Opinion
No. CV-03-0827961 S
June 22, 2004
MEMORANDUM OF DECISION
These two matters were tried together to the court on six trial days in March and April 2004. Pursuant to the plaintiffs' request, the court, in the presence of the parties and counsel, viewed the premises on April 20, 2004. Thereafter, the parties submitted memoranda of law, in lieu of oral argument, the last of which are dated May 25, 2004. After considering the evidence and the arguments of the parties, the court issues this memorandum of decision.
I Background
The plaintiffs, Steven L. Bray and Ana Marie C. Bray (referred to below as either the Brays or as the plaintiffs) commenced two actions against the defendant, Founders C.D., LLC (Founders or the defendant). On July 10, 2003, they filed an application for prejudgment remedy in Docket No. CV03 0826882 S (the 6882 action). On August 25, 2003, they filed the action which became Docket No. CV03 0827961 S (the 7961 action), which had a return day of September 9, 2003. Both actions concern their home, located at 25 Bradley Way, in Glastonbury, Connecticut, which they purchased from Founders.
The parties entered into a Bond for Deed, dated September 19, 2002 (Exhibit 1). In connection with that agreement and, in their dealings with Founders, the Brays dealt with Founders' member, John J. Doran. The Bond for Deed called for the owner, Founders, to construct a new home on a parcel of land, known as Lot 4 of the Founders Woods Subdivision, which consists of seven lots. The total purchase price, for the land and home, was $707,500.00. See Exhibit 1. On December 6, 2002, Founders conveyed the subject property, by warranty deed, to the Brays and they moved into their new home. At the time, Founders owned Lots 5, 6 and 7 in the subdivision.
Additional facts are discussed below.
II Discussion A The Basin 1. Negligence
In their first count in the 7961 action, based on claims of negligence, the plaintiffs allege that the "retention pond" on their property is not being properly maintained by Founders, causing damages. See Drainage Easement, Exhibit 13 and Subdivision Map, Exhibit 23. The Drainage Easement for the benefit of Lots 5, 6, and 7, which are situated above the Brays' property (which appears as Lot 4 on the Subdivision Map), permits the owners of Lots 5, 6, and 7 to use the easement area, on which the basin is located, for the purposes of a drainage system which collects water and drains down into the basin. From the basin, water flows to a lower elevation, away from the Brays' property.
In their post-trial brief, p. 11, the plaintiffs refer to the retention pond as a "basin." For ease of reference, the court also refers to it as the "basin."
The elements of a negligence cause of action are "duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). "The essence of actionable negligence is the infringement of the legal right of another, or, in other words, the violation of a duty imposed by law in respect to another." (Internal quotation marks omitted.) Cowles v. New York, New Haven Hartford Railroad Co., 80 Conn. 48, 52, 66 A. 1020 (1907). "Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so." (Internal quotation marks omitted.) Bennett v. Connecticut Hospice, Inc., 56 Conn. App. 134, 137, 741 A.2d 349 (1999), cert. denied, 252 Conn. 938, 747 A.2d 2 (2000).
The Brays contend that Founders' performance of its maintenance duties as to the basin has not comported with applicable guidelines. See first amended complaint, first count, ¶¶ 9-11. General Statutes §§ 22a-325 to 22a-329 are known as the "Soil Erosion and Sediment Control Act." Section 22a-328 provides that the Council on Soil and Water Conservation is to "develop guidelines for soil erosion and sediment control on land being developed." See Connecticut "Guidelines for Soil Erosion and Sediment Control," Exhibit 25 ("Guidelines"). Section 22a-329 provides that a soil erosion and sediment control plan shall be submitted with any application for development when the disturbed area exceeds a half-acre.
In pertinent part, Section 22a-329 provides, "(a) The regulations adopted by a municipality pursuant to sections 8-2 and 8-25, on and after July 1, 1985, shall require that: (1) Proper provision be made for soil erosion and sediment control; (2) a soil erosion and sediment control plan be submitted with any application for development when the disturbed area of such development is more than one-half acre; and (3) the municipality or the soil and water conservation district shall certify that the plan complies with regulations adopted pursuant to said sections."
The plaintiffs' complaints concerning the basin are largely aesthetic. They assert that, after they moved in, the basin "became a mud-and weed-filled pit," containing "collapsed and unsightly silt fences." See plaintiffs' post-trial brief, p. 11.
The plaintiffs rely on the Guidelines, Section 5a, page 8-68, which provides, that a detention basin "must be planned and designed to ensure minimal impact on visual quality and human enjoyment of the landscape. Structures and materials must harmonize with surrounding areas."
Founders' Town-approved development plans include Exhibit 20, entitled "Details and Notes," which states, under "Erosion Control Notes," that "[a]ll erosion and sedimentation control methods shall be in accordance with the [Guidelines] unless specifically noted otherwise on these plans." It also states that "[e]rosion and sedimentation control measures are subject to the review and approval of [the Town of Glastonbury's] environmental planner, additional erosion and sedimentation controls shall be installed as directed by the environmental planner to address field conditions. The erosion and sedimentation control measures depicted on this plan should be considered as minimum measures." See Exhibit 20 and Exhibit 21, entitled "Details, Notes Approvals," which sets forth the terms of Town agencies' approvals of the subdivision, and which contains similar provisions (see Approved Recommendation to Town Plan and Zoning Commission from the Conservation Commission, ¶ 7). Thus, implementation of the plans is subject to the Town's approval, through its environmental planner. The plans contemplated that conditions in the field would be addressed as they were encountered during construction.
The Guidelines themselves speak of suggestions as to what a soil erosion and sediment control plan should contain. See Exhibit 25, p. 4-1. For example, regarding plan format, the Guidelines state, "The information needed for construction should be on the construction drawings and not in the design calculations or background information." (Emphasis in original.) See Exhibit 25, p. 4-1.
Review of these plans makes it evident that sedimentation control was required by the Town. See discussion below concerning the Brays' contentions that they were unaware of the fact that the basin would be used as a sediment basin.
This was consistent with normal procedures concerning development which have been in use in the Town for many years. The court credits the testimony of Thomas Mocko, the Town's environmental planner. Mocko has been involved with the Founders' subdivision since the original application for approval was submitted; he wrote staff reports to the Town's Conservation Commission, which serves as its inland wetlands regulatory agency, concerning erosion and sediment control issues raised by the subdivision. His name and signature appear on the subdivision plans. See Exhibit 21. In addition, he was a member of a task force which developed the Guidelines.
Mocko explained that the plans are treated as a starting point and may be adjusted as conditions are encountered in the field. He informed Founders' site engineer that the basin could be utilized as a sediment basin, in accordance with the Town's long-standing practice.
The use of the basin here reflects a common practice of using a detention basin as a sediment basin, which has been employed in the Town for the last 15 years or so. In the short-term, during construction, the basin traps sediment to prevent it from entering a nearby watershed brook which has a downstream erosion problem. In the short-term, the basin also is a receptacle for storm drainage, as it is anticipated to be in the long-term as well. The Town wants to maintain the basin as a sediment trap at least through the development of Lot 6, at which construction was underway at the time of trial.
Mocko characterized the basin as one of the best sediment traps he has seen, calling it a "model." Once construction is finished, steps will have to be taken, including plantings, to modify the basin so that it performs its long-term function. Two bonds are in place to assure complianee by the developer, Founders. Before bond release can occur, a prescribed maintenance plan must be submitted. Extensive maintenance is not envisioned as a requirement. Mocko expects annual maintenance to be sufficient.
