Opinion
FSTCV176030854S
12-14-2018
Mario ACOCELLA v. GALLERY KITCHENS & BATHS et al.
UNPUBLISHED OPINION
OPINION
Alex V. Hernandez, J.
Plaintiff Acocella brought a three-count complaint against defendants Gallery Kitchens & Baths ("Gallery") and its principal owner and President, Matthew Cowan ("Cowan") in connection with their performance of a contract (Ex. 1) to fully renovate the plaintiff’s residence alleging: 1) breach of contract; 2) violation of the Connecticut Unfair Trade Practices Act ("CUTPA"); and 3) negligence. For the reasons set forth below, the Court finds that the plaintiff has failed to prove by a fair preponderance of the evidence that the defendants are liable on any of these counts.
Findings of Fact
A trial was held before the court (Hernandez, J.) on July 10 and 11, 2018 in Stamford Superior Court. The court carefully observed the testimony of the various witnesses, assessed their credibility and the probability of their testimony and the extent to which the witnesses’ versions of the facts were corroborated by contemporaneous transactions and communications. The court fully credits the testimony of defendant Cowan. To the extent that his testimony varied from that of the plaintiff and the plaintiff’s spouse, the court accepts Cowan’s testimony as credible.
On January 13, 2015, plaintiff entered into a contract with Gallery to fully renovate the interior of his and his wife’s newly purchased condominium at 26 Mead Street in New Canaan, Connecticut. (Ex. 1.) The work to be performed consisted of a nearly wholesale renovation which required most of the interior being stripped down to the studs so that all rough plumbing and electrical could either be replaced and/or relocated to accommodate a new design of the residence. (Cowan Tr. 07/11/18, p. 47.)
The contract, which fully conformed to the requirements of the Connecticut Home Improvement Act ("the HIA"), was entered into between Gallery, a corporate entity, and the plaintiff. Gallery was represented by its principal and owner, Cowan, who signed the contract as President and not in his personal capacity. (Ex. 1, p. 3.) The contract identified Gallery’s license number and provided plaintiff with notice of his cancellation rights as a homeowner. (Id.)
The following, salient provisions, among others, constituted express, material provisions of the contract:
Gallery was required to provide labor and materials to complete the project;
Gallery was required to commence work on January 23, 2015;
Gallery was required to complete work on January 23, 2016;
Plaintiff was required to make specific, scheduled progress payments related to the base contract price.
The need for the plaintiff to timely make the scheduled payments was a material provision of the contract. Consistent, periodic cash flow was necessary to ensure that Gallery was able to timely pay its third-party subcontractors and materials providers. Making timely payments to third parties was essential to ensure that materials were timely delivered and to ensure that the third parties continued working for Gallery. In short, making the full, scheduled payments was mutually beneficial to the parties to the contract. (Cowan Tr. 07/11/18, pp. 48-49, 57.)
The plaintiff and his spouse asserted that he complied with his obligation to make scheduled payments to Gallery. He offered a schedule (Ex. 22) which was prepared to prove that he complied with this material element of the contract. Plaintiff’s own schedule, however, demonstrated that he and his spouse failed to make timely payments on a number of occasions. For example, plaintiff was required to make a payment of $27,887.50 upon Gallery’s completion of all rough plumbing and electrical work which represented 20% of the contract price. The evidence, however, established that on or about April 13, 2015, the plaintiff paid only $22,000 towards this scheduled payment. This constituted a clear, material breach of the plaintiff’s obligations under the contract.
As a result of plaintiff’s failure to make this scheduled payment, Gallery contemporaneously issued an invoice dated April 20, 2015 in order to remind the plaintiff of his payment obligations. Gallery also sent an email on April 22, 2015 to remind the plaintiff of this contractual obligation. The plaintiff later attempted to cure the breach by paying the balance due.
The contract also provided for a scheduled payment of $27,887.50 representing an additional 20% of the contract price which was due after the sheetrock was taped. The plaintiff again breached his contractual obligations in May when he paid only $13,943, half of what was owed. (Ex. 22; Cowan Tr. 07/11/18, p. 52.) This too constituted a material breach of the plaintiff’s obligation. Approximately 40 days later, on June 29, 2015, the plaintiff belatedly remitted the balance of this payment. (Ex. 22.)
Although the contract provided that Gallery would complete the work on January 23, 2016, in July 2015-six months before the completion date-the plaintiff unilaterally withdrew from the contract when the Acocellas threatened Gallery with arrest if Cowan or its subcontractors returned to the premises to complete the job. (Acocella Tr. 07/10/18, pp. 124-25; Mrs. Acocella Tr. 07/11/18, p. 40.) On July 27, 2015 at 12:48 PM, an email was sent to Cowan from Mrs. Acocella’s account which read, "Hello I’m going finish my job I want you do not step on my property because I’m going report you at police station if you do you going be arrest thanks." (Ex. M, p. 20.)
