SEAN O‘KANE A.I.A. ARCHITECT, P.C. v. GORAN PULJIC ET AL.
(AC 35245)
Appellate Court of Connecticut
Argued October 28, 2013—officially released March 18, 2014
148 Conn. App. 728
Beach, Sheldon and Keller, Js.
physical force, such as assault, threatening or unlawful restraint, if and to the extent that his proven use of force was not justified under
For the foregoing reasons I agree that the defendant‘s conviction of attempted robbery in the first degree must be reversed and that this case must be remanded with direction to render judgment of acquittal on that charge.
Argued October 28, 2013—officially released March 18, 2014
Michael V. Pepe, with whom were Justin Garcia and, on the brief, Raymond A. Garcia, for the appellees (defendants).
Opinion
BEACH, J. The plaintiff, Sean O‘Kane A.I.A. Architect, P.C.,1 appeals from the judgment of the trial court in favor of the defendants, Goran Puljic and Melinda Puljic. The plaintiff claims that the court erred in (1) concluding that his breach of contract claim was barred by the statute of limitations; (2) finding that the parties did not enter into a “standstill” agreement, thus tolling the statute of limitations; and (3) concluding that the count of his complaint alleging unjust enrichment was barred by the doctrine of laches. We affirm in part and reverse in part the judgment of the trial court.
The action was commenced by service of process on June 29, 2010. The plaintiff later filed an amended complaint alleging (1) breach of contract for failure to pay for architectural services, and (2) unjust enrichment. By way of special defenses, the defendants alleged that the breach of contract claim was barred by the applicable statute of limitations,
The parties entered into a stipulation agreeing to bifurcate the trial, under which
The following facts were found by the trial court. In December, 2000, the plaintiff and Melinda Puljic executed a contract for architectural services (contract). The contract was addressed to: “Mr. & Mrs. G. Puljic.” Both defendants were the owners of a house in Darien. Pursuant to the contract, the plaintiff was to perform restoration and alteration work on “two adjacent houses built almost 200 years ago, improved with additions and alterations joining the two houses into one building.” On October 10, 2001, both defendants and E. M. Rose Builders, Inc. (Rose), entered into a construction contract (construction contract) pursuant to which Rose commenced work. The plaintiff was not a party to the construction contract. The goal of the project was to complete the house by December, 2002.
The plaintiff submitted twenty-three serially numbered invoices to the defendants for architectural services. The defendants paid invoices one through seventeen, but failed to pay invoices eighteen through twenty-three. The total of the unpaid invoices was $92,201.35, which the plaintiff claimed in damages in his complaint. The unpaid invoices were for work allegedly done during the period from July through December, 2002. No invoices were submitted into evidence for architectural services rendered after December 31, 2002, and there was no testimony that any such invoices were prepared. All invoices were addressed and billed to both defendants.
The court found that the breach of contract claim was barred by
I
The plaintiff first claims that the court erred in concluding that the breach of contract claim was barred by the six year statute of limitations set forth in
Several doctrines tolling the statutes of limitations have emerged for policy reasons. The continuing course of conduct doctrine, the continuous treatment doctrine, and the continuous representation doctrine present similar solutions to similar problems. The plaintiff argues that this case is appropriately subject to the continuous representation doctrine. That doctrine, however, has been applied thus far only to contexts involving attorneys, where ethical considerations inform the preference to delay accrual, from the time of the act or omission complained of until the attorney‘s representation has ended. “[O]ur Supreme Court [in DeLeo v. Nusbaum, 263 Conn. 588, 596-97, 821 A.2d 744 (2003)] adopted a modified continuous representation doctrine for cases of alleged legal malpractice during litigation, tollling the statute of limitations contained in
Although he seeks to benefit from the doctrine he labels the “continuous representation doctrine,” the plaintiff relies on cases that, strictly speaking, do not involve continuous representation, but rather hold that, in some instances, bills are not due and owing until after the job for which they were incurred is complete. These cases are more apt, yet are ultimately unavailing.