In the late spring of 2003, Mocko asked Founders to clean accumulated sediment out of the basin. Founders cleaned it out in October 2003, which was acceptable to the Town. Mocko stated that this subdivision has continued to be in compliance with the Town's requirements and that "great pains" had been taken by Founders to control erosion.
The court is unpersuaded by the testimony of Steven Trinkaus, a professional engineer, who testified on behalf of the Brays concerning their basin-related claims. The Brays argue, in their reply brief, p. 10, that Trinkaus' testimony that Founders failed to comply with the Guidelines was "essentially unrebutted." The court, which acts as the finder of fact in this bench trial, is not required to credit the testimony of an expert. "It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony . . . The trier may accept or reject, in whole or in part, the testimony of an expert." (Internal quotation marks omitted.) Sprague v. Lindon Tree Service, Inc., 80 Conn. App. 670, 677, 836 A.2d 1268 (2003). "[I]t is the trier's exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness' testimony." (Internal quotation marks omitted.) Hoffer v. Swan Lake Association, Inc., 66 Conn. App. 858, 861, 786 A.2d 436 (2001).
Trinkaus acknowledged his lack of familiarity with land use regulatory practices in the Town of Glastonbury. He has done no work on developments there. He did not know who oversees erosion and sediment control practices at construction sites for the Town.
Trinkaus' testimony is further undermined by his acknowledgment that, in his review of this matter, he did not read the wetlands file maintained by the Town concerning the project. Contained therein is a wetland impact statement, dated June 2000, Exhibit A, which was submitted by Founders. The submission of such a statement is a Town requirement in order to receive approval to proceed with development. Under the heading, "Impact Mitigation Measures," this report, at page 9 of 9, in discussing the staging of construction, notes the use of the basin as a temporary sediment basin and that "[e]rosion and sedimentation controls are installed throughout this process." See Exhibit A.
Trinkaus did not inquire of Town officials as to whether the Founders subdivision was in compliance with Town requirements, even though, as stated above, Founders' Town-approved plans specifically state that erosion and sedimentation control measures are subject to the review and approval of the Town's environmental planner. Rather, he stated that he was asked only to determine if there was compliance with the Guidelines.
Although he has never designed a system using a basin as both a detention basin and a sediment basin, he acknowledged that a basin may serve, during construction, as both. Trinkaus also asserted that the basin was not draining properly. The court credits Mocko's explanation of the excellent functioning of the basin as a sediment basin. It is unpersuaded by Trinkaus' opinion.
The Guidelines state that "[a] detention basin may be designed to also function as a sediment basin." See Exhibit 25, p. 8-68, ¶ 4.
Trinkaus also contended that required plantings have not been placed on the site. The approved plans, see Exhibits 19 and 20 (concerning planting areas), do not specify a schedule for the plantings. In view of the lack of a specific planting schedule, the fact that construction at the subdivision is ongoing, and the other limitations noted above concerning his opinions, the court also does not credit this aspect of Trinkaus' testimony.
Trinkaus also opined that the basin was not being properly maintained and stated that the basin's appearance was not aesthetically satisfactory either, since, when he viewed it, it had standing water with accumulated silt within it, causing the water to be dark; and since the presence of weeds was noted. The Brays also complain about the presence of leaves in the basin as of the court's April 2004 site visit. See plaintiff's post-trial brief, p. 23.
The opposing parties' briefs each refer to a decision by the court (Berger, J.), in another proceeding between the parties, granting Founders' application to discharge a lis pendens recorded by the Brays. See Founders C.D., LLC v. Bray, Superior Court, judicial district of Hartford, Docket No. CV03-0830337S (January 9, 2004) ( 36 Conn. L. Rptr. 315). As the plaintiffs note in their reply brief, p. 9, that decision has no effect on this court's findings after trial.
According to Trinkaus, the basin should drain dry within 24 to 48 hours of a rain storm. The plaintiffs stated that, at various times, it did not do so. See plaintiffs' post-trial brief, pp. 22-23. In view of the court's reservations about other aspects of his testimony, Trinkaus' opinion is not credited.
The Brays also cite Mocko's letter to them, dated December 12, 2003, Exhibit 35, which they assert shows that Founders' response to requests for the basin to be cleaned was not "acceptable." See plaintiffs' reply brief, p. 9. In that letter, Mocko noted that his responsibilities included inspection of land development activities in Glastonbury. He stated that the basin "was properly maintained this fall and may require additional maintenance by the developers if additional sediment enters it." He also stated, "[f]rom the Town's perspective ft would have been preferred if the detention basin was cleaned out earlier or more routinely, but the basin's functions were never degraded or impaired enough to warrant any official orders or enforcement actions for its immediate maintenance." See Exhibit 35.
Aesthetic appearance involves an assessment of beauty. See Webster's Third New International Dictionary, p. 32, which, in the most closely related context, defines "aesthetic" as "relating to the beautiful as distinguished from the merely pleasing, the moral, and esp[ecially] the useful and utilitarian." See Lacerenza v. Stamford Zoning Board of Appeals, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV98 0169017 (January 17, 2001, Ryan, J.) (aesthetics are subjective); Erhardt v. Commissioner of Transportation, Superior Court, judicial district of Danbury, Docket No. 308462 (October 30, 1992, Hull, S.T.R.) ("beauty is in the eye of the beholder," one of several cited "very human subjective factors").
After viewing the site, and the photographic evidence, and, after considering the other evidence, the court is also unpersuaded by the Brays' complaints about aesthetic appearance. For example, the Brays complain that a silt fence, shown on photographs and present at the basin at the time of the court's view of the premises, is "unsightly." See plaintiff's post-trial brief, p. 22. The silt fencing present on the site at the time of the court's view was reduced from what was depicted in photographs from July 2003 (see Exhibit 16, p. 1). It consists of black plastic-appearing material of the type frequently seen on construction sites. It does not amount to a violation of the Guidelines' "minimal impact on visual quality and human enjoyment" standard; rather, its presence at the sunken basin mildly detracts from the overall appearance of the Brays' property. The fact that the Guidelines state that a structure must "harmonize with surrounding areas," does not mean that a basin is expected to be as attractive as the lawn next to it.
The Brays knew, when they entered into the bond for deed, that other portions of the subdivision were being developed. The basin's overall appearance comports with what they reasonably should have anticipated while construction and development continued on the lots above their home. They reasonably should have expected some silt and leaves to be present in the basin temporarily, until the basin periodically was cleaned out, as occurred in the fall of 2003. Likewise, they have not proved that, if properly maintained, the basin should drain dry within a day or two of a heavy rain.
The Brays have not sustained their burden of proof as to their claim that Founders negligently breached its duties to maintain the basin. Accordingly, judgment may enter for Founders as to the first count of the 7961 action.
2. Nuisance
In their second count in the 7961 action, the Brays reallege paragraphs 1-8 of their first count and claim that Founders has not properly maintained the basin, "in that emptying or drainage of the [basin] is not occurring in the intended manner such that a nuisance was created and unreasonably interfered, and continues to interfere, with the Plaintiffs' use and enjoyment of their property." See first amended complaint, second count, ¶ 10.
"[T]o recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property. The interference may be either intentional . . . or the result of the defendant's negligence . . . Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable." (Citations omitted and internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 361, 788 A.2d 496 (2002). "Whether an interference is reasonable or unreasonable is a question of fact to be decided by the trier of fact." Berube v. Nagle, 81 Conn. App. 681, 696, 841 A.2d 724 (2004).
