2011 Ct. Sup. 7851
No. CV08 501 73 55 SConnecticut Superior Court Judicial District of Fairfield at Bridgeport
March 22, 2011
MEMORANDUM OF DECISION
The plaintiff, Abatement Industries Group, is seeking a judgment of foreclosure for a mechanics lien filed for goods and services rendered under a lead abatement contract performed in the four units of an apartment house in Bridgeport on Stillan Street, owned by the defendant, John Britto.
The defendant has filed a general denial of the claim.
The court has found that the following facts have been established and has based its decision on all of the testimony and exhibits introduced at trial, together with the drawing of reasonable inferences and taking into account the credibility of witnesses and legal principles raised by counsel in the respective briefs:
The city of Bridgeport has a federally funded project called the Bridgeport Lead Free Families Program which was created to alleviate the dangers of exposure to lead in Bridgeport. The lead abatement program is operated for the city of Bridgeport by the Bridgeport Neighborhood Trust under the authority of the Bridgeport Health Department. The director of the Department is Audrey Gaines. The Department tests children for lead poisoning and inspects homes to locate toxic sources of lead. If a lead hazard is identified, the Health Department issues an abatement enforcement order requiring the landlord to remove the lead as required by state law.
Warner Marshal is the director of the Regional Housing Rehabilitation Institute of Connecticut which has a contract with the Neighborhood Trust. Marshall conducts the entire field operations of a lead abatement project for the Trust. He initially inspects the properties once lead tests have been submitted. He then prepares specifications for the purpose of bidding and organizing the lead abatement for the particular property involved. After preparing the specifications, he organizes a bid walk through the property with prospective contractors. Once the bids are CT Page 7852 submitted he analyzes them and then works with the Agency to get the project going.
After a contractor has been selected, contracts are executed between the owner and contractor and between the Agency and the contractor. After the contracts are signed and the specifications attached, they are sent to the Health Department for approval and/or amendments. The initial approval of each contract, amendments to the specifications, change orders and final approval of completion of the contract is under the exclusive authority of the Health Department.
Once the contract begins, Mr. Marshall regularly inspects the premises on behalf of the Agency. He checks on the progress as well as any difficulties which may arise during the course of the project. Once the project is completed, an official from the Trust inspects the property and determines whether or not they find there has been compliance with the terms and conditions of the contract. The ultimate determination as to whether or not a Certificate of Approval will be issued is made by the Health Department after their inspection and subsequent tests for lead hazards.
The defendant, John Britto, is the owner of a four-unit 100-year-old apartment house located at 522-538 Stillman Street, Bridgeport. During an inspection for a Certificate Of Apartment Occupancy it was determined that there were hazardous lead conditions in all four units located in the building. The defendant was cited for lead violations which carry civil and criminal penalties. He was referred to the Bridgeport Lead Free Families Program for financial assistance with respect to the costs of remediation which, under state law, is his responsibility
Mr. Marshall accomplished the necessary preliminary procedures of inspecting the Stillman Street property, preparing the necessary bid specifications, conducting a bid walk through the property with potential contractors and evaluating the proposed bids submitted by the contractors. The Trust accepted the bid submitted by the plaintiff, Abatement Industries Group for $68,380. The Bridgeport Lead Free Families Program agreed to finance $48,000 of the cost with the balance of $20,380 to be paid by Mr. Britto through a low interest loan.
The contract between the plaintiff and the defendant was signed by the defendant on December 4, 2006 and by the plaintiff on December 5, 2006. The contract with the attached specifications were sent to Audrey Gaines at the Health Department. The lead abatement contract included two specific conditions which became the primary source of contention in this matter. The first was a requirement that the affected interior doors and CT Page 7853 door jambs were to be removed and replaced. The initial specifications sent to Ms. Gaines also provided for the removal and replacement of 29 exterior windows which were found to be contaminated.
On December 29 Ms. Gaines approved and returned the signed contract and specifications with the written notation that there were to be an additional 17 exterior windows replaced at the request of the owner. All of the additional windows were not contaminated. Ms Gaines testified that she made the change to maintain the aesthetic appearance of the building by having all the windows alike, although aesthetic improvement was not the purpose of the lead abatement program.
