Robert Strouth, et al. v. Pools by Murphy and Sons, Inc., et al.

In this breach of contract action, the
defendant Pools by Murphy and Sons, Inc.,1 appeals
from the judgment of the trial court, rendered after a
trial to the court, in favor of the plaintiffs, Robert
Strouth and Caroline Strouth. On appeal, the defendant
claims that the court improperly (1) determined that
the construction of a kidney shaped swimming pool
constituted a material breach of the parties' contract
and (2) failed to award restitution. We affirm the judgment
of the trial court.

The court found the following facts that are relevant
to the defendant's appeal. The plaintiffs, owners of a
residence in West Suffield, contacted the defendant in
May, 1998, because they were interested in having a swimming pool installed in their yard. Ed Carter, the
defendant's salesman at that time, visited the property
and met with the plaintiffs on May 19, 1998. After viewing
a color brochure depicting various shapes for pools
and spas, the plaintiffs decided on a peanut shaped pool
with a circular six foot interior spa. They informed
Carter of their choice. Carter drew a contract for the
construction of a pool. The contract specified a ‘‘custom''
shaped pool, forty feet long by twenty feet wide.

Dennis Murphy, the defendant's president,2 arrived
at the property on July 16, 1998, to commence excavation.
He showed Caroline Strouth a picture of the kidney
shaped pool he planned to dig and laid out staking. She
told Murphy that the picture he was showing her did
not look like the pool she was expecting. Murphy
assured her that the pool would look like she expected
it to when completed. The excavation was in the shape
of a kidney. After the excavation was complete, a crew
arrived to install the steel frame (rebar). An electrician
and plumber also did work at the property. The rebars
outlined an almond-shaped spa, not a circular spa.

After receiving a bill from the defendant for additional
excavation time incurred because the defendant hit
ledge on the first day of excavation, Robert Strouth
telephoned the defendant to complain about the extra
cost. He spoke to Joseph Murphy, the father of Dennis
Murphy and an employee of the defendant. After a short,
acrimonious conversation, Joseph Murphy abruptly terminated
the conversation. Robert Strouth did not have
an opportunity to complain that the pool was not excavated
in the shape for which he and his wife had contracted.

Four days later, Robert Strouth contacted the defendant
and ordered it to discontinue all work at the property.
Carter telephoned the plaintiffs several times to
try to work out a completion of the pool. On September
20, 1998, the defendant sent a letter to the plaintiffs in
which it offered to complete the pool at the property
with a circular spa. There was never an offer to reconfigure
the pool in a peanut shape. Substantial additional
work would have been needed to complete the kidney
shaped pool, which was not the pool for which the
plaintiffs had contracted. The excavation remained, in
a deteriorated condition, in the backyard.

In 1999, the plaintiffs brought the present action. As
to the defendant, they claimed damages for breach of
contract, unjust enrichment and unfair trade practices
in violation of the Connecticut Unfair Trade Practices
Act, General Statutes § 42-110a et seq. The defendant
filed a counterclaim, alleging breach of contract. The
court rendered judgment for the plaintiffs on the breach
of contract claim and awarded damages in the amount
of $10,618.63. The court rendered judgment for the
defendant on the plaintiffs' claims of unjust enrichment
and unfair trade practices, and for the plaintiffs on the defendant's counterclaim.

that the word ‘‘custom,'' used in the contract to describe
the shape of the pool, was ambiguous. It found that the
plaintiffs believed they were contracting for a peanut
shaped pool and that the defendant subsequently interpreted
the contract as calling for a kidney shaped pool.
Because ‘‘custom'' could describe a kidney shaped pool
or a peanut shaped pool, the court determined that the
ambiguity should be construed against the party who
drew the contract, which was the defendant. The court
concluded that ‘‘[t]he parties entered into a contract
on May 19, 1998, for construction of a peanut shaped
pool, forty feet long by twenty feet wide with an interior,
circular six foot spa.'' The court determined that the
kidney shaped pool, begun by the defendant, was a
substantial deviation from the pool for which the plaintiffs
had contracted. It therefore held that the defendant's
failure to build the pool in a peanut shape with
a circular interior spa was a material breach of the
parties' contract that justified the plaintiffs in terminating
additional construction of the kidney shaped pool.
Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly
determined that the construction of a kidney shaped
pool constituted a material breach of the parties' contract.
Specifically, the defendant argues that the construction
of a kidney shaped pool would have amounted
to substantial performance of the parties' contract and,
therefore, the plaintiffs breached the parties' contract
when they ordered the defendants to discontinue all
work at the property. We are not persuaded.

The issue here is whether the construction of a kidney
shaped pool, when the contract called for a peanut
shaped pool, constituted a material breach of the parties'
contract so as to justify the plaintiffs in not performing
their remaining duties under the contract. See
Bernstein v. Nemeyer, 213 Conn. 665, 672–73, 570 A.2d
164 (1990) (‘‘[i]t follows from an uncured material failure
of performance that the other party to the contract
is discharged from any further duty to render performances
yet to be exchanged''); John Arborio, Inc. v.
Scapin, 121 Conn. 492, 497, 186 A. 488 (1936); 2
Restatement (Second), Contracts § 237 (1981). The
defendant does not challenge the underlying facts found
by the court.

