Opinion
FSTCV126014644S
01-19-2017
Shane Butler et al. v. Charles O'Connor et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
A. William Mottolese, Judge Trial Referee.
The plaintiffs homeowners, Shane and Colleen Butler, have brought a six-count complaint against Charles O'Connor (" O'Connor"), a building contractor, Mingolello and Hayes, Architects, P.C. and R. Neil Hayes, a professional architect and member of the P.C. The three counts asserted against O'Connor allege breach of a residential construction contract, negligent supervision of O'Connor's employees and independent contractors, and negligent hiring of his employees and independent contractors. In his answer, O'Connor has denied the allegations and has interposed five special defenses with a counterclaim seeking foreclosure of a mechanic's lien, damages for breach of contract and unjust enrichment. The plaintiffs' reply denies the allegations and sets up several special defenses to the counterclaim.
On December 21, 2015 the complaint was withdrawn as to R. Neil Hayes. On June 9, 2016 a default was entered against Mingolello and Hayes, Architects, P.C. for failure to appear at a pre-trial.
On January 2, 2012 the plaintiffs and O'Connor entered into a written contract under which O'Connor agreed to perform certain wood framing work in accordance with architectural plans and drawings prepared by the defendant, architectural firm of Mingolello and Hayes, Architects, P.C., (" the architect") which were expressly incorporated by reference into the contract. By Shane Butler's testimony the architectural drawings called for completion of phase I of a multi-phase alteration to the plaintiffs' residence which was under consideration for future implementation. O'Connor's responsibility was to frame out a new kitchen, second floor hallway, a bedroom and new bathroom for the plaintiffs' son, all to be completed by February 15, 2012. The contract price was $51,500. The contract did not contain a time of the essence clause.
When February 15, 2012 arrived, the plaintiffs did not believe that O'Connor had completed his work and furthermore claimed that the work that was performed was done in a faulty and unworkmanlike manner. O'Connor contends that not only did he perform in a timely and workmanlike manner but he did extra work at the plaintiffs' request for which he has not been fully paid. Furthermore, O'Connor contends that the only delay which occurred in performance resulted from the architect's default in performance of his contractual obligation as construction manager pursuant to which he was to assist the plaintiffs in compiling a qualified list of subcontractors which were essential for completion of the job. O'Connor further contends that with the architect's default, he undertook to obtain them at the plaintiffs' request.
The Plaintiffs' Causes of Action
At the outset, it is noted that in their trial brief the plaintiffs set forth four " legal theories" to support their recovery which include the second and third counts alleging negligent supervision and negligent hiring. Although at page 16, headings II and III are so entitled, the brief contains no analysis whatsoever of these " theories." They are therefore deemed to have been abandoned, leaving only the breach of contract count. " We repeatedly have stated that '[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.' (Citations omitted; internal quotation marks omitted.) Merchant v. State Ethics Commission, 53 Conn.App. 808, 818, 733 A.2d 287 (1999). These same principles apply to claims raised in the trial court." (Alternate citations omitted.) Connecticut Light & Power Co. v. Depart. Of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).
The obvious reason for abandonment of these counts is readily understood because there was no evidence whatsoever introduced at trial to support either count.
The fourth legal theory which the plaintiffs assert in their brief is based on claim of " misrepresentation and fraud." It is well settled that the right of a plaintiff to recover is limited to the allegations of the complaint and that a plaintiff may not allege one cause of action and recover upon another . . . " These pronouncements relate to the requirement that a pleading must provide adequate notice of the facts claimed and the issues to be tried." Tedesco v. Stamford, 215 Conn. 450, 458, 576 A.2d 1273 (1990). " The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial in under way and the . . . witnesses have testified." Du Bose v. Carabetta, 161 Conn. 254, 261, 287 A.2d 357 (1971). If an appellate court will not consider issues briefed but not raised at trial, Ajadi v. Commissioner of Correction, 280 Conn. 514, 549, 911 A.2d 712 (2006), neither will this court.
Moreover, " The essential elements of an action in fraud, as we have repeatedly held, are: (1) that a false representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury." Miller v. Appleby, 183 Conn. 51, 55, 438 A.2d 811 (1981). Even if the plaintiffs had alleged fraud and misrepresentation there was no proof of either especially since the standard of proof for fraud is by clear and convincing evidence. Verrastro v. Middlesex Insurance Company, 207 Conn. 179, 540 A.2d 693 (1988).
