Opinion
HHDCV156058284S
01-19-2018
Frances Boyle[1] et al. v. Apple Hill Homeowners Association, Inc.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Peck, A. Susan, J.T.R.
MEMORANDUM OF DECISION
PECK, J.T.R.
The present action is the most recent chapter in a contentious and unhappy relationship between the plaintiffs, Frances and Arthur Boyle, and the defendant, Apple Hill Homeowners Association, Inc. (association). The association oversees Apple Hill, a planned unit development in Newington, Connecticut. Apple Hill is governed by a declaration (declaration), as well as bylaws that are promulgated thereunder. The plaintiffs own 16 Cortland Way, a unit in Apple Hill. In count one of their complaint, the plaintiffs allege structural damage to their unit
Hereafter, the court refers to Frances and Arthur Boyle, collectively, as the plaintiffs, and individually by name where appropriate.
as a result of ice damming that occurred during the 2010-11 winter to the present time, and seek money damages for the cost of repairs. In count two, the plaintiffs seek an injunction directing the association to perform certain roof repairs or, alternatively, an award of sufficient funds to make the repairs. By way of an amended answer, the defendant set forth several special defenses including waiver/release/estoppel, the statute of limitations, latches, settlement, and collateral estoppel/res judicata.
Although the defendant filed a counterclaim in its answer to the complaint, it has neither prosecuted nor withdrawn this claim.
I
FINDINGS OF FACT
The plaintiffs purchased 16 Cortland Way at Apple Hill in 2005. The association is managed by Imagineers, LLC (Imagineers).
A
The Declaration
Section 7.2 of the declaration provides that " Each Unit Owner shall maintain, repair and replace, at his or her own expense, all portions of his or her Unit, except the following for which the Association shall be responsible: replacement of the roof, gutters, leaders and siding material of the Residential Dwelling situated on each Unit and the painting of the exterior trim and staining of decks or patios as periodically necessary ... Each Unit Owner shall be responsible for the maintenance, repair and replacement of his or her Unit other than those items referred to in Section 7.2 ..." (Emphasis added; internal quotation marks omitted.)
Section 1.27 of the declaration defines " unit" as " [a] physical portion of the Common Interest Community designated for separate ownership or occupancy, the boundaries of which is described in Section 4.3 of this Declaration."
Section 4.3 of the declaration provides in relevant part: " The boundaries of each Unit created by this Declaration are located as shown on the Survey, each being a lot together with all improvements thereon within a subdivision of the land described in Article III hereof. Each Unit shall include the spaces and improvements lying within the vertical plane of the lot’s boundaries and shall also contain any pipes, wires, ducts and conduits situated within the party wall serving only that Unit."
Based on the foregoing provisions, unit owners are responsible for the structure of their unit from the ground up, including the structural framing. The association is responsible for the replacement of the roof, gutters, leaders and siding material. In common parlance, the roof consists of the covering of the unit, including the shingles. See Merriam-Webster’s Collegiate Dictionary (11th Ed. 2003). The roof does not include interior structural elements.
B
The 2011 Claim of Loss & Release
On or about January 31, 2011, the plaintiffs filed a claim of loss against the association, pursuant to its insurance coverage with Strathmore Insurance Company (Strathmore), arising out of an " ice damming loss." The claim was settled for the sum of $19,224 and ten cents. The terms of the settlement were set forth in a release executed on November 7, 2011 (2011 release).
In relevant part, the 2011 release states that, in consideration of the foregoing amount, the plaintiffs release the association " of and from all, and all manner of actions, cause and causes of action, suits, debts, dues, sums of money ... damages ... claims or demands whatsoever in law or in equity, which against said Association" they " ever had, now have or which ... [their] heirs, executors or administrators, hereafter can, shall or may have for, upon or by reasons of any matter, cause or thing whatsoever from the beginning of the world to the day of these presents. And especially in connection with any and all damages, both direct and indirect, which resulted from an ice damming loss on January 31, 2011, per Greater New York claim #B1-020264-37P. Any and all conditions which pre-existed the ice damming loss for which Frances and Arthur Boyle may have a claim against the Apple Hill Homeowners Association, Inc., are hereby excluded from this release. Nothing in this release shall be construed to prevent Arthur and Frances Boyle from making a claim against Greater New York Insurance, which insures Apple Hill Homeowners Association, Inc. for the loss sustained herein, for any damages incurred which exceed the $19,224.10 paid by Greater New York Insurance to Apple Hill Homeowners, Inc. which is now being paid to Arthur and Frances Boyle. Apple Hill Homeowners Association agrees that should the Association receive any further payments on this claim from Greater New York Insurance, the Association shall immediately turnover those payments to Arthur and Frances Boyle."
Arthur Boyle reviewed the 2011 release before signing it with the advice of legal counsel.
C
The 2012 Action
On April 9, 2012, subsequent to executing the 2011 release, the plaintiffs commenced a civil action (2012 action) against the association and Strathmore. See Boyle v. Strathmore Ins. Co., Superior Court, judicial district of Hartford, Docket No. CV-12-6030723-S.
Strathmore and Greater New York Insurance are presumably related companies.
The 2012 action arose out of damage to the plaintiffs’ unit in connection with the January 31, 2011 claim of loss. The first count of the operative complaint in the 2012 action alleged breach of contract against Strathmore in that the $19,224 and ten cents that it tendered to the association- which the association then paid over to the plaintiff in connection with the 2011 release- was inadequate to repair the damage to the plaintiffs’ unit. Accordingly, the plaintiffs sought additional compensation.
There is no dispute that the 2011 release clearly excepted and anticipated a subsequent direct claim against Greater New York and/or Strathmore seeking damages in excess of the $19,224 and ten cents paid to the plaintiffs in accordance with the 2011 release. It also provided that any sum paid to the association in addition to the settlement amount would be paid over to the plaintiffs.
