2004 Ct. Sup. 9953
No. CV 02-0816335 SConnecticut Superior Court, Judicial District of Hartford at Hartford
June 22, 2004
MEMORANDUM OF DECISION
HALE, JUDGE TRIAL REFEREE.
There are two plaintiffs in this case, 566 New Park Associates, LLC (New Park), owner of a building located at 566 New Park Avenue, Hartford, Connecticut and Advantage Automotive, Inc. (Advantage), owner of an automobile repair and body shop located at the same address in Hartford. There are also two defendants, JTJ Builders, LLC (JTJ) and Jesse Blardo (Blardo). JTJ is a contractor specializing in site work, grading, excavating, and foundation work. Blardo is president of JTJ and sole owner.
The plaintiffs have sued the defendants in a thirteen-count complaint dated May 14, 2002. The defendants have denied the relevant allegations and filed a counterclaim against the plaintiff, New Park, only.
Counts one through seven complain against JTJ for breach of contract, breach of the covenant of good faith and fair dealing, negligence, fraudulent misrepresentation, interference with business relations and violation of the Connecticut Unfair Trade Practice Act, Conn. Gen. Stat. § 42-110b et seq. (CUTPA). Counts eight through twelve state claims against Blardo individually for unjust enrichment, negligence, fraudulent misrepresentation, interference with business relations and violation of CUTPA. Count thirteen states a claim against Blardo under the theory of piercing the corporate veil of JTJ which is alleged to have damaged the plaintiffs.
On March 8, 2004, the plaintiffs withdrew the counts alleging fraudulent misrepresentation and interference with business relations as to both JTJ and Blardo individually.
The counterclaim alleges a breach of contract by the plaintiff in instructing the defendant to cease operations and in its refusal to pay the balance allegedly due the defendants. The plaintiff has denied the pertinent allegations of the counterclaim. CT Page 9954
The defendants have also filed an apportionment complaint against three separate apportionment defendants, William R. Palmberg Son, Sipala Construction, Inc. and Malcolm Arnold. A withdrawal of action was filed as to William Palmberg Son; the court has defaulted the apportionment defendant, Sipala Construction, Inc. and the apportionment defendant Malcolm Arnold (Arnold) has appeared by counsel and defended this action. He has filed an answer to the apportionment complaint denying the essential allegations of the complaint.
This case was tried to the court for seven days between January 6, 2004 and January 21, 2004. On January 22, 2004, the court viewed the location which is the subject of this lawsuit. Both plaintiffs, both defendants and Arnold filed briefs and reply briefs. The court examined all of these briefs and a large portion of the transcript of the record.
Each of the parties has furnished the court with a “proposed finding of facts.” The plaintiffs have furnished the court with 183 proposed facts. A large number of these facts depend on references to AIA document 205 and others are speculative, conclusory, or in some instances, particularly those dealing with figures, inaccurate, and sometimes a mischaracterization of the testimony. The proposed facts offered by the defendants are generally factual.
In the opinion of the court the following are the relevant facts in this case.
Michael Goldin is an officer in both New Park and Advantage. Prior to March 23, 2000, New Park purchased a piece of property at 566 New Park Avenue, Hartford, Connecticut (site) adjoining to the south the existing garage building occupied by Advantage. Said real estate is described in Exhibit A attached to the complaint. New Park planned to build an addition to the existing building at the site.
On July 19, 1999, Goldin, acting for the plaintiffs, retained the services of Arnold to act as a “Project Manager” or “Owner’s Representative” in the development and construction of the addition. Arnold retained or recommended, among others, a surveyor, William Palmberg, who performed a survey of the premises at 566 New Park as of September 8, 1999; an engineering company, Cianci Cianci, as consulting structural engineer and AJK Engineering to erect the steel.
Arnold also recommended JTJ to Goldin as a company which could excavate for the foundation, build same, pour concrete floors and stairs, prepare and pave the parking area and do various other site work on the construction project. Blardo had a number of years of experience as a CT Page 9955 laborer on various jobs involving excavation, footings, foundation walls, etc. He formed his own company, JTJ, in 1998, and had performed similar work a number of times between that date and March 2000. Blardo had also worked for New Park prior to March 2000 in demolishing a building on the site of the new addition.