Additionally, the plaintiffs have included in their brief arguments relating to the Home Improvement Act (G.S. § 20-429) and the New Home Warranties Act (G.S. Chapter 27). Because none of these causes of action or claims have been pleaded the court is not at liberty to adjudicate them.
Under Sidney v. De Vries, 18 Conn.App. 581, 587, 559 A.2d 1145 (1989) a violation of the Home Improvement Act must be specially pleaded unless the party who relies on it has claimed that the other party has waived the failure to do so. No such claim of waiver has been made in the present case. With respect to the breach of warranty argument, the plaintiffs have offered no analysis of how the new Home Warranties Act applies to the facts of the present case, an addition to and alteration of an existing home.
The plaintiffs have also argued in their brief that the court should award rescission of the contract " due to the material breach of contract." Once again, it is noted that the revised complaint contains no cause of action in rescission and that the prayers for relief do not contain a claim for such a remedy although prayer for relief #5 is a catchall request for " such additional relief as may be required in law or equity." Notwithstanding these omissions, " rescission of a contract is an appropriate remedy if there has been a material misrepresentation of fact upon which a party relied and which caused it to enter the contract." Kavarco v. T.J.E., Inc., 2 Conn.App. 294, 298, 478 A.2d 257 (1984). As noted above there was no evidence whatsoever that O'Connor made any fraudulent misrepresentation or any misrepresentation of fact, whether intentional or negligent.
" Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact, (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result. A representation about a promise to do something in the future, when linked with a present intention not to do it, is a false representation. (Alternate citations omitted.) Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970)"; (alternate citation omitted) Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006).
And finally at page 20 of their brief the plaintiffs have introduced for the first time a claim for " restitution" of one third of the contract price of $51,500.00, admitting for the purpose of this claim that O'Connor has substantially performed two-thirds of the contract but failed to properly frame the kitchen ceiling heights. Again, the equitable remedy of restitution has not been pleaded as a cause of action and but for the catchall claim for relief, the remedy of restitution has not been sought until it appeared in the brief. A restitutionary remedy may take many forms in order to achieve an equitable result. While plaintiffs do not specify what equitable remedy they seek as an alternative to rescission, the common form of remedy which is essentially equitable and restitutionary is unjust enrichment.
The plaintiffs offered no evidence from any source that the alleged defective ceiling framing comprised one-third of the contract. The allocation is purely arbitrary.
" A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefitted, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs' detriment . . ." Jo-Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn.App. 179, 880 A.2d 945 (2005). It is well settled that the remedy of unjust enrichment is available only when no remedy is available by an action on the contract. Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282, 649 A.2d 518 (1994). The court must first consider the breach of contract count because the case has been pleaded and tried on the basis of that cause of action.
Breach of Contract
" It is well established that " (t)he elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) (Alternate citations omitted.) Meadowbrook Center, Inc. v. Buchman, 149 Conn.App. 177, 185, 90 A.3d 219 (2014). The starting point for determining whether there has been a breach of contract is to assess whether O'Connor performed his obligations under the written contract. The major issue in contention between the parties is whether O'Connor's contract obligated him to frame out a hallway and doorway leading from that hallway to a new bedroom intended for the plaintiffs' son. The plaintiffs contend that O'Connor's failure to do so prevented them from obtaining a certificate of occupancy from the City of Stamford. O'Connor contends that he framed the particular doorway but was under no obligation to frame out the hallway because he understood from the architect as well as from the drawings that the doorway would be finalized and opened when the plaintiffs undertook the next phase of their remodeling plans.
It is noteworthy that in the numerous text messages in evidence between the parties, which extended beyond the February 15 completion date, plaintiffs made no complaint that the doorway was not framed in or that the hallway had prevented them from obtaining a certificate of occupancy or even that there was a delay beyond the completion date.
