Opinion
CV136036909S
05-25-2017
Richard Viola v. J.S. Benson dba J.S. Benson Woodworking & Design and J.S. Benson Woodworking & Design, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Sybil V. Richards, J.
This matter arises from a breach of contract action filed by the plaintiff property owner against the defendant contractors (hereinafter referred to in the singular as the " defendant") involving a home construction project. The court heard this matter as a hearing in damages on March 13, 2017. The following facts are relevant to the court's disposition of this matter. According to the plaintiff's amended, three-count complaint dated September 1, 2016, the parties entered into an agreement on or about November 28, 2005 for certain services and materials to be performed or acquired or stored, as the case may be, by the defendant in connection with the defendant's installation of 71 glazed windows and doors at the plaintiff's property located at 23 Joshua Lane, Lyme, Connecticut for $200,507. Subsequently, the plaintiff also authorized the purchase and delivery of about 6, 600 board feet of Red Louro lumber at a cost of $23,958 and another container of lumber for an additional price of $24,000. Pursuant to the terms of the contract, the plaintiff also alleges that he paid the defendant $111,420.80 toward the contract price but the defendant failed and neglected to complete the project or return the lumber that the defendant retained despite the plaintiff's repeated requests. Additionally, the plaintiff claims that he made payments to the defendant from 2005 to 2012 for the storage of said lumber and that the defendant also attempted to unilaterally change the parties' contract to shift the responsibility for storage of the lumber to the plaintiff.
In the operative pleading, the plaintiff alleges breach of contract (count one) by the defendant, CUTPA and other statutory violations (count two) by performing construction services without a state license, engaging in unfair or deceptive trade practices and statutory theft (count three) by refusing to return all monies paid in violation of General Statutes § 52-564. In his claims for relief, the plaintiff is seeking compensatory damages, treble damages under common law and punitive damages under common law, General Statutes § § 20-417d(d)(7) and 20-417e(b); § 52-564 and/or 42-110g, interest under § 37-3a and reasonable attorneys fees under § 42-110g(d). On October 25, 2016, a default judgment entered against the defendant for failure to appear. The court has also reviewed the military service affidavit and finds that the defendant is not in the military. The court, therefore, finds that the defendant breached the contract at issue here and is liable for damages to the plaintiff. On March 13, 2017, the court held a hearing in damages. Based upon taking judicial notice of the entire record for this case, including the affidavit of attorneys fees requested hereunder by the plaintiff, and in consideration of the evidence the court finds credible and relevant, the court further finds that the defendant is liable for certain damages claimed by the plaintiff as more fully detailed in this decision.
I. Discussion
A. Breach of Contract
" The 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 . . . [I]n order to form a binding and enforceable contract, there must be an offer and an acceptance based on mutual understanding by the parties . . . The mutual understanding must manifest itself by a mutual assent between the parties." (Citation omitted; internal quotation marks omitted.) Ibar v. Stratek Plastic Limited, 145 Conn.App. 401, 410-11, 76 A.3d 202, cert. denied, 310 Conn. 938, 79 A.3d 890 (2013). " The law concerning the time when a breach of contract action accrues is well settled. [I]n an action for breach of contract . . . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted." (Internal quotation marks omitted.) Torringford Farms Ass'n, Inc. v. City of Torrington, 75 Conn.App. 570, 577, 816 A.2d 736, cert. denied, 263 Conn. 924, 823 A.2d 1217 (2003). " [T]he general rule is that a contractor who substantially performs under a building or construction contract is entitled to recover the contract price minus the cost of repairing the defects or completing the unfinished part of the work so as to bring the construction up to the level required by the contract . . ." (Internal quotation marks omitted.) Coppola Constr. Co. v. Hoffman Enters. Ltd. P'ship, 157 Conn.App. 139, 160-61, 117 A.3d 876 (2015).
In light of the default judgment entered against the defendant, the court finds it is unnecessary to address the question of whether the elements of the plaintiff's breach of contract action have been proven as liability has been established. Thus, the court will next turn to the matter of damages claimed by the plaintiff.
