Thomas Bartomeli (hereinafter the plaintiff) joined his brother Raymond Bartomeli (hereinafter the defendant) in founding a construction company. In 1983 the two brothers incorporated the company; however the Plaintiff never owned shares in the company. Both parties contributed individual assets to the company and jointly signed notes to acquire certain equipment that was stored on the Plaintiff’s property. In 1991 the Defendant became dissatisfied with the Plaintiff’s work performance and decided the Plaintiff should be removed as secretary of the corporation. Months later the Plaintiff made a request to have a blank check entrusted to him from the company’s secretary. When the Defendant became aware of the Plaintiff’s request, he terminated the Plaintiff’s employment with the company. The Plaintiff then attempted to reach palatable terms between both him and the Defendant as to a division of company assets, but an agreement could not be reached. The Plaintiff then filed suit against the company for breach of contract of partnership.

Issue of Law

Is there sufficient evidence to conclude that the corporation owes a duty to the Plaintiff to extend a division of assets from the company to the Plaintiff?

In what capacity did the two parties serve together within the corporation for which the Plaintiff’s employment was terminated?

Is there sufficient evidence to show the Defendant was liable in breaching any contract for which the Plaintiff alleges?

Rule of Law

1. “Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them… The purpose of the complaint is to limit the issues to be decided at the trial of the case and is calculated to prevent surprise.”

2. “A Plaintiff may not allege one cause of action and then recover on another. Facts found but not averred cannot be the basis for recovery.”

3. “[T]o form a contract, generally there must be a bargain in which there is a manifestation of mutual assent to the exchange between two or more parties.

4. “[The] agreement must be definite and certain as to its terms and requirements.... [It] requires a clear and definite promise.... A court may, however, enforce an agreement if the missing terms can be ascertained, either from the express terms or by fair implication.... Thus, an agreement, previously unenforceable because of its indefiniteness, may become binding if the promise on one side of the agreement is made definite by its complete or partial performance.”

5. “The principle that a plaintiff may rely only upon what he has alleged is basic.... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.”

Analysis

The facts surrounding this case study stem from the action Bartomeli v. Bartomeli, brought forth in 2001 and are asserted in this forthcoming analysis, as with the aforementioned factual summary.

First, it is necessary to recognize who all of the Defendants are within this action. Pursuant to the Complaint filed by the Defendant, the Plaintiffs were set forth to be as follows: Raymond A. Bartomeli and the Bartomeli Company, Inc.. However, only one Defendant was alleged to have breached contract in the Complaint; the Plaintiff’s brother, Raymond Bartomeli. Because the Plaintiff only asserted the Defendant (Raymond) as the party who breached contract, the Plaintiff must rely on what he has alleged within the text of his Complaint and not on what he meant to allege.

“The principle that a plaintiff may rely only upon what he has alleged is basic.... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.” In the American system of laws “A Plaintiff may not allege one cause of action and then recover on another. Facts found but not averred cannot be the basis for recovery.” This is because “the purpose of the complaint is to limit the issues to be decided at the trial of the case and is calculated to prevent surprise.” Therefore, the appellate court’s decision that the Plaintiff could not recover a division of assets from the corporation was sound and rooted in the stare decisis of state law.

Second, the Plaintiff alleged in his Complaint that he considered himself to be a partner within the corporation. Upon his employment termination he proceeded to request Defendant to divide the assets that he had contributed to the company based from this belief. However, the Defendant countered that the company could not be both a partnership and a corporation. Even so, this does not indicate that there was no partnership contract by which a de facto partnership might have been established. “[T]o form a contract, generally there must be a bargain in which there is a manifestation of mutual assent to the exchange between two or more parties. When the Plaintiff contributed personal assets in the form of equipment to the company, the Plaintiff guaranteed notes for the purchase of company equipment, and the Defendant introduced the Plaintiff as a partner in the company, there was, in fact a de facto partnership agreement present.

“[The] agreement must be definite and certain as to its terms and requirements.... [It] requires a clear and definite promise.... A court may, however, enforce an agreement if the missing terms can be ascertained, either from the express terms or by fair implication.... Thus, an agreement, previously unenforceable because of its indefiniteness, may become binding if the promise on one side of the agreement is made definite by its complete or partial performance.” In this case their were terms that could be ascertained through primarily fair implication, but the expressed term that the Defendant introduced the Plaintiff as a partner as well is quite clear. It therefore seems that the appellate court was legally sound when it made its determination that the Defendant had broken a contractual partnership agreement as a result of the de facto partnership contract (not an actual partnership capacity held, but rather a contract) being implied.

Conclusion

The Defendant appealed the trial court’s decision for the Plaintiff, prefacing that the corporation could not be held liable, there was no partnership agreement, no breach of any contractual agreement, and therefore no division of assets to be legally necessary. However, no other conclusion can be generated with a legally sound basis other than that of the appeals court: (1) the Plaintiff failed to allege that the corporation was liable in his Complaint; (2) there was a de facto partnership contract and thus a breach of contract was present; (3) a division of assets is not proper when it comes from the corporation, as there is no alleged Complaint against that entity within the aforementioned pleading.

Endnotes

Geary v. Wentworth Laboratories, Inc., 60 Conn. App. 622, 627-28, 760 A.2d 969 (2000).General Statutes § 34-301(5), defines partnership as “an association of two or more persons to carry on as co-owners a business for profit....”

Wright v. Hutt, supra, 50 Conn. App. at 449, 718 A.2d 969.

See 783 A.2d 1050, 65 Conn. App. 408.

Wright v. Hutt, supra, 50 Conn. App. at 449, 718 A.2d 969.

Moore v. Sergi, supra, at 841-42, 664 A.2d 795.

Wright v. Hutt, 50 Conn. App. 439, 449, 718 A.2d 969, cert. den’d, 247 Conn. 939, 723 A.2d 320 (1998).

see Karanian v. Maulucci, 185 Conn. 320, 323-24, 440 A.2d 959 (1981).

see Restatement (Second), Contracts §§ 1(c), 15, 19 (Tent. Dr.1964); 1 Williston, Contracts (1957) §§ 18, 22; see also Hoffman v. Fidelity & Casualty Co., 125 Conn. 440, 444, 6 A.2d 357 (1939); Clark v. Diefendorf, 109 Conn. 507, 510, 147 A. 33 (1929).

Geary v. Wentworth Laboratories, Inc., 60 Conn. App. 622, 627-28, 760 A.2d 969 (2000).General Statutes § 34-301(5), defines partnership as “an association of two or more persons to carry on as co-owners a business for profit....”

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