PELLETIER MECHANICAL SERVICES, LLC v. G & W MANAGEMENT, INC.
AC 36993
Appellate Court of Connecticut
January 12, 2016
DiPentima, C. J., and Alvord and Solomon, Js.
Argued September 17, 2015
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(Appeal from Superior Court, judicial district of Litchfield, Danaher, J. [motion to strike]; Trombley, J. [judgment].)
Alexander G. Snyder, for the appellant (defendant).
Brian D. Danforth, for the appellee (plaintiff).
Opinion
DiPENTIMA, C. J. The defendant, G & W Management, Inc., appeals from the judgment of the trial court rendered in favor of the plaintiff, Pelletier Mechanical Services, LLC. On appeal, the defendant claims that the court improperly (1) denied its motion to strike and (2) determined that it was liable, as an agent, for the debt of its principal, Bell Court Condominium Association,
The following facts and procedural history are relevant to this appeal. In late 2009, or early 2010, the parties entered into an oral contract in which the plaintiff, a full-service plumbing, heating and air-conditioning contractor, agreed to perform repairs at various properties managed by the defendant. The defendant would solicit faxed propоsals from the plaintiff for specific tasks, or request repairs at a certain property in the event of an emergency.
From January 26, 2010 to June 18, 2010, the plaintiff provided goods and services at various properties pursuant to requests made by the defendant. The defendant failed to pay the plaintiff, and the outstanding balance owed was $16,462.28. The plaintiff commenced an action against the defendant, alleging that it was entitled to recover the outstanding balance under the following causes of action: breach of contract, quantum meruit, promissory estoppel, and unjust enrichment.
On August 26, 2011, the dеfendant sought to strike the plaintiff’s complaint pursuant to
The court, Trombley, J., held a trial on February 28, 2014. At the outset, the plaintiff withdrew its claims of promissory
With respect to the work done at the Bell Court property, the court rendered judgment in favor of the plaintiff on its breach of contract claim in the amount of $9082.39, plus costs and postjudgment interest pursuant to
I
The defendant first claims that the court improperly denied its motion to strike. Specifically, it arguеs that the court improperly ‘‘failed to conduct any substantive analysis of the defendant’s motion and supporting memorandum . . . .’’ We affirm the judgment denying the motion to strike, albeit for different reasoning than that of the trial court.3
On August 26, 2011, the defendant moved to strike the complaint. The defendant alleged in its motion that the plaintiff had commenced the action against an incorrect party, that the defendant was acting as an agent for several disclosed principals and, thus, was not liable, and that the complaint failed to join any of the principals who would be liable under the alleged contract betwеen the plaintiff and the defendant.4 The accompanying memorandum of law5 did not contain an analysis
On September 12, 2011, the court denied the defendant’s motion. It stated: ‘‘The defendant’s motion relies upon facts not set forth in the complaint. On that basis alone, it must be denied. Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997) (in ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]).’’
‘‘A motion to strike attacks the legal sufficiency of the allegations in a pleading. . . . In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein and to determine whether those facts establish a valid cause of action. . . . Becausе a motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on [a motion to strike] is plenary.’’ (Citation omitted; internal quotation marks omitted.) Kortner v. Martise, 312 Conn. 1, 48–49, 91 A.3d 412 (2014); see also New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).
On appeal, the plaintiff claims, for the first time, that the defendant failed to present any argument or analysis in its motion to strike and accompanying memorandum of law that the property owners were necessary parties to this action. It further contends that the defendant waived this claim and that the property owners were not necessary or indispensable parties to this action. Essentially, the plaintiff has presented an alternative ground for affirming the judgment of the court denying the motion to strike. The plaintiff did not raise this alternative ground before the trial court and did not file a preliminary statement of issues as required under our rules of practice.6 Nevertheless, under the facts and circumstances of this case, we will consider the plaintiff’s alternative ground and affirm the judgment of the court on that basis.
In Vine v. Zoning Board of Appeals, 281 Conn. 553, 568–69, 916 A.2d 5 (2007), our Supreme Court stated: ‘‘We recognize that, ordinarily, an alternate ground for affirmance must be raised in the trial court in order to be considered on appeal. . . . We also have held that, [i]f the alternate issue was not ruled on by the trial court, the issue must be one that the trial court would have been forced to rule in favor of the appellee. Any other test would usurp the trial court’s discretion.’’ (Citation omitted; footnote omitted; internal quotation marks omitted.) Under the circumstances
In State v. Martin M., 143 Conn. App. 140, 151–53, 70 A.3d 135 (2013), cert. denied, 309 Conn. 919, 70 A.3d 41 (2013), this court considered the state’s res judicata claim as an alternative ground for affirming the judgment of the trial court even though it had not been presented to the trial court and was raised for the first time on appeal. We noted that the issue was a pure question of law, the record was adequate for our review, and the defendant was not prejudiced because he had the opportunity to respond in his reply brief. Id., 152–53; see also Bouchard v. Deep River, 155 Conn. App. 490, 496–97, 110 A.3d 484 (2015).