The complaint in the 2012 action, specifically paragraph 7, incorporated into count five against the association, alleged that snowfall during " December 2010, January 2011 and February 2011, " and " [s]ubsequent thawing and freezing caused the formation of a large ice dam in excess of two feet in thickness and twenty feet in length on the rear section of roof facing the rear deck ." (Emphasis added.) Specifically, the plaintiffs alleged that " [t]he weight of ice and snow caused structural damage to the roof and rear wall of the unit along with substantial damage to the interior of the unit from water penetration." Paragraph 12 of count five further alleged that both " [p]rior and subsequent to" the plaintiffs’ purchase of their unit in 2005, " there has been water leaking into the rear picture window from an improperly designed gutter system which cannot accommodate water flowing off the rear roof in a heavy rain ." (Emphasis added.) Paragraph 13 of count five alleged that " after receipt of the $19,226.10 payment from Strathmore, " the plaintiffs used that money " to repair the rear wall and replace the rear picture window and, while performing these repairs, they discovered that " water had penetrated into the wall below the picture window and down to the lower level of the plaintiff’s unit ... rotting ... the exterior wall through to the aluminum siding from beneath the picture window to the bottom of the unit requiring that the rear exterior wall be rebuilt." Finally, in paragraph 14, the plaintiffs further allege that Strathmore has denied coverage for damage causes by this aspect of their claim, and, therefore, pursuant to the terms of the declaration, the association is responsible for this repair. Various other claims, counterclaims, and cross claims were withdrawn by the parties prior to trial.
The court notes that in the trial of the present action, contrary to this allegation in the 2012 action, Arthur Boyle testified that, as of July 2014, the plaintiffs had only expended $9,500 for repairs to their unit.
Ultimately, on April 11, 2013, count five of the operative complaint in the 2012 action, which was directed against the association, was withdrawn by the plaintiffs. A court trial was held on count one of that complaint, i.e., the breach of contract claim against Strathmore. In a memorandum of decision issued by this court on December 29, 2014, judgment was rendered for Strathmore.
D
The 2013 Release
On April 8, 2013, five days prior to the withdrawal of count five against the association, the plaintiffs executed a release (2013 release) in favor of the association and Imagineers.
In relevant part, the 2013 release provides that " Arthur Boyle and Frances Boyle ... (" Releasor "), for and in consideration of SEVEN THOUSAND 00/100 ($7,000.00) DOLLARS, and other good and valuable considerations, paid in hand and given to them in hand by APPLE HILL HOMEOWNERS ASSOCIATION, INC. and IMAGINEERS, LLC ... (collectively " Releasee "), the receipt and sufficiency of which is hereby acknowledged, have remised, released and forever discharged, and does hereby remise, release and forever discharge Releasee ... of and from any and all manner of action and actions, cause and causes of action, suits, debts, dues, and sums of money, agreements, promises, variances, trespasses, damages, judgments, extent, executions, claims and/or demands ... in law and/or in equity, whether known or unknown, contingent or fixed, which against the Releasee that the Releasor ever had, now has and/or which the Releasor hereafter can, shall and/or may have, from the beginning of the world up to the date of this General Release, and, as particularly pertains to any and all claims, and any and all claims that could have been asserted against Releasee, in the case captioned Arthur Boyle, Frances Boyle et al. v. Strathmore Insurance Company and Apple Hill Homeowners Association, Inc., HHD CV 12-6030723S, Judicial District of Hartford (" Case"). The Case involves disputed claims and this General Release neither constitutes nor shall it be inferred as any admission or any acknowledgment of the veracity of any allegations or claims asserted by the Releasor against the Releasee for and in the Case.
" This General Release includes a waiver of any and all damages which may have been, or may in the future be, caused to the Releasor, their persons, properties, business prospects, or any of their interests whatsoever, because of the actions waived and released herein, including without limitation any actual or implicit, direct or indirect, incidental, consequential or exemplary damages or property damages suffered by the Releasor from any and all actions or omissions of the Releasee.
" With the advice of legal counsel hereby acknowledged, the Releasor voluntarily and knowingly execute this General Release for the benefit of the Releasee." (Emphasis original.)
Arthur Boyle reviewed the 2013 release before signing it with the advice of legal counsel. Unlike the 2011 release, the language of the 2013 release is unrestricted.
E
The Present Action
On March 24, 2015, well after the execution of the 2013 release, the plaintiffs commenced the present action against the association.
1
The Operative Complaint
The operative complaint in the present case is comprised of two counts.
Paragraph 5 of count one alleges in relevant part: " [I]n the back portion of the town home there is a living room with a cathedral ceiling, a picture window facing west and a rear door opening onto a deck." Paragraph 6 of count one further alleges that " [o]n the outside, above the living room cathedral ceiling, there is a sloping roof which runs down to a gutter above the living room picture window. On the northerly side of this sloping roof there is a wall beyond which is the second floor master bedroom." At the " westerly terminal point" of the wall, " the sloped roof over the living room terminates at the gutter above the living room picture window." Paragraph 8 alleges that the plaintiffs’ unit " has a long history of severe ice damming with heavy snow and ice loads on the sloped roof above the living room forming alongside the center load bearing wall. In particular, very heavy ice damming events have occurred during the winters from 2010-2011 to the present time. These ice damming events have resulted in frequent water penetration into the town home unit with severe damage to the interior walls and flooring." Paragraph 9 alleges that in July 2014, as the plaintiffs were repairing damage to their unit " from previous water penetration caused by ice damming, " on or about July 28, 2014, they removed " a small water damaged portion of the ceiling above the kitchen and dining rooms" and " discovered that the connection of the floor joists to their carrying beam, which supports the second floor master bedroom, had come apart and completely failed, creating a substantial risk of collapse of the bedroom to the first floor below."
Paragraph 11 alleges that the cause of this structural failure " was the weight overload of the carrying beam caused by repeated snow and ice overload and ice damming events concentrated of the sloped roof above the living room and adjacent to the wall described in paragraph 6. This overloading began during the building’s first winter (1987) and peaked during the winters from 2010-2014." Finally, in paragraph 13, the plaintiffs allege that the association, or its insurance carrier, is responsible for the cost of the repair of these structures pursuant to its bylaws, in particular Section 21.1, and is also responsible pursuant to the Common Interest Ownership Act, and, despite a request by the plaintiffs, the association " has failed and refused to pay the cost of these repairs."
