Robert J. Barnabei Contracting, LLC v. Greater Hartford Jewish Community Center, Inc.
Robert J. Barnabei Contracting, LLC v. Greater Hartford Jewish Community Center, Inc.
Opinion of the Court
Opinion
The plaintiff, Robert J. Bamabei Contracting, LLC, appeals from the judgment of the trial court rendered in accordance with a report filed by an attorney fact finder (fact finder). The court rendered judgment awarding the plaintiff $292 in compensatory damages pursuant to a subcontract agreement (agreement) with the defendant Aspinet Constmction Company.
The following facts and procedural history are relevant to the resolution of this appeal. In early 2004, the Greater Hartford Jewish Community Center, Inc. (community center), retained the defendant as the general contractor for a renovation project (project) at the community center’s West Hartford location. On March 19, 2004, the plaintiff and the defendant executed the agreement, whereby the plaintiff was to perform subsurface constmction services for the project for a total price of $37,960. The dispositive provisions of the agreement are as follows:
*510 “Section 4. ... If at any time there shall be evidence of any hen or claim for which, if established, [the defendant] or the [community center] might be or become hable and which is chargeable to [the plaintiff], [the defendant] shah have the right to retain out of any payment due or to become due by [the defendant] to [the plaintiff] an amount sufficient to indemnify [the defendant] and [the community center] against such hen or claim ....
* * *
“Section 7. The following conditions are hereby made a part of this [agreement . . .
“(d) The [plaintiff] agrees ... to comply with ah [fjederal, [s]tate, [m]unicipal and local laws, ordinances, codes and regulations governing and to pay ah costs and expenses required thereby ....
* H= *
“Section 8. (a) [The plaintiff] shah submit in writing to [the defendant] ah claims for adjustment in the [agreement] price ... for like claims by [the defendant] against [the community center — namely, through a written change order]. . . . [The defendant’s] liability to [the plaintiff] for such claims is limited to any adjustment which shah be made by [the community center] to [the defendant’s] contract on account of [the plaintiffs] claim.”
On the same day that the parties executed the agreement, the defendant approached a third party, George Toreho Engineers, P.C. (Toreho), to perform engineering services in connection with the project, as such services were beyond the plaintiffs expertise. The defendant retained Toreho to ensure that the plaintiffs work complied with apphcable specifications of the West Hartford building code (building code), including, specifically, § 1816.13. After the plaintiff commenced
On July 11, 2005, the plaintiff commenced this action claiming, inter alia, breach of contract by the defendant. In support of its claim, the plaintiff alleged that the defendant was responsible for the full invoice amount of $51,200 and further that the defendant incorrectly backcharged the agreement price by the cost of Tor-ello’s services. In response, the defendant countered that the plaintiff was not entitled to the invoice amount of $51,200 because the community center never approved this adjustment to the agreement price. The defendant also argued that because the plaintiff already had been paid $24,547.50, and because the agreement
The plaintiff claims that the court improperly overruled its objection to acceptance of the fact finder’s report and recommendations. Specifically, the plaintiff argues that the fact finder incorrectly concluded that the $51,200 invoice amount in effect constituted a claim for $9925 in extra compensation, rather than a legitimate adjustment to the agreement price of $41,275.
Before addressing the merits of the plaintiffs claims, we begin with the applicable legal principles and standard of review governing our analysis. “A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial fact finders. . . . This court has articulated that attorney trial fact finders and [fact finders] share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. . . .
“The factual findings of a[n] [attorney trial fact finder] on any issue are reversible only if they are clearly erroneous. ... [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) LPP Mortgage, Ltd. v. Lynch, 122 Conn. App. 686, 692, 1 A.3d 157 (2010).
I
The record in the present case unequivocally demonstrates that the fact finder had sufficient evidence to conclude that the plaintiff was entitled to only $292 in compensatory damages pursuant to the parties’ agreement. With respect to the plaintiffs claim regarding the $51,200 invoice amount, the plaintiff argues mainly that the fact finder incorrectly found that the agreement price was $41,275. Evidence submitted by the plaintiff itself, however, shows that the defendant
II
Turning to the plaintiffs claim with respect to the $16,435.50 backcharge, the record is equally supportive of the fact finder’s conclusion that this amount was appropriately deducted from the $41,275 agreement price. In support of its claim, the plaintiff argues that the defendant is “attempting to shift the burden of engineering costs” to the plaintiff. Section 7 (d) of the agreement explicitly provides, however, that “[the plaintiff agrees] ... to comply with all [f]ederal, [s]tate, [m]unicipal and local laws, ordinances, codes and regulations governing [the performance of its work on the project] and to pay all costs and expenses required thereby . . . .” Testimony during trial before the fact finder confirmed that Torello was hired by the defendant to ensure the plaintiffs compliance with applicable specifications of the building code. Indeed, if Torello had not been employed by the defendant, the plaintiff would not have been in compliance with the building code and, as such, would not have been legally
In sum, the plaintiff “essentially requests that we transgress our function as an appellate court and weigh conflicting evidence. . . . This, we cannot do.” (Citation omitted.) LPP Mortgage, Ltd. v. Lynch, supra, 122 Conn. App. 700-701. We conclude that the fact finder’s finding that the agreement price is $41,275 is adequately supported by the evidence in this case. We also conclude that the fact finder’s finding that this price was subject to a backcharge in the amount of $16,435.50 was not clearly erroneous. Thus, the plaintiffs net compensation under the agreement is $24,839.50 Because there is no dispute that the plaintiff has been paid $24,547.50, the fact finder appropriately recommended that the plaintiff be awarded $292 pursuant to the parties’ agreement. Accordingly, the court properly overruled the plaintiffs objection and rendered judgment in accordance with the fact finder’s report.
