Opinion
No. X01 CV 03 4004190
July 3, 2008
MEMORANDUM OF DECISION
I BACKSTORY
The court makes the following findings of fact by a preponderance of the evidence.
The plaintiff in D'Angelo Development Construction Corp. v. Cordovano, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 03 4004190, D'Angelo Development and Construction Corporation (D'Angelo Development), is a corporation with an office at 720 Tuckahoe Road, Yonkers, New York 10710. Leonard D'Angelo, (D'Angelo), a defendant in Sharp Company Homes, Inc. v. Cordovano, Superior Court, complex litigation at Waterbury, Docket No. X01 CV 02 4004186, is the president of D'Angelo Development.
The defendants in both D'Angelo Development Construction Corp. v. Cordovano, supra, Superior Court, Docket No. X01 CV 03 4004190 and Sharp Company Homes, Inc. v. Cordovano, supra, Superior Court, Docket No. X01 CV 02 4004186, Steven P. Cordovano (Mr. Cordovano) and Sarah M. Cordovano (Mrs. Cordovano) (collectively, the Cordovanos), are, as of the time of trial, the owners of real property located at 134 Highland Avenue, Norwalk, Connecticut (the property).
As of 1999, D'Angelo resided at 125 Highland Avenue, Norwalk, Connecticut, and the Cordovanos resided at 138 Highland Avenue, Norwalk, Connecticut.
In July of 2000, Mr. Cordovano sought out D'Angelo for the purpose of purchasing the property, which, at the time, was under contract for purchase by D'Angelo Development, and having D'Angelo Development build the Cordovanos a home on the property.
Prior to entering into any written agreement, D'Angelo and Mr. Cordovano met five or six times to discuss the purchase and sale of the property.
Before the land contract was signed on October 10, 2000, Mr. Cordovano, at D'Angelo's invitation, went to D'Angelo's father's home to discuss the proposed project. At that meeting, D'Angelo represented as to his background that he had built many projects including houses and shopping malls and he worked within his family's real estate business. D'Angelo also described his father's involvement in the business.
Neither before the land contract was signed nor at the closing on the land purchase on October 30, 2000, where the American Institute of Architects construction contract (AIA contract) was executed, did D'Angelo or D'Angelo Development provide to the Cordovanos (i) a copy of a registration showing that they were "new home construction contractor[s]" under the New Home Construction Contractors Act, General Statutes § 20-417a et seq.; (ii) a list of customers for whom new homes were constructed by D'Angelo Development or a notice directing the Cordovanos to contact former customers of D'Angelo Development; (iii) any notice of whether D'Angelo Development had a customer complaint policy or who would be the contact person in the event of a complaint; or (iv) notice as to whether D'Angelo Development would provide the Cordovanos a "hold harmless" for work done on the project.
The New Home Construction Contractors Act will be referred to by either the "act" or by its full name.
D'Angelo Development and the Cordovanos were represented by counsel throughout the property sale and negotiation of the contracts for the purchase of the land and construction of the home thereon by D'Angelo Development. D'Angelo Development was represented by Gary Lorusso, Esquire; the Cordovanos were represented by Scott Johnson, Esquire. Johnson drafted the initial contracts for the sale of the property to the Cordovanos and for the construction of a new home on the property by D'Angelo Development.
With respect to the construction contract, Johnson and the Cordovanos utilized a form contract from the American Institute of Architects. Johnson sent Lorusso, with a copy to the Cordovanos, draft contract documents, including general conditions to the AIA contract, on September 7, 2000.
As of September 7, 2000, the Cordovanos had not supplied any drawings to D'Angelo Development that were made by either an architect or designer.
The contract of sale of the land was signed by D'Angelo Development and the Cordovanos on October 10, 2000. The closing on the sale of the property occurred on October 30, 2000. The AIA contract was signed by D'Angelo Development and the Cordavnos on October 30, 2000.
Under the AIA contract, D'Angelo Development agreed to furnish materials and render labor in the construction of a new house on the property (the project) and the Cordovanos agreed to pay D'Angelo Development for all the costs of the work performed and materials purchased by D'Angelo Development, plus a contractor's fee equal to 20 percent of said costs. In other words, the AIA contract was a cost-plus agreement. The Cordovanos paid an initial deposit of $50,000 on the AIA contract.
There was a preliminary "estimate" in the amount of $578,700 attached to the land sale contract as Schedule E.
The rider to the land sale contract provides that the "Purchaser shall make best efforts to prepare and complete the plans and specifications therefor as soon as possible so that construction can be promptly commenced."
The rider to the AIA contract provides that "[n]otwithstanding any contrary provision contained herein, Owner shall be entitled to withhold an amount equal to zero 0% percent of each Application for Payment, said withheld amounts to be retained by owner until Final Completion and Final Payment (minus minor punch list), at which time owner shall pay to Contractor the aggregate withheld amounts minus the punch list moneys retained by Owner pursuant to the provisions of the Section below."
As of October 30, 2000, the Cordovanos failed to supply any construction drawings or specification books to D'Angelo Development in connection with the project as required by Article 1 of the AIA contract.
