Opinion
FBTCV176064929S
01-25-2019
VIKING CONSTRUCTION, INC. v. TMP CONSTRUCTION GROUP, LLC
UNPUBLISHED OPINION
OPINION
STEWART, J.
The defendant TMP Construction Group, LLC (TMP) has moved to set aside the verdicts and moved for a new trial on four of the claims in its counterclaim: breach of modified contract, anticipatory breach of contract by Viking Construction, Inc. (Viking), civil theft and conversion. The claims in this case arise out of a construction project known as the Crescent Crossing 1B Project. Viking was the general contractor on that project, and it entered into a subcontract (Plaintiff’s Exhibit 1) with TMP as a subcontractor to furnish labor and equipment to install dry wall, interior trim work and other related work for a lump sum payment of $ 1.5 million.
TMP is not moving on the first count, alleging promissory estoppel.
I. TMP’S MOTION TO SET ASIDE
This court "possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence." (Internal quotation marks omitted) Howard v. MacDonald, 270 Conn. 111, 126, 851 A.2d 1142 (2004). A trial court "should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality." (Internal quotation marks omitted.) Id. In ruling on TMP’s motion, this court must view the evidence introduced at trial in the light most favorable to sustaining the verdict. Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999).
A. Breach of Modified Contract
In support of the second count of its counterclaim, TMP put on evidence from which a reasonable jury could conclude that TMP and Viking entered into a modified contract that required TMP to increase its manpower at the site to forty workers and that required Viking to reimburse TMP bi-weekly for its labor and materials costs above the original lump sum contract price of $ 1.5 million. The jury answered interrogatories in connection with this claim and responded that TMP had proved by a preponderance of the evidence that (1) the parties had reached an agreement and mutual understanding as to the essential terms of a modified contract, (2) that Viking agreed to increase the contract price above the $ 1.5 million lump sum in the original contract, and (3) that TMP had provided consideration different from that under the original contract. However, the jury next found that TMP had not proved by a preponderance of the evidence that TMP had performed its obligations under the modified contract. Based on that negative answer, the jury was directed to fill in the verdict form on that count for Viking and against TMP.
TMP moves to setaside that verdict, on the grounds that the court erred by failing to give TMP’s requests to charge numbers seven and eight, and by refusing to admit into evidence Defendants’ Exhibit TTT. The court will first address the requests to charge. TMP submitted timely written requests to charge, and numbers seven and eight were included among those. A trial court should not instruct the jury in accordance with a request to charge unless it is a correct statement of the governing legal principles. Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 943 A.2d 430 (2008). Because requests numbers seven and eight did not correctly state all of the governing law, it was proper for the court not to give them.
TMP’s Request to Charge Number seven read as follows:
In construction cases, such as this, the failure of a general contractor to make due progress payments to a subcontractor, or to refuse all further contractually due installment payments until a project is completed, or both, is a breach of the parties’ contract so substantial as to render the contract nugatory [or invalid]. A failure to make a progress or installment payment due goes to the essence of a contract.
So, if you find that the parties did indeed modify their contract in the manner claimed by TMP and that thereunder there was a progress payment due and owing to TMP for labor costs, which Viking failed to make, you should find Viking in material breach of the modified contract.No. 207.00. TMP’s sole authority for that request was Coppola Construction Co. v. Hoffman Enterprises Limited Partnership, 157 Conn.App. 139, 173 A.3d 876, cert. denied, 318 Conn. 902, 123 A.3d 882 (2015).
Coppola is distinguishable from the evidence at this trial. In Coppola, the Appellate Court held as a matter of law that the owner of the project had breached the construction contract with the general contractor. Id. at 173, 173 A.3d 876. Indeed, in the language immediately preceding the language that TMP quotes in its request number eight, the Appellate Court observed that the owner had anticipatorily breached the contract. In the present case, by contrast, the jury responded in the negative to the interrogatory asking whether Viking anticipatorily breached the contract between Viking and TMP. See Interrogatory No. 3 (No. 215.00). Furthermore, in Coppola, most of the contractor’s claim for the payments referred to in the language of the request to charge was based on negotiated and signed change orders. Id., 153, 173 A.3d 876. There were no such change orders in this case.