Ordinarily, the determination of whether a contract
has been materially breached is a question of fact, subject
to the clearly erroneous standard of review. See
Bernstein v. Nemeyer, supra, 213 Conn. 670; 669 Atlantic
Street Associates v. Atlantic-Rockland Stamford
Associates, 43 Conn. App. 113, 126, 682 A.2d 572, cert.
denied, 239 Conn. 949, 950, 686 A.2d 126 (1996); cf. Pisani Construction, Inc. v. Krueger, 68 Conn. App.
361, 364, 791 A.2d 634 (2002). ‘‘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.'' (Internal quotation marks
omitted.) Frillici v. Westport, 264 Conn. 266, 277, 823
A.2d 1172 (2003).

‘‘In Bernstein v. Nemeyer, [supra, 213 Conn. 672],
our Supreme Court approved the multifactor standards
for materiality contained in § 241 of the Restatement
(Second) of Contracts. ‘In determining whether a failure
to render or to offer performance is material, the following
circumstances are significant: (a) the extent to
which the injured party will be deprived of the benefit
which he reasonably expected; (b) the extent to which
the injured party can be adequately compensated for
the part of that benefit of which he will be deprived;
(c) the extent to which the party failing to perform
or to offer to perform will suffer forfeiture; (d) the
likelihood that the party failing to perform or to offer
to perform will cure his failure, taking account of all
the circumstances including any reasonable assurances;
[and] (e) the extent to which the behavior of the
party failing to perform or to offer to perform comports
with standards of good faith and fair dealing.' 2
Restatement (Second), [supra, § 241].'' 669 Atlantic
Street Associates v. Atlantic-Rockland Stamford Associates,
supra, 43 Conn. App. 125–26.

The standards of materiality ‘‘[are] to be applied in
the light of the facts of each case in such a way as
to further the purpose of securing for each party his
expectation of an exchange of performances. [Section
241] therefore states circumstances, not rules, which
are to be considered in determining whether a particular
failure is material.'' 2 Restatement (Second), supra,
§ 241, comment (a).

The court, in its memorandum of decision, did not
specifically apply the standards of materiality enunciated
in § 241 of the Restatement. The court did, however,
find that the construction of a kidney shaped pool
would be a substantial deviation from the shape of the
pool for which the plaintiffs contracted and that the
plaintiffs ‘‘were not obliged to have a pool built in their
backyard that did not conform to the pool for which
they contracted.'' The court also found that although
the defendant had offered to complete the pool with a
circular spa, it never offered to reconfigure the pool to
a peanut shape. Thus, it would appear that the court,
essentially, focused on the criteria set forth in § 241 (a)
and (d) to reach its conclusion that the construction
of a kidney shaped pool constituted a material breach
of the parties' contract. Under the circumstances, we
cannot say that the court's conclusion was clearly erroneous.

Although the defendant argues that the construction
of a kidney shaped pool would not deprive the plaintiffs
of the benefit that they reasonably expected because
the pool would still be fit for its intended use, we are
not convinced that constructing a pool in the shape of
a kidney, when the contract called for a pool in the
shape of a peanut, would have constituted substantial
performance. We therefore conclude that the court's
determination that the defendant materially breached
the parties' contract, thereby excusing the plaintiffs
from any further performance due under the contract,
was not clearly erroneous.

II

The defendant's next claim is that the court improperly
failed to award restitution. Specifically, the defendant
claims that it is entitled to ‘‘restitution for its costs,
labor and expenses in the amount of $5471, which
included $2158 for the commission paid to Ed Carter
. . . $1000 for the first day of excavation . . . $750 for
the second day of excavation . . . $908 for installation
of the steel rebar . . . and $505 for installation of
plumbing . . . .''We decline to review that claim.

‘‘This court will not review issues of law that are
raised for the first time on appeal. . . . We have repeatedly
held that this court will not consider claimed errors
on the part of the trial court unless it appears on the
record that the question was distinctly raised at trial
and was ruled upon and decided by the court adversely
to the appellant's claim.'' (Internal quotation marks
omitted.) State v. Moody, 77 Conn. App. 197, 204, 822
A.2d 990, cert. denied, 264 Conn. 918, A.2d
(2003).

In the present case, the issue of restitution was not
distinctly raised at trial, nor was it ruled on by the court.
The defendant's counterclaim stated a claim for breach
of contract only, and the allegations in that counterclaim
did not give notice that the defendant was stating
a claim in equity for restitution.3 Cf. Moulton Bros., Inc.
v. Lemieux, 74 Conn. App. 357, 360–62, 812 A.2d 129
(2002). The first time the defendant raised the issue of
restitution was in a posttrial memorandum to the court,
entitled ‘‘Defendant's Proposed Findings of Fact and
Conclusions of Law.'' In that posttrial memorandum,
the defendant asked the court to grant relief in quantum
meruit, a remedy in restitution. Although the court rendered
judgment on the plaintiffs' three claims and on
the defendant's counterclaim, it did not mention any
form of equitable relief. The defendant did not request
that the court render judgment on its claim for quantum
meruit or file a motion for articulation of the court's
reasons for not awarding restitution.

Because the defendant did not raise the issue of restitution
in its pleading and because it does not appear that the parties actually litigated that issue,4 the defendant's
claim for restitution was not before the court properly.
Moreover, because the defendant's claim for restitution
was not raised at trial or ruled on by the court, we may
not decide it on appeal. See State v. Moody, supra, 77
Conn. App. 204; see also Springfield Oil Services, Inc.
v. Conlon, 77 Conn. App. 289, 290 n.1, 823 A.2d 345
(2003); Ritcher v. Childers, 2 Conn. App. 315, 318, 478
A.2d 613 (1984) (‘‘theory upon which a case is tried in
the trial court cannot be changed on review, and an
issue not presented to or considered by the trial court
cannot be raised for the first time on review'').

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