George Ginsberg et al. v. K.E. Braza Construction, LLC
MEMORANDUM OF DECISION
This matter arises out of a dispute between the plaintiff homeowners, George and Francis Ginsberg (“Ginsbergs”), and the defendant K.E. Braza Construction, LLC (“Braza”). The principal issue in dispute concerns the scope and quality of work to have been performed by Braza in connection with a contract to construct a multi purpose out building that was intended to serve principally as a pool house, and, depending on the parties' claims, either a basement or garage.
The following facts are supported by the evidence. The plaintiffs are the owners of an elegant, custom built 5,000 square foot house sited on a working farm in Killingworth, Connecticut. With an in-ground pool in their backyard, the plaintiffs concluded that a pool house would be an important and useful addition. As parents of three children they also concluded that the pool house required certain amenities including an upstairs sleeping area, and bath and kitchen facilities. Attempting to take advantage of the topography and natural grade adjacent to the pool they also envisioned a garage in the lower level that would accommodate tractors and/or motor vehicles. In their minds' eye, the plaintiffs conceived of what is known in the trade as a “bank barn” that is a structure whose lowest level is essentially built into the side of the elevation.
Having received a flyer in the mail advertising his construction services, the plaintiffs contacted the defendant Braza and began preliminary discussions with him concerning their concept of the barn cum pool house. After a series of conversations with the plaintiffs the defendant produced, in October 2006, pencil drawings of the proposed structure which showed a lower level garage/storage area, the pool house above that and within the pool house a third level in the nature of a loft. Defendant's drawing, admitted as plaintiffs' exhibit 4, showed the various elevations and a rough layout of the three levels. The lower level, which was to become a principal focus of the parties' dispute, was described on the drawings as “Basement,” “Storage” and “Rec Area,” and showed a sliding door nine feet in width sufficient to allow the ingress and egress of vehicles.
The Ginsbergs acknowledge that based on the defendant's drawings they were persuaded that he understood the concept and look they desired; a rustic feel that would blend with the existing structures on the property. In their preliminary discussions with Braza, the Ginsbergs emphasized that the lowest level would be utilized as a garage space to shelter tractors and/or Dr. Ginsberg's sports car. Braza even measured the width of plaintiff's vehicle to determine the proper size of the doors. Following their review of the initial drawings, Braza then prepared, in January 2007, a “Project Proposal” detailing the “Project Cost Overview” (Plt Exh. 6) and setting forth a total project price of $107,172.26, to be paid in three equal installments. The proposal described the project as follows: “Construction of 20ft x 24ft post and beam pool house/barn. Located on the back of property, area will be excavated and set up for a walk out basement for storage, etc. The entry level will be part cathedral with a(sic) open floor plan with kitchen, bath and a changing area. The upper area will consist of a play-room loft style area. All construction is post and beam built custom by K.E. Braza Construction LLC and framed by Paul Fox from Heritage Post and Beam.”
Neither the project proposal nor any other document satisfying the Connecticut Home Improvement Act, General Statutes § 21-429 et seq. was executed by the parties. Nevertheless, despite the absence of a formal agreement by the parties, the planning process gained momentum. The plaintiffs met on at least four occasions with Paul Fox, owner of Heritage Post and Beam and a subcontractor of Braza Construction, to review and discuss details concerning the “look” of the structure. These meetings consisted of reviewing pictures of Mr. Fox's prior projects and making site visits to view some of the barns he constructed. Of principal concern to both the plaintiffs and Mr. Fox was the type of siding that would be used on the exterior of the building. Searching for a rustic look, the Ginsbergs, on Mr. Fox's suggestion, decided on rough hewn pine also known as ship lap siding. This siding is characterized by a rough exterior and random knots that upon drying and exposure to the elements can leave holes in the siding. The Ginsbergs enthusiastically endorsed the use of ship lap siding. Mr. Fox did not advise them of the potential for such holes and the attendant risk of animals such as squirrels entering the interior of the proposed structure, particularly the sleeping and eating areas.
