WATSON REAL ESTATE, LLC v. WOODLAND RIDGE, LLC, ET AL.
(AC 40450)
Appellate Court of Connecticut
Argued September 26, 2018—officially released January 22, 2019
Alvord, Moll and Bear, Js.
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Syllabus
The plaintiff sought to recover damages from the defendants for, inter alia, breach of contract. K, a member of the plaintiff, had purchased a lot in a residential subdivision owned by the defendant W Co. In connection therewith, the parties entered into an escrow agreement to cover the costs of, inter alia, the paving of a common driveway to the subdivision. Pursuant to the agreement, W Co. was required to complete the common driveway to the point at which it became an individual driveway for each lot, but was not to put the final layer of pavement on the common driveway until construction of all four houses was complete, as indicated by the issuance of a certificate of occupancy, or five years from the date of the agreement, whichever occurred first. The agreement provided a procedure by which the plaintiff could contract with a third party to complete the work and seek reimbursement from the escrow funds if W Co. failed to complete the work in a timely manner. After the construction of K‘s home was completed, K contracted and paid a third party to pave the portion of the common driveway that connected to K‘s individual driveway in order to obtain a certificate of occupancy, and K also paid an unpaid bill incurred by an agent for W Co. related to an easement map for the common driveway. Thereafter, W Co. contracted to have a third party pave the final portion of the common driveway but did not have a second final layer of pavement installed, which K believed was required under the escrow agreement. The plaintiff never submitted invoices to be reimbursed for the costs it expended in extending the common driveway to the entrance of its property and settling the invoice for the easement map, as required under the escrow agreement, and it, thus, was never reimbursed for those expenditures. The plaintiff subsequently brought this action, claiming, inter alia, that W Co. breached the agreement by failing to install a second, final layer of pavement over the common driveway. The trial court rendered judgment in favor of W Co. and determined that because there was no meeting of the minds as to the specifics of the common driveway, the plaintiff failed to sustain its burden in proving its breach of contract claim. Thereafter, the court denied the plaintiff‘s request for leave to amend its revised complaint to add a new count of unjust enrichment, and the plaintiff appealed to this court. Held:
- The plaintiff could not prevail on its claim that the trial court improperly failed to find that there was a meeting of the minds between the parties as to the number of layers of pavement to be applied to the common driveway, which was based on its claim that the trial court should have drawn an adverse inference against W Co. for its failure to call a certain witness to rebut certain parol evidence presented by the plaintiff; even if the fact finder could properly draw an adverse inference from a party‘s failure to call an available witness, it is not required to do so, as the drawing of an adverse inference is permissive rather than mandatory, and, therefore, the trial court‘s failure to draw such an inference in the present case was not improper as a matter of law.
- The plaintiff‘s claim that the trial court improperly failed to find that W Co. breached the escrow agreement by not reimbursing the plaintiff for the costs it had incurred was not reviewable; although the plaintiff correctly asserted that there was undisputed evidence presented at trial establishing that the plaintiff had incurred costs to have the common driveway extended and to settle the invoice for the easement map, the plaintiff did not allege in the revised complaint or at trial that W Co. was contractually required to reimburse the plaintiff for those costs, and it, thus, could not now attempt to recover those sums on appeal by refashioning its request for damages as an independent breach of contract claim that was neither alleged in the complaint nor actually litigated at trial.
- The plaintiff could not prevail on its claim that the trial court improperly denied its request for leave to amend its revised complaint to add a claim of unjust enrichment related to W Co.‘s failure to reimburse the plaintiff for the costs of extending the common driveway and settling the invoice for the easement map; although the record did not reflect the court‘s reasoning in denying the plaintiff‘s request for leave to amend its revised complaint, the court nevertheless acted within its discretion in denying the request, as the plaintiff did not seek to amend the complaint until well after the trial had ended and almost four months after the court had rendered its judgment.
Argued September 26, 2018—officially released January 22, 2019
Procedural History
Action to recover damages for, inter alia, alleged breach of contract, brought to the Superior Court in the judicial district of Hartford, where the defendant Peter J. Alter filed a counterclaim and cross claim; thereafter, the court, Elgo, J., granted the motion for partial summary judgment filed by the named defendant et al. and rendered judgment in part thereon; subsequently, the defendant Leonard Bourbeau was defaulted for failure to plead; thereafter, the matter was tried to the court, Dubay, J.; judgment in part for the named defendant; subsequently, the court, Dubay, J., granted the plaintiff‘s motion to reargue, but denied the relief requested therein, and sustained the named defendant‘s objection to the plaintiff‘s request for leave to amend the revised complaint, and the plaintiff appealed to this court. Affirmed.
Frank A. Leone, for the appellee (named defendant).