In the present case, the question before us of whether the trial court properly denied the defendant’s motion to strike the plaintiff’s complaint is a question of law. Furthermore, the record is adequate for our review and the defendant is not prejudiced by our consideration because it had the opportunity to file a reply brief.7 Last, the alternative ground for affirming the court’s judgment raised by the plaintiff is closely related to both issues raised by the defendant in its appeal. For these reasons, and in accordance with the appellate precedent, we will consider the plaintiff’s alternative ground for affirming the denial of the defendant’s motion to strike.
On appeal, the defendant argues that the court should have granted its motion to strike because the plaintiff failed to join necessary parties, the property owners. See footnote 1 of this opinion. It relied on subsections (a) (3) and (d) of
‘‘Necessary parties are [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. . . . [B]ut if their interests are separable from those of the parties before the court, so that the court can
The motion to strike and the accompanying memorandum of law did not contain an analysis of why the property owners were absolutely required to be made parties in order to assure a fair and equitable trial, nor did they demonstrate that the presence of the property owners was needed for the court to issue a decree and do complete and final justice. See, e.g., Biro v. Hill, 214 Conn. 1, 7, 570 A.2d 182 (1990). Given these deficiencies in the motion to strike and the mеmorandum of law, we conclude that the judgment of the trial court denying the motion to strike must be affirmed.
II
The defendant next claims that the court improperly rendered judgment in favor of the plaintiff with respect to the claim for breach of contract. Specifically, it argues that the court misapplied the law of agency under the facts and circumstances of this case. We disagree.
At the outset, we set forth the applicable standard of review. ‘‘[T]he scope of our appellate review depends [on] the proper characterization of the rulings made by the trial court. Tо the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.’’ (Internal quotation marks omitted.) Saggese v. Beazley Co. Realtors, 155 Conn. App. 734, 751, 109 A.3d 1043 (2015); Mukon v. Gollnick, 151 Conn. App. 126, 130–31, 92 A.3d 1052 (2014).
The following additional facts are necessary for our analysis. Pelletier testified at trial that he met with representatives from the defendant in late 2009 or early 2010, and then the plaintiff started performing repairs and service work shоrtly thereafter. Pelletier stated that the plaintiff would receive a telephone call from the defendant requesting repairs or service, and once the job was completed, he would send an invoice to the defendant’s office. He also indicated that estimates for jobs would be mailed or faxed to the defendant’s office.8 Pelletier would then receive verbal authorization from the defendant to proceed with the job. Pelletier stated that he ‘‘worked directly’’ with the defendant, rather than the property owner or condominium association. Pelletier never had any direct contact with the property owners or condominium associations, never was told that it was the plaintiff’s responsibility to get payment from them, never was given the names and addresses for them, and never was instructed not to send the invoices to the defendant. In short, the plaintiff addressed the invoices directly to the defendant.
During cross-examination, Pelletier conceded that he knew the defendant was a property management company and not a property owner. The defendant also introduced
‘‘Agency is defined as the fiduciary relationship that arises when one person (a principal) manifests assent to another person (an agent) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act. 1 Restatement (Third), Agency, § 1.01, p. 17 (2006). . . . As a general matter, a principal is liable for the acts of its agent.’’ (Citation omitted; internal quotation marks omitted.) Yale University v. Out of the Box, LLC, 118 Conn. App. 800, 807–808, 990 A.2d 869 (2010); see also McDermott v. Calvary Baptist Church, 263 Conn. 378, 384, 819 A.2d 795 (2003); Rich-Taubman Associates v. Commissioner of Revenue Services, 236 Conn. 613, 619, 674 A.2d 805 (1996).
When dealing with a third party, however, the agent may incur personal liability under certain circumstances. ‘‘It is clearly the law of this state that [i]t is the duty of the agent, if he would avoid personal liability on a contract entered into by him on behalf of his principal, to disclose not only the fact that he is acting in a representative capacity, but also the identity of his principal, as the person dealt with is not bound to inquire whether or not the agent is acting as such for another. . . . If he would avoid personal liability, the duty is on the agent to disclose his principal and not on the party with whom he deals to discоver him.’’ (Citations omitted; emphasis added; internal quotation marks omitted.) Klepp Wood Flooring Corp. v. Butterfield, 176 Conn. 528, 532–33, 409 A.2d 1017 (1979); see also Rich-Taubman Associates v. Commissioner of Revenue Services, supra, 236 Conn. 619; Diamond Match Co. v. Crute, 145 Conn. 277, 279, 141 A.2d 247 (1958); Metro Bulletins Corp. v. Soboleski, 30 Conn. App. 493, 501–502, 620 A.2d 1314 (1993) (Schaller, J., dissenting), cert. granted on other grounds, 225 Conn. 923, 625 A.2d 823 (1993) (appeal withdrawn June 4, 1993); New England Whalers Hockey Club v. Nair, 1 Conn. App. 680, 683, 474 A.2d 810 (1984); see generally 2 Restatement (Third), Agency, Agent for Unidentified Principal § 6.02, p. 28 (2006).
