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WILLAMETTE MANAGEMENT ASSOCIATES, INC. v.
KIMBERLY PALCZYNSKI
(AC 31641)
Beach, Alvord and Dupont, Js.
Argued November 8, 2011—officially released March 6, 2012
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Frank H. D’Andrea, Jr., judge
trial referee.)
Kenneth A. Votre, for the appellant (defendant).
Laura Pascale Zaino, with whom, on the brief, were
Susan M. Kirkeby and Thomas P. O’Dea, for the appellee (plaintiff).
Opinion
BEACH, J. The defendant, Kimberly Palczynski,
appeals from the judgment of the trial court rendered
in favor of the plaintiff, Willamette Management Associates, Inc., in the amount of $117,739.04 following a hearing in damages. On appeal, the defendant claims that
the court erred by (1) not allowing the defendant to
replead her answer and special defense after granting
the plaintiff leave to correct a defective return date on
the writ of summons and complaint and (2) declining
to enforce a subsequent agreement between the parties.
We affirm the judgment of the trial court.
The court found the following facts in its memorandum of decision. ‘‘In this case, the plaintiff . . . sues
the defendant . . . for breach of contract, and the proceeding before the court is a hearing in damages.1 The
plaintiff is an accounting firm which engaged in business evaluations. It entered into a written contract with
the defendant, dated January 27, 2005, by which the
plaintiff agreed to perform extensive services for the
defendant involving her husband’s business interest in
a certain corporation, in connection with a pending
marital case between the couple. The work . . .
included assisting the defendant’s attorney during the
discovery process to obtain necessary information to
value such interest, preparing a valuation report and
testifying at depositions and at the trial. Billing procedures were outlined in detail, the defendant paid the
plaintiff $5000 as a retainer on the agreement, and she
was billed twice monthly. The contract also required
the defendant to pay any outstanding fees to the plaintiff
before its principal, Alan Schachter, would be asked to
provide expert testimony at trial.
‘‘Shortly before the marital trial, the outstanding balance of the plaintiff’s bills was $72,000, less the $5000
paid, for a total of $67,000. The plaintiff was informed
by the defendant’s attorney that the defendant did not
have the ability to pay the bill. As a result, Schachter
wrote to the [defendant] on July 20, 2007, exhorting
her to make some type of arrangement with the plaintiff,
since he believed his expert testimony would be
important to the outcome of her case. He wrote, ‘as a
courtesy to you and [your lawyer] I have advised [your
lawyer] that in lieu of immediate payment, my firm
would be willing to accept a mortgage on your real
property, a confession of judgment, or any other collateral held in escrow to secure your obligation to us.’
What followed was a written agreement between the
parties dated July 31, 2007 . . . calling for the plaintiff
to continue to perform the same work, including trial
preparation and testimony at trial, as was required by
the plaintiff by the original retainer agreement. What
changed was a reduction of the sum to be paid by the
defendant to the plaintiff for all work done or to be
done, from $67,000 to a total of $57,000,2 and a new
payment schedule.3 The schedule called for monthly
payments ranging from $1000 per month to $2000 per
month from January 1, 2008, to June 1, 2009, and the
balance monthly from July 1, 2009, at $2500 per month
thereafter, until the balance of the settlement amount
was paid in full. The defendant never made any payments required by the [s]ettlement [a]greement.’’
The plaintiff served a one count complaint on May 28,
2008, alleging that the defendant breached agreements
dated January 27, 2005 (first agreement) and July 31,
2007 (second agreement) by failing to make payments
pursuant to either agreement. On June 18, 2008, the
court granted the plaintiff’s motion for default against
the defendant for failure to appear. The defendant thereafter appeared through counsel. On July 24, 2008, the
court granted the plaintiff’s motion for default against
the defendant for failure to plead to the complaint. On
October 20, 2008, the defendant filed an answer, two
special defenses and a three count counterclaim alleging that the plaintiff failed to conform its work to the
relevant standard of care.4 The defendant also moved
to strike the action from the hearing in damages list
and moved to open the default for failure to plead.