Blardo submitted a bid to Arnold and he and Arnold negotiated a contract which was to be submitted to Goldin. Arnold provided AIA document A105 designated “Standard Form of Agreement Between Owner and Contractor for a Small Project” (Exhibit 1) on which he typed the conditions of the agreement. This agreement was signed by Michael Goldin as the Vice President of New Park and by Jesse Blardo as President of JTJ. The document was signed on March 23, 2000.
This contract has one change in the typed terms and this is a handwritten note stating that payments due and unpaid under the contract document shall bear interest from the date a payment is due at the rate of 1.5% “after fifteen days of submission of requisition” and this is initialed by JB and MG, Jesse Blardo and Michael Goldin. The contract correctly identifies the owner and lists JTJ Builders, LLC as the contractor; the project as the 566 New Park Addition and lists the architect as Frier Associates.
The contract states that the date of commencement shall be the date of the agreement, but has no date for completion. Article 4.1 states “Based on contractor’s applications for payment certified by the project manager — Malcolm Arnold the owner shall pay the contractor as follows.” It then lists five payments, four of them at $16,625 each and the fifth at $16,000 and then bears the legend “percent of work completed after #1 downpayment.” Article 3 which provides for the contract sum of $82,500 states further in 3.2 “For purposes of payment the contract sum includes the following values related to portions of the work” and it then has typed in “As per Exhibit A.” Exhibit A is labeled “Scope of Work” and has ten items covering the work to be accomplished by the contractor.
In subsection 1.2 of Article 1 and 5.3 of Article 5 are references to AIA document 205. The plaintiffs maintain that document A205 is a portion of this contract and they quote extensively from it with respect to inspections of the site and termination of the contract.
There was no testimony of any reliance upon A205 by the parties in reaching their agreement and there is no such document in evidence signed or unsigned or claimed by the parties. Insofar as this trial is concerned, the document does not exist and, in the opinion of this court, AIA document 105, executed by the parties, is the sole contract CT Page 9956 between the parties.
Exhibit A attached to the contract contains all of the construction terms of the contract. They are as follows:
1. Excavation and back fill of building addition foundation and all necessary fill.
2. Provide and install oil separator. Tie into existing sewers and extend to new addition.
3. Prepare entire area as per site drawing to receive blacktop.
4. Provide and install manhole and catch basins in location as per site drawing. Modify basin as necessary and submit for approval.
5. Provide and install dumpster pad.
6. Provide and install blacktop, stripping, wheel stops and curbing as per site drawing.
7. Provide and install all concrete and rebar for footings (wall under grade). First floor concrete and second floor concrete to follow structural drawing as it pertains to concrete. Pour concrete for stairs. Price does not include any soil testing or concrete testing. Price does not include any hazardous waste removal.
8. Site to be surveyed and benchmark for grade as per site drawing to be done by owner.
9. Provide and install trench drain as per drawing.
10. Pay for and acquire any permits and town inspections necessary.
Vincent Sipala (Sipala) of the Sipala Construction Company had given a bid to Blardo, which bid was included in Blardo’s bid on the concrete work for this project. Sipala Construction Company was owned by Vincent Sipala’s wife but he was the principal manager of the company. He had over 23 years of experience in foundation and excavation work and all parties were aware that he would be working with Blardo. CT Page 9957
Robert Sears was the president of Falcon Paving, which company had also provided Blardo with a bid and it was well known to all parties that Falcon Paving would be doing the paving for a portion of JTJ’s contract.
On March 23, 2000, JTJ provided an invoice for the downpayment of $16,625. This invoice shows a starting date of March 27, 2000. On that date Blardo obtained a permit from the Town of West Hartford to build the foundation for the new addition.
On March 29, 2000, Advantage Auto made the first payment on the contract in the amount of $16,625.
William Palmberg was employed by the owner to prepare a survey of the 566 New Park Avenue property. After completion of the survey on December 1, 1998, Mr. Palmberg placed iron rebar pins plus “witness stakes” in the ground marking the property lines.