Finally, the requested charge, even when combined with TMP’s other requests, is missing an essential element of TMP’s breach of modified contract claim-that TMP itself performed the contract. As the Coppola decision itself states: "[t]he required elements necessary to sustain an action for breach of contract are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (emphasis added) (Internal quotation marks omitted.) Id. at 159, 173 A.3d 876, citing Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A.2d 1236 (2006). The court’s instructions and accompanying interrogatories included all four of these required elements and tracked § 4.1-15 of the Civil Jury Instructions. If, as TMP argues, the court had skipped over the required element that TMP itself perform under the claimed modified contract in its instructions, the court would have erred.
Requests Nos. three through eight each addressed the breach of modified contract claim.
After the court instructed the jury, TMP objected to the court’s instruction that included the requirement that TMP perform the contract. Sept. 27, 2018 Tr.
The court’s instruction on breach of modified contract read as follows: Alternatively, TMP claims the parties modified the Subcontract and that Viking breached that modified Subcontract when it failed to continue to pay TMP. In order for TMP to prevail on this claim, it must prove that:
(i) The parties reached an agreement and mutual understanding as to the essential terms of the modification to the Subcontract;
(ii) Viking agreed to pay more than the Subcontract price of $ 1.5 million and that TMP agreed to provide consideration that differed from what it already was bound to provide Viking under the Subcontract.
(iii) TMP performed its obligations under the modified Subcontract;
(iv) Viking failed to perform its obligations under the modified Subcontract; and
(v) as a result, TMP sustained damages.Consideration may take the form of a promise to do or give something of value or a promise not to do something. The essence of consideration is a benefit or detriment that has been bargained for and exchanged for the promise. For example, a contract whose only terms are "You agree to pay me $ 200 next Tuesday" is not enforceable because you have not received anything of benefit and I have not given up anything. There is no consideration for your agreement to pay me $ 200. But if we change the contract so that its only terms are: "I will agree to sell you my bicycle next Tuesday if you agree to pay me $ 200," then the contract has consideration. You are receiving the benefit of the bicycle in exchange for giving up your $ 200.Court Ex. E.
Connecticut Civil Jury Instructions (4th Ed 2008) § 4.1-15, available at http.//www.jud.ct.gov/JI/Civil (last visited January 16, 2019).
TMP relies on Coppola in support of its argument that even though there was evidence to support a jury finding that TMP did not complete the project after May 19, 2017, TMP was still entitled to recover under its modified contract claim. Preliminarily, the court agrees with Viking that a reasonable jury could have found that TMP did not perform under the claimed modified contract for reasons beyond TMP’s departure from the job on May 19, 2017. There was evidence that TMP was not paying Marjam, that TMP was paying taxes unrelated to this project, and that the contract required TMP to continue to perform even if it had an objection. Secondly, as pointed out above, what Coppola held was that the owner, the party in Viking’s position, had anticipatorily breached the contract, and based on that finding, the contractor, the party in TMP’s position, was entitled to recover expectation damages. Here, there was an express finding by the jury that Viking did not anticipatorily breach the contract. See Interrogatory No. 3 (No. 215.00). Therefore, contrary to TMP’s argument, TMP was not released from further obligation to perform. There also was an express finding by the jury that TMP did not perform under the claimed modified contract. See Interrogatory No. 1C (No. 215.00). There was adequate evidence in the record for the jury to make each of these findings.
TMP’s two remaining claims of error on its breach of modified contract claim relate exclusively to the issue of damages. As an initial matter, neither of these claimed errors matter as the jury did not even reach the issue of damages. The jury found that TMP had not proved an element of liability-that TMP had performed under the modified contract. See Interrogatory No. 3 (No. 215.00). Thus, there was no need for the jury to consider damages Even assuming that TMP was correct that the court should have instructed the jury in accordance with TMP’s request number eight and that the court should have admitted Defendants’ Exhibit TTT in full, they would not have had any effect on the verdict.
