Diane M. Garrity v. Shoreline Masonry, Inc. et al. (2011)

MEMORANDUM OF DECISION

This dispute arises out of the failure of a series of retention walls and a patio and steps installed in 2003 and 2007 at the plaintiff Diane M. Garrity's (“Garrity”) shoreline residence by the defendants Shoreline Masonry, Inc. (“Shoreline”) and Christopher Severino (“Severino”).

The evidence, including the testimony of the parties and various exhibits, discloses the following facts.   In April 2003 Diane and Paul Garrity owned property located at 53 Shore Road, Clinton, Connecticut.   The property sits high on a bluff overlooking the Long Island Sound.   A series of descending terraces allows access to the beach and water.   Christopher Severino is the president and sole shareholder of Shoreline Masonry, a company specializing in masonry and landscaping work.   Severino and Shoreline had satisfactorily performed a number of masonry jobs at the Garrity's homes prior to 2003.

In April 2003, while doing unrelated work at her property Severino approached Garrity about the possibility of his installing retaining walls to replace, in part, an older railroad-tie system.   After investigation and discussion with his masonry supplier Severino recommended that a product known as Nickolock Firma Wall system be utilized.   As its name suggests, the Nickolock system is based on a series of interconnected stones whose facade creates the appearance of a natural, stone built wall.   Severino assured Garrity that he had experience in the installation of these type of walls and that he would properly and in a workmanlike manner install the Nickolock system in accordance with the Nickolock specifications.   Based on these assurances Garrity agreed to a project cost of $25,000 for the installation of the retention walls proposed by Severino.   Neither this, nor the subsequent agreements between the parties, was reduced to writing;  however, Severino provided Garrity with an initial sketch of the project as well as written progress billing statements.

Work on the project commenced in late spring 2003.   The parties dispute whether Severino advised Garrity that successful installation of this system required the removal of certain stumps that were proximate to the proposed walls.   Garrity denies that Severino informed her or her husband of this issue;  Severino insists he did advise her of the need to remove the stumps and that she refused due to the additional costs involved.   Most of the installation was performed by a crew headed up by a person known as Marco.   While his status as either an employee or subcontractor of Severino is murky, it is undisputed that Severino and Shoreline Masonry were the parties who undertook to perform the work at the Garrity residence.   Invoices were prepared on Shoreline stationery, checks were made payable to Shoreline, and Severino and Shoreline held themselves out to Garrity as the contractors retained to perform the work requested by her.

While the walls were being installed, Garrity reviewed on the internet the Nickolock installation specifications.   Based on that review Garrity advised Severino that he had failed to install traprock behind the new walls as required by the manufacturer's requirements.   Severino assured Garrity that the installation would be done in accordance with Nickolock's requirements;  shortly thereafter a load of trap rock was delivered to the house.   Not long after this discussion Severino advised Garrity that the $25,000 price quoted for the project constituted the cost for the work on the south side of hill only and that there would be an additional charge of $17,000 to install the walls on the north side of the embankment.   The parties finally agreed upon a price of $15,120.00 for this add-on.   Taking into account a prior balance, Garrity paid Severino a total of $40,041.00 for the 2003 installation of both the north and south Nickolock walls.   From 2003 through 2007 Severino performed additional work on the Garrity property;  during this period there were no complaints about the integrity or stability of the Nickolock system and walls.

In the spring 2007, Severino submitted a proposal to Garrity to reconstruct an existing landing and staircase on the upper terrace.   This areas is located above one side of the retaining walls installed in 2003.   The 2008 project involved the replacement of existing railroad ties with a Nickolock system and replacement of the brick and stone landing and staircase with bluestone.   Because of the death of Garrity's husband the work did not commence until April 2008.   Although, in accordance with past practices between the parties, no written contract was executed, there is no dispute that the contract price totaled $20,400 which was paid in full by Garrity.

In September 2008 Garrity noticed that the recently installed bluestone patio began to shift.   Severino reset the stones, but in late winter or early spring 2009 the patio, landing and stair again shifted.   On reinspection in March 2009 Severino concluded that the distortion of the stairs and patio was significant, requiring examination and evaluation by an engineer.   Shortly thereafter Severino retained Harry J. Shepard & Associates, LLC, Consulting Engineers to conduct a structural evaluation of the walls, patio and stairs installed as part of the 2003 and 2008 projects.

The Shepard Report, issued in April 2009, concluded that the failure of the upper landing terrace and stairs constructed in 2008 was directly attributable to the improper construction and installation of the 2003 retaining walls:

Based upon the physical evidence observed, in my opinion, the terraced retaining walls installed in 2004 were not properly constructed for the heights, surcharge loading and sloping backfill conditions that existed.   Confirmed deficiencies include the lack of earth reinforcement and stump removal.   Other possible deficiencies suspected including but are not limited to improper backfill materials, drainage and foundation bearing capacity.   In my opinion, the retaining wall adjacent to the stair and landing constructed by your company is in danger of collapse and, this is the cause of the conditions of concern with the landing and stairs constructed by your company.

Repair of the landing and stairs constructed by your company without remedy of the cause will result in additional future failure.   I advise that the structures that caused the condition of concern be properly reconstructed before the subject stairs and landing are reconstructed.   The existing masonry units could be salvaged but any stump remains should be removed and the reconstructed walls should incorporate proper earth reinforcement, backfill and drainage appropriate for the height, slope and surcharge conditions which exist.   To do this, it will likely be required that the wall be shifted a few feet to the south to provide sufficient space for the length of earth reinforcement required without infringement upon the original upper stone masonry walls.