The Cordovanos independently retained William Scott Duffield (Duffield), an architectural designer, and his design firm, William Scott Duffield Architectural Design, to design the Cordovanos' home to be built by D'Angelo Development. At all relevant times, Duffield was not and never had been an architect or engineer licensed by the state of Connecticut or any other state. Duffield had begun discussing the project with Mr. Cordovano in the summer of 2000. On August 23, 2000, Duffield sent a letter to the Cordovanos that outlined Duffield's ideas for the construction of the home on the property. The letter did not contain any building specifications or any finish specifications. The Cordovanos and Duffield entered into an architectural design contract, dated September 8, 2000, in connection with the project.
The Cordovanos designated Duffield's firm, William Scott Duffield Architectural Design, as the architect in the AIA contract. Mr. Cordovano knew that Duffield was not an architect prior to the execution of the AIA contract. D'Angelo never inquired or otherwise determined whether Duffield was a licensed architect or engineer.
Duffield was not advised that the Cordovanos designated his firm as the "architect" under the AIA contract and did not participate in administering the AIA contract in connection with the project. Duffield was not consulted by either the Cordovanos or D'Angelo about formulating a budget in connection with the project.
Duffield did not retain or consult a structural engineer or a licensed architect in connection with his initial construction plans and documents. Members of Duffield's office, though not licensed engineers, performed engineering calculations in connection with the design documents and architectural design contract with the Cordovanos.
Neither D'Angelo nor D'Angelo Development was registered under the New Home Construction Contractors Act at the time the land contract was signed on October 10, 2000, or at the time of the closing on October 30, 2000. D'Angelo learned of the existence of the New Home Construction Contractors Act and the registration requirement from a city of Norwalk building official named Brad Hanlon on October 18, 2000, when D'Angelo pulled a permit for another job for a company with which D'Angelo was affiliated, called Westmere Associates, LLC (Westmere). D'Angelo Development received its New Home Construction Contractors Act certificate of registration on November 2, 2000.
On November 20, 2000, D'Angelo Development submitted the application for zoning approval and zoning compliance in connection with the project. Construction on the project began during the first week of December of 2000, at which time D'Angelo Development obtained the foundation permit. On December 5, 2000, the property's soil inspection and foundation were approved by the Norwalk building department and the certificate of occupancy for demolition was issued. D'Angelo Development applied for the superstructure building permit with the Norwalk building department on January 26, 2001.
Duffield provided certain construction drawings in early November of 2000. Duffield's roof plan, dated October 24, 2000, contained no dimension specifications. Duffield's foundation plan, dated November 2, 2000, did not provide specifications for footing drains and expansion joints. D'Angelo Development, without specifications, installed footing drains and expansion joints in the basement slab.
Duffield's site plan, dated October 15, 2001, did not provide information regarding dry wells, elevations, specifications for construction, specifications for how driveway substraight should be constructed and a drainage plan. Duffield did not prepare a drainage study; did not place dry wells in his plans; and did not consider topography, soil conditions, the grade and water at the site.
Duffield's plan initially called for a full basement and a partial basement. Later, during the course of work on the project, Mr. Cordovano decided on-site that he wanted a full basement throughout the structure. No revised plans were provided for a full basement throughout the entire structure, and D'Angelo Development made the change on-site without requiring adequate plans to be submitted.
With regard to changes that were made to Duffield's plans during the course of work on the project, there were no written change orders as required by the AIA contract. Furthermore, "costs" for change orders were reimbursed even though Article 8, § 8.1.8 of the AIA contract provided otherwise.
Although the AIA contract that was executed by the Cordovanos and D'Angelo Development refers to a "guaranteed maximum price" throughout the contract, there was never any price maximum memorialized in any form in connection with the project. The reference in Article %, § 5.2.1 of the AIA contract is noted as "N/A."
D'Angelo Development never provided applications for payment, invoices, check vouchers or any evidence of disbursements as required under Article 12 of the AIA contract. Conversely, the Cordovanos did not require of D'Angelo Development applications for payment or other evidence of disbursements prior to making payments nor did D'Angelo Development, the Cordovanos or Duffield ever use any schedule of values.
Mr. Cordovano never asked Duffield to perform the duties of an architect under the AIA contract. Duffield was not involved in payment requests during the course of the project, was not involved in evaluating requests for payment and did not prepare a schedule of values. Furthermore, Duffield never did see the AIA contract or know its terms.
Mr. Cordovano selected the first framing crew, Quality Construction (Quality). Quality framed the first floor walls and ceilings and the second floor walls, but experienced problems with the roof and tower. Quality left the project on or about March 15, 2001.
Duffield recommended the second framers, Sharp Company Homes (Sharp), a plaintiff in Sharp Company Homes, Inc. v. Cordovano, supra, Superior Court, Docket No. X01 CV 02 4004186, and Sharp was hired. On April 5, 2001, Sharp and the Cordovanos entered into a contract to finish the framing of the structure. D'Angelo signed the contract as "Builder" on behalf of D'Angelo Development. Sharp did not show up to the project site for three weeks after it was hired. Sharp also failed to provide an adequate number of workers for the project. Sharp was terminated by Mr. Cordovano.