The court did not err by declining to give TMP’s request number eight on damages. That request read as follows:
If you find Viking to be in breach of the modified contract as claimed by TMP, you need to then consider what damages, if any, to award to TMP.
The rule of damages in this case is that the measure of damages for such a breach of contract is the loss which TMP has thereby sustained, the rule in its more specific application, embraces two distinct elements of (1) TMP’s expenditures already incurred toward its performance under the contract, and (2) any profit TMP would have realized if it had been allowed to perform the whole contract.
In this case TMP is seeking damages only for its out of pocket expenses paid or incurred toward its performance under the subcontract, and under the law it is quite clear that TMP ought at least to made whole for such out of pocket expenses paid or incurred toward its performance under the subcontract. So far as appears to you, that such out of pocket expenses TMP claims were incurred in the fair endeavor to perform the subcontract, which it assumed.
If Viking claims that the out of pocket expenses paid or incurred by TMP were foolishly or unreasonably incurred, it, Viking, bears the burden of proving such to you by a preponderance of the evidence.No. 207.00
The court instructed the jury on damages for the breach of modified contract claim. The court’s instruction tracked Section 4-5.6 of the Civil Jury Instructions on the judicial website for expectation damages. That is the measure of damages our appellate courts repeatedly have held are appropriate for a breach of contract claim. Indeed, Coppola, the case TMP relies on for its earlier argument in support of its liability request number seven, expressly held that the remedy for the contractor was expectation damages. 157 Conn.App. at 173, 173 A.3d 876. For its damages claim, TMP abandons Coppola.
The court’s damages instruction read as follows:
Any damages you award to TMP on the claim of modified contract should be designed to place TMP, so far as can be done by money, in the same position as that which TMP would have been in had the contract been fully performed. You should determine the fair and reasonable value, in money, of the position TMP would have been in if Viking had fully performed the contract. Then you should determine the fair and reasonable value, in money, of the position TMP was in at the time of Viking’s breach of the contract. The difference between the amount for performance and the amount for breach should be your award.
Court Ex. E.
Connecticut Civil Jury Instructions (4th Ed. 2008) § 4-5.6, available at http://www.jud.ct.gov/JI/Civil (last visited January 16, 2019).
TMP’s sole authority cited for its request to charge number eight was Edward De V. Tompkins, Inc. v. City of Bridgeport, 94 Conn. 659, 110 A. 183 (1920). In Edward De V. Tompkins, Inc., a contractor sued the City of Bridgeport, claiming wrongful termination of a contract to build a bridge. The trial court found for the contractor, and the Supreme Court affirmed in all respects, including the award of damages. The court held that the measure of damages for breach of contract "is the loss which the injured party has thereby sustained." Id., 682, 110 A. at 191. The court went on to hold that that rule, as applied to the facts of Edward De V. Tompkins, Inc., allowed the contractor to recover two distinct elements of damages for the wrongful termination: "(1) expenditures already incurred towards performance, and (2) the profit he would realize by performing the whole contract." (Internal quotation marks omitted.) Id. The court discussed the element of lost profits and concluded that as long as they were not too speculative or remote and arise as a natural consequence of the injury, they are allowed as a component of damages. Id., 684, 110 A. at 192.
In this case, however, there was no evidence that Viking terminated TMP. Indeed, in its companion motion on Viking’s breach of contract claim, TMP makes much of the fact that Viking did not terminate TMP under Section 11.2, the termination clause of the original contract. See Plaintiff’s Exhibit 1. Furthermore, even though TMP does not appear to be seeking lost profits in request number eight, the reference to it could potentially have been misleading. There was no evidence that TMP had suffered lost profits under its modified contract. As Viking points out, TMP conceded in its closing argument that Viking paid TMP more than TMP paid out on the job. See Sept. 27, 2018 Tr. (arguing that Viking paid TMP $ 1, 149, 314 and that TMP paid out a total of $ 1, 135, 129).