Opinion
BEAR, J.
The following facts, which either were found by the trial court or are undisputed in the record, and procedural history are relevant to this appeal. The defendant was the owner and developer of a four lot residential subdivision located on the westerly side of Woodland Street in Glastonbury. The subdivision consists of two front lots abutting Woodland Street (lots 1 and 2) and two rear lots abutting the western boundaries of the front lots (lots 3 and 4). A common driveway providing ingress and egress to the subdivision runs west from Woodland Street past the entrances to lots 1 and 2 and terminates at the entrances to the rear lots.
In May, 2006, H. Kirk Watson, a member of the plaintiff,4 entered into an agreement with the defendant for the purchase of lot 1. At the time of the execution of the purchase agreement, the common driveway had been paved only from Woodland Street to a point 118 feet before the entrance to lot 1; the remainder of the driveway, including the portion passing along the entrance to lot 1, remained unpaved. Consequently, Watson, in his capacity as a member of the plaintiff, entered into an agreement with the defendant and Attorney Peter J. Alter to create an escrow fund from a portion of the defendant‘s proceeds from the sale of lot 1 to
The particular items that remained to be completed were set forth in a punch list that was attached to the escrow agreement as exhibit A. Pursuant to exhibit A, the defendant was required to “complete the common driveway to the point at which it becomes an individual driveway for each approved lot,” but the defendant was not to “put the final course of bituminous pavement on the common driveway until construction of all four houses [was] complete (as indicated by the issuance of a certificate of occupancy), or five (5) years from the date of [the escrow agreement], whichever shall first occur.” The stated rationale for this delay was to “avoid damage to the final pavement as may be caused by heavy construction vehicles using the driveway during home construction.” As Watson later testified at trial, at the time he executed the escrow agreement, he believed that this language required the defendant to initially extend the existing layer of pavement along the remainder of the driveway and, then, at the appropriate time, install a second layer of pavement over the entire length of the driveway. Per exhibit A, the defendant was also required to install a common electric power service from which each lot could secure individual service.
Because the parties recognized that the work needed to be completed before the plaintiff could secure a building permit and a certificate of occupancy, the escrow agreement provided for a procedure by which the plaintiff could contract with a third party to complete the work and seek reimbursement from Alter out of the escrow funds if the defendant failed to complete the work in a timely manner. Pursuant to this procedure, the plaintiff was to give written notice to the defendant that the plaintiff‘s construction project required that the work be completed within a reasonable time. If the defendant subsequently failed to complete the work within thirty days, the plaintiff was then authorized to contract for the completion of the work, and, “upon submission of an invoice or contract for performance from a third party contractor, [Alter] shall advance the funds from the escrow agreement to satisfy the invoice or contract provisions.”
Upon the closing of the transaction, Watson took title to the property in the name of the plaintiff and began developing the property. Between the time of closing and the completion of the plaintiff‘s house, no additional paving of the common driveway was done. Watson was told by the town, however, that in order to obtain a certificate of occupancy, the paved portion of the common driveway needed to be extended to the entrance of the plaintiff‘s property. Consequently, in 2008, Watson contracted with a third party to pave this portion of the common driveway at a cost of $4914, which Watson paid. The remainder of the driveway, however, remained a dirt road. Watson also paid $530.70 to Megson & Heagle Civil Engineers & Land Surveyors, LLC (Megson & Heagle), to satisfy an unpaid bill incurred by Daniel Zak, an agent for the defendant, in connection with the preparation of a Connecticut Light and Power Company easement map (easement map) for the common driveway.5
The plaintiff commenced the present action in March, 2013. In count two of the operative, revised complaint—the only count at issue in this appeal6—the plaintiff alleged, inter alia, that the defendant breached the escrow agreement by improperly seeking the release of escrow funds.7 The plaintiff further alleged that, as a result, it sustained damages, including the costs to complete the work that the defendant had failed to perform.8 The matter
At trial, the plaintiff appeared to abandon its claim that the defendant improperly sought the release of the escrow funds. The plaintiff, instead, proceeded under a theory that the defendant breached the escrow agreement by failing to install a second, final layer of pavement over the common driveway.9 The principal issue at trial was whether the defendant‘s obligation under the agreement to install a “final course of bituminous pavement” was intended to require the defendant to apply two layers of pavement. On this issue the parties presented contradictory evidence.
In its case-in-chief, the plaintiff presented parol evidence that, according to the plaintiff, tended to show that the parties had intended that the defendant be required to install two layers of pavement. Specifically, the plaintiff elicited the testimony of Watson, who testified that, prior to entering into the purchase agreement for lot 1, he and Zak had discussed the issue of the completion of the common driveway, and Zak had represented that there would be a “first paving and a second paving.” Watson testified that he understood Zak‘s comments to mean that there would first be an “initial layer” of pavement sufficient for use during the construction of houses in the subdivision and that this would eventually be followed by a “final layer” of pavement. According to Watson, the escrow agreement was meant to memorialize this understanding.