John Nericcio is the project manager for the plaintiff, Abatement Industries Group. During the first week in January, 2007, he assigned a window manufacturer to be on site, measuring and arranging for the construction and installation of the contaminated exterior windows. Mr. Nericcio had not been advised of the additional 17 windows. Before he was advised, the owner appeared at the job site and instructed the window manufacturer there to install an additional 17 windows. Unaware that Mr. Nericcio had not been advised, the window manufacturer did begin constructing and installing all the exterior windows. When Mr. Nericcio was finally informed by the window manufacturer of the additional windows, it was too late for him to negotiate payment of the additional work. As a result, the window manufacturer was required to absorb the cost.
When Mr. Marshall began his initial inspection of the project he realized he had made a mistake with respect to the specifications. He testified that he only calls for casings and door jambs to be removed and replaced when the walls are sheet rocked. In the Stillman St. property the walls were not only plaster but, in addition, the house was 100 years old and at that time there was wire mesh encased in the plaster. As a result, when the casing and doorjamb is removed, all of the plaster is disrupted ultimately requiring the entire wall to be removed and sheet rocked.
Mr. Marshall instructed Mr. Nericcio to remove the doors and not the door casings and jambs. He instructed him to encapsulate the exposed lead which is done by sanding down the areas where there is friction between the door and the door jamb and covering it with an encapsulating compound. Mr. Marshall had verbally cleared this method with Audrey Gaines.
Mr. Nericcio testified that he was aware of the specification requiring the removal of the plaster when he bid on the job and that it was a CT Page 7854 risk, but it was a risk he voluntarily assumed.
Tammy Talton is the program director for the Bridgeport Neighborhood Trust. She oversees both the lead remediation programs and the construction management for the Bridgeport Lead Free Families Program. There were several meetings during the project. At one meeting there was a discussion concerning the change order with respect to the doors. In addition to herself, the defendant, Mr. Britto, the Program Director for the Bridgeport Lead Free Families, a representative from the City of Bridgeport and Warner Marshall were in attendance. Everyone there was on the same page that the doors would be replaced but the door jambs and casings were going to be scraped and encapsulated. She testified Mr. Britto was more concerned about getting new doors and trim. He didn’t want the walls replaced with sheet rock as it could mean he would have to pay more than the $20,380 for the project.
Ms. Gaines testified that she did receive a written memo dated May 21, 2007, concerning the change order which she considered a request by Marshall to confirm a change order with respect to the doors. Ordinarily, she testified that she would reply to such a request in writing. Although she did not do so in this particular case, she did accept the change order on behalf of the Health Department ultimately issuing a clearance letter for the project.
In February of 2007 the plaintiff requested a payment of $55,000 representing 80% of the completion of the project. The Bridgeport Neighborhood Trust and the Bridgeport Lead Free Families Program approved the payment. The Bridgeport Neighborhood Trust issued a draft in the amount of $48,000 representing their portion of the payment which was cosigned by the Trust and the owner.
An additional request was made by Bridgeport Neighborhood Trust and the Bridgeport Lead Free Families Program for a check to be issued in the amount of $7,000 which was to be signed by the defendant as part of his agreement. Ms. Talton visited the defendant requesting his signature on the check but he refused. He indicated that there were things he wanted done in the house and he would not sign the check until they had finished. Mr. Britto reported a confusing dispute with the contractor concerning what was to be done with the doors that had been replaced and were in the basement. Although Ms. Talton advised Mr. Britto that the issue of the doors would be resolved, there was additional nitpicking back-and-forth with Mr. Britto, none of which had anything to do with lead abatement.
There had been testimony that Mr. Britto had requested all new doors CT Page 7855 and all new trim. The court asked Ms. Talton whether or not he wanted new doors and whether or not they were put in. She replied “He wanted new everything, Your Honor.”
After the plaintiff completed his contract there was a final inspection done by the Bridgeport Neighborhood Trust, and the Bridgeport Health Department. Both found that the plaintiff had complied with the terms and conditions of the lead abatement contract. The Health Department conducted a subsequent inspection which determined there was no exposed lead in the four units of the apartment house. The Bridgeport Neighborhood Trust and the Bridgeport Health Department issued clearance letters to that effect.
After the contract had been certified, there was a report of lead exposure at the property six months later. Ms. Talton testified that the contractors agree that even after the work has been approved they will still uphold their work for a least one year after they finish. Her experience was that the surface of the property is disturbed either by the paint flaking, a latch being moved or a tenant banging on the wall cracking the paint. In this case, the plaintiff went to the site and resolved the problem at no expense to the defendant.