In order to complete the framing work, interior and exterior trim and carpentry work on the project, D'Angelo Development recommended that the Cordovanos hire Jose Albert DaSilva. DaSilva and his crew commenced framing and roofing work on or about May 28, 2001.
DaSilva experienced problems with Duffield's drawings related to the tower and the roof framing plan and had discussions and meetings in the field with D'Angelo, Duffield and Mr. Cordovano concerning the support of the tower. DaSilva had to add headers that were not depicted on the plans submitted by Duffield to support the loads of the tower. DaSilva also added lolly columns to support structural beams. Duffield and Mr. Cordovano asked DaSilva to make changes in the field not depicted in the plans, including an extension to the soffits and changes to the overlay on the tower roof.
Duffield brought a structural engineer named John Harrington to the property to review the tower being constructed in accordance with Duffield's drawings. D'Angelo was present for Harrington's review of the site. D'Angelo brought an architect to the property to review the site to address Cordovano's concerns regarding the construction and structural integrity of the building.
In November of 2001, the Cordovanos moved into the home at the property, although the construction was not yet complete and the certificate of occupancy was not yet issued.
D'Angelo received Duffield's drawings for the interior trim in November of 2001, more than a year after the AIA contract was signed.
D'Angelo Development received its last payment from the Cordovanos in January of 2002 in the amount of $100,000. This payment was made in a lump sum without any application for payment submitted or any request for D'Angelo Development to provide any detail.
D'Angelo and the Cordovanos met in February of 2002 to discuss payment of the outstanding balance claimed by D'Angelo Development.
D'Angelo Development ceased work on the project on May 6, 2002. The following items were contracted for and paid for directly by the Cordovanos: appliances, kitchen cabinets, bath vanities, faucets, fixtures, tile and marble materials, landscaping, railings, the garage door and the underground sprinkler.
Mr. Cordovano hired the following contractors directly: the mason that installed the masonry above and below the mantle in the kitchen, Joseph Gulgis; the exterior painter, Nelson Ramirez; Sabella Electric; and the pizza oven manufacturer and installer from Vermont.
During the course of the project, D'Angelo was aware of many problems in the field and brought them to the attention of Mr. Cordovano and Duffield. D'Angelo would set up job meetings with Duffield, who would review the existing conditions in the field with D'Angelo and produce revised drawings so that D'Angelo and the subcontractors could continue to work. Mr. Cordovano was a part of many of these discussions.
D'Angelo Development did not meet its obligations to solicit bids from subcontractors as required under the AIA contract nor did it enter into written contracts with subcontractors as required under the AIA contract. Mr. Cordovano did not require any bid to be solicited nor did he require written contracts for the subcontractors.
D'Angelo kept no records of how he expended his time on his other home building projects called the Westmere and the Captain's Walk, his personal residence renovation and the Cordovano project, and, thus, has not substantiated through credible evidence how much time he expended supervising the Cordovano project.
D'Angelo and Mr. Cordovano were both aware that the AIA contract required that change orders were required as the plans for the Cordovanos were developed and modified, but D'Angelo, D'Angelo Development and the Cordovanos did not comply with the change order system set out in the AIA contract.
D'Angelo was aware that the AIA contract required D'Angelo Development to keep full and detailed financial records regarding the project, which was particularly important for the project because D'Angelo Development was being paid under a "cost plus" construction fee, and, therefore, neither D'Angelo nor D'Angelo Development had have the same incentive to control costs as would have been the case with a fixed price arrangement.
D'Angelo Development was responsible under the AIA contract to "verify all measurements" and it was responsible for corrections, and that if "additional drawings" were necessary, it was the responsible party to make such requests for same before any work was started. Notwithstanding D'Angelo Development's responsibilities, it did not fulfill its obligations under the AIA contract.
D'Angelo Development never established a schedule of progress for the project as required by the AIA contract.
D'Angelo Development was responsible to determine what plans the subcontractors should use, it was responsible to verify that those plans were adequate and it was responsible for supervising the subcontractors to the highest professional standard.
Although the Cordovanos complained, at trial, of loose sheetrock tape, wiggling toilets, scalding hot water from the pot filler and a prior flood in the kitchen of the home, these items did not appear in the punch list attached to the June 10, 2002 letter that Cordovano sent to D'Angelo Development complaining about D'Angelo Development's work.
The certificate of occupancy for the superstructure was issued by the Norwalk building department on July 18, 2002.
D'Angelo Development billed the Cordovanos the total sum of $1,217,523.31 for work on the project, of which D'Angelo Development claims $159,305.85 remains due and owing. The total amount of the Cordovanos' payments to D'Angelo Development, including subcontractor credits, is $1,015,727.77. The total amount the Cordovanos paid directly to contractors was $42,489.69.
On July 31, 2002, D'Angelo Development, in order to secure a balance of $72,606.59 it claims is due to it related to its contractor's fee under the agreement and costs it incurred directly under the agreement, filed a certificate of mechanic's lien against the property, duly signed and sworn to by D'Angelo, president of D'Angelo Development, with the town clerk of the town of Norwalk, which certificate was duly recorded in said land records in volume 4526 at pages 44-45, and served notice of same upon the Cordovanos.