As necessary background to the consideration of this issue the court must analyze O'Connor's references in his post-trial brief to the fourth count of the revised complaint which alleges breach of contract against the withdrawn and defaulted defendants. O'Connor argues that in the fourth count the plaintiffs have made identical claims against the other defendants. The significance of this that: " Factual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case." (Internal quotation marks omitted.) West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 312, 514 A.2d 734 (1986); see State v. Rodriguez, 180 Conn. 382, 396, 429 A.2d 919 (1980) (noting that " [t]he vital feature of a judicial admission is universally conceded to be its conclusiveness upon the party making it, i.e. the prohibition of any further dispute of the fact by him, and any use of evidence to disprove or contradict it" [internal quotation marks omitted]); Cassidy v. Southbury, 85 Conn. 221, 224, 82 A. 198 (1912) (" It was not necessary for the defendant to prove what the plaintiff admitted by the pleadings . . . An admission in pleading dispenses with proof, and is equivalent to proof." (Alternate citations omitted.) Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2001).
The court reiterates that while this action was withdrawn as to the individual Hayes it remains viable against the architect. See P.B. § § 17-33; 17-34. But even with the withdrawal as to Hayes our Supreme Court has promulgated the following rule. " Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint. Practice Book § § 94, 137; Veits v. Hartford, 134 Conn. 428, 434-35, 58 A.2d 389 (1948). The plaintiffs brief alludes to a line of cases which hold that this type of liberal pleading policy would be frustrated were the pleader subjected to the risk that anything he pleads will be held against him even if he withdraws or abandons it. These cases, therefore, conclude that a withdrawn or superseded statement in one of two alternative claims may not be used as an admission in the trial of the other. See Continental Ins. Co. of New York v. Sherman, 439 F.2d 1294, 1298-99 (5th Cir. 1971); Giannone v. United States Steel Corporation, 238 F.2d 544, 547-48 (3d Cir. 1956); Trans Western Leasing Corporation v. Corrao Construction Co., 98 Nev. 445, 448-49, 652 P.2d 1181 (1982); McCormick, Evidence (2d Ed. 1972) § 265, p. 634.
We do not believe that the policy supporting the liberal pleading rules controlling in this jurisdiction requires any such limitation on the use of superseded or abandoned pleadings as evidence of admissions contained therein. While alternative and inconsistent pleading is permitted, it would be an abuse of such permission for a plaintiff to make an assertion in a complaint that he does not reasonably believe to be the truth. See Practice Book § 111. Our pleading rules were designed to avoid the pitfalls of unnecessary formality, not to allow a plaintiff to engage in fantasy. " Our laws formerly cast on the plaintiff the duty of construing his rights with respect to the form in which they ought to be brought before the court, and the relief to which he might be entitled, at the risk of losing everything if he mistook his remedy. The Practice Act enables him, in a case like the present, to throw this duty of construction upon the court. It is enough for him to tell his story as plainly and concisely as may be, and to state the different kinds of relief, one of which he thinks he may fairly claim." Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 564, 29 A. 76 (1893); cf. Fed. R. Civ. Proc., rule 11 (requiring that a pleading be filed only if " it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law . . ."). (Alternative citations omitted.) Dreier v. Upjohn Co., 196 Conn. 242, 246, 492 A.2d 164 (1985). Thus, based on these cases the allegations contained in the fourth, fifth and sixth counts maybe deemed judicial admissions.
The Hallway and Doorway
The dispute over the hallway and doorway centers on the meaning of a certain notation made on the architectural drawings. On pages A-3 and A-4 of the drawings which show the front and side elevations of the house, the architect has placed a notation between the peak of the garage roof and the outside wall of the house which reads: " Temporary cricket as required." The same notation appears in three different places on the drawings, but all involve the same object. Although the architectural drawings in and of themselves are not a contract between the plaintiffs and the defendant they have been incorporated into the contract by reference. Thus, ordinary rules of contract interpretation apply to the architect's notation.
The architect did not include a detail of the cricket but delineated the installation location by a dashed line.
" 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 . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract." (Internal quotation marks omitted.) Putnam Park Associates v. Fanestock & Co., 73 Conn.App. 1, 8, 807 A.2d 991 (2002). Where a technical or special meaning is intended by the language of the contract, that meaning, and not the language's ordinary usage, shall be employed. See New England Petroleum Corp. v. Groppo, 214 Conn. 444, 450, 572 A.2d 970 (1990).
" Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms . . . 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." (Citation omitted; internal quotation marks omitted.) Putnam Park Associates v. Fahnestock & Co., supra, 73 Conn.App. 8. " When . . . the trial court draws conclusions of law . . . we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Murphy, Inc. v. Remodeling, Etc., Inc., 62 Conn.App. 517, 522, 772 A.2d 154, cert. denied, 256 Conn. 916, 773 A.2d 945 (2001). Our standard of review, therefore, is plenary. See Aubin v. Miller, 64 Conn.App. 781, 790, 781 A.2d 396 (2001)."
" Contract language is unambiguous when it has a definite and precise meaning about which there is no reasonable basis for a difference of opinion." (Internal quotation marks omitted.) Christian v. Gouldin, 72 Conn.App. 14, 20, 804 A.2d 865 (2002). " A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen content for different meanings." (Internal quotation marks omitted.) Mallozzi v. Nationwide Mutual Ins., Co., 72 Conn.App. 620, 628, 806 A.2d 97 cert. denied, 262 Conn. 915, 811 A.2d 1292 (2002). " [A] presumption that the language used is definitive arises when, as in the present case, the contract at issue is between sophisticated parties and is commercial in nature." United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 670, 791 A.2d 546 (2002)." (Alternative citations omitted.) ARB Construction, LLC v. Pinney Construction Corporation, 75 Conn.App. 151, 154-55, 815 A.2d 705 (2003).
The plaintiffs maintain that O'Connor misinterpreted the drawings and as a result he failed to frame out the second floor hallway in order to allow proper head space so that the hallway could accommodate the new doorway to the son's bedroom. The plaintiffs engaged an expert witness, Glenn Brier who testified in the field of building construction. Mr. Brier visited the house at least five times. Not only did he make inspections of the hallway, bedroom and roof areas but he studied the drawings to determine what the architect meant by the notation concerning the cricket. He first opined that the term " cricket" was ambiguous as used on the drawings and therefore O'Connor should have consulted the architect for clarification of its meaning and purpose. He concluded that the cricket was a structural component of the building which was essential to the creation of the hallway with adequate head space so as to allow access to the bedroom through the doorway in question. On the other hand, he confessed that he could not determine where the cricket was supposed to go but because he did not do the demolition work necessary to enable him to make that determination. Significantly, on cross examination Mr. Brier agreed with the construction industry definition of a cricket as " secondary roof built on top of an existing roof designed to divert water drainage away from vertical protrusions such as chimneys." He further agreed that O'Connor had properly eliminated the need for such a cricket by installing an alternate device called a " hog's mouth."
The court interrupted O'Connor's case in chief to accommodate the plaintiffs who had rested their case because as reported by plaintiffs' counsel, Brier had refused to testify under any circumstances. He apparently changed his mind.
Plaintiffs' counsel stated at post trial argument that a cricket was a framing device that holds a load.
Contrary to Brier's testimony, Michael Conklin, a city of Stamford building inspector testified that a cricket has nothing to do with the structure of a building but is designed for roof water runoff. He further stated that when on March 16, 2012 his colleague inspected the premises, the inspection revealed the existence of a doorway framed out to permit entrance to the bedroom from the hallway. But upon reinspection on July 23, 2012 he noticed that the doorway had been sheetrocked over and that there was no access to the bedroom except through the bathroom which was not permitted by the building code unless a lock was installed on the bathroom door. He further stated that he understood from the plaintiffs that the doorway was intentionally sheetrocked over because it was contemplated that the doorway would be opened as part of phase II of the overall renovation plan. In his judgment the cricket was not necessary for the installation of the door. Thus, the plaintiffs' expert on the one hand and the building inspector on the hand, disagreed over the meaning and purpose of the cricket notation.
The court notes that at some point during the construction of this phase the architect abandoned the project so he was not available to resolve any dispute between the owner and contractor or offer any interpretation concerning the meaning and purpose of the cricket notation even if it had been necessary. The court also notes that both parties agree that in order for the hallway to have sufficient headroom, the floor height between the second floor addition and the existing bedroom would have to be raised to create an accessible hallway but the drawings are entirely silent on this point.
" Well established principles guide our analysis in determining whether the language of a contract is ambiguous. [A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. [A]ny ambiguity in a contract must emanate from the language used by the parties . . . In contrast, [a] contract is unambiguous when its language is clear and conveys a definite and precise intent . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous." (Citations omitted; internal quotation marks omitted.) Capp Industries, Inc. v. Schoenberg, 104 Conn.App. 101, 110-11, 932 A.2d 453 cert. denied, 284 Conn. 941, 937 A.2d 696 (2007). (Alternate citation omitted.); E and M Custom Homes, LLC v. Negron, 140 Conn.App. 92, 108, 59 A.3d 262 (2013). The court does not believe that the language of the cricket notation is ambiguous because the term " cricket" in construction parlance has a definite and precise meaning.