Blardo did not produce any record to show the day the work was begun. Both Arnold and Goldin, although somewhat uncertain, were under the impression that it had begun approximately two weeks after the contract was signed.
Item No. 8 in Exhibit A, “Scope of Work,” attached to the contract, provided that “Site to be surveyed and benchmark for grade as per site drawing to be done by owner.” A “site plan details” was supplied by Frier Associates, Inc., dated September 8, 1999, showing the location of all items in the “Scope of Work” as they exist on the site. Two “Foundation and Framing Plans” were also provided by Frier Associates, Inc.
In the Town of West Hartford the rear yard setback is zero. In other words, you can build on a property line. Before excavation started, Blardo met with John Belletti, President of Connecticut Tar Asphalt Service, Incorporated which owns property adjacent to the rear of the site with a right of way from the street beside the site. Belletti identified where the property line ends and warned Blardo against the closeness of the property line.
Sipala and two employees held up beginning the excavation while two persons, unknown to them, presumably surveyors, staked out the building line with three stakes. They placed a line between these stakes and, knowing that in most towns there is a setback distance between the building line and the property line, Sipala became concerned at the closeness of the building line to the property line. He called Blardo and CT Page 9958 Blardo called Arnold. Arnold came, looked over the situation and said in the language of plaintiff’s brief, “Mr. Arnold, in frustration, told Blardo to dig the hole in accordance to where the surveyor had set the pins.” Sipala then dug the foundation and poured the walls at a location designated by surveyor stakes or pins. These stakes or pins are clearly visible in the plaintiff’s own exhibits.
Neither Arnold nor anyone from Palmberg’s office disputed the testimony that the stakes or pins shown in the photographic exhibits established the indicated building line. The building line stakes were clearly within the property line stakes pointed out by Balletti to Blardo and observed by Blardo and Arnold as well as Sipala and his employees. The property line stakes, referred to above, had no “witness stakes” next to them.
JTJ and Sipala began work upon the contract and quickly encountered a problem with an unknown catch basin. A change order, dated April 4, 2000, called for relocating a catch basin on a property line to driveway area of adjoining neighbor at east end of new addition. It also called for the installation of a cast iron pipe under the proposed new addition and to provide labor and materials for a new catch basin, patching the driveway area and providing services of a testing company for compaction at a price of $14,650. Payment was made for this change order on April 24 by check from Advantage Automotive to JTJ Builders. After the relocation of the catch basin, which the proposal indicated would take about fourteen days, JTJ continued with the foundation excavation.
On April 14, 2000, rebar steel for the foundation and “chairs” (items used to raise the level of wire mesh above the base of the floor when pouring concrete) were delivered to the site.
In addition to the relocation of the catch basin, on or about April 20, JTJ dug an extra ten inches for a foundation for a dumpster pad and was paid $700 for same by check dated April 24. On May 3, JTJ invoiced Advantage Auto for the second payment of $16,650 for “excavation for footings pouring footings.” This was approved and paid on May 8, 2000.
On May 8, 2000, Carl Cianci, engineer, visited the site to perform an inspection of the soil prior to the pouring of the footings and he reported that the entire area had been excavated. The area had been “mucked out” due to a disturbance because the workers had walked in the soil after it rained. Also, the area surrounding the addition had been excavated. Stone had been poured in the surrounding area. The forms were probably up although there was some question about that. Cianci approved the footing inspection on May 8, 2000. CT Page 9959
On May 17, 2000, concrete was delivered for the footings and on May 19th JTJ invoiced New Park for the third payment on the contract in the amount of $16,450. Advantage Auto had made a $200 repair to a vehicle operated by a subcontractor hired by Blardo which resulted in a $200 credit to Advantage Auto which was taken from the $16,650. On May 23, 2000, a second concrete delivery was made for the foundation walls. On May 24th the third installment on the contract of $16,450 was paid. At this point Goldin decided he wanted a second change order to install electrical pipes and floor drains in the existing adjacent building. This work was completed and invoiced on June 12, 2000 and was paid for by check on June 22, 2000 in the amount of $11,750.00. As this work was being completed, an additional concrete delivery for foundation walls was made on June 9, 2000.
