Barbara MacBurney et al. v. NVS (2011)

MEMORANDUM OF DECISION AFTER COURT TRIAL

I. Nature and History of Proceedings

This case arises out of an alleged breach by the defendant of a written home construction contract pursuant to which the defendant, Neat Strickcani, allegedly agreed to add a second story addition to the existing single-family dwelling owned by the plaintiffs, Barbara and William MacBurney, located at 162 Edward Avenue, Watertown, Connecticut.   The new addition was to be occupied by the plaintiffs, Marissa Ganavage, the MacBurney's daughter, her husband, the plaintiff, John Ganavage, and their children.   The court will hereinafter refer to Barbara and her daughter, Marissa, as the plaintiffs.¹

The case was commenced on May 3, 2006, via an Application For Prejudgment Remedy filed by the plaintiffs, which sought to attach the goods and estate of the defendant in order to secure the sum of $89,500.   It does not appear from a review of the file that any hearing was conducted or that any order was entered on that application.   The application was accompanied by a proposed unsigned summons and complaint and an affidavit executed by all four of the initial plaintiffs.   According to the affidavit, dated May 1, 2006, the damages sustained by the defendant's alleged breach of the construction contract amounted to $83,000, $6,500 less than the amount of the prejudgment remedy sought at that time.

The operative signed complaint is dated May 31, 2006, and consists of one count.   The plaintiffs allege therein that they entered into a written contract with the defendant, which was executed by all of the parties on May 29, 2005, wherein the defendant agreed to construct two additions to the MacBurney's home.   They further allege that, although the plaintiffs performed all of their obligations under the contract, the defendant failed to perform his obligations in that:  “He left substantial amounts of work to be completed and that those amounts of work that were completed by him were improperly and/or inadequately done, all to the great damage of the plaintiffs.”   The plaintiffs are seeking money damages as a result of the defendant's alleged breach of the written construction contract.

The defendant having been previously defaulted for his failure to appear, on September 11, 2006, the court (Gallagher, J.), after a hearing in damages, entered judgment in favor of the plaintiffs and against the defendant in the amount of $117,781.31 in addition to attorneys fees of $1,610.20 and costs of $289.80 for a total of $119,681.31.   The amount of the judgment was based upon the construction contract, an updated affidavit of debt and documentary evidence of payments to others in an effort to complete the project.   However, on December 11, 2006, the defendant, who had retained an attorney, moved to open that judgment based upon his claimed mistaken understanding that his attorney had filed an appearance and was protecting his interest in the litigation.   Over the plaintiff's objection, Judge Gallagher granted the motion and set aside the judgment.

On March 19, 2007, the defendant filed his Answer (# 111), wherein he denied the existence of a written contract and denied the allegations quoted above.²  On August 27, 2008, the plaintiffs filed a second Application For Prejudgment Remedy (# 115) and the requisite accompanying documents whereby they sought to attach certain real property owned by the defendant.   The amount of the remedy sought was $126,459.39.   Although a hearing on the application was ordered to be held on September 15, 2008, again, the file does not reflect that such a hearing ever took place and does not reflect the issuance of any court-ordered prejudgment remedy.   On September 17, 2009, the defendant, with the consent of the plaintiffs, amended his answer to include a Special Defense (# 118), wherein he asserted that he never executed the written contract in the form claimed by the plaintiffs and further that the plaintiffs “fraudulently completed” the alleged written contract to include terms that were never agreed to by the defendant.   On September 23, 2009, the plaintiffs filed their reply (# 119) to the defendant's special defense.   The pleadings were not finally closed until seven months thereafter!

The trial was held over a period of four days from April 14, 2011, to April 20, 2011, during which the court heard from seven witnesses, including the defendant who took the stand on two separate occasions as he was called by each of the parties.   In addition to the defendant and the two remaining plaintiffs, the court heard from the following:  Gary Pranger, a registered and licensed land surveyor, who prepared a plot plan of the project;  Charles Lipsey, who assisted the defendant in constructing the addition;  Neritan Shkembi, who also worked on the job;  and Anne Marie Strickcani, who is the defendant spouse and who is the sister of John Ganavage, who is Marissa's spouse.   The court received twenty-seven full exhibits into evidence, six submitted by the plaintiffs and twenty-one submitted by the defendants.   The exhibits included the alleged construction contract, copies of canceled checks and receipts, invoices for materials, records and plans from the office of the Watertown building officials, bank statements and numerous photos.

