Simonetti v. Lovermi

546 A.2d 331, 15 Conn. App. 722, 1988 Conn. App. LEXIS 322
CourtConnecticut Appellate Court
DecidedAugust 30, 1988
Docket5818
StatusPublished
Cited by19 cases

This text of 546 A.2d 331 (Simonetti v. Lovermi) 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
Simonetti v. Lovermi, 546 A.2d 331, 15 Conn. App. 722, 1988 Conn. App. LEXIS 322 (Colo. Ct. App. 1988).

Opinion

Bieluch, J.

This appeal by Gaeton Simonetti and his wife, Elizabeth P. Simonetti, and Clintonville Manor [723]*723Realty, which they own in partnership, contests an award of attorney’s fees in a breach of contract action where the party claiming attorney’s fees under the contract was found to have breached the contract, and the award of interest to that party. The Simonettis and Clintonville Manor Realty claim that the trial court erred in awarding attorney’s fees to the Lovermi Building Company after the trial court found that the company had breached the contract between the parties. They also claim that the court abused its discretion in awarding prejudgment interest on the damages awarded to the company. We find error in part.1

The following facts are relevant to the issues on appeal. These consolidated cases arose out of a contract for masonry work in the construction of a convalescent home in North Haven. Gaeton Simonetti was part owner of the land on which the home was being built, and his construction company, Simonetti Construction Company, was the general contractor of the project. The Lovermi Building Company, a corporation of which Peter H. Lovermi was president, was the masonry subcontractor.

The contract between Gaeton Simonetti and the Lovermi Building Company was signed on May 25, 1982.2 The company agreed to furnish labor and materials on the project for the sum of $148,500. The work began shortly after the contract was signed, and progressed to near completion. On October 8, 1982, however, the hostile personal relationship between Gaeton Simonetti and Peter H. Lovermi culminated in [724]*724an incident at the work site that led to Lovermi’s being ordered off the site by Simonetti. The court found that Lovermi’s conduct terminated the contract. Shortly after this incident, two actions were initiated.

In the first action, Simonetti v. Lovermi, Superior Court, judicial district of Ansonia-Milford, Docket No. 12135 (October 13, 1982), Simonetti claimed damage by the company’s stoppage of work. The second action Lovermi Building Co. v. Clintonville Manor Realty, Superior Court, judicial district of New Haven, Docket No. 211308 (October 27, 1982), sought foreclosure of a mechanic’s lien.3 A bond was substituted for the lien, and the claim was expanded to include not only a claim for the work completed under the contract, but also for alleged extras provided as well. This second action was subsequently transferred to the court at Milford, where the two actions were consolidated for trial.

The court rendered judgment on three of the four counts of the amended complaint in the first action in favor of Simonetti, the plaintiff in that case.4 Simonetti was awarded damages of $10,218.41, with interest from January 1, 1983. This judgment was subsequently opened on motion by Simonetti, and the award of damages was increased to $16,013.92, with interest from the same date. In the second action, the court rendered judgment for the plaintiff, Lovermi Building Company, and awarded it $35,429.22, with interest from January 1,1983.5 This figure included the sum of $7085.84 [725]*725awarded for attorney’s fees. The defendants in the second action have appealed from the judgment rendered in favor of the Lovermi Building Company.

The defendants first claim that the trial court erred in awarding attorney’s fees to the plaintiff, Lovermi Building Company, after the court had found that the company breached its contract with Gaeton Simonetti. We agree.

The court awarded attorney’s fees to the plaintiff under the provision of the contract between the parties which states: “If account is turned over to an attorney for collection, customer agrees to pay a reasonable attorney’s fee, computed on the unpaid balance.” The court found that a fee of 25 percent of the amount due to the plaintiff would be reasonable, and awarded a fee of $7085.84, a sum computed on the balance of $28,343.38 it found due for work and materials under the contract.

The plaintiff was entitled to recover for the work it had substantially performed under its contract. See Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 413-14, 538 A.2d 219 (1988); Vincenzi v. Cerro, 186 Conn. 612, 615-16, 442 A.2d 1352 (1982). Where a contractor is allowed recovery for the value of services rendered, “ ‘[sjuch recovery is allowed, not upon the original contract, for that has been breached, but in quasi-contract upon the theory that if such recovery were not allowed the other party would be unjustly enriched at the expense of the contractor.’ ” Automobile Ins. Co. v. Model Family Laundries, Inc., 133 Conn. 433, 439, 52 A.2d 137 (1947), quoting Kelley v. Hance, 108 Conn. 186, 188, 142 A. 683 (1928). See Morello v. J. H. Hogan, Inc., 1 Conn. App. 150, 152, 468 A.2d 1248 (1984).

The right of the plaintiff Lovermi Building Company to recover for the work it had performed was based [726]*726in equity, not upon the original contract between the parties. The trial court erred when it based the award of attorney’s fees on a provision of the contract which had been breached and was no longer in force. Attorney’s fees are recoverable only when a contract provides for such recovery or when it is allowed by statute. Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 297, 472 A.2d 306 (1984); Peterson v. Norwalk, 152 Conn. 77, 80, 203 A.2d 294 (1964); Bross Line Construction Corporation v. Ryan Crane Service Corporation, 32 Conn. Sup. 181, 182, 345 A.2d 594 (1975). The plaintiff could not recover attorney’s fees under the breached contract, and no such claim for statutory fees was involved in this case.

We also note that the plaintiff’s own breach precipitated the litigation in which the legal fees at issue were awarded. The plaintiff, because of its substantial performance, was entitled to recover the value of the materials and services supplied under the breached contract. It would be inequitable, however, to allow the party in default under the contract to recover attorney’s fees after its own wilful breach led to the litigation for which the fees were incurred.

We approve the well reasoned decision of the Court of Appeals of Louisiana in U-Finish Homes, Inc. v. Lanzl, 202 So. 2d 339 (La. App. 1st Cir. 1967). This was an action to recover under a mortgage note that provided for the payment of attorney’s fees. The note and mortgage secured payment due the plaintiff contractor under a contract to build three homes for the defendant.

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Bluebook (online)
546 A.2d 331, 15 Conn. App. 722, 1988 Conn. App. LEXIS 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simonetti-v-lovermi-connappct-1988.