Opinion
No. CV 09 5005893S
November 5, 2010
MEMORANDUM OF DECISION
This is a matter that was tried to the Court based on an amended complaint involving a private residence belonging to the plaintiff at 66 Painter Ridge Road, Roxbury, Connecticut (hereinafter "the residence"). This claim involves certain work that was done by the defendant company at the said residence alleging water leakage at various points in the basement foundation of the said residence. The defendant was contracted to correct the said leakage condition so as to waterproof the said basement from further leakage.
A contract was entered into with the plaintiff by the defendant for a total amount of $7,000 (Defendant's Exhibit A). This contract was modified by a subsequent invoice (Defendant's Exhibit B) which reflects the actual work done involving hydrophobic polyurethane injections into the interior of the basement wall at certain leak points in addition to excavation for drainage piping around the exterior of the foundation footings. This work was performed by the defendant during the months of June and July 2008 with the representations by the defendant that the water leakage problem had been corrected.
"The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence . . . To form a valid and binding contract in Connecticut there must be a mutual understanding of the terms that are definite and certain between the parties . . . To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties." (Internal quotation marks omitted.) Richter v. Danbury Hospital, 60 Conn.App. 280, 288, 759 A.2d 106 (2000) quoting L R Realty v. Connecticut National Bank, 53 Conn.App. 524, 534, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999). The existence of a contract is a question for the trier of fact. Connecticut Education Assn., Inc. v. Milliman USA, Inc., 105 Conn.App. 446, 453, 938 A.2d 1249 (2008).
Subsequent to the work done by the said defendant, it was discovered by the plaintiff that there was still some leakage into the basement originating from a particular window well area which continued to leak on the front side of the house. The defendant who resided in the house on an intermittent basis became aware of this condition over the following six months and engaged another contractor Modern Tech Systems to evaluate the situation and propose a further solution. A purported contract, although not signed by the plaintiff, was accepted by the plaintiff for exterior excavation drainage work to be done relating to this particular window well. The said work was done in a timely fashion and the contract amount of $5,900.00 was paid by the plaintiff. The said excavation and drainage work done by Modern Tech Systems apparently stopped further leakage of water into the said basement.
Based on the more credible and probative evidence admitted at trial, the Court is able to make certain findings. It is apparent that the plaintiff was acting in good faith in trying to correct a water leakage problem which was affecting the use and enjoyment of his personal residence. The Court finds that the contract entered into with the defendant was a valid and enforceable contract and was fully executed by the parties. The Court finds that the defendant exercised professional judgment in trying to address the leakage problem as it was perceived at the time and did take certain remedial steps both interior and exterior to the foundation wall in order to waterproof and remediate the leakage problem. The subsequent remedial work done by the second contractor Modern Tech was a further correction and remediation that was necessary in order to completely address the said problem.
The Court finds that there was a failure on the part of the defendant to accurately diagnose the existing problem. The Court finds that all of the parties acted in good faith, but that there was a breach of the initial contract by the defendant in determining and analyzing the full scope of the water leakage problem. Therefore, the Court charges the defendant with damages for some portion of the additional expenses incurred by the plaintiff in the amount of $2,900.00 plus costs. Therefore, judgment enters in favor of the plaintiff in the amount of $2,900.00 plus costs.