Murallo v. United Builders Supply Co.

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RANDY MURALLO v. UNITED BUILDERS
SUPPLY CO., INC.
(AC 40442)
Lavine, Bright and Pellegrino, Js.

Syllabus

The plaintiff sought to recover damages from the defendant for, inter alia,
breach of contract. The plaintiff had purchased materials for the con-
struction by the defendant of two decks on the plaintiff’s property. After
the completion of the two decks, the plaintiff alleged that the decking
material was defective and complained to the defendant several times.
He thereafter received a charge-back from his credit card company for
the cost of the decking materials. Following discussions with B, the
defendant’s principal, B sent the plaintiff an e-mail in 2009 indicating that
the defendant would not provide any material for a deck replacement
because the plaintiff had received the charge-back for the materials,
but that the defendant would provide the labor for replacement of
the decks if the plaintiff chose to replace them. Although the plaintiff
subsequently informed the defendant that he wanted to replace his
decks, the defendant never provided the labor to replace the decks,
and this action followed. During the trial, B testified on two separate
occasions that the 2009 e-mail set forth the parties’ agreement. The trial
court rendered judgment in favor of the defendant, from which the
plaintiff appealed to this court, claiming, inter alia, that the trial court
erred in finding that the parties had not formed a contract. Held that
the trial court’s finding that the 2009 e-mail was an offer that the plaintiff
never accepted was clearly erroneous and not supported by any evidence
in the record: the defendant did not dispute the plaintiff’s claim that he
and B had reached an agreement before B sent the 2009 e-mail, and it
was undisputed that the e-mail memorialized the parties’ agreement
regarding the replacement of the plaintiff’s decks with labor provided
by the defendant, and because the court did not make findings regarding
whether the plaintiff performed his obligations under the agreement
and, if so, whether the defendant breached any contractual duties it
owed the plaintiff, nor did it address what damages, if any, the plaintiff
would be entitled to recover if the defendant did breach the agreement,
a new trial on the plaintiff’s breach of contract claim was necessary;
moreover, in light of that determination, it was not necessary to address
the plaintiff’s challenge to the trial court’s finding that the decking
materials he had purchased from the defendant were not defective.
Argued February 15—officially released June 12, 2018

Procedural History

Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of New London, small
claims session, where the matter was transferred to the
regular civil docket; thereafter, the plaintiff filed an
amended complaint; subsequently, the matter was tried
to the court, Hon. Joseph Q. Koletsky, judge trial ref-
eree; judgment in favor of the defendant, from which
the plaintiff appealed to this court. Reversed in part;
further proceedings.
Eugene C. Cushman, for the appellant (plaintiff).
Garon Camassar, for the appellee (defendant).
Opinion

BRIGHT, J. The plaintiff, Randy Murallo, appeals
from the judgment of the trial court rendered after a trial
to the court in favor of the defendant, United Builders
Supply Co., Inc. The plaintiff claims that the court erred
in finding that (1) the parties had not formed a contract
and (2) the decking materials sold by the defendant
were not defective. We conclude that the court’s finding
that no contract existed between the parties was clearly
erroneous. Accordingly, we reverse in part the judgment
of the trial court.
The following facts and procedural history, as found
by the trial court or as undisputed in the record, are
relevant to our review. In August and September, 2007,
the plaintiff purchased sufficient quantities of GeoDeck
materials for the construction of three outdoor decks
on his property in Waterford, where he was building
two houses. The plaintiff intended to occupy one of the
houses (residence), which would include two decks.
The plaintiff paid the defendant $4749.81 for the decking
materials by way of two charges to his American
Express account. All construction on the property,
including the residence and the decks attached thereto,
was completed in or about November, 2007, and the
Waterford building official issued the plaintiff a certifi-
cate of occupancy for his residence at that time. Shortly
thereafter, the plaintiff noticed spacing between the
boards of the decks at his residence, and he contacted
the defendant in order to have someone inspect the
decks. Jared Beaulieu, the defendant’s vice president,
went to the plaintiff’s property to inspect the decks,
and he found that they appeared to be in good condition.
