks omitted.) Kim v. Magnotta, 49 Conn. App. 203, 225, 714 A.2d 38 (1998), rev’d on other grounds, 249 Conn. 94, 733 A.2d 809 (1999). Accordingly, such a promise “may constitute actionable fraud if it is blended with a misrepresentation of a material fact and an evasion of the very promise, after the promisee has performed.” Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 300, 478 A.2d 257 (1984).
The parties concede that there is no direct evidence that Devino intended not to follow through on his promise. In fact, the court had evidence that after reaffirming the agreement in 1990, Devino paid at least part of the annual sum to the plaintiff in 1991 and 1992. Moreover, Devino testified, with regard to this agreement, that “I would never say something and not do it; that just wouldn’t be something that I would do. When you’re dealing with people in good faith, you just don’t do those things. I wouldn’t do it.” On appeal, the plaintiff asks this court to conclude that Devino’s testimony cannot be credited. “[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’ testimony.” (Internal quotation marks omitted.) Lowe v. Shelton, 83 Conn. App. 750, 765, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004). We cannot, therefore, conclude that the court’s finding that the plaintiff did not meet the heightened burden of proving fraud is clearly erroneous.
B
On his appeal, Devino claims that the court incorrectly concluded that the plaintiffs claims as to the
Devino first asserts that the plaintiff’s claims are barred by the statute of limitations in § 52-596. Section 52-596 provides in relevant part that “[n]o action for the payment of remuneration for employment payable periodically shall be brought but within two years after the right of action accrues . . . .” This statute, however, does not govern all payments by employer to employee. Connecticut courts have recognized that § 52-596 does not apply to certain agreements or forms of compensation. See, e.g., Mace v. Conde Nast Publications, Inc., 155 Conn. 680, 237 A.2d 360 (1967) (lump sum severance payment does not constitute remuneration payable periodically); Burns v. Koellmer, 11 Conn. App. 375, 527 A.2d 1210 (1987) (action based on agreement between parties for payment of additional compensation accrued at time employer refused to pay, not at failure to pay during course of employment). Our analysis, therefore, begins with a threshold inquiry of whether the payment agreement between the parties falls under the ambit of this statute.
In this case, the determinative factor is whether the annual lump sum is “payable periodically.” Section 52-596 does not define this term. “[W]here a statute does not define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.” (Internal quotation marks omitted.) State v. Kalman, 93 Conn. App. 129, 136, 887 A.2d 950, cert.
Devino argues, in the alternative, that if the plaintiffs claims were not time barred by § 52-596, certain portions
In its memorandum of decision, when addressing Devino’s other statute of limitations defense, the court found that Devino admitted that the plaintiffs cause of action accrued on August 22, 1997. “The determination of whether a party’s statement is a judicial admission or an evidentiary admission is a question of fact for the trial court.” LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn. App. 824, 830, 798 A.2d 445 (2002). Even when our review is plenary, “factual findings of the trial court that underlie that determination are entitled to the same deference on appeal that other factual findings command.” (Internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn. App. 401, 411, 867 A.2d 841 (2005). We conclude that the court’s finding that Devino admitted that the cause of action accrued on August 22, 1997, is supported by the record.
It is well established that “[a] party is bound by a judicial admission unless the court, in the exercise of its discretion, permits the admission to be withdrawn, explained or modified.” (Internal quotation marks omitted.) Levine v. Levine, 88 Conn. App. 795, 804, 871 A.2d 1034 (2005). In light of Devino’s admission, we need not consider the arguments made on appeal as to when the plaintiffs cause of action accrued.
C
Devino’s next two claims on appeal relate to the court’s finding that the plaintiff proved the elements of conversion, even though the plaintiff was not awarded damages on the basis of this finding. Specifically, Devino claims that (1) the court incorrectly found that the plaintiff proved the elements of conversion and (2) the claim is barred by the statutes of limitation in §§ 52-596 and 52-577. Devino recognized that resolution of these claims becomes necessary only if we concluded that the plaintiffs recovery for breach of contract is barred by a statute of limitations. Because we conclude that the breach of contract claim is not time barred, and therefore the plaintiff still may recover on that theory, we need not reach Devino’s claims related to conversion.
II
The plaintiffs next claim on appeal arises from the court’s finding in favor of Devino on all counts related to his promise to transfer an interest in Industrial Development to the plaintiff.
As he never received the 5 percent interest in Industrial Development, the plaintiff raised several claims against Devino.
A
The plaintiff first claims that the court improperly found that there was not an enforceable agreement between the parties for the transfer to him of an interest in Industrial Development. We are unconvinced.