" The language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract." (Internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 295, 685 A.2d 305 (1996); see also 11 S. Williston, supra, § 32:3, pp. 408-11 (" [t]he plain, common or normal meaning of language will be given to the words of a contract unless the circumstances show that in a particular case a special meaning should be attached to them"). (Alternate citations omitted.) Tallmadge Brothers, Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 499, 746 A.2d 1277 (2000). Indeed, in the construction field the term " cricket" has a technical meaning.
It also has other well known meanings which do not apply here, namely: (i) a game played with a ball and bat by two teams of 11 players, teams take turns trying to score runs; (ii) leaping insect; male makes chirping noises by rubbing the forewings together. Http://www.poetrysoup.com/dictionary/cricket .
While a roof cricket has yet to appear in any appellate decision in this jurisdiction, it has been recognized in the decisions of several of our sister states as a device designed to divert water from a roof. See Garner v. Hickman, 733 So.2d 191 (Miss. 1999); Second Church of Christ Scientist v. Spencer, 230 La. 432, 88 So.2d 810 (La. 1956); Quincy Mutual Insurance Co. v. Union Roofing, N.J.App.Div. #A-5286-11T4, (2014); Shetka v. EPP Contracting, Inc., 2003 WY 158, 80 P.3d 637 (Wyo. 2013); Stucki-Miller, Inc. v. Santa Fe Engineers, Inc., 593 P.2d 133 (Utah 1979).
Returning to the Brier testimony, the court finds that his interpretation of the term was tortured and his testimony concerning the cricket was contrived deliberately to accomplish a desired but unobtainable result. Not only does his interpretation of the term not find any support in the technical lexicon of the construction industry, but to interpret the term as structural in nature flies in the face of the words which modify it, namely, " temporary" and " as required." These very words are manifestly inconsistent with the concept of " structural" because in the context of these drawings, a structural component would necessarily be permanent. So too with the modifier " as required." These words are likewise not subject to differing interpretations because they clearly imply that the cricket might not be necessary under any circumstance. One might ask: " When would a structural component specified for construction of a home not be required?" This court finds that the notation was not ambiguous notwithstanding the parties differing interpretations. Therefore, Brier's testimony is rejected as misguided, unreliable and implausible. The plaintiffs' claim of $15,000 for the installation of the structural cricket is without merit.
Additionally, the court is persuaded that neither a functioning doorway nor a completed hallway were O'Connor's responsibility because both were intended to be created as part of a subsequent construction phase. The court is likewise persuaded that the doorway was sheetrocked over because it went to " dead space" which in phase II would become a serviceable hallway designed to afford entry through the door opening which would be created simply by cutting out the sheetrock where O'Connor had framed.
The court notes that this conclusion is consistent with the testimony of the only disinterested witness, Michael Conklin, the city building inspector.
Extra Work
The plaintiffs next seek recovery of $6,500 which they paid O'Connor for extra work that he performed without proper authorization. The plaintiffs rely on paragraph X of the contract entitled " change orders" which provides as follows: X. Change Orders " The buyer may order changes in the work within the terms of this contract, but only by a prior written order and agreement with the builder that states the changes to the contract, the amount of any additional cost, and the additional number of days to be added to the contract completion date.
Any of the buyers may sign the change order and that signature will be binding upon all of the buyers.
The buyers hereby agree to make all requests for change orders to the builder, and not to issue instructions to, or otherwise negotiate for additional or changed work specifications with, the builder's employees or subcontractors." (Emphasis added.)
The plaintiffs argue that they paid O'Connor the sum of $58,000 for his work but that the contract price was only $51,500 and that the $6,500 difference is attributable to work which O'Connor performed beyond the scope of the contract without complying the " prior written order" requirement applicable to changes in the work. The evidence showed that O'Connor did extra work at the plaintiffs' request on a time and material basis. The plaintiffs make no complaint that this work was faulty. Specifically, the work consisted of supplying and installing a larger kitchen ceiling beam as required by the building inspector, providing access to and flooring for the attic, installing interior trim, supplying and installing a new back door, resizing the kitchen window and supplying/installing windows in other parts of the home. The evidence was clear that none of this work either individually or collectively was either requested or memorialized by " written order or agreement."