Having apparently received verbal approval to proceed in accordance with the January 17, 2007 Project Proposal, Braza sought and obtained a building permit from the Town of Killingworth Planning Office. Pursuant to applicable regulations Braza submitted with the application a set of building plans prepared by his subcontractor Paul Fox. On January 27, 2007, the Building Official for the Town of Killingworth, Richard E. Leighton, stamped and signed the plans indicating they had been “reviewed and are approved.” A building permit was also issued with the express caveat that the pool house area would not constitute or be utilized as a living area. On January 19, 2007, the Ginsbergs provided Braza with an initial payment of $25,000. The parties agree that through April 20, 2007 the Ginsbergs made payments totaling $75,000 against the project cost of $107,172.26.
Once the construction began it became evident that either as the result of a misunderstanding between the parties, poor workmanship by Braza or unrealistic expectations by the Ginsbergs, or some combination thereof, the relationship between the parties frayed, becoming increasingly contentious and resulting in threats, accusations and billing disputes. While the dispute between the parties was simmering for a number of months during the construction process, it erupted into a full conflagration when the Town of Killingworth Building Official, Richard Leighton, identified 15 issues in an August 23, 2007 Inspection Request that (Plt Exh 3), unless remedied, would prohibit the issuance of a certificate of occupancy.
The plaintiffs perceive that the project they contracted for was not delivered. They claim, amongst other things, that the garage they anticipated was not constructed properly, citing improper pitch, flooding and failure to install the proper doors and windows. They also assert that the pool house area was not built out according to their agreement with Braza, that the siding installed by Fox is inadequate and that certain utilities were not installed at all or installed improperly. Their expert, Simon White of New England Home Improvements, Inc. of Stamford, CT, claims that the cost of correction is $44,583.60. Braza Construction, for its part, claims that the issues identified by Leighton and the Ginsbergs are easily remedied, that the Ginsbergs' expectations are neither realistic nor reflected in the construction documents, and that the plaintiffs have wrongfully withheld monies properly due and owing in a dispute that does not involve quality of workmanship but rather an argument over aesthetics. Braza contends that the total cost of repair to remedy the inspection violations is less than $5,000. It seeks in its counterclaim foreclosure of a mechanic's lien representing an unpaid balance of approximately $35,000.
The parties agree, at least implicitly, that resolution of this case centers on a consideration and review of the Leighton report-the inspection conducted by the Killingworth Building Official identifying 15 separate deficiencies requiring remediation in order to obtain a certificate of occupancy. While there is quibbling as to whether some of the issues identified in the Leighton report constitute code violations, the central dispute between the parties is focused on two issues: 1) with respect to some, but not all of the deficiencies, did Braza agree to perform the work in question; and 2) in any event, what is the reasonable cost of repair to correct the defects and what is the value of the credits for the work not performed by Braza. For ease of discussion, the items requiring correction are grouped according to the location: 1) lower level garage area and 2) pool house area. Those matters involving a claim of credits for work not performed are addressed separately.
Lower Level/Garage Area
1. Pool house garage floor incorrect pitch. Allows water to pool at rear of floor.
The parties devoted considerable time and attention to the issue of the lower level of the barn. Relying on the documents he and his subcontractor prepared, together with his recollection of the conversations with the Ginsbergs, the defendant insists that this area was intended to serve as a storage area/basement/workroom, not a garage. The Ginsbergs recall differently claiming that notwithstanding the description on the documents prepared by Braza, the intent and agreement of the parties is that this area would serve as a garage to store a tractor or motor vehicle. The court credits the testimony of the plaintiffs, based in part on their un-refuted testimony that Braza measured the width of the vehicles to determine the correct size of the opening on the side of the structure and based on the fact that the structure was framed to allow for entry of vehicles from the side. As such, under applicable regulations, the floor must be pitched to the rear and the interior must be sheetrocked. Plaintiffs' expert opined that the cost of correction is $3,400 which includes raising the level of the cement, pitching it toward the doors and removing and replacing the structural beams.1 The court finds that the reasonable cost of correction is $3,400 and the cost to sheet rock the walls to comply with code is $900 for a total repair cost of $4,300.2