Following his review of the Shepard report faulting the installation of the lower retaining walls, Severino submitted to Garrity a proposal to correct the deficiencies identified in the report at a cost of $34,825.00.   Upset that Severino was requesting payment to correct problems that his own engineer identified as flowing from Severino's faulty installation, Garrity requested the assistance of her brother Albert DeCarlo who has experience in the construction trades as both an electrician, a general contractor and builder.   DeCarlo requested that a Nickolock representative inspect the failing walls.   The representative concluded that the failure of the walls was due to the absence of proper drainage and the failure of Severino to install, per Nickolock's requirements, a geogrid system whose purpose is to add strength and stability to the wall.   The conclusions of the Shepard report were confirmed by an independent engineering analysis commissioned by Decarlo who retained the firm of Nafis & Young to inspect the existing walls and to design an engineered system for their replacement.   Nafis & Young likewise concluded that the 2003 installation was improper and defective because of the failure of the defendants to install proper drainage and to utilize the Nickolock geogrid system.

Because discussions between DeCarlo and Severino failed to produce an agreement, DeCarlo, at Garrity's direction, arranged for the reconstruction of the upper terrace and lower retaining walls installed by Severino in 2003 and 2008.   The total cost of the remedial work was $44,390.07.   Garrity now seeks damages in that amount for the cost of repairs plus an additional $11,000 for work to a portion of the 2003 walls not yet repaired.

Based on the foregoing the court enters the following conclusions of law.

1. Defendants Shoreline Masonry Inc., and Christopher Severino breached both the express and implied contracts with plaintiff Diane Garrity as alleged in Counts 1, 2, 3 and 4 of the plaintiff's second amended complaint.¹

2. Pursuant to those contracts defendants agreed and warranted both expressly and impliedly that they would construct the walls, patio and stairs in a workman like manner and in accordance with the installation specifications of the Nickolock system.

3. Plaintiff has demonstrated by a preponderance of the evidence, including the testimony of both parties' experts, that defendants' failure to provide for proper drainage, to properly take into account the load bearing requirements of the site, the failure to comply with Nickolock specifications and the failure to engineer the system prior to the commencement of construction were the cause of the failure of the 2003 retaining walls and the 2008 patio-stairway system.

4. As a result of the defendants' breach of contract plaintiff has incurred expenses in the amount of $44,390.07.   The court concludes that some of the expenses are excessive and not reasonable including the cost of trucking, handrail repair and general contractor fees.   The plaintiffs are therefore awarded damages in the amount of $35,900 for the cost of repairs arising out of the breach of the 2003 and 2007 contracts, plus $11,000 to reconstruct the lower wall for total damages of $46,900.

5. This action is not barred by the statute of limitations.   Counts 1 through 4, alleging breach of express and implied contracts, are governed by General Statutes § 52–576 which requires that an action be commenced within six years of the date of breach.   Defendants claim that the three-year statute of limitations for oral contracts;  General Statues § 52–281;  is controlling is analyzed in John H. Kolb & Sons, Inc. v. G & L Excavating, 76 Conn.App. 599 (2003).   In that case the court analyzed the applicability of the six-year statute of limitation;  General Statutes § 52–576;  and the three-year statute of limitations to oral contracts.   The court concluded:

These two statutes, each establishing a different period of limitation, can both be interpreted to apply to actions on oral contracts.   Our Supreme Court has distinguished the statutes, however, by construing § 52–581, the three year statute of limitations, as applying only to executory contracts ․ A contract is executory when neither party has fully performed its contractual obligations and is executed when one party has fully performed its contractual obligations ․ It is well established, therefore, that the issue of whether a contract is oral is not dispositive of which statute applies.   Thus, the ․ argument that § 52–581 automatically applies to the oral contract between the parties is incorrect.   The determinative question is whether the contract was executed.

(Citations omitted;  emphasis in original;  internal quotations marks omitted.)  John H. Kolb & Sons, Inc. v. G & L Excavating, 76 Conn.App. 599, 610, cert. denied, 264 Conn. 919 (2003).

In this case it is clear that the contracts between the parties were not executory.   The plaintiff fully performed her obligations by making payment in full to the defendants for both the 2003 and 2008 work performed by them.   Defendants likewise performed their obligations under these contracts, albeit not in a workmanlike manner.

Accordingly, for all of the foregoing reasons judgment hereby enters for the plaintiff on Counts 1, 2, 3 and 4 of the second amended complaint in the amount of $46,900.   Judgment for the defendants on Counts 5, 6 and 7.

SO ORDERED.

ROBERT L. HOLZBERG, JUDGE

FOOTNOTES

FN1. Defendant Severino's answer admitting allegations of paragraphs 4 and 6 of the first count and paragraphs seven and eight of the third count is binding and conclusive.   See, Argentinis v. Gould, 23 Conn.App. 9 (1990).   Beyond that, Severino's conduct during the course of the formation and execution of the contract reflects a failure to observe the corporate formalities.   Most significantly, having failed to prepare and execute a written contract identifying the corporate entity as the sole party to the contract he is now estopped from asserting that it was the corporate entity, not he personally, that is the legally responsible party..  FN1. Defendant Severino's answer admitting allegations of paragraphs 4 and 6 of the first count and paragraphs seven and eight of the third count is binding and conclusive.   See, Argentinis v. Gould, 23 Conn.App. 9 (1990).   Beyond that, Severino's conduct during the course of the formation and execution of the contract reflects a failure to observe the corporate formalities.   Most significantly, having failed to prepare and execute a written contract identifying the corporate entity as the sole party to the contract he is now estopped from asserting that it was the corporate entity, not he personally, that is the legally responsible party.

Holzberg, Robert L., J.