Count two of the operative complaint in the present action incorporates paragraphs 1 through 12 of count one and also alleges that, while performing the structural repairs referenced in count one, portions of the living room ceiling were removed " exposing the interior roof rafters and upper roof supporting beam structure ..." Upon visual inspection of portions of the living room ceiling, " it was discovered that the roof rafters were no longer supported by the carrying beam, " causing the roof to sag. " The roof was found not to be properly ventilated which ... has been a substantial factor in the frequent ice damming events and water penetration" into the plaintiffs’ unit. The plaintiffs claim that repair and maintenance of their unit’s roof is the responsibility of the association, which has refused to repair the roof in violation of its bylaws.
The plaintiffs seek money damages as to count one. With respect to count two, the plaintiffs request an order requiring the association to repair their roof and conform the roof ventilation over the living room to building code requirements. To accomplish this, the plaintiffs seek an injunction requiring the association to repair the roof or, alternatively, award " sufficient funds" to the plaintiffs to make these repairs.
2
The Trial
A trial to the court was held in this matter on June 6, 7 and 8, 2017. Following the filing of post-trial briefs, closing argument was held on September 11, 2017.
a
Witness Testimony
At trial, the following witnesses testified: the plaintiff, Arthur Boyle; James Thompson, Buck & Buck Engineering, LLC, a licensed professional engineer, and the plaintiff’s expert witness; J.P. Carroll, the construction contractor for Imagineers, the management company for the association; Carl Cianci, Cianci Engineering, LLC, a licensed professional engineer, and the defendant’s expert witness; Suzanne Etzel, an employee of Imagineers, and property manager of the association for twenty-nine years.
Frances Boyle did not testify as it was stated that she had nothing to add to the testimony of her husband.
i
Arthur Boyle’s Testimony
Arthur Boyle disclosed himself as an insurance coverage expert witness in the present case. He is an experienced property/casualty claims adjuster with more than fifty-five years of experience in the insurance industry and is now self-employed. He was actively involved in revising and drafting the 2011 release. The 2012 action sought damages in excess of the $19,224 and ten cents, paid in consideration for the 2011 release. In that action, the plaintiffs claimed compensation for cosmetic damage to the interior of their home in addition to " structural damage to the roof and rear wall of the unit." Exhibit F (2012 Complaint), ¶7. Paragraph 7 of the 2012 action’s operative complaint reflects that Boyle was aware of the sag in roof and the crack in west wall in 2011 before signing both the 2011 (Exhibit E), and 2013 (Exhibit G) releases. On November 9, 2011, well before April 8, 2013, the date the plaintiffs executed the 2013 release, an inspection was performed by the Newington Building Inspector, who then advised Boyle to get an engineer to look at the sag in the roof. Boyle did not do so until July 2014.
All lettered exhibits are the defendant’s exhibits and numbered exhibits are the plaintiffs’ exhibits.
Arthur Boyle’s testimony, among other things, confirmed the following facts: (1) the cracking in the west wall alleged in the present case was also alleged as part of the damages claimed in the plaintiff’s 2012 action; (2) the gutter referenced in the present case is the same gutter referenced in count five of the 2012 action; (3) repairs to the picture window, west wall, and roof referenced in count one of the operative complaint in the present case were claimed as part of the damages in the 2012 action; (4) repairs of the interior cosmetic damage claimed in the 2011 insurance claim, for which the plaintiffs were paid $19,224 and ten cents, were not commenced until July 2014; and, (5) some of the repairs made to the plaintiffs’ unit in July 2014, to November 2014, were related to the damages claimed in the 2012 action. The sum of $7,000 was paid to the plaintiffs in settlement of count five of the 2012 action, pursuant to the 2013 release. In addition, the prior unit owners paid the plaintiffs $3,300 at the time of the plaintiffs’ purchase of the unit in 2005, for existing damage to the picture window at the time of the sale. Therefore, from the time they purchased their unit in 2005, to the settlement of the 2011 insurance claim and settlement of count five of the 2012 action (pursuant to the 2013 release), the plaintiffs were paid a total of $29,524 for repairs to the same rear west wall, picture window, and related cosmetic damage to their unit. Of that $29,524, prior to July 2014, the total amount expended by the plaintiffs for repairs to their unit was $9,500.
ii
James Thompson’s Testimony
James Thompson, a licensed professional engineer, was called by the plaintiffs as an expert witness in structural engineering. Thompson testified on June 7, 2017, in relevant part, as follows: He was originally contacted by Robert Green, Jr., of Advanced Home Services, LLC, the contractor hired by the plaintiffs to perform repairs to their unit in July 2014. He advised Green to open up the ceiling in the living room and dining room. Upon the opening of the ceiling, he observed that Beam B was falling apart and the floor joists from the second floor bedroom were falling down due to water intrusion over the years, and that the lack of roof ventilation caused the heat to rise up under the roof and melt snow. Water comes down the roof and freezes, resulting in ice damming. He believed there was a danger that the bedroom floor would collapse, so he advised Green to notify the plaintiffs and the building official. The most efficient and cost effective way to prevent ice damming going forward is to blow in foam insulation. The work that had to be done was to fix the joists on Beam B, make Beam A level, and spray in foam insulation. In his opinion, there was a direct connection between the roof leaking and the structural movement of joists in the second floor bedroom. He ultimately agreed that the roof would not have to be reconstructed if spray foam is used for insulation. He did not know the cost of taking down ceilings, removing fiberglass insulation, and replacing it with spray foam. Nor did he know if there is rot in rafters or if they would have to be replaced.
In a letter written by Thompson directly to Arthur Boyle, dated July 29, 2014, Thompson stated that the purpose of his inspection on July 28, 2014, was to advise Green " on how to rebuild or repair the connection of the second floor bedroom joists to their support beam " to prevent collapse of the bedroom floor." The letter also stated that the unit was " unfit for human habitation" and that Arthur Boyle find " other living quarters immediately." (See Exhibit 40.) The letter indicated that Thompson intended to prepare a written report to Green so that he could get a building permit and make the necessary repairs. On July 30, 2014, Thompson prepared a two-page written report to Green addressed to structural concerns. (See Exhibit 284.) On September 3, 2014, Arthur Boyle e-mailed Thompson stating that he reviewed Thompson’s two-page report to Green and wished to address the content of what Arthur Boyle referred as a " complete report" with Thompson and his attorney. (See Exhibit Q.) On September 8, 2014, Thompson prepared a more detailed report to Green addressing the structural issues he found. The report reflects that Thompson met with Boyle at the premises on July 29, 2014. Arthur Boyle, Attorney O’Brien and Thompson had a meeting on October 22, 2014, during which ice loads were discussed. A handwritten note by Thompson documents the meeting. (See Exhibit P.)
