Suntech of Connecticut, Inc. v. YKK AP (2011)

AMENDED MEMORANDUM OF DECISION ¹

The plaintiff Suntech of Connecticut, Inc. is a glass contractor who installs custom walls and windows.   The defendant YKK AP America, Inc. is a manufacturer of frames and mullions.   The plaintiff was a subcontractor on Hamilton School Renovation Project (Hamilton Project) and the Worth Construction Co., Inc. (Worth) was the general contractor for the Hamilton Project.

During the early summer of 2006, the plaintiff sought proposals for the purpose of bidding on the custom wall package for the Hamilton Project.   In response to its request the defendant sent one of its representatives, Mark Knapp to discuss the project with the plaintiff.   Mr. Berkan, the plaintiff's president explained to the representative of the defendant that the windows required to have a “renaissance” look and a “4 sided SSG curtain wall” and Berkan was assured the defendant could comply with these requirements.   The defendant obligated itself to supply the frames and mullions including the brake metal for the project.   Several proposals were reviewed by the plaintiff, but they did not comply with these requirements although the defendant admitted that it could have complied.   The final shop drawings the defendant submitted did not, which caused the plaintiff delays in fulfilling its obligations to Worth Construction.

As a result, the plaintiff had to cover for the defendant's failure to submit acceptable plans and it subsequently obtained the product from EFCO incurring additional costs of $11,602.   As a further result of the delays, the plaintiff incurred the following additional costs:  $14,050, for protection of the window openings;  $9,173, for brake metal which was to be supplied by the defendant and to which the plaintiff had to obtain from a third party;  $5,185, incurred for additional shop drawings.

With respect to other claimed damages for alleged employee costs attributed to the defendant's contractual failure, the court finds that the plaintiff failed to prove the same.  “It is incumbent on the party asserting either direct or consequential damages to provide sufficient evidence to prove such damages.”   Sulliven v. Thorndike, 104 Conn.App. 297, 304 (2007).

The plaintiff also claims that as a result of the delays caused by the defendant, it lost profits on the Greenwich Police Station which was a project of Worth because of its unfavorable experience with the plaintiff on the Hamilton Project.   The plaintiff failed to prove with sufficient certainty that the job with the Greenwich Police Station would have been awarded to it.

Finally, with respect to damages under Connecticut Unfair Trade Practices Act, the plaintiff cannot prevail.  “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.”  Greene v. Orsini, 50 Conn.Sup. 312, 315 (2007).

In sum, the plaintiff has sustained its burden of proving the damages in the amount of $40,010 resulting from the delay caused by the defendant.

Finally, in view of the fact that although the defendant was capable of satisfying the requirement of the plaintiff and which was clearly pointed out to the defendant were the requirements of the architect for the Hamilton Project who the plaintiff had to satisfy, the court has reconsidered the award of prejudgment interest.  “The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of any arbitrary rule.”  (Citation omitted;  internal quotation marks omitted.)  Cecio Bros., Inc. v. Feldman, 161 Conn. 265, 275, (1971).   Accordingly, the court will allow eight (8) per interest per annum on the proven costs from January 1, 2007 to the date of this judgment, in the amount of $13,149.94.   Judgment may enter in the amount of $53,159.94, plus taxable costs for the plaintiff.

Berdon, J.T.R.

FOOTNOTES

FN1. After rendering the Court's original decision, the plaintiff filed a motion that was entitled “Motion for Additur” instead of a motion to reconsider or reargue pursuant to Sec. 11-12 of the Practice Book. At oral argument, the court made it clear that it would consider the plaintiff's motion as a Motion to Reconsider.   The court finds that the defendant was not misled and that the substance of the motion made clear that the plaintiff sought to reargue pursuant to the provisions of the Practice Book. The Supreme Court of Connecticut has held that “[t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88 (1988);  Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 35 (2004)..  FN1. After rendering the Court's original decision, the plaintiff filed a motion that was entitled “Motion for Additur” instead of a motion to reconsider or reargue pursuant to Sec. 11-12 of the Practice Book. At oral argument, the court made it clear that it would consider the plaintiff's motion as a Motion to Reconsider.   The court finds that the defendant was not misled and that the substance of the motion made clear that the plaintiff sought to reargue pursuant to the provisions of the Practice Book. The Supreme Court of Connecticut has held that “[t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88 (1988);  Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 35 (2004).

Berdon, Robert I., J.T.R.