2. Exterior deck not properly installed no lateral bracing/not meeting windload requirements.
According to the third finding of the Leighton inspection the exterior deck-the so-called “cigar deck”-is not properly installed due to the absence of lateral bracing. Plaintiff's expert estimates that the cost of correction is $5,400.00 owing to the need to remove and replace the entire deck to allow for the installation of lateral bracing. Defendants insists that the cost of repair is de minimis, only requiring the purchase of a standard brace or hanger and less than an hour of labor. The court discounts the plaintiff's expert's recommendation as excessive and not consistent with the intention of the parties. The cost of correction for this matter is $500.
3. Support members basement level not pressure treated in direct contact with concrete.
The Leighton report's fourth specification concerns the absence of pressure treated lumber in the garage. Specifically the Code requires that pressure treated lumber be utilized in those areas where the lumber is in direct contact with the cement. The absence of such pressure treated lumber has caused staining to the existing lumber and may result in rot if not replaced. The parties dispute whether the absence of pressure treated lumber is the result of Braza's negligence or the plaintiff's insistence that it not be utilized for aesthetic reasons. The court concludes that the failure to install pressure treated wood at those places where the beams meet the cement (or to utilize a metal sleeve as recommended by Mr. Leighton) is due exclusively to the Ginsbergs' directive. Accordingly, plaintiff is not entitled to damages.
4. Window panes in garage doors not safety glass.
Plaintiff is awarded $400 in damages for this correction.
5. Carrying beam in direct contact with concrete. Not pressure treated/Not protected.
Because of the plaintiffs' insistence that pressure treated wood not be utilized the defendant is not responsible for correcting this violation.
6. Garage not equipped with GFCI outlets/No service outlets/Panel not properly marked.
Plaintiff is awarded $800 for this repair. Although plaintiff's expert opined that the cost of correction is $1,600, plaintiff testified that the repair was made, but failed to produce evidence of the actual cost of the correction.
Main Floor/Pool Area
7. Exterior door to deck improperly installed and exterior pool doors (entry) not properly installed.
Plaintiff's expert Simon White claims the cost of correction is $6,400 which represents the cost of new doors. The court credits the testimony of Paul Fox who testified that despite his advice to the plaintiff to seal the doors to prevent seasonal shrinking and swelling, the plaintiff failed to take those precautions. Fox returned on at least two occasions to plane the doors. The cost of planing and sealing is $250 which is awarded to the plaintiff.
8. Stairs to loft not installed-no access and guardrails required for loft not installed
The parties agree that stairs and railings were required and were to have been installed. The dispute, once again, centers on whether Mr. Fox's basic $600 estimate for both stairs and rails represents the fair and reasonable cost for those items or whether Mr. Braza is responsible for the custom railing work ultimately purchased by the plaintiffs at a cost of $2,500. While there is some dispute as to whether the plaintiff's indecision or defendant's omissions are the cause of the failure to install these two items, the court concludes that the custom designed stairs and rails were neither discussed nor agreed to by the parties. Consequently, the court awards $1,200 in damages for these items.
9. Exterior walls have knots missing creating vermint access.
Testimony of the parties and Mr. Leighton reveals that the rustic siding installed on the structure reflects the agreement of the Ginsbergs and the framer Paul Fox. Prior to commencement of construction, Mr. Fox showed the Ginsbergs a number of barns he had constructed utilizing the type of siding that is evocative of an old, aged barn. The siding, by its nature, has knots which, upon the aging and drying of the wood after its installation, fall out of the planks leaving potential entrance areas for bugs and small creatures. While not an issue for a structure that is utilized as a barn, it is a problem for a structure that is designed to look like a barn, but in fact is to be utilized, in part, as a living area.
Owing to a failure of communication or an honest misunderstanding between the Ginsbergs and Mr. Fox and Mr. Braza, it is clear that the ship lap siding was not appropriate for the use intended by the Ginsbergs. Less clear is whether responsibility of the that failure should be shouldered exclusively by the defendants when the plaintiffs explicitly authorized and consented to the use of the rough hewn siding, arguably on the inappropriate recommendation of Mr. Fox. Plaintiff's cost of repair is $800; defendant's is approximately $200. The court concludes both parties should share equally the responsibility for this miscue. Plaintiff is awarded $500 damages as to this item.
10. Structural wind load requirement not installed and roof structure not compliant with wind load requirements.
The plaintiff claims a cost of $1,200 for custom roof truss ties. In plaintiffs' view custom ties are required in order to avoid the aesthetic displeasure generated by the simpler and far less expensive metal clips-approximately $200 for labor and materials-proposed by the defendant. This dispute follows the same pattern already established. The defendant failed to comply with code requirements. The cost of repair proposed by the plaintiff is at least 5-6 times the cost suggested by defendant. The parties did not discuss, nor do the plans reflect, the type of material to be utilized. The risk, again, should be shared in equal measure by both parties. Plaintiff is awarded $700 in damages.
11. Floor level windows on loft not safety glass.
The reasonable cost of correction is $1,250.
12. Exterior siding improperly installed on west side.
Plaintiff's expert quotes $4,800 for this correction. This amount was not challenged on cross examination of Mr. White, nor did Mr. Fox address or refute this claim in his testimony. Accordingly, $4,800 is awarded.
13. Jeep Repair
The plaintiffs are awarded $3,181.91 as the cost to repair the Jeep damaged by Braza.
The total of the above awards in favor of the plaintiff is $17,881.95.
Credits against unpaid balance
The parties agree that the agreed upon contract price was $107,172.26 and that $75,000 was paid by the plaintiffs, thereby leaving a balance owing to Braza in the amount of $32,172.26. The plaintiffs claim a variety of credits that they argue reduce the amount actually due and owing to the defendant to $2,887.82 as set forth in Exhibit 7.
$19,097.00 for plumbing and masonry.
At the time that this portion of the project was scheduled to be completed Mr. Braza had left the jobsite and the Ginsbergs refused to let him return to complete the unfinished work.
Because of the threats of violence and physical injury made by Mr. Braza, even if understood as the product of his frustration dealing with the Ginsbergs, he forfeited his right to return to the property. Accordingly the plaintiffs are entitled to a credit of the contract price of $19,097 for the plumbing and masonry.
$2,893.86 payment to Paul Fox for framing bathroom
Despite the defendant's claim it is clear that the agreement between the parties was that the bathroom area would be framed. Plaintiffs are entitled to this credit.
$1,203.67 credit for french door not utilized.
Because of a framing error on the lower level, the specified french door could not be utilized; alternative doors were substituted. The defendant concedes this credit.
$400 credit for windows on each side of basement door as per design.
This credit is allowed.
Credit for faulty installation of gas line/main
Plaintiffs were required to hire Bemers to correct the faulty installation of the pool house gas line/main. They are entitled to a credit of $1,211.74
Summary of credits
Plaintiffs are entitled to credits of $24,806.27 leaving them with a contract balance of $7,365.99.
Based on the foregoing judgment shall enter for the plaintiff in the amount of $10,515.92 as follows:
$17,881.91 (award on plaintiff's complaint)
(7,365.99 ) (contract balance less credits)
Judgment shall enter for the plaintiff/counterclaim defendant on the defendant's counterclaim and the mechanic's lien is ordered discharged.
ROBERT L. HOLZBERG, JUDGE
1. FN1. The defendant claims that the estimates provided by plaintiff's experts are inflated because they are based on Fairfield County costs for labor and materials. The court concurs with defendant's claim.
2. FN2. This cost also includes the cost of correction for the second defect identified by Mr. Leighton, namely that the “height of concrete floor at doors no high enough to minimize water entry from exterior.”
Holzberg, Robert L., J.