B. Breach of Contract Damages
" The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed . . . It has traditionally been held that a party may recover general contract damages for any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself." (Internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 32, 662 A.2d 89 (1995). It is also well established " that the burden of proving damages is on the party claiming them . . . When damages are claimed they are an essential element of the plaintiff's proof and must be proven with reasonable certainty." (Internal quotation marks omitted.) Frillici v. Town of Westport, 264 Conn. 266, 283, 823 A.2d 1172 (2003); see also Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 646, 904 A.2d 149 (2006) (" [d]amages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty" [internal quotation marks omitted]). " The plaintiff has the burden of proving the extent of the damages suffered . . . Although the plaintiff need not provide such proof with [m]athematical exactitude . . . the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate . . . The determination of damages is a matter for the trier of fact . . ." (Citations omitted; internal quotation marks omitted.) Willow Springs Condominium Ass'n, Inc. v. Seventh BRT Development Corporation, 245 Conn. 1, 65, 717 A.2d 77 (1998). " . . . [D]amages are measured as of the date of the breach . . . For a breach of a construction contract involving defective or unfinished construction, damages are measured by computing either (i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste . . ." Levesque v. D& M Builders, Inc., 170 Conn. 177, 180-81, 365 A.2d 1216 (1976).
As far as the plaintiff's damages are concerned, the plaintiff's itemized list of both actual and estimated damages is found in plaintiff's exhibit U summarized below as follows:
Out of Pocket Expenses paid to the defendants
$111,420.80
Additional Out of Pocket Expenses Paid to Third Parties:
$29,375.00
Wood Storage and Shipping Fees
$10,773.00
Quotes to Fabricate Windows and Doors
$555,660.00
Additional Damages
Rental Costs-Unable to live in the home
$24,490.20
Property Taxes-Unable to live in the home
$54,915.25
Builder's Risk Insurance Policy
$6,681.00
Legal Fees & Expenses-Affidavit of Fees
$24,254.25
Bill of Costs
$623.53
Punitive Damages To Be Determined by Court
$TBD
Statutory Theft Treble Damages " "
Claimed re 32% of wood costs ($9,989.76)
$29,969.28
Interest To Be Determined by the Court
$TBD
Statutory 10% per C.G.S. § 37-3a claimed for
pre- and postjudgment from 2012
In applying the stated legal principles to the facts found by the court, and in examining the amount of damages, actual and projected, requested by the plaintiff, the court finds that the plaintiff has satisfied his burden of proof as to such damages with reasonable certainty. The court further finds that an award of the amount requested by the plaintiff would put him back in the same position had the contract been performed by the defendant as specified in the construction contract especially given the length of the breach and specialty wood features and products that the plaintiff expected to have installed. " It is axiomatic that the burden of proving damages is on the party claiming them . . . When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . . Damages are recoverable only to the extent that the evidence affords sufficient basis for estimating their amount in money with reasonable certainty." (Internal quotation marks omitted.) Lawson v. Whitey's Frame Shop, 241 Conn. 678, 689, 697 A.2d 1137 (1997). " In determining the proper measure of damages, we are guided by the purpose of compensatory damages, which is to restore an injured party to the position he or she would have been in if the wrong had not been committed." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 248, 905 A.2d 1165 (2006).
C. Punitive Damages
In his claims for relief, the plaintiff is also seeking an award of punitive damages. However, the court notes that, generally, the applicable law does not favor the recovery of punitive damages in a breach of contract action. Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 127, 222 A.2d 220 (1966). " Thus, there must be an underlying tort or tortious conduct alleged and proved to allow punitive damages to be granted on a claim for breach of contract, expressed or implied. Elements of tort such as wanton or malicious injury or reckless indifference to the interests of others giving a tortious overtone to a breach of contract action justify an award of punitive or exemplary damages. In our jurisdiction such recovery is limited to an amount which will serve to compensate the plaintiff to the extent of his expenses of litigation less taxable costs." L.F. Pace & Sons, Inc. v. Travelers Indemnity Company, 9 Conn.App. 30, 48, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). Relying exclusively on the evidence in the record, without more at the hearing in damages, the court, in analyzing the facts presented, finds that the plaintiff did not sustain his burden of proof by showing, by a fair preponderance of the evidence, that the defendant's conduct was wanton, malicious or constituted reckless indifference. Consequently, the court denies the plaintiff's request for punitive damages.
II. Conclusion
For the foregoing reasons, the court concludes that the plaintiff sustained his burden of proof, except as otherwise stated herein, and awards the plaintiff a total of $848,162.31 plus statutory interest at the rate of 10% pursuant to General Statutes § 37-3a commencing retroactively on March 13, 2017.