Opinion
No. CV03-0475083 S
September 9, 2004
MEMORANDUM OF DECISION
In this case the plaintiff company was hired to do various types of work on a commercial building in New Haven. The contract price for the work was over $28,000. As the work progressed the defendant and/or his wife, an architect, became increasingly dissatisfied with the quality of the work being done and terminated the plaintiff. The plaintiff has not sued in contract with reference to the contract price but sues in quantum meruit for the value of material and labor for which it has not been paid.
The defendant in turn has denied the plaintiff's claim and has filed a counterclaim stating the services rendered by the plaintiff were defective and done in an unworkmanlike manner; also he says the materials supplied were not those called for in the plans or up to code. The defendant then says he "will be obliged to incur costs to remedy plaintiff's mistakes."
The case was tried to the court. The law on quantum meruit is set forth in Shapero v. Mercede, 77 Conn.App. 497, 504 (2003). There the court quoting from another case, said: ". . . the measure of damages in quantum meruit is the value of the services rendered . . . Quantum meruit literally means as much as he has deserved." Id. p. 504.
At the following page the court said: "Centered on the prevention of injustice, quantum meruit strikes the appropriate balance by evaluating the equities and guaranteeing that the party who has rendered services receive a reasonable sum, for those services."
On the other hand the court went on to say: "It is axiomatic that the equitable doctrine of quantum meruit may not be invoked to permit parties to retain or recover undeserved windfalls." The last comment emphasizes another principle that must be applied in cases asserting a claim of this type and also defines the ambit of the counterclaim which the defendant can appropriately make. Although made in a contract setting the following observation applies here in a quasi-contractual context.
Failure to comply with this implied duty to perform in a skillful and workmanlike manner may not only defeat recovery but may entitle the other party to damages resulting from the unskillful and unworkmanlike performance.
17A Am.Jur.2d, "Contracts," § 627.
To evaluate a quantum meruit claim in a building improvement case it seems to the court that the original agreement or contract must be examined if a windfall for the contractor is to be avoided. On the other hand a valid claim for materials and labor cannot be equitably denied where opposition to such a claim is based on quality standards as to material or work higher than those agreed to by the parties.
What the parties expected the scope of the work to be done under this contract is set forth in bareboned fashion in two documents — a "proposal" from the defendant and certain "specifications" printed on a blueprint of the house. Some of the "specifications" do not have any bearing on the matters undisputed between the parties.
The parties seem to agree that the plaintiff's claims are set forth in an exhibit entitled "Breakdown of Labor and Materials" which lists eleven categories of labor or material as to specific jobs on the building. The defendant's counterclaims can also be discussed as arising out of some of these eleven job areas.
In this "breakdown" document, the subtotal for labor and materials for all eleven separate jobs is $5,368. There is then a "grand total" of $6,870.04 which represents the plaintiff's full claim. But this $1,502.04 increase over the base claim of $5,368 is, at least to the court, confusing. It includes something called an "administrative fee" for the defendant company which was never explained at trial or in the briefs; there is a 10 percent charge for overhead again unexplained and not supported by testimony. Also there is 5 percent listed for profit; as to this profit issue there is no indication as to how it relates to a quantum meruit claim or whether such a profit percentage comports with industry norms or even the usual profit margins of this company. The court is not saying items such as these cannot be made under a quantum meruit theory especially as regards overhead and administrative costs engendered in supplying services or material, but there has to be some testimony on these matters just as there must be and has been on the other specific claims of the plaintiff.
A.
The court will now review each of the eleven areas of work referred to in the breakdown list which sets forth the various claims. The court will first discuss those items for which it concludes the plaintiff ought to be compensated. Items 1 and 3 seek reimbursement for the labor involved in removing the front and back doors and a dumpster charge. The defendant presented testimony that these items were in fact never removed from the job site and that also raises a question as to the basis of the $50 dumpster charge for each of the doors. But there was testimony presented by the plaintiff which was uncontroverted that the subject building's yard was too small to accommodate a dumpster and the dumpster charge noted in the breakdown list was for a dumpster rented on the plaintiff's property to accommodate the doors. The job was terminated only two weeks after it began, this is not a situation where failure to remove the doors interfered with the ongoing operation of a functioning business or even interfered with the repair work being done under the contract. Simply put the plaintiff was not given a reasonable chance to remove the doors and no testimony was presented to indicate the labor charges to remove the doors or dumpster charges, given the plaintiff's explanation, were exorbitant or unreasonable. Therefore as to items 1 and 3 the plaintiff should be reimbursed for $300 in labor costs and $100 for the dumpster fee for a total of $400.
