Opinion
No. CV 07-5008767-S
February 5, 2009
MEMORANDUM OF DECISION
On or about August 21, 2003 the plaintiffs entered into a written contract with Classic Window Siding, LLC (hereinafter also "Classic") (see Plaintiff's Exhibit 1) to replace the roof at their home at 8 Beatrice Avenue in Bloomfield, Connecticut. The plaintiffs paid the said defendant $11,500 for the work to be done. Classic then hired a subcontractor, Richard Hearn (also known as "Hearn") to do the job. This was apparently an oral agreement between Classic and Richard Hearn. There was no agreement or contract of any type between the plaintiffs and Hearn. Shortly after the roof was replaced, in September 2003 when there was a heavy rain storm, the roof began to leak. It had not leaked prior to the replacement by Hearn. The plaintiffs informed Classic of the leaking roof and Classic had Hearn return and re-shingle a portion of the roof. Nonetheless, the roof continued to leak. Based upon an inspection by someone working for Classic, the inspector suggested that a ventilation duct produced the leaking. The plaintiffs relocated and installed the ventilation duct in another area of the attic. Nevertheless, the roof continued to leak. Alfred Miller, (hereinafter also "Miller") who is the owner of Classic, testified that neither he nor Hearn have seen this problem in 26 to 30 years. He indicated to the plaintiffs that there was nothing further that could be done and he left them to whatever they believed they could do. Because of these failures and alleged breach of contract, the plaintiffs brought suit for Breach of Contract, Unjust Enrichment, Breach of Implied Covenant of Good Faith and Fair Dealing, Breach of Express and Implied Warranties and Breach of Duty of Care. Subsequently, Classic brought Hearn into the case as an apportionment defendant. The trial was held before this Court on November 13, 2008 and November 20, 2008. On November 3, 2008, a deposition of Richard Hearn was held, see Defendant's Exhibit C. Although Hearn was technically represented by counsel, said counsel did not participate in the trial and left Hearn's defense to the deposition. Briefs were filed by Classic and the plaintiffs and reply briefs were filed, the latest being on January 12, 2009.
No expert witnesses were disclosed, and no expert witnesses testified.
CT Page 2820
STANDARD OF REVIEW:
It is well-settled law in Connecticut that in an action such as this, the burden upon the plaintiffs is to prove their allegations by a mere preponderance of the evidence. Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 535 (1999). Also, see Busker v. United Illuminating Co., 156 Conn. 456, 458 (1968), which held that "The plaintiff in a civil case sustain[s] his burden of proof as to any essential element in his cause of action if the evidence, considered fairly and impartially, induce[s] in the mind of the trier a reasonable belief that it [is] more probable than otherwise that the facts involved in that element [are] true." (Emphasis added.) This is also known as proof by a preponderance of the evidence.Additionally, this Court evaluates the credibility of the witnesses based upon their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, whether they were candid and forthright or evasive and incomplete, their manner in responding to questions and their interest or lack of interest in the case.
ISSUES AND FINDINGS: 1. Credibility.
This Court finds that the two plaintiffs Adgir and Lucas Morgan were credible in the way they testified. They were more credible than Alfred Miller, the owner of Classic who testified. The Court found him to be somewhat evasive in his testimony.
During the deposition of the subcontractor, Richard Hearn, he stated that he knew Mr. Miller as Al Smith, but said that Smith and Miller were one and the same person. See page 13. The use of two different names is strange and adversely affects Miller's credibility.
2. Is Expert Testimony Required if the Non-Expert Testifies to Observations concerning a leaking roof?
The short answer is No.
"A lay witness must state the facts that are within his or her personal knowledge . . ." Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776 (1971)." "The [Supreme] [C]ourt has on more than one occasion stated that there is only one test for the admissibility of non-expert opinion, namely: Is the evidence relevant, is it the best nature of the case admits of, and does it come from a competent witness? See, e.g., State v. Spigarolo, 210 Conn. 359, 371, 556 A.2d 112 (1989)."