Ill
As a final matter, we address an unpreserved claim that we ordinarily would dismiss in a footnote. The
First and foremost, the claim is not properly before us, as there is no indication in the record that the plaintiff properly preserved it for appeal. In neither its October 29, 2007 trial brief nor its November 26, 2007 objection to acceptance of the fact finder’s report and accompanying memorandum of law did the plaintiff mention, let alone distinctly state, the question of the defendant’s alleged failure to comply with § 7 (f) of the agreement, as our law requires. See Practice Book § 5-2; see also Practice Book § 60-5; Remillard v. Remillard, 297 Conn. 345, 351, 999 A.2d 713 (2010) (raised distinctly means party must bring to attention of court precise matter on which decision is being asked); Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims “neither addressed nor decided” by trial court are not properly before appellate tribunal). By contrast, the plaintiff expressly challenged the fact finder’s determinations regarding §§ 7 (d) and 8 (a) of the agreement in its November 26, 2007 memorandum of law objecting to acceptance of the fact finder’s report. Because the plaintiff never presented to the trial court the claim concerning § 7 (f) that it now pursues on appeal, we decline to afford it review. To now review that unpreserved claim would amount to an ambuscade of the trial judge. See Intercity Development, LLC v. Andrade, 286 Conn. 177, 187-88, 942 A.2d 1028 (2008) (reviewing claim articulated for first time on appeal and not before trial court results in trial by ambuscade of trial judge); Hunnicutt v. Commissioner of Correction, 83 Conn. App. 199, 203, 848 A.2d 1229 (same), cert, denied, 270 Conn. 914, 853 A.2d 527 (2004).
Apart from that infirmity, the plaintiffs claim concerning § 7 (f) is inadequately briefed, as its analysis consists of a single sentence in its principal brief. After
The concurring and dissenting opinion also opines that review of the plaintiffs unpreserved claim is warranted under Practice Book § 60-5, which recognizes
It is elemental that this court, as an intermediate appellate body, is bound by the precedent set forth by our Supreme Court. See, e.g., Stuart v. Stuart, 297 Conn. 26, 45-46, 996 A.2d 259 (2010) (“it is manifest to our hierarchical judicial system that this court has the final say on matters of Connecticut law and that the Appellate Court . . . [is] bound by our precedent”); DePietro v. Dept. of Public Safety, 126 Conn. App. 414, 422 n.3, 11 A.3d 1149 (2011) (“as an intermediate appellate body, we are not at liberty to discard, modify, reconsider, reevaluate or overrule the precedent of our Supreme Court”); State v. Brown, 73 Conn. App. 751, 756, 809 A.2d 546 (2002) (“[o]ur Supreme Court is the ultimate arbiter of the law in this state”). The concurring and dissenting opinion offers no explanation for its departure from that bedrock principle.
Numerous doctrines of reviewability are contained in our case law and our rules of appellate procedure. Uniform application thereof ensures that similarly situated litigants are treated in a consistent and, hence, just manner. See, e.g., Silkwood v. Kerr-McGee Corp., 667 F.2d 908, 916 (10th Cir. 1981) (“the objective of
“Plain error is a doctrine that should be invoked sparingly.” (Internal quotation marks omitted.) State v. Bowman, 289 Conn. 809, 817, 960 A.2d 1027 (2008). It is “reserved for truly extraordinary situations [in
In addition, even if the plaintiff had requested review of its claim pursuant to the plain error doctrine, such review is unwarranted. The claim does not concern a truly extraordinary situation. Neither the plaintiff nor the concurring and dissenting opinion have established that the “existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation
The judgment is affirmed.
In this opinion HARPER, J., concurred.
The plaintiff withdrew its cause of action as to the defendant Sovereign Bank and the defendant Greater Hartford Jewish Community Center, Inc., on May 19, 2006. Because Aspinet Construction Company is the sole defendant in this appeal, we refer to it as the defendant.
The $9925 figure represents the difference between the plaintiffs invoice amount of $51,200 and the agreement price of $41,275, as documented by the defendant’s change order, dated May 17, 2004.