After reviewing thirty-eight pages of the court's notes and considering the testimony of all witnesses and assessing the credibility of each;  after reviewing all of the operative pleadings;  after reviewing each and every one of the submitted exhibits;  and after considering the oral arguments advanced by the parties, for reasons hereinafter stated, the court finds in favor of the defendant.

II. Claims of the Parties

A. The Plaintiffs' Position

As noted, the sole cause of action upon which the plaintiffs base their claim against the defendant is the breach of a written contract, which was attached to the plaintiffs' complaint as “Exhibit A” and was submitted into evidence at the trial as Plaintiffs' Exhibit # 1.

The plaintiffs claim that the contract entitled “NVS Masonry and Carpentry Contract,” which was the trade name of the defendant's business, was signed by the defendant and all four original plaintiffs on the same day and at the same place, i.e., in the backyard of the plaintiffs' dwelling on a hot summer day, June 29, 2005.   Due to the defendant's difficulty with the written English language, according to the plaintiffs, Marissa inserted into the form agreement the handwritten details of the nature and scope of the planned project.³  The project was to consist of two additions to the existing dwelling, each of which was to be completely finished and, according to Marissa, “ready to move-in.”

The smaller project was to consist of a 16' x 18' addition to the front of the dwelling above the existing foyer, with a 10' x 10' addition to the front porch.⁴  The larger project contemplated an addition to the rear of the existing dwelling which was to consist of two floors and eight rooms complete with attic storage space.   The dimensions referred to in the contract are 31.3' x 28.8.'

Article 3 of the contract provided that all of the labor and materials necessary for the construction of each of the additions and the porch extension would be included in the agreed contract price of $53,000, $18,000 of which was allocated to the front edition while $35,000 was allocated to the rear.   It was understood that since both of the families, each to a different degree, would benefit from the project, the cost thereof would be proportionately shared.   Barbara testified that her daughter and her family were to reside in the eight-room apartment that was to be added to the rear of the dwelling.   That addition was to consist of three floors, including the attic.

The defendant and several of the defendant's employees (two of which testified during the trial) commenced construction in July 2005, however, according to the plaintiffs, there were numerous delays and problems along the way, mostly related to “shoddy workmanship,” some of which compelled the building inspector to order work to be dismantled and re-done.   According to Barbara, she was finally compelled to order the defendant and his crew off the property on January 13, 2006 as, inter alia, the roof leaked, closets were misaligned, lumber was used on other jobs and materials for which she paid were not received.   Barbara produced receipts and canceled checks that demonstrated payments to the defendant in the amount of $60,379.85.   Plaintiffs' Exhibits # 2 and # 3.   She claimed that she and her daughter paid an additional $20,000 for materials and tools that she purchased, however, many of her records were destroyed in a fire that unfortunately gutted the main house on September 27, 2006.   In addition to a loan from Barbara's brother and cash contributions from her mother, who was also a resident, the project was financed by a bank construction loan.   Barbara claimed that after the defendant's departure from the construction site, 90% of the siding had to be replaced and that the project had to be completed by family members and friends.

During her testimony Marissa confirmed that she was the author of the handwritten additions to the alleged contract upon which her cause of action is based.   As to the problems encountered during the construction, she added that there were holes in the floor, cracks in the foundation, doors installed that were not standard and that the job site was extremely “messy.”   She referred to Plaintiffs' Exhibits # 2, # 3 and # 4, consisting of canceled checks, receipts and materials invoices, as confirmation that the defendant and others were paid a total sum exceeding $80,000 in order to complete the work contemplated by the parties' contract.