"The admissibility of opinion testimony from a lay witness rests in the sound discretion of the trial court . . . It exercising this discretion, the trial judge should consider whether the lay opinion is necessary or helpful to the jury in understanding the testimony or determining an issue of fact." C. Tait E. Prescott, Connecticut Evidence (4th Ed. 2008) § 7.1.3, p. 405.
"The rule requiring expert testimony only applies when the question involved goes beyond the field of the ordinary knowledge and experience of a trial judge." Franchey v. Hannes, 155 Conn. 663, 666, 237 A.2d 364 (1967). "Expert testimony is almost always required in all cases involving professional competence and malpractice . . . Such testimony, however, may be excused in those cases in which the professional negligence is so gross as to be clear even to a layperson . . ." C. Tait E. Prescott, Connecticut Evidence (4th Ed. 2008) § 7.5.4(a), p. 411.
The Supreme Court considered non-expert testimony from the plaintiff building owner in an appeal from a dispute over an allegedly defective roof. Beckenstein v. Potter Carrier, Inc., 191 Conn. 150, 154-55, 464 A.2d 18 (1983). In that case, the building owner testified that "[t]he roof started to leak almost immediately after the building was done and they were plaguing us every time it rained." Id., 154. Also, in Richards v. Richards, 82 Conn.App. 372, 375 (2004), the Appellate Court held that it was not unreasonable for the trial court to rely on non-expert testimony from a witness who had served as the defendant's financial advisor and insurance agent and had observed that the roof of the home was leaking. "Nothing in [the witness'] testimony went beyond the ordinary knowledge of the Court. [The witness'] testimony was limited to what he had observed while he was in the house and how he had facilitated payment for the repairs and maintenance on the house. At no point did [the witness] testify as to matters that required expert testimony." The defendant in Richards, supra, testified that the roof was leaking and that, as a result of the leaking roof the electrical wiring cable on the outside of the house was coming apart.
In Richards, supra, the Appellate Court stated that "In its oral decision, the Court, found that `extensive work needed to be done' on the former marital home. The Court based its finding on the testimony of the defendant and on Rogers' (the witness's) observations, as well as on the photographs contained in the appraisal that was performed on the property" Id. 375.
A non-expert may testify that a roof is leaking based on personal observation and expert testimony is not required because such an observation is within the ordinary knowledge of a judge or jury.
It is a reasonable inference for this Court to conclude from the evidence that the roof did not leak prior to the replacement by Classic/Hearn and that it leaked after that. Despite various efforts by Classic/Hearn to replace parts of the roof and the plaintiffs having the vent replaced, the roof still continued to leak. Expert testimony is not required to conclude that the roof continued to leak. Further, this Court finds that there was no credible alternative as to the reason for the roof leaking other than the improper replacement of the roof by Classic/Hearn. Even Alfred Miller testified as aforementioned that he didn't know why the roof continued to leak.
The words of the subcontractor, Richard Hearn and Mr. Miller were especially harmful to the defendants' case. On page 23 of the deposition of Mr. Hearn, (Defendant's Exhibit C) he quoted Mr. Miller as saying "there is a problem with the roof, it's leaking over there." Then he said "it's leaking at the capping." There, and at an earlier part of the deposition, Hearn quoted Miller as saying the roof is leaking. Therefore, by Millers own admission, the roof was leaking, and that observation by Miller is another reason expert testimony was not required.
From the totality of the evidence, this Court concludes that the roof leaking was caused by the improper workmanship of Classic/Hearn.
Mr. Miller from Classic testified that the moisture on the windows caused the problem with the water in the attic. The Court finds this to be improbable, for unless the law of physics has changed, the moisture on the windows in the main part of the building would not go up, and in any event, it was Classic which recently had replaced the windows under another contract.,
It was suggested by Hearn in his deposition that some of the capping on the roof was cracked and it may have been the result of someone standing or sitting on it. However, the evidence is to the contrary. Lucas Morgan testified that he did have occasion to work on a satellite dish which is mounted on the side of the house. However, he also testified that he did not need to access the roof to do this and he did not go up onto the roof after it was completed but only after the roof began to leak to find out what the problem was. Mr. Morgan, whom the Court believes, testified that he did not go up onto the roof until a year later and stated that because he was scared of heights he was scared of the roofing and was very cautious about the way he was on the roof. He testified that he never walked on the capping but straddled the roof by putting a foot on the either side of the peak. There is no evidence that the plaintiff, Lucas Morgan, did anything to cause the roof problem and water damages. That claim is pure speculation.
