Eric Strachan, Inc. v. Gendron et al. (2009)

MEMORANDUM OF DECISION

I Procedural Background

On December 18, 2007, the plaintiff, Eric Strachan, Inc., a building contractor, commenced this action for breach of contract and foreclosure of a mechanic's lien for improvements to real property owned by the defendants, Lorraine and Robert Gendron.   Thereafter, the defendants filed an answer on May 13, 2008, denying the plaintiff's allegations as to the amount due under the contract.   The defendants allege that the home the plaintiff was contracted to build is defective, and that they are entitled to setoff.   The defendants have also filed counterclaims sounding in breach of contract, negligence, CUTPA, unjust enrichment and breach of express and implied warranties, growing out of their construction dispute with the plaintiff.

The court heard testimony on the matter at trial conducted on June 16, 17, and July 27 and 28, 2009.   The plaintiff and defendants respectively filed post-trial briefs on September 3, and September 7, 2009.

II. Facts

After reviewing all the testimony and exhibits introduced at trial, together with the drawing of reasonable inferences, and taking into account the credibility of witnesses, the court finds that the following facts have been established by a preponderance of the evidence.

On April 28, 2006, the parties entered into a written agreement for the construction of a home of custom design at 75 Cedar Ave. in Wolcott, Connecticut.  (Plaintiff's Exhibit 1.) The contract provided that the plaintiff would construct the home to certain specifications for the sum of $331,588.   Included in the contract were standard provisions providing that work would be performed in a skillful and workmanlike manner.

Shortly after the contract was signed, the plaintiff began construction.   Although the contract provided that the home would be completed by December 30, 2006, there is no dispute that the both parties agreed to extend this deadline.   It was anticipated that the actual completion date would be sometime during the spring or summer of 2007 so that the defendants' children would not need to move during the school year.   The project proceeded, and over the course of the construction period, the defendants made three payments, as per the contract, totaling $273,294.

Problems between the two parties began to surface sometime in May of 2007.   The plaintiff contended that the defendants failed to move forward with various decisions regarding fixtures, interior finish, appliances, and carpeting, as required by the construction contract, and that these delays pushed back the completion of the home.   The defendants contended that the plaintiff's performance was inadequate, and that they repeatedly had to request that work it had performed be corrected, touched up, or repaired.

On June 10, 2007, the defendants sent a letter to the plaintiff which set forth numerous complaints regarding the workmanship of the home.  (Defendants' Exhibit B.) This letter informed the plaintiff that the defendants wished to sever all oral communication and further instructed the plaintiff to conduct any additional correspondence with the defendants in writing.   The June 10, 2007 letter also notified the plaintiff that the defendants had retained the services of legal counsel in connection with the matter, and indicated the defendants had no intention of living in the home.   Two additional letters were sent by the defendants with similar tone in the month of June, both including what are essentially punch lists detailing forty-five areas that the defendants demanded needed to be fixed or repaired to their liking, and both indicating that the defendants contemplated “substantial monetary discounts” as a result of the many of the alleged problems.  (Plaintiff's Exhibits 8 and 9.) On June 21, 2007, the plaintiff sent a letter to the defendants indicating that they needed to contact several subcontractors in order for progress to continue on the home.  (Plaintiff's Exhibit 10.)

In the third and final letter sent by the defendants, dated June 28, 2007, they provided that they were contacting the remaining subcontractors in order to complete the project.  (Plaintiff's Exhibit 9.) The letter also stated that the defendants were looking forward to the plaintiff “exceeding their expectations” with respect to correcting the problems identified.

The plaintiff continued working and eventually concluded that the home was substantially complete.   The plaintiff then requested that the town of Wolcott inspect the property for the purposes of obtaining issuance of a Certificate of Occupancy (CO).   The parties do not dispute that, on July 10, 2007, after conducting an inspection, Wolcott building inspector Peter Parks issued a CO for the home.   Testimony at trial indicated that, around this date, all effective communications between the parties was terminated.   The plaintiff filed a mechanic's lien on the property on July 13, 2007.  (Plaintiff's Exhibit 3.) The testimony of both Robert and Lorraine Gendron revealed that, at some point after the issuance of the CO, although exactly when it is unclear, the defendants determined they would complete the house on their own and did not want the plaintiff to return.   After this decision was made, Robert Gendron testified that he changed the locks on the home and thus barred any reentry by the plaintiff.   Robert and Lorraine Gendron both were unable at trial to explain exactly when and how their decision to complete the home on their own was communicated to the plaintiff.   To date, carpeting, appliances, and certain fixtures have not been installed.   The house currently sits unoccupied.   Other findings of fact concerning the condition of the home are as follows.

A. Claim of Structural Defects

The most serious allegation in the defendants' complaint was that the home is structurally unsound.   The foundation of the home in question was made from precast concrete, and was manufactured by a company known as Superior Wall. Evidence submitted also demonstrated that the foundation carries a fifteen-year manufacturer's warranty.

The defendants noticed cracking in the concrete studs and hired a professional engineer, Charles Elias, to examine the basement and prepare a report.   (Defendant's Exhibit C.) Mr. Elias inspected the home, and noted several cracks in the house's foundation, which he documented.   Mr. Elias's report recommended meeting with a Superior Wall representative in order to ascertain the cause of the alleged failure of the foundation studs.   Mr. Elias also reported that he had found several building code violations over the course of his inspection.   At a later date, Mr. Elias concluded in a separate letter to the defendants, dated August 5, 2008, that, in his opinion, the house was structurally unsound because of the defects in the foundation, as well as other problems with the construction of the roof supports.  (Defendants' Exhibit D.)

On cross examination, Mr. Elias admitted that the defendants' home was the first precast foundation he had examined in the course of his career as a professional engineer.   He stated in his report that the home contained building code violations, but, at trial, he testified that the items identified in the report were, in fact, not actually violations.   The defendants did not present any testimony indicating that they that met with a representative of Superior Walls for the purpose of evaluating the foundation.   The defendants also did not provide evidence that they took any steps towards condemning the home, despite their concerns that it was structurally unsound.

The plaintiff called as an expert James Quill, a professional engineer who has extensive experience with both precast concrete and specifically Superior Wall foundations.   He testified that he has personally seen somewhere between 300 to 500 installations of Superior Wall foundations.   Because he was not allowed to visit the site, Mr. Quill's entire testimony was in reliance on the pictures that were included in the report compiled by Mr. Elias, which showed cracks in the foundation exterior and on some of the studs.   He testified that such cracking was typical in Superior Wall foundations and gave a plausible and credible explanation as to why they existed.   Based on what he saw pictured in the report, he testified that he did not question the structural stability of the home.

The court finds the testimony of Mr. Quill more credible than the testimony of Mr. Elias.   Mr. Elias has had no experience with the type of foundation at issue.   Further, Mr. Elias reported code violations in his report and at trial admitted that he was mistaken.   He was not certain as to whether the studs in the house had actually failed, and initially recommended a meeting with the manufacturer to confirm his assumption.   Both Mr. Elias and the defendants did not follow through with this suggestion.

In addition, the court also finds the testimony of Scott Summa, the project foreman who oversaw the construction of the home at 75 Cedar Ave., to be most credible.   He testified that he has been installing Superior Wall foundations for four years and has installed about forty such foundations.   He testified that there are cracks in every Superior Wall foundation that he has worked with, and that the hairline fractures cited by the defendants do not affect the foundation's structural strength.

Finally, the court also notes that it is undisputed that the foundation in question was examined not once, but twice, by town of Wolcott building inspector Peter Parks, who issued the CO and did not revoke it after his second inspection in November of 2007.   Based on the evidence of both Mr. Quill and Mr. Summa, who both had years of experience with Superior Wall installations, the court is convinced that the foundation in question is not defective.

B. Framing

The defendants claimed that they noticed problems with the framing in the early stages of the construction.   Some of these framing problems were corrected when pointed out by the defendants, although, Mr. Gendron testified that others were not.   The most significant claims regarding the framing were that two hallways allegedly “tapered,” that the handrail at the base of the second floor staircase was square rather than rounded, and that the two windows near the fire place in the family room were asymmetrical.   Pictures detailing the alleged framing problems were submitted into evidence.  (See Defendants' Exhibits T-AA.)

Despite the allegations that the framing of the home was inadequate, the defendants provided practically no expert testimony on the subject, other than a brief mention of the taper and handrail shape in Mr. Elias' report.   Mr. Elias testified that one of the hallways did, in fact, taper, but did not include in his opinion a measurement of the deviation.   The defendants' claims that the framing was done poorly appeared especially disingenuous considering that Mr. Gendron's own testimony revealed that he personally and gratuitously tipped the framing subcontractors after they had completed the first floor.   The court finds the claims with respect to the framing defects are not credible as offered by the defendants.

C. Wall Cracks

The defendants also claimed that the walls and sheetrock in the home have excessive cracks in them, and this problem cannot be corrected by patching or painting.   In support of their claim, the defendants submitted several pictures of cracked walls.  (Defendants' Exhibits G6-G15.)   The defendants submitted checks paid to painting contractors who attempted, but were unable, to repair the cracks, and were subsequently fired.  (Defendant's Exhibit M.) Despite the checks, there was no evidence submitted by the contractors who allegedly performed the repairs as to what services they had performed, although Mr. Gendron testified that they attempted to patch the walls and repaint the affected areas.   The defendants also submitted two checks paid to Leon Gerard, totaling $5,000, for paintings services.  (Defendants' Exhibit N.) No testimony was offered by the Gendrons, Mr. Gerard, or anyone else relative to these expenses to confirm that they were necessary or incurred because of the cracked walls.

The plaintiff offered the evidence of Wolcott's building inspector, Peter Parks, who testified that, when he returned to inspect the home at the request of the defendants in November 2007, the internal temperature of the structure was roughly 40 degrees Fahrenheit.   The plaintiff also submitted evidence indicating that the contract anticipated that cracks would appear in the sheet rock within the first year, as the contract included a clause providing that “the drywall contractor will come back one time to patch any nail pops or cracks due to normal shrinkage or settling.   We advise you to wait until just before the one (1) year anniversary of the house so that you will have gone through one heating season and a summer.”  (Plaintiff's Exhibit 1.) The defendants did not indicate that they exercised their contractual duties to have the plaintiff return to correct any cracking.   Instead, the defendants elected to paint the home to cure the cracking issues, as opposed to replacing the settled pieces of sheetrock.

The court further accepts as credible the testimony of the project foreman, Scott Summa.   Mr. Summa testified that the defendants did not heat the house in the fall when the temperature dropped, and then quickly turned the heat on.   Mr. Summa testified that a rapid change in the temperature in the home could cause the nail pops and cracking complained of by the defendants.   The court accepts as credible the testimony of Mr. Summa on this issue.

D. Claims of Defects in the Home and Plaintiff's Claim for Upgrades

Evidence was submitted by the defendants indicating that they expended additional sums in order to repair or correct defects left by the plaintiff.   Most of this evidence took the form of copies of checks and invoices.   (Defendants' Exhibits H, M-S.) The court does not find the defendants' testimony regarding the necessity of these repairs to be credible.

One such bill was for a company called, Caron Electric, which Mrs. Gendron testified that the defendants hired to fix the ceiling fans.  (Defendants' Exhibit P.) Testimony revealed the bill was for the purchase of ceiling fan.   The plaintiffs presented credible evidence demonstrating that, under the contract, the defendants are solely responsible for repairing the fans in question.

Defendants' Exhibit H was an invoice for $19.50 for services paid to a company to reverse levers located on doors that were installed incorrectly.   There was no evidence that the defendants asked the plaintiff to change the levers or handles on the doors or evidence that the plaintiff was asked to do it and refused to do it.   Defendants' Exhibit O was a check for $53, paid to Syri-Mar product for repairs to a sink that was allegedly damaged by the subcontractors hired by the plaintiff.   There was no evidence other the assertions of the defendants that the sink was damaged that the damage was the responsibility of the defendant or that the defendant was asked to repair it and refused.

Defendants' Exhibit Q was a check to Concord plumbing in the amount of $872, however, no credible evidence was offered as to what services Concord actually provided.   One of the most significant expenses incurred by the defendants, were two checks totaling $4,717 for the purchase of a water filtration system.  (Defendants' Exhibit R.) The construction contract clearly provides that, under Well Allowance # 4, the plaintiff would be responsible for the installation and provision of a water conditioning system if it were required to meet local or state health code standards.  (Plaintiff's Exhibit 1.) The defendants claimed that the filtration system was necessary, because the well had failed a water test conducted after the issuance of the CO, however, they presented no evidence that the test was conducted at trial and thus failed to demonstrate that such a system was needed to meet either the state or local code requirements.   Further, it is not disputed that the CO could not have been issued if the well water at the time of the inspection did not meet local and state standards.

The defendants also seek reimbursement for monies paid to Prospect Flooring, totaling $2,921.  (Defendants' Exhibit S.) There was testimony that these expenses were for carpeting.   Under the terms of the contract, however, the plaintiff only agreed to give the defendant a carpeting and flooring allowance, an amount which the plaintiff has credited to the defendants in the amount of $1,922.  (Plaintiff's Exhibit 2.) There was no credible evidence as to what other work Prospect Flooring performed, whether it was necessary, or whether its bill was reasonable.

Defendants' Exhibit W revealed an invoice and check paid to Membrino Electric for $1,365.   The court does not find the defendants' testimony on this subject to have been credible.   No testimony was offered to explain the work conducted, whether it was necessary, or whether the amount charged was reasonable.

The court accepts the credible testimony of Eric Strachan that the items he designates in his affidavit of debt as upgrades were not included in the contract, and that the value attributed to those items in the plaintiff's affidavit of debt is reasonable and credible in light of the testimony.   (Plaintiff's Exhibit 2.) The court also accepts as credible the testimony of Mr. Strachan as to the credits that should accrue to the defendants under the contract for work that has not been performed.   The defendants did not contest the amount of the credits, nor did they offer any contrary evidence.   The court finds the value of the credits given in the plaintiff's affidavit is both credible and reasonable.

E. Status as to Completion of the Contract

At trial, the plaintiff called Walter Kloss a licensed appraiser, who testified that he visited the house in the month of May 21, 2008, and concluded that it had a fair market value of $410,000.   This finding was memorialized in an appraisal report.  (Plaintiff's Exhibit 3.) Kloss further testified that he revisited the house on March 9, 2009, and revised his appraisal and felt the land and improvements should be valued at $405,000.  (Plaintiff's Exhibit 4.) This number assigns a valuation of $100,000 to the land and $305,000 on the improvements.   On both visits to the home he was not allowed access to the interior of the home and his appraisal was conducted only from the exterior.

The defendant did not present any licensed appraisal evidence in rebuttal.   The defendants did, however, present evidence of the town of Wolcott's tax assessment.   The assessment, conducted on the date the CO was issued, July 10, 2007, indicated that the total value of the property was $262,980.   (Defendants' Exhibit E.) The assessment also indicated, that on the date the CO was issued, the interior of the home was 80 percent complete, and the heating and air conditioning systems were 100 percent complete.   The tax assessor valued the residential dwellings at $175,590 and the land at $82,600.

The court finds that the testimony of Mr. Kloss was credible and that the value of the property at 75 Cedar Ave. is, as he testified, $100,000 for the land and $305,000 for the improvements.   Further, the court finds that Mr. Kloss's fee for his testimony at $150.00 per hour is fair and reasonable and his total fee of $300.00 is reasonable.

The parties also do not contest that the plaintiff also has already been paid $273,294 of the $331,588 due on the contract.   The plaintiff's affidavit of debt provided to the court that the remaining balance due, including upgrades to the shingles and plumbing, minus credits for unfinished portions of the contract, including a credit for appliances, at $50,747.82.  (Plaintiff's Exhibit 2.) The court further finds credible the plaintiff's testimony that the upgrades listed in its affidavit of debt were performed and the balance is due.

III. Legal Discussion

“[T]he trier of fact's assessment of the credibility of witnesses ․ is made on the basis of firsthand observation of their conduct, demeanor and attitude The weight to be given to the evidence and to the credibility of the witnesses is solely within the determination of the trier of fact.”  (Internal quotation marks omitted.)  Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 A.2d 622 (2006).  “It is well established that [t]he trier of fact may accept or reject the testimony of any witness ․ The trier can, as well, decide what-all, none, or some of a witness' testimony to accept or reject.”   (Citation omitted;  internal quotation marks omitted.)  Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).

The plaintiff in a civil case, and a defendant in a counterclaim, must sustain their burden of proof as to any essential element in their cause of action.   Northrop v. Allstate Ins. Co., 247 Conn. 242, 253-54, 720 A.2d 879 (1998).   The standard applied by a court considering the foreclosure of a mechanic's lien is a preponderance of the evidence.  Rollar Construction & Demolition, Inc. v. Granite Rock Associates, LLC, 94 Conn.App. 125, 133, 891 A.2d 133 (2006).

Plaintiff's Claims

Breach of Contract and Foreclosure of Mechanic's Lien

In count one, the plaintiff seeks to foreclose on the mechanic's lien it has placed on the defendants' home at 75 Cedar Ave. to recover the balance due under the contract.  “The purpose of the mechanic's lien is to give one who furnishes materials or services the security of the building and land for the payment of his claim by making such claim a lien thereon ․” (Internal quotation marks omitted.)  F.B. Mattson Co., Inc. v. Tarte, 247 Conn. 234, 237-38, 719 A.2d 1158 (1998).  “Persons entitled to claim a mechanic's lien ․ are those who have provided ‘services' or ‘materials' in connection with ‘the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot ․ of land ․” (Internal quotation marks omitted.)   Id., 238-39 n.2. Any mechanic's lien may be foreclosed in the same manner as a mortgage.   See General Statutes § 49-33(i).  “Although the mechanic's lien statute creates a statutory right in derogation of the common law ․ its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials.”  (Internal quotation marks omitted.)   Intercity Development, LLC v. Andrade, 286 Conn. 177, 183-84, 942 A.2d 1028 (2008).

In the present case, there is no dispute that the plaintiff, pursuant to its contract with the defendants, provided services and materials for the purposes of improving the defendants' land.   Further, the defendants have not contested the validity of the mechanic's lien.   The only issue for the court to resolve is the amount of the debt on the lien that is supported by the evidence that the plaintiff may recover.

“[I]n a foreclosure of a mechanic's lien, a contractor is entitled to the value of the materials that it furnished or the services that it rendered in the construction of the project.”  Intercity Development, LLC v. Andrade, 96 Conn.App. 608, 612, 901 A.2d 731 (2006), rev'd in part on other grounds, 286 Conn. 177, 942 A.2d 1028 (2008).   See also General Statutes § 49-33(a).  “In the alternative, if it is found that the contractor substantially performed the contract, the court may determine the amount of the mechanic's lien by deducting the sum representing the cost of completion from the balance due on the contract.”  Intercity Development, LLC v. Andrade, supra, 613.  “Once the amount claimed to be due ․ has been secured by a mechanic's lien, ․ [it] may be diminished only by (1) the reasonable cost of satisfactory completion of the contract, (2) any damages for which the general contractor might be liable to the owner, and (3) any bona fide payments that were made by the owner before it received notice of the lien.”   See Chris Construction Co. v. May Centers, Inc., 23 Conn.App. 453, 459, 581 A.2d 748 (1990).

The court finds that, at the time the CO was issued by the town of Wolcott, the house was substantially complete within the specifications of the contract.¹  This finding is supported by the issuance of the CO by a third-party inspector for the town of Wolcott, coupled with the appraisal offered by Mr. Kloss indicating that the home had a value of $305,000, as well as the testimony of Eric Strachan and his foreman, Scott Summa.

Because the court has found that the contract to build the home was substantially completed, the plaintiff is entitled to recover the amount unpaid on the contract, reduced by the costs saved by non-completion and amounts already paid by the defendants.   The court hereby accepts the representations in the plaintiff's affidavit of debt as credible with respect to the extra work performed for the defendants and the credits given to the defendants for costs saved.  (See Plaintiff's Exhibit 2.)

As to the subject of setoff for the alleged shoddy workmanship, the court finds that the defendants have not met their burden of proof.   The defendants did not submit any expert testimony in support of their contention that the work was insufficient, aside from the testimony of Mr. Elias which this court has already found was not credible.   Numerous receipts for repairs and work performed on the house after the plaintiff had obtained the CO were entered into evidence, however, there was no accompanying testimony from the third-party workmen who allegedly performed the repairs to indicate that the work was necessary.   Although credible evidence demonstrating the cracks in the sheetrock was presented, the plaintiff adequately addressed this claim by offering the terms of the contract, which clearly provides that such cracks were within the contemplation of both parties and would be fixed at the request of the defendants one year after completion.   Finally, the testimony of Scott Summa indicated that the cause of the cracking may have been exacerbated by the defendants' own failure to keep the house heated.

In summary, the court finds that the allegations in the first count of the plaintiff's complaint have been established by a preponderance of the evidence.   The court hereby accepts the plaintiff's computation of damages as set out in the affidavit of debt attached and awards the plaintiff $50,748, plus costs presented in accordance with General Statutes § 52-249.

Count two of the complaint alleges a breach of the same contract at issue in the first count.   Therefore, the same amounts are due to the plaintiff under count two, and judgment may be entered in favor of the plaintiff on both counts.   See Camelot Modular Homes, Inc. v. Freska, Superior Court, judicial district of Middlesex, Docket No. CV 07 5001754 (July 30, 2008, Aurigemma, J.).

COUNTERCLAIM

The remaining issues for this court to resolve are the defendants' five counterclaims, which separately allege breach of contract, negligence, breach of express and implied warranties, a violation of CUTPA, and a claim for unjust enrichment.   The defendants' post-trial brief only addresses their claims for negligence and breach of contract, and consequently the court may consider the other counterclaims to be abandoned.   See Barbour v. Zapata, Superior Court, judicial district of New Britain, Docket No. CV 05 4006452 (November 19, 2007, Shapiro, J.).   Nevertheless, the court will consider all of the defendants' arguments presented in their counterclaims as if they had been adequately briefed.

Breach of Contract

“It is a general rule of law that one who violates his contract with another is liable for all the direct and proximate damages which result from such violation ․ It is also a rule of law that in all cases of prevention of performance, where the plaintiff has been deprived by the defendant of the benefit of the contract, the plaintiff is entitled to recover what he has lost by the act of the defendant.”  (Internal quotation marks omitted.)  Kastner v. Beacon Oil Co., Inc., 114 Conn. 190, 193, 158 A. 214 (1932).  “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”   (Citations omitted;  internal quotation marks omitted.)  Bross v. Hillside Acres, Inc., 99 Conn.App. 773, 780-81, 887 A.2d 420 (2006).  “Whether there was a breach of contract is ordinarily a question of fact.”  (Internal quotation marks omitted.)  Benedetto v. Wanat, 79 Conn.App. 139, 152, 829 A.2d 901 (2003).

The defendants first contend in their counterclaim that the plaintiff is liable for breach of contract.   As stated above, there is no question that there was a written agreement between the parties relative to the work done on 75 Cedar Ave. in Wolcott.   This agreement called for the construction of a home with a total price of $331,588, to be paid in several installments.   The only question is whether the plaintiff's performance was deficient, constituting a breach of the agreement.

“It is a general principle of contract law that if one party to a contract hinders, prevents, or makes impossible performance by the other party, the latter's failure to perform will be excused ․ [A] contracting party whose performance of his or her promise is prevented by the other party is not obligated to perform, and is excused from any further offer of performance.   In turn, the preventing party is not allowed to recover damages for the resulting nonperformance or otherwise benefit from his or her own wrongful acts ․” (Internal quotation marks omitted.)   Dow & Condon, Inc., dba Colliers, Dow & Condon v. Garden Main Street, LLC, Superior Court, judicial district of Hartford, Docket No. CV 08 5020258 (July 9, 2009, Bentivegna, J.).   Finally, “[w]here a promisor prevents ․ the performance of a return promise, the promisor is not relieved of the obligation to perform, and may not legally terminate the contract for nonperformance.”  (Internal quotation marks omitted.)  Id. “Whether interference by one party to a contract amounts to prevention so as to excuse performance by the other party and constitute a breach by the interfering party is a question of fact ․” (Internal quotation marks omitted.)  Id.

In considering the second element of a breach of contract claim, the court finds that the plaintiff's performance substantially complied with its obligations under the contract.   All the credible evidence presented showed that, up until the issuance of the CO, the plaintiff made all efforts and complied with the contract requirements.   The home was substantially completed to the contract specifications, and the plaintiff was ready, willing, and able to complete any remaining performance.   The court finds that no credible testimony was offered to show that the plaintiff's construction was deficient, substandard, or defective in any conclusive way.   At the time of the issuance of the CO, the testimony indicated that the defendants had not selected various fixtures and fittings for the home.   The court finds that the defendants' failure to cooperate and communicate with the plaintiff excused any remaining performance on the agreement, including the plaintiff's duty, as per the contract, to return within one year to correct any defects or problems.   The plaintiff could not have corrected the punch list items that the defendants had complained of if the contractual arrangement between the parties had ceased.   Both Mr. and Mrs. Gendron asserted that they did not want the plaintiff to finish the home and that they intended to complete it on their own.   Mr. and Mrs. Gendron physically locked the plaintiff out of the premises.   Their actions prevented the plaintiff from performing, thus excusing the plaintiff from additional responsibilities.

Consequently, the defendants cannot recover on a breach of contract where the remaining duties of the plaintiff have ceased, and where they have failed to demonstrate that the quality of the work performed was defective.   Without a finding that the plaintiff's construction was deficient, there can be no claim for breach of contract.   The court hereby finds in favor of the plaintiff with respect to the defendants' counterclaim for breach of contract.

Negligence Claim

“Recovery of damages in negligence requires proof by a fair preponderance of the evidence that the actor owed a duty of care to the victim, which was breached by the actor's failure to meet the standard of care arising therefrom and that the breach was the proximate cause of actual harm suffered by the victim.”  Coburn v. Lennox Homes, Inc., 186 Conn. 370, 372, 441 A.2d 620 (1982).   The premise of a claim of professional negligence of a contractor is that “[a] builder is under a duty to exercise that degree of care which a skilled builder of ordinary prudence would have exercised under the same or similar circumstances.”  Id., 372.   Finally, in order to prove professional negligence, expert testimony is required.  Matyas v. Minck, 37 Conn.App. 321, 327, 655 A.2d 1155 (1994).

There is no dispute that the plaintiff had a duty to the defendants, under contract, to construct a custom home.   The preponderance of the evidence, however, does not establish that the plaintiff breached its obligation to the defendants.

In this case, no credible expert testimony was offered by the defendants regarding the standard of care that should have been used by the plaintiff in constructing the home.   The only testimony offered by the defendants was the testimony of Mr. Elias, which this court has already established was not credible.   Mr. Elias' report failed to establish that the foundation of the home was inadequate or defective, and his qualifications cast serious doubt as to his conclusion that the house was structurally unsound considering that he was unfamiliar with the particular foundation at issue.   The incomplete items from the defendants punch list, further, were not attributable to the plaintiff's failure to render performance but rather were attributable to the defendants' failure to cooperate under the contract.   Without a finding that the plaintiff has breached its duty to the defendants, there can be no successful claim for negligence.

Even if the court were to find that the evidence demonstrates that the plaintiff breached his duty to use the customary skill in constructing the defendants' home, the defendants have presented no appraisal evidence in rebuttal to establish that they have suffered damages as a result of the alleged breach.   Consequently, the court finds in favor of the plaintiff on the issue of the negligence claim.

Unjust Enrichment Claim

It is well settled that the “[t]he right of recovery for unjust enrichment is equitable, its basis being that in a given situation it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff.”  (Internal quotation marks omitted.)   Polverati v. Peatt, 29 Conn.App. 191, 200, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992).  “Unjust enrichment is a legal doctrine to be applied when no remedy is available pursuant to contract.”  Ayotte Brothers Construction Co. v. Finney, 42 Conn.App. 578, 581, 680 A.2d 330 (1996).  “The doctrine's three basic requirements are that (1) the defendant was benefited, (2) the defendant unjustly failed to pay the plaintiff for the benefits, and (3) the failure of payment was to the plaintiff's detriment ․ All the facts of each case must be examined to determine whether the circumstances render it just or unjust, equitable or inequitable, conscionable or unconscionable, to apply the doctrine.”  (Citation omitted.)  Gagne v. Vaccaro, 255 Conn. 390, 409, 766 A.2d 416 (2001).   Unjust enrichment and quantum meruit are inapplicable unless some benefit to which a party is unentitled is conferred.  Franks v. Lockwood, 146 Conn. 273, 278, 150 A.2d 215 (1959).

Nothing in the evidence presented in this case suggested that the plaintiff's actions were inequitable, or that it was wrongfully benefited by accepting the payments made by the defendants.   Further, as the court finds that the defendants still owe monies due on their contract with the plaintiff, it cannot be said that the plaintiff received an unjust benefit at a detriment to the defendants.   The defendants, therefore, have not met their burden with respect to their counterclaim for unjust enrichment.

Breach of Warranties Claim

Two warranty claims were made in the defendants' counterclaim, one for breach of express warranties and the other for breach of implied warranties.   No articulation was provided in the defendants' post-trial brief exploring the applicability of these warranty claims to the case at hand.   Still, the court will address the merits of the defendants' contention.

Express and implied warranties in the construction of a new home are respectively provided under General Statutes §§ 47-117 and 47-118.   Section 47-117 provides in relevant part:  “(a) Express warranties by a vendor are created as follows:  (1) Any written affirmation of fact or promise which relates to the improvement and is made a part of the basis of the bargain between the vendor and the purchaser shall create an express warranty that the improvement conforms to such affirmation or promise ․” Section 47-118 provides in relevant part:  “(a) In every sale of an improvement by a vendor to a purchaser ․ warranties are implied that the improvement is:  (1) Free from faulty materials;  (2) constructed according to sound engineering standards;  (3) constructed in a workmanlike manner, and (4) fit for habitation, at the time of the delivery of the deed to a completed improvement, or at the time of completion of an improvement not completed when the deed is delivered.”

The plain text of the contract between the parties provides that:  “It is further agreed all the work to be done by the [Plaintiff] shall be performed in a skillful and workmanlike manner and that all materials shall be new and of good quality.”  (Plaintiff's Exhibit 1.) The plaintiff also warranted its work to be free from defect, with an express reservation to remedy any defects within one year from the date of completion.   These contract words clearly create an express warranty within the meaning of § 47-117.   As provided under § 47-118, the implied warranties operate even without express language in the agreement.   These warranties have not been disclaimed under the contract.

Proving the existence of warranties does not establish the defendants' right to recover on their counterclaim, however, as they must have the burden of demonstrating that the warranties were breached.   A preponderance of the evidence demonstrates that the defendants have not met their burden.

As provided above in this court's finding of facts, the defendants offered no credible evidence indicating that their home was poorly constructed or defective in any material way.   Serious allegations were raised with respect to the structural integrity, framing, and physical appearance of the home.   These allegations were not developed at trial with credible evidence.   The court finds in favor of the plaintiff on both of the defendants' breach of warranty claims.

CUTPA Claim

General Statutes § 42-110b(a) provides:  “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”  “In determining whether a practice violates CUTPA [the Connecticut Supreme Court] has adopted the criteria set out in the cigarette rule by the federal trade commission for determining whether a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise ․ (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ․ A practice may be unfair because of the degree to which it meets one of the [cigarette rule] criteria or because to a lesser extent it meets all three.”   (Internal quotation marks omitted.)  Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).  “Despite the facially liberal provisions cited with respect to the proper pleading of a CUTPA claim, [a] simple breach of contract does not offend traditional notions of fairness and, standing alone, does not offend public policy so as to invoke CUTPA.”  (Internal quotation marks omitted.)   U.S. National Bank Assn. v. Lewis, Superior Court, judicial district of New London, Docket No. CV 09 5011097 (November 12, 2009, Martin, J.).   Additionally, our Supreme Court has held that “an unjustified consumer injury [is] a necessary predicate for recovery under CUTPA.”  (Emphasis added;  internal quotation marks omitted.)  Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 592, 657 A.2d 212 (1995).

The court does not find that the plaintiff engaged in any activities that were unlawful, immoral, oppressive or unscrupulous, as required to establish a violation of CUTPA.   The court finds that the plaintiff did not breach its agreement to complete its obligations under the contract.   It was the defendant who prevented the plaintiff from completing the home.   Even if this court were to find that there was a breach of contract, a finding which the evidence does not support, such a claim by itself would be inadequate to state a claim under CUTPA.   Further, the defendants have also clearly not met their burden with respect to demonstrating that the plaintiff's actions have caused substantial injury.   The court finds that the defendants have not met their burden to establish a claim under CUTPA and finds for the plaintiff on this count.

Conclusion

Judgment is hereby entered in favor of the plaintiff as to the foreclosure of the mechanic's lien and also as to the defendants' counterclaims.   The court finds the debt owed to the plaintiff is $50,748, as per the affidavit of debt submitted by the plaintiff, which the court finds to be reasonable and due in accordance with the evidence.  (See Plaintiff's Exhibit 2.) The court will direct that the plaintiff file a Motion of Foreclosure by Sale or Strict Foreclosure so that appropriate orders can be entered to accomplish the foreclosure of the lien.

PELLEGRINO, JTR

FOOTNOTES

FN1. “Substantial performance contemplates the performance of all items of a building contract except for minor details, those easily remedied by minor expenditures ․ Whether a building contractor has met this standard is ordinarily a question of fact for the trier.”  (Citation omitted.)   Argentinis v. Gould, 23 Conn.App. 9, 14, 579 A.2d 1078 (1990), rev'd in part on other grounds, 219 Conn. 151, 592 A.2d 378 (1991)..  FN1. “Substantial performance contemplates the performance of all items of a building contract except for minor details, those easily remedied by minor expenditures ․ Whether a building contractor has met this standard is ordinarily a question of fact for the trier.”  (Citation omitted.)   Argentinis v. Gould, 23 Conn.App. 9, 14, 579 A.2d 1078 (1990), rev'd in part on other grounds, 219 Conn. 151, 592 A.2d 378 (1991).

Pellegrino, Joseph H., J.T.R.