As this is a foreclosure action, both parties have acknowledged that it is an equitable proceeding. Rockville Bank v. Victory Outreach Ministries Proceeding, 125 Conn.App. 1 (2010).
In his trial brief, the defendant maintains that plaintiff’s foreclosure is barred by breach of contract and breach of the covenant of good faith and fair dealing. The claims are somewhat problematical. There was never an application to discharge the mechanic’s liens or reduce its amount nor did the defendants file any special defenses.
Generally in a foreclosure action, the defense of a breach of contract is prohibited. “The courts are consistent in holding that a breach of contract claim is neither a recognized defense to a foreclosure action nor a defense in equity.” (Internal quotation marks omitted.) Greenpoint Mortgage Corporation v. Ruisi, Superior Court, Judicial District of Danbury, Docket No. 333106 (June 1, 1999, Moraghan, J.).
In this case, however, the plaintiff is seeking a foreclosure judgment on a mechanic’s lien rather than on a mortgage. General Statutes Sec. 49-33(a) provides in relevant part: “If any person has a claim for more than $10 for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its apartments is . . . and the claim is by virtue of an agreement with or by CT Page 7856 consent of the owner of the land . . . or some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands is subject to the payment of the claim.”
At this time, it should be noted that in his post-trial brief the defendant has claimed as the basis for a breach of contract and bad faith claim that, “as a proven and undisputed fact” the change order eliminating the replacement of door jams and casings “was a unilateral decision by the plaintiff. It does not appear that the BNT was even aware of the jam/casing change.”
To the contrary, Mr. Marshall, on behalf of the Bridgeport Neighborhood Trust, determined that he made a mistake in the specifications by ordering removal of the casings and door jambs with a plaster wall, as it would disrupt the plaster requiring a replacement sheet rock wall. He instructed the plaintiffs’ representative not to remove the casing and door jambs but to encapsulate the contact areas. Mr. Nericcio was aware of the initial specification requiring removal of the casing and door jams but was willing to accept the risk.
Mr. Marshall had obtained for approval of the change from Ms. Gaines of the Bridgeport Health Department. He subsequently wrote a memo outlining the change. Although she did not reply in writing, she confirmed her approval and issued a clearance letter for the project.
Ms. Talton testified that there was a meeting concerning the change. In attendance were representatives from the Bridgeport Neighborhood Trust, The Bridgeport Lead Free Families Program, the City of Bridgeport Warner Marshal and the plaintiff, Mr. Britto. All were in agreement to the change. The defendant approved the change in order to avoid any potential further expenses and was only concerned about the quality of the doors and trim being installed.
Summarily, that there was no credible evidence to substantiate such a claim.
The defendant has made various complaints that the work performed by the plaintiff was not in substantial compliance with goods and services required under the lead abatement contract, including properly finishing some work on the defendant’s porch and stairs. His attorney maintains that the defendant should pay nothing.
The plaintiff has claimed that, at the least, there has been substantial compliance with their contractual obligations. CT Page 7857
In making a decision in this equitable proceeding, this the court considered the following.
The defendant, John Britto, owned and maintained a four-unit apartment house on Stillman Street in Bridgeport. A hazardous lead condition was discovered in all four rental units. At that time, Mr. Britto was subject to criminal charges and civil penalties, possible civil liability for damages and financial responsibility for removal of the hazard. He was able to take advantage of a federal project under the authority of the the Bridgeport Lead Free Families Program. The Bridgeport Lead Free Families Agency agreed to provide $48,000 of the $68,638 in costs for lead remediation. The defendant was only required to pay $20,380 through a low interest loan arranged for his benefit. His criminal, civil and financial liabilities were resolved.
Contrary to the purpose of the project being lead remediation only, the defendant requested and was allowed to receive the installation of 17 additional exterior windows for cosmetic purposes only. Before the plaintiff was even aware of the additional windows to be installed, the defendant went to the job site and, without authority, instructed the plaintiffs’ subcontractor to install the additional windows. Upon discovery of their installation, the plaintiff was unable to negotiate an adjustment to the contract price. As a result of the conduct of the defendant the cost of the additional windows was borne, not by the defendant, but by the subcontractor.
