184 WINDSOR AVE., LLC v. STATE, No. CV 03-4018076S (May 16, 2008)


2008 Ct. Sup. 8256
No. CV 03-4018076SConnecticut Superior Court Judicial District of Hartford at Hartford
May 16, 2008

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]


“That is the secret. You must get to know the values.” Ernest Hemingway The Sun Also Rises I
The plaintiff who is a limited liability company, successor to 184 Windsor Avenue Limited Partnership, has filed a two-count amended revised complaint dated March 30, 2006. The first count is based on two leases with the defendant on or about May 20, 1998 for the State Board of Education and Services for the Blind (hereinafter referred to as BESB). The leases were for two suites, A and B, one to be used for administrative offices and the other for industrial purposes.

Count one asserts a cause of action in breach of contract. It is claimed that the plaintiff’s predecessor performed extensive work at the subject premises and that the State has failed and refused to pay for the work performed.

The second count claims that the plaintiff is entitled to the reasonable value of services rendered and work performed.

The defendant has filed an answer and special defenses to plaintiff’s amended revised complaint. The special defenses are as follows.

The Court lacks subject matter jurisdiction because the Claims Commissioner did not grant permission to sue the State as the claim alleged in the First Count.

CT Page 8257 It is the position of the State as to the special defense that the finding and order of the States Claims Commissioner limited the permission to sue the State to only a claim based on quantum meruit. The State argues that therefore the plaintiff is not entitled to sue the State in a contract or breach of lease suit.

The plaintiff’s claim is barred because the “change orders” were not approved modifications of the leases as required by paragraph 27 of the lease.

The plaintiff’s claim is barred because the plaintiff failed to obtain the approval of the State Properties Review Board for the “change order.”

A hearing was held on March 25, 2008, wherein the plaintiff presented the testimony of Frank LiPuma, who reviewed the lease specifications and provided certain “build-out” of the leased space, including 110 and 220 electrical drops. The latter was a provision of the lease (exhibit 1), section 2h which provides “110 and 220 electrical drops with feed rails to machinery as specified by the Lessee to the Lessor.”

The lease in question is dated May 20, 1998 and is between 184 Windsor Avenue Limited Partnership, owner of the leased premises and the State of Connecticut. The premises are described as Suite B and involve 43,464 of net usable square feet.

Mr. LiPuma referenced exhibit 2, which are requirements of the State of Connecticut. As to electrical outlets, the following is stated.

TBTABLE Production Area, high machine density — electrical outlets for 24 machines per 1000 sq. ft., 6 20A 220/3/60 6 20A 120/1/60 circuits per 1,000 sq. ft. Production Area, low machine density — electrical requirements of approximately 1/4 the level of the high density area TB/TABLE

Mr. LiPuma also alluded to a letter dated December 4, 1998 from Friar Associates, Inc., an architect hired by the plaintiff concerning electrical requirements for BESB industrial production areas.

CT Page 8258 The relevant portions of said letter states:

The information provided by BESB Industries, dated August 9, 1997, indicates that a total of 4,000 square feet of high machine density within the Production area is required with the electrical requirements being that for every 1,000 square feet of this space would have 24 machines which requires (6) 20A 220/3/60 and (6) 20A 120/1/60 circuits. This equates to a total of (24) 20A 220/3/60 and (24) 20A 120/1/60 circuits for the high machine density area. The low machine density area within the Production area was indicated at being 1/4 the requirements of high machine density area which equates to an additional (6) 20A 220/3/60 and (6) 20A 120/1/60 circuits. These two density areas within the Production area equate to (30) 20A 220/3/60 and (30) 20A 120/1/60 circuits total.

Mr. LiPuma indicated that the plaintiff hired Newington Electric to do the electrical work and received an initial estimated cost of $39,054. The electric work was done by Newington Electric on November 12, 1998.

Mr. LiPuma pointed out a letter dated March 4, 1999 from the plaintiff to Georgianne Killeen, Department of Public Works, State of Connecticut. The letter indicates that the plaintiff understood that 110 drops were all that were specified. However, the plaintiff was subsequently informed that the State required substantially more drops. The letter also indicates that the plaintiff made the electrical improvements required by the State with the understanding that the said improvements were made without prejudice to the plaintiff’s claims for a modification of the lease. The letter gives a cost breakdown of $162,209.37 for electrical upgrade, (39,050.00) original cost and (7,000) installation of meter for a balance of $116,155.37 plus reference to interest claimed.