Item 11 is a charge of $250 to power wash the front of the building. The architect who testified for the defendant said it was not completed as did a Mr. Campbell, a contractor testifying for the defendant. Campbell said that portion not done ran from the peak of the roof to the newly installed window which area is depicted on the blueprint submitted into evidence. This, however, is a minor portion of the power washing job and even if the testimony presented by the defendant is accepted it is difficult to understand why the whole power washing job would have to be repeated just because a relatively minor area was not treated. Mr. Hill, the plaintiff's owner and Mr. Coppola, its contractor, both testified the power washing was completed but did not offer much detail beyond that or specifically rebut Campbell's testimony as to the specific area he said was not done. The court concludes power washing the whole facade can be done at a reasonable price of $250 but based on the rough percentage of the facade claimed not to have been done the court will reduce the plaintiff's claim to $200.
The power washing work also has given rise to a counterclaim based on damage allegedly caused by the unworkmanlike way in which the power washing was done. Mr. Campbell testified that as a result of the power washing, debris accumulated on the roof was not removed. Because of this the drain clogged and water backed up inside the building. Campbell testified that this damage would have to be repaired. A total estimate of $5,400 was submitted by Mr. Campbell and introduced into evidence for the work to be performed for repair of the entire building. However, this is not helpful on that portion of any repair work needed to repair the just-mentioned water damage. It lists costs from the front and back door, replacement of the steps and railings, the clapboard used to cover the opening on the side of the building. All it says about power washing is "4. Front of storefront was not power washed. To be redone." The proposal does not even break down how much of the $5,400 is attributable to repairing any water damage. In his testimony Campbell did say that it would cost $2,300 to $2,400 to repair what was done on the front and back door. The front porch would cost about $1,500 and proper clapboarding over the opening on the side would cost $1,100. All this amounting to $4,900 to $5,000 would leave $400 to $500 for the power washing which had to be "redone." But in his testimony Campbell said to redo the power washing would cost about $200. Does that mean repair of water damage would amount to $300 or $400? But Mr. Campbell was testifying off the $5,400 proposal which does not even mention water damage. The court has no reason to doubt Mr. Campbell's testimony as to water damage but it cannot award damages based on speculation.
Another part of the job involved installing a window on the left front side of the house. The claim for this work is set forth in items 5 and 6 on the breakdown list. The court concludes that the plaintiff should receive the full amount listed in item 5 for cutting and opening for the window and disposing of the excess. This amounts to $200. Item 6 represented the charge for actually installing the window $320 for labor and $295.50 for materials — "window, framing lumber and shims." The defendant's architect said the window was fine but the trim overlapped the "facial board" running along the sloping roof. The specs called for this new window to be aligned with the window on the other side of the building. What the court finds confusing about this claim is that, during cross examination of Mr. Coppola, defense counsel introduced Exhibit F which Coppola said is the window he put in. But that photo shows the overlapping but oddly enough seems to be a window on the building's right side.
In any event assuming there was overlapping, even the defendant's architect said the problem is not with the window or framing just with the trim. Therefore the cost to remove the present trim and install new trim would appear to be de minimis. The court cannot even conclude it would be necessary to purchase new trim as opposed to cutting it back. Mr. Campbell did not refer to the cost of doing any such work in his proposal or in his testimony. Therefore the court will award the full amount of the costs listed in item 6, $615.50.
The final item which, at least to the court, does not present great difficulty is item 7 — remove and dispose deteriorated wood, entrance, stain, landing, and railing. This cost is $300 and, again from the court's perspective, does not appear to be contested in the testimony.
The court will now discuss the remaining five items which present some problematical issues.