As additional support for its position, the plaintiff elicited the testimony of Kevin Burton, the owner of one of the other lots in the subdivision, as well as the testimony of Roger Tabshey, the co-owner of the paving company with which the plaintiff had contracted to extend the common driveway. Burton testified that he purchased lot 2 from the defendant in late 2007 or early 2008 and that he likewise spoke with Zak prior to the purchase. According to Burton, Zak had represented that the entire common driveway would be completed as part of the development and that the “finish point” would be the second coat of the driveway. Tabshey testified that, in building a common driveway within a subdivision, it is common practice to install an initial layer of asphalt and then, after most of the home construction is complete, apply a second, final layer.
In its case-in-chief, the defendant adduced evidence that, according to the defendant, tended to show that the parties had intended for the defendant to install only one layer of pavement. Specifically, the defendant elicited testimony from Alter, who had represented the defendant in connection with the sale of lot 1 and had negotiated the terms of the escrow agreement with the plaintiff‘s attorney, Nicholas Paindiris. Alter testified that he and Attorney Paindiris had arrived at the $51,000 figure, in part, from a written proposal from R & J Paving to “extend [the] common driveway from [the] existing pavement to [the] edge of [the driveway for] [1]ot #4.” Alter further testified that he had faxed a copy of this proposal to Attorney
In addition to the contradictory evidence of the parties’ intent concerning the completion of the common driveway, the parties also presented contradictory evidence as to which of the two versions of the escrow agreement admitted at trial represented the complete agreement. The two versions differ in several respects, but the most important difference is that the defendant‘s version incorporates the R & J Paving proposal as an attachment.10 Alter testified that the version of the agreement submitted by the defendant represented the full agreement. Watson, however, testified that the version of the agreement submitted by the plaintiff, which contains no such attachment, was the version that he had executed and represented the complete agreement.
In its memorandum of decision issued on January 10, 2017, the court found that the amount of the escrow fund had been agreed on by the parties’ attorneys and had been determined, in part, by the R & J Paving proposal. The court did not, however, make a determination as to whether this proposal had, in fact, been incorporated into the parties’ escrow agreement. Rather, the court found that “[u]nless the R & J Paving proposal was part of the [e]scrow [a]greement as claimed by the [d]efendant, the [version of the] [e]scrow [a]greement [that] the [p]laintiff claims was executed by the parties does not contain any specifications regarding the thickness of the paving or the number of layers of bituminous pavement to be applied to the [c]ommon [d]riveway to satisfy the [d]efendant‘s obligations. The description of the work to be done by the [d]efendant . . . can only be found in [exhibit A to the agreement] which refers unfortunately and ambiguously to a ‘final course of bituminous pavement.’ ” Consequently, the court determined that it could not “find that there was a meeting of the minds as to the specifics of the common driveway” and concluded that the plaintiff had failed to sustain its burden in proving its breach of contract claim. The court, therefore, rendered judgment in favor of the defendant on count two of the plaintiff‘s revised complaint.
On January 27, 2017, the plaintiff filed a motion to reargue the court‘s January 10, 2017 decision, contending that the court had failed to consider certain evidence. Specifically, the plaintiff pointed to Watson and Burton‘s testimony regarding their conversations with Zak, which, according to the plaintiff, was uncontroverted and established that the defendant had been required under the escrow agreement to install a second layer of pavement.11 The plaintiff requested that the court, therefore, render judgment in its favor on all issues. Alternatively, the plaintiff requested that the court at least find “that the [d]efendant owes the [p]laintiff for the costs [it] incurred . . . in installing a first course . . . on the common driveway, and for the costs incurred in connection with the [easement] map, and enter judgment in favor of the [p]laintiff . . . .” The court granted the plaintiff‘s motion and heard additional argument on May 1, 2017, but it ultimately denied the relief requested.
At the May 1, 2017 hearing, the court agreed with the plaintiff that the defendant had been required under the escrow
Consequently, on that same date, the plaintiff filed a request for leave to amend its revised complaint to add a new count alleging unjust enrichment. The defendant filed a written objection to this request the following day, which the court sustained on May 15, 2017. This appeal followed.