An e-mail dated October 29, 2014, from Arthur Boyle to Thompson, states, by way of follow-up to their previous meeting, that Boyle needs a short report for Attorney O’Brien " regarding his need to prove causation of the roof failure due to ‘Weight of Ice & Snow that led to ultimate failure of the roofing supports, the internal load bearing walls and the contribution of faulty workmanship caused by the builder ..." (See Exhibit O.) At the request of Arthur Boyle and/or Attorney O’Brien, Thompson wrote a letter, dated November 24, 2014, wherein he identifies ice accumulation and heavy winter snow loads as the cause of the structural damage he first observed on July 29, 2014. In relevant part, Thompson stated: " [I]ce accumulation by itself or with the added weight of normal winter snow loads ... causes very heavy over loading of the building support structure (columns) that also support the east and west ends of THE BEAM [B] ... The above described over loading of the structure probably started during the building’s first winter (1987) and peaked during the ice accumulations witnessed by the owner during the winters of 2010 through 2014." Thompson also stated that the " non-ventilated roof structure of the living room promotes the creation of ice accumulation on the roof surface." (Exhibit 284.) There are some handwritten edits, made at some point by Attorney O’Brien and/or Arthur Boyle on what was apparently a first draft of the November 24, 2014 report. (See Exhibit S.) An e-mail from Thompson on November 5, 2014, invites comment on the draft by Attorney O’Brien. (See Exhibit R.) Thompson incorporated language drafted by Arthur Boyle into the November 24, 2014 letter regarding the weight of ice and snow. On cross examination at trial, Thompson agreed that there was no mention by him (Thompson) of damage due to the weight of ice and snow accumulations in his July 30, 2014 report. (See Exhibit 284.) Although the September 8, 2014 report opines on the need for ventilation in the roof structure to prevent ice dams and water intrusion, Thompson conceded that there was no mention by him of structural damage caused by the weight of ice and snow accumulations in that report either. (See Exhibit 34.) Thompson also testified that he originally stated in his July 30, 2014 and September 8, 2014 reports that the second floor bedroom floor joist/beam connection was failing because nailing in the original construction was ineffective.
iii
Carl Cianci’s Testimony
Carl Cianci, a licensed professional engineer, was called by the association as an expert witness in structural engineering on June 8, 2017. Cianci testified in relevant part: Although Arthur Boyle reported a noticeable rear roof sag to Cianci at the time of Cianci’s first site visit to 16 Cortland Way, on July 30, 2014, as evidenced by a comparison of a 2008 photo to a 2014 photo of the same area of the rear roof. A comparison of the photographs does not conclusively show a difference in the slope of the roof. The connections between the recently exposed 2 x 8 floor joists of the second floor bedroom and the LVL beam (Beam B) above the dining room were " poor with signs of distress" but, as stated in his (Cianci’s) report of August 28, 2014, this issue could " easily be corrected by the installation of screws to tie the plies together." (Exhibit W, p. 3.) When he checked what Arthur Boyle reported to be a floor sag in the second floor bedroom above the dining room, he did not find " excessive sag." Nor did he find " any signs of structural distress" with the floor joists themselves other than at the connections previously referenced. He agreed with Thompson that the latter connections needed reinforcement but disagreed that the condition required that the residence be deemed unsafe and that the plaintiffs needed to find alternative housing. Rather, he stated that " the floor joists could be easily shored, slightly jacked and the poor connections could be easily reinforced by the addition of new joist hangers." Id., p. 4. Cianci also noted in his supplemental report of December 31, 2014, that while Beam B supports the second floor bedroom loading and the weight of the wall above, it does not support the roof loading. (See Exhibit X.)
Cianci’s findings were based on three site visits between July 30, 2014 and August 21, 2014. He personally attended two of them. Based on these visits and all the photographs provided by Arthur Boyle, he concluded that after observing the exposed framing, and reviewing the other documentation provided, that it would be prudent to perform work to correct or supplement poor original framing within the unit. Importantly, Cianci opined as follows: " We did not note any evidence that the subject roof framing is structurally damaged or is a life safety concern. The sag in the roof is due to the original framing sizes and methods utilized in the original construction of the building. The structural roof framing and ventilation can be improved, if desired, but is not required, in our opinion." Id., p. 5. Further, Cianci stated that an " increase in roof rafter size and increase in ventilation will not prevent future ice damming ... Ice damming is highly dependent on many conditions including, but not limited to, exposure to the sun, heat loss (insulation), ventilation, snow drifting, roof overhangs, blocked gutters, etc." Id. He also testified that ice damming on a roof typically builds up at the edge of the roof, accumulating from repeated snow melt and refreezing. Because all the weight is at the edge, it would not be over a beam or impact a beam in the middle of a structure. Structural issues identified in 2014 were from inadequate original construction, not ice damming. The sag in the roof is not causing structural damage.
In his supplemental report, dated December 31, 2014, Cianci points out that Thompson’s supplemental report of November 24, 2014, makes no mention of the very poor original connection of the joists to the beam (Beam B). Cianci concludes his supplemental report with the statement that the poor connection between the second floor joists and Beam B " are unrelated to the weight of ice and snow." (See Exhibit X.)