On July 31, 2002, D'Angelo Development, in order to secure the balance of $86,699.26 it claims is due to it related to unpaid costs for the materials and services provided by its subcontractors under the agreement, filed a certificate of mechanic's lien against the property, duly signed and sworn to by D'Angelo, president of D'Angelo Development, with the town clerk of the town of Norwalk, which certificate was duly recorded in the Norwalk land records in volume 4526 at pages 46-47, and served notice of same upon the Cordovanos.
In 2003, the Cordovanos applied for a mortgage at which time their home was appraised for $1.5 million. The current tax assessment of the property is over $1 million.
Pursuant to General Statutes § 49-39, D'Angelo Development timely commenced the D'Angelo Development Construction Corp. v. Cordovano, supra, Superior Court, Docket No. X01 CV 03 4004190 action to foreclose the liens via a complaint dated July 3, 2003.
D'Angelo Development recorded two notices of lis pendens against the property on July 9, 2003.
After a hearing held pursuant to General Statutes § 49-37, the court, Lewis, J.T.R., by order dated November 25, 2003, ordered that the two certificates of mechanic's liens be deemed dissolved by the substitution of such mechanic's liens with those certain Travelers Casualty Surety Company of America's (Travelers) Mechanic's Lien Release Bonds in the sums of $72,606.59, known as bond no. 103986495, and $86,699.26, known as bond no. 104130417.
The motion to cite in Travelers as a defendant in D'Angelo Development Construction Corp. v. Cordovano, supra, Superior Court, Docket No. X01 CV 03 4004190 was granted on November 30, 2004.
At trial, D'Angelo presented his reconciliation to support his claim for money he claimed was due subcontractors, which was $86,699.26 — the amount given to support the mechanic's lien related to the alleged unpaid subcontractors. The reconciliation presented to the court was a spreadsheet showing subcontractors and totals without any supporting material to verify the amounts stated.
On his direct examination, D'Angelo testified and reiterated that the backup material to substantiate the subcontractors' claims was with him in court and that for each subcontract, a statement or invoice corresponding to the amount shown could be found.
On cross-examination, D'Angelo was unable to produce any statements or invoices to support the subcontractors' claims.
As to the claim for the $86,699.26 mechanic's lien filed by D'Angelo for the listed subcontractors, D'Angelo admitted at trial that no claims have been filed against him or D'Angelo Development by any of their subcontractors who last performed work on the project in 2001 or early 2002. Furthermore, Mr. Cordovano stated that no claims have been made against him other than one by Sharp and one other subcontractor.
At trial, D'Angelo produced no evidence of any authority to file the mechanic's lien on behalf of the subcontractors or any assignment to otherwise pursue claims on behalf of subcontractors.
The Cordovanos claim that when they moved into their new home on the property in November of 2001, they noted numerous deficiencies and problems including:
1. Poor drainage in the yard with pooling and pending in the front side and back yards;
2. Accumulation of water against the foundation due to grade;
3. Numerous cracks in the basement foundation;
4. Sinkholes in two places in the front yard;
5. The flooring in the kitchen buckled;
6. The flooring in the kitchen had uneven pitch;
7. The sump pump was not installed, resulting in flooding of the basement in May of 2002;
8. The window wells flooded and water ran into the basement;
9. The basement walls sweated and wicked with moisture;
10. Taping and paint in substantially all of the house peeled and buckled;
11. The driveway had to be torn up and reconstructed due to a zoning violation;
12. The backyard had no topsoil and grass seeded on rocks and debris;
13. The driveway showed cracks and heaving;
14. The ceiling on the screened in porch had leaks from the bathroom on the second floor;
15. A crack in the marble slate countertop in the kitchen;
16. The kitchen ceiling was sagging, and the kitchen floor near the fireplace sank near the fireplace stack;
17. The heating system operated erratically with heat at different temperatures throughout the house, and the water temperature was erratic and scalding;
18. The curve in the first floor hallway panel wall was asymmetrically constructed;
19. The plumbing fixtures, toilets and sinks were "wiggly" and not installed properly;
20. The plumbing fixtures and faucets were installed poorly and unevenly;
21. The master bedroom had a crack in the wall and the door to the porch jammed shut;
22. Sewage backed up from the toilets;
23. Water leaked into the kitchen from the kitchen door causing flooding;
24. A Cracked garage slab;
25. Various rooms had different and asymmetric baseboards and ceiling trim;
26. There were different shades and patterns in the exterior paint and shingles; and
27. The exterior paint was peeling and in extensive disrepair.
On January 5, 2007, the Cordovanos filed an expert disclosure of an architect named John Mastera. As of that date, Mastera had not seen the property and had not reviewed all of the drawings in connection with the project. As of January 5, 2007, Mastera rendered his opinion in this case based on seeing preliminary plans.