In Gaylord Hospital v. Massaro, 5 Conn. App. 465, 466, 499 A.2d 1162 (1985), the plaintiff hospital provided services to the defendant‘s spouse pursuant to a contract signed by the plaintiff. The action for payment was brought more than six years after the patient was hospitalized but less than six years after the patient was released. Id. This court held that because the finder of fact determined that the contract contemplated a continuous, indivisible course of treatment, the action did not accrue until the completion of treatment, and thus was not barred. Id., 469. The court expressly stated: “In an action for breach of contract, the cause of action is complete upon the occurrence of the breach, that is, when the injury has been inflicted. . . . Where services are continuously rendered over an extended period of time under an express or implied contract which does not fix the term of employment nor the time when compensation shall be payable, many courts have regarded the contract as an entire one, raising an implied condition that the compensation shall not be due until the termination of the service, so that the statute of limitations will not begin to run against the claim for compensation until the employment is ended.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 467-68.4
In the
Further, even if the contractual expectation of continuous performance, as described in Gaylord Hospital, were read by implication into the contract, relief would be thwarted by the court‘s findings that the plaintiff‘s services were complete by and the contract was terminated no later than February 3, 2003. The findings are not clearly erroneous. See Miller v. Guimaraes, 78 Conn. App. 760, 766-67, 829 A.2d 422 (2003) (“With regard to the trial court‘s factual findings, the clearly erroneous standard of review is appropriate. . . . A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” [Internal quotation marks omitted.]). The “scope of work” section of the contract7 did not specifically provide that the plaintiff would assist the defendants in obtaining a certificate of occupancy. On cross-examination, the plaintiff admitted that the tasks detailed in the “scope of work” section of the contract were completed by the end of 2002. No invoices were submitted for architectural services rendered after December 31, 2002. From the fact that the defendants did not hire another architect, the court could have inferred that the architectural services were completed. Further, Goran Puljic stated to the plaintiff in January or February, 2003, that “I have paid you enough,” and wrote in a January, 2003 e-mail to the plaintiff that “I don‘t think we need anything from you right now.” From this evidence, it was not clearly erroneous for the court to determine that the contract was terminated in February, 2003. For the foregoing reasons, we conclude that the continuous representation doctrine or similar principles do not apply in
II
The plaintiff next claims that the court erred in determining that the parties did not enter into a “standstill” agreement, under which the plaintiff agreed not to bring an action against the defendants until the conclusion of a dispute between the defendants and their contractor, Rose. As a result, the plaintiff argues, the statute of limitations was tolled until the resolution of the dispute in January, 2007. We disagree.
The record reveals that the defendants had filed a counterclaim alleging, in part, that “the plaintiff and the defendants agreed that they would not bring claims against one another related to the project until after the litigation between defendants and their contractor was resolved.” That allegation was later withdrawn and an amended counterclaim was filed. This withdrawn pleading, and the plaintiff‘s cursory agreement with it at trial, constitute the sole evidentiary support for the plaintiff‘s claim. The court found that such an agreement had not been made.
The court found that Rose called the plaintiff, on April 27 and June 6, 2005, as a witness in its arbitration hearing involving the defendants. The arbitration proceeding was resolved in January, 2007, in Rose‘s favor. The court did not agree with the plaintiff‘s argument that the defendants were bound by a judicial admission in their counterclaim that a standstill agreement had been entered into. The court concluded that because the defendants withdrew the pleading in which the statement appeared, the statement was no longer a binding judicial admission, but rather had become an evidential admission that could be explained or denied at trial.9 The court found that the plaintiff offered no credible evidence of a standstill agreement. The court noted that the entirety of the evidence of a standstill agreement was, in essence, a withdrawn pleading and the plaintiff‘s affirmative answer when asked at trial if he agreed with the allegations of the defendants’ counterclaim pertaining to the existence of a standstill agreement. No documentary evidence was offered in support of this claim.
The plaintiff argues that the court ignored the defendants’ evidence. The court found credible the testimony of Goran Puljic that he never entered into a standstill agreement with the plaintiff, and found the plaintiff‘s testimony regarding the existence of a standstill agreement not to be credible. It was within the province of the trial court to determine credibility, and it did not err in so doing. “The sifting and weighing of evidence is peculiarly the
III
The plaintiff last claims that the court erred in concluding that the count of his complaint alleging unjust enrichment was barred by the doctrine of laches. We remand the case for resolution of the issue of laches by the trial court.
“The equitable remedy of unjust enrichment may be invoked when justice requires that a party be compensated for . . . services rendered under a contract, and no [legal] remedy is available by an action on the contract. . . . As an equitable right, unjust enrichment is based on the principle that in a given situation, it is contrary to equity and good conscience for the defendant to retain a benefit [that] has come to him at the expense of the plaintiff. . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Citation omitted; internal quotation marks omitted.) Nation Electrical Contracting, LLC v. St. Dimitrie Romanian Orthodox Church, 144 Conn. App. 808, 815, 74 A.3d 474 (2013).