By correspondence dated January 21, 1999, the plaintiff filed a lease modification submission to Georgianne Killeen of the Department of Public Works. Said correspondence including several exhibits and a letter from the plaintiff’s attorney. The attorney’s letter explains the plaintiff’s position and requests that the lease be modified to increase the rent to approximately seventy-five cents per square foot to allow the plaintiff to recapture the additional expense for the change in the electrical requirements.

Plaintiff’s exhibit 16 is a letter dated July 9, 1999 from Susan CT Page 8259 Amenta Hooper, Property Management Supervisor, Leasing and Property Transfer, Department of Public Works to George D. Edwards, Executive Director, State Properties Review Board. It is Re: “Agenda Item — Item Submission to State Properties Review Board Amendment to Lease.” It also states “The purpose of the enclosed amendment is to pay for added electrical drops to the workshop area requested by the occupying agency.” Approval was given by Kenneth Tripp, Executive Director, Commissioner, Department of Public Works and Marc S. Ryan, Secretary, Office of Policy and Management, however disapproval was made by Rowland Ballek, Chairman, State Properties Review Board. Therefore, the lease amendment proposal was not approved.

The defendant presented the testimony of John Whithan, who is the Director of Operations for BESB, he has worked at BESB for 22 years. Mr. Whithan indicated that they were at Shield Street in West Hartford and were required to move to the new address because BESB needed more space for their manufacturing operations. BESB manufactured various items such as T-shirts and sweat pants for the army, towels and flight bags. John Whithan indicated that BESB manufactured upward to 50,000 T-shirts per month. BESB uses sewing machines and cutting machines in its manufacturing process.

He also indicated that BESB had 65 machines at Shields Street, but more machines were going into the new address and that the machines would have to be moved from time to time. Mr. Whithan was involved with the electrical issues and indicated that the electrical requirements kept changing.

The defendant has submitted a correspondence dated October 20, 1998 from Mark E. Wertheim of the plaintiff to Joe Nesteriak of the defendant (defendant’s exhibit B). Said letter says in part,

Please be advised that we intend to complete the electrical requirements as per BESB’s wishes but leave open the issue of reimbursement for the cost of these additional drops. We would appreciate a meeting with you to further discuss this issue at your earliest convenience.

Plaintiff has submitted correspondence from Newington Electric dated November 19, 1998 (exhibits 9 and 10). Said documents show the electric requirements and the new indicated cost of $162,209.37.

CT Page 8260 The court will first discuss the defendant’s first special defense because it goes to the issue of whether the plaintiff can proceed on their claims in count one. The defendant asserts that the court lacks subject matter jurisdiction because the Claims Commissioner did not grant permission to sue the State as to the claim alleged in the first count.

This is an issue that was raised by the defendant in a motion to dismiss. Said motion was ruled on by Judge Miller. In that motion, the defendant argued that the Claims Commissioner authorized the plaintiff to sue the State on a quantum meruit theory, but not on a breach of contract theory. In denying the motion to dismiss, Judge Miller ruled,

There is no support anywhere in Chapter 53 of the General Statutes for the State’s contention that the Claims Commissioner, in granting permission to sue the State, has the authority to decide which causes of action may be pursued and which may not. The process by which the Attorney General reviews claims and decides which ones will be opposed was not established so that the Attorney General could come before the Commissioner and, essentially, move to strike anticipated causes of action which the State believes to be legally improper. The process exists so that the State’s lawyers have the chance to decide whether or not to argue the equities underlying each claim on behalf of their client.
Defense counsel has cited Judge Thompson’s decision in Esposito v. State of Connecticut, No. 358083 (J.D. of Hartford-New Britain at Hartford, April 20, 1989) to support its position. In that case, the plaintiff included causes of action based on facts not included in the notice of claim which the Commissioner approved, allowing plaintiff to sue the State. In the case now before the court, the information included in the notice of claim was clearly sufficient to put the Commissioner and the State on notice that plaintiff would be raising quantum meruit and breach of contract issues.

The position of the defendant in its first special defense raises the issue of the law of the case doctrine. Said doctrine refers to the practice of judges generally to refuse to reopen what has already been decided by a prior judge. CT Page 8261

In Johnson v. Atkinson, 283 Conn. 243, in discussing the law of the case doctrine, the Supreme Court held

A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision . . . This principle has been frequently applied to an earlier ruling during the pleading stage of a case . . . According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.
This court has determined that although a judge should be hesitant to rule contrary to another judge’s ruling, he or she may do so “[n]evertheless, if the case comes before him [or her] regularly and [the judge] becomes convinced that the view of the law previously applied by [a] coordinate predecessor was clearly erroneous and would work a manifest injustice if followed . . .” Id., 100. By way of example, this court has noted that “[t]he adoption of a different view of the law by a judge in acting upon a motion for summary judgment than that of his [or her] predecessor . . . is a common illustration of this principle . . . From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling.”