From the testimony of each of the plaintiffs, it was not entirely clear to this court what amount was being sought by them from the defendant as a consequence of his breach of the alleged written construction contract.   The initial application for a prejudgment remedy sought in excess of $89,000.   The vacated ex parte judgment previously entered by the court was in excess of $119,000.   The prejudgment remedy sought by the plaintiffs on August 27, 2008, exceeded $126,000.

B. The Defendant's Response

The defendant denies the existence of any written contract.   He claims that in light of the familial relationship among the parties and his admitted lack of proficiency in the written English language he simply presented a blank form contract and asked Barbara to fill in the details.   He claims that his quote of $53,000 was indeed based on a June conversation in the plaintiffs' backyard but it was sketched out by him on a piece of paper in his native language (Macedonian or Albanian), and was not reduced to any written contract.   Defendant's Exhibit D purportedly shows the defendant's calculations, based upon a charge of $10 per square foot for the framing of the additions.   That calculation amounted to $53,808, which, apparently, the defendant rounded off to arrive at his quote of $53,000 for the project.   He claims that as the job progressed, Barbara kept on insisting that he do more and more additional work that was not contemplated by the price that he originally quoted.   He testified that he accommodated most of her requests for extra work, including, inter alia, the porch extension, the roof installation and the installation of aluminum siding, until, according to him, the money ran out and she was no longer paying him.

The defendant insists that he left the job site in January 2006 because he wasn't getting paid.   The defendant, much like the plaintiffs, was unable to produce checks and receipts and other pertinent records that were kept by him as they were submitted as exhibits during the March 2008 hearing on a mechanic's lien that he lodged against the Edward Avenue property.   He claims that the mechanic's lien court file has since been destroyed and the records were lost.   He testified that the first time he saw Plaintiff's Exhibit # 1, the purported contract between the parties, was at that mechanic's lien hearing.   The defendant was seeking an additional $20,000 from the plaintiffs, however, the parties reached an agreement pursuant to which the defendant released the lien in exchange for the right to go upon the MacBurney property in order to retrieve some of his tools and equipment.   See Defendant's Exhibits F, M and N.

The defendant testified that, based upon his twenty years of experience in the home construction business, every aspect of his work and that of his employees was performed in a workmanlike manner.   He added that when he voluntarily abandoned the project due to nonpayment, the job was “substantially completed.”

He submitted Defendant's Exhibit A as confirmation that the project evidenced by Marissa's handwritten details could “never be done” for $53,000.   That exhibit is a certified copy of the entire file kept at the Watertown building officials' office and includes a permit application for the 28.8' x 31.3 addition to the rear of the house that estimated the cost of the structural portion of the job at $97,160.   A permit application for the structural portion of the smaller addition, contained an estimate of $16,620.   The foundation work was estimated at $7,000, while the rough plumbing was to cost $2,500.   The defendant claims he was paid a total of $38,298.27 from which he paid out $28,917.25.   Thus, he personally received for his labor the difference, $9,381.02.   He claims that he was owed a total of $30,180 and that once the $9,381.02 is credited he was owed a balance of $20,798, which is the amount that he sought via the mechanic's lien.   Notably, he did not file a counterclaim.⁵