Noting that there was no objection, on February 9, 2009,
the clerk of the court granted the defendant’s motion
to open the default for failure to plead. Notice of the
court’s action, however, was not issued until February
23, 2009, and, in the interim, the plaintiff filed an objection to the motion on February 18, 2009. The court
subsequently sustained the plaintiff’s objection to the
motion on March 19, 2009, and vacated the clerk’s action
granting the motion to open the default.
Thereafter, at a scheduled hearing in damages on
April 29, 2009, a defective return date on the writ of
summons—apparently the result of a scrivener’s
error—was discovered. The court granted the plaintiff’s
motion to amend the writ of summons and complaint
to correct the error; thereafter an amended complaint
was filed. The defendant then filed an answer and a
special defense on June 5, 2009. A hearing in damages
was held, at which the court declined to recognize as
effective the defendant’s answer to the amended complaint because she had been defaulted and because no
substantive change had been made to the complaint.
The court then issued a memorandum of decision concluding that the first agreement was controlling, and,
accordingly, rendered judgment in favor of the plaintiff
in the amount of $117,739.04.5 This appeal followed.
Additional facts will be set forth as necessary.
I
The defendant first argues that the court erred by
declining to give effect to her answer and special
defense filed after the filing of the amended complaint,
which corrected the scrivener’s error in the return date.
We disagree.
The following additional facts are relevant to our
discussion. The original complaint dated May 15, 2008,
specified a return date of June 10, 2008. The writ of
summons reflected a return date of June 10, 2007. The
2007 date obviously was erroneous. Apparently the
error was not discovered until the April 29, 2009 hearing,
when the court read aloud the return date and the
plaintiff’s counsel stated that the return date in the writ
of summons was a scrivener’s error. The defendant’s
counsel subsequently claimed that the court lacked subject matter jurisdiction as a result of the error. The
plaintiff’s counsel argued that a defective return date,
at most, affected personal jurisdiction, and thus the
defense had been waived because it had not been raised
within thirty days after the defendant’s appearance pursuant to Practice Book §§ 10-30 and 10-32. The court
ruled that subject matter jurisdiction was not implicated
and that the issue was governed by General Statutes
§ 52-72,6 and thus it was a defect that was curable by
amendment. At the court’s direction, the plaintiff subsequently amended the writ of summons to reflect a return
date of June 3, 2008, and served an amended complaint
dated May 5, 2008, with a return date of June 3, 2008.
On June 5, 2009, the defendant filed an answer and a
special defense. At the rescheduled hearing in damages
on August 4, 2009, the defendant moved to strike the
case from the hearing in damages list on the ground
that the plaintiff had not filed a reply to the special
defense and that the pleadings were, therefore, still
open. The court rejected the defendant’s argument, finding that there had been a default for failure to appear
and for failure to plead. The court did not accept the
repleading as effective, noting that ‘‘[n]othing changed
in the substantive pleadings and [the defendant has]
been defaulted.’’
We begin with the applicable standard of review.
‘‘Whether to grant a request to amend the pleadings is
a matter within the discretion of the trial court, and
this court will rarely overturn the decision of the trial
court. . . . Judicial discretion . . . is always legal discretion, exercised according to the recognized principles of equity. . . . While its exercise will not
ordinarily be interfered with on appeal to this court,
reversal is required where the abuse is manifest or
where injustice appears to have been done. . . .
‘‘Under the statutes and rules of practice, the court
may in its discretion, in a proper case, allow the filing
of amendments to pleadings before, during and after
trial. . . . Amendments should be made seasonably.