Mastera formulated his opinion regarding the project without (a) having seen the property or a complete set of construction documents and drawings; (b) having spoken to Duffield or the Cordovanos' previously disclosed expert, Peter Jennewein; (c) having knowledge of the amount of time D'Angelo spent supervising the project; (d) having reviewed the sworn deposition transcripts of D'Angelo, Mr. Cordovano, Duffield and Jennewein; or (e) knowing how many revisions there were to the plans.
II JOURNEY OF THE PLEADINGS
D'Angelo Development commenced the D'Angelo Development Construction Corp. v. Cordovano, supra, Superior Court, Docket No. X01 CV 03 4004190 action by complaint dated July 3, 2003, asserting claims for breach of contract, quantum meruit and foreclosure of the two mechanic's liens. On October 10, 2003, the Cordovanos filed an answer, special defenses and counterclaims.
In a complaint dated January 14, 2002, Sharp set forth claims against the Cordovanos and D'Angelo in Sharp Company Homes, Inc. v. Cordovano, supra, Superior Court, Docket No. X01 CV 02 4004186. On November 6, 2003, the Cordovanos filed their answer, special defenses and five counterclaims against Sharp. On October 18, 2004, D'Angelo filed an answer and special defenses to Sharp's complaint. On May 10, 2004, the Cordovanos filed an amended cross claim against D'Angelo in that action. On October 18, 2004, D'Angelo filed an answer to these cross claims, denying the essential allegations and asserting special defenses sounding in statute of limitations, comparative or contributory negligence, laches and collateral estoppel. Sharp subsequently withdrew its complaint against all of the defendants, and a default was entered against it at the commencement of trial with regard to the Cordovanos' counterclaims.
The trial court in D'Angelo Development Construction Corp. v. Cordovano, supra, Superior Court, Docket No. X01 CV 03 4004190, Lewis, J.T.R., by order dated November 25, 2003, ordered that the two mechanic's liens were to be dissolved by the substitution of the mechanic's liens with mechanic's lien release bonds, issued by Travelers. The Cordovanos sought to void the land contract and the AIA contract by filing an application by principal on a bond for declaration lien invalid (application) dated March 22, 2004, as to the lien in the amount of $86,699.26 on the ground that D'Angelo Development violated the New Home Construction Contractors Act. After an evidentiary hearing, the trial court, Hiller, J., in a decision dated September 2, 2004, denied the application and sustained the validity of the lien on the ground that the violations of the act did not relieve the Cordovanos of their contractual obligations. The Cordovanos then appealed that decision and the Connecticut Supreme Court affirmed Judge Hiller's decision. D'Angelo Development Construction Co. v. Cordovano, 278 Conn. 237, 897 A.2d 81 (2006).
On November 15, 2004, D'Angelo Development filed its amended complaint, which is the operative complaint in D'Angelo Development Construction Corp. v. Cordovano, supra, Superior Court, Docket No. X01 CV 03 4004190, alleging breach of contract, quantum meruit and an action on the bond against Travelers. On February 14, 2005, the Cordovanos filed an amended answer, special defenses and counterclaims in D'Angelo Development Construction Corp. v. Cordovano, supra, Superior Court, Docket No. X01 CV 03 4004190. D'Angelo Development filed an answer to the counterclaims, dated October 2, 2006, denying the essential allegations and asserting special defenses in D'Angelo Development Construction Corp. v. Cordovano, supra, Superior Court, Docket No. X01 CV 03 4004190. Thereafter, D'Angelo Development Construction Corp. v. Cordovano, supra, Superior Court, Docket No. X01 CV 03 4004190 and the Cordovanos' cross claims against D'Angelo in Sharp Company Homes, Inc. v. Cordovano, supra, Superior Court, Docket No. X01 CV 024004186 were tried before this court on July 10, 11, 12, 18, 20, 23 and 26, 2007, and September 24 and 26, 2007.
III LAW A Principles of Evidence
"It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006), quoting Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). "The determination of the credibility of the witnesses is a function of the trial court . . ." Welsch v. Groat, supra, 664.
"The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . ." (Internal quotation marks omitted.) Id., 666." `[I]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence.' . . . Russell v. Russell, 91 Conn.App. 619, 642, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). `In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.' . . . In re Kristy A., 83 Conn.App. 298, 316, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004)." Welsch v. Groat, supra, 95 Conn.App. 666-67. "The probative force of conflicting evidence is for the trier to determine . . ." (Internal quotation marks omitted.) Anderson v. Whitten, 100 Conn.App. 730, 740, 918 A.2d 1056 (2007).
B Breach of Contract Claims by D'Angelo Development (Counts One, Two, Three and Four); Breach of Contract Counterclaims by the Cordovanos (First, Second, Sixth and Seventh) in D'Angelo Development Construction Corp. v. Cordovano, supra, Superior Court, Docket No. X01 CV 03 4004190; and Breach of Contract Cross Claims by the Cordavnos (First, Second, Third, Fifth, and Sixth) in Sharp Company Homes, Inc. v. Cordovano, supra, Superior Court, Docket No. X01 CV 02 4004186"The elements of a breach of contract are `the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.'" Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004). To prevail on a breach of contract claim, the plaintiff must prove "(1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party and (4) damages." McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, 277 Conn. 928, 895 A.2d 798 (2006). "[A] breach of contract claim . . . requires proof by a preponderance of the evidence." Foley v. Huntington Co., 42 Conn.App. 712, 732 n. 7, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996), citing Waicunas v. Macari, 151 Conn. 134, 137, 193 A.2d 709 (1963).
