89 Conn. App. 336 | Conn. App. Ct. | 2005
Opinion
The defendant Gary R. Towler
The following facts as found by the court and set forth in its memorandum of decision filed April 19,2004, are relevant to our disposition of the defendant’s claims on appeal. The plaintiff is a commercial printing company in North Haven that prints magazines, brochures and flyers. Martin D. Santacroce is the plaintiffs president and owner. In December, 2001, a representative of the plaintiff began negotiations with representatives of Abbey, Inc. (Abbey), concerning the printing of a magazine known as “Pub Links Golfer Magazine” (magazine), which is distributed nationally. Abbey publishes the magazine six times per year. The defendant is the president of Abbey, and H. James Kuhe was its treasurer and vice president of finance. Andres J. Sone was the publisher of the magazine. All were sophisticated businessmen at all times relevant to this action.
In late 2001, representatives of the plaintiff and Abbey began negotiating what the parties intended would be a long-term business relationship. The parties understood that the plaintiff would print six bimonthly issues of the magazine. In December, 2001, the plaintiff submitted a proposal for printing expenses to Abbey, and Abbey completed one of the plaintiffs credit applications on December 20, 2001. The court specifically found that
The plaintiff printed the January-February, 2002 issue of the magazine, and in an invoice dated January 31, 2002, billed Abbey $44,459.90 for the printing expenses. Abbey failed to pay that charge within the allowed forty-five day grace period. The plaintiff incurred substantial costs in printing the magazine. Santacroce became concerned that payment was not forthcoming from Abbey because it was a financial burden for the plaintiff, and it was contrary to the expected success of an ongoing, mutually beneficial business relationship. After issuing the January 31, 2002 invoice, the plaintiff began to print the March-April, 2002 issue of the magazine, for which the plaintiff sent Abbey an invoice, dated March 31, 2002, in the amount of $79,932 for the cost of printing that issue. As of March 31, 2002, Abbey had not paid for the printing cost of the January-February, 2002 issue of the magazine, which compounded the ongoing detrimental financial impact on the plaintiff.
On April 5, 2002, after Santacroce requested that the defendant and H. James Kuhe personally guarantee past and future printing expenses, the defendant executed a document entitled “Guaranty Agreement.”
On April 12, 2002, the plaintiff received a check from Abbey in the amount of $44,894.90 for payment of the January-February, 2002 issue of the magazine. On May 27, 2002, Kuhe, on behalf of Abbey, executed a check in the amount of $79,932 as payment for the March-April, 2002 issue of the magazine. There were insufficient funds in Abbey’s account to cover the amount of the check. The outstanding debt was $79,932.
Trial occurred in two phases, the first part taking place on September 10, 2003, and the second part on March 29, 2004. During the first phase of the trial, the parties stipulated to a judgment in favor of the plaintiff against Abbey in the amount of $79,932. On that same day, the plaintiff introduced evidence in support of its claim against the defendant on the issue of the personal guarantee. The parties were ordered to file posttrial briefs by October 15, 2003.
On February 20, 2004, the court issued the following order: “The plaintiff is ordered to file a second amended complaint no later than March 1, 2004, which conforms to the evidence presented at trial .... The amended complaint filed on October 16, 2003, fails to allege the execution of [the] personal [guarantee] from [the defendant] for debts incurred by [Abbey].” On March 1, 2004,
On April 19, 2004, the court rendered judgment in favor of the plaintiff in the amount of $79,932 plus costs. This appeal followed. Additional facts will be set forth as necessary.
I
COURT’S ORDER REGARDING THE PLAINTIFF’S SECOND AMENDED COMPLAINT
The defendant first claims that the court improperly ordered the plaintiff to file its second amended complaint to conform to the evidence adduced at trial and, therefore, improperly granted the plaintiff relief on a cause of action that had not been raised in its previous pleadings. Practice Book § 10-60 (a)
In this case, the plaintiff filed its second amended complaint on March 1, 2004, pursuant to an order by the court at the specific request of the defendant, which request was made in open court. On September 10, 2003, the following exchange took place at trial:
“[The Defendant’s Counsel]: Your Honor, if I may address the court. I would ask that the plaintiff, if [it is] going to proceed on the guarantor aspect, amend [its] pleadings to conform to the proof today. Because there is not present in the complaint, [it] is naming [the defendant] as a principal, rather than as a guarantor.
“[The Plaintiffs Counsel]: Yes, Your Honor, we can do that.
“The Court: Sure.”
It cannot be disputed seriously that the defendant had notice, prior to the first phase of the trial, which occurred on September 10, 2003, that the plaintiff sought relief on the basis of the personal guarantee that is the subject of this appeal. First, the original answer and special defense filed by the defendant, H. James Kuhe and Abbey on March 5, 2003, provides: “If the [defendant] and H. James Kuhe ever made, executed, signed and delivered any personal guarantees in favor of the [p]laintiff, said personal guarantees . . . were made, executed, signed and delivered without consideration on [the] [p]laintiff s part, and the [defendant] and H. James Kuhe owe [the] [p]laintiff nothing.” Second, on September 10, 2003, before the plaintiff began its case, the defendant requested that the plaintiff file an amended complaint to conform to the proof concerning the personal guarantee that would be offered that day. Finally, the defendant introduced evidence in support of his theory that the personal guarantee he executed was unenforceable insofar as it was not supported by consideration and was executed under duress.