Factors to be considered in passing on a motion to
amend are the length of delay, fairness to the opposing
parties and the negligence, if any, of the party offering
the amendment. . . . The essential tests are whether
the ruling of the court will work an injustice to either
[party] and whether the granting of the motion will
unduly delay a trial.’’ (Citations omitted; internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App.
146, 174–75, 783 A.2d 1226 (2001). ‘‘It is the . . . burden
[of the party that requested the amendment] to demonstrate that the trial court clearly abused its discretion.’’
(Internal quotation marks omitted.) Canterbury v. Deojay, 114 Conn. App. 695, 705, 971 A.2d 70 (2009).
The defendant argues that because the court granted
the plaintiff leave to amend the writ of summons and
complaint to correct the return date, she should have
been allowed to plead to the amended complaint. The
plaintiff asserts that the amendment responded to and
corrected a procedural technicality only—a scrivener’s
error. Although the plaintiff followed the court’s order
and filed an amendment, it has maintained that, under
the circumstances, no amendment was necessarily
required. Relying on Merrill v. NRT New England, Inc.,
126 Conn. App. 314, 12 A.3d 575, cert. granted on other
grounds, 300 Conn. 925, 15 A.3d 629 (2011), the plaintiff
further asserts that the defective return date implicated
only personal jurisdiction.
Our Supreme Court has stated that a defect in process
implicates personal jurisdiction. See Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn.
10, 31–33, 848 A.2d 418 (2004) (holding that noncompliance with General Statutes § 52-102b, which requires
service of apportionment complaint within 120 days
after return date of original complaint, implicated personal jurisdiction); see also Bohonnon Law Firm, LLC
v. Baxter, 131 Conn. App. 371, 377–78 and n.9, 27 A.3d
384 (concluding that defendant’s claim of defective process based on failure to establish return date and failure
of service and return within statutory time frames implicated personal jurisdiction), cert. denied, 303 Conn.
902, 31 A.3d 1177 (2011). A defective return date is a
curable defect. See General Statutes § 52-72 (a) (‘‘[a]ny
court shall allow a proper amendment to civil process
which has been made returnable to the wrong return
day or is for any other reason defective, upon payment
of costs taxable upon sustaining a plea in abatement’’);
Coppola v. Coppola, 243 Conn. 657, 663, 707 A.2d 281
(1998) (‘‘the purpose of § 52-72 is to provide for amendment of otherwise incurable defects that go to the
court’s jurisdiction’’ [internal quotation marks
omitted]).
In the present case, the scrivener’s error appeared
on the writ of summons.7 Pursuant to § 52-72, the court
properly allowed the plaintiff to amend its process to
reflect a correct return date. See Coppola v. Coppola,
supra, 243 Conn. 664–66; Concept Associates, Ltd. v.
Board of Tax Review, 229 Conn. 618, 625–26, 642 A.2d
1186 (1994) (holding that plaintiff could amend its process to correct return date even though return date
already passed). The defect in process was curable, and
therefore it was a matter of personal jurisdiction only.
The defendant urges us to conclude that because the
complaint was amended to correct the return date, the
default was in effect opened and she should have been
allowed to plead to the newly filed amended complaint.
She relies on our Supreme Court’s holding in Coppola
v. Coppola, supra, 243 Conn. 657, for support. In that
case, the court held that § 52-72 permits amendment of
the return date of civil process to correct a party’s
failure to return the process at least six days before
the return date. Id., 658–59. The defendant asserts that
it follows from the Coppola court’s discussion regarding
the remedial nature of the statute that in the present
case, ‘‘[i]t is inequitable to allow the plaintiff to correct
an error that deprived the court of jurisdiction, but not
to allow the defendant to plead.’’ She relies also on
Practice Book § 10-618 for her position that her responsive pleading, if found proper, was timely. We do not
agree.
In Coppola, the court addressed whether it was
proper for a trial court to allow an amendment to process when the plaintiff did not return the process six
days prior to the return day as required by statute. In
that case, the writ of summons and complaint had been
returned to court on the return date, instead of at least
six days before the return date, as required by General
Statutes § 52-46a. Coppola v. Coppola, supra, 243 Conn.