The plaintiffs argue that no recorded or approved document discloses or approves of Founders' intent to use the basin as a sediment basin, claiming that such usage was contrary to law. See plaintiffs' post-trial brief, p. 24. As discussed above, the basin was depicted on Founders' plans, as required by General Statute § 22a-327(5), which prescribes that a soil erosion and sediment control plan shall show "the location of and detailed information concerning erosion and sediment measures and facilities."
The basin's use as a sediment basin was approved by the Town's environmental planner, in accordance with the plans' proviso that erosion and sedimentation control measures were subject to his review and approval, and in accordance with long-standing Town environmental oversight practices. While the Guidelines provide for a vertical riser within a sediment basin, there is none in the basin which is situated on the Brays' property. See Exhibit 25, Guidelines, p. 8-62. However, as noted, the Guidelines state that a detention basin may be designed to also function as a sediment basin. See Guidelines, Exhibit 25, p. 8-68, ¶ 4. Mocko explained that the Guidelines' provisions are used to assist site design engineers, but that particular details set forth therein may be modified on a site-specific basis.
The Brays also argue that, even if the Town allowed Founders to use the basin to trap sediment, the use is unreasonable since it violates the Guidelines' aesthetic requirements, and no precautions were taken to avoid interference with their enjoyment of their property. They claim that there should have been and should be more frequent cleaning of the basin, including leaf removal. See plaintiffs' brief p. 25. In addition, they assert that Founders is responsible for mudslides which occurred on their property. See plaintiffs' brief, p. 25.
Every interference with a property owner's necessarily subjective view of aesthetic appearance is not compensable. "The determination of whether the interference is unreasonable should be made in light of the fact that some level of interference is inherent in modern society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable . . . Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated." (Citations omitted.) Pestey v. Cushman, supra, 259 Conn. 361-62.
Having reviewed the evidence, including photographic evidence, and having visited the site, the court finds that the interference claimed by the plaintiffs is not substantial. The court has weighed the factors discussed in Pestey v. Cushman, supra. The plaintiffs' preference for the enjoyment of their property without consequence from the nearby construction activities is understandable. The basin's location is provided for on the plans for the subdivision; there is no claim here that its size exceeds that which was supposed to occur. While Founders could clean out the basin more frequently, the condition of the basin detracts only minimally from the overall appearance of the Brays' property. Once construction ceases, which is anticipated before the end of 2004, it is expected that the basin's appearance will improve.
In addition, the plaintiffs have not proved that any mudslide which occurred on their property was caused by Founders' activities or lack of precautions. Again, the court does not credit Trinkaus' assertions on this subject. The Brays installed a retaining wall and landscaping, which may have contributed to a mudslide. In their reply brief, p. 10, they argue that "mud could have easily washed into the Brays' backyard from Lot 5." The Brays' burden of proof is not satisfied by what could have happened, which amounts to speculation.
The Brays also claim that it is noteworthy that the subdivision's planting plan (Exhibit 19) requires plantings within the easement area. See plaintiffs' brief p. 25. As discussed, no specific schedule is set forth and construction is still underway; it was anticipated that plantings would be required after construction ceased. See Exhibit 20.
The plaintiffs have not proved that they are entitled to any compensation resulting from Founders' use of and maintenance of the basin. They have not sustained their burden of proof as to their nuisance claim. Accordingly, judgment may enter for Founders as to the second count of the 7961 action.
B The Floors
In the 6882 action, the Brays seek damages as the result of defects in the hardwood flooring which was installed in their home, including alleged gapping, crowning, cracking, and evidence of unacceptable workmanship. See first amended complaint, count one, ¶ 11. In addition, they allege that parts of the flooring have now faded or developed discoloration. See first amended complaint, count one, ¶ 11. They allege that they sent correspondence, dated June 4, 2003, directed to Founders, demanding that Founders address and satisfactorily remedy the flooring's condition, and that Founders failed to promptly respond and to timely and fully remedy the condition. See first amended complaint, count one, ¶¶ 12-13; Exhibit 3. The Brays have set forth several theories of liability in their six-count complaint in the 6882 action: breach of contract (count one), breach of express warranty (count two), new home warranties (count three), new home construction contractors (count four), Connecticut Unfair Trade Practices Act (CUTPA) (count five), and negligence (count six). See first amended complaint.
As discussed below, the plaintiffs' CUTPA allegations are premised also on Founders' use of the basin.
At trial, Founders did not dispute the evidence which showed that parts of the flooring are in defective condition. In its response to plaintiffs' post-trial brief, p. 1, Founders stated that there is no "dispute that there is a problem with the flooring, whatever the cause. The condition in the Bray's [sic] home is not acceptable and needs to be remedied."
1. Breach of Contract
In count one of their first amended complaint in the 6882 action, the Brays allege that Founders breached the parties' agreement, the Bond for Deed, Exhibit 1, which incorporated by reference plans and specifications. The specifications state that "top quality material and first class workmanship shall be provided in all cases where specific materials or workmanship descriptions are omitted." See Exhibit 45, p. VOL 01675 PG 0094. It is not disputed that this statement applied to the flooring.
Parts of the flooring are in defective condition. In the rear of the first floor, in the dining room, kitchen, and family room, the floor is uneven and separated in various locations. Other areas of the flooring, in other parts of the house, are faded and discolored. Founders acknowledged this through Doran's testimony at trial and by letter. See Exhibit 33. In its post-trial memorandum, p. 2, Founders states, "[T]he flooring is unacceptable as a result of the gaps and doming and needed to be corrected." It adds, at page 3, that Doran acknowledged to the Brays that Founders was responsible to them "notwithstanding whether it was a problem with materials, installation or finishing." The court's view of the premises showed these defects to be present at the house. These defects stem from Founders' breach of the parties' agreement, which required that flooring which was free from such defects was to be provided by Founders.
The Brays argue that Founders' answer to their complaint is consistent with Doran's defiant attitude toward them during 2003, and was "dilatory and unjustified." See plaintiffs' post-trial brief, p. 14. For example, they cite Founders' partial denial of paragraph 11. In paragraph 11 of the Brays' first amended complaint, they alleged: "On or before June 1, 2003, the plaintiffs contacted, by way of phone conversations, FOUNDERS, C.D., LLC, in particular John Doran, regarding poor workmanship and visible problems with the hardwood floors that cover about one half of the first floor of the residence at 25 Bradley Way, in that the poor construction method regarding the hardwood flooring has now given rise to gapping, crowning, cracking and evidence of unacceptable workmanship resulting in such conditions as are unfit for habitation. Additionally, the flooring was constructed in a less than workman-like manner such that the hardwood floor has now faded or developed discoloration, evidencing a visible lack of uniformity in finish and appearance."
This quoted paragraph, which contains several allegations, does not comport with Practice Book § 10-1's pleading requirement that each paragraph in a complaint shall contain "as nearly as may be a separate allegation." In view of the multiple allegations made in it, the court declines to interpret Founders' answer to it as defiant, dilatory, or unjustified. The paragraph raises the issue of defective workmanship, which Founders disputed.
