Rosick v. Equipment Maintenance & Service, Inc.

632 A.2d 1134, 33 Conn. App. 25, 1993 Conn. App. LEXIS 429
CourtConnecticut Appellate Court
DecidedNovember 9, 1993
Docket11686
StatusPublished
Cited by58 cases

This text of 632 A.2d 1134 (Rosick v. Equipment Maintenance & Service, Inc.) 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
Rosick v. Equipment Maintenance & Service, Inc., 632 A.2d 1134, 33 Conn. App. 25, 1993 Conn. App. LEXIS 429 (Colo. Ct. App. 1993).

Opinion

Heiman, J.

The plaintiff appeals from the trial court’s judgment dismissing counts one and two of the complaint and in favor of the named defendant1 on count three of the complaint.2 On appeal, the plaintiff asserts that the trial court improperly (1) refused to allow him to present evidence concerning invoices for work done by him to establish that the payments for such work had been made without prior written authorization by the named defendant, Equipment Maintenance and Service, Inc. (Equipment), (2) denied the plaintiff’s motion to amend his complaint to conform the pleadings to the proof at trial, (3) granted the defendants’ motion for judgment of dismissal for failure of the plaintiff to make a prima facie case as to counts one and two, and (4) found that Equipment was not obligated to pay for additional loads of topsoil delivered to the job site. We affirm the trial court’s judgment.

The following facts are necessary for a proper resolution of this appeal. On November 18, 1988, Equipment contracted with the Metropolitan District for the construction of a sanitary bypass sewer and under[27]*27ground comminutor adjacent to the terminal pump station at Bradley International Airport. On July 21,1989, Equipment subcontracted with the plaintiff, Ted Rosick, doing business as Ted Rosick Construction, to excavate for the installation of a bypass comminutor, a ten inch sewer line, a fifteen inch sewer line, manholes, and conduits. Additionally, the subcontract called for the installation of a stabilization pad, a ten inch sewer line, a fifteen inch sewer line, concrete channels, manholes, a precast chamber, a silt fence, a fine grade, and pavement and curbs around the station. The subcontract called for the work to be substantially completed no later than August 31, 1989. Equipment agreed to pay Rosick $28,025 under the subcontract.

The subcontract contained two provisions central to this appeal. Section 11.9 stated that “the subcontractor may be ordered in writing by the Contractor [Equipment], without invalidating this Subcontract, to make changes in the work within the general scope of the Subcontract consisting of additions, deletions or other revisions, the Contract Sum and the Contract Time being adjusted accordingly. The Subcontractor, prior to the commencement of such changes or revised work, shall submit promptly to the Contractor written copies of any claim for adjustment to the Contract Sum and Contract Time for such revised work in a manner consistent with the Contract Documents.” Section 11.10 stated that “the Subcontractor shall make all claims promptly to the Contractor for additional cost, extension of time, and damages for delays or other causes in accordance with the Contract Documents. Any such claim which will affect or become part of a claim which the Contractor is required to make under the Contract Documents within a specified time period or in a specified manner shall be made in sufficient time to permit the Contractor to satisfy the requirements of the Contract Documents. Such claim shall be received by the [28]*28Contractor not less than two working days preceding the time by which the Contractor’s claim must be made. Failure of the Subcontractor to make such a timely claim shall bind the Subcontractor to the same consequences as those to which the Contractor is bound.” Section 11.9 refers to “change orders” while § 11.10 refers to “additional costs.”

The plaintiff began work on or about July 23, 1989. The job required him to perform additional work, which he catalogued on seventeen invoices. Equipment paid the plaintiff an additional $5589 in compensation for work billed in six invoices leaving eleven invoices unpaid. The unpaid invoices charged for time that the plaintiff’s machines were idle and for moving machinery due to delays, removing unsuitable material, using hoe pac3 to compact the fill at the job site, supplying bankrun gravel for backfill,4 raising two manhole frames and covers, providing topsoil, some of which was rejected, recutting the roadway, paving around the comminutor, and renting warning lights and taped drums due to delays. The plaintiff never filed a written claim to change or revise the contract for this work. He claimed that Equipment owed him $20,756 for the additional work.

The plaintiff filed a complaint, which was later amended, alleging that “the plaintiff has provided said materials and labor as required under the terms of said contract, and the plaintiff, at the request of [Equipment] and in accordance with the provisions in section 11.9 of said contract, provided certain additional materials and labor on said project.” At the end of the plaintiff’s case-in-chief, the trial court dismissed counts one [29]*29and two of the complaint on the ground that the plaintiff had failed to produce written change orders. The trial court permitted the case to proceed on count three of the complaint, but only as to the invoice claiming that money was owed for the providing of topsoil. The trial court found that the topsoil claim was outside the scope of the contract while the other claims were within it. At the conclusion of Equipment’s case, the trial court found that the plaintiff had not proven the elements necessary to recover under a quantum meruit theory. The trial court stated that the plaintiff failed to substantiate the amount of topsoil used, the amount rejected, or the reasonable unit price. This appeal followed.

I

The plaintiff first claims that the trial court improperly refused to allow him to present evidence concerning invoices for other work he had done that was paid for by Equipment despite a lack of prior written authorization. We are not persuaded.

Certain additional facts are necessary for a proper resolution of this issue. At trial, the plaintiff introduced a ledger sheet kept by him in the ordinary course of business. The ledger revealed the payment records for the Bradley Field pump project. The ledger indicated that Equipment paid him the full contract price totaling $28,025. The ledger also disclosed payment of six additional invoices totaling $5589. Finally, the ledger revealed an outstanding balance of $20,756 for eleven invoices. The eleven unpaid invoices are the basis of this action.

During direct examination of the plaintiff, an attempt was made to elicit testimony as to whether the work completed in connection with the six paid invoices had been authorized in writing. The plaintiff argued that the evidence was admissible to show that the parties [30]*30had orally changed the contract and to show the course of conduct between the parties. The defendants objected to the admission of the evidence on the ground of relevancy. The defendants stated that the written contract required written change orders and that oral change orders in the past could not alter the contract requirements. Further, the defendants objected on the ground that the evidence was outside the scope of the complaint, which alleged neither oral changes to the contract nor changes based on a course of conduct. Instead, the complaint alleged that the parties had complied with § 11.9 of the contract. The trial court sustained the defendants’ objection on the basis of relevance. The plaintiff failed to take an exception, pursuant to Practice Book § 288,5 to the trial court’s ruling.

We first address the threshold question of whether Practice Book § 288, as amended, applies retroactively.

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Bluebook (online)
632 A.2d 1134, 33 Conn. App. 25, 1993 Conn. App. LEXIS 429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosick-v-equipment-maintenance-service-inc-connappct-1993.