We note that the plaintiffs appellate brief also fails to comply with the requirements of Practice Book § 67-4. The statement of issues on page one does not include “[a] concise statement setting forth, in separately numbered paragraphs, without detail or discussion, the principal issue or issues involved in the appeal, with appropriate references to the page or pages of the brief where the issue is discussed . . . .” (Emphasis added.) Practice Book § 67-4 (a). Even more troubling is the fact that although its statement of issues includes multiple claims, the brief does not include an “argument, divided under appropriate headings into as many parts as there are points to be presented, with appropriate references to the statement of facts or to the page or pages of the transcript or to the relevant document”; Practice Book § 67-4 (d); nor does it include “on each point ... a separate, brief statement of the standard of review the appellant believes should be applied.” Practice Book § 67-4 (d). (Emphasis added.) As in the defendants’ appellate brief in Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 407,1 A.3d 1238, cert, denied, 298 Conn. 931, 5 A.3d 491 (2010), it is difficult “to discern any coherent analysis” from much of the plaintiffs brief in the present case.
We are perplexed by the concurring and dissenting opinion’s invocation of the “ ‘exceptional circumstances’ ” exception. That exception, as noted by the secondary authority relied on by that opinion, was set forth in State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), the precursor to Golding review. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In Evans, our Supreme Court held that there “exist only two situations that may constitute ‘exceptional circumstances’ such that newly raised claims can and will be considered by this court.” State v. Evans, supra, 70. The first circumstance arises “where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal.” Id. The second circumstance arises “where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” Id. Neither circumstance is implicated in the present case. To the extent that the concurring and dissenting opinion posits that there exists an exceptional circumstances exception to the preservation requirement beyond that set forth in the plain error doctrine and State v. Golding, supra, 239-40, by which a reviewing court may “ ‘consider almost any new issue on appeal,’ ” that novel proposition is without support in Connecticut law and is contrary to the plain language of State v. Evans, supra, 70.
While the secondary source cited by the concurring and dissenting opinion states that the plain error doctrine allows an appellate court “to consider almost any new issue on appeal”; C. Tait&E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed. 2000) § 8.5, p. 299; that statement must be read in the context of the precedent of our Supreme Court governing the application of that doctrine. We thus read that statement as pertaining to unpreserved claims for which the appellant affirmatively has requested review. Indeed, neither the authors of that secondary authority nor the concurring and dissenting opinion cite to any Supreme Court authority indicating otherwise.
Concurring Opinion
concurring in part and dissenting in part. Two cardinal principles of law inform our review of contracts. One is that courts will not rewrite a contractual provision unwisely made by a party. Crews v. Crews, 295 Conn. 153, 173, 989 A.2d 1060 (2010). The other is that effect must be given, to the extent possible, to all provisions of an agreement. Honulik v. Greenwich, 293 Conn. 698, 711, 980 A.2d 880 (2009); Detels v. Detels, 79 Conn. App. 467, 472, 830 A.2d 381 (2003). I agree with the majority’s opinion affirming the denial of the plaintiffs claim for $9600 in extras for the more expensive kind of piling required to be installed. I do so because the plaintiff did not comply with the contractual condition precedent to receiving such an extra payment because it failed to make a written claim for contract adjustment. Such a result, though harsh, is consistent with both cardinal principles and with § 7 (b) of the contract.
I respectfully disagree with the majority’s refusal to review the plaintiffs claim on appeal that the defendant improperly failed to comply with a contractual condition precedent when it withheld a $16,435.50 back-charge from the plaintiffs compensation. The trial court’s decision to enter judgment on that issue for the defendant is contrary to both cardinal principles of contract interpretation and to the plain language of § 7
The plaintiff has briefed its claim that the actions of the defendant in withholding the $16,435.50 were “unilateral.” As pointed out in the plaintiffs brief, our review of contractual disputes arising out of definitive contract language is plenary. Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 43, 929 A.2d 729, cert, denied, 284 Conn. 931, 934 A.2d 246 (2007). Plenary review does not permit us to ignore any pertinent definitive provision of a contract. The plaintiff briefed on appeal that the fact finder had ignored § 7 (f) of the contract requiring forty-eight hours prior notice to the plaintiff before contracting to undertake a task to which the defendant claimed that the plaintiff was obligated to perform.
There could be no surprise to the trial court or the defendant by virtue of the plaintiffs failure to brief this provision at trial that § 7 (f) requiring forty-eight hours notice was pertinent. The trial court was to consider all definitive provisions of the contract as a whole, whether the plaintiff did or did not brief them at trial. Lar-Rob Bus Corp. v. Fairfield, 170 Conn. 397, 407, 365 A.2d 1086 (1976) (“[a] contract is to be construed as a whole and all relevant provisions will be considered together”); Zahringer v. Zahringer, 124 Conn. App. 672, 684, 6 A.3d 141 (2010) (“[i]t is axiomatic that ‘[w]hen interpreting a contract, [the reviewing court] must look at the contract as a whole, consider all relevant portions together and, if possible,
Reference
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