The issues in this case should have been narrowed, had the parties stipulated to facts concerning the presence of floor defects. Nevertheless, it is clear that the Brays' allegation, at the end of the first sentence in paragraph 11, that their home became "unfit for habitation," was an exaggeration. See Wadlund v. Hartford, 139 Conn. 169, 171, 91 A.2d 10 (1952). Nothing about the floors' condition made the house unfit for habitation. See, in contrast, Stone v. Frederick Hobby Assoc. II, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 00 0181620 S (July 10, 2001, Mintz, J.), n. 5 (evidence included "domestic water supply and delivery system contaminated and tainted with dangerous chemical and other constituents; domestic water and air supply and delivery and filtration systems contaminated with radon, a cancer-causing poisonous gas").
a. Mitigation of Damages
Founders contends that the Brays are not entitled to damages for breach of contract since they failed to mitigate their damages. See Founders' trial memorandum, p. 7. "[I]n the contracts and torts contexts . . . the party receiving a damage award has a duty to make reasonable efforts to mitigate damages . . . What constitutes a reasonable effort under the circumstances of a particular case is a question of fact for the trier . . . [T]he breaching party bears the burden of proving that the nonbreaching party has failed to mitigate damages." (Citations omitted and internal quotation marks omitted.) Ann Howard's Apricot Restaurant v. CHRO, 237 Conn. 209, 229, 676 A.2d 844 (1996).
Founders does not contend that any action or inaction by the Brays caused the floors' condition to worsen. While the Brays swiftly filed an application for a prejudgment remedy on July 10, 2003, they did so after their June 4, 2003 letter to Founders advising it of their flooring complaints (Exhibit 3); after Doran inspected the floors in response to their complaints; and after he brought the hardwood supplier's representative (Douglas R. Bell of Beth Specialty Millwork) to the site in late June 2003 to inspect them also. See Exhibit 27 (Bell's letter to Doran, dated July 22, 2003) (stating, "The only way to remedy the problem is to replace the problem area flooring completely").
Instead of arguing that the Brays' conduct has worsened the condition of the floors, Founders asserts that the Brays' duty to mitigate included an obligation to accept Founders' proposal for correcting the floor problems, which did not include replacing the portions of the flooring which are underneath most of the installed kitchen cabinetry. Founders acknowledges that, in the rear area of the first floor, the "problem is the gaps and doming." See Founders' trial memorandum, p. 8. Instead of replacing the flooring in this entire area, Founders proposed to replace flooring, but not underneath the cabinets along the walls, since it argues that there is no evidence that the flooring underneath these cabinets is defective and that the cost of complete replacement is unreasonable. It proposed to remove the base trim from the cabinets and cut the floor around them, using a special tool for that purpose. It proposed also to cover any lines made by this cutting with base trim, and also with shoe molding, which it describes as an "extra." According to Founders, this would have made the cabinets "more desirable than the original installation" and "better than the condition . . . which was originally contemplated in connection with the building of the house." See Founders' trial memorandum, p. 9.
The court is unpersuaded. Founders' proposed solution, while providing flooring with a new appearance, would not give the plaintiffs what they bought. "The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed." (Internal quotation marks omitted.) Ambrogio v. Beaver Road Associates, 267 Conn. 148, 155, 836 A.2d 1183 (2003) ( Ambrogio). The Brays paid Founders for new floors in a new house. They did not pay for a floor which was cut around the cabinets due to defective original flooring. The original construction did not include the shoe molding proposed by Founders, which the Brays do not want.
In the event the Brays decided to remodel their kitchen, and a new arrangement for cabinets was planned, any cuts in the flooring around the cabinets would become exposed. That eventuality was not contemplated when the original construction occurred. Having to deal with it was not a part of what the parties' contemplated at the time of contract formation. Since the house is owned by the Brays, it is their privilege to plan to remodel it whenever they choose to do so, regardless of how new their house is; they paid Founders for that ownership right. If Founders' proposed repairs were made, leaving concealed cuts around the cabinets, and if the Brays decided to put their house on the market for sale, and were asked about interior defects, they would be obligated to disclose this condition to prospective buyers, making the house potentially less attractive for purchase. See Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 636, 804 A.2d 180 (2002). This result was not bargained for either.
Founders has not shown that the Brays failed to mitigate their damages by not accepting Founders' proposal. That proposal would not have placed them in the same position they would have been in had Founders properly performed originally.
Founders cites Doran's September 8, 2003 letter to Bell (Exhibit 32), in which Doran stated that Bell had advised him that "the flooring should be reinspected after the summer months to see if the material would expand enough that it may not need to be replaced but only refinished," as evidence that the Brays prematurely commenced litigation instead of allowing Founders to "remedy the situation in a normal and reasonable manner." See Defendant's trial memorandum, p. 10. As noted, the Brays did provide notice to Founders of their complaints more than a month before they sought a prejudgment remedy. Also, as noted, Founders has acknowledged that the visible flooring in the rear of the first floor should be replaced.
b. Damages
"The Restatement (Second) of Contracts divides a [plaintiff's] recovery into two components: (1) direct damages, composed of `the loss in value to him of the other party's performance caused by its failure or deficiency'; 3 Restatement (Second), Contracts § 347(a) (1981); plus, (2) `any other loss, including incidental or consequential loss, caused by the breach . . .' Id., § 347(b)." (Internal quotation marks omitted.) Ambrogio, 267 Conn. 155.
Thus, this component of damages is measured by the loss in value to the non-breaching party, not the post of repair to the breaching party. See discussion below of calculation of damages.
In Ambrogio, our Supreme Court discussed its decision in Levesque v. DM Builders, Inc., 170 Conn. 177, 180-81, 365 A.2d 1216 (1976), which set forth alternative measures of assessing damages in construction contract cases, and noted that those measures were not the exclusive means of calculating damages for the breach of any and all construction contracts. See Ambrogio, 267 Conn. 158. Those measures are: "(i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste; or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff; if construction and completion in accordance with the contract would involve unreasonable economic waste." (Internal quotation marks omitted.) Levesque v. DM Builders, Inc., supra, 170 Conn. 181.
There is no doubt that completion in accordance with the contract is possible here. The parties agree that the cabinets can be removed, the flooring replaced, and the cabinets reinstalled. The meaning of "unreasonable economic waste" in this context was further explained in Johnson v. Healy, 176 Conn. 97, 105, 405 A.2d 54 (1978) ( Johnson): " Levesque adopts a rule that limits damages to the diminished value of the building whenever the cost of repairs is dramatically larger than is the difference in value . . . Although the costs of repair may more precisely place the injured party in the same physical position as full performance, policy dictates limitation to diminution of value to avoid unreasonable economic waste." (Citation omitted.)
"[A] homeowners opinion on diminution in value may be accepted if, from all the evidence, the trier of fact finds the opinion credible . . . It is well established that the [r]easonable costs of repair may . . . sometimes furnish a reasonable approximation of diminished value." (Citation omitted and internal quotation marks omitted.) Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 47 n. 4, 634 A.2d 870 (1993).
Our Appellate Court applied the principles of Levesque and Johnson in Barnicoat v. Edwards, 1 Conn. App. 652, 474 A.2d 808 (1984), noting that "[t]he [trial] court found sixteen defects proven and after itemizing the costs to correct or repair each item, awarded the plaintiffs $6,470.86 in damages." Id., 653. In affirming the lower court's decision, the Appellate Court stated, "the $6,470.86 cost of repair was a reasonably small amount compared to the purchase price of the house and lot in the amount of $52,260. The award of such damages does not involve an unreasonable economic waste." Id., 655-56.
The plaintiffs presented evidence of two methods of calculating their claimed damages. Stefan Schwing, a contractor, credibly testified that the cost of replacing the flooring in the rear of the first floor, including removal and reinstalling the kitchen cabinets, and of refinishing flooring to correct the discoloration/fading problem, would amount to $25,645.00. See Exhibit 26 (estimate). The plaintiffs also seek an allowance of $10,000.00 for potential damage to cabinets and countertops which may occur during repairs. See plaintiffs' post-trial brief, p. 36.