We begin by setting forth the applicable standard of review. “The existence of a contract is a question of fact to be determined by the trier on the basis of all of
“The rules governing contract formation are well settled. To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties. ... If the minds of the parties have not truly met, no enforceable contract exists. . . . [A]n 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.) Geary v. Wentworth Laboratories, Inc., 60 Conn. App. 622, 627, 760 A.2d 969 (2000).
The crux: of the plaintiffs claim is that the parties assented to the essential elements of the agreement and, therefore, the agreement was enforceable. In his claim, the plaintiff does not challenge the court’s factual finding that parties did not agree to the particular terms. Rather, the plaintiff argues that any uncertain terms were not essential elements, but instead were details
The essential nature of these terms becomes evident when one assumes arguendo that an enforceable agreement exists and that damages were appropriate. “It is axiomatic that the burden of proving damages is on the party claiming them. . . . When damages are claimed they are an essential element of the plaintiffs proof and must be proved with reasonable certainty.” (Internal quotation marks omitted.) U. B. Vehicle Leasing, Inc. v. Davis, 90 Conn. App. 206, 214, 876 A.2d 1222 (2005). Here, the agreement between the parties
B
The plaintiff next claims that the court incorrectly determined that he could not recover on his fraudulent misrepresentation claim against Devino. Specifically, he argues that the court incorrectly found that he had not proved justifiable reliance on the promise. We disagree.
“Proving a false representation is . . . only one part of a claim of actionable misrepresentation. To prevail, the plaintiff also [is] required to show that he reasonably relied on that misrepresentation. One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for
In support of its finding that the plaintiffs reliance on Devino’s promise was not justifiable, the court noted the vague nature of the promise, as well as the failure of the parties to define key terms, put the agreement in writing or consider the involvement of Industrial Development’s co-owners. Additionally, the court noted that it was unconvinced that the plaintiff would have sought other employment in the absence of the promise. On appeal, the plaintiff does not argue that these factual findings were clearly erroneous. Instead, he argues that the court was showing Devino “fatherly-like” concern for making a poor deal and that the relationship between the parties was unequal. The nature of the plaintiffs argument here is essentially the same as on its other fraud claim: that the court had sufficient evidence to find justifiable reliance. “As an appellate tribunal, it is not our function either to second guess the considered judgment of the trial court or to ignore the record before us.” (Internal quotation marks omitted.) Higgins v. Liston, 88 Conn. App. 599, 614, 870 A.2d 1137, cert. denied, 276 Conn. 911, 886 A.2d 425 (2005), 546 U.S. 1220, 126 S. Ct. 1444, 164 L. Ed. 2d 143 (2006). We therefore need not consider whether the court could
It is well established that the absence of any element of a claim of fraud is fatal to the plaintiffs recovery. Harold Cohn & Co. v. Harco International, LLC, 72 Conn. App. 43, 51, 804 A.2d 218, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002). As the plaintiff has not demonstrated that his reliance on Devino’s promise was justifiable, he cannot succeed on this claim.
Ill
The remaining claims are raised on appeal by Building Structures. Each claim arises from the court’s judgment in favor of the plaintiff on his breach of contract claim related to Building Structures’ promise to pay him a 10 percent commission.
The following additional facts, found by the court, are relevant to these claims on appeal. During the course of the plaintiffs employment, Devino formed Building Structures for the purpose of completing construction projects on properties owned by other parties. In 1991, the plaintiff and Building Structures, through Devino, entered into an oral agreement that Building Structures would pay the plaintiff a commission for each construction project completed by Building Structures for which the plaintiff acted as construction manager. Specifically, the plaintiffs commission would be equal to 10 percent of the profit Building Structures made on each of these projects.
Building Structures completed four construction projects during the course of the plaintiff s employment.
A
Building Structures first claims that the court incorrectly found that an enforceable agreement for the payment of the commissions existed between the parties. Specifically, Building Structures argues that the court could not enforce the agreement because there was no mutual understanding as to an essential element of the contract. The law applicable to this claim is the same as that which we already have applied to the plaintiffs similar claim against Devino in part II A. Accordingly, we must look to whether the court’s conclusion that the terms of the agreement are sufficiently certain as to render the agreement enforceable is legally and logically correct. We conclude that it is.
B
Building Structures next claims that the court improperly admitted the plaintiffs exhibits 9F and 9G into evidence. We are not persuaded.
The following additional facts are necessary to our resolution of Building Structures’ claim. During the plaintiffs testimony about his knowledge of job costs
The plaintiff then offered exhibits 9F and 9G for admission into evidence as full exhibits, whereupon Building Structures questioned Finnemore further about her knowledge of the preparation and contents of the documents. Building Structures then objected to the admissibility of the exhibits on the ground that they were not a complete statement of the job costs for the Bakers project. The court denied the objection and admitted exhibits 9F and 9G as full exhibits.