In reviewing this issue, the Court finds that no new evidence has been presented by the defendant and the circumstances have not changed since Judge Miller’s ruling.

This court, therefore, concludes that the issue in question was correctly decided by Judge Miller and therefore the law of the case doctrine applies.

A review of the plaintiff’s post-trial brief shows that its main claim CT Page 8262 for recovery is on a theory of unjust enrichment under count two. In the alternative the plaintiff argues for recovery for breach of contract under count one.

In its claim to recover for breach of contract under count 1, the plaintiff argues that the State requested the plaintiff to provide additional electrical work at the leased premises and that the State recognized that the cost of said work was $123,155.37, thus there was an express agreement to compensate the plaintiff for the additional electrical work.

The plaintiff refers to the position of the defendant who relies on ¶ 27 of the lease and contends that said paragraph does not bar plaintiff’s claims. Paragraph 27 provides:

Any modification of this lease or additional obligation assumed by either of the LESSOR or LESSEE in connection with this lease shall be binding only if evidence (sic) in writing signed by the LESSOR and the LESSEE or an authorized representative of the LESSOR or LESSEE, and approved by the Attorney General.

The plaintiff argues that ¶ 27 has no application to the claims for unjust enrichment. The plaintiff claims that the additional electrical work in question was outside the terms of the lease and that said work was requested by the State. The plaintiff maintains that when the parties have acted pursuant to an unenforceable contract or have acted in a manner that fails to strictly comply with the contract terms that the principles of unjust enrichment apply.

The court agrees with the state’s position that the state would not be liable for any additional obligations under the lease unless approved by the Attorney General and such approval has not been established.

Also the plaintiff cannot recover on a theory of quantum meruit in that where there is an express contract quantum meruit does not apply Somers v. Busch, 283 Conn. 396.

The remaining remedy that is available to the plaintiff is that of unjust enrichment.

“Determining whether the equitable doctrines of quantum meruit and unjust enrichment are applicable in any case requires a factual CT Page 8263 examination of the particular circumstances and conduct of the parties.”David P. Somers Associates, P.C. v. Busch, 283 Conn. 396, 407, 927 A.2d 832 (2007).

“A party may not recover the reasonable value of services rendered, pursuant to the doctrine of quantum meruit, when the actions for which it seeks relief were governed by an express contract.” Id., 408. “[Q]uantum meruit [is a form] of the equitable remedy of restitution by which a plaintiff may recover the benefit conferred on a defendant in situations where no express contract has been entered into by the parties . . . A determination of a quantum meruit claim requires a factual examination of the circumstances and of the conduct of the parties.” Schreiber v. Connecticut Surgical Group, P.C., (Internal quotation marks omitted.)96 Conn.App. 731, 737, 901 A.2d 1277 (2006). “Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered . . . The pleadings must allege facts to support the theory that the defendant, by knowingly accepting the services of the plaintiff and representing to her that she would be compensated in the future, impliedly promised to pay her for the services she rendered.” Id. “A contract is express if its terms are stated by the parties, either orally or in writing, and it is implied if its terms are not so stated. In other words, an implied contract is one in which some or all of the terms are inferred from the conduct of the parties and the circumstances of the case, though not expressed in words, while an express contract is onein which the parties arrive at their agreement and express it in words, either oral or written . . . An express contract is a contract whose terms are stated by the parties; an implied contract is a contract whose terms are not so stated.” Id., 738.

The plaintiff argues that it is entitled to recover on a theory of unjust enrichment under count two. The plaintiff points out that unjust enrichment is the basis for the Claims Commissioner’s determination to authorize suit.

The plaintiff cites the case of Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, which holds that the doctrine of unjust enrichment applies when goods or services have been provided under a contact, but no remedy is available pursuant to a contract.

In the Hartford Whalers case, the Supreme Court stated:

“Unjust enrichment applies wherever justice requires compensation to be given for property or services CT Page 8264 rendered under a contract, and no remedy is available by an action on the contract. 5 S. Williston, Contracts (Rev. Ed.) § 1479. A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. Franks v. Lockwood, 146 Conn. 273, 278, 150 A.2d 215 [1959]; Schleicher v. Schleicher, 120 Conn. 528, 534, 182 A. 162 [1935]. Connecticut National Bank v. Chapman, 153 Conn. 393, 399, 216 A.2d 814
[1966]. With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. Cecio Bros., Inc. v. Greenwich, 156 Conn. 561, 564-65, 244 A.2d 404 [1968].” (Internal quotation marks omitted.) Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 246, 287 A.2d 379 (1971). “Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. Cecio Bros., Inc. v. Greenwich, [supra, 564]. Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Internal quotation marks omitted.) Polverari v. Peatt, 29 Conn.App. 191, 200-01, 614 A.2d 484 (1992).