660. After the defendant moved to dismiss, the plaintiff
attempted to amend the return date from August 15 to
August 22, in order to retrofit the dates. Id. The trial
court denied the plaintiff’s motion to amend and dismissed the case, and this court affirmed the judgment.
Id., 660–61.
The Supreme Court reversed our judgment. It held
that pursuant to § 52-72, the trial court should have
allowed the amended pleading, so that the case would
be allowed to proceed. Id., 659. It noted that § 52-72
was a remedial statute allowing for the correction of
procedural defects and that dismissal where no prejudice had occurred and where there was no impediment
to the progress of the case would be draconian. Id.,
664–65. The court concluded that the defendant could
respond to the complaint and the case could proceed.
Id., 666.
In Coppola, the defendant discovered the defect
immediately and had not pleaded responsively at the
time the case was dismissed; id., 660; thus, amendment
of the return date would not have prejudiced the defendant’s ability to plead responsively. In the present case,
the defendant never discovered the defect in the writ
of summons and was certainly not prejudiced by the
defect. From all appearances, the defect in the writ of
summons had nothing at all to do with her subsequent
defaults, and there is, therefore, no equitable reason
why a technical amendment to the writ of summons
should create the opportunity to plead responsively.
The only change between the original complaint and
the amended complaint was the return date and the
date of the complaint. All substantive allegations in the
complaint remained precisely the same. The court did
not vacate its entry of default against the defendant,
and the purpose of amending the complaint was solely
to remedy a typographical error. The defendant’s substantive rights were not affected by the amendment,
and she has not demonstrated prejudice. ‘‘If the effect
of an amendment of a complaint so made is to substantially change the cause of action originally stated, the
defendant is entitled to file new or amended pleadings
and present further evidence. Also, if the amendment
interjects material new issues, the adversary is entitled
to reasonable opportunity to meet them by pleading
and proof.’’ Mazulis v. Zeldner, 116 Conn. 314, 317, 164
A. 713 (1933). No change of any kind, and thus certainly
not a substantial change, was made to the cause of
action in the present case. See Richards v. Trudeau,
54 Conn. App. 859, 863, 738 A.2d 215 (1999) (holding
that court did not abuse its discretion in refusing to
give effect to defendants’ answer when filed almost
one year after default entered against them). The court
properly exercised its discretion by prohibiting the
defendant from filing a pleading to the amended complaint when the amendment served merely to correct
an erroneous return date.9
II
The defendant next argues that the court erred by
concluding that the first agreement of January 27, 2005,
rather than the second agreement of July 31, 2007, controlled. Specifically, she asserts that the second
agreement is a novation and is the only enforceable
agreement between the parties, as dictated by the complete integration clause stating that the agreement
superseded any prior writings.
The following additional facts are relevant to this
claim. At the August 4, 2009 hearing in damages, the
court heard argument on the issue of whether the first or
second agreement was controlling. The plaintiff argued
that because the defendant was in breach, she should
not be allowed to enforce the second agreement that
included a reduced payment amount. The plaintiff
requested the court’s permission to submit a trial brief
providing case law in support of its position. The court
granted the plaintiff’s request. The defendant argued
that the plain language of the second agreement dictated that it was the controlling agreement and that
ended the inquiry. In its posttrial brief, the plaintiff
argued that the defendant’s breach precluded her from
enforcing the second agreement and that that
agreement lacked consideration. The defendant argued
that there was consideration for the second agreement
on the basis of a mutual exchange of promises.
The court found that the second agreement ‘‘was
not supported by adequate consideration and is not
enforceable against the plaintiff.’’ The court reasoned
that under the second agreement, the plaintiff did not
receive any benefits and ‘‘was still required to perform
the same work required to be done under the [first]
agreement . . . .’’ The court further found that even if
consideration was present, the second agreement
would still be unenforceable by the defendant because
she had breached that agreement.
