LLC v. David Browne et al. (2010)

MEMORANDUM OF DECISION

The subject of this case is the construction of an addition to the residence of the defendants located at 37 Green Acre Lane, Westport, Connecticut.

The parties entered into a written agreement, so called, dated September 17, 2007 (Ex. 22) setting out the scope of work to be performed by the plaintiff to accomplish the construction of a second floor three bedroom, one-bath addition above the existing living area.

The agreement in selling out the nature of the addition, refers to the “Architectural design drawings produced by W.R. Green Construction, Inc.” (Ex. 5, 6, 7, 8, 9, 10, 11, 15.)   William Green is not a professional engineer or a licensed architect.   He is a builder, real estate investor and a “Building Designer” and indicated that his plans were “Conceptual plans” and would not have the detail of construction plans.

The content of the agreement, Ex. 22, is anything but clear.   As an example the agreement states that “The scope of work is acknowledged by both parties to be complete” yet revisions to the construction plans by architect Francis Henkels indicate revisions dates as late as November 6, 2007.   See Ex. 17, 20 and 21.   This indicates that the architect, an employee of the defendants, was enlarging the scope and increasing the value of the work, with the approval of the defendants.   This is illustrated by a comparison of Exs. 8 and 9 and Ex. 20.   The language in the agreement that “The price for this work shall be in the $400,000 range” is meaningless since the actual work was being changed by the defendants.   The actions of the parties resulted in a time and material basis, with a mark-up of 12.5% on materials and subcontractor work with a labor rate of $60.00 per hour for labor furnished by plaintiff.

The plaintiff's first count of its complaint entitled Contract Damages is not a valid claim because the written contract, Ex. 22, is not sufficiently definitive to relate to the actions of the parties concerning the subject project and its development.

The evidence indicates that on September 17, 2007, there was no meeting of the minds that would generate a binding contract between the parties.   The work done and the payment for same indicate the acceptance of a pattern of work being accomplished relating to improvements to the defendants' premises and the payment therefore on a cost plus a mark-up at 12.5% on materials and subcontractors, plus $60.00 per hour on plaintiff's labor costs.   The parties continued this pattern until the defendants refused to pay the balance due on plaintiff's March 5, 2008 and March 26, 2008 statements with an adjusted total of $70,897.99.   Based on this refusal, the plaintiff performed no further work after March 25, 2008.

The plaintiff has proved by a fair preponderance of the evidence the allegations contained in the second count of its first amended complaint based on a claim of unjust enrichment.   Judgment may enter on the second count of the plaintiff's complaint for the sum of $70,897.99.   The claim for interest pursuant to § 37-3a is denied.   The issues were in sufficient dispute to not find an unreasonable withholding of the payment of the balance due.

The third count of plaintiff's first amended complaint is moot and therefore not addressed.

The defendants have plead as a special defense, a claim that the plaintiff was contributorily negligent.   The defendants have not sustained their burden of proof of a breach of duty of care owed to the defendants by the plaintiff by a fair preponderance of the evidence and is therefore denied.

The defendant's claim of set-off has not been proven and is therefore denied.

The defendants' counterclaim is found to be proven in part, the charge of DaVinci for the correction of the starter course of the roof in the amount of $806.62 and the correction of various items listed in Exhibit FF in the amount of $560.00.   The balance of defendants' counterclaim are not found to be proven.   Judgment may enter on defendants' counterclaim in the amount of $1,366.62 in favor of the defendants without interest.

Both the judgment for the plaintiff and the judgment for the defendants are without costs.

STODOLINK, J.T.R.

Stodolink, Edward F., J.T.R.