Item 10 reflects labor and material charges to cover placing of clapboard on the side of the building. The charge for this is $320 for labor and $120 for material. Mr. Coppola described this task as closing a window on the side of the house. His job he said was not to do this work in such a way that it would appear that no window was ever there in the first place; he said he was not told to do that. That may be true but it really misses the point of contention. A quantum meruit theory of recovery requires that work or materials for which compensation is claimed must be done in a workmanlike manner. After hearing all the testimony, from Coppola and Mr. Campbell, the court believes that the clapboard should have been "feathered" or otherwise placed so as to prevent the elements leaking into the structure. When Coppola was asked this question directly he simply avoided it by saying we were not asked to do that — "we were asked to fill the hole." A general request to do a specific job carries with it the assumption that what is to be done will comply with industry practice and will be done in a workmanlike manner. Agreements between parties whether oral or written should be interpreted in a reasonable way especially if the economic waste of having to do things over is to be discouraged. Coppola may not have been told specifically how to put in the clapboard but there is no evidence either that he ever brought up the fact that the way he proposed to do the job would create leakage problems — the whole object of "covering up the hole" was presumably meant to avoid such a problem from a common-sense perspective. Nor is there any evidence that doing this job in the right way would have entailed great extra costs on the contract price or that like the front and back door situations, which will be discussed shortly, that prior known conditions limited the reasonably expected ambit of the work to be done. In any event the court will not award labor and material cost for item 10.
The damage award requested by the defendant in the counterclaim as to this aspect of the job should be limited to the cost of removing the clapboard installed by the plaintiff; that is the only theory of the counterclaim — cost to remedy the plaintiff's errors or poor workmanship. But the defendant never specified what portion of the charge to do the job correctly would be attributable to removal and disposal of the clapboard; the court cannot equate it with the plaintiff's cost to put in the clapboard covering. The court awards damages on this aspect of the counterclaim in the amount of $100 which equates with other removal and disposal costs on the plaintiff's "breakdown" list. As to any of the defendant's claims the court will not award damages based on what it would cost the defendant to complete the work as allegedly agreed to by the parties. That is not what is requested in the counterclaim, is really a breach of contract theory and would result in a windfall to the defendant.
Item 8 was a matter of some contention between the parties. It represents labor and material to "install pressure treated wood, entrance stair, landing, and railing. The defendant raises two main contentions (1) the railing did not meet code requirements; and (2) the risers (between the stairs) were uneven. There is no direct testimony that the latter complaint was a code violation. But it does not seem to be disputed that the railing as installed did not meet code requirements. Again it is not acceptable for the plaintiff to say that it was not specifically asked to meet code requirements or to put in a railing of a particular height. By definition workmanlike performance requires compliance with city codes especially when they involve safety in commercial buildings.
The objection to the risers, however, misses the mark. Obviously work on this aspect of the job was not completed but the job was terminated so the plaintiff could not wrap the post, align the treads (whatever that means), or align them with the edge of the existing platform (see architect's testimony). The risers are claimed not to be of the same height but Exhibit G which pictures them does not to this viewer present such disparate height as to present a safety problem absent expert testimony. There are only five steps, the top riser is the only one of noticeably reduced width, the middle three seem of the same width, and the bottom riser seems slighter under but it is difficult to tell even that from the photograph.
The only portion of this item 8 work that has not been done in a workmanlike manner is the railing. The plaintiff is not entitled to receive compensation for the materials and labor involved in installing the railing and the defendant will be required to remove it. The railing represents 1/3 of the removal work listed in item 7 and 1/3 of the installation work in item 8. Therefore the court will award $100 in damages to the defendant as the cost of removing the railing installed by the plaintiff. But the court will award to the plaintiff 2/3 of the labor and material cost in item 8 which amounts to $462.50.
The remaining items in dispute on the breakdown list are item 4, labor and material for installing a new back door; item 9 for repairing back door sill and floor, the breakdown list reads as follows: "repair back door sill and floor (deteriorated beyond repair)"; item 2 install a new front door — lock set and hinges.
Item 4 (back door) for materials lists door, lock, hinges, shims, screws. Item 2 (front door) lists the same for materials.
As to item 2 and the front door the chief items of complaint seem to be the lack of weather stripping, use of a low-end lock not appropriate for a commercial establishment and lack of a strike plate. There seems to be no complaint with the door itself. Mr. Coppola testified that the front door was not aligned but in order to do that the whole frame would have to be replaced which was not part of the agreement. The specs and proposal do not mention any such work as being agreed to by the parties. Also as noted the thrust of the defendant's witness Mr. Campbell was that the front door as installed was serviceable as long as the items previously noted were taken care of — new lock, strike plate, weatherstripping. The breakdown list per item 2 does not indicate any charge for a strike plate and the inadequate lock installed according to Campbell only cost $7 which amount should be deducted from cost of material. As to item 7 the plaintiff should be awarded $350 for labor and $618.50 for material. There is nothing the court heard in the testimony which would indicate that the manner in which the front door was installed made the installation of weather stripping necessary — or that the cost of installing weather stripping would be increased. The court will not award damages, therefore, the installation of the front door.