‘‘[C]onsideration is [t]hat which is bargained-for by
the promisor and given in exchange for the promise by
the promise . . . . Consideration consists of a benefit
to the party promising, or a loss or detriment to the
party to whom the promise is made.’’ (Internal quotation
marks omitted.) General Electric Capital Corp. v.
Transport Logistics Corp., 94 Conn. App. 541, 546–47,
893 A.2d 467 (2006). ‘‘Whether an agreement is supported by consideration is a factual inquiry reserved
for the trier of fact and subject to review under the
clearly erroneous standard.’’ (Internal quotation marks
omitted.) Viera v. Cohen, 283 Conn. 412, 442, 927 A.2d
843 (2007). The conclusion drawn from the facts so
found, i.e., whether a particular set of facts constitutes
consideration in the particular circumstances, is a question of law; see Town Bank & Trust Co. v. Benson, 176
Conn. 304, 307–308, 407 A.2d 971 (1978); and, accordingly, is subject to plenary review. See Santoro v. Santoro, 132 Conn. App. 41, 47, 31 A.3d 62 (2011).
In support of her position that the second agreement
is controlling, the defendant argues that that document
is a novation. ‘‘Novation may be broadly defined as a
substitution of a new contract or obligation for an old
one which is thereby extinguished.’’ (Internal quotation
marks omitted.) Bushnell Plaza Development Corp. v.
Fazzano, 38 Conn. Sup. 683, 688, 460 A.2d 1311 (1983).
‘‘Novation’’ and ‘‘substitute contract’’ often are used
interchangeably to refer to a subsequent contract. See 2
Restatement (Second), Contracts § 280, reporter’s note
(1981) (noting that ‘‘[c]ourts sometimes use ‘novation’
in situations in which this Restatement would use ‘substituted contract’ [§ 279] or ‘modification’ [§ 89]); 29 S.
Williston, Contracts (4th Ed. Lord 2003) § 73:36, p. 115
(noting that accord and satisfaction, substituted contract and novation are often confused by courts where
question is whether agreement is intended to result in
satisfaction).10 Our Supreme Court has stated that a
novation ‘‘is usually used with reference to instances in
which a new party is introduced into the new contract,
while ‘substitute contract’ is the designation commonly
employed to cover agreements between the same parties which supersede and discharge prior contract obligations.’’ Riverside Coal Co. v. American Coal Co., 107
Conn. 40, 44–45, 139 A. 276 (1927); see also 2
Restatement (Second), supra, § 279 (defining substituted contract as ‘‘contract that is itself accepted by the
obligee in satisfaction of the obligor’s existing duty’’); 2
Restatement (Second), supra, § 280 (defining novation
as type of substituted contract ‘‘that includes as a party
one who was neither the obligor nor the obligee of the
original duty’’).
Although the defendant argues that the second
agreement is a novation, or more accurately, a substitute contract, and that its language requires it to be the
controlling contract, it is first necessary to determine
whether that agreement meets the legal definition of
a contract. Professor Williston’s treatise on contracts
defines contract as ‘‘a promise or set of promises for
breach of which the law gives a remedy or the performance of which the law in some way recognizes as a
duty. The heart of contract is thus found both in its
promissory nature and in its enforceability.’’ (Internal
quotation marks omitted.) 1 S. Williston, supra, § 1:1.
Accordingly, to constitute a substitute contract, an
agreement must be supported by consideration. Vachon
v. Tomascak, 155 Conn. 52, 56, 230 A.2d 5 (1967); see
also 2 Restatement (Second), supra, § 279, comment (b)
(substituted contract not effective unless ‘‘supported by
consideration or some substitute for consideration’’).