As to the component of "out of pocket expenses paid or incurred" that TMP wanted the jury to award on the breach of modified contract claim, the only evidence of actual payments by TMP after TMP claims the parties modified the contract was testimony of Tawney Paige that TMP paid workers $ 67, 000 for the week ending May 12, 2017, and $ 56, 000 for the week ending May 19, 2017. This total of $ 123, 000 was included in the $ 1, 135, 129 that TMP argued in closing had been paid out by TMP. The court specifically limited this evidence to the promissory estoppel claim on the grounds that only that claim entitled TMP to reliance damages.
TMP argues that it also is entitled to reliance damages, not expectation damages as the court instructed, on the breach of modified contract claim. In support of its argument, TMP cites West Haven Sound Development Corp. v. City of West Haven, 201 Conn. 305, 328 (1986). While that case refers to Edward De V. Tompkins, Inc. for the proposition that "a party injured by breach of contract may under certain circumstances recover the cost of his reliance as part of his expectation interest," id. at 328, 514 A.2d at 746; it also held that the "general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed." Id. at 319, 514 A.2d at 741-42. That general rule was precisely what the jury was instructed on here. See n.6, supra. TMP has not demonstrated that it was error to instruct the jury that the measure of damages for its breach of modified contract claim was expectation damages, nor has it proved that the damages instructions made any difference when the jury’s verdict was based on a finding that TMP had not even proved liability.
Finally, TMP claims that the court erred in refusing to fully admit Defendants’ Exhibit TTT and the refusal to allow any evidence of costs or expenses that TMP had not yet paid. There was no Defendants’ Exhibit TTT See Exhibit List (No. 216.00). In the body of its argument, TMP refers to Defendants’ Exhibit SS. That document, which TMP attempted to introduce under the rule for admission of summaries, Conn. Code of Evid. § 10-5, was excluded on the grounds that the document was argumentative and that some of the items on the document represented amounts of money that TMP had not spent. The court did not commit harmful error in excluding this exhibit.
There was no basis under TMP’s modified contract theory to allow the jury to consider expenditures not yet made by TMP. The evidence on which a jury could have found that there was a modified contract was Olin Paige’s testimony that at a so-called whiteboard meeting, representatives of TMP and Viking calculated the number of man hours TMP needed to complete the project, the amount of money needed to pay their wages, taxes and workers’ compensation, and the amount of money needed to pay TMP’s drywall supplier, Marjam. Sept. 25, 2018 Tr. He testified that they calculated that this would result in $ 230, 000 over the amount contemplated in the original $ 1.5 million lump sum contract. Id. He also testified that Viking’s president, Anthony Gaglio, agreed to pay this on the condition that TMP not "profit 10 cents off of the job." Id. Therefore, a reasonable jury could have found that Viking agreed to pay TMP an extra $ 230, 000 if the jury had found that TMP performed under the modified contract (which it did not so find) and if TMP had actually paid its workers, paid the taxes and workers’ compensation and paid Marjam.
Evidence of amounts of money TMP did not actually pay was not relevant. As the Appellate Court recognized in Coppola, "[i]t is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been in had the contract been performed ... The injured party, however, is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain ... Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach ... The concept of actual loss accounts for the possibility that the breach itself may result in a saving of some cost that the injured party would have incurred if he had had to perform ... In such circumstances, the amount of the cost saved will be credited in favor of the wrongdoer ... that is, subtracted from the loss ... caused by the breach in calculating [the injured party’s] damages." (Emphasis added; internal quotation marks omitted.) 157 Conn.App. at 162, 117 A.3d at 894 (quoting Argentinis v. Gould, 219 Conn. 151, 157-58, 592 A.2d 378 (1991)). Amounts not spent by TMP were not part of its actual loss.
For the foregoing reasons, the motion to set aside the verdict on the breach of modified contract claim is denied.
