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Murallo v. United Builders Supply Co., Inc.

Court of Appeals of Connecticut

June 12, 2018

RANDY MURALLO
v.
UNITED BUILDERS SUPPLY CO., INC.

          Argued February 15, 2018

         Procedural History

         Action to recover damages for, inter alia, breach of contract, and for other relief, brought to the Superior Court in the judicial district of New London, small claims session, where the matter was transferred to the regular civil docket; thereafter, the plaintiff filed an amended complaint; subsequently, the matter was tried to the court, Hon. Joseph Q. Koletsky, judge trial referee; judgment in favor of the defendant, from which the plaintiff appealed to this court. Reversed in part; further proceedings.

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

          Garon Camassar, for the appellee (defendant).

          Lavine, Bright and Pellegrino, Js.

          OPINION

          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 § 52-251a[4] 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 ...


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