It is well established that provisions in a written contract requiring written orders for changes in the work or for extra work may be waived by the parties so that the owner becomes liable for changes or extra done by oral direction. Wexler Construction Co. v. Housing Authority, 144 Conn. 187, 193, 128 A.2d 540 (1956). (Alternate citation omitted.) Von Langendorff v. Riordan, 147 Conn. 524, 528, 163 A.2d 100 (1960). Liability for extra work may also arise pursuant to an oral agreement separate from the written contract. 3A Corbin On Contracts § 756 at 505 (1960). This is precisely what was done in the present case. There is ample evidence from the testimony of both parties to support a finding that the parties waived the requirement by their conduct on several separate occasions. See, e.g., Exhibits P, V, W, Z. Moreover, the plaintiffs have never claimed that O'Connor did not perform this work. Accordingly, the claim for the recovery of this sum is denied.
The claim made at post trial argument that the court may not consider the principle of waiver because O'Connor did not plead waiver is rejected because waiver is necessarily implicit in O'Connor's claim for payment. Facts are sufficiently set up in his counterclaim to warrant the inference of waiver although not expressly alleged. Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 256, 205 A.2d 780 (1964).
Next the plaintiffs claim reimbursement of $1,373 for the cost of the building permit for O'Connor's phase of the work. Paragraph IX of the contract clearly places the responsibility on O'Connor for obtaining the building permit necessary for his work and the fact that plaintiffs had already paid for it does not excuse O'Connor's obligation. While the provision does not assign responsibility for the payment, the clear import of the language places financial responsibility on O'Connor. The plaintiffs are entitled to a credit for this.
Next, the plaintiffs seek $17,166 under the breach of contract claim for improper framing of the kitchen ceiling which is one-third of the contract price of $51,500. They predicate this claim on the premise that " defendant properly framed door and wall but failed to properly frame the ceiling heights." The plaintiffs introduced into evidence photographs which purported to show deviations in the kitchen ceiling levels which plaintiffs attribute to O'Connor's defective work. The only evidence of the existence and source of this problem is from the testimony of the plaintiff, Sean Butler, who contrary to a statement in his brief, did not give a homeowner's opinion of the decrease in value of his home attributable to this condition. The plaintiffs complain that the court disallowed both the written estimate of the cost to cure the condition and the testimony of George Lasicki who was offered as an expert witness on the cost to cure. Very simply, Lasicki was precluded from testifying because he was never disclosed as an expert and his written estimate was excluded because its contents were clearly hearsay and the plaintiffs never sought to introduce it under the business record exception to the hearsay rule. Not only was there no evidence of the cost to correct the condition but there was no persuasive evidence that O'Connor caused the condition. The court accepts O'Connor's testimony that he used a level when installing the framing. The plaintiffs have failed to prove this claim by a preponderance of the evidence. In view of the foregoing, judgment shall enter for O'Connor on all counts of the plaintiffs' complaint except that the plaintiffs shall receive a credit for the cost of the building permit.
The court notes that this statement which is found in the plaintiffs' brief completely contradicts their claim that O'Connor failed to frame the doorway.
Plaintiffs made an additional claim in their brief that their property was valueless because of the inability to obtain a certificate of occupancy. The court is persuaded from the testimony of Michael Conklin that the lack of a certificate of occupancy is attributable to conditions, see McCahill v. Town and Country Associates, LTD., 185 Conn. 37, 41, 440 A.2d 801 (1981), over which O'Connor had no responsibility. He also testified that the city recognized the plaintiffs as general contractor and holds them responsible for the certificate of occupancy.
The photographs of this condition purport to show ceiling level deviations by use of a ruler. While there was no persuasive evidence of the cause of these claimed deviations, there was evidence that these deviations could have been caused by faulty sheetrock installation, improperly installed trim or previous natural settling of the building. Moreover, Michael Conklin, the city building inspector, in response to a question by the court, stated that his inspection included checking the framing visually to see if it appeared plumb and square.