On June 20th Arnold sent a handwritten note to Goldin about the quotation to put the blacktop in the stone area and also stated, “We can not do any more work on that area until you decide to do this work or not do this work.”
Prior to June 20, 2000, JTJ builders submitted a proposal for a third change order which had to do with the preparation of the blacktop and the moving of two catch basins at a proposed cost of $14,682, which change order was approved by Goldin on June 30, 2000. This work was not completed and a portion remained to be finished when the work was terminated.
By June 30, 2000, all the foundation walls and excavation had been completed. The back filling was done and JTJ was waiting for the structural steel to be delivered and installed. Blardo and Sipala were of the opinion that they should not install the floor until after the steel columns had been erected. With the footings and walls completed, JTJ, unable to proceed, was doing extras, preparing the rest of the site work and removing cars. During this slack period, Goldin, acting through Arnold, contracted with JTJ to work at his personal residence. On June 29, 2000, a concrete delivery was made to the Goldin residence.
Also, on June 29, 2000, Gary Krajewski of AJK Engineering, Inc. (AJK), the steel erector, inspected the site and noticed a pole with high tension wires very close to the east boundary line which in his opinion constituted a danger to the steel erectors with their cranes. Krajewski immediately notified Arnold and on July 3 Arnold sent a letter to CLP requesting removal of the wires.
On July 5, 2000, the wire mesh for the first floor was delivered and on CT Page 9960 July 6, 2000, the steel for the frame was delivered. On July 7 another concrete delivery was made to Goldin’s residence where JTJ was still working.
Arnold sent another handwritten note to Goldin on July 11th stating that he was going out of town for nine days, that he had spoken with CLP and made arrangements for somebody by the name of Mike Margolis to be in contact with CLP. This note referred to a claim by CLP that it had an easement and indicates that it will have to be located. At the foot of this note, also in handwriting, is another notation “Enclosed are bills from Jesse for work completed to date. He has to stop because steel is in the way and has to wait for CLP to relocate poles. It is okay to pay him.”
Prior to July 28, 2000, Blardo had made Arnold aware that he was having trouble clearing the parking lots. On July 28, 2000, Arnold wrote JTJ a letter stating that he had met with the owners and they discussed progress payments and compared these payments of $49,975 (includes the $200.00) to work completed leaving a balance due of $32,625 (should be $32,575) with estimates of $34,000.00 for incomplete work. He then indicated that the owners were having a financial hardship due to the unfinished grading because customers refused to leave their cars because of the existing conditions and that blacktop must be installed from the north property line south to the oil separator. He further states “Due to the electrical power relocation, all work has stopped in the area of the new addition. After the structural steel has been installed you can return to the site to complete the concrete work and the balance of the site work. We request a written schedule with accurate dates so cars can be moved in advance.”
Subsequent to July 28th but prior to August 9th, JTJ wrote a letter to Goldin in reply to Arnold’s letter of July 28, 2000. He indicated his desire to install catch basins in the drive area and the process stone and blacktop in the area of the oil separator. He stated, “it is, however, imperative that `ALL’ vehicles be removed from the area and no traffic be allowed to pass while the work is in progress.” He expressed an understanding that they must keep working to generate an income and suggested that they set up the work for large jobs such as engine repairs, body work and so forth to allow for two to three days with no traffic in the yard area. This would allow him to do his work and allow Goldin to generate some income. He expressed concern that with the movement of heavy equipment, backhoes and bulldozers, they didn’t want to have anyone getting hurt, Goldin’s customers or JTJ’s employees. The letter sets dates for work to be done and indicates July 9th and 10th but it is obvious that it means August 9th and 10th for the catch basins and CT Page 9961 August 11th for the processed stone. Again it says July 11, 2000, but it is obvious that it means August 11th. The letter indicates further that after this work is done they will be able to work freely and can complete the remainder of the project “after the steel workers are done.” He expresses hope that they can maintain, as in the past, a good working relationship.
On August 2, 2000, Advantage paid JTJ $2,500 toward the contract and on August 19, $4,000 for extra blacktop. Meanwhile, on August 3, 2000, Arnold again wrote CLP about the removal of the wires.
