Opinion
No. CV02-0079638S
April 23, 2004
MEMORANDUM OF DECISION
The plaintiff in this matter brings an action for recovery of a deposit made in accordance with a contract entered into with the defendant Northeastern Window Supply, L.L.C. The contract executed on April 8, 2002 (See P. Ex. 1) called for a starting date of 4-6 weeks, or by the middle of May 2002, with an estimated completion time of two days. The contract further called for the finishing and installation of 16 regular windows and 1 bow window. The contractor agreed to obtain all permits from municipal authorities to perform the work. The contract was subsequently terminated by the plaintiff for unsatisfactory performance by the defendant both in terms of the material supplied and the work performed. The defendant denies any breach of contract on its part and by way of counterclaim seeks to recover the balance of the contract price of $5100.
The plaintiff testified that she experienced problems with the defendant's performance from the outset. To begin with, she claimed that it was important to her that the work be done while school was in session to avoid having to contend with her house being disrupted by defendant's work in removing existing windows and installing the new windows. As it turned out the defendant did not receive the replacement windows until much later despite the defendant's representative Bryon Vandenberg assuring her the work would be completed by the end of June. The work did not commence until July 21, 2002 with Vandenberg's explanation that the order was either lost or mislaid. It is also the plaintiff's claim that she ordered windows which were energy efficient and assumed that Energy Star windows would be supplied. This claim was disputed by Vandenberg who claimed that while energy efficient windows were discussed it was the plaintiff's decision not to order them as extra costs would be involved. There was testimony that stickers attached to the windows indicating that they were plain glass were removed prior to delivery to the plaintiff's premises.
In any event, on July 21, 2002 the defendant's workers appeared to begin the installation, taking out the old windows and putting in the new ones. This was accomplished in several days and following this the bow window was installed to complete the work. The plaintiff immediately noticed the windows would not open. Vandenberg said he would correct this. The Berciks also noted that the caulking was defective; there was a mixture of colors, gap spaces were present and the work was "lousy" in Mrs. Bercik's words. Numerous photographs were offered in evidence to support these claims. (P. Ex. 4, 1-7.) Mrs. Bercik also noticed marring of the finish on several of the windows and there were gaps open to the outside (P. Ex. 7) and the overall installation was poorly done in her opinion. She also noticed defects consisting of a ring or "halo" in the glass which could not be removed. Vandenberg agreed to replace the windows with energy efficient glass, to redo the caulking and try to correct the shortcomings. Before this could be accomplished, Vandenberg's workers returned and in attempting to remove caulking caused additional damage to the windows. Mrs. Bercik had directed them to work in a certain room but they insisted on continuing their work in another room. At this point Mrs. Bercik had had enough of the defendant's performance and ordered the workers off the job. These claimed defects and inadequate performance were witnessed and testified to by Mrs. Bercik's husband Gregory and also by Robert Lamparelli, an individual who does home inspections with some 30 years experience. The latter observed the conditions as testified to by the Berciks and concluded that the installation reflected "poor workmanship." The windows were not "square" or "plumb" and did not operate smoothly. Tension screws were broken or missing and the caulking was poorly done. His report was offered and received in evidence noting his observations as to the defendant's performance. (P. Ex. 5.) After Mrs. Bercik ordered the defendant's employees off the premises Mr. Bercik removed the new windows and stored them in his garage, directing the defendant to pick them up and went about replacing those windows through his own purchases and labor. The defendant however never claimed them and the Berciks eventually disposed of them. It was Vandenberg's observations through his testimony that it was not possible to satisfy Mrs. Bercik despite his assurances that he would do whatever was necessary to correct any claimed deficiencies including the installation of Energy Star windows although he claimed he was not contractually obligated to do so. The workers to whom Vandenberg subcontracted the installation were aware of Mrs. Bercik's unhappiness with the work almost from the outset and anticipated ongoing problems according to witness Tucker. From all of this, the plaintiff claims that these facts entitle her to a return of her deposit of $2500. The court agrees.
It was the obligation of the defendant to carry out the contract it agreed to in a workmanlike manner. The delay in its performance initially and the obvious lack of workmanship in the installation constituted a failure on the part of the defendant to perform its contractual obligation in a workmanlike manner. See Ferrigno v. Pep Boys, 47 Conn. Sup. 580, 582; Kocian v. Devito, 5 Conn. Cir. Ct. 339, 342.
It is also the claim of the plaintiff that the defendant's actions constituted a violation of "CUTPA," Connecticut Unfair Trade Practices Act. The court disagrees and finds that the defendant's performance of its contract while deficient in many aspects was pure and simple poor workmanship which of itself does not rise to the level of a CUTPA violation. There were no deceptive, unfair or unconscionable acts committed by the defendant which would fall within the ambit of CUTPA.
Judgment may enter for the plaintiff on the first count in the amount of $2500 and for the defendant on the third count. Judgment may also enter in favor of the defendant Bryon Vandenberg on the second count as there was insufficient evidence to support a claim of piercing of the corporate veil and further as the issue was not briefed by the plaintiff the court considers the second count as abandoned.
As to the defendant's counterclaim the court concludes that the plaintiff was entitled to terminate the defendant's performance of the written contract on the grounds that the work was being performed in an unworkmanlike manner as previously set forth. See Collins v. Sears Roebuck Co., 164 Conn. 369, 382.
As to the defendant's claim in count two of unjust enrichment, such a claim for recovery does not lie as reliance on an express contract precludes proof of a right to recover on an implied contract Vernacchia v. Barzda, 5 Conn. Cir. Ct. 209, 212.
George W. Ripley, JTR