The credible evidence shows that the state requested additional electrical work be done which exceeded that which was contemplated in the original specifications. The state informed the plaintiff that more electrical drops were needed by BESB for the increased manufacturing needs. The plaintiff provided and paid for the additional electrical requirements which were accepted by the state.

In recognizing the further expense to the plaintiff, the state and the plaintiff proposed that the additional cost be paid to the plaintiff by a lease amendment which would increase the rent over the terms of the lease. The proposal was submitted to the State Properties Review Board (SPRB). The proposal was not approved by the SPRB. The lack of approval by the SPRB meant that the plaintiff could not recover its additional CT Page 8265 cost under the lease.

The court finds that additional electrical work was needed because of BESB’s greater manufacturing needs. The additional electrical work was requested by the state who agreed to pay for the work via a proposed modification to the lease, however, said modification was not approved.

The court further finds that the state was benefitted by the additional electrical work provided by the plaintiff in that the state unjustly did not pay the plaintiff for the benefits by not approving the modification to the lease and that the failure of payment was to the plaintiff’s detriment in that the defendant did not pay for the additional electrical work.

Therefore, the plaintiff is entitled to recover damages on a theory of unjust enrichment.

The plaintiff has established that through correspondence from Newington Electric which showed that the electric requirements and that the new cost to be $162,209.37. However, the plaintiff points out that the original work which BESB required beyond that originally contracted for in the lease was $162,209.37 minus $39,054 which is $123,155.37. The plaintiff claims $123,155.37 on a theory of unjust enrichment.

The state argues that damages cannot exceed the sum sought in the notice of claim which was $99,940.90.

The state has cited the case of Sarges v. State of Connecticut, 26 Conn.Sup. 24, which held that the claim was limited to the amount alleged in the notice of claim.

In Sarges, the plaintiff filed a notice of claim requesting permission to sue the state for damages in the amount of $20,000. The commission granted the plaintiff permission to sue the state, however when the plaintiff brought suit, they sought damages in the amount of $75,000. The state then filed a plea in abatement, alleging that permission to sue the state was for $20,000 in damages, and that the $75,000 amount that was brought in suit was in excess of the permission granted by the commission. Id., 25.

“A statement of the amount requested as relates to a claim against the state . . . and the authorization to sue the state `on any claim for more than twenty-five hundred dollars’ . . . give weight to the state’s CT Page 8266 stand that when permission to sue for $20,000 was sought and the plaintiff was authorized to sue, this authorization related to the amount requested, namely $20,000 . . . Such authorization was no carte blanche authority to the plaintiff to sue for any amount that he might choose. If this were so, as the plaintiff contends, the method of making a claim and the authorization to sue the state would not have been set forth in the detail and manner they are set forth in chapter 53, nor would the commission be able to determine what is `just and equitable’ in authorizing a suit against the state on a claim of over $2,500 unless it considered the statement of the amount requested, namely, the amount sought in damages.” (Citations omitted.) Id., 28-29.

Accordingly, the court finds the plaintiff’s claims for damages cannot exceed the amount it sought in the notice of claim which is $99,940.90.

The plaintiff also seeks interest pursuant to Connecticut General Statutes § 37-3a.

An award of such interest is an equitable determination lying within the court’s sound discretion. Maloney v. PCRE, LLC, 68 Conn.App. 727.

The court in Maloney held:

The determination “is one to be made in view of the demands of justice rather than through the application of an arbitrary rule.” (Internal quotation marks omitted.) Id.
A trial court must make two determinations when awarding compensatory interest under § 37-3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated.” (Internal quotation marks omitted.) Id.

The burden is on the plaintiff to show that the detention of money was wrongful, this the plaintiff did not do. The parties engaged in a bona fide dispute as to whether the plaintiff was entitled to the amount it claimed.

The facts and circumstances in this case do not warrant the award of interest under § 37-3a. Therefore, the request for such interest is denied. CT Page 8267

The court finds that the plaintiff has established that it is entitled to damages of $99,940.90 on a theory of unjust enrichment.

Therefore, judgment may enter for the plaintiff in the amount of $99,940.90.

CT Page 8268