Thompson and Cianci agree that the lack of ventilation under the rear part of the roof plays a role in ice damming, but they fundamentally disagree on the extent of that role. The two also disagree on the impact of ice damming and snow loads on the interior structural components of the unit. As stated, Thompson opines in his supplemental report of November 24, 2014 that, " [t]he ice accumulation by itself or with the added weight of normal winter snow loads" has overloaded the support structure of the unit since 1987 and caused the structural damage of which the plaintiffs complain. (See Exhibit 35.) In his report of July 30, 2014, however, Thompson states that the purpose of his inspection was to evaluate the condition and structural support of second floor bedroom and recommend a method of repair. (See Exhibit 284.) He was not asked to determine the cause of that condition. In his report of September 8, 2014, he mentions that he was asked by Arthur Boyle to expand his inspection. To the extent that he addresses the issue of the cause of any of the structural issues identified by him in the September 8, 2014 report, Thompson mentions gaps between structural members, " shrinkage of the supporting framing lumber, compression of the framing lumber under wet conditions, sloppy workmanship or a combination of all of the above." (Exhibit 34, p. 3.)
iv
Suzanne Etzel and J.P. Carroll’s Testimony
Etzel, the association property manager, testified that as of the time of trial, the association had expended $130,000 on legal fees defending claims brought by the plaintiffs. An e-mail from Arthur Boyle to Etzel, dating back to August 22, 2008, concerning the rear west wall picture window, reflects bitter feelings on his part relating to a claim by the association for late fees against Frances Boyle. At the close of his message, Arthur Boyle states: " No love lost between us here. You’re going to spend defense dollars." (Exhibit 16.) In another e-mail, dated January 2, 2011, from " Fran Boyle, " she states that Etzel was not allowed on " our property." (Exhibit 21.) Carroll, the roofing contractor for Imagineers, testified that all the units at Apple Hill were reroofed in June 2011. The winter of 2011 was very bad. There was a lot of snow, cold temperatures, and ice damming.
b
Documentary Evidence
The plaintiffs’ exhibits in this case are voluminous. E-mails and other documents in evidence date as far back as 2004, the year before the plaintiffs purchased the unit at 16 Cortland Way. (See Exhibits 7-13.) Several other exhibits predate the January 31, 2011 claim of loss. (See Exhibits 14-16 and 17-21.) Exhibits 19 through 21, as well as Exhibit 22, relate to ice damming issues. In addition, the plaintiffs’ exhibits include dozens of photographs of the inside and outside of their unit, ranging in dates from 2006 to 2017. (See Exhibits 44-240, 243-83.)
Exhibit 42 contains copies of checks paid to Advanced Home Services, LLC, the contractor who performed the work in the plaintiffs’ unit in 2014, in the total amount of $22,300. Because there are no invoices from the contractor, there is no evidence in the trial record that details the actual repair work performed in the unit commencing in July 2014. As previously noted, there are no invoices or other records in evidence to document the actual repair work performed prior to July 2014, which amounts to $9,500. Therefore, there is no evidence upon which the court may determine either the repair work performed before the conditions complained of in the present action arose or upon which the court may determine the work performed commencing on July 28, 2014, which the plaintiffs allege constitute damages in the present action. Further, there is no evidence that correlates the payments made to the plaintiffs by Strathmore and the association ($19,224.10 plus $7,000, respectively), to either correct the damage which gave rise to the 2011 and 2013 releases, or for any repair work that has been done in the unit that is separate and distinct from the damage claims being made in the present case. The building permit pulled by the contractor on August 3, 2014, stated that the value of the work to be performed was $6,200. (See Exhibit J.) In addition, there is no credible evidence as to how or when the interior structural damage claimed by the plaintiffs in the present action may have arisen other than as a result of poor construction.
3
The Post-trial Memoranda
In their post-trial memorandum, the plaintiffs identify three issues as to count one. The first issue is whether the separation of the floor joists from their supporting beam in the plaintiffs’ unit is a result of " damage" to the unit’s structure. If so, the second issue is whether the association is obligated to repair these damages pursuant to the declaration and the Common Interest Ownership Act. If the association is so obligated, the third and final issue is to what extent is the association obligated to pay money damages to the plaintiffs for the cost of repairs that they have incurred.
II
CONCLUSIONS OF LAW
The totality of the evidence in this case reflects that the plaintiffs and the association have had a relationship rife with conflict and frustration, essentially from its beginning in 2005. It is unfortunate that the history of the plaintiffs’ residence at Apple Hill has been plagued with instances of water intrusion and ice damming and it is unfortunate that the association has had to expend substantial time and funds to address the plaintiffs’ numerous claims. The court is not unsympathetic to either side of this controversy. The present action, however, is not about which side is most deserving of sympathy, it is about whether or not the plaintiffs have proven the claims that they have asserted in their complaint by a preponderance of the evidence.
A
Count One
The issues raised by count one of the complaint are informed by (1) the Common Interest Ownership Act (CIOA), General Statutes § 47-200 et seq., (2) well established legal principles relating to damages, and (3) the principles of law the govern contractual releases.
1
The Common Interest Ownership Act
" [The] CIOA is a comprehensive legislative scheme that governs the creation, organization and management of all forms of common interest communities." Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, 237 Conn. 123, 130, 676 A.2d 369 (1996). Contained within pertinent sections, the CIOA establishes specific requirements regarding associations’ insurance coverage and the rights of condominium unit owners pursuant to such coverage. Specifically, General Statutes § 47-255 requires all associations to maintain " property insurance on the common elements" of the community and further, " [i]n the case of a building that contains units divided by horizontal boundaries ... or by vertical boundaries that comprise or are located within common walls between units ... the insurance maintained ... shall include the units, and all improvements and betterments installed by unit owners ... unless the declaration limits the association’s authority to insure all improvements and betterments or the executive board decides ... not to insure such improvements or betterments." General Statutes § 47-255(b). The insurance policies carried pursuant to the CIOA must also " provide ... [e]ach unit owner [as] an insured person under the policy with respect to liability arising out of his interest in the common elements or membership in the association." General Statutes § 47-255(d).
General Statute § 47-202(6) defines common elements as, " ... in the case of (I) a condominium or cooperative, all portions of the common interest community other than the units; and (ii) a planned community, any real property within a planned community owned or leased by the association, other than a unit, and (B) in all common interest communities, any other interests in real property for the benefit of unit owners which are subject to the declaration."