As to the numerous claims of defects and deficiencies in the construction of the two additions that have been made by the plaintiffs, those claims were vehemently denied by the defendant.   In support thereof the defendant called two men who worked with him on the project.   Charles Lipsey worked on several aspects of the project, mostly the framing.   He confirmed that the defendant had trouble getting money from the plaintiffs and commented that Barbara was difficult to work for and was “nasty and vulgar” to the defendant and him.   She was always demanding that the defendant do more.   He testified, contrary to Barbara's testimony, that the defendant provided his own tools, stating, “there is not a tool he doesn't have.”   He claimed that when the defendant left the job, the project was substantially complete and that the siding, which was “90% done” required two to three hours to complete, while the entire project could be completed in fifteen to twenty hours.   He stated that all of the plumbing was done and included the installation of a tub, toilet and sink in the second-floor bathroom.   He confirmed that the plumbing and wiring were in for a full kitchen, which, as hereinafter addressed, was specifically disallowed by Watertown building officials!   See Defendant's Exhibit A. He disagreed with Marissa's testimony that the job site was always messy and testified that any do-overs were necessitated by damage caused by the plumber.   He denied, contrary to Barbara's claim, that the stairs were torn out on three separate occasions and testified that the stairs were custom-made and were properly installed by the defendant, who purchased a special construction calculator in order to achieve the correct measurements.   He opined that any roof leaks were due to the teenage residents insisting on playing on the new roof despite his instruction not to do so as they were inhibiting the binding of the shingles.   Since his wife is John Ganavage's niece, he was prevailed upon to help complete the project after the defendant's departure, however he soon followed suit as he wasn't getting paid and is still owed $340.   Neritan Shkembi (Tani) also worked on the job.   He confirmed that all of the lumber purchased for the job was used for the Edward Avenue job only and was not used elsewhere.   He confirmed Lipsey's testimony that at the time the defendant left the site, the project was substantially completed.   Most notably, he testified that, “when snow was on the ground,” he saw the defendant go to his truck and obtain a pre-printed contract from his clipboard, sign that contract form, which “had no writing on it” and present it to Barbara, who then told the defendant she would “get back to him.”   Ann Marie Strickani, the defendant's spouse and John Ganavage's sister, testified that she was present at a backyard discussion in June 2005, but that it was one of many discussions among the family members concerning the proposed additions, which dated back to 2002.   This three-year discussion period that preceded the commencement of the project is certainly confirmed by Defendant's Exhibits O and P, the survey proposal and completed “Zoning Location Map” prepared by Gary Pranger, who was called by the defendant to testify.   Pranger was the registered land surveyor retained by the plaintiffs for the project, referred to by Pranger as “Project 0236.”   The map was prepared on November 5, 2002.   As hereinafter discussed, an “AS BUILT” plot plan of the project prepared by Mr. Pranger on July 25, 2005, is the crucial piece of evidence that has been instrumental in assisting the court in arriving at its ultimate decision.   See Defendant's Exhibit S.

III. Discussion

The court is keenly aware of the dispute between the parties over who paid what to whom, when, and the purpose thereof.   The court, in discharging its responsibility owed to each of the parties, has extensively reviewed the checks, receipts and bank statements submitted by each of the parties.   This aspect of the parties' conflict, however, is not a matter for the court to resolve in order to reach the ultimate decision in this case.   The court's decision is not based upon an analysis of the numbers, although the court, most assuredly, has undertaken that analysis.   This court's decision in favor of the defendant is based solely upon the issue of credibility.

When a judge presides over a jury trial he/she does not have the duty to assess the credibility of the witnesses.   That duty is the sole province of the jury.   When, however, a judge as in this case presides over a court trial he/she not only serves as the lawgiver but as the factfinder who must assess and determine the credibility of each of the witnesses who testified during the trial.   The court's responsibility in this regard is to follow the instruction on credibility which is imparted to civil and criminal juries alike in all Connecticut jury trials.   That instruction is found in Section 2.5–1 of “Connecticut Civil Jury Instructions” and is as follows:  “The credibility of witnesses and the weight to be given to their testimony are matters for you as jurors to determine.   However, there are some principles that you should keep in mind.   No fact is, of course, to be determined merely by the number of witnesses who testify for or against it;  it is the quality and not the quantity of testimony that controls.   In weighing the testimony of each witness you should consider the witness's appearance on the stand and whether the witness has an interest of whatever sort in the outcome of the trial.   You should consider a witness's opportunity and ability to observe facts correctly and to remember them truly and accurately, and you should test the evidence each witness gives you by your own knowledge of human nature and the motives that influence and control human actions.   You may consider the reasonableness of what the witness says and the consistency or inconsistency of (his/her) testimony.   You may consider (his/her) testimony in relation to facts that you find to have been otherwise proven.   You may believe all of what a witness tells you, some of what a witness tells you, or none of what a particular witness tells you.   You need not believe any particular number of witnesses and you may reject uncontradicted testimony if you find it reasonable to do so.   In short, you are to apply the same considerations and use the same sound judgment and common sense that you use for questions of truth and veracity in your daily life.”   In instructing juries on the issue of credibility, this court often adds the following:  “Another question for you to have in mind as regards to each witness is the question as to whether the story she or he told was plausible, did it ring true or were there inconsistencies in it?   Did it fit in with other evidence in the case which you believe and other facts which you find to have existed?   Does it fit with the evidence and those facts or is it in conflict with that evidence?   Simply because you find that a witness has not testified accurately with respect to one fact does not necessarily mean that she or he is wrong on every other point.   A witness may be honestly mistaken on one point of her or his testimony and be accurate on others.   Failure of memory may be the reason for some inconsistencies or contradictions.   Also it is not uncommon for two people to witness the same event yet perceive or recall things differently.   If you find that a witness has deliberately lied on any material point, however, that is an important point, it is natural that you may be suspicious of his or her testimony on all points.   Under those circumstances you may disbelieve the witnesses entire testimony according to your own sound judgment.”