Blardo had Falcon pave the binder course (rough course) of the parking lot on August 9, 2000 in response to the letter of July 28th.
In another handwritten note dated August 24, 2000, Arnold informed Goldin that he had been in touch with a representative of CLP several times in that week, that the electric wire removal would be completed by August 30, 2000 and the steel erector had scheduled to erect on August 31st. He also states, “I have been out of town and will return 8-28 or 8-29.”
Under pressure from the owners, JTJ began to reluctantly pour the first floor. A concrete delivery was made to 566 New Park Avenue on August 25th. The defendant’s objection to pouring before the steel was erected was overcome by boxing in the area where the steel pillars would sit. With the steel not erected it was, of course, impossible to pour the stairs or the second floor.
On September 2, 2000, Arnold wrote a letter to Advantage, attention Goldin, in which he outlined the details of the difficulties with CLP in getting the power lines removed. In this letter he points out that the steel workers had to reschedule the structural steel installation and the site contractor was held up since steel was not installed by July 7th and he was unable to finish by July 17th as originally promised. He further states that the steel is scheduled for September 5th erection and then the site contractor can complete the concrete and blacktop work. The steel, however, was not installed by September 5th.
In a letter of September 11, 2000 to Blardo, Arnold, outlined what he claimed had been paid, to date, including the $2,500 and the $4,000. He claimed payments of $52,385.00 against an $82,000.00 contract leaving a balance due of $29,615.00 on the contract; he claimed also a payment of $4,000.00 on the $14,650.00 extra for the “Stone area” leaving a balance of $10,650. He further states, “Due to several delays in the time schedule the owner is reluctant to pay anymore (sic) requisitions until CT Page 9962 certain items are done.” He then lists three phases of work showing three equal payments of $9,871.66, 0.66 and 0.68 with retainage of $987.10, 0.10 and 0.17. This is a departure from the contract. For the stone area extra he shows a payment of $10,650 but a retainage of $1,065. Both retainages to be paid 30 days after acceptance by the architect.
On September 13, 2000, Cianci performed a site inspection.
In response to Arnold’s letter of September 11, 2000, Blardo and Arnold working together composed a letter dated September 14, 2000 and sent it to Goldin indicating that the contract was eighty-five percent complete and that Blardo was owed $17,315. In the last paragraph of the letter of September 14th, which was composed in conjunction with Arnold, Blardo offers a compromise which is that he will accept $15,000 and thereafter work on a schedule of fifty percent upon the starting of each item and fifty percent upon the completion of each item.
This letter of September 14th, composed by Blardo and Arnold, was not signed by Blardo. They disagreed as to the percentage. Blardo thought that the percentage should be higher whereas Arnold thought eighty-five percent was correct and Blardo went along with it.
On September 15, 2000, a concrete delivery was made to an address at 798 Farmington Avenue, which was a project for which Arnold had contracted with JTJ to do work for Arnold’s wife, an indication that JTJ was unable to continue with its work on 566 New Park. Blardo had made it clear to all parties that he was unable to continue with the final coat of blacktop until after the steel had been erected and the stairs and the second floor poured because of the need to have heavy equipment in the area that was to be paved.
Krajewski “got the go ahead to erect the steel on September 6th.” He testified that he started erection on September 11th and that sometime between September 6th and September 11th he went out to the site and noticed a problem with the anchor bolt pattern. When asked what recommendation, if any, he would make to correct it, he referred the matter to the engineer, Cianci. Cianci, in a letter of September 25, 2000, expressed concerns about certain matters which he observed during his inspection on the 13th plus an item that was later brought to his attention. He also indicated that as of the 13th, the steel was on site but erection had not started.
On or about September 28, 2000, AJK finally completed erection of the steel according to Krajewski. On October 6, 2000, Arnold wrote to JTJ enclosing a lien waiver for the amount paid to date. He indicated, “This CT Page 9963 must be signed and returned before any other payments are made. The owner is anxious to complete the project and would like a schedule.” Acting through its counsel, JTJ rejected Arnold’s demand for a waiver, repeated that the contract was approximately eighty-five percent complete which would amount to $69,700 against which $52,385 was received by JTJ, thus leaving a balance due of $17,315. The corporation offered two alternatives:(1) Pay $17,315 within five days, leaving the remaining work on the project to the owner or (2) pay the $17,315 within five days and the corporation would complete the remaining work upon an agreed-upon payment schedule. The letter then indicated that unless there was a response forthwith, the corporation would proceed with a mechanic’s lien.