The plaintiffs also argue that their home has been diminished in value by $60,000.00 as a result of the flooring defects. Ms. Bray testified to that opinion, with which her husband agreed. The Brays also presented the testimony of Anita Mazzucchi, a real estate agent, who represented them when they purchased the house, to present opinions about how the home's attractiveness and value has been diminished by the floor problems. The court declines to credit Mazzuchi's testimony in any respect, based on her partiality toward the Brays, which was evident.
The court found that Mazzucchi was not qualified as an expert to offer an opinion as to a numerical amount by which the value of the home had been diminished. In view of her lack of objectivity, whatever opinion she would have offered as to a numerical value could not have had any probative value.
The Brays argue that their opinion that their home has been diminished in value by $60,000.00 is the proper measure of damages, since Schwing's estimate would not compensate them for the disruption costs which would be caused by the repairs. See plaintiffs' post-trial brief, p. 36. This argument ignores the fact that under Connecticut law, the court's award is to be based on loss in value only if the "cost of repairs is dramatically larger than is the difference in value." Johnson, 176 Conn. 105. Schwing's estimate for the repairs is significantly less than the amount by which the Brays claim that their home has been diminished in value.
In their testimony, no estimates for the disruption costs were provided. The court has no basis on which to premise an award for such incidental or consequential damages. See Ambrogio, 267 Conn. 155; see also Frillici v. Westport, 264 Conn. 266, 283, 823 A.2d 1172 (2003) ("It is axiomatic that the burden of proving damages is on the party claiming them . . . When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty" (internal quotation marks omitted)).
In addition, the plaintiffs' estimate of their home's loss in value was speculative in nature. While an owner is competent to testify about claimed loss in value to his or her home, the opinions offered here, for example, were not stated as being based on factors, such as comparable sales, or sales activity in the relevant market, which would support an opinion as to value. See Weinstein v. Weinstein, 18 Conn. App. 622, 631, 561 A.2d 443 (1989).
With regard to the additional $10,000 sought for potential damage to cabinets and countertops in the course of replacing the flooring, the court finds this requested amount to be speculative also. Schwing's estimate already includes an amount ($600.00) for material costs for "broken trim and kitchen materials," see Exhibit 26, which provides some allowance for potential damages. While Schwing stated that the possibility of damage to the cabinets and countertops during the process of removal and reinstallation was high, no reasonable estimate for any probable additional amount of damages was provided. "The plaintiff has the burden of proving the extent of the damages suffered . . . Although the plaintiff need not provide such proof with [m]athematical exactitude . . . the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate." (Citation omitted and internal quotation marks omitted.) Willow Springs Condominium Association v. 7th BRT Development Corp., 245 Conn. 1, 65, 717 A.2d 77 (1998). The court declines to assume that the Brays' granite countertops, the cost of which makes up the bulk of the proposed $10,000.00, would probably be damaged in the floor replacement process. Schwing's experience in that area was admittedly limited.
Based on the evidence, the court concludes that Schwing's estimate is the appropriate measure of damages for breach of contract. That estimate, $25,645.00, is a reasonably small amount compared with the purchase price set forth in the Bond for Deed, $707,500.00. See Exhibit 1. It does not involve an unreasonable economic waste. See Barnicoat v. Edwards, supra, 1 Conn. App. 655-56. Accordingly, on count one of the first amended complaint, the plaintiffs are awarded the principal sum of $25,645.00 as damages for breach of contract.
2. Breach of Warranty
As noted, in counts two and three of the 6882 action, the plaintiffs claim that Founders is liable for breach of warranty. Count two is premised on breach of express warranty in the Bond for Deed, Exhibit 1. On the tenth page of the Bond for Deed, the parties agreed that Founders "shall be responsible to the Buyer to provide warranty of the House for a period of 2 years following the date the certificate of occupancy is issued." That period has not expired. An attachment to the Bond for Deed (last page) provides for a warranty request procedure. The court discussed above the fact that the presence of defective flooring is evidence of breach of contract; for the same reasons, it is evidence of breach of express warranty as alleged in count two.
In count three of the first amended complaint in the 6882 action, the Brays claim that Founders is liable to it under the New Home Warranties Act, General Statutes §§ 47-116 et seq. (NHWA). Section 47-117 provides, in pertinent part, "(a) Express warranties by a vendor are created as follows: (1) Any written affirmation of fact or promise which relates to the improvement and is made a part of the basis of the bargain between the vendor and the purchaser shall create an express warranty that the improvement conforms to such affirmation or promise . . ." The promises made by Founders in the Bond for Deed, discussed above, are express warrranties, as provided in the NHWA. The defective flooring is evidence of the breach thereof.
Section 47-118 of the NHWA provides that, in the sale of new homes, "warranties are implied that the improvement is: (1) Free from faulty materials; [and] (3) constructed in a workmanlike manner." Again, the presence of the defective flooring is evidence of breach of implied warranty. Either faulty materials were provided or unworkmanlike construction occurred, or both, resulting in the flooring defects.
The plaintiffs do not claim that the measure of damages for breach of warranty differs from that which is applicable to breach of contract. See Levesque v. DM Builders, Inc., supra, 170 Conn. 177. As to counts two and three of the first amended complaint, the Brays have proved that they are entitled to damages, the same damages as awarded above under count one.
3. New Home Construction Contractors Act
In count four of the 6882 action, the plaintiffs allege that Founders violated the New Home Construction Contractors Act, General Statutes §§ 20-417a et seq. (the Act), since it was not registered as a new home construction contractor. See first amended complaint, count four, ¶ 13. In entering into their agreement with Founders for the construction of their residence, they claim to have relied to their detriment upon representations, including those in the Bond for Deed, Exhibit 1, that Founders was a licensed new home construction contractor. See first amended complaint, count four, ¶ 14. In addition, they claim that they "have been harmed by their reliance" on Founders as a licensed new home construction contractor "in that the defendant has breached its contractual obligations and performed new home construction in a less than workman-like manner thus causing damages to the plaintiffs . . ." See first amended complaint, count four, ¶ 16.
Section 20-417b(a) of the Act provides, in pertinent part, "No person shall engage in the business of new home construction or hold himself or herself out as a new home construction contractor unless such person has been issued a certificate of registration . . ." The Act defines a new home construction contractor as "any person who contracts with a consumer to construct or sell a new home or any portion of a new home prior to occupancy." See General Statute § 20-417a(5). A "person" includes a limited liability company, such as Founders. See General Statute § 20-417a(7).
The parties to the Bond for Deed, Exhibit 1, are Founders, which is referred to as the "Owner," and the Brays, as the "Buyer." Paragraph 3 states that the Owner agrees to construct a house in accordance with attached plans and specifications. Later in the same paragraph, in discussing the work, the Owner is referred to as "the new home construction contractor." Paragraph 4 refers to the Owner completing punch-list items.
On the tenth page of the Bond for Deed, below paragraph 35, the Act is discussed. It states that "[t]he Buyer acknowledges receiving from the Owner/Contractor a copy of the contractor's registration Certificate as a New Homes Construction Contractor and the Registration Notice as required." On the next, eleventh page, the following statement appears, in capital letters: BY SIGNING THIS AGREEMENT, YOU ACKNOWLEDGE RECEIVING A COPY OF THIS DISCLOSURE AND THE ATTACHED REGISTRATION CERTIFICATE BEFORE SIGNING ANY AGREEMENT WITH THE OWNER/CONTRACTOR[.]" See Exhibit 1.