In assessing the credibility of the testimony of the parties in this case, the court has followed the instructions quoted above.   The court finds that the testimony of the defendant, much of which is corroborated by credible non-party witnesses, is, for the most part, credible, however, the court finds that the testimony of the plaintiffs, in particular, their testimony as to the making of the alleged written contract, which is the core of this action, lacks credibility.  “[W]e are mindful of the well trodden notion that the trial court is the sole arbiter of credibility, [and it is] free to accept or reject, in whole or in part the testimony offered by either party.”  Shaulson v. Shaulson, 125 Conn.App. 734, 742–43, cert. denied, 300 Conn. 912 (2011).   Also see Yao Gong v. Xuanwei Huang, 129 Conn.App. 141, 153 (2011).

As has been previously stated the sole count in the plaintiffs' complaint is grounded upon their claim that the defendant breached a written contract (Plaintiffs' Exhibit # 1) which contained, in Marissa's hand writing, all of the details concerning the construction of the additions to the MacBurneys' single-family dwelling located at 162 Edward Avenue, Watertown.   The plaintiffs further claim that the $53,000 contract price and all of the terms and conditions were agreed to during a meeting in the backyard that took place on June 29, 2005, the date on the purported contract.   The Plaintiffs claim that all four parties who were the original plaintiffs in this action and the defendant signed the contract on that date.   Put simply, the defendant claims that the handwritten portion of the contract was added to a signed document which he presented to Barbara in the winter of 2005, but which contained no handwritten language.   The plaintiff claims that he first saw Plaintiffs' # 1 at the mechanic's lien hearing in March 2006.

One of the specifications in that exhibit is the dimensions of the proposed addition to the rear of the dwelling.   The document states, “addition in the rear of the existing house 31.3 x 28.8 with 2 floors and a walk-up attic with a total of eight rooms ․” In reviewing the entire file from the Watertown building department (Defendant's A), there are several permit applications contained therein that were presented to the town's building officials that contain the dimensions or footprint for that larger addition.   On June 30, 2005, the foundation application estimates the dimensions as 30' x 30.'   On the July 11, 2005, an additional application reflects dimensions of 28' x 30.'   However, on the subsequent structural application the dimensions are much more exact;  that application as well as a plan submitted on September 22, 2005, indicate dimensions of 31.3' x 28.8,' the identical numbers contained in the contract purportedly executed by the parties on June 29, 2005.

Where did Marissa obtain such exact dimensions?   The origin of the exact footprint of the addition to the rear of the dwelling is the “AS BUILT” survey that was prepared by Pranger and is dated July 26, 2005.   That document is Defendant's Exhibit S and is contained in Defendant's Exhibit A, the Watertown building department file.   Pranger's handwritten notes containing a sketch of those exact dimensions are dated July 25, 2005, and are Defendant's Exhibit T. If the exact dimensions of the larger addition were not known by anyone until Pranger measured and plotted the as built footprint, how were they inserted into a “contract” that predated that information by nearly a month?   The only logical conclusion is that, as the defendant claims, the handwritten portion of Plaintiffs' Exhibit # 1 was prepared and inserted into the document sometime after June 29, 2005, a conclusion which is fatal to the plaintiffs' breach of contract claim.   One might reasonably infer that the handwritten language was inserted into the document as a reaction to the defendant's mechanic's lien.