Sometime after the steel was up, probably after October 12th, Blardo received a phone call from Arnold to meet at the site; that he, Arnold, wanted to get the second floor and the stairs poured. Blardo called his attorney and told him. The attorney responded that there is no harm in going out there to meet him and see. It could lead to settling the issue. Blardo went out to the site to meet Arnold. He had Sipala and Joe Jascowski, an employee of Sipala, with him. They began to take measurements. Arnold left to talk to the owner, came back out and said, “The owner don’t want you on the job site.”
Under date of October 15, 2000, Arnold wrote to JTJ’s attorney, and for the first time, expressed dissatisfaction with JTJ’s work performance, listing a detailed list of claimed problems. While this letter purports to cancel the contract in reliance upon AIA document A-205 which, in the opinion of this court, is not a part of this contract, it is nonetheless a clear, unequivocal cancellation of the contract.
Under date of October 31, 2000, JTJ filed a Certificate of Mechanic’s Lien for $24,500.
This is a case wherein there is no dispute as to applicable law. The resolution depends on the facts.
In the opinion of this court there is insufficient evidence for the plaintiffs to prove by a preponderance of the evidence any one of the counts against JTJ or Blardo.
In paragraph 14 of Count One, the plaintiffs allege that the defendant, JTJ, breached the agreement in four different ways: (1) failing to construct the building in a workmanlike manner; (2) failing to perform all required services; (3) prevented the issuance of a certificate of occupancy; and (4) failed to render services in a timely manner. CT Page 9964
When the defendants were barred from the workplace by the plaintiffs, the plaintiffs had not been informed by Cianci of four certain matters which he had detected during his investigation of the completion of the foundation work. The defendants were, of course, totally unaware of these items. Cianci, in his report of September 25th, pointed out that there was a sheared-off anchor bolt and that the patterns for the anchor bolts had been installed with approximately a half inch of variance. He recommends as to each of these, a repair which is quite simple and could be made by JTJ. A small area in the first-floor slab appeared to be improperly finished and certain catch basins needed readjustment. All of these were minor matters compared with the amount of work that had been done correctly by the defendants. In the meantime, it is quite clear from the testimony that the defendants were ready, willing and able to go forward with the balance of the work to be done and make any corrections that were necessary.
The only item in Cianci’s report of any consequence was his reference to the wire mesh in the floor; that the wire mesh, as viewed from the boxed-in areas for the columns, appeared to be on the base rather than raised above the surface. Both Sipala who had over twenty years in concrete work and Jascowski testified that certain items known as “chairs” which are used for the purpose of placing them under the mesh to keep them above the surface of the base, had in fact been used. The court also notes that in the invoice from the metal provider, Parker Steel Co., Inc., the chairs are noted as being sent to the project on April 14, 2000. Sipala testified that the reason why the mesh appeared to be on the base in the boxes is because that is where the men stood while they worked on the pouring of the concrete and the leveling of the floor and that tended to bend them down at that point. There was no testimony offered to indicate that any test had been made to verify this complaint. If it were a matter of such grave importance that it appeared that the entire floor might have to be reproduced as plaintiffs claim, it would seem that, with modern equipment a hole could have been cut in the floor to see exactly where the mesh was.
While the plaintiffs allege that there appeared to be certain cracks on the first floor, the court, having viewed the property, noticed that the cracks on the first floor weren’t any different from those on the second floor, installed by others, as to which the plaintiffs seemed satisfied.
As to items no. 2 and 3, the court notes that the defendants had been ejected from the site prior to the erection of the steel work. As to the allegation that the defendants failed to render services in a timely manner, the court finds that although there were unquestionably long CT Page 9965 delays in the completion of this project, they were not caused by the defendants, but rather by the owner’s representative, principally because of the inability to go forward with the steel work, due to poor preplanning and also a failure to recognize that the defendants could not proceed with their work of final paving, with heavy equipment being used on the premises for purposes of erecting the steel.
