LLP v. Charles Barberi et al. (2011)

MEMORANDUM OF DECISION

PROCEDURAL BACKGROUND

This vigorously contested contract action was initiated by the plaintiffs, Groton Shoppers Mart, LLC and Grant Holding Realty I, LLC, in six counts alleging breach of contract, fraudulent concealment, CUTPA violation, fraud, breach of covenant of good faith and fair dealing, negligence and breach of fiduciary duty.   The defendants, Charles Barberi and Barberi Brothers Demolition, denied the allegations and pleaded special defenses of laches, statute of limitations, spoilation of evidence and estoppel as to all counts.

A trial took place in this court in New London on March 15, 2011, where all parties were well represented by counsel, presented evidence and advanced argument in furtherance of their respective claims.

FACTS

From the evidence presented, including reasonable and logical inferences from the same, and taking into account the court's evaluation of the credibility of the witnesses, the following facts relevant to the decision are found.   The contract at issue related to a property located on Route 1, Long Hill Road, Groton, Connecticut, in front of the Groton Shoppers Mart. The property had a single structure that had formerly housed a Subway Restaurant and a dry cleaner as a tenant.   In 2002, the plaintiffs decided that the structure would be demolished.   Robert Bissell of Bissell Consulting was hired by the plaintiffs to oversee the demolition.   Bissell sent out proposals for demolition bids near the end of May, or the beginning of June 2002.   The request for bids stated the scope of the work would include demolition of the building and “the removal of all debris from the site, including foundations and miscellaneous concrete slabs.”   The defendant Charles Barberi responded with a price of $16,000.   The purpose of the demolition was either to create new parking spaces or to use the space for the construction of buildings for retail stores.

On August 14, 2002, Bissell authorized a letter to Barberi to proceed with a start date on or around August 19, 2002.   Barberi started the demolition around August 19, 2002.   Barberi removed some concrete and wood debris on August 22, 23 and 27, 2002.   Bissell was on the site during these three days to inspect the progress of the work and to take pictures which were in evidence.   Barberi finished all close out requirements on about August 27, 2002, and was paid in full in September 2002.

The property where the demolition had occurred remained undisturbed for years until the summer of 2007, when the plaintiff, Grant Holding Realty I, LLC, entered into a lease with Starbucks that required the construction of a store on the same footprint as the previously demolished building.   Pasqualini Construction, Inc. was hired to excavate the foundation.   As the excavation proceeded, unexpected construction debris was found on the site, and Dr. Welti was engaged to investigate.   His report indicated that a considerable amount of construction debris along with numerous pieces of concrete were buried under the fill on the site of the old demolition.   The report also found that there were preexisting foundations and slabs that needed to be removed.   Photographs were taken by Bissell.  (Plaintiffs' Exhibits 28a-cc.)   The plaintiffs engaged Pasqualini Construction to remove the material on a time and material basis due to the urgency of meeting the contractual deadlines to complete the Starbucks.   Pasqualini Construction was paid $17,793.00 for that work.   Additional test hole work was required because of the material removed and some delay in the Starbucks preparation work was also caused by the removal of concrete and debris.   The considerable evidence offered with respect to the cost of these items was not credited by the court.

CLAIMS OF THE PARTIES

A. Breach of Contract

In the first count of the complaint, the plaintiffs allege a breach of contract.  “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Rosato v. Mascardo, 82 Conn.App. 396, 411, 844 A.2d 893 (2004).   Here, an agreement was formed, and the plaintiffs performed by paying the defendants in full.   The evidence established that the defendants violated the terms of the contract when they failed to remove all debris from the site, including foundations and miscellaneous concrete slabs.   Finally, the plaintiffs sustained damages when they were required to complete the work with another contractor.   The court finds the damages to have been $17,793.00.

B. Fraudulent Concealment

The second count of the complaint alleges that the conduct of the defendants constituted fraudulent concealment.  General Statutes § 52–595 provides:  “If any person, liable to an action to another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.”  “Our Supreme Court has stated that [t]o establish that the [defendant] had fraudulently concealed the existence of [the plaintiff's] cause of action and so had tolled the statute of limitations, the [plaintiff] had the burden of proving that the [defendant was] aware of the facts necessary to establish [the] cause of action ․ and that [the defendant] had intentionally concealed those facts from the [plaintiff] ․ [Additionally], the [defendant's] actions must have been directed to the very point of obtaining the delay [in filing the action] of which [the defendant] afterward [seeks] to take advantage by pleading the statute ․ To meet this burden, it [is] not sufficient for the [plaintiff] to prove merely that it was more likely than not that the [defendant] had concealed the cause of action.   Instead, the [plaintiff must] prove fraudulent concealment by the more exacting standard of clear, precise and unequivocal evidence.”  (Emphasis in original;  internal quotation marks omitted.)   Stuart v. Synder, 125 Conn.App. 506, 512–13, 8 A.3d 1126 (2010), cert. denied, 300 Conn. 921 (2011).