This is a case where there was a mutual breach of the AIA contract and therefore none of the parties are entitled to enforce the AIA contract or any alternative claim related to the AIA contract. Therefore, neither the Cordovanos nor D'Angelo Development is entitled to recover damages. "[I]n some instances where both parties are at fault (or in default) neither may recover . . . Whether this doctrine is described as failure of consideration, failure to satisfy a condition precedent, or mutual breach of contract, it is clear that in proper circumstances a court may refuse to allow recovery to either party to an agreement because of their mutual fault, which in contract terms might be more properly described as mutual default . . . Westinghouse Electric Corp. v. Garrett Corp., 601 F.2d 155, 158 (4th Cir. 1979)." Efthimiou v. Smith, 268 Conn. 487, 496-97, 846 A.2d 216 (2004). See also 2 Restatement (Second) Contracts § 244 (1981).
"[M]utual assent to abandon an agreement can be inferred from attendant circumstances and conduct of the parties. Jazlowiecki v. Nicoletti, 34 Conn.Sup. 670, 672 [387 A.2d 1081 (1977)]." Efthimiou v. Smith, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 00 180898 (June 6, 2002, Rogers, J.), aff'd, 268 Conn. 487, 846 A.2d 216 (2004).
The evidence presented to the court at trial, as set forth in the court's findings of fact set out above, clearly demonstrates that both the Cordovanos and D'Angelo Development failed to perform their obligations under the AIA contract. Accordingly, neither the Cordovanos nor D'Angelo Development can be successful in an action to enforce a contract that was mutually breached. Furthermore, as the Cordovanos were in breach of the AIA contract, they cannot succeed in a cross claim sounding in breach of contract against D'Angelo.
Four counts of D'Angelo Development's operative complaint in D'Angelo Development Construction Corp. v. Cordovano, supra, Superior Court, Docket No. X01 CV 03 4004190 sound in contract or quasi contract theories: count one — breach of contract; count two — quantum meruit; count three — action on bond substituted for mechanic's lien subject to foreclosure; and count four-action on bond substituted for mechanic's lien subject to foreclosure. The Cordovanos' first counterclaim in D'Angelo Development Construction Corp. v. Cordovano, supra, Superior Court, Docket No. X01 CV 03 4004190 sounds in breach of contract, their second counterclaim sounds in breach of warranty, their sixth counterclaim sounds in fraudulent misrepresentation, and their seventh counterclaim sounds in the breach of covenant of good faith and fair dealing. The Cordovanos' first, second, third, fifth, and sixth amended cross claims against D'Angelo in Sharp Company Homes, Inc. v. Cordovano, supra, Superior Court, Docket No. X01 CV 024004186 sound in contract or quasi contract theories: first cross claim — breach of written contract, second cross claim — breach of implied contract, third cross claim — promissory estoppel, fifth cross claim — fraud, and the sixth cross claim — breach of covenant of good faith and fair dealing.
The standard of proof for fraudulent misrepresentation is the clear and convincing evidence standard, which is a stricter standard than the fair preponderance of the evidence standard. Kavarco v. T.J.E, Inc., 2 Conn.App. 294, 296 478 A.2d 257 (1984).
It is clear to the court that the Cordovanos, D'Angelo Development and D'Angelo proceeded as if there were no contract in place. The second A in AIA is there for a reason. The AIA contract is structured so that a system of checks and balances protect both the contractor and the owner(s). This system of checks and balances was not followed by the Cordovanos, D'Angelo Development or D'Angelo. Change orders were never used, all the subcontractors' work was performed without an adequate process of bidding the work, the accounting records are inadequate, the structure for payments set out in Article 12 of the AIA contract was ignored, namely the section relating to the retainage of 0 percent related to the contractor's fee found in § 12.1.7 of the AIA contract. Furthermore, the required retainage for the subcontractors of "not less than five percent (5%)" found in Article 12, § 12.1.8 of the AIA contract was not followed. Also, the payments were never approved by any third-party architect, the specifications were to be completed at a later date, the drawings were to be completed at a later date and while the rider to the AIA contract clearly provides that the owner can require "evidence reasonably satisfactory to [the] Owner" as a condition precedent to the making of any payment, no such evidence was requested until the project had gotten completely out of hand.
