Opinion
No. CV 04-0568832 S
October 20, 2005
MEMORANDUM OF DECISION
I. PROCEDURAL BACKGROUND
This vigorously contested action was commenced by writ, summons and complaint dated February 15, 2004 returnable to this court on March 23, 2004. Plaintiffs revised their complaint on November 29, 2004. The complaint alleges a breach of contract.
Defendant's answer denied all the allegations relating to a breach of contract and filed two (2) special defenses: (1) that Plaintiffs breached the contract by prohibiting Defendant from entering the premises; and (2) that Plaintiffs "accepted" the Defendant's work. The Plaintiffs denied these defenses.
The matter was tried on September 27, 2005. All parties were represented by counsel, presented evidence and submitted affidavits of attorneys fees.
II. FINDING OF FACTS
From the evidence introduced at trial and the reasonable inferences from the evidence and taking into account the credibility of the witnesses, the court makes the following finding of fact.
Plaintiffs are the owners of a house at 18 Village Drive, Waterford, Connecticut. The plaintiff, Timothy B. Bonanno, built the house in 2002 and acted as his own general contractor. The plaintiff hired a third party at that time to complete the interior painting. The plaintiff was dissatisfied with the initial interior painting. The thereafter obtained estimates for the cost CT Page 13351-fe of repainting the interior.
On October 11, 2002, the defendant submitted a proposal for the interior repainting work to be performed. The plaintiff and his wife accepted the proposal and signed the contract.
The contract specified that the following work was to be completed for the contract price of $18,700.00:
House:
Walls and Ceilings — Scrape, skim coat, and sand walls and ceilings to a smooth finish. Spot prime patches and apply; 1 coat finish paint in all rooms excluding exercise room, bonus room over garage and all closets.
Wood Trim:
Condition, stain, sand sealer, and apply 2 coats poly to replacement closet doors in 1st floor hall and bare areas on windows throughout the house.
Even out stain in master bedroom.
Sand all drips, sags, and rough areas and apply one coat poly to trim in all rooms, excluding exercise room, closets, except for storage access door, bonus room over garage, except for stairs and handrails.
Only 8 new window grills will be stained and polied to replace broken grills.
Fiberglass Doors:
Even out stain where needed and apply 2 coats polyurethane.
Garage:
Prep and apply one coat to ceilings.
Carriage House:
Prep and apply 1 coat paint to walls, ceilings, and floor and apply 2 coats poly to trim.
Payments totaling $18,700.00, were to be negotiated and the final payment was to be due one day after satisfactory completion. CT Page 13351-ff
At the time of the signing of the contract the parties understood that the defendant was to begin the painting shortly after that date and continue until the painting was complete. It was understood as part of the agreement that the defendant would have access to the premises for the purpose of completing the work. It was, however, also understood that there would be an interruption in the work around the Thanksgiving, Christmas and New Year holidays. The defendant started the work in late November after the plaintiff paid a deposit of $6,233.33. The work continued uninterrupted except for a few days for the holidays.
The defendant's employees undertook to paint one area at a time, moving to the next area only after the plaintiffs indicated their satisfaction with the completed portion of the work. Throughout the course of the work Mrs. Bonanno and, occasionally, Mr. Bonanno pointed out perceived imperfections in the work requiring the defendant to repaint an area they had painted until the plaintiffs were satisfied. The defendant's employees did this. The defendant's employees had as their goal the complete satisfaction of the plaintiffs even when they did not agree with the complaints being made. The demands of the plaintiff in this regard were in excess of the normal commercially acceptable quality painting standards. No extra charges were made for this extra effort.
The plaintiff paid a further $6,233.33 on January 24, 2003. An additional $500.00 was requested and paid toward the contract in February 2003. At that time, without advanced consultation or notice, the plaintiff required the Defendant to leave the premises when a restraining order was placed against him by the court at the request of his wife. The plaintiff wanted to be on the premises to review the work as it was being done and that would not be possible during the term of the restraining order.
