J & G Glass Company, Inc. v. Town of Easton (2010)

MEMORANDUM OF DECISION

The plaintiff in this case J & G Glass Company, Inc. contracted with the defendant, Town of Easton to furnish and install glass, glazing and metal panels for the defendant's “New Easton Elementary School.”

The major issue between the parties is the amount of interest, if any, owed by the defendant as a result of the withholding by the defendant of a retainage in the amount of $66,223.00 for the claimed period of November 14, 2005 to March 24, 2009 and interest on a balance of $4,500.00 from March 24, 2009 to date.   The basis of this claim is the provisions of Conn. Gen.Stat. § 37-3a which states “interest at the rate of ten percent a year and no more, may be recovered and allowed in civil actions ․ as damages for the detention of money after it becomes payable.”   The Statute applies to claims involving the wrongful detention of money after it becomes due and payable.  Foley v. Huntington Co., 42 Conn.App. 712, 740.

It is the plaintiff's burden to prove when the detention of said retainage was wrongful and therefore due and payable.   The plaintiff has failed to prove that the portion of the retainage that represented disputed claims between the plaintiff and its window supplier, Moduline, and withheld by Easton until that dispute was resolved, was the basis of a wrongful detention of that retainage.   In March of 2009, at the request of the plaintiff, Easton issued a check to Moduline for $61,773.00 once the issues between Moduline and plaintiff were resolved and a release to Easton by Moduline was furnished.   See Plaintiff's Ex. 9.

Said Ex. 9 indicates a retainage balance of $4,500.00 on March 24, 2009.   This represented the defendant's opinion of the cost to correct claimed defects in the performance of the plaintiff's contract obligations.   The alleged defects consisted of cracked glass and a leak in a classroom.   It was the burden of the defendant to prove that both of these claims were the result of a breach of the contract between the parties.   That burden was not sustained by the defendant.   The source of the cracked glass and the alleged classroom leak were not proved by a fair preponderance of the evidence to be the result of the plaintiff's breach of contract.   Thus the withholding of the $4,500.00 retainage from the date of its being due, November 4, 2005, was wrongful and therefore subject to the provisions of Conn. Gen.Stat. § 37-3a providing for interest at the rate of ten percent per annum for the period of 4 years, 10 months and 5 days or $2,180.00.

Based on the foregoing, judgment may enter in favor of the plaintiff and against the defendant for the sum of $6,680.00 plus costs.   Judgment may also enter in favor of the plaintiff on defendant's special defenses and counterclaim.

STODOLINK, J.T.R.

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