‘‘[T]he doctrine of consideration is fundamental in the
law of contracts, the general rule being that in the
absence of consideration an executory promise is unenforceable.’’ Harley v. Indian Spring Land Co., 123
Conn. App. 800, 825, 3 A.3d 992 (2010). In order for
there to be valid consideration, ‘‘a party . . . [must]
do, or promise to do, something further than, or different from, that which he is already bound to do.’’ Thermoglaze, Inc. v. Morningside Gardens Co., 23 Conn.
App. 741, 745, 583 A.2d 1331, cert. denied, 217 Conn.
811, 587 A.2d 153 (1991); see also 29 S. Williston, supra,
§ 73:17 (‘‘if the undertaking by one party is simply to
perform the whole or part of what it promised in the
original contract, this will not support a promise by the
other party to perform what it had previously agreed
to do and something more; or, to put the same matter
in other words, an existing contract cannot be altered
by mutual assent by an agreement merely to give one
party a right or privilege, or subject the other party to
a burden that it did not previously have’’).
In the present case, the court found that the second
agreement failed for lack of consideration because it
‘‘conferred no benefits on the plaintiff, which was still
required to perform the same work required to be done
under the [first] agreement, and did not eliminate or
reduce any risk of collection, which remained the same
as before.’’ At the time of the making of the second
agreement, the first agreement was still in effect.11 Notwithstanding the integration clause in the second
agreement that expressly superseded all prior writings
between the parties, at the time that the parties entered
into the second agreement, the defendant was legally
obligated pursuant to the first agreement to pay the
plaintiff the full amount for services rendered. The sec-
ond agreement purported to reduce the amount owed
by the defendant but did not alter the obligations of
the plaintiff. ‘‘Generally, a promise to do something
which the promisor is already legally obligated to do
does not constitute consideration sufficient to support
a valid contract.’’ (Internal quotation marks omitted.)
Jackson v. Water Pollution Control Authority, 278
Conn. 692, 707 n.13, 900 A.2d 498 (2006); see Gianetti
v. Norwalk Hospital, 211 Conn. 51, 61, 557 A.2d 1249
(1989); see also Marcus v. DuPerry, 223 Conn. 484, 489,
611 A.2d 859 (1992) (concluding that second contract,
if in fact made, would not be void for lack of consideration, where client had discharged attorney two months
before second contract purportedly made, and thus at
time of making of second contract attorney had no
existing contractual obligation to client); Brian Construction & Development Co. v. Brighenti, 176 Conn.
162, 166, 405 A.2d 72 (1978) (‘‘[i]t is an accepted principle of law in this state that when a party agrees to
perform an obligation for another to whom that obligation is already owed, although for lesser remuneration,
the second agreement does not constitute a valid, binding contract’’).12 Accordingly, it was not erroneous for
the court to conclude that the second agreement was
not supported by consideration and thus was unenforceable.13
As an alternative ground for its conclusion, the court
found that ‘‘[e]ven if, somehow, consideration could be
breathed into the life of the [second] agreement, the
court will not enforce it against the plaintiff.’’ As authority for this conclusion, the court cited a United States
Court of Appeals for the Seventh Circuit decision written by Judge Richard Posner: ‘‘If you commit a material
breach of contract, the other party can walk away from
the contract without liability, and can do so as soon as
you announce your intentions even if the time for the
performance that you have repudiated hasn’t arrived.’’
American Hospital Supply Corp. v. Hospital Products
Ltd., 780 F.2d 589, 599 (7th Cir. 1986). The trial court
reasoned: ‘‘In the present case, the defendant breached
the [second] agreement, paying absolutely nothing on
the contract and can certainly be deemed as having
repudiated it altogether.’’ It is clear from the court’s
findings that the defendant failed to perform under the
second agreement. That agreement included a payment
schedule and the defendant failed to make any payments pursuant to it. ‘‘One cannot recover upon a contract unless he has fully performed his own obligation
under it, has tendered performance, or has some legal
excuse for not performing.’’ Automobile Ins. Co. v.