As to the allegation that the defendants’ work failed to meet a workmanlike standard, there was no expert testimony offered to establish the standard of work or that the work performed fell below industry standards. No complaints were made in any of the correspondence between the parties until after JTJ had been ejected from the work site. The exhibits are replete with written references that the work was “complete.”
In the Second Count, Breach of a Covenant of Good Faith and Fair Dealing, the plaintiff alleges that Blardo improperly caused JTJ to place a mechanic’s lien on New Park’s property in an effort to “coerce” the plaintiffs into making payments to JTJ to which it was not entitled and otherwise coerced plaintiffs into withdrawing or reducing claims for damages against the defendant. There is no evidence that the mechanic’s lien filed by the defendants was improperly filed. In fact, the defendants followed all statutory procedures and the plaintiffs have not raised any statutory impropriety. While the plaintiffs in their brief correctly cite a number of cases having to do with the concept of an implied covenant of good faith and fair dealing, GUPTA v. New Britain General Hospital, 239 Conn. 574, 598 (1996), Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 567 (1984), DSM, Inc. v. Century Select Ins., Inc., 31 Conn. L. Rptr. 650, 2002 WL 652424 (Conn.Super. 2002), the testimony falls far short of establishing a breach of the covenant of good faith and fair dealing and also far short of establishing an attempt to coerce the plaintiffs into making payment. The evidence is replete with written statements that the work had been completed before payment. As to the failure to complete the contract, the testimony establishes quite clearly that the defendant was unable to complete the work and correct mistakes because of unanticipated extras and delays particularly in the steel erection and termination by plaintiffs.
With reference to the Third Count alleging Unjust Enrichment, the court finds that there is simply no evidence to substantiate this complaint. The contract called for payment in five different steps as work was completed. The invoices were sent specifying work that had been completed and they were paid for work that had been completed. The owner’s representative, in joining Blardo and writing a letter of July 28th, agreed that eighty-five percent of the contract had been completed. As of CT Page 9966 that time, the defendant had not been paid the full eighty-five percent.
In the Fourth Count the plaintiffs allege Negligence on the part of the defendants claiming that in this case there was a duty owed by the defendants to the plaintiffs to perform work with due care and on a timely basis. The plaintiffs in their brief quote from several cases to establish that there is a duty. The defendants concede that there was a duty, and the court agrees that there was a duty owed the defendant, to perform the work with due care and on a timely basis inasmuch as they had entered into a contract with the plaintiffs. The difficulty here with the plaintiffs’ case is that there is no evidence introduced as to the standard of care, breach of the standard of care or causation. It is conceded by the defendants that they did not complete the contract but it is clear to this court that the plaintiffs were the cause of the failure to complete the contract.
In Count Seven the plaintiffs have alleged a Violation of the Connecticut Unfair Trade Practices Act known as CUTPA. In the words of plaintiffs’ brief “To prevail on a claim under the CUTPA, the plaintiff must show that the defendant engaged in either unfair or deceptive acts or practices in trade or commerce.” As correctly stated by the plaintiffs, the Connecticut Supreme Court has adopted the so-called “cigarette rule” of the Federal Trade Commission.
Whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical or unscrupulous; (3) whether it causes substantial injury to consumers.
Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559 (1995).
In the opinion of this court the plaintiff presented insufficient evidence to prove, by a preponderance of the evidence, that the defendants’ conduct was immoral, unscrupulous or unethical, or that it caused substantial injury to the plaintiff. Barring some cosmetic blemishes and corrections which would have been corrected by JTJ, there was no evidence of wrongdoing by the defendants nor was there any evidence of misrepresentations by the defendants. The court, in this instance, agrees with the defendants in stating, “This action is, in reality, nothing more than a garden variety contract dispute.” CT Page 9967
In counts eight, nine and twelve, the plaintiffs allege unjust enrichment, negligence and violation of CUTPA against Blardo, individually. The allegations in each of these are the same as those in the counts against JTJ and the court’s decision with respect to each is unchanged from that and the allegations against JTJ.