Although the complaint in the present action contains no specific claim concerning the failure on the part of the association to maintain proper insurance coverage, in their briefs and final argument, the plaintiffs argue that, pursuant to Section 21.1 of the declaration, the association’s repair obligation to unit owners exceeds that of its insurance coverage. Section 21.1 of the declaration, which is entitled " Duty to Restore, " provides that " [a]ny portion of the Property for which insurance is required under Section 47-255 of the Connecticut General Statutes or for which insurance carried by the Association is in effect, whichever is more extensive shall be repaired or replaced promptly by the Association ..." General Statutes § 47-255(h)(1) provides in relevant part: " Any portion of the common interest community for which insurance is required under this section which is damaged or destroyed shall be repaired or replaced promptly by the association ..." The obligation to maintain insurance coverage pursuant to these provisions does not oblige the association to repair or rebuild structural members of the unit caused by defective original construction. As explained in the commentary to the Uniform Common Interest Ownership Act, which is the basis of the CIOA, General Statutes § 47-200 et seq.:
The words " damaged or destroyed" appear in subsection (h) as part of a general requirement that [a]ny portion of the common interest community for which insurance is required under this section which is damaged or destroyed must be repaired or replaced promptly by the association unless, the project is terminated, repair would be illegal, or 80% of the owners vote not to rebuild.
These words may cause confusion among unit owners since the line between the rules for dealing with " damage or destruction" on one hand and " maintenance, repair and replacement" on the other are not clear.
Generally, in common insurance usage, " damage or destruction" deals with items commonly covered by insurance, while everything else is maintenance, repair and replacement. That is, a working distinction is that a portion of a common interest community is " damaged or destroyed" (or suffers damage or destruction) if it suffers physical damage that is of a type and is caused by an occurrence of a type commonly covered by the casualty insurance required by Section 3-113 of this Act or by the Declaration or for which insurance is carried by the Association is in effect. Otherwise, to " maintain, repair and replace" (or to perform maintenance, repair and replacement) is the act of addressing and correcting deterioration, wear and tear, and obsolescence to the Property which is not covered by the casualty insurance required by Section 3-113.(Emphasis original.) Unif. Common Interest Ownership Act of 2008, § 3-113, comment (11), 7 U.L.A. (Pt. 1B) 370-71 (2009); see, e.g., Neighborhood Ass’n, Inc. v. Limberger, 321 Conn. 29, 31, 136 A.3d 581 (2016). Although the plaintiffs argue for an expansive definition of the term " roof, " and that defective construction of their unit should be the responsibility of the association, they have not presented any evidence or argument based on legal authority to support either claim.
2
Damages
As previously addressed in this memorandum of decision, the court is unable to determine what work was performed in the plaintiffs’ unit between July 2014, and November 2014, because there are no detailed billings or testimony by the contractor identifying the work performed. Nor is there any other detailed description of the work performed in the unit at any time subsequent to the 2011 release. To the extent that there was testimony by Arthur Boyle concerning work performed at various times, it lacked clarity on this essential issue.
Further, to the extent that the plaintiffs offered testimony and/or documentary evidence attempting to draw distinctions between the plaintiffs’ various claims, those attempts were unsuccessful. Because the plaintiffs admittedly only spent $9,500 for repairs out of the $29,524 received by them in 2006, 2011 and 2013, and for other reasons previously stated in the findings of fact, the plaintiffs have failed to prove the damages as set forth in Exhibits 42 and 43 and Arthur Boyle’s testimony. Accordingly, even if they had a sustainable legal claim against the defendant, their inability to prove the damages they seek reasonable certainty would be fatal to the present action. See Cheryl Terry Enterprises, Ltd. v. City of Hartford, 270 Conn. 619, 854 A.2d 1066 (2004); Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 717 A.2d 724 (1998).
3
Contractual Releases
By way of special defense, the association asserts that, pursuant to the 2011 release and/or the 2013 release, the plaintiffs have relinquished their rights to assert the claims they have made in their complaint. Because of the nature of the evidence, and the long history of related and sometimes overlapping claims of damage to the plaintiffs’ unit, the court has been faced with the difficult task of assessing the relationship between the various manifestations of the damages claimed by the plaintiffs since January 31, 2011. Nonetheless, based on all the evidence presented, the court finds that the plaintiffs have failed to sustain their burden of proving that the damage to their unit alleged in the present case does not arise from the same circumstances and historical events as those brought in the 2012 action, and which gave rise to the 2013 release.
Therefore, based on a preponderance of the evidence, the court finds that the damages claims in the present action are barred by the 2013 release. As previously quoted in this memorandum, in that document, the plaintiffs, as " Releasors, " released the association, as " Releasee, " in the most expansive way, using the broadest possible language. They released the association from all claims " in law and/or in equity, whether known or unknown, contingent or fixed, which against the Releasee that the Releasor ever had, now has and/or which the Releasor hereafter can, shall and/or may have, from the beginning of the world up to the date of this General Release, and, as particularly pertains to any and all claims, and any and all claims that could have been asserted against Releasee, in the case captioned Arthur Boyle, Frances Boyle et al v. Strathmore Insurance Company and Apple Hill Homeowners Association, Inc., HHD CV 12-6030723S, Judicial District of Hartford (" Case")." (Emphasis added.)
In addition, the release stated that it " includes a waiver of any and all damages which may have been, or may in the future be, caused to the Releasor, their persons, properties, business prospects, or any of their interests whatsoever, because of the actions waived and released herein, including without limitation any actual or implicit, direct or indirect, incidental, consequential or exemplary damages or property damages suffered by the Releasor from any and all actions or omissions of the Releasee." Finally, the 2013 release provided that the plaintiffs were executing the release " [w]ith the advice of legal counsel ... voluntarily and knowingly ... for the benefit of the Releasee." (Emphasis original.)
" A release is an agreement to give up or discharge a claim." Viera v. Cohen, 283 Conn. 412, 427, 927 A.2d 843 (2007). " A release agreement is a contract." (Internal quotation marks omitted.) Dunn v. Etzel, 166 Conn.App. 386, 392, 141 A.3d 990 (2016). " [A]s with any contract, [a valid release] requires consideration, voluntariness and contractual capacity." Viera v. Cohen, supra, 428. " As a general rule, releases encompass only such matters as may fairly be said to have been within the contemplation of the parties when the release was given." (Internal quotation marks omitted.) Dunn v. Etzel, supra, 398-99. " Even without an express reservation of rights, a general release discharges only those [parties] whom the contracting parties intended to be released." Mulligan v. Hall, 229 Conn. 224, 227, 640 A.2d 108 (1994); see also Gaynor v. Payne, 261 Conn. 585, 589-90, 804 A.2d 170 (2002) (release barred plaintiff from bringing claim in individual capacity as contracting party, but not in capacity as administrator of decedent’s estate; claims brought by plaintiff on behalf of beneficiaries not party to release allowed because beneficiaries’ vested property interests not encompassed by release).