As to the suggestion that Mr. Morgan and his son had walked on the roof and had possibly cracked the capping of the roof, the Court does not believe that Mr. Morgan, in working on the satellite dish, went up onto the roof However, even if Mr. Morgan and/or his son cracked the capping, when Mr. Hearn came back to redo part of the job, he replaced the capping, and even with the replaced capping, the roof continued to leak.
Evidence also shows that Mr. Miller testified that he recalled being contacted for a leaky roof by the Morgans about four or six weeks after the work had been completed. Mrs. Morgan and Mr. Morgan noticed the water leak after a heavy rain in September of 2003.
Prior to doing the roof, Classic replaced the Morgans' existing windows with new ones; the Morgans' then contacted Mr. Miller about a buildup of condensation on some of the new windows. The exhibits show the buildup of condensation, mold and mildew on the windows installed in the livingroom, the bathroom and two bedrooms. The plaintiffs, whom the Court believes, further testified that the old windows had no condensation problems. Common sense dictates that a leaking roof when it rains cannot be caused by moisture in the home on the floor below the roof. It is obvious that the roof is leaking because water was coming through it into the attic and below.
There was further evidence that gives rise to the conclusion that the roof was leaking. Adgir Morgan at the time of the heavy rainstorm in September 2003 first noticed water leaking down the walls and through the ceilings. Even Mr. Miller testified that the attic area appeared to be damp. The photographic exhibits showed that water damage was inside the home as well as the attic. Even Mr. Hearn testified that insulation in the attic was wet. Adgir Morgan testified that she saw water running down the walls of the attic, which obviously had nothing to do with the moisture in the floor below. Adgir Morgan also testified that they had to place a tarp in the attic on the side of the house over the bedrooms and that the tarp would be filled with water after a heavy rain and they would have to empty it. There was evidence through photographs that showed that the insulation in the attic continued to receive water from the roof.
CT Page 2823
3. Damages.
(a) $11,500 being the amount that the plaintiffs paid to Classic under the contract for the replacement of the roof as shown in Plaintiff's Exhibit One. These funds should be returned.(b) C.G.S. § 52-180 regarding the admissibility of business entries and photographic copies states in pertinent part: "(d) the term `business' shall include business, profession, occupation and calling of every kind." (Emphasis added). The defendant, Classic, has claimed that the proposals for fixing or replacing the roof which is defective and the proposal for repairing the damages caused by the leaking roof are not business records, and that the Court was incorrect in admitting them as business records under the said statute which is an exception to the hearsay rule. However, the words " calling of every kind" are broad enough to apply in this case to a homeowner. An estimate to have home improvement work completed by a contractor is part of a business record of the homeowner in having his/her home repaired.
The statute, 52-180 is remedial and should be liberally construed so as to fulfill the purposes for which it was enacted. See Hartford Division, Emhart Industries v. Amalgamated Local Union 376 U.A.W., 190 Conn. 371, 388, 389 (1983). The term business in this statute is broad enough to include private business records, Jacobson Electric Co. v. Rome Fastener Corp., 156 Conn. 55, 60 (1968). In the same case, the Court held ". . . all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility . . ." (Emphasis added.)
The term business is extremely broad "and connotes an activity conducted for commercial or public purposes . . ." See Tait's Handbook of Connecticut Evidence, 4th Edition, p. 544.
