KMK Insulation, Inc. v. A. Prete & Son Construction Co.

715 A.2d 799, 49 Conn. App. 522, 1998 Conn. App. LEXIS 319
CourtConnecticut Appellate Court
DecidedJuly 28, 1998
DocketAC 17179
StatusPublished
Cited by7 cases

This text of 715 A.2d 799 (KMK Insulation, Inc. v. A. Prete & Son Construction Co.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
KMK Insulation, Inc. v. A. Prete & Son Construction Co., 715 A.2d 799, 49 Conn. App. 522, 1998 Conn. App. LEXIS 319 (Colo. Ct. App. 1998).

Opinion

[523]*523 Opinion

LANDAU, J.

The plaintiff, KMK Insulation, Inc., appeals from the trial court’s judgment of dismissal rendered in favor of the defendants, A. Prete and Son Construction Company, Inc. (Prete), Aetna Casualty and Surety Company (Aetna) and M.P.H. Company, Inc. (M.P.H.), on the plaintiffs claim for payment on a bond. The plaintiff claims that the trial court improperly excluded three letters constituting notice (notices) that the plaintiff had sent to the defendants pursuant to General Statutes (Rev. to 1993) § 49-42 (a).1 We agree and reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. Prete was the general contractor for a project at East Haddam High School in East Haddam. Prete entered into a subcontract with M.P.H., which, in turn, entered into a subcontract with the plaintiff to perform certain labor services for the school. Prete, in accordance with General Statutes (Rev. to 1993) § 49-41 (a), as amended by Public Acts 1993, No. 93-104,2 [524]*524furnished a bond that was issued by Aetna. The plaintiff instituted this action, alleging that it had not been paid for material, work and labor in the amount of $41,321.

At trial, the plaintiff attempted to introduce three letters that it allegedly had sent to the three defendants demanding payment. The defendants objected to the admission of the notices because the plaintiff did not establish a nexus between “M.P.H. Company, Inc.,” the proper name of the defendant “for whom the labor was performed,” and “Mechanical Plumbing & Heating, Inc.,” the name, as alleged by the plaintiff in its complaint, by which “M.P.H. Company, Inc.,” is now known. As a result, the defendants argued that they did not receive sufficient notice pursuant to § 49-42 (a), which requires that the notice state the company “for whom the labor was performed.” See footnote 1.

The plaintiff responded by arguing that although the complaint alleged that “M.P.H. Company, Inc.,” is now known as “Mechanical Plumbing & Heating, Inc.,” the names included in the notices were stated with “substantial accuracy” as required by § 49-42 (a). It is important to note that although the plaintiff alleged in its complaint that “M.P.H. Company, Inc.,” is now known as “Mechanical Plumbing & Heating, Inc.,” the notices to the defendants referenced, as the party “for whom the labor was performed,” “MPH Plumbing of North Haven, Connecticut” in the letter to Prete, “MPH Plumbing and Heating” in the letter to M.P.H. and “MPH Plumbing and Heating, North Haven, Connecticut” in the letter to Aetna.

[525]*525The trial court sustained the defendants’ objections because the plaintiff had not established a nexus between “M.P.H. Company, Inc.,” and “Mechanical Plumbing and Heating, Inc.” The trial court noted, however, that it would reconsider admitting the letters if the plaintiff provided further evidence connecting “M.P.H. Company, Inc.,” and “Mechanical Plumbing and Heating, Inc.” The trial court recessed the trial to allow the plaintiff to drive from Middletown to New Haven so that the plaintiffs attorney could retrieve a document. Upon his return, the plaintiff offered a certified notice from the secretary of the state, indicating that M.P.H. Company, Inc., was dissolved at the time the plaintiff allegedly sent the notice. The defendants objected to the plaintiffs offer of the notice of dissolution; however, the trial court overruled the defendants’ objections. Despite the fact that the trial court allowed the notice of dissolution to be admitted as a full exhibit, it held that notice was insufficient under § 49-42 (a) and affirmed its prior ruling sustaining the defendants’ objections. The trial court reasoned that although “M.P.H. Company, Inc.,” may be the same entity as “Mechanical Plumbing & Heating, Inc.,” the court is “not permitted rightfully to so engage in that speculation.”

Because the trial court sustained the defendants’ objections on the basis that the plaintiff did not establish a nexus between “M.P.H. Company, Inc.,” and “Mechanical Plumbing & Heating, Inc.,” the first issue we must resolve is whether the plaintiff was obligated to establish a nexus. “ ‘Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them.’ Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952).” Moore v. Sergi, 38 Conn. App. [526]*526829, 841, 664 A.2d 795 (1995). “The purpose of the complaint is to put the defendants on notice of the claims made, to limit the issues to be decided, and to prevent surprise. Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557, 525 A.2d 954 (1987). ‘Justice is not served by accepting a claim of variance [between allegations and proof] from a party who at all times has been in a position of knowing the true state of facts.’ Schaller v. Roadside Inn, Inc., 154 Conn. 61, 67, 221 A.2d 263 (1966). Our Supreme Court has indicated that a minor pleading deficiency, in the absence of surprise or other prejudice, should not be relied on to defeat a cause of action. Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 434, 534 A.2d 213 (1987).” Papagorgiou v. Anastopoulous, 23 Conn. App. 522, 527-28, 582 A.2d 1181 (1990).

In the present case, the defendants were aware that the plaintiff alleged in its complaint that it “served notice of claim in accordance with Connecticut Statute Section 49-42.” Although the plaintiff also alleged that “M.P.H. Company, Inc.,” is now known as “Mechanical Plumbing & Heating, Inc.,” the defendants were put on notice of the plaintiffs claim that it served notice in accordance with § 49-42 (a). Because § 49-42 (a) requires only “substantial accuracy,” the defendants should have been aware that the plaintiff would not necessarily be required to prove that “M.P.H. Company, Inc.,” is now known as “Mechanical Plumbing & Heating, Inc.” The plaintiffs cause of action should not be defeated simply because it also alleged in its complaint that “M.P.H. Company, Inc.,” is now known as “Mechanical Plumbing & Heating, Inc.” The issues were properly limited, the defendants were on notice as to the relevant issues and they were not surprised by the plaintiffs argument that the notices were substantially accurate. We conclude, therefore, that the plaintiff was not obligated to prove that “M.P.H. Company, Inc.,” is now known as “Mechanical Plumbing & Heating, Inc.”

[527]*527The second issue we must resolve is whether the trial court improperly refused to admit the three notices that were offered by the plaintiff.3

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Cite This Page — Counsel Stack

Bluebook (online)
715 A.2d 799, 49 Conn. App. 522, 1998 Conn. App. LEXIS 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kmk-insulation-inc-v-a-prete-son-construction-co-connappct-1998.