The back door presents much more in the way of difficulties for the court. As to item 9 which involved the repairing of sills and floor there has been nothing presented by the defendant that indicates this work and the materials to do it were not justified. The plaintiff should be awarded labor and material costs of $757.75.
As to the actual installation of the back door, however, the testimony of the architect and especially Mr. Campbell was persuasive. It is true that the proposal and specifications taken together do not indicate anything more than the installation of the back door. But it seems to the court when the door as installed would be so inadequate for the accomplishment of its purposes the proper thing to do as Mr. Campbell seemed to suggest at one point is to go back to the owner and say given the deteriorated condition of the frame etc. merely installing the door would not be appropriate. Mr. Campbell said to take care of the situation a whole new door system would have to be installed. The court has no idea as to whether such a system could be acquired without having to get a new door. But the burden is on the plaintiff to prove this particular claim so under all the circumstances the court will not award any of the claims for labor and material in item 4.
As to any damage claim of the defendant as asserted in the counterclaim, regarding the back door, the court concludes it suffers from the same problem as other aspects of the counterclaim. The counterclaim as set forth is simply one for damages caused by poor workmanship and use of materials not called for in the plans or up to code. Only the stair railing is not up to code; the materials are not defined adequately in the specs or the proposal. The poor workmanship as to the back door will not require any added expense to the defendant beyond putting in an appropriate back door properly which has to be done anyway. The only "damages" the defendant is entitled to regarding the back door is the expense of removing and disposing of it so the job can be initiated all over again. The court will award the defendant $200 for this purpose in accordance with item 3.
B.
The quantum meruit claim has been advanced in the posture of an attempt to foreclose on a mechanic's lien. The costs that may be awarded under § 52-249 upon foreclosure of a lien present problems for the court which will perhaps have to be addressed in further argument. The court has really up to this point only been trying the validity of the underlying quantum meruit claim and the counterclaim.
The court adopts the position of Judge Freedman in Precision Electric Corp. v. Etemadfar, 37 Conn. L. Rptr. 184, 2004 Ct.Sup. 8678 (Stamford J.D., CV03-0193723). Judge Freedman referred to a case decided by Judge Karazin who noted that § 52-249 "does not provide in every foreclosure of a lien attorneys fees are awarded. Section 52-249 says:
. . . (a) the plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorneys fee, as if, there had been a hearing on an issue of fact . . . (Emphasis added.)
This statutory language spells out the two circumstances wherein attorneys fees may be obtained and the underlying breach of contract action is not one of them.
Moreover, Darien Asphalt Paving, Inc. v. Giordano, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV90 0107529, 24 Conn. L. Rptr. 267 (March 24, 1999, Lewis, J.), holds that "[a]ttorneys fees should be limited to the time expended in connection with the actual foreclosure proceedings themselves."
However in Repaci v. McPike, Superior Court, judicial district of Stamford/Norwalk at Stamford (Docket No. CV 970161745 (June 23, 1999, D'Andrea, J.), the court citing the Darien Asphalt Case, held that: "the amount of such [attorneys] fees should be set by the court at the hearing on the type of foreclosure, setting of a sale day or of law days, and the awarding of other costs. Whether attorneys fees should be awarded for the trial of the underlying contract action is a matter which should be determined by the foreclosure judge . . . The plaintiff should claim the matter for the foreclosure short calendar for that purpose.
The Appellate Court has since adopted the tone of Repaci v. McPike, supra, Superior Court, Docket No. CV 97 0161745: "Section 52-249(a) mandates that the plaintiff in a foreclosure action shall be allowed reasonable attorneys fees when there has been a hearing as to the form of the judgment during the foreclosure action . . . We therefore hold that the court in the foreclosure action must determine whether a party is entitled to attorneys fees pursuant to § 52-249 that were incurred in the litigation of the underlying action." Original Grasso Construction Co. v. Shepherd, 70 Conn.App. 404, 419, 799 A.2d 1083, cert. denied, 261 Conn. 932, 806 A.2d 1065.
It could thus be argued that the issue of attorneys fees must be referred to the foreclosure calendar; that is what Judge Freedman decided. Or query would the claim for attorneys fees be inappropriate if the defendant were to adopt the court's decision and tender the amount of the judgment the court has decided upon to the plaintiff?
In any event the court will set the matter down for further argument on this issue if the parties so desire.
Corradino, J.