C Third Counterclaim (General Statutes § 47-117) and Fourth Counterclaim of the Cordovanos (General Statutes § 47-118) in D'Angelo Development Construction Corp. v. Cordovano, supra, Superior Court Docket No. X01 CV 03 4004190These counterclaims are based on breach of the express and implied warranties contained in the New Home Warranties Act, General Statutes, § 47-116 et seq. specifically § 47-117 (third counterclaim) and § 47-118 (fourth counterclaim). For purposes of General Statutes § 47-117, an express warranty is made by a "vendor" to a "purchaser." Similarly, for purposes of General Statutes § 47-118, certain warranties are implied, as a matter of law, "[i]n every sale of an improvement by a vendor to a purchaser The words "improvement," "purchaser," "real estate" and "vendor" are defined in General Statutes § 47-116. "The New Home Warranties Act is a remedial statute." Four Beaches Condo v. W.C. Brescia Plumbing, Superior Court, judicial district of New Haven, Docket No, CV 96 0384124 (May 23, 1997, Licari, J.) [ 20 Conn. L. Rptr. 442]. Remedial statutes "must be liberally construed in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 623, 642 A.2d 1186 (1994). The issue here is whom did the legislature intend to benefit when enacting the New Home Warranties Act.
The Cordovanos contend that they are within the class of persons protected by the New Home Warranties Act. This contention conflicts, however, with the plain language of General Statutes § 47-116, which clearly defines a "purchaser" as the "original buyer, his heirs or designated representatives, of any improved real estate . . ." General Statutes § 47-116 defines the term "real estate" as "any fee simple estate." "A fee simple interest with possession, of course, is a whole or unlimited interest embracing all the elements of complete ownership." Redevelopment Agency v. Norwalk Aluminum Foundry, 155 Conn. 397, 401, 233 A.2d 1 (1967). "Therefore, [b]y its terms, the [New Home Warranties Act] applies in situations where the vendor constructs the improvement on real estate owned directly or indirectly by him and conveys the improved real estate to the purchaser. The Act does not apply where a landowner contracts with a builder to construct a new home on real estate already owned by the landowner." (Emphasis in original; internal quotation marks omitted.) Bouchard v. Boyer, Superior Court, judicial district of New London, Docket No. 543089 (May 17, 1999, Hurley, J.T.R.); accord Greene v. Perry, Superior Court, judicial district of Windham at Putnam, Docket No. CV 97 0057091 (July 9, 1999, Sferrazza, J.) aff'd on other grounds, 62 Conn.App. 338, 771 A.2d 196 (2001), cert. denied, 256 Conn. 917, 773 A.2d 943 (2001); accord Jackson v. Fortunato, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 88 0096695 (July 31, 1996, Ryan, J.) ( 17 Conn. L. Rptr. 260); accord Pelletier v. Pelletier Development Co., Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 94 0463671 (March 14, 1996, Fineberg, J.); Blonder v. Heath, Superior Court, judicial district of Tolland at Rockville, Docket No. 45252 (September 26, 1990, Jackaway, J.) ( 2 Conn. L. Rptr. 518, 519-20).
There is no evidence that the Cordovanos purchased improved real estate from either D'Angelo or D'Angelo Development. Neither D'Angelo nor D'Angelo Development conveyed real estate containing the newly constructed improvement to the Cordovanos. Rather, the dwelling was constructed on real estate already owned by the Cordovanos. Therefore, the Cordovanos do not qualify as a "purchaser," as that term is defined in § 47-116.
"Where the legislature has specifically defined an operative term used within a statute, we are bound to accept that definition; Plasticrete Block Supply Corporation v. Commissioner of Revenue Services, 216 Conn. 17, 27, 579 A.2d 20 (1990); unless to do so would create an irrational result that could not have been intended by the legislature." Weinberg v. ABA Vending Co., 223 Conn. 336, 349, 612 A.2d 1203 (1992). Limiting the word "purchaser" in accordance with the definition in § 47-116 does not create an irrational result that could not have been intended by the legislature. The legislature could rationally have concluded that property owners who, in effect, purchase real estate and choose to act as their own general contractors can protect themselves by their own written contracts. Indeed, that is what the Cordovanos did with their contract with D'Angelo Development. Therefore, the Cordovanos cannot prevail in any action based on the New Home Warranties Act.
D Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Claims by the Cordovanos (Eighth Counterclaim in D'Angelo Development Construction Corp. v. Cordovano, supra, Superior Court, Docket No. X01 CV 03 4004190 and Seventh Cross Claim in Sharp Company Homes, Inc. v. Cordovano, supra, Superior Court, Docket No. X01 CV 02 4004186)In the eighth counterclaim and the seventh cross claim the Cordovanos allege that neither D'Angelo (cross claim) nor D'Angelo Development (counterclaim) was registered under the New Home Construction Contractors Act, General Statutes § 20-417a et seq., when the AIA contract was entered into on October 30, 2000. Therefore, according to the Cordovanos, both D'Angelo and D'Angelo Development are in violation of the New Home Construction Contractors Act, which is a violation of CUTPA. D'Angelo Development obtained the requisite certificate on November 2, 2000, three days after the signing of the AIA contract. D'Angelo Development began the construction after having received the certificate of registration. Our Supreme Court in D'Angelo Development Construction Co. v. Cordovano, supra, 278 Conn. 237, 251 concluded that "holding noncompliant contracts unenforceable under the [the New Home Construction Contractors] [A]ct [was] unwarranted." This decision did not address the application of General Statutes § 20-417g.