The plaintiff also was told that the gaps between the
boards would close as the weather became warmer
during the summer.
The plaintiff moved into the residence in April, 2008,
and by the fall of 2008, the plaintiff believed that the
condition of the decks at his residence had gotten
worse. He made several phone calls to the defendant
regarding his complaint about the decks, and there were
several e-mail exchanges between the plaintiff and the
defendant’s representatives. The plaintiff, believing that
the defendant was not going to resolve his complaint,
contacted American Express to dispute the charges
to his account. Eventually American Express issued a
charge-back on the defendant’s account in January,
2009, so that the plaintiff was credited for the cost of
the decking materials.1
Following further discussions with the plaintiff, on
September 2, 2009, Beaulieu sent an e-mail to the plain-
tiff stating: ‘‘[A]s discussed with you previously: 1. [W]e
will not provide any material for the deck replacement
at your home . . . as the original material was credited
back through you[r] merchant card. 2. [W]e will provide
the labor with our own crew for the replacement of the
deck when and if it is replaced by you . . . that labor
would preferably be during a ‘down’ time of our busi-
ness year.’’ On that same date Beaulieu sent another
e-mail with a quote for certain decking materials, with
the notation ‘‘will refine if and when ready.’’ There were
no further communications between the plaintiff and
the defendant until April, 2011, when the defendant sent
an account statement to the plaintiff that reflected a
balance on the plaintiff’s account.2 The plaintiff
returned the account statement to the defendant with
a handwritten notation indicating that the plaintiff
wanted to replace his decks, and he needed to ‘‘schedule
workers’’ to perform the labor at no charge. The defen-
dant never provided the labor to replace the plain-
tiff’s decks.
In May, 2013, the plaintiff commenced this action
against the defendant in small claims court as a self-
represented party. In June, 2013, the defendant had the
matter transferred to the regular docket of the Superior
Court pursuant to Practice Book § 24-21. On July 23,
2013, after obtaining counsel, the plaintiff filed the
seven count operative complaint, alleging, inter alia,
breach of contract arising from the defendant’s failure
to provide the labor to replace the decks at the plaintiff’s
residence.3 In addition, the plaintiff sought attorney’s
fees pursuant to General Statutes § 52-251a4 in the sev-
enth count of the operative complaint. The case was
tried to the court over the course of two days on April
26 and April 27, 2017.
At trial, the plaintiff testified that he and Beaulieu
had reached an agreement to resolve the plaintiff’s com-
plaint whereby the plaintiff would pay for new decking
materials and the defendant would provide the labor
to install the decks. After reaching that agreement, the
plaintiff asked Beaulieu to put the agreement in writing,
and Beaulieu sent the e-mail to the plaintiff memorializ-
ing their agreement on September 2, 2009. Beaulieu
acknowledged, on two separate occasions during his
testimony at trial, that the September 2, 2009 e-mail set
forth the parties’ agreement. On the first day of the trial,
the following examination occurred between plaintiff’s
counsel and Beaulieu:
‘‘Q: Okay. And you set forth what your agreement is
in this e-mail, did you not?
‘‘A: Yes, but, once again, you’re leaving out timeliness.
‘‘Q: I’m not asking [about] timeliness. I’m asking if
you agree in that document that you [would] provide
the labor to replace [the plaintiff’s] deck[s].
‘‘A: That’s correct.’’
Then, on the second day of the trial, the following
examination occurred between plaintiff’s counsel and
Beaulieu regarding the September 2, 2009 e-mail:
‘‘Q: The document says, as we discussed pre-
viously, correct?
‘‘A: Yes. Okay.
‘‘Q: Okay. What does that mean?
‘‘A: Obviously we had a telephone conversation.
‘‘Q: All right. And did you come to an agreement?
‘‘A: I believe that this was—we will not provide any
material for the deck replacement at your home as the
original material was credited back to your merchant
card. We will provide the labor with our own crew for
the replacement of the deck when and if [replaced] by
you, that labor would preferably be at our down time.
