Viking Construction, Inc. v. TMP Construction Group, LLC

VIKING CONSTRUCTION, INC. v. TMP CONSTRUCTION GROUP, LLC

No. FBTCV176064929S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

January 24, 2019

UNPUBLISHED OPINION

File Date: January 25, 2019

MEMORANDUM OF DECISION ON DEFENDANT TMP CONSTRUCTION GROUP, LLC’S MOTION FOR JUDGMENT OF DISMISSAL AND MOTION TO SET ASIDE THE VERDICT ON PLAINTIFF VIKING CONSTRUCTION INC.’S COMPLAINT AND PLAINTIFF VIKING’S MOTION FOR SANCTIONS

STEWART, J.

The defendant, TMP Construction Group, LLC (TMP), filed motions in the alternative as to the jury verdict on the plaintiff Viking Construction, Inc. (Viking)’s, breach of contract claim in count one of the second amended complaint. TMP moves first for a judgment of dismissal on the grounds that there is no justiciable controversy on that claim and moves in the alternative that the verdict should be set aside and judgment should enter for TMP on the grounds that the contract as a matter of law precluded the jury from awarding relief to Viking on that claim.

I. TMP’S MOTION FOR JUDGMENT OF DISMISSAL

TMP moves for a judgment of dismissal, contending that the court does not have subject matter jurisdiction over Viking’s breach of contract claim because there is no justiciable controversy. Specifically, TMP argues that there is no justiciable controversy because there is no practical relief for Viking on that claim.

Once subject matter has been raised, this court must determine whether it has jurisdiction "before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102, 1109 (2003). Subject matter jurisdiction "is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) Rayhall v. Akim Co., Inc., 263 Conn. 328, 339, 819 A.2d 803, 811 (2003). Subject matter jurisdiction can be raised at any stage of the proceedings, including on appeal. Reinke v. Sing, 328 Conn. 376, 382, 179 A.3d 769, 772 (2018). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotations omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60, 67 (2013).

Subject matter jurisdiction requires that there be a justiciable controversy. Milford Power Co., LLC v. Alstrom Power, Inc., 263 Conn. 616, 623-25, 822 A.2d 196, 200-01 (2003). "Justiciability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court’s subject matter jurisdiction and its competency to adjudicate a particular matter ... Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power ... and (4) that the determination of the controversy will result in practical relief to the complainant." (Citation omitted; internal quotation marks omitted.) Mendillo v. Tinley, Renehan & Dost, LLP, 329 Conn. 515, 523, 187 A.3d 1154, 1159-60 (2018).

At oral argument, TMP contends that Viking’s breach of contract claim is not justiciable because there can be no practical relief. As the court understands TMP’s argument, the only way Viking can recover more than the balance to bill that it retained from paying TMP under the contract is if Viking had terminated TMP under § 11.2 of the contract between them. TMP further argues that because Viking did not terminate under § 11.2, Viking cannot recover anything above and beyond the amount it retained from TMP. TMP concludes on the basis of this interpretation that because there is no practical relief for Viking, there is therefore no justiciability and no subject matter jurisdiction.

When a court holds that there is no practical relief, the typical reason is that the issue is moot. See, e.g., Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 366-67, 957 A.2d 821, 826 (2008). Indeed, "[t]he test for determining mootness is not [w]hether the [plaintiff] would ultimately be granted relief ... The test, instead, is whether there is any practical relief this court can grant the [plaintiff]." (Internal quotation marks omitted.) Glastonbury v. Metropolitan District Commission, 328 Conn. 326, 336, 179 A.3d 201, 207 (2018). "[W]hile practical relief may be difficult to articulate or implement, if there is any practical relief available, then the court may exercise jurisdiction." Id., 208, 179 A.3d at 208.

Here, the jury returned a verdict in favor of Viking on the breach of contract claim and awarded damages of $ 45, 373.88, which is the total of what Viking paid for two other vendors to repair allegedly defective work pertained by TMP. See Plaintiff’s Ex. 115. Notably, the jury did not award Viking its claimed "excess costs to complete" of $ 339, 706.34, which is the amount in excess of the $ 350, 685.66 balance to bill that Viking paid another vendor who came in to finish the job after TMP no longer was working on the project. Plaintiff’s Ex. 115.

As set forth in detail below, in the present case, TMP has not established that Viking had no practical relief available to it under any provision of the contract between the parties nor has TMP established that it did not anticipatorily breach the contract, which anticipatory breach would have freed Viking from following the contract. See, e.g., Coppola Construction Co., Inc. v. Hoffman Enterprises Limited Partnership, 157 Conn.App. 139, 161-62, 173 A.3d 876, 893-94 (2015). Accordingly. the court denies the motion to dismiss.^[1]

II. TMP’S MOTION TO SET ASIDE

TMP also moves to set aside the jury’s verdict on count one for breach of contract. 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, 1150 (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. Ormsby v. Frankel, 255 Conn. 670, 692, 768 A.2d 441, 453 (2001).

In support of its motion to set aside the verdict, TMP argues that (1) the court, rather than the jury, should have decided the breach of contract issues; (2) the court erred in instructing the jury on the manner in which it was to assess damages rather than giving the charge TMP requested; and (3) the verdict is ambiguous as to whether the amount that the jury awarded was intended to be assessed against the balance to bill amount that Viking held back or intended to be paid by TMP as damages on top of the amount held back by Viking.

A. The Jury Properly Decided the Breach of Contract Issues

First. TMP argues that the court, rather than the jury, should have decided the breach of contract issues in the first count of Viking’s second amended complaint because interpretation of a contract is a matter of law for the court. The court disagrees. The issues to be decided were whether there was a contract between the parties; whether Viking performed under the contract; whether TMP performed under the contract; and if TMP did not perform, whether Viking sustained damages and how much those damages were.^[2] Each of these were issues of fact. See CCT Communications, Inc. v. Zone Telecom Inc., 324 Conn. 654, 675, 153 A.3d 1249 (2017), superseded on reconsideration on other grounds, 327 Conn. 114, 172 A.3d 1228 (2017). No contract interpretation was required to decide any of the elements of this claim. At most, even under TMP’s view of the case, only the issue of whether Viking can collect damages over and above the balance that Viking withheld would require contract interpretation.

More significantly, the jury needed to make its factual findings before the court can even consider the contract interpretation arguments that TMP puts forth. Now that the court has the jury’s interrogatory responses, the court knows that the jury found as a matter of fact that TMP did not perform under the contract. Interrogatory No. 1B (No. 215.00). This finding is well supported by the evidence that TMP stopped working on the project on May 19, 2017, and did not resume working in response to Viking’s May 19, 2017 and May 23, 2017 communications. Those communications also made it clear that if TMP did not return to the job, Viking would seek to recover damages in addition to retaining the balance to bill that it retained. See Plaintiff’s Exs. 61, 67. The court also knows that the jury found that Viking was only entitled to recover the cost to repair defects because the $ 45, 373.88 awarded exactly corresponds to the repair costs on Plaintiff’s Ex. 115.

The court will now consider whether a reasonable jury could have based its verdict that awarded Viking its repair costs on the contract. TMP argues that Viking cannot recover anything in excess of the balance to bill that it retained except under § 11.2 of the contract and that § 11.2 cannot apply unless Viking terminated the contract. In response, Viking agrees...