Model Family Laundries, Inc., 133 Conn. 433, 437, 52
A.2d 137 (1947); Shah v. Cover-It, Inc., 86 Conn. App.
71, 77, 859 A.2d 959 (2004). Accordingly, even if the
second agreement was otherwise an enforceable contract, the defendant, who was clearly in breach, would
not have a legal right to recover under it.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was defaulted and then failed to file timely any notice of
defenses to be raised at a hearing in damages. Thus, the hearing in damages
was limited to the defendant’s right to contest damages.
2
The July 31, 2007 agreement reflects a total of $57,500.
3
The second agreement did not provide for any of the collateral suggested
by Schachter in his letter to the defendant.
4
The defendant was not entitled to file any responsive pleading until and
unless the default was vacated. See Automotive Twins, Inc. v. Klein, 138
Conn. 28, 33, 82 A.2d 146 (1951) (‘‘[a default] is an order of the court the
effect of which is to preclude the defendant from making any further defense
in the case so far as liability is concerned’’).
5
The court explicitly noted that it accepted the plaintiff’s calculation of
damages for breach of the first agreement contained in the plaintiff’s posttrial
brief, which calculation included attorney’s fees, costs and interest.
6
General Statutes § 52-72 (a) provides: ‘‘Any court shall allow a proper
amendment to civil process which has been made returnable to the wrong
return day or is for any other reason defective, upon payment of costs
taxable upon sustaining a plea in abatement.’’
7
The writ of summons had a return date of June 10, 2007, while the
original complaint had a return date of June 10, 2008. Both the complaint
and the writ of summons were later amended to reflect a return date of
June 3, 2008. No issue has been raised regarding the discrepancy between
June 3 and June 10.
8
Practice Book § 10-61 provides: ‘‘When any pleading is amended the
adverse party may plead thereto within the time provided by Section 10-8
or, if the adverse party has already pleaded, alter the pleading, if desired,
within ten days after such amendment or such other time as the rules of
practice, or the judicial authority, may prescribe, and thereafter pleadings
shall advance in the time provided by that section. If the adverse party fails
to plead further, pleadings already filed by the adverse party shall be regarded
as applicable so far as possible to the amended pleading.’’
9
In her reply brief, the defendant relies on General Statutes § 52-130,
which provides: ‘‘Parties may amend any defect, mistake or informality in
the pleadings or other parts of the record or proceedings. When either party
supposes that in any part of the pleadings he has missed the ground of his
plea, and that he can plead a different plea that will save him in his cause,
he may change his plea, answer, replication or rejoinder, as the case may
be, and plead anew, and the other party shall have reasonable time to answer
the same; and, in any case when a party amends or alters any part of the
pleadings or pleads anew, if it occasions any delay in the trial or inconvenience to the other party, he shall be liable to pay costs at the discretion
of the court. Any court may restrain the amendment or alteration of pleadings, so far as may be necessary to compel the parties to join issue in a
reasonable time for trial.’’ This section allows amendments in some situations and allows responses to substantive amendments. It does not affect
the result in this case.
10
The Restatement of Contracts and Professor Williston’s treatise on contracts use the term ‘‘substituted contract.’’ Our Supreme Court has used
‘‘substitute contract’’; see, e.g., Assn. Resources, Inc. v. Wall, 298 Conn. 145,
186, 189, 2 A.3d 873 (2010); and ‘‘substituted contract’’; see, e.g., Tolland
Enterprises v. Scan-Code, Inc., 239 Conn. 326, 333 n.9, 684 A.2d 1150 (1996).
This court has used ‘‘substitute contract’’; see, e.g., Atlas v. Miller, 20 Conn.
App. 680, 682, 570 A.2d 219 (1990); and has quoted a Restatement provision
addressing ‘‘substituted contract’’; see Friedman v. Millpit Corp., 49 Conn.