II
GUARANTEE AGREEMENT
We next address the defendant’s claim that the court improperly concluded that the personal guarantee exe
We start by setting forth the applicable legal principles and standard of review. “It almost goes without saying that consideration is [t]hat which is bargained-for by the promisor and given in exchange for the promise by the promisee .... We also note that [t]he doctrine of consideration does not require or imply an equal exchange between the contracting parties. . . . Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made. . . . Whether an agreement is supported by consideration is a factual inquiry reserved for the trier of fact and subject to review under the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) Benedetto v. Wanat, 79 Conn. App. 139, 150, 829 A.2d 901 (2003). “A promise to be surety for the performance of a contractual obligation, made to the obligee, is binding if (a) the promise is in writing and signed by the promisor and recites a purported consideration; or . . . (c) the promisor should reasonably expect the promise to induce action or forbearance of a substantial character on the part of the promisee or a third person, and the promise does induce such action or forbearance.” 1 Restatement (Second), Contracts § 88 (1981).
The defendant disputes the court’s factual findings, asserting that “[t]here was, quite plainly put . . . absolutely no evidence offered to support the court’s conclusion that future credit was to be extended.” Our review of the record reveals that the evidence offered demonstrates, unequivocally, that at the time the personal guarantee agreement was executed, Abbey had not paid the amounts due for the January-February, 2002 issue of the magazine, nor had it paid the amount due for the March-April, 2002 issue for which Abbey had received an invoice that showed the cost of the March-April issue to be $79,932. Furthermore, ample support existed for the court to find that the parties had contemplated that the plaintiff would publish six bimonthly issues of the magazine.
“It is within the province of the trial court, when sitting as the fact finder, to weigh the evidence pre
The judgment is affirmed.
In this opinion the other judges concurred.
Two other individuals, Andres J. Sone and H. James Kuhe, and a corporation, Abbey, Inc., also were named as defendants. During the pendency of this case, Sone and H. James Kuhe died. Rachel Kuhe, the administratrix of the estate of H. James Kuhe, was substituted as a defendant. On May 27,
On April 8, 2002, H. James Kuhe executed a similar document.
On October 8, 2003, the defendant filed a motion for an extension of time to file his memorandum, which the court granted without objection by the plaintiff. Our review of the record indicates that the defendant never filed his posttrial brief as ordered by the court.
Practice Book § 10-60 (a) provides: “Except as provided in Section 10-66, a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following maimer:
“(1) By order of judicial authority; or
“(2) By written consent of the adverse party; or
“(3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10-12 through 10-17, and with proof of service endorsed thereon. If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party. If an opposing party shall have objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall, after service upon each party as provided by Sections 10-12 through 10-17 and with proof of
Practice Book § 10-66 relates to amendments concerning a party’s statement of the amount of demand and is not relevant here.
On the basis of the original special defense filed on March 5, 2003, the defendant had full notice that the plaintiff intended to seek relief on the basis of, inter alia, the personal guarantee executed by the defendant. As such, the defendant had a full year to prepare and to mount a defense
Our Supreme Court has favorably cited § 88 of the Restatement (Second) of Contracts. See Connecticut Bank & Trust Co. v. Wilcox, 201 Conn. 570, 576, 518 A.2d 928 (1986); see also Superior Wire & Paper Products, Ltd. v. Talcott Tool & Machine, Inc., 184 Conn. 10, 20, 441 A.2d 43 (1981) (citing Restatement [Second], Contracts § 89C [Tent. Ed. 1973]).
On direct examination, Santacroce testified as follows:
“[The Plaintiff’s Counsel]: Okay. And teE the court what the nature of the relationship was between [the plaintiff] and [Abbey].
“[The Witness]: We, we were approached by our salesman and a prep house caEed Gamma One [that] was doing the film work for the [magazine], indicating to us that [Abbey] wanted to, wanted a printer that was closer to the, where the prep was being produced, so that they could see everything when they came down close by. We were told that [the magazine] was for the pubBc golf courses and that it was being produced every two months. So, it would be six issues. . . .
“[The Witness]: That’s correct.
“[The Plaintiffs Counsel]: Okay. And in order to do so, did you quote a certain price for these publications of these magazines on an ongoing basis?
“[The Witness]: Yes. Because they had to go to various locations, they were all drop shipments all over the country, good part of the country, we had to come up with a per piece price. And that’s what we did.”
In connection with the plaintiffs request that the defendant execute the personal guarantee, Santacroce testified as follows:
“[The Plaintiffs Counsel]: Were the terms of the agreement between [the plaintiff] and [Abbey] that [it was] to pay invoices on a term of forty-five days?
“[The Witness]: It was supposed to be between thirty and forty-five days, before the next issue was to be sent out.
“[The Plaintiffs Counsel]: Did [Abbey] pay the invoice [for the JanuaryFebmary, 2002 issue] within thirty to forty-five days of you sending out the invoice to [it]?
“[The Witness]: No.
“[The Plaintiffs Counsel]: Okay. Now, after sending out the invoice . . . did you begin the process of the printing of the next issue that was going to be published?
“[The Witness]: Yes. . . .
“[The Plaintiffs Counsel]: And you did not receive payment on the first issue before you began the process of the second issue?
“[The Witness]: That’s correct. . . .
“[The Plaintiff’s Counsel]: All right. As a result of that, did something happen, did you request something?
“[The Witness]: We requested that since we were going to be in a long-term relationship, we were supposed to do this every, like I said, six issues a year, that we wanted some guarantee that once we got involved with these carryovers, that we wouldn’t be left out because we were paying for not only the paper and the manufacturing of it, but also the perfect binding, which is an outside function.
“[The Plaintiffs Counsel]: So, as a result of that did you request from the principals of Abbey . . . personal guarantees?
“[The Witness]: That’s correct.”