" It is well settled that a release, being a contract whereby a party abandons a claim to a person against whom that claim exists, is subject to rules governing the construction of contracts ... The intention of the parties, therefore, controls the scope and effect of the release, and this intent is discerned from the language used and the circumstances of the transaction." (Internal quotation marks omitted.) Sakon v. Manager, 113 Conn.App. 802, 804-05, 969 A.2d 781 (2009); see also Lynwood Place, LLC v. Sandy Hook Hydro, LLC, 150 Conn.App. 682, 688, 92 A.3d 996 (2014) (" [a] contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction" [internal quotation marks omitted]). " Where the language of the contract is clear and unambiguous, the [release] is to be given effect according to its terms ... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective interpretation of the terms." (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000). " [T]he clear, unambigous language of [a] release [renders] immaterial [a party’s] unexpressed subjective intent." Dunn v. Etzel, supra, 166 Conn.App. 399: see also Kazlon Communications, LLC v. American Golfer, Inc., 82 Conn.App. 593, 598, 847 A.2d 1012 (2004) (concluding clarity and scope of release language barred litigation).
" Although ordinarily the question of contract interpretation, being a question of the parties’ intent is a question of fact ... [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." Dunn v. Etzel, supra, 166 Conn.App. 392, quoting Electric Cable Compounds, Inc. v. Seymour, 95 Conn.App. 523, 529, 897 A.2d 146 (2006).
In Dunn, the court held that a release agreement between the plaintiff and her former employer barred the plaintiff’s claim for breach of fiduciary duty against her partner, who was not a party to the plaintiff’s agreement with her employer, but who was also employed by the plaintiff’s employer. Dunn v. Etzel, supra, 166 Conn.App. 398-99. In coming to this determination, the court relied on the language of the plaintiff’s agreement with her employer, which provided in relevant part: " The parties hereby mutually release each other, their past, present, and future agents ... [and] employees ... from any and all legal, equitable or other claims, counterclaims, [and] demands ... which arise out of ... the employment and/or termination of employment of [the plaintiff] with [the employer], including, but not limited to, any and all claims or counterclaims for ... breach of fiduciary duty ..." (Emphasis in original; internal quotation marks omitted.) Id., 393.
In Kazlon, the court held that " the clarity and scope of the release language in relieving the parties from liability by any reason of any matter, cause or thing whatsoever arising in the past and in the future [barred] the defendants from seeking to litigate [in their counterclaim] ... whether the plaintiff wrongfully had retained and either negligently or willfully failed to turn over the subject data to [the defendants]" because " the language of the subject release was ... definite and unambiguous." (Internal quotation marks omitted.) Kazlon Communications, LLC v. American Golfer, Inc., supra, 82 Conn.App. 598.
" Except in very rare circumstances, the settlement and release of a claim does not cover claims based on events that have not yet occurred ... The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given. But a dispute that had not emerged, or a question which had not arisen at all, cannot be considered as bound and concluded by the anticipatory words of a general release. The usual general release, then, is not construed to include in its coverage claims based upon occurrences which have their beginning after the instrument is executed ... For that reason, language governing future claims and unknown claims in releases is ordinarily construed to cover only inchoate claims that are in being at the time of release but which have not yet manifested themselves." (Citations omitted; internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., 231 Conn. 469, 481-82, 650 A.2d 1240 (1994); see also Oronoque Village Condominium Ass’n, Inc. v. Bargas, Superior Court, judicial district of Fairfield, Docket No. CV-12-6030490-S (October 31, 2013, Hartmere, J.) (finding significant that facts underlying claim existed when release signed even though statute underlying claims did not).
As reflected in the cited authorities, the " usual general release, " " is not construed to include in its coverage claims based upon occurrences which have their beginning after the instrument is executed ... For that reason, language governing future claims and unknown claims in releases is ordinarily construed to cover only inchoate claims that are in being at the time of release but which have not yet manifested themselves." (Citations omitted; internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., 231 Conn. 469, 481-82, 650 A.2d 1240 (1994). The court finds that the plaintiffs have failed to prove that the present claims are not essentially part and parcel of the claims made in the 2012 action, which gave rise to the 2013 release. On the other hand, the court finds that the defendant has proved that the claims made in the present action were known to the plaintiffs and, therefore, were inchoate, at the time the 2013 was executed. Specifically, the evidence reflects that the damage uncovered by the plaintiffs in July 2014, had occurred over several years time and, therefore, was " in being at the time of the [2013] release, " even though those damages had not yet " manifested themselves." Id. Based on Arthur Boyle’s own testimony and the testimony and reports of Thompson, the plaintiffs’ expert structural engineer, culminating in the November 24, 2014 supplement to the report of September 8, 2014, the " overloading of the structure probably started during the building’s first winter (1987) and peaked during the ice accumulations witnessed by the owner during the winters of 2010 through 2014." (Exhibit 35.) Thompson also stated in the November 24, 2014 supplemental report that what he found was the result of " 27 years of over stress of the structure." Further, Thompson attributed the ice damming to be due in part to poor ventilation, a building code violation, a situation created by defects in the original construction which predated Apple Hill. Thus, based on the language employed by the Supreme Court in Muldoon, the weight of the evidence establishes that the condition of the structural elements of the plaintiffs’ unit uncovered in July 2014, were inchoate at the time of the execution of the 2013 release. These were conditions of longstanding, dating as far back as 1987, which did not manifest themselves until the ceiling was opened up.