‘‘Q: Now, does that reflect the discussion you had pre-
viously?
‘‘A: Judging on this I’d say yes. . . .
‘‘Q: You reached a verbal agreement and then you
put it in writing.
‘‘A: It looks that way to me, sir.’’
After trial, the court rendered judgment in favor of
the defendant on all counts of the plaintiff’s complaint.
Despite the testimony of both the plaintiff and Beaulieu
regarding their agreement, the court found, inter alia,
that the September 2, 2009 e-mail was an offer that the
plaintiff never accepted, and, therefore, the court held
that there was no contract between the parties. This
appeal followed.
I
The plaintiff first claims that the court’s finding that
the e-mail dated September 2, 2009, was an offer that the
plaintiff never accepted is clearly erroneous. We agree.
‘‘The existence of a contract is a question of fact to
be determined by the trier on the basis of all of the
evidence. . . . To the extent that the trial court has
made findings of fact, our review is limited to deciding
whether such findings were clearly erroneous. . . . 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.
. . . In making this determination, every reasonable
presumption must be given in favor of the trial court’s
ruling. . . .
‘‘In order for an enforceable contract to exist, the
court must find that the parties’ minds had truly met.
. . . If there has been a misunderstanding between the
parties, or a misapprehension by one or both so that
their minds have never met, no contract has been
entered into by them and the court will not make for
them a contract which they themselves did not make.
. . . [A]n agreement must be definite and certain as to
its terms and requirements.’’ (Citations omitted; internal
quotation marks omitted.) Electric Wholesalers, Inc. v.
M.J.B. Corp., 99 Conn. App. 294, 301–302, 912 A.2d
1117 (2007).
The court held that there was no contract between
the parties on the basis of its finding that the September
2, 2009 e-mail was an offer from the defendant that the
plaintiff never accepted. Our review of the record does
not reveal any evidence that supports the court’s finding
that the e-mail constituted an offer. Both the plaintiff
and Beaulieu5 acknowledged that they had reached an
agreement following their discussions regarding the
plaintiff’s complaint. They further agreed that the Sep-
tember 2, 2009 e-mail set forth their agreement that the
defendant would provide the labor necessary to replace
the plaintiff’s decks when the plaintiff purchased new
materials. Furthermore, the trial court acknowledged
that the parties had reached an agreement during the
plaintiff’s closing arguments. Plaintiff’s counsel
asserted that Beaulieu agreed that the e-mail reflected
the agreement he had reached with the plaintiff and
the court responded: ‘‘More or less, yes.’’
On the basis of our review of the record, we conclude
that the court’s finding that the e-mail constituted an
offer is clearly erroneous. The defendant did not dispute
the plaintiff’s claim that he and Beaulieu reached an
agreement before Beaulieu sent the e-mail on Septem-
ber 2, 2009, memorializing the parties’ agreement. More-
over, there is no evidence in the record to support the
court’s finding that the e-mail constituted an offer that
the plaintiff never accepted. Instead, the evidence
reveals that it was undisputed that the e-mail memorial-
ized the agreement that the plaintiff and Beaulieu had
reached regarding the replacement of the plaintiff’s
decks. Because the court improperly found that the
e-mail constituted only an offer, rather than the parties’
agreement, the court did not make any findings regard-
ing whether the plaintiff performed his obligations
under the agreement, and, if so, whether the defendant
breached any contractual duties it owed the plaintiff;
nor did the court address what damages, if any, the
plaintiff would be entitled to recover if the defendant
did breach the agreement. Accordingly, a new trial is
required on the plaintiff’s breach of contract claim.6
II
The plaintiff also claims that the trial court’s finding
that the decking materials purchased from the defen-
dant were not defective is clearly erroneous. The plain-
tiff argues that if the decking materials were defective,
then his forbearance of any legal action based on the
defective materials against the defendant was ‘‘clearly
adequate consideration for the mutual promises which
were made in the fall of 2009.’’ We need not address this
claim in light of our conclusion in part I of this opinion.