“[T]he defense of laches does not apply unless there is an unreasonable, inexcusable, and prejudicial delay in bringing suit. . . . Delay alone is not sufficient to bar a right; the delay in bringing suit must be unduly prejudicial.” (Citations omitted; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 88, 527 A.2d 230 (1987). “Whether the defense of laches was applicable to [an] action . . . is a question of law. When there is a question of law, our review of the court‘s decision is plenary.” Florian v. Lenge, 91 Conn. App. 268, 281, 880 A.2d 985 (2005). Laches may be available as a defense to an equitable cause of action, whereas the statute of limitations is applicable to legal causes. Id., 281-82.
The court found that the seven and one-half year delay in bringing the action was prejudicial to the defendants.10 The court reasoned that the plaintiff sought $92,201.35 in damages, a 1.5 percent monthly service charge as provided for in the contract, plus interest. The court assumed that the service charge would commence on the date of the last bill, February 3, 2003, and concluded that the defendants potentially were facing a monetary claim in excess of $255,213.29. The court computed the potential harm in delay by reference to damages provided for in the contract.
The plaintiff contends that he properly claimed unjust enrichment as to Goran Puljic because he was not a party to the contract, but as joint owner of the house in Darien, he benefited from the plaintiff‘s architectural services and did not pay for all of the services; he thus was unjustly enriched. He argues that the court erred in applying contract provisions in its assessment of the prejudice necessary for
The plaintiff‘s claim regarding laches depends, in part, on whether Goran Puljic was a party to the contract. If he was a party to the contract, then a claim for unjust enrichment as to him would not be appropriate. See Feng v. Dart Hill Realty, Inc., 26 Conn. App. 380, 383, 601 A.2d 547 (“[p]roof of a contract enforceable at law precludes the equitable remedy of unjust enrichment“), cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). If, however, Goran Puljic was not a party to the contract, then the plaintiff could appropriately claim unjust enrichment as to him. The court apparently found it unnecessary to decide whether Goran Puljic was a party to the contract, because it found that the defense of laches barred the claim in any event. We note, however, that the court applied an incorrect standard regarding the prejudice component of laches. Damages can be assessed pursuant to an unjust enrichment claim only when no contractual relief is available. The potential assessment of contractually mandated damages, then, cannot constitute prejudice for the purpose of laches as a defense to unjust enrichment.
Whether Goran Puljic‘s signature was required in this case to form an enforceable contract between him and the plaintiff or whether a contract existed between him and the plaintiff regardless of the lack of his signature, are questions of fact to be decided by the trial court. See, e.g., Schwarzschild v. Martin, 191 Conn. 316, 321-22, 464 A.2d 774 (1983) (“[i]n the absence of a statute requiring a signature . . . parties may become bound by the terms of a contract, even though they do not sign it, where their assent is otherwise indicated” [internal quotation marks omitted]); MD Drilling & Blasting, Inc. v. MLS Construction, LLC, 93 Conn. App. 451, 454, 889 A.2d 850 (2006) (existence of contract question of fact to be determined by trier of fact).
Accordingly, we remand the case to the trial court for a determination of whether Goran Puljic was a party to the contract. If the court finds that he was not a party, then the trial court must determine whether the defendants’ special defense of laches bars the unjust enrichment claim against him. If, on the other hand, the court finds that he was a party to the contract, then the court must render judgment in his favor on that claim under the statute of limitations.
The judgment is reversed with respect to the unjust enrichment count of the complaint and the case is remanded for further proceedings in accordance with the preceding paragraph. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
The defendants, citing Practice Book § 10-57, argue that the continuous representation doctrine must be affirmatively pleaded in avoidance of the defendants’ special defense of the statute of limitations. Section 10-57 provides in relevant part: “Matter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply.” The plaintiff argues that § 10-57 does not apply because “[a] plaintiff is required to affirmatively plead claims in avoidance of the statute of limitations such as facts evidencing a tolling of the statute of limitations. . . . However, the continuous representation doctrine is not a tolling doctrine . . . [it] merely determines the accrual of the right of action and does not suspend or toll an action that has already accrued.” (Citation omitted.)
We do not necessarily agree. The plaintiff‘s stance is premised on the proposition that “tolling” must be an interruption within the prescribed period, rather than a delay at the outset. Our case law, however, rather clearly refers to tolling as also encompassing a delay in accrual of the cause of action. See DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744 (2003); see also 51 Am. Jur. 2d 546, Limitation of Actions § 148 (2000). The continuous representation doctrine tolls the accrual of the cause of action, essentially deferring it until representation has ended, despite the fact that the actionable injury or harm may have already occurred. See, e.g., DeLeo v. Nusbaum, supra, 588, 596-97 (describing continuous representation doctrine as “tolling” statute of limitations).