2004 Ct. Sup. 11927-au
No. CV 01-0809850Connecticut Superior Court, Judicial District of Hartford at Hartford
August 2, 2004

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]


The plaintiff brings this action seeking damages, foreclosure of mechanic’s liens and recovery against the bonds given in substitution for the mechanic’s liens in connection with masonry work performed on two separate jobs in Rocky Hill and Bloomfield. The defendant United States Fidelity Guaranty Company interposed an answer denying the material allegations of the complaint and alleging special defenses of incomplete work, and the defendant Montagno Construction, Inc. interposed a similar answer, with setoffs and counterclaims for plaintiff’s breaches of contract on the two jobs.

The Maple View Manor — Rocky Hill Job
The plaintiff is a limited liability company generally engaged in masonry work. The defendant Montagno Construction, Inc. is a Connecticut corporation engaged in the construction business. The plaintiff and Montagno Construction, Inc. (hereinafter “Montagno”) entered into a contract, as of July 19, 2000, under which the plaintiff, as subcontractor, agreed to do certain masonry work at Maple View Manor in Rocky Hill on behalf of Montagno as the general contractor. The scope of the work is set forth in Exhibit B to the contract. It mainly consisted of furnishing and installing cement blocks and brick veneer walls for a convalescent home. The contract price was $35,000.00, supplemented by a single change order of $1,200.00, making the total contract price $36,200.00. The plaintiff undertook the work in October 2000 and completed it, except for a concrete block wall in the basement and washing the bricks, on or about November 29, 2000. The plaintiff from time to time received payments for the work and as of December 3, 2000 the plaintiff claims a balance due of $14,000.00. However, plaintiff concurred in certain back charges of Montagno, amounting to $4,658.68, making the provisional amount due the plaintiff $9,341.00.

Montagno claims additional back charges for work done by other subcontractors to complete or to repair work done by the plaintiff. Most CT Page 11927-av of these were not contained in punch lists given by Montagno to plaintiff or in letters written by Montagno to plaintiff three months after plaintiff left the job. The back charges were made after the litigation was started. They are disputed by the plaintiff. Without detailing the conflict of evidence on each of these items, the court concludes Montagno has proven justification for the following back charges.

Payment to Damiata Mason Contractor (hereinafter Damiata)
for installation of masonry under the second floor
and for infill work in the basement $ 660.25
Payment made to Damiata for grouting work 642.00
Payment made to Damiata for installation of lintel- 1,613.00
Work done by DS Stucco, LLC for jack hammeringof bond beams $ 1,255.00
Total $4,170.25

Deducting those back charges of $4,170.25 from $9,341.00 due plaintiff, after allowing for payments made by Montagno and conceded credits due it, leaves a balance due and owing to the plaintiff of $5,170.75 on the Maple Hill Manor Rocky Hill project.

Bloomfield Health Care Center Job
On July 19, 2000, the parties entered into a contract under which plaintiff, as subcontractor, agreed with Montagno, as general contractor, to do certain masonry work in connection with an addition being added to the Bloomfield Health Care Center in Bloomfield. The scope of the work included the installation of cement block walls; providing mortar reinforcement ties, flashing, control joints and grout; installing loose lintels; furnishing and installing brick veneer; installing and grouting rebars furnished by others; furnishing and installing bolts for roof blocking and window blocking. The work was to be performed under the direction of the architect and Montagno, and was subject to their inspection. The contract price was $125,000.00. The work was to be performed in accordance with plans and specifications made available to plaintiff and pursuant to the provisions of Trade Division Section 04200-unit masonry. These provisions provide that all masonry construction shall comply with the “Seismic Requirements” of the local building code and the structural engineer’s drawings and specifications, and the location of vertical and horizontal reinforcement bars shall be in accordance with the structural drawing.

The contract further provided that if the plaintiff failed to perform its terms and conditions, Montagno had the right, after three days CT Page 11927-aw notice, to terminate it, complete the work and deduct the cost against the contract price.