In addition, the weight of the evidence also establishes that the structural condition of the plaintiff’s unit was due to poor construction, which included a building code violation in the form of poor roof ventilation. Therefore, the plaintiff has failed to establish by a preponderance of the evidence, that the damage uncovered in July 30, 2014, was caused by ice damming and water intrusion and was not more probably the result of faulty original construction. On this point, Cianci was more persuasive than Thompson. In addition, the independence of Thompson’s opinion on causation is colored by the evidence of changes and amendments to his findings by both Arthur Boyle and Attorney O’Brien, so much so that their opinions and the need to establish causation in support of the plaintiffs’ claims essentially overtook and became Thompson’s opinions. The wavering and at times contradictory opinions of Thompson reflected both in his testimony and in his written reports of July 30, 2014, September 8, 2014, and November 24, 2014, did not withstand the scrutiny of cross examination. (See Exhibits 284, 34 and 35; see also Exhibit O, P, Q, R and S.) On the other hand, Cianci’s opinions as reflected by his testimony and reports of August 28, 2014 and December 31, 2014, were clear and consistent in stating that ice damming did not cause damage to the interior structural elements of the units. Rather, the poor connections at the second floor joists and other defective interior support elements were due to poor original construction in 1987. (See Exhibits W and X.) Finally, the court notes that an inspection report by the Town of Newington Building Inspector, dated November 9, 2011, states: " Window approved. Witnessed roof sag. Suggested structural engineer evaluate roof and other structural problems ." (Emphasis added.) (Exhibit 33.) This report predates the 2012 action that gave rise to the 2013 release and is compelling evidence that the plaintiffs knew of the structural issues relating to the roof and other support structures at the time the plaintiffs executed the 2013 release.
As noted elsewhere in this memorandum of decision, Cianci and Thompson agree that the lack of ventilation under a portion of the rear roof between the insulation above the sheet rock ceiling and the plywood roof deck is a building code violation. However, to the extent that the plaintiffs claim a lack of ventilation in their complaint, there is no question that this deficiency dates back to the original construction of the unit in 1987. The evidence presented at trial fails to establish that the association is responsible for this and other construction defects.
In their reply brief, the plaintiffs seek to go behind the language of the 2013 release. They argue that the association should have repaired damage to the west wall without the necessity of a civil action because that damage is related to the gutter system, and the association is responsible for maintaining the gutters pursuant to the declaration. (Def. Reply, p. 11.) In making this argument, the plaintiffs essentially claim that the court should discount the 2013 release because the plaintiffs should not have had to commence an action in 2012 to get the association to pay for the damage that they claimed therein.
Critically, as discussed elsewhere in this memorandum, the plaintiffs’ evidence fails to establish the nature of the damage to the unit that occurred subsequent to the 2013 release. For example, the plaintiffs argue in their reply brief that the floor joists began coming apart some time after the 2013 release was executed, but before July 2014. There is no evidence in the record to support this theory, only argument. Nor is there any legal authority cited to support this claim or the related claim that because the precise structural damage claimed was not discovered until July 2014, it is not encompassed by the 2013 release. In fact, the evidence presented by the plaintiffs support a theory that the genesis of all the damage to the unit goes back to 1987 and was caused by faulty construction and/or design, including a building code violation.
The plaintiffs’ theory that the damage uncovered in July 2014, was caused by ice accumulations and the weight of winter snow is not the credible opinion of the plaintiffs’ expert; rather, it is a long developed theory of Arthur Boyle and his legal counsel, Attorney O’Brien. Rather than being a new claim, this theory is part and parcel of the claim made by the plaintiffs in their 2011 insurance claim and the 2012 action. Most significantly, it is the same claim subject of the 2013 release. Further, the weight of the evidence reflects that the factual underpinnings of the present action were known to the plaintiffs at the time they executed the 2013 release. Finally, as previously stated, even assuming the plaintiffs had a claim arising in 2014 that survived the 2013 release, the plaintiffs have utterly failed to prove their damages arising out of that claim with reasonable certainty. Although Exhibit 42 contains a list of claimed expenses and copies of checks issued by the plaintiffs to their contractor, which they attribute to the time period July 2014, through November 2014, there is neither documentary nor testimonial evidence to support the specific work performed in that time period to generate those expenses. Because the plaintiffs admittedly had made only $9,500 in repairs prior to July 2014, the repairs necessitated by prior ice damming and water intrusion were undeniably incomplete, yet no evidence was presented as to the cost of the work that remained pursuant to those claims. Therefore, there is no way for the court to distinguish which work was performed pursuant to the prior payments and which work may have been necessitated by subsequent circumstances or events. Based on the evidence presented, it is impossible for the court to determine which of the plaintiffs’ claimed damages arose out of the present case.
The contractor who actually performed the work did not testify, nor were any bills from him or any other tradesperson submitted in evidence. The only document from the contractor is an estimate dated May 29, 2014, which predated the damage uncovered in July 2014. (See Exhibit 242.)
The court also notes that the plaintiffs have failed to prove that it was reasonable and necessary for them to vacate their unit for three months. Thompson does not opine on this issue other than to state in his letter of July 29, 2014 that the plaintiffs should " find other quarters immediately." (Plaintiff’s Exhibit 40.) Otherwise, Thompson gave no estimate as to how long the essential repairs would take, the contractor did not testify, and Arthur Boyle’s objectivity and credibility on the subject were compromised by his longstanding grievances with the association. The apparent conflict has continued to this day in the form of subsequent litigation, some of which has been withdrawn. (See Defendant’s Exhibits M, N and PP.)
B
Count Two
As to count two, both Thompson and Cianci agree that the rear roof of the plaintiffs’ unit is not properly ventilated as required by the building code. Because they also agree that this is a construction defect, the association is not responsible. For this reason and the reasons stated in part II A of this memorandum, the plaintiffs have failed to prove by a preponderance of the evidence that they are entitled to relief under count two of the complaint.
See note 11, supra .
Even assuming they prove some portion of their substantive claim as to count two, the plaintiffs would not be entitled to equitable relief. The harm they claim is not irreparable as money damages would constitute an adequate remedy at law. Beyond this, the plaintiffs have failed to present any evidence of the cost of correcting the lack of ventilation in the rear roof or any other defects in the roof or other structural elements.
CONCLUSION
The court finds that the plaintiffs have failed to prove the claims of their complaint by a preponderance of the evidence and that the association has proved its second and third special defense, as to the 2011 and 2013 releases, respectively, by a preponderance of the evidence. Accordingly, judgment is hereby rendered in favor of the defendant as to both claims of the plaintiffs’ complaint. Further, because the evidence in support of the second and third special defenses is compelling and fully dispositive of the plaintiffs’ claims, there is no need to address the remaining special defenses. Finally, because the defendant has not prosecuted its counterclaim, it is hereby dismissed.