O'Connor's Claims
O'Connor has counterclaimed seeking foreclosure of a mechanic's lien, breach of contract and in the alternative, unjust enrichment for the unpaid balance due him. O'Connor admits that he has received a total of $58,000 which he has allocated as follows:
1. Fixed Contract Price
$51,500.00
Check No. 174
$20,000.00
Check No. 207
$8,000.00
Check No. 214
$12,000.00
Total contract payments
$40,000.00
Balance Due on Contract Fixed Price
$11,500.00
$15,000.00
PDQ Plumbing demotion work
$4,500.00
Zygmont/P& T Environmental asbestos
Sweeney Flooring
$4,100.00
Cash received from Butlers
$13,000.00
Balance Due to Reimburse O'Connor
$
2, 000.00
3. Code Added and Extra Work
$15,000.00
Kitchen Beam and
Attic Access Stairway/Flooring
$1,275.00
Extra Windows/Doors/Trim Materials
$3,415.36
Labor for Windows/Doors/Trim Extras
$3,295.00
Extra Porta John and Dumpster costs
$1,360.54
Balance Due O'Connor for work
outside contract
$
4, 345.90
Total Amount Remaining Due O'Connor
$17,845.90
These are sums which O'Connor paid to tradesmen whom he obtained at plaintiffs' request who performed needed work outside the scope of the contract but which work was essential for phase 1. O'Connor did not seek compensation for this service but seeks reimbursement. At post-trial argument plaintiffs' counsel argued that O'Connor did not pay these tradesmen as he claimed because he did not produce any receipts. This assertion is patently false as the documentary evidence clearly proves. See Exhibits P, V, W, X.
" [I]n a foreclosure of a mechanic's lien, a contractor is entitled to the value of the materials that it furnished or the services that it rendered in the construction of a project." Intercity Development, LLC v. Andrade, 96 Conn.App. 608, 613, 901 A.2d 731 (2006), rev'd in part on other grounds, 286 Conn. 177, 942 A.2d 1028 (2008). The reasonable value of the materials and services can be proven by: (1) providing evidence that the contract price represents the value of a contractor's materials and services; Dreambuilders Construction, Inc. v. Diamond, 121 Conn.App. 554, 562, 997 A.2d 553 (2010); (2) demonstrating the contractor substantially performed such that the contract is the proper valuation of its materials and services; M.J. Daly & Sons, Inc. v. New Haven Hotel Co., 91 Conn. 280, 286-87, 99 A. 853 (1917); see also Intercity Development, LLC v. Andrade, supra, 96 Conn.App. at 614 (" [w]ithout a finding that the plaintiff substantially performed its contract, there can be no right to recover under the mechanic's lien statute with reference to the contract price"); or (3) submitting evidence of the cost to complete the work; see FCM Group, Inc. v. Miller, supra, 300 Conn. at 802-05. (Alternate citations omitted.) E and M Custom Homes, LLC v. Negron, 140 Conn.App. at 104, 105 supra .
Here, O'Connor has proved that he not just substantially performed but he completed performance in a workmanlike manner. He is therefore entitled to payment of the balance due under the contract, the balance due for monies advanced to other essential tradesmen and for the extra work performed, less the cost of the building permit. O'Connor is therefore awarded judgment on his first counterclaim in the amount of $16,472.29. Judgment of foreclosure is hereby entered on the mechanic's lien. In accordance with the prayer for relief prayed for in the counterclaim the court finds that it is fair and equitable that prejudgment interest be awarded at the rate of five percent per annum pursuant to G.S. § 37-3a from June 5, 2012 which is a date well beyond the date on which his contract was complete. DiLieto v. County Obstetrics & Gynecology Group, P.C., 310 Conn. 38, 74 A.3d 1212 (2012). TheThearing4westabiish the updated debt and form of judgment will held March 16, 2017 at 2:00 p.m. Judgment may enter for O'Connor on the operative counts of the complaint. The seven special defenses which the plaintiffs have interposed to the counterclaim have either been disposed of implicitly herein or have been abandoned because they have not been briefed, namely, accord and in satisfaction, arbitration, want of consideration, unclean hands.
While Sean Butler testified that he dismissed O'Connor from the premises at the end of May 2012 because he had not completed his contractual obligations, the other evidence in the case persuasively contradicts the claim of incomplete performance.
The undersigned will be away from January 21 until March 6.