A business record that has been prepared with litigation in mind is not per se inadmissable. The question to be answered is whether the document bears circumstantial indicia of lack of trustworthiness. If it is self-serving and a motive to falsify can be demonstrated, the Court has discretion to exclude it. This Court is not aware of any evidence in this case that plaintiffs' exhibits three and four being the proposals from Bob's Home Improvement, is self-serving and/or there is a motive to falsify it. If the record satisfies the statute and the business relies on that record in its day-to-day operations, it may be sufficiently trustworthy so that the fact that it is self-serving and may have use in future litigation may not be grounds to exclude it. Jefferson Garden Associates v. Greene, 202 Conn. 128, 140-41 (1987).
"[T]he essential hallmark of admissibility under § 52-180 is the trustworthiness of the document. American Oil Co. v. Valenti, 179 Conn. 349, 358-59 (1979). This Court finds that the documents are trustworthy. The Court also concludes that these documents are "substantial evidence."
The work on the roof was concluded sometime in late 2003. However, the complaints by the plaintiffs and the efforts by the defendants Classic/Hearn to fix the problems carried on for a substantial length of time which extended according to the testimony of both Mrs. Adgir Morgan and even Mr. Miller approximately two years which would take it at least into the middle of 2005. The proposal for fixing the roofing system, plaintiff's exhibit three, was dated December 11, 2006 which could or could not have been in anticipation of litigation even though the return date on the instant suit was February 27, 2007. The second proposal, Plaintiff's Exhibit Four, for the painting and the cleaning and the installation of the new wall board to take care of the damage done by the leaking roof is dated May 1, 2007 after suit had been instituted so it could be that document was prepared in anticipation of litigation. This Court finds from the totality of the evidence that the document was prepared in the ordinary course of business and is free from suspicion. "Although such records should be reviewed with particular care for indicia of trustworthiness, they should not be excluded solely for the reason of their nexus to litigation. State v. Jeffrey, 220 Conn. 698, 710 (1991). The trustworthiness of the records is above suspicion.
Since Bob's Home Improvement was an existing home improvement company at all times mentioned herein the proposals were clearly when submitted made in the regular course of his business, and it is a reasonable inference that it was the regular course of business to make such records. Mrs. Morgan testified that the records were made and received by her on or about the date of the records namely December 11, 2006 and May 1, 2007. Obviously the records are relevant and pertain to the business of the record's entrant. State v. Williams, 267 Conn. 686, 704 (2004). Also, as noted in Hartford Division, Emhart Industries v. Amalgamated Local Union 376 U.A.W., supra, because the statute is to be liberally interpreted, records should not be excluded when the statutory requirements can be reasonably assumed to have been met. There is a presumption of regularity. This Court is satisfied that the three essential elements of a business record have been met. Also, documents generated during a trial have been admitted as a business record. Emigrant Mortgage Co. Inc. v. D'Agostino, 94 Conn.App. 793, 896. It was found that even during trial, it was within the Court's discretion in that its genuineness was in no way suspect. An estimate to have home improvement work completed by a contractor is, therefore, a business record.
A proposal from one business, a commercial venture, to another business, a commercial venture, is an exception to the hearsay rule as a business record. Why is it different when it is a business supplying a business record to a homeowner? It is not. The logic is clearly that they should be considered equally as an exception to the hearsay rule. The Court is satisfied that the three essential elements of a business record have been met by the plaintiffs. They are business records of the plaintiffs as well as Bob's Home Improvement.
Bob's Home Improvement proposal admitted as plaintiff's exhibit three estimates replacing the roofing system to cost $22,000.
The same company, Bob's Home Improvement, submitted another estimate which was admitted into evidence for repairs to the three bedrooms, the livingroom, the bathroom and the kitchen, to install new wall board and to paint all rooms, to remove all baseboard and casing and replace after painting. This is for the work to correct the damages and is in the amount of $14,291.55, Plaintiff's Exhibit Four.
It should be noted that these damages do not include replacing the windows because the allegedly improper installation of the windows was a separate contract and not part of this case.
Accordingly, the damages as a result of the breach of contract are:
$11,500.00 Money paid by plaintiffs pursuant to contract.
$6,229.00 Interest for $11,500 wrongfully withheld under C.G.S. § 37-3a.
From the date of the contract through January 21, 2009.