B. Anticipatory Breach
TMP next moves to set aside the jury verdict on its claim that Viking anticipatorily breached the contract. It bases its motion on its argument that the court erred in its instruction to the jury and in its interrogatory number three. The instruction read as follows:
TMP claims that on Friday, May 19, 2017, Viking’s president Anthony Gaglio notified TMP’s managing member, Olin Paige, III, that Viking was not making any payment to TMP on that day, and that Viking was not going to pay anything further to TMP on the subcontract until TMP completed the drywall work. TMP claims that this was an anticipatory breach of the contract.
An anticipatory breach of contract occurs when one party to a contract indicates that it will not perform its obligations under the contract before the time for performance has arrived. This indication can occur either by a statement that the party will not perform or by an act that indicates an unwillingness to perform. In order to recover based on an anticipatory breach of contract, TMP must also prove that it would have been able to perform under the contract.Court Ex. E. TMP complains that the instruction is misleading because it allows TMP to prove the anticipatory breach by a statement or an act. Although TMP argues that its claim was exclusively based upon a statement by Viking, not an act, the evidence supported a theory or a statement or an act. If the jury had credited it, Olin Paige’s testimony that Viking refused to pay could have been a statement or an act. Moreover, this instruction is correct as a matter of law. It tracks the model instruction for anticipatory breach, in § 4.2-25 of the Civil Jury Instructions. The court cannot see how TMP was harmed by giving the jury the alternative of a statement or an act to find an anticipatory breach.
TMP’s other claim of error is based on Jury Interrogatory No. 3, which asked the jury:
Has TMP proven by a preponderance of the evidence that Viking’s refusal to pay additional monies on or after May 19, 2017 was a definite and unequivocal manifestation of intent not to render a promised performance under the Subcontract?No. 215.00. The jury answered this question "no," and based on that negative answer, reached a verdict in favor of Viking and against TMP on the claim of anticipatory breach. TMP argues that the jury was confused by the interrogatory, because the interrogatory responses show an X next to yes, which X is scratched out and the word "void" is placed next to it. TMP specifically cites the fact that the court sent the jury back to answer interrogatories to correspond with its verdict. However, the court sent the jury back because, although the jury had filled in the verdict forms for Viking’s claims in its second amended complaint, it had not filled in the corresponding interrogatories. While it is possible that before the jury returned with its verdict, it put an X next to yes for this interrogatory number three, it does not establish that the jury was confused or that there is anything wrong with this interrogatory. Although the interrogatory did not quote the instruction word for word, it did communicate the element of manifesting an intent not to perform, which is required for proof of anticipatory breach. Therefore, there is no error in the interrogatory.
Connecticut Civil Jury Instructions (4th Ed. 2008) § 4.2-25, available at http://www.jud.ct.gov/JI/Civil (last visited January 16, 2019).
TMP also argues that the court should have used TMP’s proposed interrogatory, which asked:
Do you find by a preponderance of the evidence that on the afternoon of Friday May 19, 2017 during a telephone conversation with Olin Paige, that Viking’s president Anthony Gaglio told Olin Paige in no uncertain terms that Viking was not going to pay anything further to TMP on the parties’ subcontract until TMP had completed its contract work complete and final?No. 221.00.
This seeks a factual finding untethered to any of the required elements of an anticipatory breach claim. Indeed, even if the jury had answered yes, the jury still could have found on the evidence presented that TMP had breached the original lump sum contract it had with Viking. It certainly would not have assisted the jury in reaching a verdict on the anticipatory breach count, nor would it have helped the parties and the court understand how the jury reached its verdict. See Hammer v. Mount Sinai Hospital, 25 Conn.App. 702, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). The court did not err by refusing to give this interrogatory.