The plaintiffs were further advised that they "may be contacted by FOUNDERS CD, LLC/SOUTH COVE LANDING, LLC prospective consumers concerning the quality, timeliness of FOUNDERS CD, LLC/SOUTH COVE LANDING, LLC new home construction work unless you advise us in writing with the execution of this agreement that you prefer not to be contacted." See Exhibit 1, eleventh page. Below that statement, the Bond for Deed also states, "South Cove Landing, LLC is the named entity and holder of our Connecticut license for new home construction. Our New Home Construction Contractor Registration number is 3387." See Exhibit 1, eleventh page. On the next, twelfth page, the parties, including the Brays and Founders, signed the Bond for Deed, signing their agreement to its terms.
It is undisputed that Founders has not been issued a certificate of registration as a new home construction contractor. However, the fact that South Cove Landing, LLC (South Cove) was a registered new home construction contractor, not Founders, was disclosed to the Brays in the Bond for Deed which they signed, since they were advised that South Cove was the registered entity, not Founders. The Bond for Deed also states that the Brays acknowledged receiving a copy of the contractor's registration certificate as a new home construction contractor.
While the plaintiffs argue that Ms. Bray testified that before she purchased the home she believed Founders to be registered, see plaintiffs' brief, p. 18, the Brays do not claim that the contract language in the Bond for Deed is ambiguous or that they did not read what they signed. See Ursini v. Goldman, 118 Conn. 554, 562, 173 A. 789 (1934). Both of the Brays are attorneys. They have not advanced any credible reason for not imputing to them knowledge of the contents of the Bond for Deed, on which they rely in their breach of contract claim. See Smith v. Mitsubishi Motors Credit of America, Inc., 247 Conn. 342, 351-52, 721 A.2d 1187 (1998); and see first amended complaint, count one (breach of contract).
Since the Brays were on notice that South Cove, not Founders, was registered as a new home construction contractor, they have not proved their allegation that, in entering into the Bond for Deed, which provided for the construction of their residence, they relied on representations by Founders that it was so registered. Accordingly, judgment may enter for Founders as to count four of the first amended complaint in the 6882 action.
4. CUTPA
In count five of the first amended complaint in the 6882 action, the plaintiffs allege that Founders violated CUTPA, General Statutes §§ 42-110a, et al. Section 42-110b(a) provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Section 42-110g(a) states that "[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages."
The Brays contend that Founders' violations of CUTPA include its breach of the statutory new home warranties, its concealment of its warranty violations, its failure to register as a new home contractor, and its failure to disclose to the Brays its true intentions regarding the basin. See plaintiffs' post-trial brief, p. 26.
"[I]n determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other business persons] . . . All three criteria do not need to be satisfied to support a finding of [a violation of CUTPA]." Macomber v. Travelers Property Casualty Corp., supra, 261 Conn. 644. "A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Footnote omitted; internal quotation marks omitted.) Hartford Electric Supply Co. v. Allen Bradley Co., 250 Conn. 334, 368, 736 A.2d 824 (1999).
"Thus a violation of CUTPA may be established by showing either an actual deceptive practice; . . . or a practice amounting to a violation of public policy . . . Furthermore, a party need not prove an intent to deceive to prevail under CUTPA." (Citations omitted and internal quotation marks omitted.) Jacobs v. Healey Ford-Subaru, Inc., CT Page 9942 231 Conn. 707, 726, 652 A.2d 496 (1995).
"Whether a practice is unfair and thus violates CUTPA is an issue of fact." Paulus v. Lasala, 56 Conn. App. 139, 153, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000). "The question of whether an action or practice can be the basis of a CUTPA action depends upon all the circumstances of the particular case." Jacobs v. Healey Ford-Subaru, Inc., supra, 231 Conn. 726. Every contract breach does not amount to a CUTPA violation, nor does every misrepresentation rise to such a level. See Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn. App. 557, 570-71, 845 A.2d 417 (2004).
Our Appellate Court has found that a violation of the New Home Warranty Act (NHWA) may satisfy the first prong of the "cigarette rule," in that it offends public policy. See Krawiec v. Blake Manor Development Corp., 26 Conn. App. 601, 608, 602 A.2d 1062 (1992). As noted above, the court has found, in connection with count three, that the Brays have proved such statutory violations. In addition, they have proved that they suffered a substantial injury, an ascertainable loss of money, as a result thereof, in satisfaction of the third prong. See Pape v. Goldbach, Superior Court, judicial district of Waterbury, Docket No. CV99 0150578 (January 5, 2000, Pellegrino, J.). Under these circumstances, the Brays have satisfied their burden of proof as to this aspect of their CUTPA claim in their fifth count.
The Brays have not proved that, prior to their taking occupancy of the house, Founders violated CUTPA, by hiring "an unlicensed floor finisher to sand the floor flat and finish it." (Footnote omitted.) See plaintiffs' post-trial brief p. 28 (citing sections of the Home Improvement Act, General Statutes §§ 20-418 et seq.). The floor finisher was Founders' subcontractor. Under Connecticut law, there is no requirement that subcontractors be licensed as home improvement contractors. See Meadows v. Higgins, 249 Conn. 155, 168, 733 A.2d 172 (1999). "[R]equiring subcontractors to register as home improvement contractors would be unreasonable and unduly burdensome in an industry where most . . . construction work is often subcontracted . . . by a general contractor who oversees the entire project and is responsible [to the owner] for the final result." (Internal quotation marks omitted.) Id., 167.
The plaintiffs also have not proved that Founders knew of the floor problems in advance of the closing and engaged in poor construction in order to hasten the closing and to conceal defects. They rely on Bell's testimony to support these contentions. Founders put Bell on notice that it would hold Beth Specialty Millwork responsible for the floor problems at issue here, due to the claimed failure of Bell to advise Doran about using a mixture of wood flooring which had been supplied at different times. See Exhibit 32 (letter from Doran to Bell). Bell is hardly an objective witness. The court declines to credit his view that putty was used to disguise defects or that defects must have been apparent in advance of the closing. Both Bell and Schwing testified that the use of putty is a common practice. Neither Bell nor Schwing credibly provided opinions about the floor's condition at the time of the closing in December 2002.
The Brays ask the court to infer that Founders did not call its floor finisher, Anthony Valano, to testify, since his testimony would have corroborated that of Bell and Schwing. See plaintiffs' post-trial brief p. 29. General Statute § 52-216c provides, in pertinent part, that "counsel for any party to the action shall be entitled to argue to the trier of fact during closing arguments . . . that the jury should draw an adverse inference from another party's failure to call a witness who has been proven to be available to testify." Here, the court is the trier of fact and declines to draw the requested adverse inference. The Brays have not shown that Valano was available to testify. Also, it would be an exercise in speculation to assume anything about Valano's testimony.
The plaintiffs also argue that Founders acted unethically and unscrupulously in failing to honor its warranties. They first spoke to Doran about the floor problems just after Memorial Day in 2003. He then promptly inspected the floor problems. Doran told the Brays that he would present a claim to Founders' insurance carrier. In late June, he brought Bell to the house to inspect the floors. The plaintiffs assert that Founders failed to pursue coverage and "most likely" Founders had no insurance. See plaintiffs' post-trial brief, p. 29. Doran testified that he put his insurance agent on notice of the claim.