$22,000.00 Replacement of roof, Plaintiff's Exhibit Three.
$14,291.55 Repair of damages resulting from leaking roof.
$54,020.55
4. Is Classic Responsible to the Plaintiff even though Classic Hired Hearn as a Subcontractor to do the Work?
The short answer is yes.
Under the terms of the contract between Classic and the plaintiffs, Classic was to install a roof within the parameters of standard practices. Classic owed a duty to the Morgans to have the job completed in such a way that the roof would not leak. The contract states "all work to be completed in a workmanlike manner according to standard practice." As a result Classic had the duty to see that the work was properly performed. The bargain in the contract was that for $11,500 the Morgans would end up with a new roof that would not leak when it rains. Classic claims that a general contractor is not liable for the torts of its independent subcontractors.
However, there are several exceptions to this rule. If Classic is under a legal duty to see that the work is properly performed it will be responsible for resulting injury if the work is not properly performed. (Internal citations omitted.) Pelletier v. Sordoni/Skanska Const. Co., 286 Conn. 563 (2008). Under the terms of the contract between Classic and the Morgans from the above language it is clear that Classic was under a legal duty to see that the work is properly performed. Further, Classic, through Mr. Miller, became very involved in the issue of the leaking roof. He instructed Hearn (the subcontractor) to redo part of the roof, he examined the roof, and analyzed the problems although imperfectly. There was enough involvement by Mr. Miller on behalf of Classic for him to be at least partially in control of the subcontractor. Accordingly, Classic is directly liable for the damages sustained as mentioned above because of the breach of contract/negligence by Classic in replacing the roof improperly. This is the same as a property owner hiring an independent contractor to remove snow after a snow storm in the parking lot. If someone falls as a result of negligence in clearing the parking lot, the owner of the property is still liable to the person who falls even though the property owner may have a claim for indemnification against the subcontractor.
See Pelletier v. Sordoni/Skanska Const. Co., 286 Conn. 563 (2008), in which the Court held that if the contractor is under a legal duty to see that the work is properly performed by the subcontractor, the contractor will be responsible for resulting injury to the homeowners.
According to Hearn's deposition, Miller stopped by to inspect the job both days that Hearn was working there. See page 20 of the deposition where Hearn said "He stopped by both days, he came by to check on us and make sure that we cleaned everything up. He walked around the whole house and the roof."
5. Conclusion As to the Initial Claim of the Plaintiffs Against Classic.
The Court enters judgment for the plaintiffs on the first count in the amount of $54,020.55.
From the totality of the evidence, this Court finds that by a preponderance of the evidence Classic breached its contract with the plaintiffs, and the Court enters judgment for the plaintiff on the first count.
The Court enters judgment for the plaintiffs on the second count, Unjust Enrichment, only as to the $11,500 plus the interest described above for a total of $17,729.
Judgment is entered for the defendant on the third count, Breach of the Implied Covenant of Good Faith and Fair Dealing. The Court finds that the defendant is liable under Breach of Contract and Unjust Enrichment but that there was no ill motive or lack of good faith in attempting to fulfill the contract. As to the fourth count and the fifth count the Court enters judgment on behalf of the plaintiffs with the same damages as found in the first count, Breach of Contract, totaling $54,020.55.
6. Is Hearn Liable to Classic On the Apportionment Complaint?
The short answer is yes.
Although the apportionment complaint does not excuse the liability of Classic to the plaintiffs, Classic does have a valid apportionment complaint against Hearn. Since Hearn did most if not all of the work on the original roofing and on the replacement when it was found to be leaking, the Court can only conclude it was the negligence of Hearn that caused the roof to leak. Hearn's only testimony was by the deposition, and Classic has not specifically sought an amount for the apportionment claim. However, the total damages for which Classic is responsible to the plaintiffs is $54,020.55, and without more evidence, the Court has to conclude that is the amount that should be entered on behalf of Classic on the apportionment complaint.
Accordingly, judgment on the apportionment complaint is entered in favor of Classic against Hearn in the amount of $54,020.55.