Opinion
No. CV 03 0090902
June 20, 2007
MEMORANDUM RE DEFENDANT'S MOTION FOR REARGUMENT AND RECONSIDERATION
On May 10, 2007, the defendant/counterclaim plaintiff/third party plaintiff, All Phase Inc. (All Phase), moved, pursuant to Practice Book § 11-11, for reargument and/or reconsideration of the memorandum of decision of this court after trial. After careful review of the issues raised by All Phase, the court rules as follows.
In its motion to reargue, All Phase raises six issues: (1) the roof leaks did not occur immediately or shortly after construction on the roof; (2) the leaks were not irreparable; (3) All Phase is entitled to an award of interest on its counterclaim pursuant to General Statutes § 37-3a; (4) damages for indemnity were incorrectly calculated; (5) the award of attorneys fees to the plaintiff in this matter were unwarranted; and (6) the court failed to consider the issue of the ice damn. All Phase's motion for reargument is denied, however, the court takes this opportunity to respond to the issues raised in the motion.
"[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . It also may be used to address alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple . . ." (Citations omitted; internal quotation marks omitted.) Opuku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001).
To the extent that All Phase interpreted the court's decision to imply that the roof was not, in any way shape or form, partially constructed prior to August of 2002, the court clarifies that, by August of 2002, the parties agreed that the roof was "substantially completed." This term of art was important for the purpose of implicating the five-year warranty to remedy the defects contained in the contract. The fact that the structure was partially constructed and used for storage for a period prior to August of 2002, however, has no bearing on the court's ultimate conclusion. All Phase admits that the roof leaked prior to February of 2003. Furthermore, the evidence showed that the leakage was severe in February of 2003. According to the contract and its implied terms, OG was to receive a roof that was installed in a good and workmanlike manner. Any defects in the roof that occurred within five years from substantial completion were to be repaired by All Phase. February of 2003 was within the five-year period. Therefore, since the court found that All Phase breached the contract and the roof was defectively installed, All Phase is liable for the damages. The leaks were the result of a defective roof and they occurred within the five-year period.
Moreover, the mere patchwork fixes All Phase attempted leading up to February of 2003 did not prevent the roof from leaking severely after a snow storm and ice damn. The parties offered differing opinions as to the best way to attempt to remedy these particular defects in the roof. Ultimately, the court found that the roof was defectively installed and the resulting leakage was so bad by February of 2003 that All Phase's own witness admitted they had never even attempted to fix a roof that had such severe leakage. Under these circumstances, the court found that the installation of the rubber membrane was a viable and efficient way, as to both time and money, to remedy defects in the roof in time for the upcoming hockey season. As such, the repair was not an impermissible betterment, as All Phase argues, rather, it was an appropriate and reasonable remedy. OG should not have to bear the burden of what it cost them to remedy the defect caused by All Phase's breach.
As to the specific amounts owed and interest thereon, this case was about whether there was a breach of the contract and, if so, what were the amount of damages. All Phase's argument that it is entitled to interest is without merit. All Phase acknowledged that the court has the discretion under General Statutes § 37-3a to award interest. The court, in that discretion, declined to do so. In MedValUSA Health Programs, Inc. v. Member Works, Inc., 273 Conn. 634, 666, 872 A.2d 423, cert. denied, 546 U.S. 960, 126 S.Ct. 479, 163 L.Ed.2d 363 (2005), the Supreme Court affirmed the trial court's decision not to award interest because the arguments of the parties were not frivolous. When determining if and when to award interest under § 37-3a, one of the things the court must look to is whether the party against whom interest is sought has wrongfully detained money due the other party. See Hadelman v. DeLuca, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 97 0060279 (April 19, 2006, Alander, J.) [41 Conn. L. Rptr. 238]. The present case clearly involves arguments that are not frivolous. OG prevailed on the claim that All Phase was in breach of the contract. For this very same reason, however, OG is also not entitled to interest on the damages they were awarded for All Phase's breach of contract.
Moreover, the amount left unpaid to All Phase under the contract was merely one consideration in the determination of the total amount of damages that All Phase owed to OG. The contract price, the amount remaining, and the amount OG had to spend to remedy the defects all weighed on the total amount of damages. The court determined that, overall, OG incurred $80,530.73 in damages to remedy the defects from the breach of the contract. Had All Phase not sought indemnification from the third party, this was the amount they would owe OG. As such, that is the appropriate amount that they ought to be indemnified for, not $152,771.50. If All Phase receives indemnification in excess of $80,530.73, they would gain a windfall, as they would receive the total amount of the contract from OG plus additional moneys from the third party defendant.
As to the award of attorneys fees to OG, paragraph two of section six of the contract between OG and All Phase specifically says: "Any expense incurred by [OG] as herein provided, either for the furnishing of materials or finishing the work, and any damage incurred through such default shall be chargeable to [All Phase,] including any and all legal costs for legal fees to enforce the terms of this contract." (Emphasis added.) The legal fees incurred in the action were precisely that. They were fees that OG incurred to enforce the terms of the contract: specifically that All Phase was required to remedy all defective work for a period of five years.
Finally, as to the issue of the ice damn, the court acknowledges that clearly one existed. Despite the existence of the ice damn, however, the court found that the evidence showed the roof to be defectively installed. That an ice damn may have caused some leakage even in a properly installed roof does not alter the court's decision. The roof was defectively installed and severe leaks and damage resulted. All Phase is liable to OG for the amount of damages incurred by OG to remedy this leakage.
All Phase's motion for reargument dated May 10, 2007 is denied. So Ordered.