App. 354, 358 n.3, 713 A.2d 1288, cert. denied, 247 Conn. 925, 719 A.2d 1168
(1998). We use ‘‘substitute contract’’ in this opinion but note that our usage
of the term encompasses ‘‘substituted contract’’ as used by the Restatement
and Williston’s treatise.
11
Neither party has disputed that the first agreement was a valid contract.
12
A very common type of subsequent agreement premised on existing legal
obligations involves the question of ‘‘whether a promise to pay additional
compensation for the continued performance of work which the promisee
is already obligated to the promisor to do by the terms of an existing contract,
is supported by a sufficient consideration.’’ Blakeslee v. Board of Water
Commissioners, 106 Conn. 642, 649, 139 A. 106 (1927). In Blakeslee, supra,
106 Conn. 656, our Supreme Court concluded that ‘‘where a contract must
be performed under burdensome conditions not anticipated, and not within
the contemplation of the parties at the time when the contract was made,
and the promisee measures up to the right standard of honesty and fair
dealing, and agrees, in view of the changed conditions, to pay what is then
reasonable, just, and fair, such new contract is not without consideration
within the meaning of that term, either in law or in equity.’’ (Internal quotation marks omitted.) This court quoted the basis for this rule in New England
Rock Services, Inc. v. Empire Paving, Inc., 53 Conn. App. 771, 777–78, 731
A.2d 784, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999): ‘‘What unforeseen
difficulties and burdens will make a party’s refusal to go forward with his
contract equitable, so as to take the case out of the general [preexisting
duty] rule and bring it within the exception, must depend upon the facts of
each particular case. They must be substantial, unforeseen, and not within
the contemplation of the parties when the contract was made.’’ (Internal
quotation marks omitted.) In Blakeslee, for example, the parties did not
contemplate that the United States would become involved in World War
I, thus creating an inability to secure laborers for the contract. Id., 645.
Similarly, in Brian Construction & Development Co. v. Brighenti, supra,
176 Conn. 169, the court held that substantial rubble beneath the surface
of the construction site that all parties agreed had to be removed was an
unforeseen burdensome condition.
The present case is perhaps unusual in that the sum that the defendant
owed under the first agreement was reduced by the terms of the second
agreement, while the plaintiff was subject to the same performance obligations under both agreements. The alteration of one party’s obligations by
requiring additional compensation while the other party’s duties remain
unchanged, as in Blakeslee, is, however, analogous. In the present case, the
only reason present in the record for the defendant’s nonpayment is her
inability to pay. We cannot conclude that that was an unforeseen substantial
burden not within the contemplation of the parties at the time of the making
of the first agreement, particularly when the defendant was involved in a
pending marital dissolution action at which her interest in part of her husband’s assets was going to be determined. Accordingly, the circumstances
in the present case do not fall under the exception to the preexisting duty
rule articulated in Blakeslee.
13
We note that in the present case, the plaintiff fully performed and the
defendant did not fully perform the obligations under the second agreement.
Had full performance been rendered by both parties pursuant to the second
agreement and the plaintiff sought to bring an action to enforce the first
agreement, equitable principles may arguably have applied to reach a different result. ‘‘Under the law of contract, a promise is generally not enforceable
unless it is supported by consideration. . . . [Our Supreme Court] has recognized, however, the development of liability in contract for action induced
by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor. . . . Section 90 of the
Restatement [(Second) of Contracts] states that under the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect
to induce action or forbearance on the part of the promisee or a third person
and which does induce such action or forbearance is binding if injustice
can be avoided only by enforcement of the promise. . . . A fundamental
element of promissory estoppel, therefore, is the existence of a clear and
definite promise which a promisor could reasonably have expected to induce
reliance.’’ (Internal quotation marks omitted.) Saye v. Howe, 92 Conn. App.
638, 647–48, 886 A.2d 1239 (2005).