C. The Conversion and Civil Theft Claims
TMP moves to set aside verdicts on the fourth and fifth counts of its counterclaim for conversion and civil theft of its tools. For each of those claims, the jury found that TMP proved that the tools belonged to it and that Viking took possession of them, but the jury also found that TMP had failed to prove that Viking was not authorized to retain the tools. See Interrogatories Nos. 4-4B, 5-5B (No. 215.00). In each case, TMP claims that the jury’s conclusion that Viking was not unauthorized when it took possession was inconsistent, ambiguous, contrary to the evidence and against the law. TMP’s sole support for this claim is its speculation that "[i]t is likely here that the jury conflated the letter sent by Viking’s counsel in June of 2018 offering to return some of the tools on TMP list, which offer was not taken up by TMP, as some form of ‘authorization.’ "
Viewing the evidence introduced at trial and the inferences from that evidence in the light most favorable to sustaining the verdict, this court cannot agree with TMP that the only evidence relating to whether Viking’s actions were or were not authorized was Viking’s counsel’s letter. Both Olin Paige and Gary Pullen admitted that they left the tools in Viking’s possession. Sept. 25, 2018 Tr. Furthermore, Olin Paige admitted that the first effort he made to recover the tools was when his counsel filed a counterclaim asserting conversion and civil theft on May 25, 2018 and that Viking’s counsel’s letter offering to return the tools arrived within thirty days of that claim. Id. This court "should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion" that Viking’s retention of the tools was not unauthorized. (Internal quotation marks omitted.) Howard, 270 Conn. at 126, 851 A.2d 1142.
For the foregoing reasons, TMP’s motion to set aside the verdict as to its own counterclaims is denied in all respects.
II. TMP’S MOTION FOR A NEW TRIAL
This court may, in its discretion, grant a new trial "when necessary to serve the great end of all trials, a fair and impartial administration of justice." (Internal quotation marks omitted.) Duart v. Dept. of Correction, 303 Conn. 479, 486, 34 A.3d 343, 347 (2012). Our Supreme Court "consistently has required parties to demonstrate the likelihood of a different result." Id. As grounds for such a motion, the moving party must demonstrate (1) newly discovered evidence, Davies v. Jezek, 123 Conn.App. 555, 565, 3 A.3d 112, 119 (2010); (2) fraud or misconduct, Duart, 303 Conn. at 489, 34 A.3d at 349; (3) jury bias or misconduct, Connecticut Light & Power v. Gilmore, 289 Conn. 88, 105-06, 956 A.2d 1145 (2008); or (4) other substantial grounds, Johnson v. Board of Education, 130 Conn.App. 191, 209-11, 23 A.3d 68 (2011), appeal dismissed, 310 Conn. 302 (2013) (failure of judge to recuse). Here, TMP has not established any of these grounds, nor has it demonstrated the likelihood of a different result even if the court had given its proposed instructions or admitted its proposed evidence. Accordingly, TMP’s motion for a new trial is denied.
III. VIKING’S MOTION FOR COSTS
Viking has moved for its costs of responding to this motion on the grounds that this court has inherent authority to impose sanctions for "dilatory, bad faith and harassing litigation conduct," citing DuBois v. William W. Backus Hospital, 92 Conn.App. 743, 748, 887 A.2d 407 (2005), cert. denied, 278 Conn. 907 (2006), where the sanctioned party had engaged in a consistent pattern of discovery abuse throughout the litigation. Viking argues that sanctions are appropriate here because TMP admitted during trial that it could not prove actual "out of pocket" damages and that therefore these motions were part of an effort to pursue frivolous damages. Although the court denied all of the relief requested by TMP in its motions, the court finds that TMP’s conduct in pressing the motions was not part of an effort to pursue frivolous damages.
Our Supreme Court has adopted the following standards: "[A]n action is frivolous ... if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law." (Emphasis omitted; Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 254-55, 828 A.2d 64, 95 (2003), quoting Rule of Professional Conduct 3.1. Viking has not established that either of these standards have been met here. Therefore, the court denies Viking’s motion for costs.
CONCLUSION
For the foregoing reasons, TMP’s Motion to Set Aside and Motion for a New Trial are denied, and Viking’s Motion for Costs is denied.