At the time the defendant was refused access to the premises the work had been completed except for one remaining wall in the formal dining room and the work in the carriage house. At that time, as Mr. Bonanno testified, the contract was two-thirds completed. The reasonable value of the work completed was two-thirds of the contract price or $12,466.66. It is found that all the work that had been completed was done in a workmanlike manner at least consistent with the standards in the trade. On March 17, 2003, at the request of the defendant, the plaintiff CT Page 13351-fg actually paid another $500.00 to the defendant without complaint about the quality of the work. The restraining order had been vacated on March 15, 2003. The defendant had not at that time agreed upon a date to return to the property to finish the work but did not notify the plaintiff that they would not return.
The defendant would have preferred to have had continuous access to the premises in order to complete the job.
Due to the nature of the conversations with Mrs. Bonanno during the time they were on the job the defendant's employees had the belief that the Plaintiff and his wife would be getting a divorce and that they would not be asked to return to the job site.
When finally asked by Mr. Bonanno to return to the property to complete the work the defendant refused.
The plaintiffs hired another contractor to complete the work called for under the contract.
The court did not find credible the plaintiff's evidence relating to the bidding process for this work or the cost of the same. The plaintiff did not sustain the burden of proof with respect to that aspect of the case. The reasonable value of the work to be completed is found to have been the remaining one-third of the original contract price, or $6,233.33. At that time there was still due under the contract an additional $5,233.34 which had not been paid by the plaintiff. The difference is $1,000.
III LAW
The plaintiff has the burden of proof of the claims pled in the complaint. Northrop v. Allstate Insurance Co., 247 Conn. 242 (1998). The burden of proving the special defenses lies with the defendant. Selvaggi v. Miron, 60 Conn.App. 600 (2000).
To establish that the plaintiff is entitled to damages stemming from the defendant's alleged breach of contract, the plaintiff must prove that: (1) the defendant and the plaintiff formed an agreement; (2) the plaintiff performed under the agreement; (3) the defendant breached the agreement; and (4) the plaintiff incurred damages. Rosato v. Mascardo, 82 Conn.App. 396, 411 (2004). Further, the plaintiffs must prove that the damages sustained were caused by the breach and were not the product of some other cause. See West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 314-15. (1988). CT Page 13351-fh
Connecticut courts have held that "[e]very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement." (Internal quotation marks omitted.) Warner v. Konover, 210 Conn. 150, 154 (1989). See also Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 333 (2005). In Magnan v. Anaconda Industries, Inc., the court interpreted this duty to be a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended. See, Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 567 (1984).
The contract in this case impliedly required Plaintiff to allow Defendant access to the premises to perform its portion of the contract. "Where a party stipulates that another shall do a certain thing, he thereby impliedly promises that he will himself do nothing which will hinder or obstruct the other in doing that thing." Godburn v. Meserve, 130 Conn. 723, 726 (1944). "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 he shall be given possession of the premises to enable him to do so." Livolsi Const. Co. v. Shepard, 133 Conn. 133, 136 (1946). "Prevention of performance by the owner would justify recovery by the contractor." Pasqualin v. Northeast Home Improvement, Superior Court, Judicial District of New London, (September 8, 2005, Leuba, JTR) Docket No. CV 04 0569322. This concept is akin to the doctrine of "impossibility of performance." See Hess v. Dumouchel, 154 Conn. 343, 350 (1966); Roy v. Stephen Pontiac-Cadillac, Inc., 15 Conn.App. 101, 104 (1988).
"As a general rule, in awarding damages upon a breach of contract, the prevailing party is entitled to compensation which will place him in the same position he would have been in had the contract been properly performed." Argentinis v. Gould, 219 Conn. 151, 157 (1991); Sperry v. Moler, 3 Conn.App. 692, 695 (1985). With regard to a breach of a construction contract involving alleged defective or unfinished construction, damages are measured by computing either (i) the reasonable cost of construction and completion in accordance with the contract, if this is possible, or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste. Sperry v. Moler, 3 Conn.App. 692, 696 (1985).
