Opinion
HHDCV166065073S
06-05-2017
William Moschella v. 405 Deercliff Partners, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION GRANTING SUMMARY JUDGMENT
Thomas G. Moukawsher, J.
William Moschella wanted to purchase a house he rented from 405 Deercliff Partners. The house needed work. The parties made an agreement about that work. The agreement said 405 Deercliff would give Moschella 48 hours notice before starting any major work. It also said that if Moschella thought 405 Deercliff hadn't sufficiently repaired or replaced an item he thought defective or damaged that the parties should meet within 48 hours and try to work out their differences. If this failed, the agreement said Moschella and 405 Deercliff would agree on an engineer or architect, the dispute would be submitted to that person, and that person's decision would be " binding on the parties with respect to this dispute."
Moschella thought the work insufficient but didn't invoke this contract dispute procedure. He sued instead. Defendant 405 Deercliff moves for summary judgment saying that the dispute procedure barred Moschella from coming to court without resorting to it.
There is no basis for parol evidence here. The dispute provision plainly applies on its face. Everything Moschella is suing for is derived from his claim that 405 Deercliff didn't get the promised work done properly and has met with 405 Deercliff's insistence that the work was done right and on time. Because what Moschella asks for--return of security and option deposits, environmental certification, the benefits of insurance proceeds--are consequential damages flowing from failure to do repair and replacement work as promised, they are all plainly embraced by the dispute provision.
Moschella urges the court to find that 405 Deercliff waived the provision by not raising it until approximately 15 months into the litigation. But it is not as though this case has been to trial or is on the eve of trial. It is hardly one of the court's older cases. And the parties haven't even engaged in expert discovery. Indeed, the first answer 405 Deercliff filed in the case was only five months ago. None of these circumstances smacks of the kind of imputed waiver Moschella relies on as found in Appellate Court cases like the 2011 case of Mattie & O'Brien Contracting Co. v. Rizzo Construction Pool Co . and the 2009 case of Grey v. Connecticut Indemnity Services, Inc . In both of those cases, the proceedings had gone on far longer and both involved either the beginning of trial or the eve of trial. The first trial date scheduled in this matter is several months away, and the parties have engaged in only modest pleading and discovery work. Therefore, on the undisputed facts, no waiver can reasonably be found.
112 Conn.App. 811, 815-16, 964 A.2d 591.
Moschella also tries to read the notice of work provision as requiring some notice under these facts that somehow estops 405 Deercliff from enforcing the dispute procedure. The unambiguous words in the agreement don't support this. First, the provision plainly doesn't apply to giving notice about work that Deercliff doesn't believe is necessary. Second, it's undisputed that Moschella complained about specific items, Deercliff immediately said it would fix them, and Moschella is simply unhappy with what was done and wants out of the deal.
None of these circumstances suggest anything that would allow Moschella to circumvent the dispute procedure. Had he used it and been found justified in his complaints, Moschella would have arrived at his desired end. It would be clear that 405 Deercliff, not Moschella, had breached its obligations under the contract and then Moschella might demand back his deposit and seek other relief. The problem is that the contract unambiguously says that the decision about whether the work was done as required must proceed any such demand, and that decision was committed to a neutral expert.
As the Supreme Court held in 1972 in Luttinger v. Rosen, " [a] condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance . . . If the condition precedent is not fulfilled the contract is not enforceable." Unlike the provision considered in 1980 by the Supreme Court in Multi-Service Contractors, Inc. v. Vernon, the provision in this case is expressly " binding" on the parties, so here it is plainly at least a condition precedent to litigation by necessary implication, not merely an option for the parties' convenience. Moschella may not come to court to enforce his agreement with 405 Deercliff without following the agreed dispute procedure. Any other ruling would mean the dispute procedure would be meaningless. Because Moschella is not entitled at this point to sue for damages under the contract, 405 Deercliff is entitled to summary judgment.
181 Conn. 445, 435 A.2d 983.
Summary judgment is granted to 405 Deercliff on Moschella's claim. There is a counterclaim and that will go forward. If Moschella exhausts the dispute procedure within a reasonable time and seeks to replead on some appropriate basis, the court will allow it.