There is no allegation of breach of contract and no allegation of the violation of a covenant of good faith and fair dealing against Blardo, individually.
The essence of the plaintiffs’ case is that the defendants were the cause of the admitted lengthy delays in their performance and that they failed to complete the contract. As indicated earlier, the court is of the opinion that the defendants were ready, willing and able at all times to proceed with the contract, willing to engage in extra work for the owner’s representative to stay in touch with the project but were prevented from performing as rapidly as anticipated because of the delays caused by the inability of the steel erectors to proceed due to the failure of the plaintiffs’ representative to have the high tension wires removed and the unanticipated extras. The defendants, in the opinion of the court, were prevented from completing the contract due to the breach of the contract by the plaintiffs in changing the terms of payment without agreement; in ordering the defendants off the job and finally, by the letter of October 15, 2000, terminating the contract.
Judgment may enter in favor of the defendants as to the plaintiffs’ complaint.
In paragraph 13, the plaintiffs seek to pierce the corporate veil of JTJ and, in effect, hold Blardo responsible individually for the counts alleged against JTJ. In view of the judgment of the court with respect to the prior counts, it is unnecessary for the court to go into the question of piercing the corporate veil.
Attached to the plaintiffs’ brief is a list of alleged damages. Item no. 3 entitled “Property line encroachment expenses” claims an expense of $40,607 for the purchase of a small adjoining piece of property as to which plaintiffs allege that the defendants constructed the foundation of the addition over the property line. The allegation of the improperly-located foundation wall is not pled in the plaintiffs’ complaint and the court has found no damages due the plaintiff on its complaint. Because of the time spent by both parties on this matter, the court wishes to state that based upon its findings of fact, it is of the opinion that the defendants were not responsible for the mislocation of CT Page 9968 the foundation. Sipala excavated and poured the foundation as directed by Arnold within the property line boundaries established by someone other than the defendants or Sipala. The plaintiffs’ photographs and the testimony establish this fact and the plaintiffs did not present any rebuttal evidence on this point.
JTJ has filed a counterclaim against 566 New Park Avenue Associates, LLC. JTJ alleges that it furnished materials and rendered services in the construction of a building under an agreement with New Park made on March 23, 2000; that it continued working under this agreement until August 20, 2000 when it was instructed to cease work by New Park. It further claims that New Park failed, neglected and/or refused to pay for the balance due under the contract and that as a result of the action of New Park, New Park is in breach of contract. New Park has filed an answer denying the pertinent allegations of the counterclaim.
It is evident from the judgment of the court with respect to the original complaint that the court is of the opinion that plaintiffs are in breach of the contract. In the opinion of the court JTJ is entitled to damages and the correct measure of damages should be any balance due JTJ for work completed under the contract or completed as extras for which it did not receive payment.
The court is of the opinion that there is a balance due JTJ for work completed on the contract.
The understanding of both parties was that payments on the contract were to be for work completed. The payments amounted to $52,425.00, including $2,500.00. The original contract price was $82,500.00. Both parties have used $82,000.00 as the contract price and payments, including the $2,500.00, of $52,385.00.
While Blardo testified that he disagreed with the figure of 85% completion which called for a balance due of $17,315.00 rather than a higher percentage and a balance due of $24,500.00, he later agreed to a percentage of 85% completion and a balance due of $17,315.00 being the cost of work completed on the contract since the last payment.
Blardo admitted that certain repairs had to be made to his work which he was willing and able to make.
The court accepts $17,315.00 as the amount due JTJ under the contract for work completed but not paid for but finds that the cost of repairs CT Page 9969 must be deducted from that amount. The court finds that the sum of $2,810.00 was charged by AJK to correct the repairs to the plates holding the columns. The court accepts the proposal by Cannon of $4,750.00 (Exhibit 41) as the cost of resetting the drains, oil separator caps, etc. and also as to the pouring of concrete around the nine columns at $1,200.00 (Exhibit 46).
Subtracting the cost of repairs from the balance due on this contract results in $8,555.00 due JTJ.
Judgment may enter on the counterclaim in the amount of $8,555.00 for JTJ Builders, Inc. against 566 New Park Associates., LLC.
Hale, JTR CT Page 9970