Murallo v. United Builders Supply Co.

182 Conn.App. 594

190 A.3d 969

Randy MURALLO

v.UNITED BUILDERS SUPPLY CO., INC.

AC 40442

Appellate Court of Connecticut.

Argued February 15, 2018

Officially released June 12, 2018

Eugene C. Cushman, for the appellant (plaintiff).

Garon Camassar, for the appellee (defendant).

Lavine, Bright and Pellegrino, Js.

BRIGHT, J.

The plaintiff, Randy Murallo, appeals from the judgment of the trial court rendered after a trial to the court in favor of the defendant, United Builders Supply Co., Inc. The plaintiff claims that the court erred in finding that (1) the parties had not formed a contract and (2) the decking materials sold by the defendant were not defective. We conclude that the court's finding that no contract existed between the parties was clearly erroneous. Accordingly, we reverse in part the judgment of the trial court.

The following facts and procedural history, as found by the trial court or as undisputed in the record, are relevant to our review. In August and September, 2007, the plaintiff purchased sufficient quantities of GeoDeck materials for the construction of three outdoor decks on his property in Waterford, where he was building two houses. The plaintiff intended to occupy one of the houses (residence), which would include two decks. The plaintiff paid the defendant $4749.81 for the decking materials by way of two charges to his American Express account. All construction on the property, including the residence and the decks attached thereto, was completed in or about November, 2007, and the Waterford building official issued the plaintiff a certificate of occupancy for his residence at that time. Shortly thereafter, the plaintiff noticed spacing between the boards of the decks at his residence, and he contacted the defendant in order to have someone inspect the decks. Jared Beaulieu, the defendant's vice president, went to the plaintiff's property to inspect the decks, and he found that they appeared to be in good condition. The plaintiff also was told that the gaps between the boards would close as the weather became warmer during the summer.

The plaintiff moved into the residence in April, 2008, and by the fall of 2008, the plaintiff believed that the condition of the decks at his residence had gotten worse. He made several phone calls to the defendant regarding his complaint about the decks, and there were several e-mail exchanges between the plaintiff and the defendant's representatives. The plaintiff, believing that the defendant was not going to resolve his complaint, contacted American Express to dispute the charges to his account. Eventually American Express issued a charge-back on the defendant's account in January, 2009, so that the plaintiff was credited for the cost of the decking materials.¹

Following further discussions with the plaintiff, on September 2, 2009, Beaulieu sent an e-mail to the plaintiff stating: "[A]s discussed with you previously: 1. [W]e will not provide any material for the deck replacement at your home ... as the original material was credited back through you[r] merchant card. 2. [W]e will provide the labor with our own crew for the replacement of the deck when and if it is replaced by you ... that labor would preferably be during a ‘down’ time of our business year." On that same date Beaulieu sent another e-mail with a quote for certain decking materials, with the notation "will refine if and when ready." There were no further communications between the plaintiff and the defendant until April, 2011, when the defendant sent an account statement to the plaintiff that reflected a balance on the plaintiff's account.² The plaintiff returned the account statement to the defendant with a handwritten notation indicating that the plaintiff wanted to replace his decks, and he needed to "schedule workers" to perform the labor at no charge. The defendant never provided the labor to replace the plaintiff's decks.

In May, 2013, the plaintiff commenced this action against the defendant in small claims court as a self-represented party. In June, 2013, the defendant had the matter transferred to the regular docket of the Superior Court pursuant to Practice Book § 24–21. On July 23, 2013, after obtaining counsel, the plaintiff filed the seven count operative complaint, alleging, inter alia, breach of contract arising from the defendant's failure to provide the labor to replace the decks at the plaintiff's residence.³ In addition, the plaintiff sought attorney's fees pursuant to General Statutes § 52–251a⁴ in the seventh count of the operative complaint. The case was tried to the court over the course of two days on April 26 and April 27, 2017.

At trial, the plaintiff testified that he and Beaulieu had reached an agreement to resolve the plaintiff's complaint whereby the plaintiff would pay for new decking materials and the defendant would provide the labor to install the decks. After reaching that agreement, the plaintiff asked Beaulieu to put the agreement in writing, and Beaulieu sent the e-mail to the plaintiff memorializing their agreement on September 2, 2009. Beaulieu acknowledged, on two separate occasions during his testimony at trial, that the September 2, 2009 e-mail set forth the parties' agreement. On the first day of the trial, the following examination occurred between plaintiff's counsel and Beaulieu:

"Q: Okay. And you set forth what your agreement is in this e-mail, did you not?

"A: Yes, but, once again, you're leaving out timeliness.

"Q: I'm not asking [about] timeliness. I'm asking if you agree in that document that you [would] provide the labor to replace [the plaintiff's] deck[s].

"A: That's correct."

Then, on the second day of the trial, the following examination occurred between plaintiff's counsel and Beaulieu regarding the September 2, 2009 e-mail:

"Q: The document says, as we discussed previously, correct?

"A: Yes. Okay.

"Q: Okay. What does that mean?

"A: Obviously we had a telephone conversation.

"Q: All right. And did you come to an agreement?

"A: I believe that this was—we will not provide any material for the deck replacement at your home as the original material was credited back to your merchant card. We will provide the labor with our own crew for the replacement of the deck when and if [replaced] by you, that labor would preferably be at our down time.

"Q: Now, does that reflect the discussion you had previously?

"A: Judging on this I'd say yes....

"Q: You reached a verbal agreement and then you put it in writing.

"A: It looks that way to me, sir."

After trial, the court rendered judgment in favor of the defendant on all counts of the plaintiff's complaint. Despite the testimony of both the plaintiff and Beaulieu regarding their agreement, the court found, inter alia, that the September 2, 2009 e-mail was an offer that the plaintiff never accepted, and, therefore, the court held that there was no contract between the parties. This appeal followed.

I

The plaintiff first claims that the court's finding that the e-mail dated September 2, 2009, was an offer that the plaintiff never accepted is clearly erroneous. We agree.

"The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence.... To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... In making this determination, every reasonable presumption must be given in favor of the trial court's ruling....

"In order for an enforceable contract to exist, the court must find that the parties' minds had truly met.... If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make.... [A]n agreement must be definite and certain as to its terms and requirements." (Citations omitted; internal quotation marks omitted.) Electrical Wholesalers, Inc. v. M.J.B. Corp. , 99 Conn. App. 294, 301–302, 912 A.2d 1117 (2007).

The court held that there was no contract between the parties on the basis of its finding that the September 2, 2009 e-mail was an offer from the defendant that the plaintiff never accepted. Our review of the record does not reveal any evidence that supports the court's finding that the e-mail constituted an offer. Both the plaintiff and Beaulieu⁵ acknowledged that they had reached an agreement following their discussions regarding the plaintiff's complaint. They further agreed that the September 2, 2009 e-mail set forth their agreement that the defendant would provide the labor necessary to replace the plaintiff's decks when the plaintiff purchased new materials. Furthermore, the trial court acknowledged that the parties had reached an agreement during the plaintiff's closing arguments. Plaintiff's counsel asserted that Beaulieu agreed that the e-mail reflected the agreement he had reached with the plaintiff and the court responded: "More or less, yes."

On the basis of our review of the record, we conclude that the court's finding that the e-mail...