General Statutes § 20-417b(a) requires that "No person shall . . . hold himself or herself out as a new home construction contractor unless such person has been issued a certificate of registration by the commissioner in accordance with the provisions of sections 20-417a to 20-417j, inclusive." (Emphasis added.) General Statutes § 20-417g states that "A violation of any of the provisions of sections 20-417a to 20-417j, inclusive, shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b." (Emphasis added.)
The court finds by the more credible evidence that D'Angelo did hold himself out as a new home construction contractor before he or D'Angelo Development had been issued a certificate of registration.
However, in order for a claimant to prevail in a CUTPA action, the claimant must show, as per General Statutes § 42-110g(a), that he suffered an "ascertainable loss" of money or property as a result of the prohibited act. E.g., Fink v. Golenbock, 238 Conn. 183, 212-13, 680 A.2d 1243 (1996). "[T]o prevail in a CUTPA action, a [party] must establish both that the [other party] has engaged in a prohibited act and that, `as a result of this act, the [first party] suffered an injury. The language `as a result of' requires a showing that the prohibited act was the proximate cause of a harm to the [first party]." (Emphasis in original; internal citations omitted.) Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 306, 692 A.2d 709 (1997).
Having found that D'Angelo did hold himself out as a new home construction contractor before he had been issued a certificate of registration which by law, constitutes a CUTPA violation, the court must ascertain whether or not the Cordovanos suffered an ascertainable loss of money or property, and if so, any actual damages, as a result of D'Angelo's failure to have the certificate of registration when he held himself out to be a new home construction contractor. The Cordovanos have failed to prove any ascertainable loss or any quantifiable damages proximately caused by D'Angelo not having the required registration. The Cordovanos were never misled as to the real identity or address of the person conducting business with them. There is no basis for finding that D'Angelo was attempting to conceal his identity. The court concludes that the Corodovanos did not suffer any ascertainable loss as a result of the failure of D'Angelo to have the requisite certificate of registration when he held himself out as a new home contractor. Therefore, the Cordovanos are not entitled to recover under CUTPA claims either against D'Angelo or D'Angelo Development.
E
Negligence Claims by the Cordovanos (Fifth Counterclaim in D'Angelo Development Construction Corp. v. Cordovano, supra, Superior Court, Docket No. X01 CV 03 4004190 and Fourth Cross Claim in Sharp Company Homes, Inc. v. Cordovano, supra, Superior Court Docket No. X01 CV 02 4004186)
In State v. Maximus, Superior Court, judicial district of Hartford, Docket No. CV 07 5015239 (June 4, 2008, Hale, J.T.R.), the plaintiff, the state of Connecticut, filed a three-count complaint against the defendant, Maximus, Inc. (Maximus). Count one alleged a breach of contract and count three alleged negligence, and the defendant filed a motion to strike both counts one and three. The ground for the motion to strike count three was that the complaint did not allege that the defendant breached any duty aside from its contractual duties. With regard to count three, the court stated: "The court is in agreement with the defendant that the third count should be stricken because it fails to allege any duty beyond that which is imposed on Maximus by the contractual duties due to the state. The essential elements of a cause of action in negligence are (1) duty (2) breach of that duty (3) causation and (4) actual injury. A party may be liable in negligence for the breach of a duty that arises out of the contractual relationship. A contract may create a state of things which furnishes the occasion of a tort so that negligent performance of a contract may give rise to an action in tort, if the duty exists independently of the performance of the contract. Marx v. McLaughlin, Superior Court, [j]udicial [d]istrict of New London, Docket No. CV [00 0556383] (July 3, 2001, Corradino, J.)]. To establish a negligence claim a plaintiff must allege that the defendant owes some duty imposed by law, i.e., a duty other than imposed by the parties' contract. Gazo v. Stamford, 255 Conn. 245, 263 [ 765 A.2d 505] (2001). The court fails to see any duty imposed upon Maximus and/or [its subcontactor] except the duty to complete the contract correctly. Failure to perform properly would result only in a violation of the contract. There was no other duty owed, any other organization or person aside from the other party to the contract." The court in State v. Maximus, supra, Docket No. CV 07 5015239 went on to strike the negligence count. For the same reason that the court in State v. Maximus struck the negligence count, this court finds that the Cordovanos' negligence counts cannot stand against either D'Angelo Development or D'Angelo.
IV CONCLUSION
In conclusion, the court finds that none of the parties are entitled to recover on any of their claims, counterclaims, and/or cross claims as set out previously with the exception of the Cordovanos' counterclaims in Sharp Company Homes, Inc. v. Cordovano, supra, Superior Court, Docket No. X01 CV 02 4004186.
With regard to the Cordovanos' counterclaims against Sharp in Sharp Company Homes, Inc. v. Cordovano, supra, Superior Court, Docket No. X01 CV 02 4004186, a default was entered against Sharp at the commencement of the trial; therefore, the court finds in favor of the Cordovanos with regard to those counterclaims. A hearing in damages with respect to the Cordovanos' counterclaims against Sharp will be held when claimed by the counterclaim plaintiffs, the Cordovanos.