ABATEMENT INDUSTRIES GROUP, INC. v. HRH/ATLAS CONSTRUCTION ET AL.

2005 Ct. Sup. 6702
No. CV02-0077053SConnecticut Superior Court Judicial District of Ansonia-Milford at Derby
April 20, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
RIPLEY, JUDGE TRIAL REFEREE.

The plaintiff in this matter seeks to recover damages from the defendant State Street Bridgeport Limited Partnership upon a claimed breach of contract involving the plaintiff’s removal of asbestos from a building located in Bridgeport, Connecticut which building, the former defendant HRH/Atlas, was engaged in renovating for the owner, the defendant State Street Bridgeport Limited Partnership (SSBLP). The plaintiff commenced work on or about January 29, 1998 and continued to July 1999. The plaintiff upon completion of its work had been fully paid by HRH with the exception of ten percent of the adjusted contract price which represented the retainage appropriately withheld under the terms of the contract between the plaintiff and HRH/Atlas. The dollar amount of the withheld retainage was $73,812.80.

While the work completed by the plaintiff was found to be satisfactory in all respects as set out in the stipulation of facts, the retainage due the plaintiff was never paid for a variety of reasons. Difficulties arose between HRH and the owner SSBLP which led to a termination of HRH Services on the project on June 30, 2000. SSBLP completed the project and the dispute between SSBLP and HRH was submitted to arbitration which concluded with an award of $252,697 to HRH. The retainage due the plaintiff was not especially mentioned in the arbitrator’s award as being an obligation owed by HRH or SSBLP. It should be noted that Connecticut Housing Finance Authority (CHFA) had during the course of HRH/Atlas’ performance of the renovation contract taken over from HRH contract disbursements including the retainage arising from the performance of the plaintiff’s contract in the amount of $73,812 as previously noted. The plaintiff had made demand for payment to both HRH and SSBLP but to no avail. On May 1, 2004 the plaintiff settled its contract claim with HRH for the sum of $52,000 filing a withdrawal of action against HRH. The CT Page 6703 plaintiff now seeks to recover of SSBLP the balance of the retainage of $21,812 claiming in the Second Count damages based upon unjust enrichment.

The defendant generally denies any liability as to the plaintiff’s claim and pled by way of special defenses

(1) full payment of its obligations;

(2) the plaintiff’s claims are barred by the statute of limitations;
(3) the defendant paid HRH more than was due under its contract;
(4) by failing to pursue a bond claim, the plaintiff’s claim is barred by laches;
(5) the plaintiff having failed to file a mechanic’s lien is barred by laches;
(6) plaintiff’s claim was satisfied by its settlement with HRH;
(7) some or all of the plaintiff’s claims are outside the scope of the contract.

The plaintiff, quoting from Williston on Contracts, Vol. 5, Sec. 1479 that “unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract.” In Franks v. Lockwood, 146 Conn. 273, 278 the court noted; “it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another.”

It is clear from the stipulation of facts that SSBLP was aware of the plaintiff’ s contractual right to recover the amount withheld under the retainage clause of the contract between HRH/Atlas as it took over HRH contract disbursements. This was done presumably to control the expenditure of contract funds for its own protection. It is also clear that SSBLP accepted the plaintiff’s performance of its subcontract with HRH/Atlas as being satisfactory and in accordance with its contractual obligations. CT Page 6704

It is also clear that the arbitrator’s award made no special mention of the retained amount which was due and owing to the plaintiff at the time of completion of the contract subject only to the expiration of time as provided for under the subcontract. The settlement arrived at between HRH/Atlas for $52,000 and the plaintiff also made no mention of the retainage held by SSBLP according to the stipulation of facts.

It is clear that the defendant has accepted the benefit of the plaintiff’s work and continues to retain a portion of the funds which were due and owing to the plaintiff and further that the plaintiff had no contractual relationship with the defendant SSBLP.

As to the claims of the defendant that the plaintiff is barred by laches for its failure to pursue a bond claim or mechanic’s lien, the court adopts Judge Corradino’s rationale in Brothers, Inc. v. City of Hartford, Superior Court at Hartford, CV93-0704020S (1996) that the existence of mechanic liens statutes or other avenues of recovery does not preclude a claimant from using a common-law remedy if he so elects. The court concludes that the defendant’s special defenses of failure to pursue a mechanic’s lien or bond claim are ill-founded and do not bar the plaintiff. As to the claim of the statute of limitations as the second special defense, the issue was not briefed by the defendant and the court considers it abandoned.’ The defendant further claims that the plaintiff is not entitled to attorneys fees but the court finds no claim for such briefed by plaintiff’s counsel. As to interest under Section 37-3a, monies wrongfully withheld after it becomes payable, the court concludes that with the many disputes and disagreements that arose in the performance of this construction contract it is unclear when contract funds became undisputably “payable,” and so the court declines to award prejudgment interest.

The court finds the issues for the plaintiff as claimed and awards the plaintiff the sum of $21,812. Judgment may enter accordingly.

George W. Ripley II Judge Trial Referee

CT Page 6705