2006 Ct. Sup. 3968
No. CV 99-69947SConnecticut Superior Court Judicial District of Tolland at Rockville
February 28, 2006
MEMORANDUM OF DECISION
CONSTANCE L. EPSTEIN, JUDGE.
The captioned matter was instituted by plaintiff, Moulton Brothers, Inc., to foreclose a mechanic’s lien levied against real property located at 69 Gilbert Road in Stafford Springs, Connecticut and owned by the defendants John and Alyson Lemieux. Defendants’ counterclaim sought relief and damages premised on several legal theories. At the original trial of the matter in 2001, the trial court found in favor of the defendants as to plaintiff’s foreclosure complaint and for the defendants on the first count of their counterclaim discharge of the mechanic’s lien. During the trial, the court had dismissed the defendants’ allegations of a violation of the Home Solicitation Sales Act, and at trial the court found against Mr. and Mrs. Lemieux and in favor of Moulton Brothers on to remaining counts of the counterclaim, holding that the evidence did not support the defendants’ counterclaim allegations of misrepresentation and violation of the Connecticut Unfair Trade Practices Act, and further holding that the defendants’ counterclaim did not set forth a claim for breach of contract.
On appeal of the trial court decision, the Appellate Court affirmed the judgment of the trial court in all respects except as to its determination regarding the third count of defendants’ counterclaim. Moulton Brothers, Inc. v. Lemieux, 74 Conn.App. 357 (2002). The Appellate Court held that a breach-of-contract claim had been asserted and remanded the matter for a hearing on the merits of the claim of Mr. and Mrs. Lemieux as to breach of contract by Moulton Brothers, Inc.
Factual Background
In June 1997, the defendants approached the plaintiff with a magazine floor plan of a house they wished to build, and after several meetings and various negotiations, a contract was CT Page 3969 entered. The structure is a residential home, with a cathedral ceiling providing for a “great room” adjacent to the kitchen. Disputes as to the quality of the work arose during the construction, and the defendants did not meet the payment schedule. Despite those disputes and the incomplete status of the construction of the home, Mr. and Mrs. Lemieux moved into the home in the fall of 1998. The plaintiff continued work on the house after the move. A Certificate of Occupancy was issued by the Town of Stafford on October 6, 1998.
Disputes and complaints continued, and, in late October 1998, the parties entered into additional negotiations. In these negotiations, defendants were to be given credit for the “cushion” that had been factored into the original quote and also deductions for several items. Those reductions lowered the construction price from $162,752 to $144,500. To that amount charges were added for changes and extras that were agreed upon and the final purchase price amounted to $147,942. The defendants paid $54,075, the balance an that last amount. In addition, the parties entered into an additional agreement that, when plaintiff satisfactorily completed a 28-item punch list, the defendants would pay an additional $14,700.
After completing some of the items on the punch list, plaintiff asked Mr. and Mrs. Lemieux to sign off on those items. They refused the request, insisting that the entire list be completed before they would sign off. As a result of their refusal, the plaintiff left the site, discontinued any further work, and fled the mechanic’s lien, asserting that it was owed $29,510.
In the first trial, the court found that the plaintiff had remedied only some of the punch list deficiencies, with the bulk of the items remaining uncorrected, and, on that basis, decided on the defendants’ behalf on the mechanic’s lien foreclosure issue. As is set forth in the procedural history above, the Appellate Court affirmed that portion of the first trial court decision but did find error in the trial court’s determination as to whether Mr. and Mrs. Lemieux had set forth a count in their counterclaim sounding in breach of contact. A second trial proceeded and this memorandum of decision addresses the claim of breach of contract asserted by Mr. and Mrs. Lemieux against Moulton Brothers, Inc.
Discussion and Findings
CT Page 3970 In their counterclaim, the defendants assert that plaintiff breached its contract with them in not completing work, doing work in an unworkmanlike manner, using unsuitable materials, and designing and constructing the house in a manner not in accord with sound engineering standards, in violation of the Building Code, and/or in an unskillful or negligent manner. In their counterclaim, the defendants list thirty-seven specific deficiencies and as to one of these, “inadequate framing,” the defendants list nine particulars. At the second trial, testimony was also elicited as to present complaints regarding the septic system at the subject premises.
In its contract with Mr. and Mrs. Lemieux, Moulton Brothers agreed: “All material is guaranteed to be as specified. All work to be completed in a professional manner according to standard practices.” From the evidence presented, it is clear that there were several items that could only be considered as “substandard” and they are addressed below. However, as to the complaints about the septic system, these complaints were not set forth in the defendants’ counterclaim. In order to recover damages, and to introduce evidence as to same, the injury alleged must be set forth in the complaint. Pasiakos v. BJ’s Wholesale Club, Inc., 93 Conn.App. 641, 649 (2006). Moreover, the septic system deficiency claims were new claims introduced at the second trial, which took place more than five years after the counterclaim was asserted, and more than 6 years after the plaintiff stopped work on the premises. There are numerous problems with the late introduction, at the second trial, of this claim and, consequently, the defendants cannot prevail as to any assertions with regard to the asserted septic system problems.