I
The plaintiff first claims that the court improperly failed to find that there was a meeting of the minds between the parties as to the number of layers of pavement to be applied to the common driveway. The plaintiff argues that the court “should have drawn an adverse inference against the [defendant] for its failure to rebut [the plaintiff‘s parol] evidence . . . and should have therefore determined that the parties’ [e]scrow [a]greement required the [d]efendant to install a second, final course over the entire length of the common driveway . . . .”12 Specifically, the plaintiff points to the testimony of Watson and Burton regarding their conversations with Zak and the testimony of Tabshey regarding general practices in the paving industry. As the plaintiff notes, none of this testimony was directly controverted by the defendant at trial, despite Zak being present throughout the trial. The plaintiff claims that the court‘s failure to draw an adverse inference in such circumstances constituted an error of law. We disagree.
We begin by setting forth our standard of review. Preliminarily, we note that the issue of whether the parties’ minds had
For decades, Connecticut recognized the “Secondino” or “missing witness” rule, which “sanctioned a jury instruction that [t]he failure of a party to produce as a witness one who [1] is available and [2] . . . naturally would be produced permits the inference that such witness, if called, would have exposed facts unfavorable to the party‘s cause.” (Internal quotation marks omitted.) State v. Malave, 250 Conn. 722, 728–29, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). “That instruction . . . is now, for various policy reasons, prohibited by statute in civil cases;
II
The plaintiff next claims that the trial court improperly failed to find that the defendant breached the escrow agreement by not reimbursing the plaintiff for the costs it had incurred. As the plaintiff correctly asserts, there was undisputed evidence presented at trial establishing that the plaintiff had incurred costs to have the common driveway extended and to settle the invoice for the easement map. The plaintiff appears to argue that, because these tasks were the responsibility of the defendant under the agreement, the defendant was, therefore, contractually required to reimburse the plaintiff for the costs it incurred in performing these tasks itself. Because this claim was not alleged in the revised complaint nor asserted at trial, we decline to review it.
“[T]he principle that a plaintiff may rely only upon what [it] has alleged is basic. . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [its] complaint. . . . What is in issue is determined by the pleadings and these must be in writing. . . . Once the pleadings have been filed, the evidence proffered must be relevant to the issues raised therein.” (Internal quotation marks omitted.) Foncello v. Amorossi, 284 Conn. 225, 233, 931 A.2d 924 (2007). In other words, “[a] plaintiff may not allege one cause of action and recover upon another.” (Internal quotation marks omitted.) Alaimo v. Alaimo, 179 Conn. App. 769, 771, 181 A.3d 149 (2018). Indeed, “[a] judgment upon an issue not pleaded would not merely be erroneous, but it would be void.” (Internal quotation marks omitted.) Foncello v. Amorossi, supra, 284 Conn. 233. Consequently, our Supreme Court has stated that appellate courts have “no authority to consider a claim on appeal that was not alleged in the pleadings.” Id., 235; see also
III
Finally, the plaintiff claims that the trial court erred in denying its request for leave to amend its revised complaint to add a claim of unjust enrichment based on the defendant‘s failure to reimburse the plaintiff for the costs of extending the common driveway and settling the invoice for the easement map. The plaintiff argues that it was an abuse of discretion for the court to deny the plaintiff‘s request where the court had previously recognized, at the hearing on the plaintiff‘s motion to reargue, that the plaintiff “was clearly entitled to this money on an extra contractual basis.” We disagree.
“We review a trial court‘s decision to deny a request to amend a complaint for an abuse of discretion.” Motzer v. Haberli, 300 Conn. 733, 747, 15 A.3d 1084 (2011). “The law is well-settled that belated amendments to the pleadings rest in the sound discretion of the trial court. . . . [Although] our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . . The motion to amend is addressed to the trial court‘s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. . . . On rare occasions, this court has found an abuse of discretion by the trial court in determining whether an amendment should be permitted . . . but we have never found an abuse of discretion in denying an amendment on the eve of trial, long after the conclusion of pretrial proceedings.”
Turning to the present case, we first note that the record does not reflect the court‘s reasoning in denying the plaintiff‘s request for leave to amend its revised complaint. See Bayview Loan Servicing, LLC v. Park City Sports, LLC, 180 Conn. App. 765, 781, 184 A.3d 1277 (“[i]t is well established that the appellant bears the burden of providing an appellate court with an adequate record for review” [internal quotation marks omitted]), cert. denied, 330 Conn. 901, 192 A.3d 426 (2018). Nevertheless, we have no difficulty in concluding that the court acted within its discretion in denying the plaintiff‘s request, as the plaintiff did not seek to amend the complaint until May 1, 2017—well after the trial had ended and almost four months after the court had rendered its judgment. See Motzer v. Haberli, supra, 300 Conn. 747 (“[b]ecause the plaintiff made the request [for leave to amend his complaint] after the start of the trial, we conclude that the trial court acted well within its discretion in denying the plaintiff‘s request“). We, therefore, reject this claim.
The judgment is affirmed.
In this opinion the other judges concurred.
BEAR, J.