Defendant Cowan
The plaintiff failed to adduce any evidence that Cowan was a party to the contract in his personal capacity. Thus, the court finds that Gallery, not Cowan, was a party to the contract. (Exs. 1 & A, p. 3.) The plaintiff’s claims against Cowan in his personal capacity, therefore, are rejected and judgment shall enter for defendant on each count of the complaint. As set forth below, assuming, for the sake of argument, that Cowan may be held personally liable, the plaintiff nevertheless has failed to establish essential elements of each of the three claims.
Breach of Contract (Count One)
In order to prevail on a claim of breach of contract, the plaintiff must establish: 1) the formation of an agreement with the defendant; 2) that the plaintiff performed his obligations under the agreement; 3) that the defendant failed to perform its obligations under the agreement; and 4) as a result, the plaintiff sustained damages. Keller v. Beckenstein, 117 Conn.App. 550, 558, cert. denied, 294 Conn. 913 (2009); Chiulli v. Zola, 97 Conn.App. 699, 706-07 (2006).
The parties-plaintiff and corporate defendant Gallery-entered into an enforceable agreement to remodel the plaintiff’s residence. Defendant Cowan is not personally a party to that contract and the plaintiff has proffered no evidence to the contrary. Thus, the plaintiff has satisfied the first element as to Gallery, but wholly failed to prove this element as to defendant Cowan.
Although an enforceable contract existed between Gallery and the plaintiff, the plaintiff failed to adduce any credible evidence that Gallery or any other party failed to comply with its obligations to the plaintiff under the contract. Rather, to the extent that the defendant ceased performing on the contract, the court finds that it was due to plaintiff’s threat to have Gallery’s employees arrested if they returned to the worksite. (Acocella Tr. 07/10/18, pp. 124-25; Mrs. Acocella Tr. 07/11/18, p. 40; Ex. M, pp. 18, 20.)
"Under the doctrine [of prevention], if a party to a contract prevents, hinders, or renders impossible ... the performance of a return promise, [the preventing party] is not relieved of the obligation to perform, and may not legally terminate the contract for nonperformance." Blumberg Associates Worldwide, Inc. v. Brown & Brown, 132 Conn.App. 85, 94-95 (2011). By revoking Gallery’s license to enter the worksite and threatening criminal prosecution of Gallery employees, the plaintiff hindered and prevented Gallery from performing on the contract. Indeed, threat of arrest rendered completion impossible. The plaintiff, not Gallery, breached the contract.
Plaintiff seeks to recover the cost and expenses that he paid to third-parties to complete the work that he expressly prohibited Gallery from performing. Not surprisingly, Connecticut law prohibits recovery under the referenced circumstances. In Hartford Elec. Applicators of Thermalux, Inc. v. Alden, 169 Conn. 177, 183-84 (1975), the Connecticut Supreme Court stated that [e]ven in the absence of an express covenant, there is an implied one that the contractor shall be permitted to proceed with his construction in accordance with the contract and that he shall be given possession of the premises to enable him to do so ... A delay caused by the owner may constitute a breach excusing performance as required by the contract." Id. (Internal citations and quotations omitted.) Here, Gallery was excused from performing the contract when the Acocellas prevented it from re-entering their residence six months before the work was scheduled to be completed.
Plaintiff Acocella was likewise in breach when he failed to timely make the payments scheduled in the contract. In Coppola Const. Co., Inc. v. Hoffman Enterprises Ltd. Partnership, 157 Conn.App. 139, 162-63 (2015), the Appellate Court found that a property owner’s actions of failing to make timely payments to a general contractor and replacing the general contractor with a substitute contractor constituted a material breach or anticipatory repudiation of the subject construction contract. Id. As a consequence, the general contractor was excused from performing the contract because it was the owner’s decision to end the general contractor’s involvement prior to the work’s completion. Id.
In short, the plaintiff’s breach of contract claim wholly fails as to defendants Gallery and Cowan.
Connecticut Unfair Trade Practices Act (Count Two)
In order to prevail on a CUTPA claim, the plaintiff must prove that the defendant engaged in an unfair method of competition or an unfair or deceptive act or practice in the conduct of trade or commerce and that this caused the plaintiff to sustain an ascertainable loss. General Statutes § 42-110b(a). In order to prove that a defendant engaged in an unfair trade or practice, the plaintiff must establish that the manner in which Gallery conducts its remodeling business meets at least one of the three following criteria: 1) it offends public policy as it has been established by statutes, the common law or other established concept of unfairness; or 2) it is immoral, unethical, oppressive or unscrupulous; or 3) it causes substantial injury to consumers, competitors or other business persons. Edmands v. CUNO, Inc., 277 Conn. 425, 450 n.16 (2006); Willow Springs Condominium Ass’n, Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 43 (1998); Fink v. Golenbock, 238 Conn. 183, 215 (1996); Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 507 (1995); Tarka v. Filipovic, 45 Conn.App. 46, 55, cert. denied, 242 Conn. 903 (1997); Meyers v. Cornwell Quality Tools, Inc., 41 Conn.App. 19, 35 (1996).