With regard to the structural defects in the framing of the house, there is indeed a question as to whether the framing in the home was substandard and is the cause of many of the deficiencies about which the defendants complain, including cracks in the walls and ceilings, bulges in the walls, and cabinets separating from walls. However, there was no evidence that established the cause of these problems under the standards required by Connecticut law. Defendants’ expert, Professional Engineer Kiran S. Majmudar, inspected the defendants’ home in the summer of 1999 and opined that inadequate or improper framing was the “potential” cause of many of the problems with the house. In addition, his testimony went no further than to establish that the framing “could” have caused the defects noted. Indeed, at one point in his testimony, Mr. Majmudar stated that he did not know CT Page 3971 how the building was framed and he indicated that, to determine “exactly what was happening,” it would be necessary to remove the sheetrock and view the framing. Mr. Majmudar also listed other “potential” causes such as use of poor-quality material, general poor workmanship, splicing, making connections, shrinking or expansion. Finally, Mr. Majmudar admitted that he could not opine that the structure was unsound.
Sam Rizza, a general contractor, also an expert for defendants, prepared an estimate for the defendants in May 2001. Although his report reveals his finding of many problems, it also reveals his finding that the exposed framing appeared normal and acceptable. He found no visible problems with the foundation. He was unable to determine if the microlam beam running through the chimney was supported by a bearing wall or by masonry.
There was a great deal of testimony during the trial about the fact that beams other than a microlam were installed in the basement, however, the evidence did not establish that this caused damage to the home,
Expert testimony must be based on reasonable probabilities, not possibilities. Drew v. Backus Hospital, 77 Conn.App. 645, 662
(2003). Even disregarding semantics and looking at the entire substance of the defendants’ experts’ testimony, the proffered opinions amount to supposition, which is insufficient to establish the claims for which they were offered. Truglio v. Hayes Construction Co., 66 Conn.App. 681, 691-92 (2001). “Although an expert witness is not required to express an opinion with absolute certainty, he or she must speak in terms of the probable and not merely the possible.” Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 254 (1987). The evidence presented at trial does not support defendants’ contentions that the framing was improperly constructed.
However, the court does find that defendants did establish a failure on the part of plaintiff to provide workmanlike quality in its work in the interior and exterior of this home in several aspects, through presentation of evidence of the condition of the premises within a year of the plaintiff’s desertion of the project as seen in photographs, documented by testimony, and further documented by the report of Mr. Rizza, prepared as of May 23, 2001. Some of the more obvious aspects of the problems with this new home were: CT Page 3972 Cracking in the walls of the great room and the kitchen at several places;
Kitchen cabinets separating from walls;
Cabinets not centered around the window;
Kitchen counter backsplashes separating from walls;
Doors and windows in one small area all at different heights;
Dryer vent located at an area where deck is to meet the house;
Walls at rear of house are bowed;
Paint was very poorly applied;
Mud room door is not centered;
Exterior patio sliders were installed in a damaged condition;
Kitchen tile grout work was improperly done;
Wood wall/floor molding did not abut floor vents and heating outlets;
Convection covers for heating were poorly installed; and
Joist hangers were not used for the wrap-around porch.
The numerous photographs reveal an unbelievably unprofessional lack of attention to completion of the work and to disturbingly obvious defects. The submitted estimated cost of repairs of these defects is $40,157. Defendants have also established that the roof shingles were improperly installed. Evidence was submitted that, as of June of 1999, the repair for this deficit would cost $6,850.
The basic measure of damages in construction cases such as the instant case is the diminution of value of the property, or the CT Page 3973 cost of repairing the damages, so long as the repair costs do not exceed the former value of the property. Willow Springs Condominium Ass’n., Inc., v. Seventh BRT Development Corp., 245 Conn. 1, 59 (1998). Defendants have elicited testimony that the costs had increased approximately 40% since the time of the estimate, however, damages for breach of contract are measured from the time of the breach. Thames River Recycling v. Gallo, 50 Conn.App. 767, 790 (1998).
Defendants have made a claim for attorneys fees, however, there is no provision in the contract for the award of such fees, and, absent that, and absent any statutory provision that would otherwise entitle the defendants to attorneys fees (the “American Rule”), such fees may not be recovered under governing Connecticut law. MD Drilling Blasting v. MLS Construction, LLC, 93 Conn.App. 451, 457-58 (2006).
In summary, the court finds that defendants have established that plaintiff breached its contract with them in numerous details of the construction which were unworkmanlike or were not completed at all, all in all completely unprofessional, and defendants have established damages in the amount of $47,007. The court finds for the defendants on the counterclaim in that amount. CT Page 3974