Plaintiff is entitled to damages which the defendant, as a reasonable person, should have realized might result from his breach of the contract. Cohn v. Norton, 57 Conn. 480, 490-91 (1889). CT Page 13351-fi
With regard to attorney fees Connecticut has adopted the "American rule" that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. Marsh, Day Calhoun v. Solomon, 204 Conn. 639, 652 (1987). The parties entered into a contract here which provided for attorneys fees for the defendant in the event of a collection matter. This contractual language coupled with Section 42-150bb of the Connecticut General Statutes, provides the basis of the exception to the American rule. Plaintiff claims attorneys fees as a portion of the relief sought. The pertinent portions of the statute provide as follows:
Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorneys fee of the commercial party to be paid by the consumer, an attorneys fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease . . . For the purposes of this section, "commercial party" means the seller, creditor, lessor or assignee of any of them, and "consumer" means the buyer, debtor, lessee or personal representative of any of them. The provisions of this section shall apply only to contracts or leases in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes.
C.G.S.A. § 42-150bb.
"In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature . . . [W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent." (Citations omitted, internal quotation marks omitted.) Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 390 (1993). "The intent of the legislature . . . is to be found not in what the legislature meant to say, but in the meaning of what it did say . . . It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature . . . It is also a tenet of statutory construction that the CT Page 13351-fj legislature is presumed to be aware of existing statutes." (Citations omitted, internal quotation marks omitted.) Leo Fedus Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 441-42 (1993). "[T]he legislature is presumed to have intended a just and rational result." Vaillancourt v. New Britain Machine/Litton, supra, 224 Conn. 391.
Section 42-150bb provides its own clear definition of what types of contracts it applies to, that is, "contracts . . . in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes." Also, the "[t]itles [of statutes] are of little importance as compared with the text to indicate legislative intent." Pollack v. Gampel, 163 Conn. 462, 472 (1972). Accordingly, the fact that the words "consumer contract" appear in the title of § 42-150bb and also in the text of § 42-151 is insignificant when compared to the fact that § 42-150bb provides its own clear definition as to the types of contracts that fall within its provisions.
"[C]ourts must look to the plain language of the contract and construe the contract as a whole when determining the intent of the parties." Lussier v. Spinnato, 69 Conn.App. 136, 143, cert. denied, 261 Conn. 910 (2002); Carlin Pozzi Architects, P.C. v. Bethel, 62 Conn.App. 483, 489 (2001). Both parties involved have interpreted C.G.S.A. § 42-150bb as applying to the present matter, and have asked for reasonable attorneys fees and costs.
IV. CONCLUSION
Applying the law to the facts found, the court finds the plaintiff has sustained the burden of proof with respect to the allegation that the defendant breached the contract by not completing the work.
Ordinarily, the defendant would not be required to complete the work upon being precluded from entering the premises. But in this case the defendant, by requesting and accepting further payments after that event, and by failing to notify the plaintiff that they would not return, waived any claim they may have had to excuse CT Page 13351-fk their performance. Furthermore, the exclusion from the premises was temporary only and the defendant did not show that any unreasonable burden was placed upon it by the temporary absence from the premises. Accordingly, the defendant is found to have breached the contract. The defendant has not sustained the burden of showing that the work was "accepted" although it is found that all work was performed in a workmanlike manner consistent with the standards for painting in the trade.
The plaintiff is entitled to damages in the amount of $1,000, which the court finds is the difference between the savings on the balance of the contract price and the value of the work to be completed when the defendant abandoned the job. The plaintiff is awarded $2,712.50 in attorney fees under the terms of Section 42-150bb of the General Statutes. Judgment is entered accordingly, plus costs. CT Page 13351-fl