Aside from questioning the quality the minor repairs to the stairs and the porch there was no claim that the plaintiff failed in substantially supplying goods and services for the sole purpose of the project, lead remediation in the apartment house. The only criticism by of the defendant was his concern over the cosmetic improvement of his apartment house.
Mr. Britto was described as wanting a “new everything.” He testified that they promised him his house would be beautiful when it was done; that they would “put in all-new wood and stuff”; that they would “fix the porches and everything and everything.” He testified it was a good deal and he would be able to increase the tenants rent “like $50 a month.”
As was adequately summarized by Ms. Talton: “. . . it’s lead remediation, not home improvement.”
It was, in fact, the defendant who breached the contract when he refused payment of the 80% installment due under the contract when CT Page 7858 requested by the Bridgeport Neighborhood Trust and the Bridgeport Lead Free Families Program claiming he would make no additional payments until the project was finished. “A positive statement to the promisee that the promisor will not perform his contract constitutes an anticipatory breach which is a total breach of contract” Sagamore Corporation v. Willcutt, 120 Conn. 315, 318.
The plaintiff claimed that they were in substantial compliance with their obligations to provide the goods and services for lead remediation which is the basis for the mechanics lien.
“The determination as to whether a building contract has been substantially performed is a question of fact for this court to determine.” Argentinis v. Gould, 23 Conn.App. 9, 14, 579 A.2d 1078
(1990), affd in part, rev’d in part on other grounds, 219 Conn. 151, 592 A.2d 378 (1991). “The analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract.” Miller v. Bourgoin, 28 Conn.App. 491, 496, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 820 (1992). The traditional explication of the test of substantial performance was that it “contemplates the performance of all items of a building contract except for minor details, those easily remedied by minor expenditures.”Argentinis v. Gould, supra, 23 Conn.App. 14, citing Rosnick v. Aetna Sheet Metal Works, Inc., 146 Conn. 565, 568, 153 A.2d 435 (1959). More modern authorities set out a variety of factors for the court to consider, including the extent to which the injured party will be deprived of the benefit reasonably expected, the extent to which that party can be adequately compensated for the deficiency of performance, the extent to which the performing party will suffer forfeiture, the likelihood that the performing party will cure his failure in light of the circumstances and his reasonable assurances, and the extent of good faith and fair dealing on the part of the performing party. See 2 Restatement (Second), supra, § 237 comment (d), and 2 Restatement (Second), supra, § 241; see also Vincenzi v. Cerro, supra, 186 Conn. 616.
Connecticut adopts the contemporary view that substantial performance of a contract permits recovery by a contractor. Vincenzi v. Cerro, 186 Conn. 615, 442 A.2d 1352 (1982); see also 2 Restatement (Second) Contracts § 237 comment d. “Substantial performance of a building contract . . . is ordinarily a question of fact for the trier to determine . . . It is peculiarly within the province of the trier of fact to judge the credibility of a witness.” (Citations omitted; internal quotation marks omitted.) Edens v. Kole Construction Co., 188 Conn. 489, 494, 450 A.2d 1161 (1982); see also Nor’Easter Group, Inc. v. Colassale CT Page 7859 Concrete, Inc., 203 Conn. 468, 472-73, 542 A.2d 692 (1988). “The analysis necessarily involves an inquiry into the totality of facts and circumstances surrounding the performance of the contract.” Miller v. Bourgoin, 28 Conn.App. 491, 496, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 820 (1992).
In addition to required approval of the Bridgeport Neighborhood Trust, the sole final arbiter under the federal program with respect to whether or not there was compliance with the lead abatement contract was the Bridgeport Health Department. Both agencies did find and certified that the plaintiff had completed the terms and conditions required under his lead abatement contract.
This court also finds the plaintiff was in compliance with the terms and conditions of the lead abatement contract and did furnish the labor and services on the Stillman Avenue premises as claimed in their mechanic’s lien.
A judgment of foreclosure is granted in the amount of $20,380. In addition, prejudgment interest is awarded pursuant to C.G.S. Sec. 37-3a
and pursuant to C.G.S. Sec. 52-249 the plaintiff is awarded reasonable attorneys fees.
Judgment is entered accordingly.
There will be a post-judgment hearing within four weeks to determine the amount of prejudgment interest as well as reasonable attorney’s fees.
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