David J. Spurlock et al. v. John P. Mihok (2012)

MEMORANDUM OF DECISION RE PLAINTIFF'S APPLICATION FOR A PREJUDGMENT REMEDY

I. Background

The plaintiffs have made application for the issuance of a prejudgment remedy (PJR) in the amount of $175,000.00 against the defendant John Mihok arising out of allegedly negligent work by Mihok in performing renovations on, and building an addition to, the Spurlock residence at 8 Patricia Lane in Greenwich, Connecticut.   The proposed complaint alleges that Mihok is the sole member and owner of New England Custom Carpentry, LLC (NECC).   It is further alleged that Mihok represented to the plaintiffs that NECC was capable of doing the renovation and addition work as represented in the architectural drawings prepared for the plaintiffs.   It is alleged that NECC began work on the Spurlock residence in September 2010, and Mihok performed various services and work during the renovation and construction project.   The proposed complaint describes numerous shortcomings in the exterior, interior and mechanical portions of the project.   The Spurlocks terminated the contract with NECC in August 2011.

The proposed complaint states claims against Mihok of negligent misrepresentation, negligence, and a violation of the Connecticut Unfair Trade Practices Act, General Statutes §§ 42–110b et seq.  (CUTPA).  A hearing on the application for a PJR took place on January 31, 2012.

II. Standard of Review

General Statutes § 52–278(a)(1) authorizes the granting of a PJR when “there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff ․” “Probable cause” has been regularly defined by Connecticut courts as “a bona fide belief in the existence of the facts essential under the law for the action, and as such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances in entertaining it.”   See e.g. TES Franchising, LLC v. Feldman, 286 Conn. 577, 584 (1977);  Ledgebrook Condominium Association, Inc. v. Lusk Corporation, 172 Conn. 577, 584 (1977);  Wall v. Toomey, 52 Conn. 35, 36 (1884).   This rather distended definition has been held to mean that the burden of proof required for a PJR is less than proof by a preponderance of the evidence.  TES Franchising, supra, 286 Conn. 137;  CC Cromwell Ltd. Partnership v. Adames, 124 Conn.App. 191, 194 (2010).   Probable cause must be established both as to the merits of the case and the amount of the PJR. CC Cromwell, supra, 124 Conn.App. 196 (quoting TES Franchising, emphasis in the original.)

III. Discussion

The testimony and documentary evidence produced at the hearing show that the construction and renovation project has not gone well for the Spurlocks.   The work began in the latter part of 2010.   A contract between NECC and Mr. Spurlock was signed in January 2011.   Exhibit 1;  Exhibit A. The scope of work was expanded in March 2011 to include the construction of a patio.   Exhibit 7. Some punch lists were prepared in June 2011.   Exhibits 9, 10.   However, on June 23, 2011, the Town of Greenwich building inspector did not approve the plumbing or electrical work, and the residence did not pass a building inspection.   Exhibit 8. Mihok, NECC and subcontractor were not allowed on the premises from late June to July 17, 2011.   Exhibit 11.   Subsequently, leaks were found in the new gas line running from the residence to the grill area on the new patio.   Exhibit 8.

In August 2011 Robert Tucker, the architect who rendered the final construction drawings visited the residence and later completed a report detailing what he deemed to be the shortcomings in the work on the project.   Exhibit 14.   The report and Tucker's testimony, which was credible, also characterized the problem areas as (1) possible building code issues, (2) improper workmanship, or (3) items in the scope of work and in the plans, but not completed.   The Tucker report estimated the costs of repair or completion to be $175,200.00, not including $10,000.00 in architect fees.   This estimate was based on Tucker's own experience and estimates obtained from contractors.   In the main, the allegations of negligence in the proposed complaint, track the shortcomings identified in the Tucker report.

At this point, the court digresses somewhat to emphasize what it perceives to be the significant issues to be resolved.   NECC is not a party to this lawsuit, and this is neither a breach of contract case nor an effort to “pierce the corporate veil” of NECC to hold Mihok individually liable for a corporate liability.   Indeed, the evidence at the PJR hearing would not support a finding that the corporate status should be disregarded under any of the available theories of law.   Instead, plaintiffs seek to hold Mihok liable on the basis of his alleged individual tortious behavior.   Where a corporate agent or officer commits or participates in the commission of a tort, whether he acts on behalf of his principal or corporation or not, he is liable to third persons injured thereby.  Ventres v. Goodspeed Airport, 275 Conn. 105, 142 (2005).   Whether one committed or participated in a tort is a question of fact that must be determined by the evidence.  Id. Thus, with respect to the claim of negligence, the court must determine whether, and to what extent Mihok's negligence or direct participation in negligence, caused the injury.

Negligent Misrepresentation Claim.   There was little evidence at the PJR hearing on the negligent misrepresentation claim against Mihok.   David Spurlock testified that Mihok told him he had twenty years experience as a builder, but the “majority of the reason” for hiring him was a personal referral from a friend for whom Mihok had built a two story, 1,000 square foot addition.   Transcript, January 31, 2012, 49–50.   The court finds there is insufficient evidence to support a PJR in any amount on this claim.

Negligence Claim.   The Tucker report identifies certain individual shortcomings which were not done in accordance with the contract drawings.   For instance, the barbeque area was not completed, propane tank not installed, and electrical hook-ups not completed.   These might be evidence of contract breaches, but without more they are not evidence of negligence.   Tucker testified that he personally observed Mihok involved in excavation work and wood framing, but did not observe any defects in excavation or framing.   David Spurlock testified he observed Mihok personally working on a few, but by no means, all, of the items listed in the proposed complaint under the categories “interior” and “exterior” and did not see him working on “mechanical” items or the gas lines.

The most serious shortcomings in the work appears to be several exterior areas where the grade is too close to the wood framing of the house.   According to Tucker this can cause rot, is a code violation, and without rectification, will probably prevent a Certificate of Occupancy from being issued.   According to Tucker, the foundation was constructed without a “framing shelf” and the wood framing is too close to the ground.   Part of the area that is too high is the new patio which was not built to plans and specifications.

There was no evidence that Mihok worked directly on the foundation, and there was no evidence he worked directly on the patio.   The foundation work was clearly encompassed in the contract between NECC and the Spurlocks.   A new 800 square foot bluestone patio was included in the expanded scope of work set out in Exhibit 7. Mr. Spurlock testified that patio plans were drawn wherein the cooking grill would be placed away from the house.   Tucker confirmed that plans were delivered to Mihok.   The patio work was done by a subcontractor identified as “Beckham” (ph.).   Turner testified that the whole patio was built six inches too high and included poor workmanship, and it was his opinion that patio work needed to be replaced at an estimated cost of $60,000.00.

The court concludes that the plaintiffs have established probable cause that Mihok's negligent supervision was partially responsible for the improper level of the patio and poor workmanship up to an amount of $30,000.00.   In addition, there is probable cause that Mihok was negligent on interior framing and carpentry work ($5,000.00) exterior carpentry ($5,000.00) and with respect to an interior wood floor $7,500.00.)

CUTPA Claim.   There was no evidence presented to establish a claim of a violation of CUTPA.

IV. Conclusion

The court grants the application for a prejudgment remedy in an amount of $47,500.00.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.