Pleines v. Franklin Construction Co.

621 A.2d 759, 30 Conn. App. 612, 1993 Conn. App. LEXIS 130
CourtConnecticut Appellate Court
DecidedMarch 16, 1993
Docket11388
StatusPublished
Cited by32 cases

This text of 621 A.2d 759 (Pleines v. Franklin 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
Pleines v. Franklin Construction Co., 621 A.2d 759, 30 Conn. App. 612, 1993 Conn. App. LEXIS 130 (Colo. Ct. App. 1993).

Opinion

E. Y. O’Connell, J.

The defendants1 appeal from a judgment of foreclosure by sale of a mechanic’s lien. The defendants claim that the trial court’s conclusion that the defendants owed the plaintiff $11,640 and its award of $12,787 in attorney’s fees was not supported by the evidence. We affirm the judgment of the trial court.

The record discloses the following evidence in support of the judgment. The plaintiff2 is a stone and brick mason who performed work for the defendant, The Franklin Construction Co., Inc. (Franklin), on premises of the defendant Saybrook Point Marina Partnership in Old Saybrook. He dealt with the defendant, Steven Tagliatela, a general partner, and Jim McCar[614]*614thy, Franklin’s superintendent on the job. When the plaintiff was not paid upon the completion of his work, he filed a mechanic’s lien on real property owned by Saybrook Point Marina Partnership to secure $13,640 he claimed was due for the construction of a brick patio. He brought the present action seeking foreclosure of the lien and damages.

The trial court, Higgins, J., heard evidence that early in July, 1989, the plaintiff quoted a price of $4.50 per square foot to build the patio. Tagliatela objected that the price was too high and did not award the job to the plaintiff at that time. On July 14, 1989, construction of the patio was again discussed. Although apparently no price was determined, Tagliatela requested that the plaintiff commence work immediately, rather than waiting two weeks for another mason to become available. Notwithstanding the lack of a price agreement, the plaintiff reduced his price to $2.50 per square foot after learning that another mason was offering to do the work at that lower rate. In accordance with the plaintiffs practice of obtaining a down payment of one-half the total price of a job before starting work, he submitted an invoice to the defendants, calculated at $2.50 per square foot times one-half the estimated total square footage plus tax.

The plaintiff and a helper worked on the job from eight to ten hours a day, six days a week for two weeks. Representatives of Franklin were constantly in the area while the work was in progress. The patio measured 4800 square feet which, priced at $2.50 per square foot, amounted to $12,000 plus $960 tax, totaling $12,960. At the same time, the plaintiff also performed some unrelated work for $680.40, yielding a grand total of $13,640.40. A second bill, for the remainder of the work, was delivered to Franklin on July 27, the day before the patio was completed. Shortly thereafter, the plaintiff was paid $2000, leaving an outstanding bal[615]*615anee of $11,640.3 At trial, the defendants contended that the plaintiff was to be paid $30 per hour plus $15 per hour for a helper rather than by the square foot.

On July 24,1991, the trial court, Higgins, J., found that the defendants owed the plaintiff $11,640 and rendered an interlocutory judgment of foreclosure of the mechanic’s lien. On May 4, 1992, the trial court, R. O’Connell, J., rendered a judgment of foreclosure by sale and allowed the plaintiff $12,780 in attorney’s fees. Additional facts are included in our analysis of the law.

I

The defendants do not contest the trial court’s calculations or the credibility of the evidence. Their sole argument is that the evidence was insufficient to support the trial court’s conclusion that the defendants owed the plaintiff $11,640. We do not agree.

It is undisputed that the plaintiff built a 4800 square foot brick patio for the defendants and has not been fully paid. The memorandum of decision refers to, but does not recite, the subordinate facts the trial court relied on in reaching its $11,640 judgment figure. When we are presented with a claim that the court’s decision is not supported by the evidence, our duty on review is to examine not only the memorandum of decision, but also the entire record together with the exhibits and transcripts. McGaffin v. Roberts, 193 Conn. 393, 409, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985); In re Lea T., 15 Conn. App. 455, 457, 544 A.2d 1245 (1988); Buddenhagen v. Lugue, 10 Conn. App. 41, 45, 521 A.2d 221 [616]*616(1987). Our function on review is not to determine whether the trial court could have reached a different conclusion, but whether the one it did reach is clearly erroneous. Capital Consulting Group, Ltd. v. Rochman, 218 Conn. 396, 401, 589 A.2d 877 (1991); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The trial court, Higgins, J., rendered judgment for the plaintiff on each count of the complaint. The first count sought foreclosure of a mechanic’s lien, the second count alleged the existence of an express oral contract and the third count alleged unjust enrichment. The defendants correctly note that the judgment on the third count appears to be inconsistent with the judgment on the second count because proof of a contract ordinarily precludes the remedy of unjust enrichment. Polverari v. Peatt, 29 Conn. App. 191, 199, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992); Feng v. Dart Hill Realty, Inc., 26 Conn. App. 380, 383-86, 601 A.2d 547, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). Although the defendants filed a motion for articulation, the trial court denied the motion and the defendants neglected to pursue that denial through review by this court in accord with Practice Book § 4054. Consequently, the trial court was not directed to articulate on which of the conflicting principles it relied. Nevertheless, assuming arguendo that the judgment was improper, the error was harmless because there was sufficient evidence to support a judgment against the plaintiff for $11,640 under either theory.

A

The defendants’ contention that a contract providing for payment of $2.50 per square foot did not exist, implicates the fundamental doctrine of offer and acceptance. It is axiomatic that to create a contract there must be an unequivocal acceptance of an offer. Bridge[617]*617port Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970); Leigh v. Smith, 138 Conn. 494, 496, 86 A.2d 567 (1952). The law, however, does not require an express acceptance. Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., supra.

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Bluebook (online)
621 A.2d 759, 30 Conn. App. 612, 1993 Conn. App. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pleines-v-franklin-construction-co-connappct-1993.