The court finds that there was no evidence presented to support any finding that Gallery’s conduct constituted an unfair method of competition. Neither did it engage in any unfair or deceptive act or practice in the conduct of trade or commerce. The plaintiff also failed to demonstrate that he sustained an ascertainable loss. Rather, to the extent that the plaintiff spent greater sums of money to substitute contractors than the sums due on the contract, the overages were due entirely to the plaintiff’s conduct. Indeed, the plaintiff failed to adduce any credible or competent evidence that any of Gallery’s work-other than a second floor bathroom, discussed below-was defective, unworkmanlike, or otherwise negligent or unreasonable. Judgment shall enter in favor of the defendants on count two.
Negligence (Count Three)
In order to prevail on a negligence claim in connection with a contract, the plaintiff must establish the existence of a legal duty, violation of that duty, causation and damages. Centimark Corp. v. Vill. Manor Associates Ltd. Partnership, 113 Conn.App. 509 (2009); Phaneuf v. Berselli, 119 Conn.App. 330, 336, 988 A.2d 344 (2010).
Because Cowan was not a party to the contract-Gallery, not Cowan-had a duty towards to the plaintiff. Indeed, one of the plaintiff’s salient claims is that Cowan was not present when Gallery performed most of the work at his residence. The negligence claim as to defendant Cowan necessarily must fail. Assuming, for the sake of argument, that Cowan owed some other, non-contractual duty to the plaintiff, the plaintiff offered no credible evidence that either Cowan or Gallery was negligent.
Gallery clearly had duties under the contract, express and implied, to perform the work agreed upon and to do so in a workmanlike fashion. There was only one instance in 2015 when the plaintiff complained of the quality of the defendants’ work. Specifically, the Acocellas were dissatisfied with the quality, fit and finish of tile in a second floor bathroom. In response, Cowan arranged for Gallery to replace and refinish the tile floor to the Acocellas’ satisfaction and at no additional cost to them. (Cowan Tr. 07/11/18, pp. 55-56, 126-27.)
At trial, the plaintiff complained of the quality of Gallery’s work in a number of respects. As set forth below, however, careful examination of those claims reveals that they were either erroneous, based upon the plaintiff’s misapprehension of how work was to be completed, or belied by documentary evidence.
For example, at trial the plaintiff claimed in his proffered trial Exhibit 24 that Gallery had failed to install certain doors. Gallery did, however, install the doors. (Acocella Tr. 07/10/18, p. 129.) Plaintiff, rather than Gallery, had purchased and provided the doors for the project. At trial, plaintiff asserted that Gallery failed to give him a credit for the doors, claiming, in essence, that he was overbilled. The evidence showed, however, that Gallery billed the plaintiff $0.00 for the subject doors. (Acocella Tr. 07/10/18, p. 129, 130.)
The foregoing was not an isolated example. Plaintiff also claimed that Gallery failed to give him a credit for a staircase and railing, asserting again that he was billed for materials which were not provided and for work which was not performed. The competent and credible evidence, however, established that Gallery billed the plaintiff $0.00 for the staircase and railing. (Acocella Tr. 07/10/18, pp. 135, 136; Ex. 1.)
Plaintiff testified that Gallery failed to issue other credits due him when, in fact, Gallery provided those credits in a memorandum dated May 4, 2015. (Cowan Tr. 07/11/18, pp. 62-63; Ex. 1, p. 4.) Plaintiff testified that Gallery had mistakenly installed kitchen cabinets in the bathrooms when, in fact, Gallery installed appropriate bathroom vanities. (Cowan Tr. 07/11/18, pp. 93-94.)
Similarly, plaintiff claimed that he never received any of the plumbing supplies referenced on invoice number 209 (Ex. 6), when, in fact, the plaintiff himself signed off on a receipt acknowledging his receiving the subject plumbing supplies. (Ex. U; Acocella Tr. 07/10/18, p. 59; Cowan Tr. 07/11/18, p. 97.)
Finally, the plaintiff asserted that Gallery substituted a cheaper, inferior stone countertop in place of the stone he and his wife had agreed to purchase. He claimed, in fact, that Cowan "never put a deposit" on a countertop selected by the Acocellas "because [Gallery] paid ... less money" for another stone. (Acocella Tr. 0710/18, 58.) The credible evidence, however, established that the Acocellas spent a day with Cowan at the stone supplier’s warehouse where they selected and signed off on a particular type of countertop slab which Cowan accurately ordered and had custom fabricated. (Ex. I.) The Acocellas changed their mind upon viewing the final product and claimed that the countertop slab was not the same one which they had selected. The credible evidence established, however, that the business practices of the stone countertop industry, which were followed in this case, insured that the stone selected by the Acocellas, and no other, was in fact delivered for installation. (Exs. I, P-T.) The plaintiff failed to prove that any party was negligent in executing the contract or performing the work or that he was harmed in any way.
WHEREFORE, for the reasons set forth above, the court finds that the plaintiff has failed to meet its burden of proof and directs that judgment enter in favor of the defendants as to each count of the complaint.
SO ORDERED.