Although the contract was entered into in July 2000, plaintiff was not permitted to start the job until about Thanksgiving of 2000. On December 13, 2000 Montagno wrote to the plaintiff complaining of plaintiff not providing adequate manpower to complete its contractual obligations in a timely manner. Other letters of complaint by Montagno of the plaintiff’s poor workmanship followed. On January 19, 2001 Montagno terminated the contract. The evidence revealed Montagno had justifiable grounds to do so. At that time Montagno had paid the plaintiff $5,087.50. Furthermore, the plaintiff agreed that Montagno had paid for materials ordered and obligated to be paid by the plaintiff in the amount of $35,194.96. Subtracting these sums from the contract price of $125,000.00 left a balance of $84,717.54.

However, at that point the plaintiff’s contract was substantially uncompleted. In particular, the plaintiff had failed to install the brick at the east addition, failed to perform either the block or brick work at the south addition, performed no work on the piers/columns at the front canopy, failed to perform the brick work at the freezer and did not provide the air conditioning sleeves nor complete the door openings and install lintels for air conditioning units. Montagno contracted with Damiata to complete the plaintiff’s masonry contract for the price of $39,000.00. Montagno claims it also incurred additional charges from Damiata to complete plaintiff’s contract. Plaintiff contests some of those charges as either included within the $39,000 price, or not within the scope of the original contract, or not substantiated by an underlying invoice. Without detailing the conflict over each of these additional charges, the court concludes Montagno has proven additional expenses of $13,011, which when added to the above $39,000, totals $52,011 incurred by it to complete plaintiff’s work under the contract. Subtracting this amount from the aforementioned amount of $84,717.54, representing the balance owed on the contract less the amount paid by Montagno and credits given to Montagno, leaves the provisional amount owed to the plaintiff on the contract of $32,706.54.

Against this amount Montagno claims certain back charges for faulty work done by the plaintiff. The first and most important of these is Montagno’s claim to be reimbursed $24,815.10 for plaintiff’s failure to install rebars. This issue was one of the most heated of the trial.

The contract between the plaintiff and the defendant clearly provides, as an item of the scope of work, “install and grout rebar furnished by others.” The contract also provides that the plaintiff should perform the CT Page 11927-ax work in accordance with the provisions of “Trade Division 04200 Masonry.” The provisions of that Trade Division state at Section 1.2B, “All masonry construction shall comply with the `Sesmic Requirements’ of local building code and the structural engineers’ drawings and specifications,” and at Section 1.2B, 1. “The location of the vertical and horizontal reinforcement bars shall be in accordance to the structural drawing.” Furthermore the state building code provides at Section “vertical reinforcement shall consist of at least one no. 4 bar spaced not more than 48 in. (1219 mm). Vertical reinforcement shall be located within 16 in. (406 mm) of the ends of masonry walls.”

Despite these contract and trade requirements, the plaintiff contends that it was not obligated to install rebars at the Bloomfield job because: (1) the structural drawings do not provide for it; (2) Montagno’s supervisor on the job, Mr. Salvatore, specifically advised the plaintiff not to install the rebars; and (3) the rebars, which by contract were required to be furnished by Montagno, were not, in fact, furnished.

None of these reasons are justifiable. The structural drawing on which plaintiff relies (Exhibit 65) is at best ambiguous about rebars in the cement block wall because it does show a faint line which could indicate that rods were to be placed in the holes of the cement blocks. Respecting the conversations between plaintiff’s supervisor, Mr. Salvatore, and plaintiff’s principal, Mr. Cirinna, there is a sharp conflict of testimony. Cirinna testified that at the time he started the work by putting up the freezer wall he told Mr. Salvatore that the drawings did not require rebars and Mr. Salvatore said not to put them in. Cirinna testified that Mr. Salvatore also said that rebars need not be put in any of the walls of the additions being constructed. Mr. Cirinna testified to a further conversation with Mr. Salvatore in which the issue of rebars was purportedly referred to the engineer and Mr. Salvatore reported back that the rebars need not be installed. Mr. Salvatore admitted that he did tell Mr. Cirinna not to put the rebars in the freezer wall, but did not say that they should not be put in the rest of the walls of the building. On this conflict of testimony, the court believes Mr. Salvatore that although he admitted telling the plaintiff not to put rebars in the freezer wall, he did not instruct him to refrain from putting them in the other walls.