‘‘[I]t is a general rule of law that forebearance to
prosecute a cause of action, where the right is honestly
asserted under the belief that it is substantial, although
it may in fact be wholly unfounded, is a valuable consid-
eration which will support a promise. . . . Forbear-
ance, however, is not a sufficient consideration unless
the claimant had some reasonable ground for belief in
the justice of the claim . . . or if the claim is not made
in good faith.’’ (Citations omitted; internal quotation
marks omitted.) Iseli Co. v. Connecticut Light & Power
Co., 211 Conn. 133, 136, 558 A.2d 966 (1989).
Because we concluded in part I of this opinion that
the parties had an agreement resolving the plaintiff’s
legal claims against the defendant regarding the decking
materials, it simply is not relevant to the plaintiff’s
breach of contract claim whether the materials in fact
were defective. Furthermore, the defendant did not
argue before the trial court that the plaintiff did not
make his claim in good faith. In fact, the defendant
never claimed that the parties’ agreement was not sup-
ported by any consideration. Accordingly, we decline
to address the plaintiff’s claim.
The judgment is reversed only with respect to the
first count of the plaintiff’s complaint and the case is
remanded for a new trial on that count, including any
claim for attorney’s fees and costs pursuant to § 52-
251a; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
All parties agreed that, as of the second day of trial, the plaintiff had
been reimbursed for the cost of the decking materials and that the defendant
had not been paid for the plaintiff’s decking materials.
2
The statement was for materials provided to the plaintiff that are unre-
lated to the decks at issue in this case.
3
The plaintiff’s breach of contract claim is set forth in the first count of
the operative complaint. In particular, paragraph 9 of the first count alleges
that ‘‘[t]he plaintiff gave timely notice of the defects and breach of warranty
to the defendant, and the defendant made promises to the plaintiff to rectify
the problem, but it has neglected and refused to do so.’’ Although the first
count includes allegations suggesting that the defendant breached an implied
warranty and made misrepresentations as to the quality of the decking
materials, given the allegation in paragraph nine and the claims made by
the plaintiff on appeal, we understand the first count to state solely a claim
for a breach of the parties’ contract entered into by the plaintiff and Beaulieu
on or about September 2, 2009. The remaining counts of the operative
complaint alleged breach of warranty, fraud, civil theft, and a violation of
the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq. On appeal, the plaintiff raises claims related to only the breach
of contract count.
4
General Statutes § 52-251a provides: ‘‘Whenever the plaintiff prevails in
a small claims matter which was transferred to the regular docket in the
Superior Court on the motion of the defendant, the court may allow to the
plaintiff his costs, together with reasonable attorney’s fees to be taxed by
the court.’’
5
Alexander Slosberg, the defendant’s president, acknowledged that Beau-
lieu, as the defendant’s vice president, had the authority to make agreements
for the defendant.
6
A request for costs and attorney’s fees pursuant to § 52-251a requires
that the plaintiff prevail in the small claims matter; therefore, such a request
is derivative of the underlying cause of action. See, e.g., Doyle Group v.
Alaskans for Cuddy, 164 Conn. App. 209, 231, 137 A.3d 809 (‘‘court’s decision
of entitlement to fees . . . require[s] an inquiry separate from the decision
on the merits—an inquiry that cannot even commence until one party has
prevailed’’ [internal quotation marks omitted]), cert. denied, 321 Conn. 924,
138 A.3d 284 (2016). In the present case, because the court rendered judg-
ment in favor of the defendant on all counts of the operative complaint, the
plaintiff was not entitled to an award of costs or attorney’s fees pursuant
to § 52-251a, as alleged in the seventh count of his operative complaint. On
remand, if the plaintiff prevails on his breach of contract claim, then, as
the prevailing party, the court may award him costs and attorney’s fees
pursuant § 52-251a. See footnote 4 of this opinion. Accordingly, a separate
cause of action requesting such relief is not necessary; such a request more
properly should be raised in a prayer for relief. Nevertheless, because the
plaintiff specifically raised this requested relief in his operative complaint,
we construe count seven as part of his prayer for relief, as should the trial
court on remand.