“It is a fundamental rule of appellate procedure in the review of evidential rulings, whether resulting in the admission or exclusion of evidence, that an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him. . . . We have often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result. . . . Moreover, “[i]t is well recognized that any error in the admission of evidence does not require reversal of the resulting judgment if the improperly admitted evidence is merely cumulative of other validly admitted testimony.” (Citations omitted; internal quotation marks omitted.) Cadle Co. v. Errato, 71 Conn. App. 447, 466-67, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002).
Building Structures argues that exhibit 9F was admitted improperly because it was not prepared contemporaneously with or soon after the events in question. Building Structures also argues that exhibit 9G was admitted improperly because the plaintiff failed to prove that it was produced by a reliable computer program. We conclude that these claims were not preserved properly for appeal. “[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted.” (Internal quotation marks omitted.) State v. Cabral, 275 Conn. 514, 530-31, 881 A.2d 247, cert. denied, 546 U.S. 1048, 126 S. Ct. 773, 163 L. Ed. 2d 600 (2005).
Building Structures next argues that exhibit 9G was admitted improperly because the plaintiff failed to prove that it was a complete statement of the costs attributable to the project. Building Structures, however, cites no law on appeal, nor did it offer any at trial, requiring that the statement of job costs be complete in order to be admitted under the business records exception to the hearsay rule. Rather, this court has determined that “[w]hile the circumstances of the making of [the records] may be shown to affect the weight of that evidence . . . there is no requirement that the accuracy of a business record be proved as a prerequisite to its admission.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Carabetta, 55 Conn. App. 369, 375, 739 A.2d 301, cert. denied, 251 Conn. 927, 742 A.2d 362 (1999). In light of the plaintiffs and Finnemore’s testimony that the data entries were accurate, made in the regular course of business and contemporaneous with the events, we conclude that the court did not abuse its discretion in admitting exhibit 9G, even if it was incomplete, under the business records exception to the hearsay rule.
C
Building Structures next claims that even if exhibits 9F and 9G were admitted properly, the court abused
We begin by setting forth our standard of review. “[T]he trial court has broad discretion in determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” (Internal quotation marks omitted.) Russell v. Russell, 91 Conn. App. 619, 643, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). “Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty. . . . Thus, [t]he 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.) Valentin v. Community Remodeling Co., 90 Conn. App. 255, 261, 876 A.2d 1252 (2005).
Building Structures now challenges only the court’s use of $497,094 as the total job costs for the Bakers project. Specifically, it argues that because Finnemore testified that someone else could have billed additional expenses after she left employment with the defendants and that the job costs contained in exhibits 9F and 9G did not include some overhead costs, the court could not base its award of damages on those exhibits. We conclude that the court’s calculation of damages is supported by the record. Exhibit 9F reflects job costs of $497,094.11. The court was free to credit this evidence and use it in calculating the amount of damages to award the plaintiff. We will not revisit the court’s credibility determinations. See Mattson v. Mattson, 74 Conn.
The judgment is affirmed.
In this opinion the other judges concurred.
Building Structures is one of the various business entities owned by Devino. The plaintiff directs each of his claims separately at a particular defendant. Building Structures and Devino jointly have filed their cross appeal and a brief in response to the plaintiffs appeal. Where appropriate both parties will be referred to collectively as the defendants, or independently by name.
At the time, the plaintiff was operating as an independent contractor under the name of a small business entity known as LGD Enterprises.
Industrial Development, is operated by Devino for the purpose of constructing commercial and industrial buildings on land owned by himself and others through various real estate partnerships. The buildings would then be leased to various tenants.
Building Structures is a business entity created around 1991 and operated by Devino for the purpose of constructing buildings on properties owned by other parties.
The court concluded that the plaintiff is entitled to damages from Devino in the amount of $86,416.53, plus prejudgment interest of $33,270.16, for a total of $119,686.69. The court also concluded that the plaintiff is entitled to damages from Building Structures in the amount of $21,862, plus prejudgment interest in the amount of $10,952.86, for a total of $32,636.86.
The parties agree that during 1996 and 1997, shortly before the employment relationship ended, the plaintiff and Devino had some conversations about funds Devino allegedly owed the plaintiff, and whether or not he was willing or able to pay them. The parties also agree that sometime shortly after the plaintiffs employment was terminated, Devino paid the plaintiff approximately $5000. The parties disagree, however, as to whether the court characterized this payment as partial payment of that debt or severance pay.
These claims comprised a civil action to collect wages pursuant to General Statutes § 31-72 and counts alleging breach of contract, conversion and fraudulent misrepresentation.
The court declined to award double damages pursuant to § 31-72.
Similarly, Random House Webster’s Unabridged Dictionary (2d Ed. 2001) defines “periodic” as “occurring or appearing at regular intervals.”