Here, the plaintiffs have failed to meet this standard.   The court does find that the defendants knew they were burying demolition material and covering part of the foundation, but that is as far as the evidence goes in that regard.   The defendants made no effort to conceal their conduct.   The plaintiffs' agent Bissell was on the site each day of the work.   He saw fill being brought to the site.   He saw the site graded when completed.   Therefore, this claim is denied.

C. Negligence, CUTPA Violation and Fraud Claims

Because the plaintiffs have failed to establish the requirements of fraudulent concealment, the remaining claims of negligence, CUTPA and fraud are precluded by the defendants' special defense of statute of limitations.   This cause of action arose in 2002.   The action was not brought until June 2008, just prior to the running of the six-year statute of limitations for breach of contract.   The claims for negligence, CUTPA violation and fraud are subject to statutes of limitations of two years, three years and four years, respectively.

D. Breach of Fiduciary Duty

The plaintiffs also allege the breach of a fiduciary duty by the defendants.   According to the Supreme Court, a “fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other.”  (Internal quotation marks omitted.)   Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 108, 912 A.2d 1019 (2007).   A fiduciary duty arises in “situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other.”  (Internal quotation marks omitted.)  Id. The court finds no evidence in the present case that there was any unique degree of trust and confidence as between the parties.   This was a demolition contract.   The plaintiffs had a consultant, Bissell, to supervise or coordinate the work.   Bissell was on the site to watch the work being completed, took pictures and made notes with respect to the same.   This claim of the plaintiffs therefore fails.

E. The Awarding of Interest

Pursuant to General Statutes § 37–3a, the plaintiffs request interest at ten percent from October 2008 through judgment and thereafter at ten percent on the judgment.  Section 37–3a(a) states in relevant part:  “[I]nterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ․ as damages for the detention of money after it becomes payable.”   (Emphasis added.)   The award of such interest is discretionary.  Discover Bank v. Mayer, 127 Conn.App. 813 (2011).   Here, the court finds that, giving consideration to the equities of the parties, and taking into account the disputed nature of the breach of contract action, only post-judgment interest should be awarded in the amount of ten percent per year on the unpaid portion after judgment until paid.

F. The Defendants' Other Special Defenses

The defendants argue that the plaintiffs' claims in all counts are barred by the special defense of spoliation of evidence.   The defendants' theory is based on its claim that the plaintiffs had a duty to preserve the construction debris, concrete slabs and existing foundations that were discovered upon unearthing the site where the defendants graded over this material they were contractually obligated to remove.   The court does not credit this claim.   “[T]he spoliation must have been intentional.”  Beers v. Bayliner Marine Corp., 236 Conn. 769, 777, 675 A.2d 829 (1996).

Here, the court considers the fact that the plaintiffs documented the debris and concrete slabs by photographing this material and having Dr. Welti issue a report as to the subsurface conditions found by Pasqualini Construction at the site.   Also, there is no claim that the evidence was destroyed after the action was initiated.   The debris was removed in the normal process of constructing a Starbucks under contract obligations.

The defendants also raise the defense of laches.   This claim is not briefed by the defendants.  “Laches consists of an inexcusable delay which prejudices the defendant ․ First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant.”  (Citation omitted;  internal quotation marks omitted.)  Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 350, 579 A.2d 1054 (1990).   The burden of proof is on the party claiming laches to prove it.  Burner v. Burner, 59 Conn.App. 593, 596, 758 A.2d 373 (2000).   Further, laches is only a bar to equitable relief.   Jarvis v. Lieder, 117 Conn.App. 129, 149, 978 A.2d 106 (2009).   The plaintiffs filed this action less than one year after finding the construction debris, concrete slabs and foundation.   The claim of laches will not avail the defendants.   The action was timely as to breach of contract.   As to the other counts, the defendants have already prevailed based on the statute of limitations special defense.

The last of the defendants' special defenses is estoppel.   This also was not briefed by the defendants, and in any event, estoppel was not proven because there was no testimony that the defendants relied on any statement made by the plaintiffs.   See O'Connor v. Waterbury, 286 Conn. 732, 757, 945 A.2d 936 (2008) (“There are two essential elements to an estoppel—the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done”).   The defense will not avail the defendants.

CONCLUSION

Therefore, judgment may enter for the plaintiff on the first count of the complaint as against the defendant in the amount of $17,793, plus interest at the rate of ten percent per year from the date of the judgment until paid, and costs as allowed by law.

Robert C. Leuba

Judge Trial Referee

Leuba, Robert C., J.T.R.