There is another factor that adversely affects this court's assessment of the credibility of the plaintiffs.   The Watertown building department file (Defendant's A) contains the following statement as a specific condition of the town's approval of the proposed additions:  “Proposed addition will maintain a single family residence and no accessory apartment.”  Emphasis added.   That statement appears on at least three different documents contained in the file:  the foundation permit dated June 3, 2005, which is signed by the zoning enforcement officer;  the approval form for the larger addition, dated July 28, 2005;  and the zoning enforcement officer's approval of the smaller addition dated September 22, 2005.   Town officials from the commencement of the application process made it absolutely clear to the plaintiffs that a two-family house was strictly prohibited.   In light of Lipsey's credible testimony that the second floor had plumbing and wiring for a “full kitchen,” one may readily infer that the plaintiffs paid no attention to the condition imposed by town officials and intended a two-family house from the beginning, all of which is consistent with the testimony offered by the defendant and his coworkers.

IV. Conclusion

Based upon the above analysis, this court finds that the plaintiffs have failed to prove their case by a preponderance of the evidence.   Judgment may therefore enter in favor of the defendant with costs to be taxed by the clerk.

Wilson J. Trombley, Judge

FOOTNOTES

FN1. At the commencement of the trial, William MacBurney and John Ganavage withdrew their complaint against the defendant.   The remaining plaintiffs, Barbara MacBurney and her daughter, then proceeded to present their evidence..  FN1. At the commencement of the trial, William MacBurney and John Ganavage withdrew their complaint against the defendant.   The remaining plaintiffs, Barbara MacBurney and her daughter, then proceeded to present their evidence.

FN2. Notably a Certificate of Closed Pleadings was filed on April 2, 2007, a period in excess of four years prior to the commencement of the trial!.  FN2. Notably a Certificate of Closed Pleadings was filed on April 2, 2007, a period in excess of four years prior to the commencement of the trial!

FN3. Since the court had difficulty in deciphering some of the language, the court prevailed upon Marissa to read into the record the handwritten portions of the alleged agreement.   The court then ordered a transcript of that portion of her testimony which was received on April 25, 2011..  FN3. Since the court had difficulty in deciphering some of the language, the court prevailed upon Marissa to read into the record the handwritten portions of the alleged agreement.   The court then ordered a transcript of that portion of her testimony which was received on April 25, 2011.

FN4. The 10' x 10' extension of the porch was ultimately rejected by Watertown building officials as it was too close to the street line.   In lieu thereof, a 5' x 10' addition was approved.   See Defendant's Exhibit A..  FN4. The 10' x 10' extension of the porch was ultimately rejected by Watertown building officials as it was too close to the street line.   In lieu thereof, a 5' x 10' addition was approved.   See Defendant's Exhibit A.

FN5. The court infers from the defendant's decision not to file a counterclaim that he would encounter a defense that he violated Connecticut's Home Improvement Act, which is codified in General Statutes Section 20–418 et seq.   In this regard, on the last day of the trial the plaintiffs orally moved to amend their complaint by adding a count based on a violation of Connecticut's Unfair Trade Practices Act (CUTPA) which is codified in General Statutes Section 42–110a et seq.   The court, referring to the age of the case, the extensive gaps in time and the inordinate delay in bringing the case to trial, denied the motion.   Breach of the alleged written contract thus remained as the sole cause of action upon which the plaintiff's case is based..  FN5. The court infers from the defendant's decision not to file a counterclaim that he would encounter a defense that he violated Connecticut's Home Improvement Act, which is codified in General Statutes Section 20–418 et seq.   In this regard, on the last day of the trial the plaintiffs orally moved to amend their complaint by adding a count based on a violation of Connecticut's Unfair Trade Practices Act (CUTPA) which is codified in General Statutes Section 42–110a et seq.   The court, referring to the age of the case, the extensive gaps in time and the inordinate delay in bringing the case to trial, denied the motion.   Breach of the alleged written contract thus remained as the sole cause of action upon which the plaintiff's case is based.

Trombley, Wilson J., J.