Hugman Company, Inc. v. Robert M. Errato et al.

MEMORANDUM OF DECISION RE MOTION TO REARGUE (# 168)

On February 24, 2010 the court issued a memorandum of decision following a trial between the parties.   The defendant has filed a motion to reargue relative to three specific grounds.   The court granted the motion to reargue the first ground set forth in the motion and denied the motion as to the other two grounds.   The plaintiff filed a memorandum in opposition (j# 173) to the motion.   Oral argument was held on April 9, 2010 before the court.

“[T]he purpose of a reargument is ․ to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts ․ It also may be used to address alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court ․ [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases, or briefs which could have been presented at the time of the original argument.”  (Citations omitted;  internal quotation marks omitted.)  Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001).   See also Intercity Development, LLC v. Andrade, 286 Conn. 177, 189, 942 A.2d 1028 (2008);  Gibbs v. Spinner, 103 Conn.App. 502, 507, 930 A.2d 53 (2007).

The basis of defendants' motion is that there is an inconsistency in the court's decision to not provide a $2,500 credit or set-off against the $17,728.17 award in favor of the plaintiff even though the court found credible testimony to support such an amount to correct some of the work done by the plaintiff that needed repair or remediation.   Memorandum of Decision, page 12.   In its original decision, the court noted that the defendants had not provided any proof of having made any expenditures for the repairs in the four years they had lived in the property after the work was done.   Such a credit or set-off could be allowed, with or without the defendants having made the expenditures, given the credible evidence presented at trial that the cost of that repairs or remediation was $2,500.   However, the court notes, as it did in its original memorandum of decision at page 17, that Errato forced the plaintiff off the job making it impossible for the plaintiff to complete the remediation work that had been requested by the defendants.   The application of such a credit or set-off is unwarranted given that the plaintiff's effort to effectuate the repairs or remediation was interfered with and terminated by the defendants.   Had the defendants allowed the completion of the remediation work, it could then have been determined whether any credit or set-off should have been allowed.  “It is the general principle of contract law that if one party to a contract hinders, prevents, or makes impossible performance by the other party, the latter's failure to perform will be excused ․ [A] contracting party whose performance of his or her promise is prevented by the other party is not obligated to perform, and is excused from any further offer of performance.   In turn, the preventing party is not allowed to recover damages for the resulting nonperformance or otherwise benefit from his or her own wrongful acts ․” (Emphasis added;  internal quotation marks omitted.)   Eric Strachan, Inc. v. Gendron, Superior Court, judicial district of Waterbury, Docket No. CV 08 5007090 (December 24, 2009, Pellegrino, J.).   Where the issue is one involving unjust enrichment as distinguished from breach of contract, it would be against equity and good conscience to provide the defendants with a benefit.  Polverari v. Peatt, 29 Conn.App. 191, 200, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992).

The relief requested by the defendants, to allow the credit or set-off of $2,500 against the award to the plaintiffs, is hereby denied.

BY THE COURT

Shaban, J.

Shaban, Dan, J.