"It has been held that a `misrepresentation' can constitute an aggravating circumstance that would allow a simple breach of contract claim to be treated as a CUTPA violation; it would in effect be a deceptive act . . ." Designs On Stone, Inc. v. John Brennan Construction Co., Inc., Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV97 05 99 97 (April 9, 1998, Corradino, J.) ( 21 Conn. L. Rptr. 659). "CUTPA liability should not be imposed, however, when a defendant merely has not delivered on a promise unless the defendant made a representation as to a future fact coupled with a present intent not to fulfill the promise . . . The court is not aware of a case that holds that a statement predictive of future conduct . . . somehow becomes a `misrepresentation' for CUTPA purposes simply when the party making the representation cannot deliver on the promise." (Internal quotation marks omitted.) Raffone v. Home Depot U.S.A., Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV02-0465471 (June 23, 2003, Harper, J.) ( 34 Conn. L. Rptr. 747). Here, the Brays have not shown that Doran's statements concerning insurance amounted to a promise that such coverage would be available or that they were made with a present intent not to fulfill them.
The plaintiffs characterize Doran's post-suit refusal to accede to or pass on to Founders' insurance carrier their request that the floors in the rear of the house be completely replaced as "spiteful." See plaintiffs' post-trial brief, p. 30. They cite an e-mail which he inadvertently sent to their counsel, instead of to his own counsel, on November 17, 2003, stating, "I think I outlined my position clearly in my correspondence and I do not want to continue with them in this charade. I am not removing the cabinets other than the island and that's all there is to it." See Exhibit 30. The court is necessarily faced with an incomplete record in evaluating post-suit conduct since the parties' settlement discussions, of which the cited e-mail obviously is a part, are generally inadmissible. See PSE Consulting, Inc v. Frank Mercede and Sons, Inc., 267 Conn. 279, 332, 838 A.2d 135 (2004); see also Conn. Code of Evidence § 4-8.
Rather than view Doran's comment as evidence of spite, the court sees it as evidence of the parties' reasonable disagreement as to what is the appropriate remedy for the floor problems. The court heard evidence at trial on that subject and addressed it above in its discussion of the first count's breach of contract claim. Founders' proposed solution was to replace the floors, but not under the cabinets along the walls. While the court has found that that proposed solution would not put the plaintiffs "in the same position as that which [they] would have been in had the contract been performed," Ambrogio, 267 Conn. 155, the proposal was not an unreasonable one and is not evidence of bad faith. The plaintiffs found Founders' proposed solution unacceptable. Founders did not "stonewall" the Brays. Tessmann v. Tiger Lee Construction Co., supra, 228 Conn. 55.
The Brays also criticize Founders for not getting an estimate regarding floor repairs from a subcontractor. In these circumstances, where the parties had a reasonable disagreement as to what was required, this is unsurprising and not indicative of "stonewalling."
Likewise, the Brays' argument, in their reply brief, p. 14, that Founders did not intend to bring either its flooring installer (Ron Samuelsen) or its floor finisher (Valano) to inspect the floors is unavailing. The Brays commenced suit and requested that the flooring be completely replaced, including under all kitchen cabinets. In view of Founders' good faith belief that such a repair plan was not required in order to make the Brays whole, and the parties not having reached a meeting of the minds on this topic, it is unsurprising that when, pursuant to motion, Founders was permitted to inspect the floors, Founders brought its proposed expert witness, John Braca, to do the inspection.
The plaintiffs contend that Founders brought no insurance adjuster to the house, either before or after they sued Founders in July 2003. Shortly before they commenced suit, Doran brought Bell to the house to inspect the floors; Doran believed that Beth Specialty Millwork was responsible to Founders for the problem. As stated above, in view of the necessarily limited record about the parties' post-suit conduct it is unclear whether, as they allege, the Brays would have welcomed a post-suit visit by an insurance representative. See plaintiffs' reply brief, p. 15.
Since it was not registered as a new home construction contractor, by agreeing to construct the Brays' home, and by acting as the general contractor for the construction, Founders engaged in the business of new home construction in violation of the Act. See General Statute § 20-417b(a). Any violation of this section of the Act is deemed a deceptive or unfair trade practice under CUTPA. See General Statute § 20-417g.
Section 20-417g provides, in pertinent part,: "A violation of any of the provisions of sections 20-417a to 20-417i, inclusive, . . . shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b.
The plaintiffs have not proved their claim that they relied on a misrepresentation about or failure by Founders to disclose its true intention concerning the basin. See first amended complaint, count five, ¶ 23. In this paragraph, they assert that Founders violated CUTPA by misrepresenting and failing to disclose its intent to use the basin for "storing sediment" from other property within the subdivision on which Founders was conducting construction. They claim to have relied to their detriment on Founders' statements and silence in purchasing the property, and that they were damaged as a result from the use of the basin as "an unmaintained and unsightly mud- and weed-filled collection area for sediment . . ." See first amended complaint, count five, ¶ 23.
Having viewed the site, the court is unpersuaded that Founders concealed its plan to have sediment drain into the basin. As a result of their view of this small subdivision's topography, Doran's responses to their inquiry, and the subdivision's plans, it should have been apparent to the Brays that, since construction was going to occur on the lots above Lot 4, and since water would drain into the basin from those lots, some sediment would drain into the basin also.
At trial, Doran credibly explained that, when he discussed the basin with them, prior to the execution of the Bond for Deed, he told them that it would be used for drainage, and referred them to Mocko, and to James Dutton of Engintek, Inc. (the basin's designer), each of whom had more expertise than he did as to this subject, for further explanations of the basin's functioning. Also, as noted above, the subdivision plans themselves, see Exhibits 20 and 21, specifically state that erosion and sedimentation controls are subject to the direction and inspection of the environmental planner. Any questions which the plaintiffs had about the Town's approval of the use of the basin could have been directed to Mocko. Under the circumstances, the information conveyed to the plaintiffs was sufficient to put them fully and fairly on notice about the plans for the use of the basin. See Macomber v. Travelers Property Casualty Corp., supra, 261 Conn. 635-36. The plaintiffs' assertions of detrimental reliance are not credited.
In view of this determination, the court need not address the parties' contentions concerning the validity and effect of paragraph 24 of the Bond for Deed, entitled "Entire Agreement." See Exhibit 1.
While the Brays cite Doran's deposition testimony as evidence of a cavalier attitude towards disclosure, the referenced transcript is not persuasive. When asked if the prospective owners of Lots 5, 6, and 7 were notified about their obligations to maintain the basin, Doran stated that each was given the "documents, you know, the sharing agreements for the maintenance of the driveway, as part of the sales, so they're all — I mean, they all should be aware, because it's clearly spelled out." See Exhibit 42. Since the documents set forth the obligations, Doran stated that he did not "go out of my way to explain it to them." See Exhibit 42. Advising individuals of obligations through documents which explain obligations does not evidence deception or nondisclosure.
Likewise, their assertion that Doran told them that the basin "would drain dry within 24 to 48 hours," see plaintiffs' post-trial brief, p. 32, is unavailing in the CUTPA context. The Brays have not proved that this claimed representation was "coupled with a present intent not to fulfill the promise." Raffone v. Home Depot U.S.A. Inc., supra.
Also, as discussed above in connection with the 7961 action, the plaintiffs have not proved that as to the basin, they were damaged.
The plaintiffs seek awards of punitive damages and attorneys fees under CUTPA. General Statutes § 42-110g(a) provides that punitive damages may be awarded in an action based on CUTPA; § 42-110g(d) authorizes an award of attorneys fees. "Awarding punitive damages and attorneys fees under CUTPA is discretionary." Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987).