Because we conclude that General Statutes § 52-596 does not apply to the plaintiffs claims, we need not reach the question of whether the plaintiff brought his action within two years of his right accruing. Were we to reach the merits of this question, the plaintiff concedes that if § 52-596 applied to his claims, “then inasmuch as the lawsuit was brought more than two years after Devino informed the plaintiff of his intention to not (ever) pay in 1997, the claims would be barred.”
Devino asserts that the plaintiffs claims related to the payments from 1990, 1991 and 1992 are barred because the plaintiff demanded payment of these sums, which he had previously agreed to defer, in late 1992, more than six years prior to commencing this action. Additionally, he asserts that the statute bars the plaintiffs claim as to the 1993 payment, which he never agreed to defer.
Although Devino pleaded the applicability of General Statutes § 52-576 in his special defenses, he did not brief it in his posttrial brief. Additionally, in its memorandum of decision, the court did not discuss the applicability of § 52-576 before reaching the merits of the plaintiffs claim. We nevertheless consider Devino’s claim on appeal. When we are considering “purely a question of law warranting plenary review, the legal analysis undertaken by the trial court is not essential to this court’s consideration of the issue on appeal.” Norwalk v. Farrell, 80 Conn. App. 399, 406 n.10, 835 A.2d 117 (2003).
In his posttrial brief, Devino states that “any cause of action that the plaintiff might have for payment of the $10,000 annual payment accrued August 22, 1997 at the latest, when [the] plaintiff left employment with [Industrial Development]. . . . Defendant Devino was served March 1, 2000, more than two and one-half years after the plaintiffs cause of action accrued.”
Similarly, we do not determine when the statute of limitations period on the plaintiffs claims began to run.
Without the court’s finding that Devino admitted the date that the plaintiffs cause of action accrued, we would not have an adequate record for review. Although our review as to whether the statute of limitations applies to a particular case is plenary, we give deference to the court’s factual findings underlying that determination. Here, the record otherwise lacks in those findings. “It is well established that [i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter. ... In the absence of an articulation, we presume that the trial court acted properly.” (Citation omitted; emphasis added; internal quotation marks omitted.) Champagne v. Champagne, 85 Conn. App. 872, 879, 859 A.2d 942 (2004).
These counts sounded in a civil action to collect wages, breach of contract and fraudulent misrepresentation. The court struck an additional count against Devino, sounding in quantum meruit, prior to the hearing.
Additionally, Devino’s brother, who is now deceased, was a co-owner of Industrial Development. The court noted that the plaintiffs reliance on the promise, “without first ascertaining whether the agreement of the other parties such as [Devino’s] brother would be required, is simply unjustifiable and unreasonable.” We note that the failure to involve Devino’s brother in 1 he agreement is also problematic to its enforceability. See Coady v. Martin, 65 Conn. App. 758, 766, 784 A.2d 897 (2001) (“absence of aprovision delineating the percentage of ownership of all of the parties in the company rendered the agreement fatally incomplete”), cert. denied, 259 Conn. 905, 789 A.2d 993 (2002).
We further note that because the court properly concluded that there was not an enforceable agreement to transfer the interest in Industrial Development and that the plaintiff did not prove fraudulent misrepresentation, there is no theory of recovery remaining under which the plaintiff is entitled to receive damages, even if there was sufficient evidence for the court to calculate them with a reasonable degree of certainty.
This commission was in addition to the wages and benefits that the plaintiff earned from Industrial Development and the $10,000 forbearance payment.
Two additional counts against Building Structures, sounding in the doctrine of quantum meruit and a civil action to collect wages, were stricken prior to the hearing.
The court did not address the plaintiffs unjust enrichment claim because it concluded that a valid enforceable contract existed between the parties.
The colloquy between the defendants and the court was as follows: “[The Defendants’ Counsel]: Well, I would object to admissibility, Your Honor, on the grounds that there’s no evidence that — if these are being offered as evidence of the job costs, which I assume is the purpose of the offer, I don’t think he’s laid a proper foundation because he hasn’t shown that they are a complete statement of that. Basically, they could be admitted as far as they go, but there’s no evidence that these are the complete job costs.
“The Court: The court’s convinced, in light of the witness’ testimony, and [the plaintiff], that these records are sufficiently reliable and that the foundations have been sufficiently laid to be admitted as full exhibits under the business record exception [to the hearsay rule], and they’re admitted as full exhibits. Certainly, if you have additional information or documents or testimony regarding their weight, you’ll be free to explore that.”
The court determined that the total contract price for the Bakers project was $715,716 and that the total job costs were $497,094, thereby resulting in a profit to Building' Structures of $218,622. The 10 percent commission the plaintiff was entitled to receive, therefore, was $21,862.