On the issue of Montagno not meeting its contractual obligation to provide the rebars, the evidence is that, in fact, the rebars were present at the job site, as shown by a photograph taken in August of 2000, and the purchase order of the rebars from a steel company in the summer of 2000. CT Page 11927-ay

From all of this evidence the court concludes that the contract provided and trade standards required plaintiff to install rebars, Montagno’s supervisor did not direct the plaintiff not to install them, and they were present at the site.

Plaintiff, in effect, argues that Montagno is not entitled to reimbursement for the full $24,815.10 on this rebar issue because it failed to mitigate the damages. The law generally is that plaintiff is not entitled to damages for losses that could have been avoided without undue risk or burden. Restatement of the Law of Contracts (2nd), Section 350. The burden is on the party claiming failure to mitigate damages to prove the claim, and he does not have to plead it as a special defense Zielke v. Mirza, No. CV 93-0529778, judicial district of Hartford-New Britain at Hartford (Satter, J., April 4, 1996), 16 Conn.L.Rptr. 408. The rule applies not only in negligence actions but also in contract actions. Lynch v. Granby Holdings, Inc., 37 Conn.App. 846, 851 (1995).

In this case, the plaintiff constructed the walls over the period from Thanksgiving 2000 to January 19, 2001. In that period of three weeks Montagno’s superintendent was on the job every day and its project manager came three times a week. The manner of constructing the cement walls with rebars requires that after a course or two of cement blocks were laid down, rods are placed in the holes and then the cement blocks lifted over the rods. It is inconceivable that Montagno’s supervisory personnel did not observe the work of the plaintiff and witness the walls being constructed incorrectly. Yet Montagno did not stop the plaintiff. The consequence was Montagno incurred the cost of $24,815.10 to cut the cement blocks to create vertical channels, place the rebars in the channel, cover the channel by plywood, and then grout them in place. The contract provided the work was to be done under the direction of Montagno. All that expense could have been avoided by Montagno exercising some minimal supervision.

This is an attractive argument for reducing some part of that $24,815.10 for Montagno not incurring that extraordinary expense. However, the law is that where both parties to a contract have equal opportunity to minimize damages and equal knowledge of the consequences of nonperformance, the duty to mitigate will not be imposed. 22 Am.Jur.2d Damages § 508 at 591 (1988); Shea-SM Ball v. Massman-Kiemit-Early, 600 F.2d 1245 (D.C. Cir. 1979); Travelers Indem. Co. v. Mako Mach. Tool Co., 952 F.2d 26 (2d. Cir. 1991).

Here, plaintiff was familiar with the requirements of the masonry trade and with the building code, and cannot foist onto Montagno its failure to install the rebars. Thus, Montagno is entitled to back charge the full CT Page 11927-bz amount of $24,815.10 on this issue.

Montagno claims other back charges for winterization, cleanup and repair of plaintiff’s work. Plaintiff had no obligation to winterize and to clean up long after it was terminated. These back charges are disputed by plaintiff. Without detailing the conflict of evidence on these items, the court concludes Montagno has proven justification for additional back charges totaling $12,729.

To recapitulate:
Contract price $125,000.00
Montagno payment to plaintiff $ 5,087.50
Montagno payment to suppliers 35,194.96
Montagno expenses to complete contract 52,011.00
Montagno back charges
a. Rebar issue 24,815.10
b. Other back charges 12,729.00 129,837.56
___________ ____________
Net due Montagno $ 4,837.56

Plaintiff reasserts its motion to amend the complaint to allege a count in unfair trade practices. The court reaffirms its decision to reject that amendment. At the trial the court agreed with the parties that the issue of attorneys fees be heard and decided after this phase of the case was determined.

Based on the foregoing, the court concludes plaintiff is due on the Maple Hill-Rocky Hill project $5,170,75 and defendant Montagno is due on its counterclaim on the Bloomfield project $4,837.56, and accordingly the court enters judgment for the plaintiff in the amount of $333.19. The issue of attorneys fees will be determined after a hearing.

Satter, J. CT Page 11927-ba