"In order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights . . . In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence." (Citation omitted.) Id. In practice, reckless, intentional and wanton conduct "have been treated as meaning the same thing." (Internal quotation marks omitted.) Pane v. City of Danbury, 267 Conn. 669, 695, 841 A.2d 684 (2004).
The fact that parties disagree with each other or become angry about their dispute does not justify an award of punitive damages. Founders' actions "were not malicious or highly unreasonable nor did they constitute an extreme departure from ordinary care." Rohan v. Rosenblatt, Superior Court, judicial district of Waterbury at Waterbury. Docket No. CV93-0116887S (September 14, 1999, Vertefeuille, J.). The evidence does not reveal reckless, intentional, or wanton misconduct. The court therefore declines to award punitive damages.
CUTPA sets forth no standard for an award of attorneys fees. See Staehle v. Michael's Garage, Inc., 35 Conn. App. 455, 459 n. 8, 460-61, 646 A.2d 888 (1994). "[T]he public policy underlying CUTPA is to encourage litigants to act as private attorneys general and to engage in bringing actions that have as their basis unfair or deceptive trade practices . . . In order to encourage attorneys to accept and litigate CUTPA cases, the legislature has provided for the award of attorneys fees and costs . . . Once liability has been established under CUTPA, attorneys fees and costs may be awarded at the discretion of the court." (Internal quotation marks omitted.) Gebbie v. Cadle Co., 49 Conn. App. 265, 279-80, 714 A.2d 678 (1998).
Where the CUTPA violation consists of a per se violation and a breach of contract, but no egregious or outrageous conduct is involved, an attorneys fee award has been found to be unwarranted. See Walker v. Winston, Superior Court, judicial district of New Haven at New Haven, Docket No. CV99 0429373 (January 22, 2003, Gilardi, J.) ( 34 Conn. L. Rptr. 16).
In their treatise on CUTPA, R. Langer, J. Morgan, D. Belt, Unfair Trade Practices (2003), § 4.18, p. 328, the authors discuss finding CUTPA liability based on a violation of the New Home Warranty Act (NHWA), as is the case here, and state "[i]n this situation, a party to a contract has obtained the benefit of the contract while refusing to perform and without acting in good faith. The non-performing party relies on the other party's unwillingness to bear the costs of litigation to recover, particularly if the cost of completion is not great. In such an instance, the costs of litigation might well exceed the cost of the repair. Finding unfairness on these facts seems well justified as within the original reasons for the enactment of CUTPA." The difference between the scenario envisioned in the treatise and the facts here is, as discussed above, that the plaintiffs have not proved that Founders failed to act in good faith.
The facts here also contrast with those in Rohan v. Rosenblatt, supra, where the court awarded attorneys fees, but no punitive damages. There, the court concluded that the plaintiff's damages resulted from the defendant's violation of CUTPA and a breach of fiduciary duty. In its earlier opinion in the same case, Rohan v. Rosenblatt, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV93-0116887S (August 13, 1999, Vertefeuille, J.) ( 25 Conn. L. Rptr. 287), the court found that an attorney charged his client an unreasonable fee and deceived him about its unreasonableness. The defendant's actions were characterized as overreaching, unethical, oppressive, and as a violation of trust. See id. As a result, in its subsequent opinion, dated September 14, 1999, even though punitive damages were not awarded, the court found that an attorneys fee award was "appropriate and necessary." Rohan v. Rosenblatt, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV93-0116887S (September 14, 1999, Vertefeuille, J.).
As discussed above, the two areas of dispute here concern the flooring and the basin. Founders responded to the Brays' complaints about the flooring; it did not abandon the job. It did not violate a fiduciary duty. The parties' disagreement as to the extent of floor repairs which are required was one on which reasonable minds could differ. Concerning the basin, which was a subject on which much trial time was spent, the court has found that the plaintiffs have not proved that they relied on a misrepresentation about or failure by Founders to disclose its intention about its use. In its discretion, the court declines to award attorneys fees.
Since the Brays have proved that Founders violated CUTPA, judgment may enter in their favor on the fifth count of the first amended complaint in the 6882 action. As discussed, in its discretion, the court declines to award either punitive damages or attorneys fees. The damages to be awarded are the same as awarded under the first count.
5. Negligence
In the sixth count of the first amended complaint in the 6882 action, the plaintiffs incorporate previous allegations and claim that Founders is liable for negligence. As noted above, the elements of a negligence cause of action are "duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 384. "An action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of duty imposed by law." Gazo v. Stamford, 255 Conn. 245, 263, 765 A.2d 505 (2001). "[A] party may be liable in negligence for the breach of a duty that arises out of a contractual relationship." Bonan v. Goldring Home Inspections, Inc., 68 Conn. App. 862, 870, 794 A.2d 997 (2002).
The Brays have proved that Founders is liable for negligence concerning the flooring. Whether the defective flooring resulted from Beth Specialty Millwork's (Founders' supplier) negligence or from Founders' own negligence, or from another subcontractor's negligence, is unclear. However, Founders remains responsible, as the general contractor. See Meadows v. Higgins, supra, 249 Conn. 167. Judgment may enter in favor of the plaintiffs on the sixth count of the first amended complaint in the 6882 action. The damages to be awarded are the same as awarded under the first count.
6. Interest
The Brays seek an award of interest. General Statute § 37-3a provides, in relevant part, that "interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable." "[T]he 10 percent interest rate set forth in § 37-3a is not a fixed rate, but rather the maximum rate of interest that a trial court, in its discretion, can award." Gianetti v. Meszoros, 268 Conn. 424, 426, 842 A.2d 1124 (2004).
"The allowance of prejudgment interest as an element of damages is an equitable determination and a matter lying within the discretion of the trial court . . . Before awarding interest, the trial court must ascertain whether the defendant has wrongfully detained money damages due the plaintiff . . . Interest on such damages ordinarily begins to run from the time it is due and payable to the plaintiff . . . The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of an arbitrary rule." (Internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn. App. 22, 30-31, 830 A.2d 240 (2003).
"The fact that this dispute is `hotly contested' does not impact on the trial court's determination that the defendant wrongfully detained the [plaintiffs'] money." Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 136, 147, 619 A.2d 866 (1993). "[P]rejudgment interest is awarded in the discretion of the trial court to compensate the prevailing party for a delay in obtaining money that rightfully belongs to him." (Internal quotation marks omitted.) Northrop v. Allstate Insurance Co., 247 Conn. 242, 254-55, 720 A.2d 879 (1998).
The flooring problems should have been corrected by Founders within a reasonable time. Allowing a reasonable time for Founders to have arranged for the correction of the flooring problems after the Brays made Founders aware of them, the court awards interest to the Brays, at the statutory rate of 10%, from July 1, 2003. Through the date of this decision, interest on $25,645.00, the principal sum awarded, amounts to $2,508.26.
CONCLUSION
1. For the foregoing reasons, judgment may enter in favor of the defendant, and against the plaintiffs on both counts in Docket No. CV03 0827961 S.
2. For the foregoing reasons, judgment may enter in favor of the plaintiffs, and against the defendant, on counts one, two, three, five, and six in Docket No. CV03 0826882 S. Judgment may enter in favor of the defendant and against the plaintiffs as to count four in that action. Damages are awarded to the plaintiffs in Docket No. CV03 0826882 S, in the principal amount of $25,645.00, plus interest in the amount of $2,508.26, for a total of $28,153.26.
It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT