Edward Gambacorta et al v. M & S Paving and Sealing, Inc. (2010)

MEMORANDUM OF DECISION

The plaintiffs, Gambacorta and Wilcox are neighbors.   Their adjoining single-family homes are located at 25 Stein Road and 27 Stein Road respectively in the town of Ellington.   They share a common driveway which runs between their two homes and each has their own parking area which is accessed by the common driveway.

In 2006 they discussed replacing their driveway which was some twenty-four years old and in need of replacing.   Attracted by the M & S website, Gambacorta contacted M & S and its general manager Brian Wood came out to the property to determine the work to be done and the measurements needed to prepare a quote.

In accordance with the discussions between the plaintiff and Brian Wood, a quote was prepared under five headings (Exhibit 1) detailing the work to be done.   The section titled “Trap Rock' was crossed out.   That was done because Gambacorta decided not to install trap rock in the 1680-square-foot area to a barn as he had originally contemplated, but to install a paved driveway.   That charge resulted in an additional cost of $1530 to Gambacorta which he agreed to and which he paid.

The contracted work was done in November 2006.   In late February or early March 2007, some cracks had appeared on the driveway and some “Coarse” areas appeared, especially in the turn-around area where the homeowners turned in and out of their respective parking areas resulting in a “coarseness” or a “scuffing.”   M & S was called and the then President, Joseph Fradiani examined the site.   In his words there were minor problems.   He offered to replace approximately 800 square feet of the driveway and to apply a sealer.   In the alternative, he offered to resurface the entire driveway with a bituminous mix.   The contract specifies that “if service is required, section repairs will be made to improve the condition of the pavement.”   His proposal was rejected and the plaintiffs seek a full return of the $14,000 contract price.   They do not claim the additional $1530 cost of the paved driveway to the barn.   (Ref.Ex. 9).

The plaintiffs bring this action in four counts as follows:

First Count claims breach of contract.

Second Count claims violation of Connecticut General Statutes § 20-429(a)(7) as the contract does not contain starting and completion dates.

Third Count claims defendant's advertising was not consistent with the work performed in violation of Connecticut General Statutes § 42-110b(a).

Fourth Count alleges a reckless indifference to the truth in the representation of the defendant.   It also alleges a reckless indifference to the plaintiffs' rights by false and misleading misrepresentations.

Simply put, Gambacorta and Brian Wood discussed the areas which were to be paved or repaved.   Wood sketched the several areas and took measurements which became the basis for the contract which the parties signed.  (Exhibit 2).   It was understood that the original gravel base would be used as the base for the main portion of the driveway and the quote reflected that.   Further, the testimony established that the base had been in place for some thirty years and it would run counter to good paving practice to remove and replace it.

The Court concludes that the work was done in accordance with the contract.

The contract further provides that “if service is required, section repairs will be made to improve the condition of the pavement.”   The defendant, after viewing the complained of site, offered to do just that by offering to remove approximately 850 square feet where these relatively minor defects occurred.   In the alternative he offered to resurface the entire driveway with bituminous mix.

The plaintiffs refused the offer and demanded a refund of the full price of $14,000.  (The additional $1530 for installing a new driveway to the barn is not at issue.)

M & S did not breach the contract and, in fact, the defendants would not allow M & S to do the corrective work (and more) which the terms of the contract provided for.

The plaintiffs have not briefed the issue raised in the second count that the contract does not contain a starting and completion date as required by Connecticut General Statutes § 20-429(a)(7).   Failure to brief an issue assumes it is abandoned.  Corrarino v. Corrarino, 121 Conn.App. 22 (2010).

The third count alleges the plaintiffs were misled by the defendant's web site advertising.   The Court disagrees.   The website ad (Exhibit 4) sets out procedures depending on the condition of the driveway.   This driveway had a very good existing base, and the driveway was compacted in preparation for the asphalt.   The contract price reflected the work which was done and the plaintiffs were aware of the process used.   There was no misrepresentation under the facts of this case.

The fourth count of reckless indifference on the part of the defendant finds no support by the evidence.   At best this is a breach of contract case (which the plaintiffs have not proved).

The plaintiffs (Gambacorta and Wilcox) were the only witnesses for the plaintiffs.   They did not refute the testimony of Joseph Fradiani Sr. and Joseph Fradiani, Jr. as to the quality of the job.   Relatively minor flaws or results needing repair do happen and the contract provides for such remediation.   The defendant was willing to do the sectional repair and, even beyond, repave the entire driveway.   M & S Paving did not breach the contract or violate CUTPA provisions.

Judgment shall enter for the defendant on the complaint.

As for the defendant's counterclaims, the evidence does not support its claim of a breach of the implied covenant of good faith and fair dealing against Gambacorta.   It is fair to note there were some defects in the driveway, albeit correctable.   Under the facts here, the defendant is not entitled to an award of attorneys fees under either count of the cross complaint.

The plaintiffs' suit does not rise to the level of a breach of good faith and fair dealing.

Accordingly, judgment shall enter for the plaintiffs on both counts of the counterclaim.

Klaczak, J.T.R.

Klaczak, Lawrence C., J.T.R.