The defendant argues that the court erroneously interpreted and applied the law of agency by requiring the disclosure of more information regarding the principal.9
The flaw in the defendant’s reasoning, however, is that the court never found that the identity of the principal had been disclosed sufficiently to the plaintiff so as to absolve the defendant of liability.11 Absent such a finding, the defendant remains liable to the plaintiff under the law of agency and the facts in this case. Therefore, its claim that the court erred as a matter of law by requiring the defendant to provide more information about the principal must fail.
The issue of whether an agent has disclosed the identity of a principal so as to avoid liability on a contract is a question of fact. Robert T. Reynolds Associates, Inc. v. Asbeck, 23 Conn. App. 247, 253–54, 580 A.2d 533 (1990); see also Murphy v. Dell Corp., supra, 184 Conn. 582–83; Connecticut Limousine Service, Inc. v. Powers, 7 Conn. App. 398, 402, 508 A.2d 836 (1986). The court in the present case did not find that the defendant had disclosed the identity of the principal. On appeal, the defendant has not challenged the factual findings of the trial court.
The court, in its memorandum of decision, relied on our decision in Connecticut Limousine Service, Inc. v. Powers, supra, 7 Conn. App. 401–402, where we stated: ‘‘The law is settled that where an agent contracts in his own name, without disclosing his representative capacity, the agent is personally liable on the contract. . . . To avoid personal liability, it is the duty of an agent to disclose both the fact that he is acting in a representative capacity and the identity of his principal, since the party with whom he deals is not required to discover or make inquiries to discover these facts.’’ (Citations omitted; internal quotation marks omitted.)
The court explained that the defendant did not disclose the identity of the owners of the Bell Court property until three years after the work had been completed and nearly two years after the commencement of the action. It also noted that Gionta, on behalf of the defendant, responded to the plaintiff’s request for payment with a ‘‘terse, confrontational and dismissive’’ letter that did not identify either the name or the location of the principal. Furthermore, the defendant made no attempt to have the plaintiff bill any other entity. Simply put, as stated by the trial court ‘‘[t]he defendant’s claim that the plaintiff was made fully aware of the identity of the responsible entity is not supported by the evidence. When, in May, 2013, the defendant, for the first time, disclosed the location of the association governing [the Bell Court property] and the name of the responsible individual, it was, in light of the cited applicable precedent, too little and too late to absolve the defendant of its own liability to the plaintiff for the eight outstanding invoices. The plaintiff . . . has successfully demonstrated . . . that the defendant is legally responsible for the payment of said invoices.’’
To the extent that the defendant’s appellate brief can be read to challenge the court’s factual finding that it had failed to disclose the identity of the principal to the plaintiff, we are not persuaded. As our appellate courts have observed repeatedly, it is the sole function of the trial court to weigh the evidence and judge the credibility of the witnesses. Connecticut Limousine Service, Inc. v. Powers, supra, 7 Conn. App. 402–403; see also Murphy v. Dell Corp., supra, 184 Conn. 583; New England Whalers Hockey Club v. Nair, supra, 1 Conn. App. 684. The court’s finding was not clearly erroneous.
We also reject the defendant’s argument that the checks used to pay the plaintiff provided sufficient notice of the principal’s identity because they were drawn on Bell Court’s account. As our Supreme Court has observed: ‘‘It is the defendant’s contention that the payment by corporate checks was sufficient notice to the plaintiff that the materials were purchased on behаlf of the [principal] and that the defendant is not personally liable. To this we cannot agree. The defendant made no attempt to have the plaintiff charge or bill the [principal] instead of himself. He admitted that he was fully aware that all the invoices and bill were made out to him and yet he made no protest until after financial difficulties arose and the plaintiff had instituted suit against him . . . .’’ Diamond Match Co. v. Crute, supra, 145 Conn. 278–79; see also Connecticut Limousine Service, Inc. v. Powers, supra, 7 Conn. App. 402 (payment by corporate check insufficient to exempt agent from personal liability); Antinozzi Associates v. Arch Fracker Plumbing & Heating Contractor, Inc., 39 Conn. Supp. 375, 379, 465 A.2d 333 (1983) (same).
The court’s factual finding that the defendant did not sustain its burden of disclosing the identity of the principal to the plaintiff to avoid liability for the subject
The judgment is affirmed.
In this opinion the other judges concurred.